Coleman v. Alabama

PETITIONER:Coleman
RESPONDENT:Alabama
LOCATION:New York Supreme Court Appellate Division, First Department

DOCKET NO.: 583
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 129 (1964)
ARGUED: Mar 25, 1964
DECIDED: May 04, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – March 25, 1964 in Coleman v. Alabama

Earl Warren:

Number 583, John Coleman, Petitioner, versus Alabama.

Mr. Greenberg.

Jack Greenberg:

May it please the Court.

I move the admission of Mr. Michael Meltsner of the New York bar for the purpose of arguing this case.

I’m satisfied that he has the necessary qualification.

Earl Warren:

He may be admitted.

Mr. — Mr. Meltsner.

Michael C. Meltsner:

Mr. Chief Justice, may it please the Court.

This is a capital case here on certiorari to the Supreme Court of Alabama and it involves the question whether the courts of that state can refuse to give petitioner an opportunity to put on evidence and then affirm his conviction because he failed to carry a burden of proof.

The facts are these, petitioner John Coleman is a Negro, who was indicted and convicted for the murder of a white man by juries of Greene County Alabama.

Greene County is in the Western part of the state, a very rural country.

Approximately 80% of the population is of the Negro race.

At petitioner’s trial, it was represented by Court appointed white attorney, who failed and did not assert his constitutional rights.

The juries chose him without systematic exclusion of Negroes.

After conviction, a Negro attorney was called into the case by petitioner’s family.

He filed a timely motion for new trial explicitly alleging systematic exclusion of Negroes from the grand and petit jury, and a hearing was held on this motion for new trial.

But at the hearing, counsel was not permitted to introduce testimony establishing systematic exclusion of Negroes because the trial court, at the urging of the prosecutor, took the view that the question could not be raised for the first time on motion for new trial, that it — it had to be raised under Alabama procedure prior to the trial.

On appeal —

Is it both (Inaudible)

Michael C. Meltsner:

Yes, Your Honor.

On appeal, the Supreme Court of Alabama held that petitioner had had an opportunity at the hearing on the motion for new trial to introduce evidence of systematic exclusion that he had the burden of proof and that he had not placed into evidence sufficient evidence to prove jury discrimination.

The Court said absolutely nothing about any waiver and quite clearly decided the case on a ground which made waiver moot.

Now, as the ruling of the Supreme Court of Alabama which we ask this Court to reverse is the opportunity which that Court said petitioner had on the hearing for motion for new trial to introduce evidence.

I refer the Court to that hearing which is in the record, pages 15 to 23, and mainly we’re concerned with that portion of the hearing which begins on page 18.

Let’s expose what happened at that hearing where the Supreme Court of Alabama says petitioner had an opportunity to carry a burden of proof and to introduce evidence of systematic exclusion.

Petitioner’s counsel at the hearing attempts to place on the stand the two Circuit Solicitors who had tried petitioner in order to prove the allegations of the motion for new trial.

And on page 18, we see the response of the Circuit Solicitor.

He argues that the question has been waived and there on the 11th line at page 19, he urges to the trial court, we don’t think any evidence along that line would be legal and we would object any evidence because it would just be a waste of time.

Now at this point, the trial judge says he doesn’t know what petitioner’s counsel would put on.

Petitioner’s counsel attempts to offer proper — the kind of proof he’s willing to put on.

Michael C. Meltsner:

He argues that the trial court has the discretion to hear that evidence.

The trial judge says, “No.

You put your witness on the stand.

If there are any objections to the questions you ask him.

I’ll rule on the questions, on the objections.

In that way, we’ll determine the issue.”

So on page 20, the Solicitor is placed on the stand and the foundation is laid.

He — he testifies that he’s practiced law on the county for a number of years, that he is familiar with Negroes and Whites in the county, that he has never missed the grand jury in the county.

But when the question comes now, “What’s the population or the ratio — population ratio between the races?”

Bang!

Objection, the issue can’t be raised for the first time on motion for new trial.

And on page 22 of the record, the trial court clearly sustains that objection on just that ground.

Petitioner’s attorney asks two more questions, how many Negroes if any were on the grand jury, same objection, same disposition.

How many Negroes if any were on the petit jury, same objection.

He can’t take advantage of the Fourteenth Amendment this way, same disposition.

Now, it’s elementary I think that — that this is not a hearing consummate with due process.

There was no opportunity to introduce testimony.

And I don’t understand the state now to take the position that — a position contrary to that.

Although the state opposed rehearing and the Supreme Court of Alabama on that ground, that petitioner did have an opportunity.

