Henry J. Roberts, Jr.: I would like to say something today to try -- Court by a misimpression. I think the Solicitor General may have given you yesterday when the implication was made that people who have been taken off the rolls under this challenge system would have to go back and take some different type of literacy test or different type of test as required by the constitutional laws of the State. The same test is issued to anybody when they register. That is if they are challenged off the rolls and there is a necessity for them to reregister, they pass the very same test that they originally took. That is these people who were challenged assuming for the sake of argument that they were to go back and reregister, they would be required to take no more than the same test that they took previously. That test being completing the registration blank completely without blanks and thereby becoming what the Louisiana law calls a duly qualified voter. The whole theory of the Registrar's case, this matter has been brought up upon, is a fact that we believe that the Fifteenth Amendment does not even come into play at the basis for the Government's allegation of discrimination, should not even be considered. Because the fact that these people were challenged from the rolls was because they had made a mistake in their application for registration not because of their color. There are no reasons in Louisiana law to challenge anybody because of their color. Under the Louisiana law, you must first pass a test called a literacy test. You pass that test by completely filling out the registration application blank. In this particular situation, we are faced with a Registrar who allowed his rolls to become clotted up with illegal and irregular voters. Under the Section which this case has brought 245, which gives qualified voters an opportunity to call to the attention, other Registrar, these facts, it becomes more apparent why you have a need for such a section. For instance, assuming that you have a Registrar who has taken office and let us assume that the same thing has happened -- has happened in Washington Parish. I think from the deposition of the Registrar himself, where he admits that he believes that 50% of the white people on these rolls have similar mistakes. Of course, our position is that they don't belong on the roll. They are not qualified anymore than the colored people who have made the same mistakes. If the Registrar had conducted his office, we believe, in accordance with the Louisiana law, none of these people who are irregularly or illegally upon the roll, should be there.
Felix Frankfurter: They don't belong there, but they are there.
Henry J. Roberts, Jr.: That's right, sir. Now, the problem is what is the solution? Under Judge Wright's decree, this is what would happen, we believe. We believe that Judge Wright's decree indicates that you must ignore these mistakes. Ignore the mistakes that were made such as the deviation from printed materials, the miscalculation of age and the misstatements that maybe made or the misspelled words. He says ignore them because the white voter has not been challenged. So then, he concludes that the only reason why these people were challenged were on the basis of their color. Our contention being that you cannot, at this stage, look at the Fifteenth Amendment until or unless you can show that the only basis that these people were challenged was because of their color. If --
Felix Frankfurter: But if -- but if -- if 10 white folks and 10 colored folks are improperly -- allegedly, did not comply with the test called the literacy test, in -- as an object of fact, the 10 white folks stay on the roll despite that fact, but then colored folks don't, then, whatever the reason, there is a clear differentiation between white and colored.
Henry J. Roberts, Jr.: As a matter --
Felix Frankfurter: As a demonstration.
Henry J. Roberts, Jr.: That's right. It's an act of --
Felix Frankfurter: But not many things in the law you can demonstrate, but this -- this is one of them.We call that arithmetic.
Henry J. Roberts, Jr.: That's right, sir. To bring the problem even closer, if -- if I may, in order to answer your question, Justice Frankfurter, supposing I -- if I'll be allowed to give you this demonstration which maybe will bring the -- the point that I'm trying to bring out to the Court a little bit closer. Let's assume for the sake of argument that all the nine justices of the -- the State Supreme Court -- the United States Supreme Court here, all members are the voting society of Washington Parish merely for the sake of argument to demonstrate. And let's assume merely again, for the sake of argument, that we attempt to put the members of the federal judiciary under the Fifteenth Amendment. That is, we amend the Fifteenth Amendment right now for the sake of argument of placing a comma and adding all members of this federal judiciary. I then go into Washington Parish as an individual and I say to myself, “Subjectively in my mind, I'd say, I do not care for federal judgment. And what I am going to try and do is to disqualify each federal judge from the registration rolls on the basis that subjectively, I do not like them.” Whatever my reason is would be immaterial. Now the Registrar, assuming that first, he does not even know what subjectively is in my mind, I then checked each one of the judges on the Supreme Court. Each one, except one, makes a mistake such as a miscalculation base --
Hugo L. Black: You mean in -- you're going -- you'd better subject us to a spelling counterattack.
Henry J. Roberts, Jr.: No, sir. [Laughter] Such as a misstatement of age, a deviation from printed material, all leaving a blank, now, all except one. Now, I have effective --
Felix Frankfurter: You mean he's perfect. He satisfies all the requirements.
Henry J. Roberts, Jr.: Right, sir. Effectively, I have issued -- initiated a challenge against eight judges. Subjectively, I just don't like it. The ninth judge however, even though I don't like him, I cannot subject him to their challenge because he has completed his Court correctly. So subjectively, I had in my mind, to discriminate against federal judges. But I could not bring that to a conclusion on one judge because he did not fit into any category for which I could challenge it. So therefore, I have removed eight judges from the roll. Now, the Fifteenth Amendment, even though I bear that discrimination maybe in my mind, cannot be brought into play because I cannot disqualify you as a registered voter in the State of Louisiana because you are a federal judge. But if you make a mistake on your application for registration, which I think is enough to issue a challenge, then I can go ahead and force the Registrar to issue you a challenge. Now, what remedy do you have? You can come in and you can traverse the challenge as difficult as it may seem to traverse the challenge. But once you traverse that challenge, the challenger has no right at all to keep you off those rolls. The Registrar must put you back on those rolls and then, it is up to the challenger to go into the local court and determine whether or not, he had a right to determine that you spell Louisiana, L-U-Z-I-A-N-A.
Felix Frankfurter: But does your argument start with accepting the testimony of the Registrar that 50% of the white (Inaudible) were subject to the same infirmity as these colored people were struck off the roll?Do you start with that accepting that or not?
Henry J. Roberts, Jr.: Oh, I have to accept that Your Honor --
Felix Frankfurter: All right.
Henry J. Roberts, Jr.: -- that's what he said.
Felix Frankfurter: Then you've got the objective fact that there is a -- that there is a striking off from a list, 1000 -- 1377 was keeping on whatever the hundreds are and the difference is within black and white.
Henry J. Roberts, Jr.: Yes, sir. But that -- the reason why that --
Felix Frankfurter: Now, in the -- in the jury cases that we've had, that is the fact. That is the result of the operation of a state law, isn't it?
Henry J. Roberts, Jr.: That's right. It's in your jury case.
Felix Frankfurter: All right. And if that's the fact -- if that's the mathematical or an arithmetic fact, then this -- and this state machinery that brings about that fact, we've held in the jury cases that if that happens, it can't be accident. Accidents don't happen, six of them -- seven -- six of them -- seven and 11 aren't (Inaudible) all the time. They sometimes happen but not all the time. And therefore, if that happens, the State has brought about a result not to an act accorded as we lawyers say, but some human operation.
Henry J. Roberts, Jr.: Mr. Justice --
Felix Frankfurter: And it's the State's operation.
Henry J. Roberts, Jr.: Mr. Justice Frankfurter, let -- let me try and answer your question this way. In the field of qualification of voters, I don't think that anybody doubts that it's up to the State to set those qualifications as long as they do not violate the provisions of the Federal Constitution. The federal --
Felix Frankfurter: But they must -- they must observe them not on paper, but in action.
Henry J. Roberts, Jr.: They must --
Felix Frankfurter: No use of saying -- no use of giving me a million dollars on paper, if I can't cash it in for $5, you know.
Henry J. Roberts, Jr.: Yes, sir. That's true. But the -- the State of Louisiana sets the laws up. They all administered originally to -- to really show you here what happened. Originally, if you look at the statistics if there was any discrimination in the literacy test, it was the discrimination of allowing more disqualified colored people to get upon the roll than disqualified white. There were some 1700 people who are on the rolls who were colored people, and now that 1700, some 1300 were challenged.
