Earl Warren: Number 64, Robert Swain, Petitioner, versus Alabama. Senator Motley.
Constance Baker Motley: Mr. Chief Justice and may it please the Court. Petitioner in this case is a Negro male about 20 years of age. And he asked this Court to review the judgment of the Supreme Court of Alabama which affirmed his conviction and sentenced to death on a charge of rape. The petitioner was convicted of raping a 17-year-old White girl and was sentenced to death by a heavy jury sitting in Talladega County, Alabama. No Negro has ever served on a heavy jury in Talladega County because they are always struck from the trial jury venire by the states attorney.
Potter Stewart: Senator Motley does the -- in Alabama does the jury assess the penalty in a case of this time?
Constance Baker Motley: Yes.
Potter Stewart: Within what range does -- do you know?
Constance Baker Motley: Well, no --
Potter Stewart: Again, they obviously can impose the death penalty.
Constance Baker Motley: Yes, they did in this case assess the penalty of death, that's the penalty in Alabama.
Potter Stewart: And it is -- in their discretion, apparently (Voice Overlap) --
Constance Baker Motley: Yes.
Potter Stewart: -- the penalty?
Constance Baker Motley: It's life or death sentence. Petitioner claimed below of course and asserts here that his conviction violates the Equal Protection Clause of the Fourteenth Amendment and that the grand jury which indicted him in the petit jury which tried, convicted and sentenced him were the products of racial discrimination. Now, in a capital case in this county, the circuit judge orders the sheriff to summon at least 50 and not more than a 100 persons to serve on the petit jury. About 75 usually appear of the 100 that are summoned and of these numbers there will be some who claim exemptions and others will be excused for various reasons. And then of the number left, say there are 50 left, the striking then begins in this fashion, the states strikes one and the defendant strikes two.
William J. Brennan, Jr.: Senator Motley, (Inaudible)
Constance Baker Motley: Yes.
William J. Brennan, Jr.: (Inaudible)
Constance Baker Motley: That's right.
William J. Brennan, Jr.: So that if you have to (Inaudible)?
Constance Baker Motley: That's right, yes.
William J. Brennan, Jr.: Is that in your case?
Constance Baker Motley: That's right sir, yes.
Byron R. White: (Inaudible)
Constance Baker Motley: Yes, at the early stage, the -- counsel --
Byron R. White: (Inaudible)
Constance Baker Motley: That's right, yes. The counsel can challenge of course, others will come in and claim exemption of those called to serve. And after all of those exemptions are claimed and all of the challenges proposed then you begin to strike from those that are left and it's usually as I say, 50, maybe 75 and you strike down until you get 12 and these well constitutes the jury.
William J. Brennan, Jr.: And after that (Inaudible) in the course of having been eliminated (Inaudible).
Constance Baker Motley: Yes, that's right.
William J. Brennan, Jr.: Going up to the last 12 --
Constance Baker Motley: That's right, the last 12 serve on the jury.
Hugo L. Black: (Inaudible)
Constance Baker Motley: Pardon me?
Hugo L. Black: (Inaudible)
Constance Baker Motley: Well, it depends on the number left. You say, you don't have a set number --
William J. Brennan, Jr.: (Voice Overlap)
Constance Baker Motley: What --
William J. Brennan, Jr.: (Inaudible)
Constance Baker Motley: That's right. It varies depending upon the number left of jurors after all exemptions and challenges of the Court, maybe 40 left or 50. The prosecutor strikes one, the defendant strikes two alternating until there are 12 left, until it -- will vary from case to case.
William J. Brennan, Jr.: Well, they could talk (Inaudible) point where either one could strike (Inaudible)?
Constance Baker Motley: Well, there's a provision that if the defendant doesn't strike, the judge must strike for him in the Alabama law.
William J. Brennan, Jr.: (Inaudible) what I had in mind was, supposed both the prosecution and defense counsel, they have 12 in the box and while there are still 20 or 30 on the list, neither want to strike anymore, may that happen?
Constance Baker Motley: Oh, I guess you can accept the box, yes, which --
William J. Brennan, Jr.: (Voice Overlap)
Constance Baker Motley: -- of the 12, yes.
Hugo L. Black: There -- did they have a special panel summoned for capital cases in venire?
Constance Baker Motley: Well, what they do is to summon additional jurors in addition to those who are summoned for the week. And this may not exceed a 100 in number and of course if they run out they always summon additional jurors to serve.
Hugo L. Black: Well, the statute only provided that -- those compelled to have a special panel, is that still the law there?
Constance Baker Motley: Well, its -- yes, I think so. I think what happens is that this extra number that are called in addition to those that are there for the regular trial for the week or who have already been called is what they referred to as a special venire for a capital case because they usually do not have as many as a 100 there for the trial of a case for that week.
John M. Harlan: What happens in (Inaudible)?
Constance Baker Motley: Well, then they would --
John M. Harlan: Before trial?
Constance Baker Motley: You mean, if they have -- I don't --
John M. Harlan: Would you agree then, they've gone through this process and they seek to select the jurors, a problem comes out (Inaudible) the challenge, if the challenge (Inaudible)?
Constance Baker Motley: You say there are no more jurors left to strike from? I don't think --
John M. Harlan: (Inaudible)
Constance Baker Motley: Yes.
John M. Harlan: (Inaudible)
Constance Baker Motley: Yes.
John M. Harlan: 12 in that (Inaudible)?
Potter Stewart: Its going to work that way, there's (Voice Overlap) --
Constance Baker Motley: The -- no, no.
Potter Stewart: They begin with 30 or 40.
Constance Baker Motley: That's right.
Potter Stewart: And then you reduce it to twelve.
Constance Baker Motley: That's right.
Potter Stewart: On a one-to-two basis?
