Warren E. Burger: We’ll hear arguments next in number 71-5078, Peters against Kiff. Mr. Garland, you may proceed whenever you’re ready?
Edward T. M. Garland: Mr. Chief Justice, and may it please the Court. The case before you comes on a simple record and that it comes simply predicated upon the filing of the federal habeas corpus petition and there was no hearing, and then it was dismissed by the Court. An appeal was taken to the Fifth Circuit stating denial of equal protection of the law and due process of law as it related to the claims of the petitioner. Those same claims where in the petition for habeas corpus and they related to the systematic exclusion of blacks from the grand jury and the petit jury. All of which where taken from the same list of the grand jurors and the petit jurors. That claim was urged in the Circuit Court and was urged both on the basis of equal protection and due process in violation of Fourteenth Amendment. It is from the denial in Fifth Circuit Court.
Speaker: Did you present the both grounds for the Court of Appeals?
Edward T. M. Garland: Yes, Sir.
Speaker: I see, they are both that you are petition for habeas corpus?
Edward T. M. Garland: Yes, Sir.
Speaker: And you presented both arguments to the Court of Appeals?
Edward T. M. Garland: Both equal protection and due process.
Speaker: And they responded to just one?
Edward T. M. Garland: No Sir, they did not. They dealt with both the language said petitioner claims a violation of equal protection and due process was the language of the Court’s decision, and then it went on to discuss the question of waiver, and then finally said that there was no denial of equal protection but it acknowledge that we have raised both issues in the prefatory paragraphs and the first paragraphs of the appendix.
Speaker: This is the most recent opinion of the Court of Appeals?
Edward T. M. Garland: Yes, Your Honor.
Speaker: Is that the opinion at page 20 of the record though? Or whether they dealt with it or not expressly, you presented to them?
Edward T. M. Garland: Yes, we did. And I believe, it is in the opinion, Your Honor that we allege –-
Speaker: You did present the issue? Yes, we did and it was in the brief that accompanied the petition in the District Court, as well as the briefs in the Circuit Court and by the counsel of this, they would not stated adequately in our question in the petition for certiorari, but we feel both concepts before the Court since it was a matter of the law that was --
Edward T. M. Garland: The first question in your petition was simply either said stand? That’s correct.
Speaker: I have assumed what you are saying is that you argued standing from to stands, from two to that point?
Edward T. M. Garland: That is correct. Your Honor, we feel that it is before this Court for consideration based on the record in the case. As to the question that we did not mentioned, the petit jury in the –-
Speaker: Tell me more precisely what your due process ground is, is it historic fairness or is it Sixth Amendment as incorporated in the Fourteenth?
Edward T. M. Garland: It’s not -- I would not say it was exactly historic background of it. It is the Sixth Amendment as incorporated by the Fourteenth the concept of Duncan, but it is also that that is a fundamental concept in the administration of justice in this country. And that basically, the due process therefore requires.
Speaker: Are you saying that concept of a jury necessarily includes the –-
Edward T. M. Garland: Yes, sir.
Speaker: Consider that.
Edward T. M. Garland: Yes, sir, we feel that based upon the present determination of what a jury is and what it amounts to under the law in the United States, and in Georgia that it necessarily comprises the concept of representative basis, the democratic concept of the jury.
Speaker: Well, tell me how they -- tell me how a white man is denied equal protection laws by exclusion of Negro?
Edward T. M. Garland: Well, he is denied equal protection to the extent that there are different juries that we’re judging so that his case is affected by it. To that extent now exactly what the perimeters of that are, it is hard to say. And it maybe that there is –-
Speaker: Oh, I know. But that does not distinguish him from anybody else?
Edward T. M. Garland: Well, it may give him a different quality of justice.
Speaker: Are you saying that a Negro would have a -- would have the right to have a Negro included on the jury and have and be closer to a fair cross section with a white man on trial?
Edward T. M. Garland: Yes.
Speaker: Is that your argument?
Edward T. M. Garland: Yes, and the effect of that of course is that a black could very well under the same indictment that a white return by the same grand jury. Might well file his attack upon the composition of the grand jury and if it were overrule, he’d have the chance to get an acquittal, but if he did not, he could appeal on that basis assuming the Trial Court aired where as the white man could not do that. Now, somehow, that presents an unequal system.
Speaker: Well, I suppose like it sounds like you are arguing at least partly that everyone is entitled to a jury with a fair cross-section of --
Edward T. M. Garland: That is of course –-
Speaker: He denies anybody who had been discriminated?
Edward T. M. Garland: That is the essence of the argument and to great extent the extent of the argument.
Warren E. Burger: What is the spread between Presbyterians, Baptists, Methodists, Lutherans and other religious groups on these juries?
Edward T. M. Garland: I am uninformed upon any statistics in our state but based on experience and outside the record, I would say that we have representative cross-section of the various religious groups on our juries.
Warren E. Burger: Well, if you did not, would you be making the same claim? Suppose Methodists or Baptists turned out to be disproportionately represented, would you say that denial of this perfectly balanced jury?
Edward T. M. Garland: I would say in theory yes. For the purposes of this case, the Court would not have to go that far. And of course, you would first have to reach the question of whether they where identifiable class and whether or not that left -- I do not think you can go into the question of the extent of a particular prejudice. I would say yes if though, if there was identifiable segment of the community and those where excluded that the concept of the fundamental concept of the jury would require that.