Felix Frankfurter: But we've got a case here on a record and we're limited -- bound by that record And on that record, certain findings were made. And the finding is an arithmetic differentiation on the basis of color. You say you start with accepting that. Now, how that was brought about is beside the point. The question is whether it should be allowed to continue.
Henry J. Roberts, Jr.: No, sir. I disagree with that as -- as besides the point. Originally, these people were not qualified voters. You cannot get a privilege to do something if you never had it in the first place. These people were never voters. What Judge Wright has done in our opinion, he has amended the registration laws by saying that you can be a qualified voter on the State of Louisiana only if you're colored, if you deviate from the printed material, if you miscalculate your age. Miscalculation of age (Voice Overlap) --
Felix Frankfurter: That isn't what he wants. That isn't the way I read his findings. What he said is you can't throw these people off because you're keeping people on who have -- who were exactly subject to those infirmities with one exception that they're white and not colored?
Henry J. Roberts, Jr.: Yes, sir. But two rights do not -- I mean, two rolls, and I make a (Voice Overlap) --
Felix Frankfurter: I know, I can't decide --
Henry J. Roberts, Jr.: Our position --
Felix Frankfurter: -- our fact of discrimination by saying, two rights don't make a wrong.
Henry J. Roberts, Jr.: Yes, sir.
Felix Frankfurter: It's wrong to discriminate on color. And that's what the State of Louisiana, on this record, had been found to have been -- to have done.
Henry J. Roberts, Jr.: The -- the State --
Felix Frankfurter: How it came about is immaterial. There is an existing discrimination.
Henry J. Roberts, Jr.: No, sir. We --
Felix Frankfurter: And the discrimination is rooted entirely on color.
Henry J. Roberts, Jr.: No, sir. We based our fact that these people were disqualified on the fact that they have not answered the questions correctly in a literacy test. Now, had they originally applied and made the same mistakes that I've been a Registrar of Voters or some other gentleman, they probably would have never gotten on. They should've never gotten on the rolls.
Felix Frankfurter: Let me ask you this question, was there any profit made by the State? I call the Registrar of the State.
Henry J. Roberts, Jr.: Yes.
Felix Frankfurter: As -- and it was in -- in defense or in answer to this complaint. Did the State come forward and say our rolls are full of people who ought to be there and will the court give us a recess of a week or two weeks so that we can clear the whole rolls white and colored. Was any such offer made?
Henry J. Roberts, Jr.: No offer was made to my knowledge of that, sir.
Earl Warren: Mr. -- Mr. Roberts, may I ask you this question? Mr. -- Mr. Justice Black was trying to get an answer to it yesterday, I thought, and it's this. Are you -- are you saying to us now that there was not sufficient evidence to support the findings of Judge Wright or -- are you saying to us that the findings of Judge Wright are not sufficient to support the position of the Government?
Henry J. Roberts, Jr.: That's -- what I am trying to say, sir, is that the findings of Judge Wright were on the fact that he ignored in my opinion, the basic requirement of the Louisiana law which indicates that you must pass the test for illiteracy. Now, what he did, in my opinion, is that he ignored that particular provision of the registration law of Louisiana and because he ignored that, he then came to the conclusion that the only reason why these people were challenged was because they were of a particular color. In addition, he seems to take the position that under 245, which gives each party, either white or colored, a chance to -- to get people off the rolls under a challenge. He seems to take the position that you should not have the Negroes off the roll, if you allow the white people upon the rolls. He ignores the fact, in my opinion, that the machinery in the State would allow him, in my opinion anyway, to do something and insofar as the Registrar. The reason why I say that Mr. Chief Justice is that, Mr. Thomas, who was a Registrar of Voters, was in this position. Some 10 years ago or eight years ago, he was under a federal court order not to discriminate against anybody because of their color. In the meantime, he evidently, being afraid of violating a court order, took some people on the roll which ordinarily should not have taken just exactly from fear. And then when a group of people called the citizens council or individuals, come into his registration office and attempt to challenge only colored people, he didn't know what to do so he said, I'm going to my state court because I have a federal court order hanging over my head. So, I'm going to my state court to see whether or not, I can take these challenges. He went to his state court. His state court told him, under our law, he must go ahead and accept these challenges and they've thought that he did not in accepting these challenges, because they were -- the state court concluded for cause, violate the federal injunction. So therefore, he proceeded to do that and consequently, he was sued, made a party to the suit by the Federal Government. But I do believe that Judge Wright's decision just ignored the fact of the registration laws. What he has taken, he has put on a roll, two types of disqualified people. The mere fact that the white people are -- are on the roll disqualified and the colored people aren't of course, I think this is -- the solution is to get the white disqualified people off.
Earl Warren: But then your answer to my question is that you do challenge the validity of his findings?
Henry J. Roberts, Jr.: Yes, sir.
Earl Warren: And not the fact that these findings do not support the position of the Government here?
Henry J. Roberts, Jr.: Well, that's right, sir. I do.
Hugo L. Black: You're taking the position in that several times, but I -- I want to be sure that will see you. I can't quite understand --
Henry J. Roberts, Jr.: Yes, sir.
Hugo L. Black: -- if you are. I did not know that there was any statement used in providing for determining the character, the merits, the literacy of its people as voters, on the basis of whether or not, they could spell a word. I -- I must say that I have grave doubts and you say that that is the law. Or the -- which is operating in that way and of course, that would explain how you can get so many one color on and not another.
Henry J. Roberts, Jr.: Mr. Justice --
Hugo L. Black: Was there any injunction outstanding that requires this Registrar to register these white people that usually are disqualified because they spell words wrongly?
Henry J. Roberts, Jr.: To my knowledge, no, sir.
Hugo L. Black: Well, why didn't he disqualify them? Why -- why do you say that he put the other wrong, because he was afraid not to? He wasn't afraid -- he wasn't afraid to take the white people -- the white folk, was it?
Henry J. Roberts, Jr.: Well, I would say that --
Hugo L. Black: Was he afraid to keep them off under --
Henry J. Roberts, Jr.: To my --
Hugo L. Black: -- any injunction?
Henry J. Roberts, Jr.: To my knowledge, the only thing that would've put any fear in him would be the local political situation, whatever that might be.
Hugo L. Black: Yes.
Henry J. Roberts, Jr.: Now, but to get back to answer your question about the misspelling, see our contention is that since this goes to the qualification of the voter that as far as the misspelling, this Court cannot say --
Hugo L. Black: I understand --
Henry J. Roberts, Jr.: -- only the State of Louisiana.
Hugo L. Black: I understand that's your contention, if it's a bona fide effort -- if it's a bona fide law, if you're stating bona fide, saying, the States. But if it's a mere -- as we tell that Justice Frankfurter calls your attention, would that make any difference how ingenious it may be if the purpose in the end works out to exclude people on account of their color.
Hugo L. Black: As you know, there was --
Henry J. Roberts, Jr.: That's right.
Hugo L. Black: -- actually one in Louisiana.
Henry J. Roberts, Jr.: That's right.
Hugo L. Black: Well, you can't do that. And I -- I cannot -- do I understand you seriously to tell the -- as representing the State of Louisiana that you have a roll under which the contempt of Registrar -- his contempt, it's a duty declined to register and you say they disqualified.
Henry J. Roberts, Jr.: No, sir. We --
Hugo L. Black: (Voice Overlap) failed to spell a word, correctly.
Henry J. Roberts, Jr.: The -- the test --
Hugo L. Black: You keep -- you keep basing it on that premise.
Henry J. Roberts, Jr.: Yes.
Hugo L. Black: But they disqualify.
Henry J. Roberts, Jr.: Yes, sir.
