Earl Warren: Number 112, Amos Reece versus the State of Georgia. I understand that counsel for -- that the State of Georgia is not to be represented here today. Although, they have been notified to the fact and -- and notified of the desirability of their being here. So, Mr. Reece, you may -- you may proceed.
Daniel Duke: This is Daniel Duke appearing for the petition --
Earl Warren: Oh, I beg -- I beg your pardon.
Daniel Duke: -- petition of Amos Reece.
Earl Warren: I beg your pardon, Mr. Duke.
Daniel Duke: May it --
Earl Warren: Mr. Duke I knew that.
Daniel Duke: -- please the Court. First, I would like to state what I am not contending before I go into the facts, because I've heard many of these cases and they impinged upon the same general violations, and I think I might expedite it and also clarify some of the issues involved in this case if I state first what I am not contending in this appeal. The petitioner isn't contending that the State of Georgia doesn't have authority to regulate the mode of procedure by which a person was charged with the capital felony may be tried and indicted. We are not contending that this petitioner has a right arising under the Fourteenth Amendment to have members of the Negro -- Negro race proportionately represented on the grand jury list or on the grand jury that indicts here. We don't contend that he's entitled to have members of the Negro race on a particular trial jury which tried it. We do contend that under the Fourteenth Amendment, that the petitioner is protected against the discrimination against members, qualified members of his race in the selection of -- and the make up of the grand jury and petit jury list and in selection of grand jury, also in petit jurors. Both of the questions arise in this particular case. In the case before the Court, the questions presented are questions that have been before this Court on many occasions, and it's in the application of the facts to the general principles of law that I wish to address myself because there are some unique features to this case. This man has been tried twice under the same indictment. On the afternoon of October the 20th, 1953, a white female was ravished in Cobb County, Georgia. Later that afternoon, the petitioner here, Amos Reece, that's late in the afternoon of October the 20th, and these dates are important, because it -- it's around the dates and the application of the facts to the principles involved here that we claim that his rights have been denied to him. Late in the afternoon of October the 20th, 1953, he was arrested, and he was lodged in the common jail of Cobb County, Georgia. Now at that time, the grand jury which had been summoned in Cobb County, and had been impaneled and sworn on October the 12th, eight days prior to the commission of the offense. The grand jury had been adjourned on October the 19th, the day before the commission of this offense. The prisoner -- the -- the petitioner was arrested late on the afternoon of October the 20th. On the morning of October the 21st, while the petitioner was in jail, the judge in the Superior Court reassemble the grand jury by an order calling him to be back on the morning of October the 23rd. And in that order, the Court recited that certain persons were being held in the common jail and that the Solicitor General would present them for indictment. The name of Amos Reece, the petitioner, who was arrested the day before, was not among those others remained in the order and registered in the Clerk's office. The grand jury assembled two days after he had been incarcerated at the time when he did not have an attorney. On the 23rd of October, 1953, the petitioner was indicted for a capital felony. The next morning was Saturday, and on Saturday the 24th of October, two local attorneys were appointed to represent the petitioner. On October the 30th, 1953, the petitioner was arraigned in Court. Prior to pleadings and the merits of the indictment which had been returned on the 23rd, he filed among several motion, a motion to quash the indictment, but he did not file a motion to set aside and void to the near impaneled of petit jurors which were -- which were then being put upon him. Evidence was taken by the Court on October the 30th, 1953, as to discrimination and the composition of the grand jury which indicted him. The evidence showed that there was six names of Negro persons out of approximately 600 names in the grand jury box that one of those persons did not live in the county, therefore, he could not have been a juror. Three of the persons were 82 years old. Three of the persons were 62 years old, out of the six that appeared. The same six persons, names appeared in a -- the box of 2500 white persons whose names appeared in the petit jury list. So, at that point, the same objections could have been made as to the petit juror being put upon him at that trial, that was made pertaining to the grand jury which indicted him. He claimed in that petition through the attorneys who represented him and I'll state to the Court that I prepared the petition, the local attorneys who appointed did delete certain paragraphs from the petition. And if you read the petition, I laid the file at the second trial, I think the Court will recognize why those local attorneys deleted the certain paragraphs that I had inserted into the petition. It was purely a matter of protecting their local situation. But the Court heard the evidence. The evidence disclosed what I have just recited. There was other evidence that this Court might be interested in that could have