Constance Baker Motley: Yes. I didn't understand your question Your Honor. I thought I had explained this but I will say it again. The -- between 50 and a 100 are called to serve, come in, some will claim exempt from this, they are over 65 or under 21. Certain occupations are exempt. Then, others will be challenged for cause reducing the number available for actual service, there's maybe 40 or 50. Then the striking begins. The defendant -- the state strikes one, the defendant strikes two until only 12 remains. Those 12 constitutes the jury with a trial of a capital case.
John M. Harlan: (Inaudible)
Constance Baker Motley: That's right, yes. That's right.
Potter Stewart: Is there interrogation of the jurors by counsel or by the Court?
Constance Baker Motley: By both.
Potter Stewart: Oh, prior to this --
Constance Baker Motley: Yes.
Potter Stewart: -- preemptory striking?
Constance Baker Motley: That's right, yes.
Potter Stewart: -- Individually?
Constance Baker Motley: Yes. The defendant can inquire, and the state may inquire and examine the jurors and I understand the Court can excuse anyone that the Court feels does not qualify to serve. Now, the Supreme Court of Alabama found that there are usually Negroes on the venire. Negroes are usually in the jury box and called but the Negroes are always stricken and no Negro has ever served on a petit jury in that county. And the Supreme Court of Alabama held that the fact that the prosecution peremptorily strikes every Negro from the jury panel in the case where the defendant is a Negro does not constitute a violation of the defendant's constitutional rights of due process or equal protection of the law. Clearly is felt --
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Pardon me?
Arthur J. Goldberg: Do you attack only the petit jury or do you attack the grand jury also?
Constance Baker Motley: We attack the grand jury also. We say that, that's our second point here and that is that the grand jury and the petit jury drawn from the same box but what you have here is few Negroes in that box because the jury commissioners have not carried out their constitutional duty to fairly acquaint themselves with all qualified jurors in the county. They have a very haphazard method of getting names in that box which favors a larger proportion of Whites and qualified Negroes are obviously not put in the box. They have a small number to start with. Now, as I said, this record clearly established that in every case, Negroes are struck from the venire and the prosecutor or the Solicitor's own testimony is that whenever he has a case he goes over to the lawyer in the other side. He says, “Look, we have some Negroes here. Do you want to use Negroes?” And if the defense counsel says no and he invariably does and if the Solicitor doesn't want to use them as he says, “We strike them first.” In other words we get -- rid of Negroes. Now, the prosecutors never struck any Negro because he felt that a particular Negro had a bias against the defendant or the state. He never struck any Negro because he felt that a particular Negro or several Negroes on that venire would not afford a fair and impartial administration of justice. His only consideration --
Potter Stewart: But those reasons would be all be for cause, I suppose if you could show --
Constance Baker Motley: Yes, but --
Potter Stewart: But we're talking now about preemptory challenges and I -- that the very word preemptory as well as the history of preemptory challenges indicates that I had thought that the person could be as capricious, whimsical, arbitrary or prejudiced as he wanted to be --
Constance Baker Motley: Yes.
Potter Stewart: -- in challenging the jury.
Constance Baker Motley: But there are some instances where the Solicitor cannot prove bias, you say. And if he attempts to prove in a case that a particular Negro might be biased in favor of the defendant because he is Negro and fails, he may then challenge that Negro peremptorily and that's not because of the Negro's race. He's then using the preemptory challenge in the manner in which it was intended. And that is to eliminate bias which you could not prove on which you merely have a suspicion or a whim and you get rid of the Negro that way. But --
Speaker: But -- we always did use the preemptory challenges that way (Inaudible). I thought may be he looked at -- maybe sort of a stance and the discussion. If I had a challenge left, of course in my jurisdiction we had six challenges, they didn't have unlimited challenges --
Constance Baker Motley: Yes.
Speaker: -- you do in Alabama. But do you mean to say here that the lawyer before you can use a preemptory challenge that shows grounds like bias.
Constance Baker Motley: No. I think that it is not absolute in that sense. That was never the original purpose of the challenge. Its purpose was to secure an impartial jury and to provide for the elimination of bias and it wasn't -- I guess it is used in the manner which you suggest and wholly arbitrarily. But I don't think that that was the original intention of it. I think it's always been limited by the necessity of a fair and impartial jury for the defendant and the public's interest in the impartial administration of justice. So that in every case I would think that we have -- we would have the burden of course of establishing that race was the motive and it maybe difficult in some cases. But the preemptory challenge we say cannot be used to and affect defeat the decisions of this Court construing the Equal Protection Clause or to violate the federal statute which says, that no state officer may exclude Negroes from the jury on account of race and that --
John M. Harlan: But suppose (Inaudible)?
Constance Baker Motley: Well again, the question would be whether there -- that the challenges have been used to discriminate against the whole racial group in the community. If he struck Negroes because they have to use six challenges but whenever he struck, he always struck Negro. We might be able to prove that even in such a case the prosecutor's motive was racial discrimination.
John M. Harlan: By definition (Inaudible)? I thought your position in the state was that (Inaudible)?
Constance Baker Motley: Well, our position is that the prosecutor here had a policy of excluding Negroes. He did it through the use of preemptory strike. He says so because I always strike Negroes. I go overnight, talk to the other side and I -- we come to an agreement and we take the Negroes off. And this record shows that his use of the strikes was to affect racial discrimination. This Court has ruled that they cannot exclude Negroes from the grand jury panel or the venire and it shows that they made some attempt here to put some Negroes on. But he used this to affect racial discrimination. And our point is that any state prosecutor who uses his preemptory challenges to affect this result, the exclusion of the whole racial group violates the Equal Protection Clause.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Oh yes.
Arthur J. Goldberg: (Inaudible)
Constance Baker Motley: Yes, that -- that's our second point as I pointed out before that the striking is facilitated by the fact that the jury originally composed that it's a box as a result of racial discrimination. I think the record is clear here that Negroes were about 26% of the males in that county over 21. And in other words 26% Negroes were potentially qualified but the largest percent that had ever appeared on a grand jury panel or petit jury panel was 10%, 12% or 15%.