Hugo L. Black: And that he has to do it. Do I understand you seriously to say or the State of Louisiana that that's the law of Louisiana?
Henry J. Roberts, Jr.: I'd say this, Mr. Justice Black, that in the State of Louisiana, we have requirements insofar as registration of voters, the same as most States say that we have a literacy test. Now, in that literacy test according to our Constitution, you cannot leave any blanks. Now, if a man takes an application and misspells a word, it's going to be to somebody to determine. I cannot give you a Louisiana case, Mr. Justice Black.
Hugo L. Black: I'm asking you if you tell us seriously.
Henry J. Roberts, Jr.: I --
Hugo L. Black: Do you believe that the law of Louisiana that citizens who have good character, fine character, good morals, good religious view, good citizens, patriotic, who can't simply can't spell a word correctly, that under the law of Louisiana, a white man can be deprived of his right to vote?
Henry J. Roberts, Jr.: Mr. Justice Black, if I was on the Supreme Court and they came up with a file with somebody misspelling a word like, “mail,” M-A-I-L instead of M-A-L-E, I would rule that I understand what they're talking about. But the Government here, we have --
Hugo L. Black: I -- I'm not talking about the Government. Do you -- I want to know if you are telling us and urging us seriously to accept the law of Louisiana to decide this case on that basis, that was an ironclad law which compelled the Registrar whether he wants to or not, to decline -- to put on the good citizens because they misspell a word or make a miscalculation of a date.
Henry J. Roberts, Jr.: In -- in his original registration, Mr. Justice Black, if he concludes that a person walking in has misspelled the word and his opinion, he believes that that is sufficient to disqualify this man, he (Voice Overlap) --
Hugo L. Black: Well, I say, in his opinion, that's (Voice Overlap) --
Henry J. Roberts, Jr.: He, as his discretion, right. Now, that's only one --
Hugo L. Black: That means in his discretion.
Henry J. Roberts, Jr.: Yes, sir. But that only means when he is actually registering the individual. After that, it becomes a mandatory duty for the Registrar to accept the challenges that are issued to him. The challenge itself does not remove the individual from the roll, but it does put him to the trouble of answering the challenge. But the Registrar has no discretion once the challenge is issued. As I -- I gave you my example, I walked into the Registrar's office and I say that you miscalculated your age. And in truth and in fact, maybe you didn't miscalculate your age. Maybe I'll calculate your age one way and come out one day sooner or one day later. But you are required -- now, the Registrar is required to issue you that challenge and you --
Hugo L. Black: Do what?
Henry J. Roberts, Jr.: To issue you that challenge. You get that challenge and then you come back into his office. You try and disapprove. Now, if you would ask me if a Registrar would pull somebody disqualified because he may have written a word, wrong, that would be in his discretion in the original registration, yes.
Hugo L. Black: But you say, he'd have --
Henry J. Roberts, Jr.: But not --
Hugo L. Black: Suppose it was the president of your state university. Your white state university and he came in to register and he misspelled a word. Do I understand that anybody in the State could come in and tell the Registrar, “You misspelled a word, bring him in and that the Registrar would be compelled, under your law, to deprive him of the right to vote?
Henry J. Roberts, Jr.: Yes, sir. We wouldn't deprive him --
Hugo L. Black: He would tell us --
Henry J. Roberts, Jr.: -- under his right to vote.
Hugo L. Black: He would tell us that seriously --
Henry J. Roberts, Jr.: No, sir. I'd say --
Hugo L. Black: (Voice Overlap) State of Louisiana?
Henry J. Roberts, Jr.: I'd say this that if the president of our biggest university came in and he misspelled a word or assuming that he didn't and somebody else wanted to challenge him on the fact that he misspelled the word that he could be challenged. That is under Section 245. He could be challenged and having been challenged, it would be up to him to go ahead and traverse that challenge even though he is the president of the biggest university we have.
Hugo L. Black: Yes.
Henry J. Roberts, Jr.: Because mandatorily, the Registrar must accept those challenges. He has --
Earl Warren: Suppose he didn't -- suppose he didn't cross a T or dot an I --
Henry J. Roberts, Jr.: Your Honor --
Earl Warren: -- and they challenged him.
Henry J. Roberts, Jr.: Yes, sir.
Earl Warren: Would he -- would he have to go off because that's a mistake in -- in writing, I suppose?
Henry J. Roberts, Jr.: If the -- if the challenger indicated that that was a mistake --
Earl Warren: Yes.
Henry J. Roberts, Jr.: -- that's what he would have to traverse. The fact -- let's assume that he could --
Earl Warren: But he didn't leave at all. He wouldn't -- he couldn't traverse it because he didn't leave at all. Suppose that -- suppose that the -- the challenge was true that he left -- that he failed to cross one T on his application or -- or he failed to dot one I, and the challenge was made on that grounds, would he have to throw him off?
Henry J. Roberts, Jr.: He would -- he would do this. He would ask a man to come on in on the challenge and he would have to correctly register, if that was the challenge that was issued because he forgot to cross a T. He would have to come in and, of course, fill out this card correctly. The correct way of filling out the card would be to cross the T. Same that --
Hugo L. Black: I really get -- I really get from what you said in one thing, I haven't -- suppose you conceded, if an ordinary citizen has a right to do that in connection with the election, he has a very active part in the administration of your state law, doesn't it?
Henry J. Roberts, Jr.: I would say he does have an active part --
Hugo L. Black: Very active part and you're selected by the State in giving that authority, isn't it?
Henry J. Roberts, Jr.: Well, the individual -- actually he does use the -- the statute 245, but he has no way at all of removing the individual himself --
Hugo L. Black: But he would -- but he -- he, as I understand you, he's the only one that can set in motion, the action of the Registrar which will remove him under the challenge.
Henry J. Roberts, Jr.: That's right, sir. The two qualified voters --
Hugo L. Black: And the State gives him that authority to do that in connection with administering its election law.
Henry J. Roberts, Jr.: That's right, sir. We do that because we may have a Registrar who has a registration roll just clotted with illegally registered people.
Felix Frankfurter: I understood your -- your associate to say that the Registrar can -- on his own motion forge the roll of -- or did I misunderstand?
Earl Warren: Oh, you said that (Voice Overlap) --
Henry J. Roberts, Jr.: I -- I think that the Registrar can from the reading of the Louisiana law, there is no precise provision. But after reading at the law and indicating what this -- Mr. Thomas, has done in his -- his deposition, that if I had been in Mr. Thomas' shoes and if this case had not been pending, I would've advised Mr. Thomas to go through his rolls and clear the rolls out of every illegal vote he has whether that voter is white, colored, green or pink. Because he has allowed people, in our opinion, of his testimony to remain on that roll, who were not qualified and in effect therefore, discriminate against qualified voters. Why not colored? There are two -- 200 somewhat colored voters still on the roll. Those colored voters, if they wanted to, could do that. They could go in under this challenge. Two of them can go in, since he admits that 50% meres a practical, political matter, that's what I would have done. How to use my two voters, how to go on in, how to clean those rolls up, if the Registrar wouldn't do it, and our intentions are no matter how this case comes about, is to make sure that a man like Mr. Thomas is not in a position to administer the registration laws of the State. Because we think that they administered wrong, because people who are not qualified no matter what color they be, should not be placed upon the roll.
Felix Frankfurter: Mr. Roberts, I have a -- I have a difficulty different from those about which you questioned as to the interpretation, the exact scope of the requirements of Louisiana law for qualification of voters. My problem is the -- it's quite a different one, namely, it is this, these records are in the keeping of the Registrar?
Henry J. Roberts, Jr.: Yes, sir.
Felix Frankfurter: In order to make affidavits, you've got to see their registration record, is that right?
Henry J. Roberts, Jr.: That's right, sir.