Warren E. Burger: In Georgia, do they record on the jury wills or roles the religious affiliation of persons who might be called?
Edward T. M. Garland: No, but it do not. Now, they do send -- you know, you cannot get that information in the clerk’s office. It is not available to counsel and that perhaps at the time of the compilation of the voter registration list from which our juries are now selected. There could be some information on it, but I am not familiar with it, Your Honor.
Speaker: (Inaudible)require jury trial in criminal cases?
Edward T. M. Garland: It provides for jury trial in criminal cases Your Honor and of course the defendant may weight it in all criminal cases both misdemeanor and felony. In considering this issue of course, I think the Court recognizes that the black man acknowledge that he can complain, and the State seems to rely on some concept of prejudice as needing to be shown. It is the position of the petitioner that in fact there is prejudice to the petitioner, and that that prejudice comes from the essence of the requirement of the jury. What the jury means. I think this Court has talked about the value of the cross-section in Duncan versus Louisiana and has talked about it in Williams versus Florida, and I think there, the fact that there must be between the Government and the defendant, the voice of the people has been recognized. I submit to you that one of the consideration should be that is the voice of all of the people. Now, how there is prejudice is a more speculative matter? It is speculative in that you have to analyze what a jury trial in fact amounts to and how the minds of respective jurors worked but I would suggest to the Court that in fact there is prejudice when the broad base of the jury is destroyed in this respect. The jury stands as the barrier against the various vices that it can occur in the jury trial. Now, those may be improper acts of conduct by a prosecutor, hopefully not but improper acts of by statute -- by a judge, or improper acts by a juror, a particular juror such as someone attempting to influence the jury. In addition to those factors that the jury stands as a buffer between there’s the question of the nature of the crime and how that particular crime affects a particular jury. All the standing of the defendant, his particular status in reference to the community that it is about to try, or the status of the victim, or the status of the witnesses. The concept that I submit to you that the defendant in fact is prejudiced is that as to those possible violations and those possible acts that depart from what we say is the right to a fair jury that the broader the base, the more likely who there is that they will not be the influence of any of those things to such an extent is to deny the fairness of trial. So, I think the very concept of what the provision for trial by jury means is that we try to strive toward the system that will get us the fairest possible result. So, we say that --
Warren E. Burger: Fairest possible result or the fairest possible jury?
Edward T. M. Garland: Well, I would say fairest jury, and the result be in that you if you have a fair jury, that is the result you see. That that is the closest you can come to justice. Now, we are not talking about the standpoint of what one side of the other wants in the jury, Your Honor. But as to those things, the broad base amount to insurance in reference to the ability of the jury to withstand any number of unfair prejudice issue. So as to that very basis that I submit to you that the concept that seems to have been the basis of the opinion below that there was no prejudice to this man is it not or to a white person complaining the exclusion of blacks is an error that there in fact is a prejudice. And of course, in speaking of the language that is been used by the Court’s, there is a narrowing of attitudes, some of these distinct flavor of the jury is lost, and you can also consider of course that the whole is different from the parts.
Thurgood Marshall: Mr. Garland, how broad does a jury have to be?
Edward T. M. Garland: Well, as broad as the fabric of the society from which it is selected Your Honor. And hopefully, that would include all of the eligible citizens.
Thurgood Marshall: Well, how do you get that?
Edward T. M. Garland: Hopefully, we can get that by the Court sustaining our position here.
Thurgood Marshall: How can you get a real cross-section of jury when the prosecution is busily engaged in not getting a fair jury but a pro-prosecution jury and defense counsel is not interested in getting the fair jury but getting a pro-defendants jury, how do you get that big cross-section?
Edward T. M. Garland: Well, like you have -- we select the juries by the process of rejection, and if the prosecution is rejecting those -- if he doesn’t feel go his way and the defense is objecting the once that we looked most prosecution –-
Thurgood Marshall: How many different areas and different types, different groups do you need in the big jury box, the wheel?
Edward T. M. Garland: Well, I could not name a number of course. But, I think we need all of the identifiable groups in the community that exist and who are -- who meet the other qualifications and that those qualifications –-
Thurgood Marshall: What do mean other than all of the racial group?
Edward T. M. Garland: Well, the economic groups or any the religious groups if they find --
Thurgood Marshall: Oh, you do not object to that, did you? The only you objected the racial --
Edward T. M. Garland: That’s all the thing I am objecting to here I would object further. Yes, sir.
Thurgood Marshall: Yes, but your basis for that is that you have this broad base you need, and you only complain because no Negro was considered?
Edward T. M. Garland: That was the only one we knew in advance that in fact we could prove without difficulty because the jury list had been selected in the same method that it been declared to be invalid previously and we saw, we have never had a chance to present proof in this case. In the record, it is twice been filed. It has never been any evidentiary hearing. So there’s no sense that -- from my standpoint, no sense going carrying a greater burden under the allegations and we need it. It was rather clear that there was a disparity that previous jury list selected by the same process who was 14% black, 86% white and the percentages were substantially different.
Thurgood Marshall: Well, your position is you are not arguing so much about who should be in there but you want to be sure, nobody is kept out, is that your position?
Edward T. M. Garland: That is correct Your Honor. And I submit that –-
Thurgood Marshall: That no discernable group is kept out, that’s your position.