Potter Stewart: Other qualifications in addition (Voice Overlap) --
Constance Baker Motley: That's right.
Potter Stewart: -- 21, weren't they?
Constance Baker Motley: That's right. But we said -- what I'm saying is that there were 26% potentially qualified.
Potter Stewart: (Voice Overlap)
Constance Baker Motley: We put on testimony to show there were other qualified Negro. I think about 13 Negroes out of which 12 were qualified, met all the other qualifications. And the one -- jury commissioner even admitted that there were probably Negroes qualified who are not in there because he had made no effort to ascertain all qualified persons. And the statute certainly requires that. So that it's clear by their own admission that there were Negroes outside of this box who were not qualified. And this small number of qualified Negroes being put in the box facilitated the striking when it came to that. So you can tie these two things together of course, and show that this is clearly a case where you have a state policy of excluding Negroes from their proper participation in the administration of justice and participation in the jury system.
Potter Stewart: Is there only men jurors in Alabama?
Constance Baker Motley: That's right, they exclude women.
Earl Warren: Senator, may I ask you this question please. I don't know that I quite have your point yet. But assuming that this jury was intended legally in all respects and they came to the courtroom and the prosecutor used his challenges, got his preemptory challenges for the purpose of eliminating Negroes from the jury. Do you then say that that is a state action and that --
Constance Baker Motley: Yes.
Earl Warren: -- that that's discrimination and this case should be reversed?
Constance Baker Motley: Yes. If the prosecutor always strikes Negroes, if race is a criterion and it -- and we show that they always strike Negroes. And no Negro ever serves because of his policy of striking all Negroes that would violate the Equal Protection Clause.
John M. Harlan: That's another way of saying that (Inaudible) preemptory challenges that they're exercising (Inaudible).
Constance Baker Motley: Well --
John M. Harlan: (Inaudible) preemptory challenge, you cannot have it (Inaudible) constitution and the state cannot have a preemptory challenge (Inaudible)?
Constance Baker Motley: The state cannot -- yes, the state cannot use its preemptory challenge to exclude Negroes solely because they're Negroes. Because then the state is using a racial criterion for selecting the members of the jury.
Potter Stewart: Supposing that you're argument goes farther than that. That a state allows any preemptory challenges at all then you have to assume that some people are going to be prejudiced against Negroes. Some lawyers or their client are not going -- or want Negroes on their jury for a very a prejudicial, capricious and arbitrary reason and that the state therefore is authorizing that could be done whether it be --
Constance Baker Motley: Yes.
Potter Stewart: -- by the prosecutor or by defense counsel or in a civil case.
Constance Baker Motley: That's right, yes. Because this jury selection is an important part of the administration of justice. It's a -- an integral part of the system of justice. And we're saying that race cannot play any part in the administration of justice or the jury selection process.
William J. Brennan, Jr.: (Inaudible)
William J. Brennan, Jr.: Just go ahead.
Hugo L. Black: (Inaudible)
Constance Baker Motley: Yes. If I say even in the case of the defendant. I don't think that race can be allowed as a criteria and even by the defendant because --
Byron R. White: What if the defendant so thinks that, say there's a Negro defendant and thinks that a Negro would be -- just because he's a Negro would be biased against the Negro defendant and it's not just that -- I mean the -- the fact that he's a Negro means bias to him --
Constance Baker Motley: Well --
Byron R. White: -- and isn't that --
Constance Baker Motley: Yes.
Byron R. White: -- a little bit different?
Constance Baker Motley: Yes, that's different because he's eliminating him for bias --
Byron R. White: Alright, now --
Constance Baker Motley: -- which he affects --
Byron R. White: -- let's say the prosecutor. Prosecutor eliminates a juror because he's a Negro, only because he's a Negro but only because he thinks that this particular Negro might be biased.
Constance Baker Motley: That's right. He can use his preemptory challenge to eliminate a Negro that he suspects of bias.
Byron R. White: Alright, but it's only -- the only reason he suspects him is because he's a Negro?
Constance Baker Motley: Well, I think there would be cases where that would arise out of the facts in the case. He (Voice Overlap) --
Byron R. White: Certainly does in the defendant's case. That's --
Constance Baker Motley: No, no. In the defendant's case he had no reason other than race. He wasn't suspecting bias. He wasn't eliminating Negroes as a part of his file, strategy or anything like that.
Byron R. White: I know, but that's -- in the case of the defendant exercising his preemptory challenges. When he says, “The reason I'm going to strike this one, this Negro, is just because he's a Negro. I think he's -- because I think he would be bias. That's the only reason I think it would be bias because he's a Negro.”
Constance Baker Motley: Well, what he suspects as definite bias I would think with respect to himself, he maybe White and he says, “Well, I don't want a Negro on my jury because I am charged with burning down a Negro's house, and this Negro may be biased against me. So I'm going to get him off the jury.” Now, he's suspecting a definite bias. He may not be able to prove it because he puts the Negro on and questions him and he denies it because I can fairly decides this case --
Byron R. White: But your point is on the prosecution side, (Inaudible) -- exercising any preemptory challenges is that it may be that you couldn't successfully challenge every preemptory --
Constance Baker Motley: That's right.
Byron R. White: -- challenge that a prosecutor made just because the fellow was a Negro.
Constance Baker Motley: That's right.
Byron R. White: He may not be able to do that but it's certainly true you say that every Negro on every jury --
Constance Baker Motley: That's right.
John M. Harlan: -- for years and years couldn't have been -- shouldn't be counted because he's a Negro.
Constance Baker Motley: That's right. From that kind of pattern we can infer that racial discrimination was his motive --
Byron R. White: But why (Voice Overlap) --
Constance Baker Motley: -- and there's a case where he admits that as here.