Felix Frankfurter: And he is in control of them. Now, under your statute, people may make affidavits challenging both, but in order to be able to make those challenges, they have to ask the Registrar for the record.
Henry J. Roberts, Jr.: That's right, sir.
Felix Frankfurter: Thus far you're with me, aren't you?
Henry J. Roberts, Jr.: Right.
Felix Frankfurter: Now, the people who ask for -- who ask for the records to make the basis for challenges as for 1377 records of Negroes and only of 10 whites, when in fact, there were 11,444 white persons on the rolls and only 1517 Negroes. So that, the Registrar's an indispensable -- as an indispensable participant in the action of these citizens who have wanted to challenge, exceeded to a request of 1377 records of 1517 Negroes and exceeded to a request of only 10 for 11,000 whites. Now, that for me is exactly like the cases we've had as the juries, where the mathematical result could not be brought about by any -- I hesitate, I was about to say honest, by any undiscriminatory action on the data. They must've been discriminatory, if out of 15,000 -- out of 11,000, you look at only 10. And out of 1500, you look for 1300 or nearly 1400 to find out whether there is misspelling. Then, in the inevitable objective nature of things, you will call out unfairly as against the 1300 out of the 1500. In New York, was the 1300 out of the 1500, as against 10 out of 11,000.
Henry J. Roberts, Jr.: Yes. I'll --
Felix Frankfurter: That to me is an arithmetic demonstration.
Henry J. Roberts, Jr.: I -- I will agree with the statements you've made, except the implication which seemed to be that they specifically went in and only got 1377 from the Registrar when in truth and in fact, they actually searched the records because these courts are in different locations and they filed out (Voice Overlap) --
Felix Frankfurter: But that's the right found that they didn't search the record and purposefully to his knowledge, could not have searched the record of the 11 -- of the 11,000.
Henry J. Roberts, Jr.: He --
Felix Frankfurter: In other words, they took out of 11,000, they took 10 and that satisfied them. Out of the 1500, they took 13 and the result is what you would expect that they found this overwhelming percentage of -- of misspellings or omission out of 13 -- out of 1500 and actually, if you only took 10 out of the 11,000, they wouldn't find them.
Henry J. Roberts, Jr.: Yes, sir. But what you have done in this case then, you have put the Registrar into -- in my opinion, anyway, to the mind reading school. How many challenges should a Registrar receive before he concludes in his own mind that this is discrimination? Should he only receive two whites and two blacks?
Felix Frankfurter: But Mr. Roberts, the Chief Justice of this Court said that because we are judges and therefore, to a large extent naive, we mustn't be blind to what everybody else knows. This Registrar came out of an environment in which the desire not to have Negroes vote is not a fair -- unfair attribution to make here and in the environment in which he lives.
Henry J. Roberts, Jr.: Anymore questions?
Earl Warren: No. I think that's all. Thank you, Mr. Roberts. Mr. Solicitor General.
J. Lee Rankin: Mr. Chief Justice, may it please the Court. I'd like to just speak on very briefly about just a couple of matters. I did not anticipate, although we tried to anticipate all the arguments we could in this case, that there would be no claim -- that there would be a claim that there is no attempt to purge the Negroes from these registration rolls. We don't cite it in our brief because we did not anticipate it, but the report of the United States Commission on Civil Rights of 1959 in its official document on page 101 and on through page 106, deals with the facts of the deliberate effort to purge Negroes from these registration rolls and sets out the fact that Mr. Rainey (ph) who was a member of the joint legislative committee, to maintain segregation, had a Mr. Shaw, as his counsel, who was one of the lawyers arguing the Larche case before this Court. And Mr. Shaw participated in instructing the Registrars how to accomplish this. And the objective was stated publicly to try to get the 130,000 Negroes, then on the registration rolls reduced so they wouldn't be more than 13,000, because they had a disproportionate influence on the voting of the people in the State and they were able to get a -- an effect upon the laws of the State in the legislature and in the Government generally, because of their voting pressure that they would not be able to with this purge accomplished. And then it proceeds to show that exactly the instructions that were developed by the white citizen council which as described as being the instruction prepared by the white citizen council as to how to develop, “The key to victory in the segregation struggle.” And then it proceeds to give detailed instructions as style to accomplish it. And then it goes on to tell just the constitutional test for registration that should be applied to accomplish this objective. And it --
Felix Frankfurter: Was that before -- was all these before Judge Wright?
J. Lee Rankin: It -- it was not introduced in evidence. It's -- I call it to your attention because an official document report to Congress and it had representation from the southern States as well as all --
Felix Frankfurter: I'm not sure that I must take judicial notice of every fact or figure that's been an official document, because it isn't an official document.
J. Lee Rankin: I -- I don't --
Felix Frankfurter: Because many ex parte statements get into official documents.
J. Lee Rankin: I don't urge you to -- you -- in that regard, Mr. Justice Frankfurter, but I do think it demonstrates that the figures --
Felix Frankfurter: I can't take judicial notice of -- of unquestioned history.
J. Lee Rankin: And this -- this also sets out tables of the reduction in the vote of the registration of the Negroes parish by parish, as a result of the purge. So, it shows what the objective that was set out and what was accomplished in regard to it. So that I think it's very plain that the history -- that that was the objective to discriminate and they proceeded and it was accomplished. And it -- it was accomplished in the elections, at least, in several areas.
Potter Stewart: What is this parish? Where is the Washington Parish, Mr. Solicitor?
J. Lee Rankin: I understand it's in the eastern part of the State.
Potter Stewart: Is it a rural parish or --
J. Lee Rankin: There's one large -- larger community, it isn't a very large community, but one. And they -- the -- Judge Wright didn't find that there were parish -- there were wards that had no Negro voters that were not examined at all by the challengers. That was one of the important thing that he said, he made.
Potter Stewart: There were references by the counsel for the Registrar that what this really was -- was not racial discrimination, but that the realities were that this was a contest between political facts in the State. Is there anything in the record to draw a light at all in that situation?
J. Lee Rankin: Well, I believe that there isn't anything in the record. There is something in the report of the Commission on civil rights that would indicate that there is some political controversy involved in it as one group thinks that they can get the Negro support and do get it and the others would like to get them out off office and so they like to get rid of the Negro vote as a part of that effort.
Potter Stewart: Yes.
J. Lee Rankin: And there is a report also about Monroe in Wichita Parish in which they wanted to get rid of the mayor and they concluded they couldn't do that without getting rid of the Negro vote and they did get rid of it and they got rid of the mayor, that kind of thing. So, it seems to be tied in with the objective of getting rid of the Negro vote because it might contribute to one or the other, as well as the --
Potter Stewart: (Voice Overlap) of -- of certain --
J. Lee Rankin: Yes.
Potter Stewart: -- state or local --
J. Lee Rankin: As an indirect byproduct.
Charles E. Whittaker: Mr. -- Mr. Solicitor, is there any claim involved here of unconstitutionality of the Louisiana statute Section 244 or 245?
J. Lee Rankin: Well, I don't think that's properly before the Court this time. If it was the only issue in the case, we would -- the Government takes the position that this kind of an application of those statutes was never contemplated, it is unreasonable and has nothing to do with whether a person is properly qualified to vote and therefore, would be unconstitutionally caused therefore. I don't think the Court ever has to reach that because it wasn't decided in the lower court and I think the discrimination is so patent that that alone is enough to be decisive. Now, there is some literature by the Southern Regional Council of the very able political scientist professor of Tulane University that this statute was never conceived to be used this way. That the purpose of it was to identify the person who wanted to be registered and show how long he'd live in a particular residence and whether he did live -- live there and give his age and those material objective standards and that was all, but is being misused in this manner. Now, that hasn't been tried out though.