been either for or in behalf of the motion or against the motion. But since we have no evidence of that kind, I'm not suggesting or going into it, even though the State in its brief has sought to introduce into the record, to the instrumentality of its brief, facts that I consider that should not be applicable at this stage of the proceedings. That's in the first case. The case, after the Court rejected the motion to quash the indictment, the case went to the Supreme Court of Georgia and appears in 210 Georgia at page 578. Headnote 1 is the part of the ruling of the Supreme Court that I am seeking to bring now before this Court by review, but I'm very candidly stating that I -- I'm not sure whether you will consider reversing that headnote at this time or not. But it should be considered for the purpose of going into the merits of the plea filed by the State at his second trial on June 22nd, 1954. And, of course, I'm insisting that this Court should go in to the matter and reverse this now because the case was reversed by the Supreme Court of Georgia in 210 Georgia page 578, not due to the raising of the federal question challenging the legality of the grand jury that indicted this petitioner. It was reversed because of the judges' charge on the question of insanity, I handle that appeal, I didn't handle the trial. We didn't appeal from this ruling in the 210 Georgia, the Headnote 1. But in that ruling, the Supreme Court stated, “We will not consider the evidence introduced to sustain the plea to quash this indictment because that plea came too late. And whether he had counsel or not, it was incumbent upon this petitioner to make a plea challenging or to quash the indictment prior to the indictment. I could see that there are Georgia cases that hold that where one challenges a juror proper defect or where one challenges an indictment were returned by a grand jury because the officials who summon the grand jury had not complied with some regulatory means by which the grand jury was brought in and assembled, but not one of those cases deals with a -- the raising of a fundamental right arising under the Fourteenth Amendment, and that's significant. Because in the Crumb case and I'm going to give this Court some cases that I happen to have handled before the Supreme Court of Georgia and in the trial courts. The Crumb case, is a case that arose in Georgia on a misdemeanor where a wealthy landowner had broken the fences and run into the farm of a -- of a Negro man. And the Negro man had taken the pistol to remove him from his property after calling the sheriff and getting no help. And finally, the sheriff came and the Negro man was indicted on for five misdemeanor charges and lies him jail. And he had to escape a mob. And we went into this local county to defend him under armed guards, and I made the motion. He's had been on ban for eight months. And I made the motion prior to go in the trial. And I attacked the indictment and the petit jury list in one and the same proceeding. And the Supreme Court of Georgia, in a unanimous opinion, Justice Atkinson, who is now dead, ruled that the proceeding was illegal. Negroes had been excluded from this panel and if they constituted a sizeable -- well they -- they've constituted a sizeable majority of the Seventh Amendment county. Then the Cofield case from Troup County, and the Grimes case from Walton County cases, were the same identical plea made prior to going to trial on the indictment but made after the indictment. And where the man who have the accused had been in jail for weeks. And where the grand jury was summoned and impaneled and sworn after he had been incarcerated, they had all the opportunity in the world to know. In this case, the contention is the man was without counsel at the time of his indictment. That he had been in jail approximately 48 hours. That had he had counsel, the counsel should have relied upon the order of the Court reassembling an adjourned grand jury which had already been impaneled and sworn. And since they didn't name the prisoner, the petitioner, even had he been had the benefit of counsel. Counsel could have relied on it and said they -- they won't consider his case. Now, at the second trial, after the reversal, the motion was prepared which we sought to prove the method of discrimination. We set forth in detail that a scheme and device had been pursued by the officials of the county to prevent Negroes from being on the specific panels of trial jurors that was then being put upon him in June 22nd, 1954. That's the second trial. In addition to that, and in an effort to make it necessary for the officials in the local counties to comply with the spirit of the Constitution by having qualified Negro people participate in the Administration of Justice. We alleged three different propositions. One was that never had a judge of the Superior Court appointed one of six Negro -- I mean one of six jury commissioners from qualified members of the Negro race. Because there, we had the situation of an infinitesimal number of Negro peoples names being in the box were sought well, accidentally or by what it means and it taxes the credulity of any person to think, that on that of the six persons whose names appeared in the grand jury list and in the petit jury list, out of 2500 in the petit jury list, and 580 something in the grand jury list. Out of the six Negroes, one didn't live in the county and three way to two years of age and the testimony showed that they had high blood pressure and were hard of hearing. Those things just don't happen. So