Arnold v. North Carolina

PETITIONER:Arnold
RESPONDENT:North Carolina
LOCATION:New York Supreme Court Appellate Division, First Department

DOCKET NO.: 572
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 376 US 773 (1964)
ARGUED: Mar 26, 1964
DECIDED: Apr 06, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – March 26, 1964 in Arnold v. North Carolina

Earl Warren:

Number 572, Jesse James Arnold and George Dixon, Petitioners, versus North Carolina.

Mr. Turner.

J. Harvey Turner:

Mr. Chief Justice, Members of the Court.

I represent the defendant Arnold, having been appointed in the Trial Court below, Arnold who is a member of the Negro race.

The case he is here on certiorari because the North Carolina Supreme Court which affirmed a conviction of these two defendants for murder perpetrated in a robbery.

In due course, in the Trial Court, each defendant made timely motions to quash the indictment on the basis that member of their race had been systemically excluded from jury duty in the county.

These motions were overruled.

In the Supreme Court of North Carolina the Trail Court was sustained in that and it was held that we had failed to carry the burden of showing systematic exclusion.

In the Trial Court, we called two witnesses.

We called the county tax supervisor, Mr. Williams and he testified as to his records, tax abstracts and listings of full tax which were kept separately and as he said it would required to be kept separate as to White and member of the Negro race, required by law.

But under his figures as to his tax abstracts, approximately 39% of the population of Lenoir County is comprised of member of the Negro race.

We then turned to the clerk of the Superior Court, the Trial Court, the Court in which these defendants were tried and he said — he testified that he had been clerk of that Court for 24 years and during that time one member of the Negro race had served or I believe the word he used, has served, he was not serving at the time these two defendants petitioners were indicted and tried.

We think the question presented is — boils down to simple question as to whether or not we carried the burden of proof of showing systematic exclusion of member of the Negro race from jury duty in Lenoir County, and we think we have without any question.

And under numerous decisions of this Court, Eubanks and Hernandez case in particular, there are other cases, Hill against Texas and Smith against Texas.

In the Hill against Texas case were 50,000 white persons, 8,000 Negros, if they pooled tax in Dallas County.

In a period of 16 years no Negro had served on the Grand Jury of that county.

The Court held that the petitioner made out a prima facie case of systematic exclusion.

In Smith against Texas, petitioner showed 20% of the population was made up of Negros, 10% of the poll tax payers were Negros and from 1931 to 1938 there were 384 Grand Juries, out of which only five were Negros.

There were 3,000 to 6,000 Negros qualified for Grand Jury service in Harris County.

The Court says Chancellor Eisner alone could hardly have brought about the listing for Grand Jury service of so few Negros.

As I say the question is simple, we think we have carried the burden of proof and we introduced the evidence we did in support of our motion, we think the burden then shifted to the state.

The state introduced no evidence whatsoever to refute the evidence we had put in as to the composition of the people, tax rolls of Lenoir County.

Arthur J. Goldberg:

(Inaudible)

J. Harvey Turner:

I would say that would have no difference whatsoever sir.

We could have brought the box in, but as it is handled in our county, our Board of County commission’s the Governing Body, selects those people who are to serve on the jury, jury duty for up coming terms of Court.

And I might say I recall the particular time when this one Negro served on Grand Jury and that was approximately, it was about seven or eight years ago from that.

They just have not had it.

We — as the clerk testified usually for a term of Court we have about 35, possibly 40 jurors selected for a week’s term of Court.

And on numerous terms of Court we had no Negros whatsoever on the petit jury.

Sometimes we have one, two or three.

Arthur J. Goldberg:

(Inaudible)

J. Harvey Turner:

No sir, the boxers I think are in the custody of the Registrar of Deeds who is Secretary to the Board of County Commissioners.

We say that once we show that make up of the population of Lenoir County, the burden then shifted to the state to who there had been no systematic exclusion.

I would like to take —

(Inaudible)

J. Harvey Turner:

The way that’s done Your Honor is this.

At the January term in Lenoir County, a criminal term we draw from the list of jurors someone for that term of Court, none names.

Now those names are made up like this.

The Sheriff types up a list of the perspective jurors.

Then these lists, each little individual slip of paper with a name on it is torn off and put into a cigar box and then they have some little child come up and draw names out of the box.

Now, we do not know whether the Sheriff automatically eliminates the names of Negros, we don’t know how it is done.

The only thing is we know it is done, because this thing couldn’t happen by chance, not over the years and years with the population we have of Negros, it just wouldn’t work.

Now in this —

(Inaudible)

J. Harvey Turner:

No sir, we do not call him because if we had called the County Commissioners or if we had called the Sheriff we would have run into the same obstacle that they ran into the in the Eubanks case and I think also in the Hernandez case and maybe several other cases.

As in the Eubanks case, they brought in the Jury Commission, five of them as I recall and I think some are made up of Judges and say they interviewed, they discussed, and they selected these jurors and say they would try to be fair and impartial in it and that’s a far as they went.

But the Court in the case says, when a jury selection plan, whatever it is, operates in such as way as always to result in complete and long continued exclusion of any representative at all from a large group of Negros over any other racial group, indictments, and verdicts returned against him by juries thus selected cannot stand, and referring to what the Jury Selection Commission had to say, the Court said this.

True the Judges now serving on the local court testified generally that they had not discriminated against the Negros in choosing Grand Juries and had only tried to pick the best available, but the Court said if they were to hold — go along with that idea or that testimony it would be a vein and illusory requirement that they have equal representation.