Charles E. Whittaker: I notice counsel for Louisiana when I asked this question, shake their head negatively which I take to be an agreement that there is no constitutional challenge of the statutes that I have mentioned. So then -- that says otherwise, you might have a jurisdictional question whether or not, this should be one of the three-judge court.
William J. Brennan, Jr.: Mr. Solicitor, was there any evidence that the cards of colored voters are kept separately from the cards of white voters?
J. Lee Rankin: No. I gather the impression that they were not that they're plainly marked -- that they have to say whether they're Negro or white.
William J. Brennan, Jr.: And they kept alphabetically is that it?
J. Lee Rankin: Yes.
William J. Brennan, Jr.: So they take these out only by examining every card?
J. Lee Rankin: Well, I wouldn't think they'd have to do more than scan it and see whether he's a Negro or white.
William J. Brennan, Jr.: Well, this would -- this is because of that one question that's filled in --
J. Lee Rankin: Yes.
William J. Brennan, Jr.: -- either Negro, colored or white, if the case maybe.
J. Lee Rankin: Yes, Mr. Justice.
William J. Brennan, Jr.: Well, wouldn't that require pretty much examination of all 15,000 cards in order to call out the 1500 with their color?
J. Lee Rankin: Yes. But I -- if I was doing it, I wouldn't examine the whole card to accomplish that objective. I would just examine that one little place and move on. That's what I'm trying --
William J. Brennan, Jr.: But there's no evidence here at all how they happen to pick out the 1377 whether through examination of all 15,000 or some less in them?
J. Lee Rankin: No, Mr. Justice.
Felix Frankfurter: Does your brief for -- does the Civil Rights Commission's report set forth the -- give statistics on the voting for a period for about five years or so as in white and colored in Louisiana for the whole State, I mean.
J. Lee Rankin: It gives for a great many parishes and it gives the -- the registration. I'm not sure that there's anything about the actual voting and -- and its relations. There is some report in regard to that in the Civil Rights Commission. But whether it deals with the difference in voting --
Felix Frankfurter: Is that -- is there a great discrepancy between colored registrants and colored voters?
J. Lee Rankin: Oh, yes. It's demonstrated that in the -- in the parishes where the white counsels -- assistance counsel acted to try to purge the reduction in the registration of Negroes was very great.
Felix Frankfurter: But I -- I don't -- I'm ignorant but, it may well be. It is true, isn't it, that in the number of the southern States, the -- the effective voting is the primary reason not in the final election, that's true isn't it?
J. Lee Rankin: Yes.
Felix Frankfurter: Now, is that -- so that would have to be taken into account because it must be a falling off between potential voters and actual votes cast at the general election.
J. Lee Rankin: Well, I think they're dealing with the registration and it shows the -- the parishes in which there were no purges, where there was no effort to challenge and remove in this way and it chose the comparison and it's very real and large.
Potter Stewart: Excuse me, Mr. Solicitor General. Before you sit down there, there is a procedure laid before us now two things, a petition for certiorari and a motion to make interstate. With respect to the latter, can you just clarify what -- what kind of an election this is going to be on April 19th? It's going to be a statewide election for governor, but the primaries are -- are already over.
J. Lee Rankin: They have had two primaries.
Potter Stewart: And they have one now, -- one --
J. Lee Rankin: And this is the final one between the Republican and Democrat. And in Louisiana, there isn't much --
Potter Stewart: (Voice Overlap) --
J. Lee Rankin: -- question about (Voice Overlap) --
Potter Stewart: And then is there -- is there any local election with respect to Washington Parish, for any local official?
J. Lee Rankin: I'm not informed about that. I possibly -- possibly tell.
Potter Stewart: Is there any State election or city election?
J. Lee Rankin: To my knowledge, there is no local election. No local election in Washington Parish. It's only a State -- state official.
Potter Stewart: Only a statewide election?
J. Lee Rankin: Yes.
Potter Stewart: A statewide election.
Charles E. Whittaker: Mr. Solicitor, may I ask you one question?
J. Lee Rankin: Yes.
Charles E. Whittaker: Is -- is there -- first of all, only the Registrar is here. Is there any way of affecting all the parties to this suit --
J. Lee Rankin: Well, they have --
Charles E. Whittaker: -- other -- other than to stay and to vacate to stay of the Court of Appeals?
J. Lee Rankin: Well, they have until March 11th as I computed, to file any notice of appeal. So, if they let that date go by, the election we're talking about is April 19th, then they -- they won't -- wouldn't be in the case and there wouldn't be any -- they would be bound by the judgment below anyway.
Charles E. Whittaker: Have you a preference as to whether in request that we should vacate to stay of the Court of Appeals or determine this case on its merits here?
J. Lee Rankin: Well, I think that's a problem before the Court because of the far range of this type of action that has been presented in this case and the effect that it might have on similar action in the future. I think the Court won't have to consult itself and determine what's the best way to handle a problem of that seriousness, because of the nature of the voting process and how much it means to us.
Charles E. Whittaker: Thank you.
Earl Warren: Thank you.


Earl Warren: 577, Pointer versus Texas. Ready?
Orville A. Harlan: Yes, Your Honor.
Gilbert J. Pena: I think so, Your Honor.
Earl Warren: Very well. We'll proceed with that -- with that case then.
Orville A. Harlan: Mr. Chief Justice, and may it please the Court. The question presented in this case as we feel the same as presented in White versus Maryland, 373 U.S. 59. In this particular case, the examining trial testimony was adduced at the trial upon in which the petitioner was convicted. At the time of the examining trial, the petitioner was not represented by counsel. We say that the examining trial in this case was critical for this was the only opportunity that the petitioner had for cross-examining the complaining witness. And we feel that the cross-examination of a complaining witness in a criminal proceeding is a critical stage of a -- critical stage of criminal prosecution. The facts briefly in the case are that the petitioner was arrested within a few blocks of a robbery and nine days later --
William J. Brennan, Jr.: Within a few blocks of what?
Orville A. Harlan: Within a few blocks of a recent robbery. And nine days later, an examining trial was held pursuant to the statutes of Texas to -- at which time, the complaining witness, the manager of the drive-in grocery store, testified and identified the petitioner as the party who had committed the robbery and his testimony also gave out all the necessary elements of the offense of robbery by assault under Texas law. The petitioner at the examining trial was not represented by counsel. He was not advised that he had a right to counsel, and he did not ask for a contingence to secure counsel nor was counsel offered to him. At the trial at which he was convicted, the complaining witness had moved to California. This was approximately three or four months after the -- the alleged offense. The State had utilized no diligence in obtaining the witness present for the trial but instead introduced in evidence the examining trial testimony which had been adduced when he did not have counsel. I like to point out that he did have a counsel at the trial in which he was convicted but we feel that the fact that the testimony of the main witness in the case being adduced when he did not have a counsel was tantamount to conducting a portion of the trial in which he was convicted without a counsel.
Arthur J. Goldberg: Counsel objected at the trial.
Orville A. Harlan: Yes, Your Honor.
Arthur J. Goldberg: (Inaudible)
Orville A. Harlan: Yes, Your Honor. Counsel at the trial did not raise White versus Maryland. He objected because of no predicate had been laid for the intro -- introduction under Texas law. And also, he did make two objections, I believe, the record will reveal as to denial of confrontment of witnesses.
Arthur J. Goldberg: In other words, what you are saying is (Inaudible) cross-examined?
Orville A. Harlan: Yes, Your Honor.