in order to get around that, said if you would appoint one or two Negro persons on the jury commission and these counties, in the rural counties where they constitute a sizeable minority or majority of the citizens, you will get a bona fide in compliance with the constitutional mandate, and Negro people will begin to participate in the administration of justice and until you do that, they will always erect some systems, sophisticated system of circumventing the spirit of the constitutional mandate. And I say that advisedly out of many years of experience as a public official and as one who takes three of these -- these type cases per year. That's all a man can stand for this type today. Now, when we filed that petition, charged in the petition, prior to go into trial at the second time when the new venire of petit jurors has been put upon us. We could have never, prior to that time, have challenged that petit jury, because that was the first time that it have been put on us. All the rules pertaining to when and the time element in challenging a -- an indictment returned by jury from which qualified members of the Negro race had been excluded because of their race and color, all of those rules could not be applicable to this type of situation. So, we had it spelled out there at some length and so the Court -- I mean, the State asked for an hours' adjournment. We had subpoenaed 53 witnesses. We had the tax receiver to show the yellow slips of paper. And we had the whole works there, and we were going into it. So they came back with a plea. They called it a demurrer. They called it res judicata, and they called it a waiver, all three. I argued it, we formed the Court that, if you consider that the matter of quashing the indictment cannot now be considered because of the ruling in 210 Georgia page 578 had not won because it came too late, certainly, that could not be applicable to our charges here that the petit jury, that petit jury that's now being put upon this man has had eliminated from a qualified members of the Negro race. He said, “Well, you went to trial last year and accepted the petit jury, therefore, you waived your right to challenge this petit jury that -- then they also replied that it was res judicata. The Supreme Court had passed on the matter. The Supreme Court said, “We won't look at the evidence in this case as to the indictment.” Now why, why they stated that? I don't know whether it was because the Court knew that they would reverse the case, that we'll leave us to go back to the Court, that in some way, there might be a president there, that without playing on a procedural matter, the right of a man to make this challenge. Well, I was confronted with that problem. Erroneously or correctly, I decided not to appeal the ruling made in the 210th Georgia, but to insert all of that plea at the second trial and bring it up as a part of the record if for no other purpose than to show what it happened, because that ruling clearly violated the right of this petitioner to the aid and benefit of counsel. If you can cut off, you can say to a -- a petitioner in one breath that you must file a technical plea, and that plea must be filed prior to the indictment. And then you tell him that you don't have any right to have a -- call a lawyer to do that for you. Then, if you have to follow the state procedure, if this Court must follow the state procedure in that respect, then this Court is taking away from itself the power to reexamine and to determine whether or not, as a matter of fact, ones rights arising under the Fourteenth Amendment have been deprived. I go further at the -- upon the presentation of the challenge to the array of the petit jury at the second trial, the Court, after hearing the argument, we setup in the second one that this man was in jail without counsel, that he was of low mentality and there's some evidence here to show that he had a very low mentality. He didn't sustain his plea of insanity but he -- he stated a plea of semi or to be semi-moron. We took the position that the Court must permit us to put in evidence to show the scheme and device by which persons had been Negro -- qualified members of the Negro race had been eliminated from the petit jury list of the county. Now, the jury list of the County of Cobb consisted of 2500 names of person in the petit jury list. Another box contained 25% of those names in the grand jury list. The six Negro names that appeared, appeared in both list, both the grand jury list and the petit jury list, you've already heard the other facts as to the age of it. Now, the Court sustained the demurrer. The record doesn't show what happened but the Court just said they sustained demurrer and dismissed the plea. They didn't state whether it was because of the insufficiency of the pleading, the -- the order at which you have before you doesn't state that it was on the plea of res judicata. The order doesn't state that it was because they were saying we had waived our right, it just said we sustained and dismissed. Well, I had to take it there. So we have it here. So it had to be one of them. Whichever one it was, we contend that that ruling itself prevented us from making a record. That under the rulings of this Court, this Court would have to determine, whether or not, the plea was good in the first instance and while I haven't found any cases stating that this Court will be the judge as to whether it's res judicata or not, I think that there is a ruling in the Court that you can reinsert the name res judicata and it would be -- it would have the