We think the matter is clear.

We do not think it required a great deal of argument.

We think the burden shifts to the state.

The state did not meet its burden, we don’t think it could have met its burden if it had tried.

Byron R. White:

(Inaudible)

J. Harvey Turner:

One actually served on the Grand Jury in the past 24 —

Byron R. White:

(Inaudible)

J. Harvey Turner:

No sir.

The only way that could be done would be to take the little box that the Sheriff prepares.

Byron R. White:

(Inaudible)

J. Harvey Turner:

No sir that was —

Byron R. White:

(Inaudible)

J. Harvey Turner:

No sir that was the clerk of the Court and he did not control that, no sir.

Byron R. White:

(Inaudible)

J. Harvey Turner:

No sir.

Byron R. White:

(Inaudible)

J. Harvey Turner:

I might.

Byron R. White:

(Inaudible)

J. Harvey Turner:

I can — let me explain it this way.

Before the Judge excuses anybody, he excuses anybody for — to be excused from jury duty at least two terms of Court, January and August.

The names of the nine new Grand Jurors are drawn before anybody is exempt from jury duty for that time of Court.

Byron R. White:

(Inaudible)

J. Harvey Turner:

No sir I don’t think it actually in the record.

I think probably the statute may —

Byron R. White:

(Inaudible)

J. Harvey Turner:

I think probably the statue controls that.

The statues covering the selection of the Grand Jury in the county set out in our brief.

Earl Warren:

(Inaudible) in the middle of the term.

J. Harvey Turner:

Yes sir.

Earl Warren:

Middle of the year?

J. Harvey Turner:

Yes sir, we have a staggered — for continuity purposes nine coming on in August and nine coming on in January.

Yes sir.

(Inaudible)

J. Harvey Turner:

Well as I say the sheriff of the county; he comes in with a tight list of persons.

(Inaudible)

J. Harvey Turner:

He makes it up form the jury list of jurors selected for that term of court.

(Inaudible)

J. Harvey Turner:

The jury list comes from the Board of County Commissioners.

Earl Warren:

How many are on that list?

J. Harvey Turner:

Approximately 35, 36, it varies anywhere from 30 to 40.

Earl Warren:

How are they selected?

J. Harvey Turner:

They have two boxes.

Hugo L. Black:

Who has two boxes?

J. Harvey Turner:

They — each two years.

Hugo L. Black:

Who has two boxes?

J. Harvey Turner:

The County Commissioners.

Hugo L. Black:

County Commissioners?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

They have two boxes.

J. Harvey Turner:

Yes sir.

Hugo L. Black:

Of Grand Jurors, of prospective jurors.

J. Harvey Turner:

Prospective jurors, yes sir.

Hugo L. Black:

Why do they have two?

J. Harvey Turner:

I do not know sir.

Hugo L. Black:

Do they contain names of different colors or –?

J. Harvey Turner:

I do not know sir.

Hugo L. Black:

You don’t know whether they all were same?

J. Harvey Turner:

I do not know sir.

Hugo L. Black:

But the commissioners have them in two boxes?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

And who selects them and how do they select it, does the commissioner do it?

J. Harvey Turner:

The commissioners, it is handled through commissioners at their meetings at least three weeks prior to court.

Hugo L. Black:

Do they reach down themselves?

J. Harvey Turner:

No, I think they used a child to do it.

Hugo L. Black:

A child?

J. Harvey Turner:

I think a child does it, yes sir.

Hugo L. Black:

A child reaches down and gets the name of the jurors to serve for that week.

J. Harvey Turner:

Yes sir.

Hugo L. Black:

And they make up a list?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

And then that goes into the courtroom?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

And the first nine jurors selected are the ones who are selected for the Grand Jury?

J. Harvey Turner:

No sir.

To select the Grand Jury we use a — the sheriff takes — makes a list of the persons who have been subpoenaed for jury service.

Hugo L. Black:

That week?

J. Harvey Turner:

Yes sir.

He then takes that list and then makes little smaller strips of — what he does, he types the list on one page and then the cuts under each name, where each name appears a one small slip of paper, then each slip of paper is put in a cigar box and they have some child under ten years of age draw out a slip and they draw —

Hugo L. Black:

Is that done in the Commissioner’s room?

J. Harvey Turner:

No sir that is done in court sir.

Hugo L. Black:

That’s the second time.

J. Harvey Turner:

Yes but that is purely for the purpose —

Byron R. White:

(Inaudible)

J. Harvey Turner:

Yes sir.

But that is purely for the purpose of drawing new Grand Jury members.

Hugo L. Black:

In the presence of the judge?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

And who has mixed them up?

J. Harvey Turner:

The sheriff.

Hugo L. Black:

They are in the courtroom or outside the courtroom?

J. Harvey Turner:

They are in the courtroom sir.

Hugo L. Black:

They are in the courtroom.

J. Harvey Turner:

Yes sir.

Hugo L. Black:

Does your evidence show that there had only been one Grand Juror selected in 24 years?

J. Harvey Turner:

Yes sir.

Hugo L. Black:

Selected by that same method —

J. Harvey Turner:

That same method.

Hugo L. Black:

(Inaudible) is how it is done?

J. Harvey Turner:

Yes sir.

Although the member of the Negro race (Inaudible)

William J. Brennan, Jr.:

I don’t quite get this.

The original list you said is 30 to 40.

J. Harvey Turner:

Yes sir.

William J. Brennan, Jr.:

And I gather that each of the 30 to 40, the subpoena is it —

J. Harvey Turner:

Yes sir.