Byron R. White: Why does the defend -- what kind of -- how come the prosecutor gets this kind of an answer when he asked the defendant -- defense counsel, “Do you want Negroes on the panel,” and the -- and is this true that the defense counsel answers, “No, I don't want Negro from the panel.”
Constance Baker Motley: That's what he said. That's his testimony on page 20 and 27 of the record. He said, they always say “No, I (Voice Overlap) --
Byron R. White: But he never got any (Inaudible)?
Constance Baker Motley: That's right. He says -- and he says, “The only variation was once we had a Negro accused of murdering another Negro.” And he wanted to vary this pattern by offering him an all-Negro jury. And in other words, he always took up race as a primary consideration with respect to the composition of every jury.
Byron R. White: Well, now do you have any -- are there any figures or any evidence this record as to how many times or what part of the Negroes who were thrown off or thrown off by the defense over the years?
Constance Baker Motley: No, it doesn't indicate that precisely --
Byron R. White: I assume there's someone out there.
Constance Baker Motley: That's right.
Byron R. White: How about in this case?
Constance Baker Motley: In this particular (Voice Overlap) --
Byron R. White: Were all the Negroes eliminated from the --
Constance Baker Motley: Yes, by the --
Byron R. White: -- from the federal --
Constance Baker Motley: -- by the Solicitor. You see in the instant case there was a venire of a 100 that's a stipulation, eight Negroes, six were available. The prosecutor struck all six.
Byron R. White: So that -- although and so he had to do it three times. He got two off first?
Constance Baker Motley: Right. Well, I don't know exactly how they got them off but he was -- with his --
Byron R. White: But at least that --
Constance Baker Motley: -- six strikes, he had one at a time --
Byron R. White: -- at least none of them were -- none of them was eliminated by the defense?
Constance Baker Motley: That's right. No -- that's right. And this was the practice in civil cases also. There were lawyers who testified that in every civil case they did this too. So with a general community pattern here --
Byron R. White: Well, was this question asked in this case of defense counsel? Do you want any Negroes on the jury?
Constance Baker Motley: I don't believe (Inaudible). I'd like to --
Earl Warren: Senator, do you happen to -- do you have to go as far as you do to prevail in this case? Do you have to go as far as you have just gone in making this particular argument in order to prevail?
Constance Baker Motley: Well, I don't understand. As far as I've gone, I don't --
Earl Warren: Well, what I mean is this, do you have the premises entirely upon the use of preemptory challenges by the prosecution in order to win this case?
Constance Baker Motley: Oh no, we can win on the second point which is that the organization of the grand jury and petit jury from the start were the products of racial discrimination.
Earl Warren: So we've heard very little about that.
Constance Baker Motley: Yes. Well, I -- we have it in our brief. I -- we referred to it that what happened here was that the prosec -- for the jury commissioners had a very haphazard method --
Earl Warren: Yes, (Voice Overlap) --
Constance Baker Motley: -- which favored Whites. As a result, very few Negroes actually got in that box. I'd like to save the three minutes I have for rebuttal.
Earl Warren: Mr. Hall.
Leslie Hall: Mr. Chief Justice, members of the Court. I'm quite surprised that Mrs. Motley didn't go into the other questions. She saves three minutes for that. I'm also surprised that she spent so much time on this particular thing. Because it's been pointed out time and time again that various Courts throughout the country including a Court from Mr. Justice Clark's own state that the matter of preemptory challenges is a manner that it is reserved exclusively for counsel on each side. They don't have to assign any reason. The counsel does not have to say, why he's challenging a person when he is exercising his preemptory challenge. He may not as one of the justices pointed out, may not like the color of the tie of the person's wearing. He may not like the color of his shirt he's wearing. He may not like the color of his eyes. It reminds me of a case that I was retained on back in 1936 when I first started practicing law down in Baldwin County, Alabama. There was a lawyer up in Mobile by the name of Henry Aldrich who was not too well acquainted with the residence in Baldwin County. And that particular case involved and a ejectment who had decided he was going to takeover a piece of land down there in the swamps up above the -- in the Tensaw River, up above Callaway and that goes over to Mobile. Being a native of Baldwin County Henry Aldrich who was one of my classmates asked me if I would associate with him for the purpose of striking the jury and that was the only reason that I was hired in that particular case was to strike the jury. My purpose in that case was to strike all county farmers, renters, share croppers and any other person that had no interest in owning property. When we got through the strike in the jury we round up with the jury of all land owners. The case was trialed for three days. At the end of the trial of the case, we won the case. We did not have to assign a reason why we struck any by the oath of that jury. There's no reason in the world why I have to assign when I am prosecuting a case or defending a case why I'm striking a Negro or I'm striking a Mexican, why I am striking a China man or anybody else of a jury as long as I'm right exercising my preemptory challenge. Now, of course when I get down to the point of striking for cause then I have to have a good reason. And I think all the members of the court know that. I think all the members of the court have trialed cases from time to time. What -- his -- Judge Grooms was pointed out in a class action that was brought down in Birmingham two and a half years ago when it was trialed with reference to Jefferson County in particular and then later on back in October and I was in that case with regard to the (Inaudible). Judge Grooms in the decision just handed down the other day on the second of December said “The number of preemptory challenges in both civil and criminal cases is fixed by statute. The exercise of such preemptory charges is resting exclusively with the parties.”
Hugo L. Black: May I ask you to remind me in telling this (Inaudible) you have a special law in Talladega County with reference to capital cases and how many jurors you'll draw or is it carried by general of state laws?
Leslie Hall: Mr. Justice Black the manner of filling the jury roll and filling the jury box is governed by a special statute in Talladega County but the general law in Alabama still applies as far as the selection of the members of the panel of the venire is concerned.
Hugo L. Black: Well, you have a capital case, let's say you have a capital case --
Leslie Hall: Yes, Your honor.
Hugo L. Black: -- in Talladega. How many jurors would you have to have there, parties to be strike on and -- under your law.