But now the state seems to be arguing something different that — it was in fact the waiver.

I don’t believe that the opinion of the Supreme Court of Alabama, the judgment here on review, is susceptible to that interpretation.

First, the Court said absolutely nothing about waiver.

When you’re talking about the waiver, do you mean, (Inaudible)

Michael C. Meltsner:

That — the question of systematic exclusion of Negroes from the grand and petit jury, could not be raised for the first time on motion for new trial and that if it were raised for the first time on motion for new trial, no evidence would be permitted, because the right would be waived.

Arthur J. Goldberg:

(Inaudible)

Michael C. Meltsner:

That’s what I mean by waived.

Earl Warren:

Was that argued to the Supreme Court of Alabama?

Michael C. Meltsner:

The waiver?

Earl Warren:

Yes.

Michael C. Meltsner:

Yes, it was.

Michael C. Meltsner:

The —

Earl Warren:

But the Court didn’t mention it.

Michael C. Meltsner:

The Court didn’t mention it.

The state cited waiver cases to the Court.

They were not cited in the Court — in the Supreme Court of Alabama’s opinion but fairly easy idea to convey.

There are many opinions in — in Alabama where — where the waiver holding is the one which disposes of the case, nothing like it in this opinion.

But most important, the Supreme Court of Alabama decided this case on the ground which is totally incompatible with the finding or holding of waiver.

In other words, what the Supreme Court of Alabama did and it’s right here on pages 32 and 33 of the record, in its opinion, it held that petitioner had a burden of proof and he hadn’t — haven’t met, it held on the evidence.

Now, if you don’t have any right, it makes no difference whatsoever, how much evidence you put on.

What the — what the trial court did was say you had no right, so you can’t put on any evidence.

What the Supreme Court of Alabama does, put that — put the waiver argument to the side and decide completely on the basis of evidence.

Now, I don’t think it’s important whether or not the Supreme Court of Alabama had any power under Alabama law as viewed from prior cases to do what it did.

The judgment in this case is bottomed on a finding of the evidence, not on a finding of waiver.

The — the judgment of the — in this case is bottomed on petitioner’s opportunity to introduce proof.

But nonetheless, there are Alabama cases, the Clark and Arrington cases which are cited on page 12 in our brief, where the Supreme Court of Alabama has done exactly what it did here.

In other words, the jury question was raised for the first time on motion for new trial, the case came up from the Supreme Court of Alabama and it decided the case on the evidence or indicated that it had the power to decide the case on the evidence.

There is even a — a very recent case on coram nobis where the Supreme Court of Alabama said we know in deciding this case that the petitioner here did not raise this question prior to trial or on motion for new trial, that’s the Howard case in 151 Southern Reporter.

And there’s another one where the same statement is made, the Sills case, 126 Southern Reporter.

So as we view this case, it comes clearly under the rule of Cole versus Alabama, recently reaffirmed by this Court, I think about two weeks ago in the Shuttlesworth case, that a Supreme Court of a state must dispose of a case upon consideration of what happened in the trial court.

Now, in Cole the — the conviction was affirmed by the Supreme Court of Arkansas on the basis of a violation of law which was not tried below and this Court reversed it because the — the criminal defendant did not have an opportunity to defend himself to put in evidence.

So here, petitioner has not had an opportunity to put in evidence establishing a constitutional defense.

The reason he hasn’t had that opportunity is because the trial court took the view totally incompatible with the view taken by the Supreme Court of Alabama, that he had no right, no right to establish.

Now, I think coming to this record Cole, the Court might have some question about why the Supreme Court did what it did, even though it’s totally explicit, what it did.

And I think the answer is in two cases briefly discussed in our brief, the Sills and Golsby cases in which the Fifth Circuit has held that in situations like this, where a Negro is represented by a court appointed white lawyer in the South, and the state does not show that he knowingly and intentionally waived his constitutional rights that if the Fifth Circuit is held that it will not be precluded from examining the evidence of the jury question.

And the Supreme Court of Alabama knows about this cases and it is modifying what — what we might call its traditional policy of — of being fairly hard on litigants who don’t raise the question early in light of these cases, in light of its knowledge that the same issue was going to be relitigated in the Fifth Circuit if the Supreme Court of Alabama holds waiver.

But I want to make it perfectly clear that I don’t think any analysis based on those cases is involved here.

The Supreme Court of Alabama did what it did, and that’s the judgment here for review.

The only — the only way I can rationalize the State’s argument is that they are saying to this Court, Alabama’s Supreme Court could’ve held waiver.