Arthur J. Goldberg: Immaterial (Inaudible)
Orville A. Harlan: Yes, Your Honor. The -- actually, the -- there was some problems with the appointment of counsel. Apparently, the petitioner for one reason or another, he wanted other counsel than that which he had. I was personally appointed after the trial on the appeal. And the Court of Criminal Appeals in discussing White versus Maryland said that in this particular case that it was not a critical stage in as much as the examining trials in Texas is for the reason -- for the purpose of determining whether an accused is to be remanded to jail, admitted to bail, or discharged. And they attempted to distinguish White versus Maryland and so stated that the examining trial at the preliminary hearing as it is called in Maryland, in that case, was critical because the accused in the Court of Criminal Appeals speaking was forced to enter a plea, which we submit that the -- under the provisions of Maryland law, the examining trial in Maryland, at the preliminary hearing in Maryland, is exactly the same as the procedure in Texas because at White versus State of Maryland, the Maryland Court of Appeals on page 882 of 177 Atlantic Reporter 2d is approximately the same language that was -- that our Court of Criminal Appeals used. They say that there was no requirement, nor any practical possibility under our present criminal procedure to appoint counsel for appellant at the preliminary hearing before the magistrate, nor was it necessary for appellant to enter a plea at that time. Certainly, it was under Maryland procedure that it was necessary at the arraignment and he did enter a plea of not guilty at the arraignment. But having entered a plea at the preliminary hearing of guilty that was later used in evidence against him at the trial in which he was convicted and this Court held that that was a critical stage in that particular case. The State -- the respondents seems to say in their brief that there's no denial of due process for three reasons. One, that the taking the position of the Court of Criminal Appeals did at the examining trial was not a critical stage because it was for the limited purpose of determining whether that he should be admitted to bail or remanded to jail or freed.
Earl Warren: Is there no requirement at the preliminary examination that a man be advised of his rights to counsel and so forth?
Orville A. Harlan: Not in Texas -- under Texas provisions --
Earl Warren: The statute doesn't provide for that?
Orville A. Harlan: The statute provides, Your Honor, that he had -- it does provide, I beg your pardon, for advising him that he has a right to a continuance if he asks for it to secure counsel. Under Texas law, the State and the defendant himself neither necessarily had to have counsel. If there's no counsel present, the Justice of the Peace, who is in charge of conducting the examining trial asks the questions and that is reduced to writing.
Earl Warren: But it doesn't say that he shall advise him of his right to counsel at all?
Orville A. Harlan: My understanding of the statute is that it does not. Actually, the examining trial testimony -- examining trial in Texas as a general rule is strictly for that purpose. It is only in this particular instance which we feel that that was critical because this was the only time that he was confronted with -- for cross-examination purposes and he did not have counsel at that time.
Speaker: (Inaudible)
Orville A. Harlan: Yes, Your Honor. It's necessary under Texas law in the robbery by assault cases that the -- someone testified -- that the robbery occurred through forced threats or fear.
Speaker: (Inaudible)
Orville A. Harlan: And this -- the complaining witness testified as to these essential elements that man -- the robber came in and exhibited a pistol. And at that time that he was in fear of his life or serious bodily injury and gave up the money as a result of this. No other testimony from any other witness covers these essential elements. It's our position that if the exam -- the examining trial testimony -- the testimony of the complaining witness was not in the case, then there would have been no problem as to securing an instructed verdict of not guilty because you have to have these elements.
Speaker: Absent that, Mr. Harlan.
Orville A. Harlan: I beg your pardon?
Speaker: Absent that, I didn't figure. What happened to the complainant?
Orville A. Harlan: He had moved to California after the robbery and before the main trial.
Speaker: He wouldn't come back?
Orville A. Harlan: The record does not reveal, Your Honor. We have in Texas, as a number of states do. They have enacted the Uniform Act to secure the attendance of witnesses. Several years before this particular case, a defendant had attempted to introduce an examining trial, I believe, testimony -- no, I beg your pardon. He had -- he had attempted to secure the attendance of the -- of the witness -- allow me again. He had tried to introduce the examining trial testimony and the State opposed him and the Court of Criminal Appeals said that -- that they did not have to use any diligence under the Uniform Act that it was alright to use the examining trial testimony. And they -- the Court of Criminal Appeals cite that particular case saying that the State is not required to exercise any diligence to reproduce the testimony.
Potter Stewart: But Phillips had been available as a witness as opposed this examining trial testimony would not have been in this Court.
Orville A. Harlan: It would only be admissible, Your Honor, to impeach him if -- if it was possible at -- at all.
Potter Stewart: Then that's not really admissible. That's just its use --
Orville A. Harlan: Yes, that would be for the use actually of the -- of the defendant. The state --
Potter Stewart: And that -- and that would be the normal course -- that would be -- it is the normal course of events in Texas, I suppose, because generally the complaining witnesses are available for trial.
Orville A. Harlan: Yes. Actually, Pointer since 1927 is the ninth case in which -- that I've been able to locate, in which the examining trial testimonies have been introduced into evidence --
Potter Stewart: At the trial, the ninth case --
Orville A. Harlan: At the trial.
Potter Stewart: The ninth case.
Orville A. Harlan: The ninth since 1927.
Potter Stewart: In almost 40 years. Do you have those cited in your brief?
Orville A. Harlan: I do not have them cited for purposes of argument, but I did not quote entirely here the citations and I'd be glad to give them.
Potter Stewart: I'm be able to -- if -- it's maybe easier to give us a list --
Earl Warren: Yes. Give us a memorandum of that --
Orville A. Harlan: -- to be placed.
Arthur J. Goldberg: Of course if an appellant who had testimony (Inaudible). Although he testified at the criminal hearing (Inaudible)
Orville A. Harlan: If he had testified at the trial, I -- I would have seen no federal grounds.
Arthur J. Goldberg: Or if it had not been introduced.
Orville A. Harlan: If it had not been introduced. That's correct, Your Honor.
Arthur J. Goldberg: (Inaudible)
Orville A. Harlan: Oh, the only way that it is critical, if it please the Court, is the same way that the White case was --
Arthur J. Goldberg: (Inaudible)
Orville A. Harlan: It is not a normal proceeding at all and I don't think that for this Court to reverse this case would cause any stir in Texas. I -- I don't think that it's necessary. The general rule to appoint counsel in examining trial because generally, as a matter of policy, it doesn't serve this type of purpose. It's only in a rare instance that the complainant or -- or the necessary witness does not appear. But I -- I feel that the -- with some diligence that the State may have at the time -- this is my own conjecture -- may have been able to determine that -- that Mr. Phillips would not be available. And if that were so, why certainly, there are procedures in Texas for having notice to the defendant having secured counsel and -- and the stage is -- is set then for the reproduction later on. But we feel though that White versus Maryland certainly is the White horse case in this case which I see no difference between the -- the examining trial or the preliminary hearing as they call it in Maryland, and the plea of guilty that was entered there. And the examining trial in Texas and the cross -- the lack of cross-examination of the complaint witness in this case and we feel that White versus Maryland controls disposition of this cause. Thank you.
Earl Warren: Mr. Pena.
Gilbert J. Pena: Mr. Chief Justice, members of the Court. This, as counsel has explained to the Court, was a robbery by assault case wherein the defendant was apprehended a -- a couple of blocks from the scene of the crime, the robbery. The date of the offense was June 16, 1962. Now, from the day of the arrest, there were nine days that expired -- from the date of the arrest to the day of the examining trial, what is known in Texas as examining trial is a preliminary hearing. At that time, Kenneth Phillips, who was the person who was robbed, testified and identified the defendant. There was also some other testimony in there but at that time, there was a positive identification, alright. The defendant, Pointer, did not have a lawyer. There is no provision in Texas for the appointment of lawyers at the examining trial. In -- at the examining trial in Texas, no pleadings have to be made. He doesn't have to enter a plea of guilty or not guilty. There is absolutely nothing that he has to do but just sit there and listen. The magistrate will determine whether or not there is probable cause to binding it over to the grand jury.
Hugo L. Black: Is the State represented?