Edward T. M. Garland: That is correct. And I submit that the practical effects of the trial of ordinary criminal cases, if analyze and if there were statistics will illustrate that the variety of circumstances where it would be logical for counsel on one side or the other to see the implication of a white man being damaged by the absence of blacks in rather clear terms rather than the terms that did I have expressed here as it relates to the fundamental protections. But it is common that a white defendant may rely upon black witnesses, or it is common that he may have close identification by many means with a black, but that should not be the standard. If it is, we get into an interminable question of when does prejudice exist. Where do you find this prejudice and how do you determine? Then that will open up a scope for litigation that is on ending.
Speaker: Mr. Garland?
Edward T. M. Garland: Yes, Your Honor?
Speaker: It is of course well settled as I am sure you will concede that there’s nothing in the constitution that requires even in a case where Negro defendant is on trial in the state court. There’s nothing in the constitution that requires that even the grand or the petit jury have honored any Negroes, that’s correct, isn’t it?
Edward T. M. Garland: Yes, Your Honor.
Speaker: The only constitution requirement is that a non discriminatory system of jury selection, you would agree with that?
Edward T. M. Garland: And that it be a representative cross-section.
Speaker: The system? Not with any particular jury representing the cross-section?
Edward T. M. Garland: Right, the system that the jury be drawn from that representative cross-section.
Speaker: That the system be one designed to get a representative cross-section? Would you agree with that?
Edward T. M. Garland: Yes.
Speaker: And it is been explicitly held that there is no requirement even as I say in a case of a negro defendant that if there any Negroes at all on his jury, you would agree with that one?
Edward T. M. Garland: Yes, I will.
Speaker: And yet, a defendant has been allowed to attack a system even in the light of those holdings and wouldn’t it then be possible to argue your case in a quite and different way from the way you have argued that date and that is on these lines that this is one of the very few cases perhaps, one of very few situation where this Court going way back Strauder against West Virginian back in 1879 in those early cases under the Fourteenth Amendment. This is one of the few cases where a Court has allowed somebody who cannot actually show prejudice in his case to represent the rights of other people, i.e. Negroes in the community to serve on the jury. And that right, this was established way back in the 19th Century and was reaffirmed as recently as year or two ago in the Carter Case in this Court and the companion case in which we allowed Negroes themselves to sue, to serve on a jury, not that your client was denied equal protection. Not that your client was denied due process but you are representing -- your clients representing the rights of Negroes in the community for an opportunity for citizen service on grand and petit jury. Couldn’t be possible to argue your case along those lines?
Edward T. M. Garland: It is certainly would be possible for this Court to take that position and to add that to the argument which we make. And that as that was pointed out by the amicus in this case, I think this Court can decide the decision in our favor without having to do that and declare that. I think the Court should declare that.
Speaker: But the point is, the Court could if there’s any merit in that position, if there is a merit time position could decide the case on your favor without any planning of prejudice to your client whatsoever.
Edward T. M. Garland: Certainly could Your Honor and I think the Court should do it on both basis and the basis point out the amicus certainly a good one to do at all. However, I think the Court can also say that it would stand either way that we find in fact when you deny the cross-section, there is a prejudice. However, you don’t have to find in the prejudice because he has the right to enforce a fair system.
Warren E. Burger: You did not bring this action with a class action however, did you?
Edward T. M. Garland: No, I did not, one individual client. I think that -- I wish to mention that the case of Fay versus New York is not against the petition of the position that we assert here. In that case, there was a failure of proof on the allegations that were made by the petitioner. That case also was decided before Duncan versus Louisiana and perhaps the Court would have viewed the problem a little differently at that stage, and the Court in Fay did not reach the issue of the requirement of identity in that case. So, we submit that Fay is not against us and of course would call the Court’s attention to the logic and language of Justice Murphy in dissent in that case.
Speaker: Mr. Garland, you argue in your brief and you mentioned that that set of your argument here that retroactivity is an important point in this case. I wish you would state for my benefit to what extent your case depends on retroactivity?
Edward T. M. Garland: I don’t believe my case depends -- the petitioner’s claim depends on retroactive application? I do think that retroactive application is very much needed in reference to a matter of this nature to avoid the type of process that this particular petitioner has gone through in the Courts of raising the issuea going up, coming back, going back in.
Speaker: If this is not a class action and if your own client’s rights do not depend on retroactivity, why do you press it?
Edward T. M. Garland: So that we can have a simple decision that is workable in our state courts. So we won’t go through the process of man waiting in jail while we go to our state courts to determine the question of retroactivity, and then go into Federal Court to again wait to find out what happened. I think that it will do -- it will relieve some of the burden on the federal system if there is a clear pronunciation and it is dealt with and I would see nothing to prohibit this Court from dealing with that issue.
Thurgood Marshall: It means every man in this county is released, every white man?
Edward T. M. Garland: Well, as a practical effect, most of those people and this is outside the record because I do not have the statistics. But since the jury was allegedly corrected in 1967 in March of that year, most of those people that would be affected by this would have already been released from the prison system.
Thurgood Marshall: But those that were still there would be released? That is what you want?
Edward T. M. Garland: Yes, that is correct.
Thurgood Marshall: But what about the Negroes?
Edward T. M. Garland: They would be release also.
Thurgood Marshall: How could they, in this case?