William J. Brennan, Jr.:

So that there is a list publically known is it —

J. Harvey Turner:

Yes sir.

William J. Brennan, Jr.:

Before the —

J. Harvey Turner:

Yes sir.

William J. Brennan, Jr.:

Before the sheriff makes the little slips, is that it?

J. Harvey Turner:

Yes sir.

William J. Brennan, Jr.:

So I take it any one is examining that original list of 30 to 40 among which the nine are selected by the child in the courtroom, could tell readily whether they are all white or all — any Negros included.

Is that so?

J. Harvey Turner:

If he was very well known around the county yes he could sir.

William J. Brennan, Jr.:

And what’s the interval between the time when these 30 to 40 are subpoenaed and the day when the child in the courtroom picks out the nine?

J. Harvey Turner:

The names are drawn, I believe the statute requires it’s three or four weeks before a term of court.

William J. Brennan, Jr.:

So that list at least is publically available I guess for three or four weeks, is it?

J. Harvey Turner:

It is publically available I would say approximately three weeks before hand.

Byron R. White:

The past lists are preserved?

J. Harvey Turner:

The past list, no.

The list that is preserved — yes it goes into the meeting of the County Board of Commissioners.

Yes sir, it does, but the sheriff then he subpoenas these people and he does not necessarily make a postal service, he could do it by postal card and if the person receives it, the recipient is supposed to return the card back and say I received the card.

If it is not received back, by then the sheriff says he was not served and the man is not subpoenaed for jury service.

William J. Brennan, Jr.:

Well I take it the real — if there is a deficiency in this system, the exclusion that Negroes if they are excluded occurs at the stage when the 30 to 40 are selected and not at the stage where the child selects the nine from a box, in the cigar box.

J. Harvey Turner:

I think that although as we cannot, we cannot find out, we cannot get all the information we would like, we get to run around if we try to.

There is only, the other stage that it could be done is this, the sheriff in making up his list to go into the little cigar box, could eliminate the names of Negroes.

William J. Brennan, Jr.:

Yeah I suggest it perhaps —

J. Harvey Turner:

I don’t know where —

William J. Brennan, Jr.:

Let’s, whatever —

J. Harvey Turner:

I don’t know, I do not know where this occurs, Your Honor.

The only thing I know is it occurs some place down the line.

Although since this case has a reason, and since we, since this Court granted certiorari, at terms of Court we usually have five or maybe six, maybe those subpoenaed for jury duty.

J. Harvey Turner:

And on the list that is prepared and sent out with the trial calendar if a man is a member of the Negro race he has in parenthesis after or before the township from which he comes, the word or the abbreviation C-O-L which we all take to mean colored.

Earl Warren:

What was that?

J. Harvey Turner:

The list, since this case has risen we have taken it up on this point.

We now have approximately I’d say four to six negroes subpoenaed for jury service, that is now, not before this case, but since this case.

And on this calendar that comes out they send a trail calendar, the cases to be tried to the members of the bar and also the list of the jurors who are subpoenaed for that term of court and now we have four, five or six Negroes, but you can tell which is a Negro because after his name or after his — the township from which he comes from on the list is the abbreviation C-O-L, which the Court uses to mean a colored person. So that the bar or anybody else understood although ahead of time that perspective juror is a member of the Negro race.

Hugo L. Black:

Who appoints —

J. Harvey Turner:

Yes sir.

Hugo L. Black:

Who appoints the courtroom?

J. Harvey Turner:

The Judge, the Judge.

Hugo L. Black:

Did he do that in the courtroom, at the time they are selecting?

J. Harvey Turner:

No sir, it’s after they select, he’ll see ask the — if it sustains–

Hugo L. Black:

After they are selected.

J. Harvey Turner:

Yes sir, if a sustained Judge around he’ll take one of the whole over nine, the sustained Judge, he’ll ask the clerk to maybe enquire the sheriff who he thinks wanted to be appointed.

Hugo L. Black:

He’ll put the man he wanted to be appointed (Inaudible) the name didn’t happen to be among those nine drawn he couldn’t appoint that man (Inaudible)

J. Harvey Turner:

No sir he appoints, the new, the newly appointed foreman is one of the holdover nine.

Hugo L. Black:

One of the holdover.

J. Harvey Turner:

Yes sir, well that has been the custom now, a Judge could appoint one of the new members, but I haven’t seen that done.

Byron R. White:

Mr. Turner, the evidence that clerk (Inaudible) he had, well they had only seen one Negro in 24 years who had actually done service, he had seen another that had been chosen but then is excused because he lived out of the county.

J. Harvey Turner:

Lived out of county.

Byron R. White:

He went on and said that, said there aren’t that, he had seen Negros among the jury panels in the county and the largest number he had seen upon the regulatory panel at one time was four or five.

Now, I think that if that means that I don’t know how frequently or how often you had seen four or five jurors on the jury list the 35 or 40.

I take it that that’s what he was referring to.

J. Harvey Turner:

Yes, sir.

Byron R. White:

And that so the discrimination did not occur at the time of the inferences anyway the discrimination did not occur at the time the 35 or 40 which shows — it was between — it was after that list was made up?

J. Harvey Turner:

Which is what —

Byron R. White:

Although there were four or five out of the 35 or 40, only one in 24 years have actually been chosen for service on the grand jury.

J. Harvey Turner:

Yes sir.

Byron R. White:

Is that the way you understand it?