Gilbert J. Pena: Normally, yes. But there is a -- the statute does not say that the State has to be present. In the event that the State does not choose to be present, then the magistrate inquires into the facts to determine whether or not to set bail, discharge him, or send him to the grand jury. I need to point out this -- that after the man was indicted. The case was originally set for trial on August 14, 1962. At that time, on motion of the defendant, the case was -- was passed to give him an opportunity to obtain counsel. Now, at this time, he had never asked for counsel up to this time and the Court was never appraised of the fact that he might be a pauper or he might not be a pauper. The case was passed from August 14th to September the 17th. At that time, once again, the case was called for trial and the defendant announced that he was not ready. He needed more time to get another lawyer -- a lawyer. So once again, the -- the Court passed the case but at that time, the Court decided, “Well, I am going to appoint you a lawyer by the name of -- of Charles W. Gill, just in case you don't have a lawyer the next time the case comes -- comes to trial.” Alright. On November 6th, the case was called to trial, the third time. It had five months that expired from the time of the arrest to the time that the case finally went to trial. At that time, the Court asked for the announcement of whether the defendant was ready or not. He said he still didn't have a lawyer. But his family had been trying to get Mr. C. C. Divine of Houston to represent him. Well, there was some discussion about the employment of counsel. Finally, the Court just decided to go ahead and proceed with the case and appoint C. C. Divine to assist Mr. Gill to represent the defendant. Nowhere did the defendant ever claim to be pauper. As a matter of fact, there is testimony in the record that he was acquainted with at least four lawyers in Houston, Texas. He had paid one Sam Hoover and that's in the record, a sum of about $600 to represent him in another case. He had called on one John Cutler to represent him in another case. Clyde Gordon -- I point these out because to -- to point out that this man was a person who was appointed with a number of lawyers and could have very well hired himself a lawyer to represent him at the examining trial.
Potter Stewart: Mr. Pena the -- however that may be the upshot of this was because of the complaining witness' absence and permanent move to the State of California, the upshot of this was that the defendant was denied or at least prevented from any possibility of cross-examination of this essential witness of this criminal trial, isn't that correct?
Gilbert J. Pena: Yes, sir.
Potter Stewart: There is a case in this Court, at least one not probably good as many others implying that the right of cross-examination is a -- is an essential constitutional right. That's the Alford case in 282 U.S. Are you familiar with that case?
Gilbert J. Pena: No, sir. I'm not.
Potter Stewart: It's -- well, it's in your appellant brief, Alford against United States.
Gilbert J. Pena: Yes, sir. I'm familiar with that.
Potter Stewart: So that -- and if I understand it, in the normal course of events with only nine exceptions, apparently or the nine recorded exceptions in the last 40 years, this problem would not arise because the complaining witness presumably would be present at the criminal trial, isn't that right?
Gilbert J. Pena: Yes.
Potter Stewart: So that the -- normally, there perhaps wouldn't be the necessity for counsel at the -- what you call the examining trial or the preliminary hearing. But -- but when this problem does arise, doesn't what happened here result in Texas through its prosecuting attorney and judicial system by admitting this transcript of the complaining witness' prior testimony before the trial doesn't Texas deprive the defendant of the right of cross-examination?
Gilbert J. Pena: I would have to answer that, yes, Your Honor. But I would like to point out that Pointer did cross-examine some witness at the examining trial. It wasn't Phillips, the missing witness but he did cross-examine at least one of the witnesses. There were two defendants in this case by the way and Dillard, the other defendant, did cross-examine Phillips.
Byron R. White: He has no lawyer?
Gilbert J. Pena: No, sir. By himself.
Byron R. White: (Inaudible)
Gilbert J. Pena: No, sir.
Byron R. White: (Inaudible)
Gilbert J. Pena: No, sir. It does not. But let me say this, that the evidence that was introduced in the trial was overwhelming. That testimony the State could have done without. I didn't try the case but I've studied the record and let me point out that there was one eyeball witness, the sister of Phillips who testified, she was sitting outside the drive-in while the robbery was being -- in progress. She and her brother followed the defendant. Next, there's a testimony of an officer who arrived at the scene and found this automobile just a couple of blocks from the drive-in.
Byron R. White: But you don't suggest that the State would have had a case without the testimony of the complaining witness, do you?
Gilbert J. Pena: Well, no, sir. I have to admit that -- that testimony --
Byron R. White: I gather you were making a point that -- that you were at least inferring that the lack of counsel at the examining trial wasn't the State's fault. Do you -- do you think the petitioner here could have had counsel in this trial by using his own funds and resources?
Gilbert J. Pena: I think so. Yes, sir.
Byron R. White: Are you saying that it wasn't the State's job to give him a lawyer at his examining trial?
Gilbert J. Pena: It would have been the State's job, Your Honor, had he asked for it, and if he couldn't afford one. But in this case, it seems to me that the record will indicate that he had hired lawyers --
Byron R. White: So you're suggesting that whatever the rule may be with regard to an indigent defendant who's -- who is faced with testimony at his trial which is produced at the examining trial that if the fellow can hire -- afford to hire or pay his own lawyer and fails to do so for purposes of an examining trial he hasn't got any complaints later. If the appellant can actually hire his own lawyer and doesn't do it that that gets the State off the hook if they want to -- if it wants to introduce that evidence later at the trial.
Gilbert J. Pena: Well, of course in that case, I don't think the evidence would be -- the testimony would be admissible because the State would have to show why the witness was not there.
Byron R. White: Well, I know. Assuming that it shows it, it shows that he's -- that -- take it -- say it was this case. In this case, the State said the witness was in California --
Gilbert J. Pena: Yes, sir.
Byron R. White: -- moved away. And that therefore, the testimony was admissible.
Gilbert J. Pena: Well, I think -- well, of course, that's his choice if he wants to not hire a lawyer for the trial. He could just go ahead and try it himself if he chose to. In this case -- let me -- let me point out that this case was passed on two occasions at -- on the motion of the defendant. The State was ready to go to trial but the defendant wanted more time and more time, and five months passed from the date of the offense to the -- the date of trial --
Byron R. White: Well, who --
Gilbert J. Pena: -- to help --
Byron R. White: Who finally represented him on his trial?
Gilbert J. Pena: A court-appointed lawyer who was appointed by the Court not because he was a pauper but because the Court wanted to get on with the trial and a lawyer that his family had been trying to retain, C. C. Divine and Charles W. Gill.
Hugo L. Black: How did the Court happen to appoint a lawyer to defend him on the appeal? I understood Mr. Harlan, say he was appointed by the Court?
Gilbert J. Pena: Yes, he was.
Hugo L. Black: Well, how did that happen?
Gilbert J. Pena: I don't know. He is up here Your Honor on pauper's oath. I know the case is up on the pauper's oath.
Hugo L. Black: He appears as an indigent?
Gilbert J. Pena: Yes, sir. He appears as an indigent.
William O. Douglas: I don't -- I noticed that neither of you mention Snyder versus Massachusetts in the 291st respecting the rather confrontation as a federally protected right in the state trial. What I'm -- what I'm getting at is, does the Texas Constitution require confrontation like our Sixth Amendment?
Gilbert J. Pena: Yes, it does.
William O. Douglas: What did your state court say about the Texas Constitution?
Gilbert J. Pena: It didn't say anything at all, Your Honor. It didn't mention it. There is -- there is something else that I have to point out that after the Court had appointed Charles W. Gill, the defendant on two separate occasions refused to discuss the case with his court-appointed lawyer. He didn't want it. He didn't want a court-appointed lawyer, and that's in the record. That's -- and on page 5 of the record, there -- the testimony by Pointer himself that he wrote a letter to this lawyer asking him -- relieving -- to relieve him of appointment. So even after the Court had bent over backwards and appointed him a lawyer at the trial, he refused to -- the defendant refused to discuss the case with him.
Earl Warren: We'll recess now Mister.