Edward T. M. Garland: If they haven’t asserted their rights, they would be released. They should have asserted their rights or someone should have asserted --
Thurgood Marshall: And why does was made retroactive one?
Edward T. M. Garland: I think the effect of it, it is in Georgia.
Thurgood Marshall: Was it made retroactive?
Edward T. M. Garland: It’s been applied retroactively in Georgia. Now, I do not know the answer to the question, but it has been applied retroactively. I ask the Court to consider in reference to this, the possibility that could occur if there are juries in the State of Georgia and other States that are invalidly composed and I would suggest to the Court that this type, discrimination does still in fact exist and does occur. I wish to give illustration outside the record. Shortly before coming here three weeks ago in a town some 60 miles south of Atlanta, the Superior Court Judge declared invalid the jury list upon an application by a black in a rape case. In response to that, the three white jury commissioners resigned in protest. Now, that issue had not been raised, have not been pursued in that Court until 1972. What the reason for that is, is that in your rural areas where -- if there is type of discrimination that carries over into the system, the lawyers generally are few, are engaged in a more local practice. They fight the evidentiary questions in the Court, but it is not as likely that the constitutional concepts are litigated or fought and it is brought out. So, the fact there will be a beneficial effect of this type of decision is illustrated by the fact that these prejudices can in fact occur and continue eventhough the system that was used in this particular case has been rejected.
Warren E. Burger: Thank you, Mr. Garland. Mrs. Beasley.
Dorothy T. Beasley: Mr. Chief Justice and may it please the Court. Peters is in the extraordinary position of asking that his conviction and his sentence be set aside and his indictment voided because he was favored by the jury selection system. And he does so as an act of thought after his second trial and appeal to Georgia Appellate Courts. He didn’t raise the complaint at all in the state courts. What happened actually is that the history of this whole case is a piggyback affair, if I may use that colloquialism. He wants to avoid his conviction which was head in 1966 by claiming the rights of Negroes without alleging any harm to him. As I said, he never complained of the jury composition in the state courts.
Byron R. White: Are you (Inaudible) delivered by that?
Dorothy T. Beasley: No, I am not because we did not take a course appeal from the decision of the Fifth Circuit that he did not have to exhaust.
Byron R. White: But it is against the Fay against New York would not permit raising it upon habeas corpus?
Dorothy T. Beasley: No, not all. Although while the positionings that we took in the District Court and that we thought should have been sustained was sustained in the District Court and then the Fifth Circuit ruled on the merits of the claim was that he should have exhausted his state remedies.
Byron R. White: Are you working that there has been exhaustion contrary to the (Inaudible)?
Dorothy T. Beasley: Yes, we certainly are but since we did not take a course appeal, I refer that more or less of the peripheral matter.
Byron R. White: But where to entitle to sustain the judges below on any grounds that you want to live it but it was rejected?
Dorothy T. Beasley: We think that there is a more fundamental question here and of course, we have brought to this Court as the respondent in a grand petition certiorari.
Byron R. White: Are you working as a whole the he did not exhaust state remedies or not?
Dorothy T. Beasley: No, sir. I don’t think that’s necessarily Mr. Justice White because I think, there is much more fundamental issues here which the Court can rule on and which was ruled on at that the District Court level and by the Fifth Circuit, and that is that there is no claim stated by the petitioner upon which relief can be granted because he doesn’t claim a federal constitutional right which is violated. He is claiming somebody else’s right.
Speaker: So, you accept the Court of Appeals decision that there was a exhaustion?
Dorothy T. Beasley: For the purposes of this appeal, that’s correct. Although, the reasons that they said, the exhaustion was not necessarily. We believe were wrong because we don’t think that he is foreclosed by the State Courts of Georgia.
Speaker: Doesn’t it have to be compliance with the habeas corpus statute though?
Dorothy T. Beasley: There indeed, there should be.
Speaker: Well, was there or wasn’t there?
Dorothy T. Beasley: We do not think that there was.
Speaker: Well then, are you urging that point here to sustain the judgment below or not?
Dorothy T. Beasley: No, sir, only an answer to your question. We don’t --
Speaker: But still there must be compliance with the statute?
Dorothy T. Beasley: That’s correct. But I think the answer that was given in going to the merit itself is what this Court can rule on so that the merit does not need to come up again.
Speaker: But if there is a -- whether the party is raising or not, I suppose we can notice a plain error?
Dorothy T. Beasley: Yes, indeed you could.
Speaker: You don’t mean to say you are abandoning the possible support of the judgment below by reason of --
Dorothy T. Beasley: Oh! Not at all because I think the very basic, the fact that they moved down to the question and so did the District Court, District Court held an answer to our motion to dismiss which was on three bases. The second one being that he had not exhausted and the third one being beyond that that he had no course of action, the District Court held in conformating with the position taken by the respondent that number one, he did not exhaust the state remedy but even if he had, there is not course of action. Taking the view that even if he had gone to the state courts, the result would have been the same because the alleged no violation of a federal constitutional right. So, it foreclosed the necessity of going back and forth to reach the same result when it could be reach straight in the District Court here without a hearing.
Speaker: The Court of Appeals rejected the second ground for dismissal.
Dorothy T. Beasley: That is correct.
Speaker: And so, there had been exhaustion and compliance with the statute --
Dorothy T. Beasley: Yes, Mr. Justice.
Speaker: That they would not require to do.