It could’ve decided in this case on nonfederal grounds, and if — because the Supreme Court of Alabama didn’t do it, it could have, this Court should do it.

Now there are a long line of cases where this sort of position has been argued to the Court and it’s always been rejected.

Michael C. Meltsner:

The leading case is — is Grayson versus Howard — Harrison in 267 U.S.I would like to reserve my time.

Earl Warren:

Mr. Hall.

Leslie Hall:

Mr. Chief Justice, members of the Court.

I think I should start out by pointing out to the Court the provisions of the Alabama Code that would deal with this particular situation.

Title 15, Section 278, provides that no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement to the indictment.

And no objection can be taken to an indictment by plea in abatement except from the ground of the grand jury who found the indictment were not drawn by the officer designated by law to the draw the same and neither this objection or any other can be taken to the formation of a special grand jury, someone direct — direction of the Court.

And Section 279 of that same title, provides any plea in abatement to an indictment must be filed at the first session at which the indictment was found.

If the accused has been arrested or if the accused has not been arrested, such plea in abatement must be filed at the first session at which it is practicable after the defendant has been arrested, and in all cases, such plea in abatement must be filed before the plea to the merits.

Now —

Hugo L. Black:

Those statutes are not covered in your brief, are they?

Leslie Hall:

No sir.

They are referred to in my brief and Mr. Justice Black at — on page 3 but they’re not copied into the brief.

Hugo L. Black:

Would you mind reading that first one again.

Leslie Hall:

Alright sir.

Hugo L. Black:

I can’t — what can be done under plea in abatement and what cannot?

Leslie Hall:

No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement to the indictment.

That’s the real pertinent point of that particular one, a subjection to the formation of the grand jury and it has to be done by plea in abatement prior to —

Hugo L. Black:

That’s what your trial court held, wasn’t it?

Leslie Hall:

Yes, sir.

The trial court held that and the Supreme Court of Alabama in numerous cases has followed that same rule of procedure.

Hugo L. Black:

Within this case.

Leslie Hall:

In this case, after the trial court refused to allow evidence on the question of the formation of the grand jury in connection with the motion for a new trial.

Because of the fact that no plea in abatement had been filed prior to the time that the defendant was arraigned then the defendant who was represented on his motion for new trial by a different counsel appealed to the Supreme Court of Alabama and argued that question before the Supreme Court of Alabama and the Supreme Court of Alabama said there was no evidence.

He is correct in that.

Hugo L. Black:

That there was — they said, he was not denied an opportunity, did he not, to offer that evidence?

Leslie Hall:

In effect that’s what they said, yes.

Hugo L. Black:

I — how can you explain that?

I don’t — understand it.

Leslie Hall:

Well I —

Hugo L. Black:

I don’t understand it.

Leslie Hall:

I’ll explain it this way, if I can —

Hugo L. Black:

Because plainly, he was denied the opportunity.

Leslie Hall:

He was denied the opportunity to present the evidence in support of his motion for a new trial on the ground that under Alabama procedure, he was supposed to raise that question prior to his pleading to the indictment and he was —

Hugo L. Black:

And then he (Voice Overlap) —

Leslie Hall:

— supposed to raise that by plea in —

Hugo L. Black:

The Supreme Court affirmed it but not on that ground.

Leslie Hall:

They didn’t point out that particular ground.

Hugo L. Black:

They didn’t affirm it on that ground, did they?

I — I just — I do not understand this opinion.

Leslie Hall:

Well, maybe I don’t understand either, but the fact remains that they did affirm.

Hugo L. Black:

They did affirm it, but —

Leslie Hall:

Yes.

Hugo L. Black:

— by saying — that — the trial court had given him an opportunity to offer the evidence.

Leslie Hall:

No, they denied him the opportunity to —

Hugo L. Black:

I know they did, but the Supreme Court said he had been — he had the opportunity.

Leslie Hall:

They used some unfortunate language there, I’m afraid Mr. —

Hugo L. Black:

What?

Leslie Hall:

— Justice Black.

Hugo L. Black:

(Inaudible)

Well, Mr. Hall, I — (Inaudible)

Leslie Hall:

Well now, the —

William J. Brennan, Jr.:

(Inaudible) at least tell me whether I’m wrong about it.

(Inaudible) — I’m looking at page 32 of the record and the actual language is appellant’s attorney — I’m speaking now of your Supreme Court, appellant’s attorney was given an opportunity on the hearing in the motion for a new trial to produce evidence and so forth.