Gilbert J. Pena: The decision that this Court will make is whether or not this man actually got a fair trial. Now, we take the position that the testimony offered from the examining trial was cumulative of the -- the rest of the testimony. Now, as I pointed out before, there -- there was eyeball witness to the -- to the robbery. They followed the defendant. There was an officer who found his car parked and had a flat tire. There was a dog, who went from the automobile, a K9 police dog following the scent of the 7-Eleven food store, and then that dog crossed the street, went a couple more blocks, and found the defendant. This is how the defendant was apprehended. There's the testimony of an officer who arrested him, who put him in the police car, and in the police car, the defendant took off his shoe and tried to -- to dispose the $65 that he had hidden in the bottom of the shoe. There was also $81 that he had in his possession from the money that was stolen. So, the fruits of the crime were actually found on the defendant's --
Earl Warren: Well, Mr. Pena, who but the complaining witness could have said that he gave -- gave up this money by reason of the force and the fear that it created in him on the part of this defendant. Who could have -- who could have supplied that important element of the crime?
Gilbert J. Pena: Well, it was attempted to be done by the sister who actually observed the robbery.
Earl Warren: Could she tell what was in the mind of the -- of the complaining witness?
Gilbert J. Pena: No, but she saw the expressions on his -- on -- on her brother's face and there's testimony in the record for that effect, saw the face of the -- of her brother, saw that he had turned pale white. And I realize that this is a really awkward position for the State to be in but there was evidence beyond the reasonable doubt as to the man's guilt, undoubtedly. There was the -- the fruits of the crime, the dog who's certainly unbiased and who followed him and caught him. There was --
Earl Warren: But then the lawyer had cross-examined the complaining witness and had in some way or another discredited his testimony, would you still have had this good a case as you've got?
Gilbert J. Pena: No, sir. And neither had it discredited his testimony.
Earl Warren: Alright. Well, now that -- that's what cross-examination is afforded for, to give an opportunity to do.
Gilbert J. Pena: Yes, sir.
Earl Warren: That's all it's for.
Gilbert J. Pena: There was also part of that testimony that was introduced by the defendant's lawyer during the trial for their own use, so that the State was not the only who offered the testimony. Some of it was offered by the State but then the defendant came back and introduced a part of it and page 27 of the record will reflect that they offered part of the cross-examination by Dillard into evidence during the trial. So they took advantage of this testimony.
William J. Brennan, Jr.: (Inaudible)
Gilbert J. Pena: Your Honor as I read the record -- now, I realize that we've assumed that there was an objection made. Now, as I read the record on page 20 --
William J. Brennan, Jr.: Well, excuse me. I thought the counsel was appointed?
Gilbert J. Pena: Yes sir, that's the impression --
William J. Brennan, Jr.: Two objections on the one hand (Inaudible)
Gilbert J. Pena: Well, it -- there's -- there's about three pages of -- of testimony between the Court and Mr. Divine and the District Attorney. In there, I find that -- that the statements like -- like this for Mr. Divine, “Alright, Your Honor, may it please Your Honor, we have no objection to this testimony here.” That's in the bottom of page 20. Then, at the middle of page 21, he says, “We object to the State offering all or any part on the grounds that they haven't properly qualified it as perpetuating testimony first.” Then on the next page, continuing the discussion with the Court, the Court, “Then you are not objecting to the encircled part or the part that is in brackets?” That is on the first page of this examining trial testimony. Mr. Divine, “No, sir. I have no objection to it.” So really, I don't know whether they did or not. But I know that they offered part of it.
Speaker: (Inaudible)
Gilbert J. Pena: I believe so, Your Honor. I believe so. But then again, we are faced with page 27 wherein Mr. Divine offered part of -- offered part of the testimony, the cross-examination from Dillard.
Speaker: That was accurate under the (Inaudible)
Gilbert J. Pena: Yes, sir.
Speaker: (Inaudible)
Gilbert J. Pena: Yes sir.
Speaker: (Inaudible)
Gilbert J. Pena: That's right. In closing, I would like to say this, that if -- if there was an error committed, then we say that the error was committed by the trial judge in allowing that testimony to be introduced an evidence at the trial. We do not feel that any error was made at the examining trial. And I -- I make that statement --
Earl Warren: Mr. Pena, if I understood counsel correctly, he said that, if -- if this testimony had not been introduced in the trial or if the complaining witness had been present at the trial that they would not claim error in this case, and he nods his head now, so that's -- that's all we're dealing with, whether this man was entitled to confrontation, whether he got confrontation to this procedure that you have -- have used or whether that's an item of a fair trial?
Gilbert J. Pena: As counsel has pointed out, Your Honor, we have no way in the world to appoint counsel to examining trials and even after the Court appointed him a lawyer.
Earl Warren: I know, but that -- you can't unring a bell, Mr. Pena. And if this testimony was gotten in front of him at the time when he didn't have a lawyer and he didn't have a fair opportunity to cross-examine. And then you use it on the trial against him, that's the gravamen of the situation, not his conduct when he was at the trial. Isn't that true?
Gilbert J. Pena: It's true, Your Honor. It's true. But we have to take the position though that in our -- in our State, there was no provision for the appointment of counsel at the examining trial. That's why we say if error was made, it was made at the trial by the introduction of the testimony. But not because it was the critical stage of proceedings the way it was pointed out in White versus Maryland or in Hamilton versus Alabama. In our State, the examining trial is not a critical stage of proceeding because at that time, the defendant does not have to say anything. He is not barred from presenting any issues of insanity or alibi or any pleas and abatement, that he will not be barred from presenting any of those pleas at the time of trial.
Earl Warren: Well, I suppose --
Gilbert J. Pena: In this case --
Earl Warren: I suppose, Mr. Pena, that whether the examination is a critical part of the procedure, normally it could be changed depending upon the use it was made then, couldn't it?
Gilbert J. Pena: Yes, sir. As a matter of fact --
Earl Warren: That's what they complain up here, not -- not that they didn't -- he didn't have a lawyer at that place but that the testimony that they took there was used at the trial, where he had no real opportunity to cross-examine such as a man would have he been advised of his rights to have a lawyer and then have lawyer. That's a critical thing, it seems to me.
Gilbert J. Pena: I believe that's right. Thank you very much.
Earl Warren: Have you finished your argument Mr. Harlan, you have a few minutes, yes.
Orville A. Harlan: Now, I would like to give one observation Mr. Chief Justice, if I may. I agree with the Chief Justice that this was the critical area, but Mr. Pena has indicated in his brief and by argument here before the Court a third issue as -- and that would be what I recall waiver by estoppel that his conduct immediately prior to the trial in which he was convicted should be implied that -- that he had waived counsel back at the examining trial. Certainly, the opinions of this Court among which are Carnley versus Cochran, Gibbs versus Burke, Johnson versus Zerbst, Rice versus Olsen, and Uveges versus Commonwealth of Pennsylvania, all indicate that waiver must be knowingly and understandingly made. And in Rice versus Olsen the Supreme Court of Nebraska implied waiver from a plea of guilty and this Court held that you cannot imply a waiver by conditions subsequent such as a plea of guilty. And I feel that the same thing here if you call this waiver by estoppel because of his conduct later on that he still was not advised of his right to counsel and he did not understandingly and knowingly waived counsel at the examining trial. And this is a critical area and we feel that it should be reversed. Thank you.
Earl Warren: Well, Mr. Harlan --
Orville A. Harlan: Yes, sir.
Earl Warren: -- before you sit down, I would like to express thanks from the Court to you for representing this indigent defendant. We realize that it's a great burden on a counsel to carry a case to this Court in that manner, but it is a public service and we appreciate it. So, we thank you, and we thank you Mr. Pena for your -- your representation of the interest of the State of Texas.
Gilbert J. Pena: And I thank the Court.