J. Harvey Turner:

That is the tenor of what he says but it does not go far, you know —

Byron R. White:

But this is evidence, this is the only evidence —

J. Harvey Turner:

Yes sir, that’s true.

Byron R. White:

You don’t have any reason to question that he has seen forth.

J. Harvey Turner:

No, he has but I would, I would, what I actually say, it has been very infrequent or it had been up until this case arose.

Byron R. White:

But he wasn’t —

J. Harvey Turner:

No sir — I mean pursuing is just like getting the county commissioners in there —

Byron R. White:

(Inaudible) what he said.

J. Harvey Turner:

What he said, it could have been once a year, yes sir.

Byron R. White:

Or every grand jury would have been this way.

J. Harvey Turner:

No sir, it won’t.

I know to my own knowledge it was not that way, I mean of course his testimony could be construed that way, but he says, he has seen that many.

You could also interpret that to mean that —

Byron R. White:

This doesn’t restrict, this doesn’t this is wholly decided by the fact that that even though they were four to five on the — they were four or five on every list nevertheless only one in 24 years has actually showed up —

J. Harvey Turner:

On the grand jury.

Byron R. White:

(Inaudible) grand jury.

J. Harvey Turner:

Yes sir and it was really 9 out of 36, had about a 25 out of 106.

William J. Brennan, Jr.:

One last question Mr. Turner, when does the sheriff made people the slips, in the Courtroom?

J. Harvey Turner:

No sir, he makes them up sometime prior to going to Court.

William J. Brennan, Jr.:

And but what he do, come into the Courtroom with the cigar box containing slips?

J. Harvey Turner:

No sir, he goes into Court with a little — one piece of paper with the slips, cut down to side and he tears, tears the slips off from a sheet of paper and puts them into cigar box.

William J. Brennan, Jr.:

(Inaudible) not all the names on the list go in the cigar box?

J. Harvey Turner:

It’s a possibility I do not know sir.

All I know is this, if there is some place and if we would try to pin it down by getting to county commissioner all that we’d run to the same type answers you get in all these other cases where its been, they say we try not to discriminate, we try to pick a fair jury and none of the cases, I don’t see I can possibly state.

Hugo L. Black:

You are going on the basis as I understand (Inaudible) and it appears that over a period of a long number of years no colored man has ever served on the grand jury, the Court has right to presume (Inaudible)

J. Harvey Turner:

Yes sir.

Hugo L. Black:

Then it was wholly accidental.

J. Harvey Turner:

Yes sir, yes sir.

I think the burden when we show that, the burden automatically shifts to the state, goes up to state to show there was no discrimination, automatic, systematic exclusion.

Thank you.

Earl Warren:

Mr. Harrison.

Fred W. Harrison:

Mr. Chief Justice, may it please the Court.

Fred W. Harrison:

I was appointed by the Trial Court to defend the, defendant Jesse Jones, Jesse, not Jesse James but George Dixon in this particular case and we rely on the same arguments and the same cases as previously discussed here by Mr. Turner, who represents Jesse James Arnold.

Therefore I’ll not go into — discuss the same aspects of the case probably I’ll try to skirt around what he had to say and at the same time add my feelings or my thoughts on this case.

It’s been contended by the state that we should have gone forward and don’t much bother than we did in our attempt to show discrimination in the selection of the grand jury.

In this particular case we do not deal with the petit jury at all, because a petit jury was drawn from another county.

They, the Judge, the trail Judge ended an order seeking and requiring the clerk of Duplin County to furnish us with 200 special venire to try the case and they were gone from Duplin County.

So only the grand jury of the Noah County is the jury we are concerned with.

Now we showed by the testimony of the clerk the absence for a large number of years of all except for one person of Negro race.

Now the state Court contented that we should have gone forward and shown why and we felt that that was a burden of the state and that, well when we showed we stopped and our motion was overruled.

The state went on said, while we didn’t even show the constitution of the grand jury that indicted these men.

Well only one Negro had, had been served on the grand jury in 24 years previous it wouldn’t make any difference whether he was on that particular grand jury or not.

So we didn’t think it was necessary we showed the constitution of the grand jury that indicted these men.

However, I know for fact that that there was no Negro in that grand jury.

I recall when the Negro did serve on the grand jury, just as — and it was some years ago.

I also recall when the one served that was found to be a resident of Pitt country and was excused on the first day that that particular grand juror was appointed to the grand jury, he got up and said, I’d like to make a statement, and he said, I moved a few weeks ago, across the county line into Pitt county.

Well he was off the grand jury and that was, he was summarily dismissed just like that, which he should have been.

Therefore, based upon these arguments, we contend that we carried the burden of proof and that the case should be remanded for proceedings now in consistent with the rulings of this court in the Hernandez case and Eubanks case and various other cases.

(Inaudible)

Fred W. Harrison:

No sir, we did not attack petit jury.

Petit jury was drawn from Duplin County and it contained a large number of persons of the Negro race on the petty jury; these came from another county, in fact there were two members of the Negro race on the Trial Jury.

Thank you.

Earl Warren:

Mr. Moody.

Ralph Moody:

Mr. Chief Justice and may it please this Court.

I hope I’m not to be bound here by my friends’ testimony as to their personal recollections of what happened in the case and which I do not find in the record.

The Court — if the Court is interested in the facts of case of course you’ll find that in the opinion of the Supreme Court of North Carolina, which is appended to the record.

It’s very surprising to say it was a brutal barbaric murder of an inoffensive little storekeeper out in the country of Lenoir County.