And then they go on to say that he didn’t produce enough evidence.

And it seems to me that that’s to be read as implying a holding that was utterly immaterial that he didn’t raise this on a — a plea in abatement, that his difficulty was that he hadn’t offered enough evidence.

And the Court make no mention of the fact that he tried to offer enough evidence but the trial court wouldn’t let him.

Leslie Hall:

I don’t think the Court had to even make that statement.

They could’ve founded the —

William J. Brennan, Jr.:

Well, they did make it.

Leslie Hall:

They did make it.

William J. Brennan, Jr.:

And we have to put some reading on it, don’t you?

Leslie Hall:

Yes sir, yes sir.

William J. Brennan, Jr.:

But you agree that he was not given an opportunity.

Leslie Hall:

I agree that he was not given enough opportunity —

William J. Brennan, Jr.:

And they didn’t (Voice Overlap) —

Leslie Hall:

— and the other — the trial judge denied him the opportunity on the basis of the previous holdings of the Alabama Supreme Court on —

William J. Brennan, Jr.:

And then the reason — and you don’t — you — you have no idea what evidence would’ve come into the record had he been given an opportunity.

Leslie Hall:

The only thing that was attempted there along that line was when the Circuit’s list was put on the witness stand as an adverse witness by the attorneys for the petitioner and attempted to ask him some questions about the population ratio there and bring —

William J. Brennan, Jr.:

That was just an opening question?

Leslie Hall:

Yes.

William J. Brennan, Jr.:

That — but that was the end of the examination.

Leslie Hall:

Yes sir.

William J. Brennan, Jr.:

And so the Court is clearly wrong when they said that they — you said not — he was granted an opportunity.

Leslie Hall:

I’m afraid, I’d have to agree.

Is an — it’s an embarrassing situation for me to get into.

I’d have to come up here and tell you that but, I think that’s correct.

Hugo L. Black:

(Inaudible)

Leslie Hall:

I’m sorry I’m not familiar with that case Your Honor.

Hugo L. Black:

(Inaudible) not affirmed which on a basis which was not (Inaudible) but the judgment below, charging him was a different event, very much likely.

Leslie Hall:

Yes.

Hugo L. Black:

It was a different event.

Leslie Hall:

Yes.

Hugo L. Black:

(Inaudible)

But here, they — they affirmed it on the ground that — which directed them forward.

Leslie Hall:

That’s correct.

There’s the — the record of the trial court does — does not support that.

Now —

Earl Warren:

May I ask you Mr. Hall if your court has departed from those statutes at any other time.

Leslie Hall:

I don’t believe they have, Your Honor.

Earl Warren:

Did you hear the cases that (Voice Overlap) —

Leslie Hall:

Well, I heard they mentioned the case of Arrington but I don’t read that case that way and —

Earl Warren:

What does that hold?

Leslie Hall:

It holds that the procedure in Alabama requires the defendant who’s going to raise any question as to the composition of the jury.

Either grant a petit jury to raise that question prior to arraignment of the defendant on the indictment or prior to go into trial pleading to the merits as far as the petit jury is concerned.

Earl Warren:

Well, what did it — what did the Court proceed to do after saying that?

Did it — did it hear the case on the merits?

Leslie Hall:

The Supreme Court?

Earl Warren:

Yes.

Leslie Hall:

As to our understanding it — my understanding, it did, yes sir.

Earl Warren:

Notwithstanding the fact that — that he had not — the defendant had not raised it at the proper time —

Leslie Hall:

The — the Court said he was too late in raising —

Earl Warren:

I beg your pardon?

Leslie Hall:

— it afterward.

Earl Warren:

I beg your pardon?

Leslie Hall:

The Court said he was too late in raising the question afterwards.

Earl Warren:

But I — I —

Leslie Hall:

A motion for a new trial —

Earl Warren:

I don’t know (Voice Overlap) —

Leslie Hall:

— was not the place to do it.

Earl Warren:

I don’t know your case but counsel just cited two cases in which he said that the Supreme Court had considered cases on the merits where those statutes had not been followed.

Leslie Hall:

Well, I don’t know.

I think he’s wrong about that, Your Honor.

Earl Warren:

Well, alright.

Hugo L. Black:

The Court of Appeals has, I believe as you said, it seems to me I recall reading them, held that it would not be bound by that —

Leslie Hall:

You mean the Court of Appeals of Alabama?

Hugo L. Black:

No, the — of the —

Leslie Hall:

Of this Circuit?

Hugo L. Black:

The district — of the United States courts.