Dorothy T. Beasley: That’s correct. Right and --
Speaker: You are saying that’s wrong?
Dorothy T. Beasley: We are saying that’s wrong because of the reasons given that he was foreclosed from raising the issue in the Georgia courts, and that is incorrect as a matter of fact. But, that is neither here nor there when you get down to the course of action and as a matter of fact that very fact the he relied so heavily on the exhaustion as giving you and that’s where the standing issue came and as a matter of fact, he said he had standing because he had, didn’t have to exhaust. He had a justification for none exhausting so he had standing to come into court, and that is how that issue got in. Although of course, we never have challenge the standing to raise question. What we’re saying is that there is no constitution right in the first place not that you’re not the proper place to raise it. But I think the fact, the exhaustion question is important because it illustrates that he did not pursue the due process claim in the courts below, and this is the answer to a question that Mr. Justice White asked appellant’s counsel and I think it is very important to recognize that because this whole thing arose us an equal protection claim. The petitioner in his petition in the court -- in the District Court talked in terms of systematic exclusion and Fourteenth Amendment and equal protection and just briefly mentioned the words due process and we do not think that that raise as a due process argument. And he says, I do not have to go to the Georgia Supreme Court because they’ve already ruled that I can’t raise the systematic exclusion issue, and systematic exclusion has always been regarded as an equal protection concept. This Court said so and why this? And in the case is preceding it. It is in the terms of equal protection concept that we looked at the systematic exclusion allegation. And by him, now coming at this point and say, well now, I want to pursue this idea of due process which I just mentioned the two words in the court below and in the District Court, I don't think he has raised that properly because he didn’t argue it in the court below and that’s exactly what he used as the basis for not going through the Georgia’s State Courts. So, he indicates to me that he did not intent to raise a due process argument because he there states, he has a new right which is never been recognized before which is a right to a representative cross-section of the community period. He eliminates the part that makes it a equal protection claim which is a right to a representative cross-section of the community from which members of his race where not excluded. And that’s the concept -- that's the context in which that phrase has been used in all the cases that I have been able to find since Strauder. As a matter of fact, I think that the concept arose in the Smith case in 1900 or rather 1940.
Thurgood Marshall: Mrs. Beasley, what he says that one that he is entitled to a jury from which no discernible group is systematically excluded?
Dorothy T. Beasley: But he doesn't tie that in at all.
Thurgood Marshall: Do you think he is entitled to that?
Dorothy T. Beasley: If it affects the fairness of his trial.
Thurgood Marshall: Well, you don’t think as a general principle that he has a right to a jury from which no discernible group is systematically excluded?
Dorothy T. Beasley: As an abstract principle, I think that is correct. But I think for him to assert that and say that his trial should be avoided --
Thurgood Marshall: Well, would it be alright if they excluded all wage earners?
Dorothy T. Beasley: It may very well be so, if he didn’t affect his case.
Thurgood Marshall: Would that be alright? That would be alright?
Dorothy T. Beasley: It would not be under the statutory scheme. Nor would it be correct as a system the constitutional scheme. I am talking about the constitution scheme. Mr. Justice Marshall that would not be correct in terms of constitutional requirement.
Thurgood Marshall: That’s what I should think.
Dorothy T. Beasley: But it would not affect him.
Potter Stewart: He’d have no standing if all wage earners where excluded systematically. If he were a president of the bank, he would or even the owner of the bank and without a wage just a capitalist, he would have no standing, that is your point, isn’t it?
Dorothy T. Beasley: Yes, sir. Yes, Mr. Justice Stewart, it would be.
Potter Stewart: Even though it would be an abstractly unconstitutional [Voice overlap]
Dorothy T. Beasley: Which gets to, I think to the point that you were making in your questioning as the appellant’s counsel, petitioner’s counsel that he could not be representing the interest of anybody else. In the posture of this case because this is a habeas corpus case in which he is saying my conviction and my indictment are bad and I am looking for relief to myself because I can have an impartial jury. And he specifically said here that that’s what he is relying on as the Sixth Amendment right forwarding to the due process course.
Potter Stewart: It really is a standing case, isn’t it? That’s what it comes down to, is that right?
Dorothy T. Beasley: No, I do not think so. I think it is much more fundamental than that. If it were a standing case, then I think we might be in position to say that the right that belongs to somebody, but he is not the right person to come forward and --
Potter Stewart: The right, the right does belong to somebody, doesn’t it? Doesn’t that what the --
Dorothy T. Beasley: The right which he is talking about here which is the right not to have Negroes excluded.
Potter Stewart: That’s right and that belongs to somebody and that’s what the Carter case and the Turner case of two terms ago --
Dorothy T. Beasley: Right.
Potter Stewart: -- absolutely established, isn’t that correct?
Dorothy T. Beasley: Yes, sir. Yes, Mr. Justice Stewart and it belongs to those who would be deprived of a right thereby, or who would be discriminated against thereby. The right to serve on juries.
Potter Stewart: That’s correct, that’s Turner.
Thurgood Marshall: So, that is --
Potter Stewart: --And that’s also Carter?
Dorothy T. Beasley: That’s also Carter. But that --
Thurgood Marshall: So, that if two people, a black man and a Negro and a white man were both charge with robbery of the same robbery and they are tried by the same jury, the Negroes got a good point that the white man had.