same effect. Because this Court, as stated in many cases, that this Court is the judge of the pleadings are right where they said all right, deprivation of a right arising under the Constitution of the United States. And that this Court will make an independent determination of the facts in spite of a state ruling own the matter of discrimination. So it's only illogical extension of that rule saying that this Court would have to also examine to see if there had been a waiver or to see if it was res judicata. Well, how could it -- a matter of stating, the Court ruling in 210 Georgia that regardless of the evidence brought by this petitioner to show discrimination against members, qualified members of the Negro race within from the grand jury which indicted him, regardless of the evidence, regardless of the old man on it, we won't consider it because it was brought too late, were brought after indictment and it makes no difference Mr. petitioner whether you had counsel or didn't have counsel. How could that be res judicata that a jury -- petit jury summoned a year after which to try the man at the second trial that ruling had adjudicated the fact of discrimination as to the petit jury. Or how could it be a waiver? So, we come down did we state enough and I will plea to show to get into Court to prove it there. If we did, then the Court committed error in -- in dismissing our plea, and he should be remanded for further trial. Now, the State doesn't seriously contend in its brief. The State doesn't contend in its brief that the Court was right. The State, the Supreme Court of Georgia, 211 Georgia page 339, hurdles the whole question. It wouldn't go into the question. We've just stated that we passed on this case and that plea. But they didn't -- in spite of the facts in the record, they characterized our plea at the second trial as the same plea we had made at the first one. And the record was before when filed a motion for a rehearing and I alleged it. They haven't said anything until this late hour to characterize it as to what it really was. Now, there was the reason that they didn't want me to go into the facts in that case, of course. And I think the reason is born out by something and I had hoped that the State would be here. I had hoped that the State of Georgia would -- would have counsel here to answer my reply brief, because in my reply brief, I take page by page, and cite where the State had misquoted the record to this Court. And I went further than that, I went over in person and I asked him. I said, “Don't you want to correct it?” Now, I filed a two-page supplement here which emphasizes everything that I had said here. It came too late for me to be able to put it in the reply brief so I filed it here for whatever consideration this Court wishes to give it. That this Court would turn to the states brief.
Earl Warren: Mr. Duke, I -- I suppose that if any of these six Negro people were-- were drawn on the grand jury panel, they would not be eligible for the -- for the petit jury, would they?
Daniel Duke: No, sir.
Earl Warren: And vice versa?
Daniel Duke: You could eliminate all -- just all of them by doing that.
Earl Warren: Yes.
Daniel Duke: Now, but the significant thing --
Earl Warren: Would you mind -- would you mind giving me the procedure by which they -- they draw these names, please, for the jury -- grand jury panel?
Daniel Duke: Some Georgia counties have a -- the grand jury suits for three months. I mean they-- they're eligible -- eligible to serve for three months.
Earl Warren: Yes.
Daniel Duke: They can be recalled, and the Court will enter upon the minutes that he's recalled of -- of any matters occur during the term of their service. In the rural counties, a grand jury is summoned in this manner. They have two boxes and it kept under locked. They put the tabs in of the names that have been made by six men, six jury commissions, appointed by the Superior Court judges. These jury commissioners usually rely on the Clerks as a matter of fact. However, they can get independent information. But it's a normal thing. The clerk of the Court will go and compile list of names from the tax digest of the county. In this particular county, and in nearly every county of the State and is embodied in statute and by a ruling of the Department of Revenue, and I see no actual objection to that. It sometimes facilitates a speed in handling matters. They have the Negro taxpayers all in a -- one or segregated from the white taxpayers by volume, and they would be on black paper and white taxpayers on white paper. They go and they are supposed to look at the taxpayers at -- at this particular time, who, with 21 years of age and older, that they thought, according to the statutory scheme were qualified to be jurors. As a rule, the 25% of the petit jurors must be in the grand jury box, and they usually comply with that. Periodically, two intervals I think the jury commissioners assembled and they reformed the list. And they maintained in a box, and also the names of the jurors are maintained in the Clerk -- Superior Courts Office and dig black books, alphabetical according to Militia Districts, for voting precincts in the county. All those books will indicate the white jurors and then they'll have a section for Negroes if they held them. Then those names are put in the petit jury box, it's locked. All of the names in this county, 2500, in the petit jury box, there might be 10 more, but that's a proximity number, 500 and something or 25% exceeded a little, 25% of those same names go into the grand jury box.