Leslie Hall:

Well, let me to point out something in connection with those two cases that the — they cited here.

They mentioned the case of Willie Seals.

Leslie Hall:

That’s the case of United States on a relation to Willie Seals, Jr. versus Wyman.

I’m somewhat familiar with that case.

It came in a little bit late but I — I do know that the Fifth Circuit Court of Appeals reversed his conviction on a habeas corpus proceeding.

And he went back and was reindicted and was retried and resentenced this time to a life sentence rather than to the electric chair.

Hugo L. Black:

Why did they reverse it the first time?

Leslie Hall:

The — the reason why they reversed it the first time, because he was represented by a white court appointed attorney.

And the evidence showed definitely in that case that this white attorney did not know and made no reasonable effort to ascertain the population ratio as far as persons eligible to serve on the grand and petit juries of Mobile County was concerned.

He so testified on the stand that he had no idea.

That was Judge Johnson brother by the way, Judge Frank M.Johnson’s brother who represented him.

And — so the — the evidence showed clearly in that case that he had no means of knowledge, late — least he failed to be diligent about obtaining the knowledge in order to — and properly inform his client as to what his rights were.

Hugo L. Black:

Court — the Court therefore declined in effect to follow these tactics in that case, isn’t it?

Leslie Hall:

Yes.

Now, in the —

Hugo L. Black:

It was the other one also.

Leslie Hall:

In the Mississippi case, the case of United States on a relation of Golsby versus Harpole.

That was another case decided by the Fifth Circuit Court of Appeals and Judge Reeves wrote the opinion in that case.

And it — it just so happens the facts are these, at the time of the arraignment of this man, he was represented by a Negro counsel.

But, some reason or another, between the time of his arraignment and the time of his trial, the — a white counsel were employed to represent him.

And, the Court said that this Circuit Court of Appeals said in that case, that his Negro, retained counsel had effectively waived the question at the time of his arraignment.

So he was a little different — when in fact quite a bit difference from the Willie Seals case where they said that his white appointed counsel did not effectively waived the question and therefore, the Court reversed.

But in — in the Harpole case, the Fifth Circuit Court of Appeals said that his counsel had properly and effectively waived the constitutional question forwarded.

Hugo L. Black:

Now, did the Seals case come before or after the case — the decisions (Voice Overlap)?

Leslie Hall:

The Seals case was after the Harpole case.

Hugo L. Black:

It comes before or after the decision of this case?

Leslie Hall:

It was before.

Hugo L. Black:

It was before.

Leslie Hall:

Yes.

Hugo L. Black:

A short time before?

Leslie Hall:

Goes back to 1950 — 1962, late 1962.

If I remember the date correctly, it was May the 30th or May the 20th.

Leslie Hall:

I’m not quite sure.

Hugo L. Black:

Has there been any change in the statute or anything (Voice Overlap)?

Leslie Hall:

No sir.

The statute is still the same.

Hugo L. Black:

Have there been any other cases besides this one?

Leslie Hall:

No recent cases besides this one on that question.

We — I’ve checked the party parts and the digest on it before and this seems to be most recent case on it.

Now, in my brief, I make a quotation here from one of the cases from the Supreme Court of Alabama.

That is Brennan versus the State in which the Supreme Court of Alabama said, there’s no skilled lawyer would ever attempt to raise such a question until after conviction.

Byron R. White:

But, Mr. Hall, I take it when you (Inaudible) even though the decision (Inaudible)

Leslie Hall:

I think so, yes.

Byron R. White:

But you wouldn’t agree that it can’t (Inaudible)

Leslie Hall:

Well, I’d expect everybody to have due process at least to —

Byron R. White:

Well, he wasn’t — he wasn’t permitted the (Inaudible)

Leslie Hall:

Yes, and the reason being by the lower court that he didn’t raise the question at the proper time.

Byron R. White:

What (Inaudible) Supreme Court of Alabama said in its opinion, we do not believe that the waiver rule applies here.

This man is entitled to raise that (Inaudible) had been brought.

I think you assume that (Inaudible) the Government said that.

Leslie Hall:

Yes.

Byron R. White:

But, he had no opportunity and he didn’t produce the evidence.

Leslie Hall:

Well, if they had said that, they would’ve been going contrary to their holdings in — in other cases and also contrary to the statutes.

Byron R. White:

(Inaudible)

Leslie Hall:

Well, he — he had an opportunity for due process.

He could’ve raised it by plea in abatement.