Potter Stewart: Right.
Dorothy T. Beasley: That’s right! Because we presumed --
Thurgood Marshall: Why?
Dorothy T. Beasley: We have presumed that there is prejudice against the black man if member of his race are excluded from the jury selection system, and that he is thereby discriminating against --
Thurgood Marshall: And is that therefore a bad jury?
Dorothy T. Beasley: As to him?
Thurgood Marshall: No. Is that therefore --
Dorothy T. Beasley: It is not a void jury.
Speaker: Well he is the only one who can raise the point.
Dorothy T. Beasley: But he is the only one that can raise the point because the constitutional claims --
Thurgood Marshall: Unfortunately, I am sure you can’t say there is such a case.
Dorothy T. Beasley: No, sir.
Thurgood Marshall: Well, Mrs. Beasley, let’s assume that the defendant here was a Negro and he raised only the due process by as I am not claiming a denial of equal protection at all, I am pointing strictly six of them with due process, namely I am entitled to be tried by jury representative for the community? He says I do not want any decision about equal protection, I think that I just don’t believe in that equal protection rationale. And I take it a while ago you said that you did not disagree with that fundamental constitutional argument about the jury?
Dorothy T. Beasley: I don’t.
Thurgood Marshall: Now, at that point, would you sustain his claim there on strictly due process, Sixth Amendment?
Dorothy T. Beasley: I think I would because you get so close, and I think this Court has said so and at least one or two cases that equal protection knows what due process when you taught them here.
Speaker: (Inaudible)
Dorothy T. Beasley: All right.
Speaker: And he argued straight Fourteenth Amendment Due Process and incorporation of the Sixth Amendment as binding on that States and he says the concept of the jury requires that no substantial group in the community be systematically excluded? Or I do not have the kind of a jury I am entitled to?
Dorothy T. Beasley: I think that he would indeed be sustained for this reason. If he is claiming due process has been denied to him, it means he has suffered some harm, he has not had a fair trial as the concept, and he --
Speaker: But he says I cannot really say, I cannot show any specific prejudice in my case, but I am entitled to be tried by jury that is fairly representative of the conscious that served it and he cites Witherspoon and a few other cases, and Ballard and he would sustain that point on strictly due process ground, fully aside from equal protection?
Dorothy T. Beasley: If what he was saying was that he was denied a fair trial, that he was denied an impartial jury, because Negroes where systematically excluded, people of his own race were systematically excluded, then yes, he would have to sustain it because it did not have an impartial jury. We presumed the prejudice in those cases.
Speaker: You’re saying that the cross-section requirement for a jury must be tied with the possibility of partiality or prejudice?
Dorothy T. Beasley: Yes, either it has to be something that we have presumed which we have done and I do not want to belabor the point presumes but we presumed that in the case of exclusion of race.
Speaker: I thought that the left -- whatever the case in our decision in Fay versus New York is no showing of prejudice, actual prejudice there? This was a case of the blue ribbon jury, do you remember?
Dorothy T. Beasley: Yes, sir.
Speaker: Our Courts’ decided five to four. I dissented but the Court decided five to four that that was a properly selected jury. And the argument against it was not that this man was then he spoke that if you take a group of the upper class and put them on the juries and deal with property offenses, you’re up to get a prejudice jury against the defendants.
Dorothy T. Beasley: But there again, you’re talking about harm and you’re talking about prejudice which this man here does not claim. As a matter of fact, if you go --
Dorothy T. Beasley: We don’t know.
Speaker: We don’t know, I mean, if whites, maybe some whites would like to have blacks on it, they’d be more sympathetic in light of the nature of the charge made against him. We don’t know. This is a highly speculative.
Dorothy T. Beasley: Oh, yes indeed. But and if he claims some affinity or some identity with those who were excluded or for some reason, things that the exclusion of those are going to affect his case, then he would be in the position to claim it. But to just take the concept out of the air and say that --
Speaker: Stayed out the constitution? It’s a definition of a jury trial. What is a jury trial? This was the issue that we face I think in Fay v. New York and we unfortunately, adopted your point of view I think.
Dorothy T. Beasley: But I would ask that that position of course being maintained again in this case and the Court I think you mentioned Mr. Justice Douglas, Ballard and of course those cases are in opposite because those are on the basis of the supervisory power of the Court and the Court does not look into whether there is prejudice or not because Congress has laid down the policy. I think that’s one of the points that was made in Fay that when you are talking about a constitutional right, that is a distinction as to when you are claiming a statutory violation. If it is a statutory violation, there’s no question as to whether there is harm or not that’s already been decided. Whereas, if you are talking about a lack of due process or equal protection, then you must show some harm. And I think one of the best analogies that I came across was the decision in Witherspoon and particularly since it was followed by the Bumper case of the same day. There was also a procedure which it was found, a part of criminal proceedings which were found to be in violation of the constitution. And that was the questioning that was used in death penalty cases or at least capital felony cases when the death penalty was a possibility, and it was found out question that made the jury prone towards giving a death penalty. But the Court did go so far as to say, therefore, we are going to eliminate his whole conviction because there was no connection between the questioning which had to do with the sentence and the conviction, the concept of guilt or innocence. So since he could not show any harm even though this was an unconstitutional questioning system that was being used, since it did not affect him, we’re not going to overturn his conviction, and that happens specifically in the Bumper case where although the questions where used, he had got a life imprisonment. So it didn’t matter to him. It didn’t affect him those improper unconstitutional, lack of due process kind of questions because it did not affect him since he wasn’t, it didn’t ultimately get it.