Leslie Hall: The judges are required to -- normally he has a venire of say of 50 or 60 and then he is required to draw up to a 100.
Hugo L. Black: Oh, it is a minimum. This is not in the statute, I thought.
Leslie Hall: That's right, that's great.
Hugo L. Black: What is the minimum?
Leslie Hall: A 100 on a capital case.
Hugo L. Black: You have to summon and have a 100 juror.
Leslie Hall: Yes sir.
Hugo L. Black: What's the object to that statement?
Leslie Hall: I don't know what the object is. It's been a traditional from way back, you know when you practice some law down there it was --
Hugo L. Black: I suppose the object was you get both parties strike a lot of people so that they can come as near getting a fair jury responsible.
Leslie Hall: Well of course we have a lot of people that come in who were exempt for various reasons. We have almost say a different categories of people who exempt from jury duty.
Hugo L. Black: Well that wasn't the point. How many did you get to strike from in a civil case?
Leslie Hall: In a civil case?
Hugo L. Black: Yes.
Leslie Hall: Normally about 40, 30 or 40 because in a civil case you strike one for one.
Hugo L. Black: One for one --
Leslie Hall: Right.
Hugo L. Black: We had 24 men, that's the rule as I understand.
Leslie Hall: Yes.
Hugo L. Black: That's because that's a civil, it's not very important. How many do you have to have in order to strike in connection with a felony that's not a capital case.
Leslie Hall: Well, they usually have maybe 40 to 50 There is no particular set number. Now (Voice Overlap) there was a point, he was asked if --
Hugo L. Black: -- to get the idea, you do not have a statute to that which relates to the capital cases only which was passed for the expressed service trying to see that there's enough men there so that when you get through striking they could come as near as possible to getting a fair jury.
Leslie Hall: Well now, it has been my experience with that particular thing though sometimes we ran out of a number of people, a lot of them have asked to be excused for various reasons that some of them don't believe in capital punishment. Some of them are --
Hugo L. Black: I understand that but is there not a minimum in capital cases that you have to have, is that the statute --
Leslie Hall: Not that I know of, no.
Hugo L. Black: You don't know.
Leslie Hall: No, sir.
Hugo L. Black: Well, there is a larger number though that we have to have.
Leslie Hall: Well, what -- what normally happens in the case and it has been my experience and I've tried them in various places in Alabama is when you run down to say about 40 then the judge goes out and has the sheriff, summons people from around the courthouse and from around the business.
Hugo L. Black: You do need to start with more juries in the capital case and other cases?
Leslie Hall: Yes sir, yes sir.
Hugo L. Black: I thought in your statement you started with a minimum of 100?
Leslie Hall: Well that's what they normally summons, yes sir. It starts with a 100. But a lot of them come in and say we don't want to serve, we are over age, we are railroad engineers, we are conductor on trains, we are telegraph operator. We are teachers, we are doctors and --
Hugo L. Black: And that excuses although it's --
Leslie Hall: Yes.
Hugo L. Black: And show that they come (Inaudible) the statute. Is it that?
Leslie Hall: And some of them are hard in hearing and so forth.
Hugo L. Black: Then if it gets down below what the statutes says it has to have to get them into a strike, it is send down and get what you call (Inaudible).
Leslie Hall: (Inaudible), yes sir.
Hugo L. Black: Go down in summons them and bring them in.
Leslie Hall: Yes, Your Honor.
Hugo L. Black: Sheriff --
Leslie Hall: That's right.
Hugo L. Black: That's the system you have here is they get -- the defendant gets two strikes and the other -- on this mark.
Leslie Hall: In -- in criminal cases.
Hugo L. Black: In the civil cases that's one on one.
Leslie Hall: Yes, Your Honor.
Potter Stewart: In some of those legislation that was peculiar to Talladega County unlike with the petitioner's brief in the appendix they have the main statutory provisions is that on the top of the 8 (a) that the -- that the special legislation begins which is peculiar to this county, well, and goes all the way through the -- through 11 (a).
Leslie Hall: So far in the appendix?
Potter Stewart: Appendix to the petitioner's brief.
Leslie Hall: Yes.
Potter Stewart: There are set out that various constitutional provisions in Alabama statutes and that most of them seems to be of general application and I'm asking whether the ones of exclusive application to this county begin at the top of 8 (a) and end at 11 (a) that's in the information.
Leslie Hall: That is correct sir.
Potter Stewart: Is that it?
Leslie Hall: Yes sir.
Hugo L. Black: Mr. Hall can you explain to us why was this thing point -- pointed out that the Commission (Inaudible)
Leslie Hall: Well now I think the commissioners did the best they could under the circumstances to --
Speaker: (Inaudible)
Leslie Hall: Yes.
Speaker: Now, I'm going to the board now (Inaudible)
Leslie Hall: I didn't understand the Alabama Supreme Court to say that.
Speaker: (Inaudible)
Leslie Hall: Well you might be right.
Speaker: (Inaudible)
Leslie Hall: Well now I want to be practical about this thing. Yes, and I think it's impossible for any jury commission to go out and get every male citizen between 21 and 65 whether he is White or whether he is Negro. It is impossible to do it. They go out and do the best they can with the facilities that are available to them.
Earl Warren: Well that was to say that the Commissioner in saying that he didn't know any Negroes and therefore he did not put him on the panel.
Leslie Hall: I think you found there by reading this record here that they made a determinant effort by doing --
Earl Warren: No, ask -- I didn't say that. I asked you that question. I asked you if that would justify the Commissioner in saying “Well, I did know any Negroes or I didn't know whether there are any qualified or not so I didn't put any Negroes on the panel.”
Leslie Hall: Well, your honor that is a hypothetical question --
Earl Warren: Beg your pardon --
Leslie Hall: I'll say and I think there is a hypothetical question.