Byron R. White:

I know, but assume that the Alabama courts (Inaudible)

Leslie Hall:

Well, the — I think the Alabama Supreme Court would have to reverse what it said in this Brune (ph) case that I was just quoting from about a person taking his chances on getting an acquittal and then if he’s dissatisfied and gets convicted, he could then comeback with a motion for new trial and seek to do something that he couldn’t do otherwise.

Therefore, it’s my honest argument gentlemen that the Court affirmed the opinion of the Supreme Court of Alabama.

Earl Warren:

Mr. Hall, I just want to ask you one question.

I reviewed this para — short paragraph from the brief of the petitioner.

He says, this opinion of the Supreme Court suggest that the Court shows to ignore that failure to raise the question of systematic exclusion, because the case came to that Court under the automatic appeals statute compare Arrington versus State, 253 Alabama 178, where the duty of the Court is, “to examine all evidence for reversible error without the necessity of seasonable objection.”

Earl Warren:

Why do you have to say that?

Leslie Hall:

Well, that is due to the statutory provision that we have in Alabama that all capital cases are — are automatically appealed to the Supreme Court of Alabama and the Supreme Court is required to look at the whole record and determine —

Earl Warren:

And — and that — you can make a distinction clear in that — in these cases.

Leslie Hall:

Sir?

Earl Warren:

In this case.

Leslie Hall:

Well —

Earl Warren:

Do you —

Leslie Hall:

If they found no reversible error, I don’t know whether it was necessary for them to even point out wherein they failed to find no reversible error.

They could make an affirmance without going into any great detail about it if they examined the whole record as they’re required to do by statute.

Earl Warren:

But it says, “Without the necessity of seasonable objection.”

And you’re pointing out to us that they didn’t object to the jury —

Leslie Hall:

Yes sir.

Earl Warren:

— seasonably.

Leslie Hall:

Yes sir.

Earl Warren:

Now that — and your Court has said that in this kind of occasion, this is a capital case also that they’re obliged to take the case and to examine all evidence for reversible error without the necessity of seasonable objections.

How do you distinguish that case and this one?

Leslie Hall:

I’m afraid that I can’t.

Earl Warren:

Mr. Meltsner.

Michael C. Meltsner:

Unless the Court has some additional questions.

We have no further argument.

Potter Stewart:

Well, I — I have a question.

Let’s — let’s assume you’re right about this and you certainly are correct, actually it’s correct in your — correct in your characterization of what the Supreme Court of Alabama said.

Let’s assume we think that you’re right, what — what would you have us — this Court do?

Michael C. Meltsner:

Well, I think the — the disposition should be similar to Cole.

The — the case should be reversed and —

Potter Stewart:

This isn’t Cole.

Now Cole — Cole was a case in which I thought the man was tried under the — something other than which he had been charged with.

I didn’t mean to interrupt your answer but I — but I — okay.

Michael C. Meltsner:

I think this petitioner is entitled to an opportunity to prove systematic exclusion in the courts of Alabama.

Potter Stewart:

In the trial court?

Michael C. Meltsner:

Right, if — if —

Potter Stewart:

Alright.

Now, let’s say we should — just thinking you’re right by hypothesis and we should set aside the judgment of the Supreme Court of Alabama and remand the case to the trial court.

The trial court would be faced with the clear rule in Alabama that the way they were — raised this is by a plea in abatement, wouldn’t that be true?

Michael C. Meltsner:

Well —

Potter Stewart:

And therefore, I would — I would — I — it’s bound to follow the law of Alabama and would therefore deny you the right to put in this evidence at this late date.

And that would then be affirmed by the Supreme Court of Alabama on the basis of the Alabama procedural law.

Is there anything to prevent that happening?

Michael C. Meltsner:

I think that’s totally inconsistent with the reading of this Court — of the opinion of the Supreme Court of Alabama —

Potter Stewart:

Yes.

Michael C. Meltsner:

— which this Court would have to make to make that disposition of the case.

In other words, to dispose of a case as we suggest —

Potter Stewart:

Yes.

Michael C. Meltsner:

— one reason the — the Supreme Court’s opinion is putting the waiver rule aside saying it’s not the law of this case.

Potter Stewart:

In this case.

Michael C. Meltsner:

That’s right.

You had an opportunity.

And certainly the — the Supreme Court of Alabama had indicated in the past that it — it had the power to do what it did in this case.

But I don’t think its material.

All these discussions about the statute, it’s not material because what the Supreme Court did in this case —

Potter Stewart:

Yes.

Michael C. Meltsner:

— is crystal clear and that’s the judgment before this Court, not the whole corpus of Alabama law.