Now as to jury, he said — a question was asked of course and less — I would like to make one comment on the petit jury which the Justice asked about, which contained 40% colored people and 60% white, 14 were called.

A number of them were excused as they have scruples against capital punishment and two severed on the jury, so that is that and may it please this Court so for as the petit jury is concerned.

Earl Warren:

Why did they come from the other county Mr. Moody?

Ralph Moody:

Why did they come from the other county?

As recited in the order of the Court Mr. Chief Justice that they thought — the judge thought in his discretion they should have a jury from another county to obtain a fair trail, as this murder was well known and communicated all around in Lenoir County and was fair to these defendants to have a panel of venire from another county.

Ralph Moody:

Now as to the jury, the Grand Jury, my friend recited a system about organizing the Grand Jury that I’m not familiar with at all, although I practiced law in North Carolina for over 40 years.

In the first place, I never knew that the sheriff made up the list, unless they’ve got a local statute they will show me.

They have appended to their brief and we appended to our brief the same statues and they’re in their appendix.

Now the Board of County Commissioners has a clerk of it’s own.

It’s usually — the Registrar of Deeds is usually the clerk to the Board of County Commissioners, although under local law there have been different individuals, that’s clerk to the Board of County Commissioners.

Now this clerk makes up a list, this clerk to the Board of Commissioners makes up a list of jurors and in making up that list he uses tax lists and they advert so carefully to the fact that we keep separate lists as to white and colored.

We do and we keep separate lists as to Indians and persons, firms and corporations, that is tax a matter of facility in handlings tax matters, it isn’t that we particularly care that they shall be shown as colored and others shall be shown as white.

(Inaudible)

Ralph Moody:

How is that?

(Inaudible)

Ralph Moody:

Well (Inaudible), if you’ve got an officer to go out and collect some taxes, if he can know that he’s colored he knows where to go and look for it.

(Inaudible)

Ralph Moody:

How is that?

Yes but it maybe and just a general — in the county just a general adverse in the county.

We’ve kept those lists separate.

I mean that’s separate for oh way before these — any decisions of this Court in North Carolina on racial discrimination ideas as to jury’s and (Inaudible).

I can’t conceive if the system was originally setup just to show that the difference between colored and whites anymore to show that some was corporations and some were Indians, we’ve got the Eastern Band of Cherokee Indians there too.

Now this clerk makes up a list of people from the tax list and the polls, the regular tax payers and poll tax payers, and incidentally the payment of poll tax for many years has not been requirement for suffrage in our state.

And he makes that typewritten list and he carries it the Board of Commissioners, and they go over the list and as you will see from statutes, the standards of their passing on it is character and intelligence.

They then cut this list into scrolls, these little smaller scrolls and I never heard of a cigar box in my jurist system before.

They have a box that’s specially made and it has two compartments, box number one and box number two, it’s made all together but it has two compartments and then you put — after you cut your scrolls, you put them all in box number one.

There are two locks to that box, one officer has the key to one compartment, a separate officer has a key to the other compartment.

They are two compartments and two locks to the box. Now after this list is made up and the scrolls are cut and put in box number one, then the child comes and they’re stirred up and the child draws the scrolls for the jury list for that coming Court.

And the grand — they are all drawn together.

They are all drawn grand and petit together, they are all drawn together and as they’re drawn from box one they are put over into box two, until that —

William J. Brennan, Jr.:

(Inaudible)

Ralph Moody:

How is that Your Honor?

William J. Brennan, Jr.:

(Inaudible)

Ralph Moody:

They in total let you draw out.

Yes sir.

William J. Brennan, Jr.:

And that is after got the (Inaudible)

Ralph Moody:

Well the whole system — well see the juries are revised every two years, but the whole system — the jury list is revised every two years, but the whole group of names cut from the scrolls, we’ll say 2000, 3000 are all put in box one.

William J. Brennan, Jr.:

In box one?

Ralph Moody:

One.

William J. Brennan, Jr.:

Yes and how many are picked out and put in box two?

Ralph Moody:

Whatever their requirement is, they have Grand Jury system I think, a staggered system, you pick up nine new ones every year, I think that’s right.

Nine every six months and he says that, and they draw then 25 or 30, but they all drawn together, now let’s follow that.

William J. Brennan, Jr.:

And where is this done?

Where is that done?

Ralph Moody:

That’s done in — usually from my experience it’s done in the county commissioner’s office.

William J. Brennan, Jr.:

Yes.

Byron R. White:

So there might end up 30 or 40 names in box two?

Ralph Moody:

For that drawing and go over into box two, but they make the list of what they draw.

They and as a list he’s talking about, that’s carried to court, up into court and cut into scrolls again, that’s a new list, cut into scrolls again.

William J. Brennan, Jr.:

Well is there an intermediate step there that is of screening for that particular term with 25 or 30 whose names —

Ralph Moody:

Oh in the mean time the administrative process of having them summoned our subpoenaed and court goes on, yes.

William J. Brennan, Jr.:

Yes that’s done before.

Ralph Moody:

That’s done before we reach court.

Then we get to the court and cut the names after they’ve already been summoned, Mr. Justice Brennan, after they have already been summoned, then we cut the names and put them in a box they had and maybe you might find a cigar box there, put them in a name in a hat and they’re all stirred up and a child again comes into the process.

Then usually the normal procedure is the first 18 names drawn is Grand Jury, but here every six months would be the first nine names I take it go.

William J. Brennan, Jr.:

Is this done on the presence of a judge?

Ralph Moody:

In the presence of the judge and in the Court.