Earl Warren: It is a hypothetical question.
Leslie Hall: Yes sir.
Earl Warren: Could they do that?
Leslie Hall: I'm not going to say, whether they could or couldn't do it but I'm talking about this particular case Mr. Chief Justice
Earl Warren: Or wasn't there -- didn't one of the Commissioner say what was almost tantamount to what I've said.
Leslie Hall: Well, he might have said it but the other said that they went out into their plants. They looked over the board of registration list. They conducted planned marriages which have both Negroes and Whites. They've contacted the -- various farm organizations that Negroes and Whites belong to --
Earl Warren: Well did they? Wasn't there one who at least who said that he did not go to any of the --
Leslie Hall: Well he's going to bring them into the (Voice Overlap) anything with just one man.
Earl Warren: -- and didn't go to any of the Negro clubs or organizations but he did go to the Whites.
Leslie Hall: It didn't say he went to the White organizations.
Earl Warren: I understood that he did.
Leslie Hall: Well you just see they didn't know of any Negro organizations now, let's put it that way.
Earl Warren: Or churches?
Leslie Hall: That's' right.
Earl Warren: They didn't know of any Negro churches.
Leslie Hall: Well he might have known some Negro churches, that may have been one man but there are three members of the jury commission in this.
Earl Warren: I know but one apple can spoil a box you know too.
Leslie Hall: Well, that's true.
Speaker: (Inaudible)
Leslie Hall: Yes.
Speaker: (Inaudible)
Leslie Hall: Yes.
Speaker: (Inaudible)
Leslie Hall: Yes, I understand you. Now, that -- that same thing would apply to White people.
Speaker: Now the proof of the evidence under the (Inaudible)
Leslie Hall: Well I think you found that the Talladega County has in much better shape than some of the other counties in Alabama and of course that particular situation is concerned.
Speaker: (Inaudible)
Leslie Hall: Well I'm not going to make any admissions but I know that there are some counties here that we have been trying to work on to try to get them to improve the situation down there. And so that cases like this won't come up here and I've been one of those that has been really working on that particular situation and I feel like Talladega County is in much better shape and mostly all of the rest of the counties except Jefferson County. Jefferson County is in good shape. Butler County is in better shape than it was. Mobile County is in good shape. Baldwin County is in good shape.
Speaker: So you're saying that (Inaudible)
Leslie Hall: There were two Negroes that served on the grand jury that's been indicted this man.
Speaker: (Inaudible)
Leslie Hall: Well now, I can't be responsible for that. Now if you will -- if you will -- it even depends on prosecuting the case. You would use your own judgment as to whom you were going to strike off, wouldn't you? And you wouldn't ask anybody's opinion about it, would you?
Speaker: (Inaudible)
Leslie Hall: We've had some served down in -- in Butler County and Greenville, Alabama. Recently --
Earl Warren: Well, let's take this county as far as you know and as far as any of the witnesses in this case knew has there ever been a Negro set on a jury in this county in either a civil or criminal case?
Leslie Hall: On a petit jury?
Earl Warren: Petit jury, yes sir.
Leslie Hall: Not that I know of, the record they didn't show it.
Earl Warren: The record shows to the contrary that that is not correct.
Leslie Hall: Yes -- that's right.
Tom C. Clark: It's been (Inaudible). On the jury panel that served --
Leslie Hall: That they're only venire, yes sir.
Speaker: Quite necessary, that over the years than the Negro on a petit jury.
Leslie Hall: I've never tried a case in that county, I don't know.
Tom C. Clark: You have no idea that --
Leslie Hall: Right. I have a bit of good idea from my own experience and find cases in Virginia in the District of Columbia and now in Alabama and representing that because I was -- say that I have a very good idea of what.
Tom C. Clark: Well a lot of county in the region?
Leslie Hall: Well, I've explained that in my brief. Every time I represent one of the defendant and he said that I don't want a Negro sitting on the jury and trying me.
John M. Harlan: Well I know but in this case and there is much better cases that's the Solicitor General who likes the Negroes. Why do you -- supposed the Negro -- this just strikes the Negroes in every single case. There is no --
Leslie Hall: I haven't discussed that with the Solicitor. I don't' have any idea.
Tom C. Clark: That's the use of this brand new challenge.
Leslie Hall: He then -- he don't have to assign a reason, does he Mr. Justice Clark?
Tom C. Clark: What about the grand jury?
Leslie Hall: Well of course the grand jury is concerned, the judge who's names out of the hat. Do that mean look at them? There is no distinction as far as the colors of the cards, the textures of the cards, there is no marked on the cards, or anything, you start forming them out until it gets 18 men.
Tom C. Clark: Where did you get the cards?
Leslie Hall: It gets the cards out of the jury box. The jury box is locked up until it's brought into the courtroom.
Tom C. Clark: We have it instead of a wheel.
Leslie Hall: No, we don't have wheel. We've got a -- a box that it's kind of like a safety deposit box, a steel box that has kept locked and kept in the probate judges office.
Tom C. Clark: It's hard getting the box.
Leslie Hall: They come off the jury room.
Tom C. Clark: (Inaudible)
Leslie Hall: The -- in this particular county and some -- most all or every county in Alabama, the second clerk is automatically the clerk of the jury commissioner and he operates, he or she operates under the directions of the jury commissioner. In Jefferson County they have a full time clerk and --
Tom C. Clark: And what about this county?
Leslie Hall: In this county the second clerk access the clerk of this jury.
Tom C. Clark: They have three Commissioners.
Leslie Hall: They have three Commissioners appointed by the government.
Tom C. Clark: There's not the -- the one to go in the box for storage?
Leslie Hall: They go out and try to find the names of qualified men to go into the -- on the jury roll first and then after we go in the jury roll the jury box is made up, from the names on the jury roll--
Tom C. Clark: Are you familiar with Cassell, a case down in Texas?
Leslie Hall: Yes sir.