Potter Stewart:

Well, what — the Supreme Court of Alabama did in this case among other things is to simply make a factually mistaken statement that the — that the defendant was given an opportunity to present this evidence.

Now, the facts are that he wasn’t.

Michael C. Meltsner:

And that is —

Potter Stewart:

Would they?

Michael C. Meltsner:

In that sense denies the petitioner an opportunity to sustain a federal question.

Potter Stewart:

Now, you would have us therefore say that despite the law of Alabama which requires in its clear terms that an objection to the makeup of the grand jury has to be raised by a plea in abatement before arraignment on indictment.

Despite that clear law, we’re to say that in this case, because of the language of the Supreme Court’s opinion, this man has a right to a trial of that issue on a motion for a new trial.

Michael C. Meltsner:

I suppose, what I’m saying is that this case is also the law of Alabama.

Potter Stewart:

Yes.

Michael C. Meltsner:

That — that those statutes don’t constitute the full corpus of Alabama law that this cases (Voice Overlap) —

Potter Stewart:

Because of this opinion.

Michael C. Meltsner:

And this opinion must be read as holding that you can raise the question for the first time.

Potter Stewart:

In this case at least.

Michael C. Meltsner:

In the — in this case —

Potter Stewart:

Yes.

Michael C. Meltsner:

— but this case also holds that you can raise the question for the first time on motion for new trial.

Potter Stewart:

Of course if you —

Michael C. Meltsner:

And —

Potter Stewart:

This case also holds or at least the opinion says that this man was given a full opportunity to produce this evidence.

So we can’t take this — all of these — all the words —

Michael C. Meltsner:

No.

Potter Stewart:

— in this opinion and — and decide that —

Michael C. Meltsner:

Well, maybe —

Potter Stewart:

— he states the law of this case.

Michael C. Meltsner:

Well, I think, there, we have to draw some distinction between the — the interpretive function of this Court and — and what this opinion says is Alabama law.

Now, that perhaps I should indicate that — that this — the rule of these statutes is hardly inflexible.

The Supreme Court of Alabama in the Clark case cited in brief, in 1940 faced with the identical situation, the question was raised for the first time by a new lawyer on motion for new trial.

Tom C. Clark:

Well, I have that opinion in front of me and I don’t agree with you reading that, I must say.

What the Supreme Court of Alabama did in that case was this, it’s another (Inaudible)

It said that the motion was not timely.

Then it went out and said, “However, we’ve looked at the evidence and we don’t think that the evidence in the record sustains the report.”

And that’s (Inaudible) and in the paragraphs on page 386, that’s not (Inaudible)

The Court is claiming that the motion was not timely made and therefore it hasn’t any proper motion.

However, we’ve looked at it and we don’t think there’s any (Inaudible)

Michael C. Meltsner:

Well —

Tom C. Clark:

(Inaudible)

Michael C. Meltsner:

Well, I — there are — there is language in that opinion which I think is much stronger than that.

After all the court says we are at the opinion and so hold and then decides the case on the evidence.

Is it —

Michael C. Meltsner:

(Inaudible)

(Inaudible)

No plea in abatement was brought in this trial, (Inaudible) that it should’ve been (Inaudible) and the evidence to support and the attempts to be made for the first time on a motion for a new trial.

And that’s the time to do it.

But without regard for the (Inaudible) in presenting the question, then it goes out and (Inaudible)

He makes clear that the evidence (Inaudible)

I — I just don’t see this as —

Michael C. Meltsner:

Well —

— strongly as you do.

Michael C. Meltsner:

Well it — if the Supreme Court of Alabama had the discretion to decide on the basis of the evidence then — then our problems are solved because — then this Court has discretion to review the federal question.

And also, it’s — it’s easy to see why the Supreme Court of Alabama did what it did in this case because it had the power to decide the case on the evidence alone.

Whether or not it did in the Clark case, it certainly indicated that it had the power to do so.

And there is like language in the Arlington case and there is like language in the Sills and Howard cases.

But, I reiterate, I don’t even think that’s important because this judgment is bottomed on a finding that you can raise the question on motion for new trial for the first time.

Potter Stewart:

Well, now what — so — so you asked us to set aside the judgments of the Supreme Court of Alabama, remand this case to the trial court for a full hearing on — whether or not there was a racial discrimination in the selection of the grand jury, is that correct?

Michael C. Meltsner:

Yes.

Potter Stewart:

Alright.

Now, taking it — let’s assume that we do that that.

That we think you’re right and we do just that.