Speaker: But I supposed we thought it logically, if you decide that jury can mean anything that a local prosecutor in a local court decides it should mean?
Dorothy T. Beasley: Not at all. I think, he is certainly is entitled to a fair trial.
Speaker: That now, then it comes out of prejudice in a particular case, but I thought we have definition of constitution term what the jury trial mean? It is like a speech. What is pressed, does that include the obscenity? What is a criminal prosecution that Sixth Amendment, does it include arraignment? That many things of that kind.
Dorothy T. Beasley: Yes, I think that is --
Speaker: Where you don’t have a showing of prejudice in a particular case but the scope of the designing (Inaudible).
Dorothy T. Beasley: But what he is claiming here and it was indicated not only in the brief below, but also on oral argument and he is claiming that he was denied due process because of the Sixth Amendment right. Sixth Amendment right talks about an impartial jury and he doesn’t say he had an impartial jury. Moreover, if you follow the theory that there is presumed prejudice if Negroes are excluded, the prejudice going against a Negro, then there must be on a conversed favor towards the white man, if Negroes are excluded. So, here he is in a position saying, I was denied due process, but I really wasn’t denied an impartial jury. I was given a favored jury in my circumstances. He doesn’t show anything that would affect the impartiality of his own jury. And again, the question I would like to point out that was raised on the petition to certiorari, that only with the grand jury whereas the brief expand it to include the petit jury and I thought that the grant of the petition limited to the grand jury which request mostly even more. I think it would because a grand jury may not have even been aware of his color whereas the trial jury might. So the nature of what a grand jury’s duties are, really have nothing to do with what the nature duties on the trial jury and all they do is refer the charge. And in this particular case, in fact in this case you know, he never complain --
Speaker: On that basis, that all of the Court dealing with the grand jury?
Dorothy T. Beasley: No, I think not because again, we say that in order to reach or to have an impartial jury and to have a fair jury system in selection, we must not exclude Negroes in order so that Negroes themselves will not be discriminated against. But I think he has gone too far in saying that we will presume a prejudice here. He has not suggested where it arise from I would suggest that there is no harm in this case.
Speaker: Have you -- you probably have read Strauder against West Virginia very recently, don’t you?
Dorothy T. Beasley: Yes.
Potter Stewart: In Justice Strong’s opinion, wouldn’t you agree that at least the very first few pages of the opinion of Justice Strong in that case emphasize this was removal case as we both agree. Emphasize the right of Negro citizens to serve on juries, not the right of Strauder to be tried by a representative jury, and that opinion implied doesn’t it that Strauder is in the position to assert the right of Negro citizens to serve on jury, a right that was denied then by the law West Virginia?
Dorothy T. Beasley: But that’s not the right that is being asserted here. The right that’s being asserted here is his own personal right. Peters’ own personal right as it affected him. He is saying that he was denied due process, not to be brought in the community who weren’t represented on the jury. So I do not think that it’s particularly --
Potter Stewart: Well, at least I thought he said that a trial by this jury violated due process as long as Equal Protection Clause.
Dorothy T. Beasley: That’s what he --
Potter Stewart: Trial of anybody by this jury. White or black or any other color because this jury was created by a system that has a system denied Negroes their rights to serve on jury. Those rights are first, perhaps are the first time where articulated in the Strauder case and most recently, they where in the Carter case and its companion case, isn’t that right?
Dorothy T. Beasley: Well, that may very well be in since that the system should be change. As a matter of fact, it was right after the White’s decision came down in 1967. And now the statute does, the Georgia statute does call for a representative cross-section.
Potter Stewart: Yes, but we’re talking about this person’s standing.
Dorothy T. Beasley: And I think he has none.
Potter Stewart: Well, doesn’t Strauder indicate that he does?
Dorothy T. Beasley: I think not. He doesn’t claim it here in the first place and I don’t think (Voice Overlap)
Potter Stewart: He claims of the neither equal protection or the due process?
Dorothy T. Beasley: In his trial?
Potter Stewart: In the trial.
Dorothy T. Beasley: Not in all the trials in the county.
Potter Stewart: Well, he is only understood his trial.
Dorothy T. Beasley: But the question is and I think this Court’s decisions with respect to jury discrimination show this neither the jury discrimination but other due process types of thing that it’s harm to him. [Voice overlap]
Potter Stewart: Well, don’t the Court’s decision --
Dorothy T. Beasley: It has been a personal right before --
Potter Stewart: Don’t the Court’s decisions which explicitly hold that nobody has a right to have people of his own race on his trial jury? Don’t’ those cases imply that what the person is complaining of is the right of citizens to serve on a jury under general system?
Dorothy T. Beasley: Which is somebody else’s right and he has no standing?
Potter Stewart: I mean if and I think you would agree, our cases have consistently held that no Negro person has any right to have any Negroes on his jury that tries him or the grand jury that indicts him, that’s correct, didn’t it?
Dorothy T. Beasley: Yes, indeed Mr. Justice Stewart.
Potter Stewart: Or doesn’t it follow up and then from that that he must be asserting some other right if he is allowed to attack a system as unfair eventhough he is not allowed to attack a particular jury, that is unfair, then mustn’t it follow that he is allowed to attack the system i.e. the system that prevents citizens from serving on a jury?