Tom C. Clark: Well, this seems like a legislature procedure.
Leslie Hall: Well no. I can explain it to you a little bit more in detail, they've got a great, big book and they put down the names by precincts in the various areas of the county. And then they take those names off and put them on cards and put those cards in a box and the box is locked up. Once those names are drawn out they're not used again for two more years and those names are separated from the other names that are in the jury box.
Tom C. Clark: How many names are put in the box?
Leslie Hall: Well it depends on how many names are on the roll. They put every one of the names that are on the roll.
Tom C. Clark: And they run down the rolls --
Leslie Hall: Yes sir.
Tom C. Clark: Line the lines --
Leslie Hall: Yes sir. That's correct.
Tom C. Clark: As what you said they went around the county and like you said --
Leslie Hall: They do in making up the rule, but they make up the rule every two years.
Tom C. Clark: They make up the roll a bit.
Leslie Hall: Yes. They make up the roll and then their cards come off the roll.
Speaker: Did they have a message caller?
Leslie Hall: Sir?
Speaker: They call it that in (Inaudible) amount of time.
Leslie Hall: Not now. There was a time back there in Scottsboro cases when it was and even some of the candidates happened to recently and told the Attorney General, Alabama Attorney General's office got after about that thing when they -- they stopped doing it but they don't do it anymore as far as I know.
Potter Stewart: The -- excuse me?
William J. Brennan, Jr.: What do you say about the percentage?
Leslie Hall: Are you talking about the Talladega County?
William J. Brennan, Jr.: We wrap up specific claims in the (Inaudible)
Leslie Hall: Well, now --
Hugo L. Black: Calling people's name in the whole jury box.
Leslie Hall: The Solicitor attempted to go into that and explain why. They want more Negroes names on the roll and consequently in the box and even into some things that I don't particularly condone as far as incidence of sexual diseases and illegitimacy and things of that sort I've come to say, but that is in the record and I have to admit it it's in there.
Hugo L. Black: What about the -- what about the educational --
Leslie Hall: Well the educational qualifications -- they work a whole lot new with, Mr. Justice Black.
Hugo L. Black: In that county how about -- what what's the ratio of it there.
Leslie Hall: Well, I don't know if this record shows it now but you will find it almost in every county in Alabama the ratio of dropouts and those are starting into 1st grade, who finish in the 12th grade as compared with the Whites about 90% of the Whites finished and about 50% of the Negroes finished.
Hugo L. Black: Are -- are there many of the local Negroes that go through those to the Talladega County and take advantage of that.
Leslie Hall: Not (Inaudible), they come from other parts of the state.
Hugo L. Black: You have good schools in Talladega.
Leslie Hall: Very good schools, yes sir. Very good schools in Tuskegee
Hugo L. Black: And it's a compulsory education there.
Leslie Hall: Yes sir.
Hugo L. Black: It is important --
Leslie Hall: But a lot of those get the education and we find it is true. Almost -- in all of these rural areas of Alabama, those that do get the education leave. They don't stay. They go to North. They go to Detroit, in New York and Chicago and various other places. So that it leaves the old people. The ones that either illiterate or infirmed or too old or something of that sort, so we don't have to (Inaudible) other than school teachers and school teachers invariably claim their exemption and of course most of the school teachers are women and then outlive what the jury says.
Hugo L. Black: What did your commissioner say about knowing the call of people in this county?
Leslie Hall: Well they all know practically all of them in -- in the rural counties.
Hugo L. Black: Did they testify -- to making it testify --
Leslie Hall: Two of them -- I think maybe all three of them, do you remember the issue about it.
Speaker: (Inaudible)
Leslie Hall: All testified.
Potter Stewart: Do you have a statutory test and I'm reading now from the bottom of 4 (a) and the top of 5 (a) of the appendix to the petitioner's brief but requiring to assess in order to be eligible for jury duty of men that -- be over 21 and each -- as to generate it, it reputed to be honest and intelligent and esteemed in the community for its integrity, good character and sound judgment. I supposed it's not only a matter of perhaps White jury commissioners not being acquainted with negros but perhaps also a manner that because of 75 years of more thought patterns and social customs down there they -- they are perhaps would be fewer negros who had that general reputation in the community at large but for those qualities and that would be quite acquainted, is that right.
Leslie Hall: I know that because -- if I am guilty of various disqualifying pranks, of course that's true of a lot of White people too but we would find the percentages larger among the Negro population and then you do among the white --
Potter Stewart: -- a general refute for qualities of honest, intelligent, esteemed and --
Leslie Hall: No, I'm not trying to cast any displacement from this, as a matter of fact --
Potter Stewart: -- matter of a fact whether or not the jury commissioners would -- whether there would be as many proportionately as many Negroes who had this estimation of the community at large, as there would be --
Leslie Hall: I don't think so.
Hugo L. Black: You'd say with the two on this grand jury, is that true of (Voice Overlap)
Leslie Hall: There were two among this grand jury that indicted this man for rape over a White girl.
Hugo L. Black: -- and summon all the grand juries have been you know statistically so you know the statistics on them whether or not they summoned each grand jury.
Leslie Hall: Well they have been summoned quite a few grand juries, there has been some grand juries that haven't had Negroes on them. But what in a particular reason why there happened to be on this -- this grand jury, they -- they just -- that's the way the ball bounced.
Tom C. Clark: To mention, they don't put a cetain percentage of --
Leslie Hall: They don't put anybody on the grand jury. The judge pulls the names of the --
Tom C. Clark: No, I mean on the -- on the roll, they don't put a certain percentage on the roll of Negro, is that right on the --
Leslie Hall: They don't make any effort to do that, no sir.
Tom C. Clark: This just comes out with certain percentage.
Leslie Hall: That's right.
John M. Harlan: Mr. Hall, is the -- does the same, is the same striking procedure used statewide? You start out with a number of jurors and then there is the alternate strike when you get to the jury.