And then let’s say the — the trial court in Alabama has such a hearing and — and decides that there was — here’s — here’s a lot of evidence and then decides on the evidence that there was no — no such racial discrimination.

Then it comes up to the Alabama Supreme Court which then says, “Well, it’s a matter — matter of Alabama law.

We’re not even going to look at that evidence because it was too late.”

All I had to — has been done by a plea of in — plea in abatement.

Michael C. Meltsner:

Well, I — I think that would just be totally inconsistent with these Court’s mandate.

Potter Stewart:

Well, but that — that’s the —

Michael C. Meltsner:

The court did —

Potter Stewart:

Decides the Alabama law, isn’t it, the Supreme Court of Alabama?

Michael C. Meltsner:

That’s true.

It’s decided that in — it has failed to assert the state —

Was the —

Michael C. Meltsner:

— procedural ground in this case.

Or any steps —

Michael C. Meltsner:

(Inaudible)

— taken below by either side to get the Alabama Supreme Court to say what it meant, I should think.

Michael C. Meltsner:

Yes, we filed application for rehearing and in two briefs filed to support that application, pointed out that we did not have an opportunity in the trial court to introduce evidence.

At that point, the states switched its ground that it had been arguing waiver all the time, and it said, “You did have an opportunity”, something which — which counsel of the State here today agrees that we did not have.

The rehearing was denied for that opinion.

May I say this Mr. Justice Stewart, I — I think that the problem you poses is perhaps inherent in — in this Court’s jurisdiction.

And whenever it decides a — a question of — whenever it decides what a Supreme Court of a state has done with respect to state law, this problem is involved.

Potter Stewart:

It seems to be, quite rightly involved in — with the Supreme Court of Alabama.

We had that argued yesterday.

Byron R. White:

Could you — could you we maybe asking to correct the Title and Section here, and that your law (Inaudible) the Alabama Supreme Court (Inaudible)

Now, (Inaudible) that the Supreme Court of Alabama, it says, “Well, there were two grounds (Inaudible) before us.

We just have to (Inaudible)3 rules on federal grounds, (Inaudible)

What authority do you have, this Court, you say in the (Inaudible)

Michael C. Meltsner:

I’m afraid I don’t have any.

I — I haven’t considered the question.

Hugo L. Black:

What do you think about the — when was this automatic appeals statute passed?

Michael C. Meltsner:

It was passed in 1941 after the —

Hugo L. Black:

(Inaudible) — this cases only?

Michael C. Meltsner:

Well, —

Hugo L. Black:

Does it relate to — what kind of cases does this relate to?

Michael C. Meltsner:

Oh, we have — we have — it relates to capital cases.

Hugo L. Black:

Capital — capital —

Michael C. Meltsner:

Yes.

Hugo L. Black:

— case.

Michael C. Meltsner:

This is a capital case.

Hugo L. Black:

And it says that that may be explained in the Supreme Court’s opinion, I am trying to think it might.

It says that in all cases of automatic appeals, the appellate court may consider its discretion in a testimony that was here to be prejudicial to the rights of the appellants may reverse thereon even though no lawful objection or exception was made therein.

Hugo L. Black:

They might have construed that to mean that that’s related to the — an offer of new testimony and that was prejudicial.

Which would — I would presume overriding the other section about the plea in abatement.

This was a statute, was it not, passed for the legislature.

Michael C. Meltsner:

That’s correct.

We — we have cited that — that provision as supportive of the power of the Supreme Court of Alabama to do what it’s done here and suggested it could in other cases.

Was there an offer of proof of any grievance?

Michael C. Meltsner:

Three times, record shows on pages 19 and 20, that counsel sought to tell the Court what he was going to be prove.

(Inaudible) they were — what I had in mind here is, (Inaudible)

Do you think that the Alabama Supreme Court was saying (Inaudible) that will allow to prove what he wanted to prove to the United States (Inaudible)

Michael C. Meltsner:

If defendant had been permitted to prove what he wanted to prove, I’m afraid that he can’t read the opinion that way.

How long (Inaudible) I would think the Alabama appeals statute (Inaudible)

Michael C. Meltsner:

Yes, except that it’s unclear what the word “evidence” means.

It might — it may mean evidence that could’ve been brought out which was precluded by a ruling of the lower courts.

No, no.

Michael C. Meltsner:

Now, I have no case which says that but I —

(Inaudible)

Michael C. Meltsner:

As applied in the Supreme Court of Alabama’s discretion.

Thank you.

Earl Warren:

You’re welcome.