Earl Warren: They are in both boxes, are they?
Daniel Duke: Yes, sir.
Earl Warren: They're in both boxes.
Daniel Duke: Yes, sir.
Earl Warren: Yes.
Daniel Duke: So, the Court, when if a new term begins in the Court, and the grand jury served with the terms of the Court, the Court will call the Clerk and the deputy sheriff, they roll the boxes in, they usually shake them. And the Court turns his head and he reaches in and closed them, and the Clerk takes them and writes them on a name until they got a sufficient number. They always have more than they actually need to comprise the grand jury, because they recognized it when they impanel them and swear them that there will always be excuses made. That's what happened in this case. In 1952, as I stated, there was -- the name of six Negroes were put in the jury box. Out of -- at that time, the males who would've -- whose names appeared on the tax digest who could've been picked out 1780 Negro males who paid taxes. Now, the ratio by population would be greater in that county, but -- and -- and the ratio now would be high, because more of the Negroes are paying taxes. They have to build you a pharma plant there, and the Negroes wages have increased and they bought things and we're taxing more things now that we did then. We constantly -- taxing more of the little things so as the constant -- yes they're all the Negro people. Now, names appear on the tax digest. But, basically that is a malice by which we select grand jurors. Now, the petit jury boxes appeal in the same way except they don't serve itself.
Earl Warren: Now may I -- may I just interrupt a bit. I haven't got that quite clear in my mind.How many members on your grand jury?
Daniel Duke: 23.
Earl Warren: 23. Well, are the first 23 names pulled out in this box to become the grand jurors or does the judge retain any discretion in eliminating this or that for his own reasons?
Daniel Duke: Well, that's not quite clear. I think in some counties, as a matter of administrative practice, the judge says who am I, when they draw him out, if your name comes out, six, you call six, if you don't have a legal excuse, you're number six. He does that as a matter to be fair to himself. I've never been quite satisfied as to what happens in some of them but I am not prepared to say that they consciously eliminate, I wouldn't say. I don't have to go that far --
Earl Warren: Yes.
Daniel Duke: -- to sustain my position here and I certainly wouldn't do it.
Earl Warren: Yes. Well I --
Daniel Duke: If -- if I thought that happened, I would make the challenge then and I would claim it and try to put in evidence --
Earl Warren: Yes.
Daniel Duke: -- to show it did happen.
Earl Warren: Yes. Well I wasn't inferring that they were, but under the -- under the Louisiana practices --
Daniel Duke: We don't understand them.
Earl Warren: -- as I understood them, they drew 75, and then the judge had the right to select 12 from those 75. I wondered if you have any such practice.
Daniel Duke: We do and -- and I'm certain that that happens.
Earl Warren: You do have that practice?
Daniel Duke: We -- we don't have the same practice that they had in Louisiana, but they draw 36 names, usually. And 23 of those names comprise a grand jury for return.
Earl Warren: Yes.
Daniel Duke: Sometimes it'd be three months, subject to recall. I mean, during the three months interval, they may not serve over two days. Within the larger counties, it'd be two months and they serve twice a week and they -- they continue. But the various -- some discretion, but that's the practice.
Earl Warren: Yes.
Daniel Duke: But the challenge made here to the indictment, and this case embodies a lot more than just a challenge to this indictment or to quash the indictment, the main thing it brings this case here is the -- is the opinion in the 211th Georgia when they deprived him of the right to put in evidence of discrimination that is trial as to the petit jury.
Earl Warren: Yes.