Leslie Hall: Yes.
John M. Harlan: That's statewide?
Leslie Hall: Yes sir.
John M. Harlan: And does -- does striking has to stop when you get to 12.
Leslie Hall: That's right and of course if you --
John M. Harlan: You can't go on striking and enforce the calling of more jurors.
Leslie Hall: Oh, when you get down to 12 that's your jury?
John M. Harlan: That's the end of it?
Leslie Hall: Yes.
John M. Harlan: No more strike that's what you say.
Leslie Hall: That's right. (Voice Overlap) Of course, you've got this -- you got the challenges per call at first.
John M. Harlan: Oh, I understand.
Hugo L. Black: That's all that have been left in the box.
Leslie Hall: Yes.
Hugo L. Black: But it happened to, you don't have enough jurors over --
Leslie Hall: Then you can go out and get some (Inaudible), that's right. And from the area around the court that was where they usually do it, you know?
William J. Brennan, Jr.: Now, the question that the -- that the -- the evidence in this case is that the prosecutor usually ask to the defense counsel if he wants Negroes on the jury that was a testimony during the case.
Leslie Hall: There is some testimony to that effect, yes sir.
William J. Brennan, Jr.: And the -- but that question was not asked in this case.
Leslie Hall: And whether that was asked in this particular case, the record doesn't show it as far as I know.
John M. Harlan: But you agree that all of the strikes of this case were made by the -- of Negroes were made by the prosecution?
Leslie Hall: It is possible, where they – because --
John M. Harlan: Can't you -- can you tell from the record or you can't?
Leslie Hall: Well if I were -- the prosecutor probably do the same thing.
John M. Harlan: Oh, I know but I -- I just wondered as a matter of fact on this record, does it show that all of the Negroes who were stricken were stricken by the prosecution, is that --
Leslie Hall: I don't know whether the record shows that or not.
Hugo L. Black: (Inaudible)
Leslie Hall: Is there --
Earl Warren: Senator Motley.
Constance Baker Motley: I think Mr. Justice Black if you would looked at Section 63 of the Title, I don't have it here. I'm referring to the Alabama Code Title 30 Section 63. I thought perhaps we had cited in our briefs somewhere but that's the statute I believe you have in mind which sets a minimum number of juries to be called in a capital case of 50 and no more than a 100. It says the circuit clerk show directly share the summon at least 50 and no more than a 100 in a capital case. I think if you looked at that that was the section. Now --
Earl Warren: -- the felony was then kind of a --
Constance Baker Motley: No, not just capital cases. There is a separate section on felonies in general. Now in this case, I think because we mentioned previously it's clear that the jury commissioners whose job was to secure names for the jury roll which was then put in the jury box relied on their acquaintances, business acquaintances and social acquaintances primarily in securing these names. One jury commissioners had been pointed out and even know the percentage of Negroes in the county he estimated it at about 10% where actually it's 32%, 26% being the number of Negro males over 21, so that he had no idea of the number of Negroes in the community and then one jury commissioner on page 95 of the record he was asked, “Have you gone to any purely Negro organizations for a list of names?” And he said, “No.” The jury clerk who assisted the process of getting the names said she knew a couple of Negroes and this was the extent of anyone's direct testimony as to knowing any particular Negroes. She said, “I asked Bob Strickland and principle may vary, they send me a list and I asked another man and he never sent it.” And whenever a jury commissioner was asked to name some Negroes he put on the jury list. He couldn't even do it as familiarity with Negroes was so limited.
Potter Stewart: It's an ideal world, he wouldn't be able to do it, would he? He should know both --
Constance Baker Motley: Well, he should have some system whereby all qualified persons I would think are placed on the jury roll as the statute here required.
Potter Stewart: But he should be (Inaudible).
Constance Baker Motley: Well yes. He shouldn't have --
Potter Stewart: He should know, I put so many Negroes on.
Constance Baker Motley: Well he should be able to name some. There are large numbers of Negroes as he claimed that had been put on here, he ought to be able to call a few not that he could name every single one.
Arthur J. Goldberg: But what -- what you mean is he should follow the law in --
Constance Baker Motley: That's right. What he should do is --
Hugo L. Black: -- there is trial below and that run in the trial with (Inaudible) went direct to the Negroes and put them on the list of liberty.
Constance Baker Motley: Yes, that's right. I'm not saying he should go out and say, “Well, I've got six Negroes I'm going to put them in the box.”
Hugo L. Black: But he started a pretty tough job there.
Constance Baker Motley: Pardon me?
Hugo L. Black: Not and (Inaudible). Well he had -- they elect and many left where it is likely to grow at the same time. You must have somebody on there show the county how it is going either, so he's really got to precept (Inaudible) but --
Constance Baker Motley: Well I think the best way that -- to get around that is to have an impartial method whereby you select a large number of qualified persons. They have no systematic method for getting the names and that would set a couple --
Potter Stewart: But it -- you suggest that it would be appropriate to -- to go to all Negro organizations to -- to (Inaudible).
Constance Baker Motley: Well if that's the way or method of getting it, if that's the method, it's to get names from organizations only then I say they should go to Negro and White organizations if this is your method.
Potter Stewart: I see.
Constance Baker Motley: But they didn't have that method particularly, they sometimes went to the jury to the telephone booth, sometimes in the city directory and so forth. They failed to have any system for getting these names and that led them into trouble and it might --
Hugo L. Black: (Voice overlap) just took some out of each page. Is that in demand --
Constance Baker Motley: No, whatever method they used if they used it as the method and that method was used on Negroes and Whites alike, of course that would be all right.
Hugo L. Black: But you explain then that the Negroes didn't have a cell phone or --
Constance Baker Motley: Well if that were a fact that they knew, that happened to be the fact in that community. That there was, if they knew this and this was a matter of which they used to get what it sounds like. I believe my time is over.