Now if there is any particular tampering that can be done, that they talk about here and things like that to be done which they haven’t proved incidentally, my notion would be that it would be done when the clerk first makes up the list from the tax list and he can use any approved list, telephone directories, city directories, he can use anything he wants to get that list from.

Now there could be a discriminatory selection there that I admit when he first makes that up original number that’s carried to commissioners that they pass on and then cut in the scrolls.

William J. Brennan, Jr.:

And that’s a very large number of names.

Ralph Moody:

That’s a large number of names.

William J. Brennan, Jr.:

Couple of thousand you would say.

Ralph Moody:

Well depending on the county, for size county (Inaudible) that would be several thousands, and here I don’t know how many they would carry to their box down there.

As Your Honor knows we don’t reach these cases expect at the appellant level, we don’t prosecute in the lower court.

Now then we don’t know, and he says he’s carried the burden, well now let’s see if he has carried the burden, outside of his own testimony he gave here.

Ralph Moody:

He asked the tax supervisor, he put the tax supervisor on the witness stand, and Mr. Guy Williams, Melvin Guy Williams, now bear in mind we have no evidence whatsoever in this case as to population ratios, not a thing in the world, he cites all these other case as to population ratios, there is not a scrap of evidence that I can find in this record as to population ratio.

Hugo L. Black:

They wouldn’t take judicial notice (Inaudible)

Ralph Moody:

You can, yes sir.

But he has no evidence in the record of it as far as we were supposed to carry the burden of proof in an actual trial and he mentioned the case that where in Harris County, they found that 3,600 colored people were eligible for jury duty and as Your Honors will recall in the Scottsburg cases and Atlanta cases, they were shown to be many, many eligible Negros and that was put in the record of the evidence, many eligible Negros, doctors, insurance men, funeral directors and people like that in the Scottsburg cases, he didn’t show or put a scrap of evidence in this record that there is a single eligible Negro in the county to serve on the jury that could meet the character and intelligent test.

Hugo L. Black:

Now Mr. Moody, at page four appears this, total evidence before the Court.

Ralph Moody:

Page what sir?

Hugo L. Black:

Page four of your brief.

Ralph Moody:

Yes sir.

William J. Brennan, Jr.:

Consist of the evidence of the fact that provided that showing the total amount of the tax abstracts for the county for the white race is 12,250, the total amount of abstracts for the colored race is 4,819, the white (Inaudible) between the age 21 to 49, 5,583 for white and 2,499 for the colored.

Ralph Moody:

That’s true Mr. Justice Brennan, I’m not arguing that he didn’t show what’s on the text abstracts, he did.

William J. Brennan, Jr.:

Oh I see this — but you don’t consider that evidence of racial —

Ralph Moody:

I do, I consider that that’s some evidence yes. I don’t come out or argue that against that at all, but I say he didn’t show any population rise shows or anything like that.

Now what did he asked the clerk?

First place, now I have the state transcript here.

I think the stenographic report of a trial and I think you have that, it was filed here in the certiorari proceedings.

In the first place the state transcript will show you they never even asked Mr. Williams what was the constitution of the present Grand Jury at all.

The Court asked that and he said he didn’t know and the Court said and that’s in this record that he — after he had asked William about the constitution of this Grand Jury the indicted these petitioners, he said — the Court said I know about that.

I mean he said he didn’t know about it and the Court said well I do, but Court didn’t say what it was and I don’t know.

Then the clerk testified that in his 24 years, he had only the one Negro and the other one maybe that was came up and it was shown lived in another county, but I do know what 24 period of time his reminiscence is those over there.

Is that — does the organization of this Grand Jury, is that annexed to this record of recollection or is it not, I don’t know and he didn’t say and they didn’t see fit to ask the clerk if he knew the organization of the Grand Jury that found these bills of indictment.

(Inaudible)

Ralph Moody:

Sir I don’t know.

He says and I suppose he knows, but that’s a more — I am hope I’m not bound by in the record.

Earl Warren:

How could you possibly explain that where there were these many Negroes in the county and a number of them that were on the tax rolls that would only be one Negro on a Grand Jury in 24 years?

Ralph Moody:

Well they only picked — I don’t know, but they only picked up nine every six months and I do know they were — but their own evidence shows —

Byron R. White:

That makes it in 24 years, that makes 430, they only have 18 a year that makes 432 jurors that are picked for 24 years and they’ve got two negroes (Inaudible) up on a Grand Jury for actual service, one of which didn’t hear.

Ralph Moody:

Within the fallible recollection of this clerk.

Byron R. White:

Yes.

Ralph Moody:

Well.

Hugo L. Black:

We have to accept that, don’t we?

Ralph Moody:

Yes sir, I don’t — it’s evidence I hope it isn’t conclusive evidence.

Hugo L. Black:

Not conclusive, but I would suppose that you are not saying —

Ralph Moody:

I agree it’s evidence Mr. Justice Black, yes sir.

Byron R. White:

Let’s assume that the prosecutor had do otherwise (Inaudible)

Ralph Moody:

How is that Mr. Justice White?

Byron R. White:

Assume the prosecutor had been proved otherwise (Inaudible), that there had been more than one —

Ralph Moody:

Well, he might have Mr. Justice White, but lots of times as a lawyer you know that they prefer to rely weakness of the case rather than to put on evidence to overcome it and it maybe he was in a hard place, I don’t know, I wasn’t there.

But I do know, I would say this to you Mr. Justice White and to the Court that they were — they are bound to abandon Negroes in the jury box because their own witness says that he had seen quite a few on the jury panels and that –

Byron R. White:

Yeah it seems, every now and then seen as many four of five.