Daniel Duke: I sought to go back to put in then incorporate in that also the same reason as to the grand jury. And my position is here, that they might, under the Rogers case from Alabama had stated that you've got two things here that they prolix it too much, we've done adjudicated that and might have a serious problem there. But they certainly couldn't say, “You can't challenge this particularly.” The near impaneled of petit jurors put upon you because you waived that right back there when you brought up the matter of the grand jury, where they didn't even challenge the petit jury. It might have been that the petit jury at that time that -- that the lawyers handling it and that's contrary to the reality of this situation, of course. But, it could have well been, that -- have they had many Negroes in the jury box that they had made or bona fide the attempt or there had been no discrimination whereas a year from then, they might concoct some system that it -- for the purpose of the trial, eliminate. Qualified Negroes whose names were in the box but who hadn't been drawn, who had been removed after being drawn. There are many reasons, as a matter of proof, and that's the reason that I'm here. But here's the insignificant thing in this case, the State in its brief in a footnote, and this a -- this is to my mind where a life is involved, and where a state itself, its law department, is before this Court. I would not recommend this type procedure in any type proceeding but it is -- it becomes magnified when it happens here. If you look at the State's brief at page 11 Footnote 8, I want to call your particular attention to the matter here that I encouraged him to come because I took the claims to go and get the facts. I say the record of the Court show, now there's no evidence in the record, you won't find any evidence except this in what I say and reply to it. I don't approve the method, but after they brought it into the record, and I asked them to correct it, then I have no alternative but to go and get the facts and to show this Court what the real facts were, and that's what I did. And I think that's one reason why, perhaps, they aren't here today, and I don't know this Court, after reading this, may want them up here to answer some of this. The record that the Court shows, this is what the State of Georgia stating, that since 1952, now mark this word, 1952, Negroes have frequently served on petit juries and several times on grand juries. In addition, several more were called for grand juror service but were excused on their own request. At one draw, during this year, that's 1955, now, and these things happened in 1953 and 1954, three Negroes served on a jury trying the case. Well now, of course, that's a -- well now what are the facts about that? Why did they use the year of 1952? As a matter of fact, in 1952, we have in the record what had happened. They had six names. One of them would -- didn't even live in the jurisdiction. Three of them waited two years of age and they were hard of hearing and had high blood pressure. And that was an infinitesimal number, conscious limitation. That was in 1953 when we put in the plea or when the attorneys put in the plea in October, 1953. That condition exists, so why do we go back and say 1952? Well, I'll let this Court draw its conclusions, but what are the facts? That decision was reversed. We sought to bring it up again, in addition to a test to the petit jury. On June the 22nd, 1954, is when I filed, in behalf of the petitioner, a long objection to that method of selected names where I stated that they should -- they had consciously eliminated members of the Negro race from the jury commission. 30 days thereafter, they called the jury commission back. That was in 1954 and they are not 1952, and no figures are given here. We had no way of anticipating in such thing, as this would be in the record, by brief even. So what happens? First of August, 1954, the jury commission was called back, what did they do when they were called back? They've put 57 Negroes name in the grand jury box -- I think that's correct I've got the copy of it here. The records maintained and they open it to the Clerk Superior Court of Cobb County, showed that the jury commission of Cobb County, Georgia were reassembled for the purpose of revising the jury list on August the 1st, 1954. It was June the 22nd when we made this wholesale attack when we had the witnesses there and they'd subpoenaed by duces tecum of the records into the Court, 39 days after the second trial for this petition. It was at a second trial that he made a motion challenging the array of the petit jury, put upon him. On August the 30th, the jury commission of the county certified a new and revised list to the grand jurors of Cobb County, the new list of jurors contained the name of 27 Negro citizens. Therefore, immediately after the petitioner made his charge, prior to going to trial on the indictment, the jury commission of the county reassembled and revised the list. Then they put 157 or 160 Negroes names in the petit jury box. Now, my contention is that that coming immediately after, this wholesale challenge proves that they were conscious of their conscious discrimination. And my contention is also that it was not quite the thing to do for the State in its brief to say since 1952, they had the date, why didn't they say since August, 1954, some days after we had made this challenge. Now, I wish, in my concluding remarks to say that they -- that I quote that this Court will pass upon the matter of the jury commission in this case because it's open on an abstract principle of law. This Court can state, if you can prove as a part of the pattern of discrimination and the selection of jurors that they discriminated even so far as selecting the jury commissioners, then we've got a price to go into and make them comply with the mandates and with the spirit of the Fourteenth Amendment. Because until we do that, we won't get much rectification for the wrong in rural counties in my section of the country.