Dorothy T. Beasley: Yes, indeed. He is attacking the system and that is what he would have to do if he had raised it properly at the time and introduced this evidence to show that there was systematic exclusion, perhaps. But he doesn’t have a claim here because he doesn’t tie himself into a denial of any right that he has. The cross-section concept has always been in terms of the equal protection cases and used in that where somebody has been excluded and the person who has been tried to spent a member of that excluded group. And so it’s the harm flowing to him.
Potter Stewart: That wasn’t true in Carter or in Turner?
Dorothy T. Beasley: But those were the people who were excluded from serving on the juries.
Warren E. Burger: Isn’t it in the nature of the due process argument that it’s process, system, procedure which is being attacked?
Dorothy T. Beasley: Yes, indeed but I do not think and again, I will give you another analogy that merely showing that there has been something wrong in the system can be sufficient to overturn the conviction of the person who says he has been denied due process. He has been denied due process. The Court says that he has been deprived whether he has been deprived of his liberty without due process of law, not somebody else. The second analogy I would like to present other than the Witherspoon case would be the very recent case is following U.S. versus Jackson. And I point particularly to Brady where although the statute was declared to be unconstitutional in Jackson, in Brady, the Court said it didn’t matter in his case eventhough the death penalty and jury tie in under the kidnapping statute in Jackson was used and was involved in Brady’s case. Still, it didn’t affect his plea. And therefore, we are not going to overturn his plea because it didn’t -- the use of the statute in that case didn’t harm him. And I think that we have exactly the same situation here. I think it’s also important to recognize that in the cases that are cited by the appellant which have talked about an absolute right to a cross section of the community period without talking about exclusion of members of your own race that the rationale in those cases doesn’t answer the question why should you have this cross section of community period. And I think, that’s where they fall short. If we talked about whether there should be a cross section, the idea is to make sure that we have an impartial jury and that we have a fair criminal proceeding. Now, if we do have a fair criminal proceeding with respect to Peters, then again, there is no denial of due process. And it seems to me in the leading the cross-section cases that that really is a measuring device and not a subsentive light because he has a right to a cross section of the community, not to a proportion representation or not with trial by members solely of his race.
Warren E. Burger: We’ll resume right there after lunch.
Dorothy T. Beasley: Thank you.
Warren E. Burger: Mrs. Beasley, you have about four minutes. No, you have one minute left.
Dorothy T. Beasley: Thank you, Mr. Chief Justice. I wanted to address the question and discussion that we had with Mr. Justice Stewart with regard to the Strauder case. I think, there is vast distinction here because this arises under the Federal Habeas Corpus Act and under the theory of Federal Habeas Corpus or habeas corpus generally, a person would be challenging his own conviction and saying that he was denied his own constitutional rights by virtue of something that happened that his trial or afterwards whereas Strauder of course being the removal statute case involved something else entirely in its context. Moreover, Strauder too was Negro in that case and the opinion does talk to a great extent about prejudice that devolved to him which we don’t have in this case at all. He is not -- Peters is not a person aggrieved by what he claims was not proper in that sense.
Potter Stewart: Unless you take the position suggested by my brother Douglas that a constitutional definition of a jury is a jury selected under a system which does not discriminate and that every man, every criminal defendant has a due process right to be tried by a jury selected under such an none discriminatory system.
Dorothy T. Beasley: Yes, it would be then an abstract principle which has not been held for the application of constitutional rights to others in other context I think. And I think an answer to that I would quote from the Fay case which Mr. Justice Douglas mentioned in 1947. “The defendants have shown no intentional and purposeful exclusion of any class, and they have shown none that was prejudicial to them. They had had a fair trial and no reason appears why they should escape its results. To reverse the judgment free from intrinsic infirmity and perhaps to put in question other judgments based on verdicts that resulted from the same method of selecting juries reminds too much of burning the bond or to roast the pig.” And I think we have that same situation here. As in Fay so in Peters, the challenge to this judgment under the Due Process Clause must stand a fall on a showing that these defendants have had a trial so unfair as to amount to a taking of their liberty without due process of law. And I think on this record, we would find that he does not allege anything more than that he was a white person. He doesn’t allege any affinity or identification with those who are excluded. He is not a member of class. He doesn’t allege that he was a member of the class or was harmed, and therefore, I think that his judgment should not be overturned. Thank you.
Warren E. Burger: Thank you, Mrs. Beasley. Mr. Garland, you have about four minutes left.
Edward T. M. Garland: I wish to urge that this Court take the position and declare that one of the fundamental concepts of the trial by jury is the right of all citizens to a representative cross-section. And we take issue with the statement that this jury from which blacks where excluded, favored the petitioner. That is to assume that it had a bias of some sort and assuming, you can say that it was a white bias. We say all juries should be absent, white bias or other type of bias, and that that is the fundamental issue here. In commenting upon what has been the status of the law which to quote in conclusion from Justice Wisdom in Labat v. Bennett where he quoted from Shakespeare’s Measure for Measure and that is that “The law have not been dead, though it has been asleep.” We ask you to wake it up as it relates to the right of a representative cross-section. Thank you very much.
Warren E. Burger: Thank you, Mr. Garland. Thank you, Mrs. Beasley.