Ralph Moody:

Four of five that’s right.

Byron R. White:

135 or 40.

Ralph Moody:

And he says now from his personal recollection he comes up here and he is seeing four and five if that was a new thing, well they’ve been seen that before, his own witness said so.

Byron R. White:

Don’t you think that none of those four or five ever show up on the Grand Jury?

Ralph Moody:

They did not as far as I know, I mean I only know of course what the record says, but we told and I still argue to this Court when a state is brought here for indictment before the bar of this great Court that that’s too flimsy of evidence to indict the state on.

Hugo L. Black:

Now we held in Shea versus Louisiana very much situation like this where the evidence shows that no Grant Jury, no colored Grand Jury for a number of years.

The state did not offer to refute it, that the fact that testimony was not challenged by evidence, could not be brushed aside, had there been evidence obtainable to direct contradict to prove the testimony offered by petitioner and it cannot be assumed that the state would restrain from introducing it, that’s been the general rule.

Ralph Moody:

I think so, but didn’t you have more evidence in that face than they have here?

Hugo L. Black:

Well, if you have evidence that there has been only one Grand Juror, colored Grand Juror for 24 years and you know that the large percentage of the people are colored, why wouldn’t that fit that precisely?

Ralph Moody:

I don’t know the large — or what percentage of Your Honor is colored other than the tax list.

Hugo L. Black:

Well, the tax list —

Ralph Moody:

The tax list rather showed some yes.

Hugo L. Black:

Shows it pretty good —

Ralph Moody:

That’s right they do.

Hugo L. Black:

And there is no evidence they were qualified to serve?

Ralph Moody:

No sir but there are people in Scottsburg cases for example like Taylor against Alabama and Norris, in those cases they saw fit, I think Mr. (Inaudible) which in that case they saw fit to show the competency of a large group of —

Hugo L. Black:

We also held that later in Shea and other case that you couldn’t simply indict the whole group on the ground or on the assumption that none were able to serve on the Grand Jury.

It seems to me like, maybe I’m wrong, but you have to treat this case on the basis it’s a very large percentage of people are colored, for 24 years according to the evidence which the state didn’t see fit to deny, know only one colored man to have served on the Grand Jury and that seems to me to be the issue you have meet.

Ralph Moody:

Well, they don’t make it such strange thing when they only pick up nine ever six months and out of the — unless I knew the list what the list it was.

Now bear in mind Mr. Justice Black that the total number of names of everybody who had served on the Grand Jury for many, many years and decades back is there in a book and is typewritten out and put in a loose leaf book with a hardback binding.

It’s in there, all they had to do is bring it out.

Hugo L. Black:

In the custody of the state.

Ralph Moody:

All they had to do —

Hugo L. Black:

It was in the custody of the state clerk.

Ralph Moody:

It is in the clerk’s office.

Hugo L. Black:

And that’s the state office.

Ralph Moody:

Yes sir, but they can get it by going down there, nobody withholds that book.

Hugo L. Black:

But do you think — you really can’t argue that if you state had, had evidence that this wasn’t true, that we should assume on any basis that they wouldn’t have put on it.

Ralph Moody:

I’d feel better if they got the box and pulled the names out and had got the book and said here they are.

I do know in previous cases that’s the way it has been handled.

Hugo L. Black:

Not in all of it.

Ralph Moody:

No, not in all, and from my state.

But that — they go get the box the petitioner’s attorney though they subpoenaed, there is nobody withholds it.

Take a scroll down and look at them and identify them, go get the clerk’s book, for everybody that ever served is written and call their names and identify them and their race and go on.

Hugo L. Black:

There was one in this process that I have not thoroughly understood from both of you.

Ralph Moody:

Yes sir.

Hugo L. Black:

The box was made up, put in their name and put in the box.

Somebody takes out 35 at some place.

Ralph Moody:

In the commissioner’s office.

Hugo L. Black:

What’s that?

Ralph Moody:

All the counties I know of I have never lived in their county, but all the counties I know of or have ever practiced in, that’s drawn down in the commissioner’s office, Board of County Commissioner.

Hugo L. Black:

Is any judge there?

Ralph Moody:

No, there is no judge there either, but at that time the Chairman of the Board is there and a child draws them.

Hugo L. Black:

Well, that’s right, a child draws them.

Ralph Moody:

And they take —

Hugo L. Black:

And if the child — who arranges them when they go up into the —

Ralph Moody:

The clerk to the Board of Commissioner arranges the list.

Hugo L. Black:

When they take them up in upstairs to be drawn from, the clerk of the board puts them in there, somewhere —

Ralph Moody:

He just writes the list now on —

Hugo L. Black:

35

Ralph Moody:

Yes he just writes the list out on a piece of paper.

Hugo L. Black:

Yes.

Ralph Moody:

And he may have the clerk of the court to do it, sometimes they change jobs, but that goes up to the court on a piece of paper.

Hugo L. Black:

And then they put it in a little box?

Ralph Moody:

They cut it then and put it in another box.

They cut the names then, cut them into little scrolls again and those names go into the box or have — they are stirred up and a child draws again.

Earl Warren:

Mr. Moody are there any standards that the clerk of the Board of Commissioners must follow in making this original list?

Are there any rules he must go by or any standards that he must meet or does he just do it in according to his own conscience, of his own belief as to who is qualified?

Ralph Moody:

Well Mr. Chief Justice, one, I want to know what statue says, that the clerk of the Board of the County Commissioners assess jury commissions in making up the list of names, to be laid before the Board of County Commissioners are such jury commission sometime we have a jury commission tell the Board of County Commissioners, may secure said list from such sources of information as deemed reliable and which will provide the names of persons of the county above 21 years of age residing with the county, qualified for jury duty.

That shall be excluded from said list all those persons who have convicted crimes, involving moral turpitude or who have been adjudged to be non-competent men.

Now he uses the tax list, he uses telephone directories, he uses trade commerce clubs and trade directories and city directories and if he works and selects them, he could use those.

Now if you say though that there are some mandatory standard to something that he shall do this, that or the other notion I don’t see it.

Earl Warren:

In other words but he could, the system is open to his using his bias if he decides to do it against the Negro race, by not putting any of them on.

Ralph Moody:

Well, he could yeah.

Earl Warren:

He could and there is nothing to check that at all.

Ralph Moody:

But, I won’t in absence of evidence and I hope you won’t assume he did.

Earl Warren:

Well isn’t there some evidence that there never was one on the grand — never but one on the grand jury —

Ralph Moody:

Yeah sir, but one clerk says and thinks and remembers and there was the books with all of them that’s not shown.

Earl Warren:

Yeah, well isn’t it a rather heavy burden to put on an indigent defendant who has to have counsel appointed for him to go back over that list for 24 years to see what Negros have ever been on the jury, when the state has it and knows positively whether they were or not?

Ralph Moody:

No sir, we don’t.

We’ve gone there but they have to be checked we don’t really know anymore about it than they do.

Earl Warren:

Yeah you mean the — you mean the clerk is —

Ralph Moody:

There is no mention to that, I have never seen Mr. Chief Justice Warren, had shows that in that book there is any designation colored or white, that’s names.

Arthur J. Goldberg:

(Inaudible)

Ralph Moody:

Usually in the cases that I’ve been in they check them.

You have people there, you have a sheriff who served for a long time, you have somebody that’s been there for a long time and when a name is put up and asked about they can say yes he is white or he is colored.

These are not metropolitan centers Mr. Goldberg, Justice Goldberg.

Arthur J. Goldberg:

(Inaudible)

Ralph Moody:

That is a method that I know of, the only method I know of.

Arthur J. Goldberg:

(Inaudible)

Ralph Moody:

Recollections of people as we have to allow most evidence that I know about.

Earl Warren:

Would you say the clerk of the Court was unreliable?

Ralph Moody:

I don’t attack the clerk of the court anymore than I think that it’s over a period of 24 years, I don’t think anybody can be charged with a great deal of accuracy, when suddenly confronted as to what he remembers back over that span of time.

Now, they were — they raise a question here, I don’t — I haven’t been asked about it, but they raise a question here Your Honor about that continues and that we should have provided them with examination by psychiatrist, say private practicing psychiatrist.

Now, our court didn’t pass on that as a constitutional question, they had supposed a motion of continuums as a matter of discretion which is local state practice.

And if the Court is going to investigate the question as to whether we should furnish them with a private psychiatrist or not, there are two answers as far as I am concerned, one is, you held of course we’ve got to provide counsel you have entailed under the for protection clause and due process clause what we have to provide by a way of witnesses of expert witnesses.

Byron R. White:

Well, he was examined, wasn’t he?

Ralph Moody:

He was examined.

Byron R. White:

At state hospital?

Ralph Moody:

Yeah at the state hospital, we sent them both for examination and their motion was of course that they hadn’t had time, they said to prepare although the state transcript will show you they had 60 days.

Earl Warren:

Very well.

Fred W. Harrison:

(Inaudible) these are like one word —

Earl Warren:

Yes, indeed.

Fred W. Harrison:

Nothing has been said about eligibility and we failed to produce any evidence of eligibility of these Negros for jury duty.

I might say this the state has not presented any evidence to show that the whites were eligible to serve on these same juries and I think what’s fair for one is fair for the other.

Earl Warren:

Very well.

Fred W. Harrison:

Thank you sir.

(Inaudible)

Fred W. Harrison:

On the motion that Mr. Moody has referred to asking for a private mental examination, a examination by private psychiatrist, our chief fault found that the examination that these people were given, these two defendant were given is that we obtained an order from the clerk — from the Judge of the eight judicial district requiring that these men be observed for 30 days at the state hospital and then an — then a report made covering their mental condition.

Now from the report filed which is not in the record, the only evidence — this mental examination of the record is affidavit.

The report clearly showed and that’s stated in the affidavit that all determinations covering the sanity or insanity of these defendants were made at a time considerably prior to the expiration of 30 days.

Now, we are claiming that they did not have an examination as ordered by the court, the only thing that we are claiming in that regard.

Earl Warren:

Mr. Harrison, before you sit down on behalf of the Court that I shall like to express our appreciation to you and Mr. Turner for having undertaken the defense of these indigent defendants as a public service.

We are always gratified and comforted by the fact that there are lawyers who will take these unpopular causes and who will defend indigent defendants as a public service and so we thank you for what you have done.

And Mr. Moody thank you sir, for the manner in which you have represented the people of the state of the North Carolina.

Fred W. Harrison:

Mr. Chief Justice, let me add though, we pay him for his services the state pays it.

Earl Warren:

Very well.

Ralph Moody:

It’s poor pay, Your Honor.

Earl Warren:

I’m sure of that.

Fred W. Harrison:

Thank you Mr. Chief Justice.

Earl Warren:

We still thank you.