Ham v. South Carolina

RESPONDENT: South Carolina
LOCATION: Allegheny County District Court

DOCKET NO.: 71-5139
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: South Carolina Supreme Court

CITATION: 409 US 524 (1973)
ARGUED: Nov 06, 1972
DECIDED: Jan 17, 1973

Jonathan Shapiro - for petitioner
Timothy G. Quinn - for respondent, pro hac vice, by special leave of Court

Facts of the case


Media for Ham v. South Carolina

Audio Transcription for Oral Argument - November 06, 1972 in Ham v. South Carolina

Warren E. Burger:

We’ll hear arguments next in 71-5139, Ham against South Carolina.

Mr. Shapiro you may proceed whenever you’re ready.

Jonathan Shapiro:

Mr. Chief Justice and may it please the Court.

This case is here on certiorari to a decision of the South Carolina Supreme Court affirming petitioner’s conviction and sentenced to one-and-a-half years of hard labor for the possession of marijuana.

The certiorari grant was limited to the issue of whether a black criminal defendant is constitutionally entitled to any opportunity to examine prospective jurors on voir dire with respect to whether they are prejudice against him because of his race or because of certain pretrial publicity in the case.

Thus, this case raises for the first time in this Court as a question of the right of a criminal defendant to examine and to challenge for cause a jurors who are called to decide his case.

We think that that right is a part of the constitutional right to a jury trial and that in this case it was violated.

The petitioner is a black civil rights worker who has been active in the County of Florence in South Carolina as a representative of SCLC, as well as at the time a member of the Bi-Racial Commission of the City of Florence.

He was indicted on June 1, 1970 for the crime of possession of marijuana.

His defense in the case into trial of the case at which he testified was that the charge against him was a result of complicity by the local police authorities to frame him because of his civil rights activities.

Over his objection, the trial was commenced on the day after indictment that is on June 2nd.

Although petitioner, his counsel sought to make motions for a change of venue and for a continuance on the basis of pretrial publicity and possible prejudice on the part of the prospective jurors, he was unable to do so in sworn affidavits as required under South Carolina Law and rather was forced to make the request orally to the court which overruled both motions summarily.

He made similarly an oral motion to quash the trial venire on the grounds that blacks had been systematically excluded and after a hearing on the June 2nd, the Court denied that motion.

On the next day, prior to the selection of the jury, a petitioner requested the trial judge to voir dire the prospective jurors with respect to several matters relating to whether they were prejudiced against him because he was black and because of certain pretrial publicity in extrajudicial statements in the case.

Specifically, he requested that each prospective juror be asked whether he or she was prejudiced against Negroes, whether the fact that the defendant was black would affect his or her ability to render an impartial judgment and verdict in the case.

Whether the fact that the petitioner was bearded would make any difference in the way they decided the case.

In addition, he specifically requested that the trial judge asked the jurors about certain publicity which he claimed had poisoned the minds of -- or possibly poisoned the minds of persons in that county with respect to persons charged with the crime which the petitioner was charged with, and also with respect to whether any of them had heard a television program several days before the trial at which the State’s chief prosecution witness had appeared and had talked extensively in connection with drug crimes.

The trial judge refused to ask any of the proposed questions on the grounds that they were irrelevant.

Instead, he posed three questions to the perspective jurors.

He asked them whether any of them had formed or expressed an opinion as to guilt or innocence of the petitioner whether any of them was sensible of any bias or prejudice for or against him and whether each of them could give the State and the defendant a fair trial.

The entire examination of the prospective jurors in this case took a total of 12 pages of the record.

It was hurried, formalistic and routine.

Each juror as he was called and sworn was put, the exact same question by the trial judge.

Each juror with two exceptions answered the questions, the first two question no and the third question yes.

No further examination was gone into in any case.

The only two exceptions was one juror who answered the first two questions no, but in response to the third question said that she was rather not cert.

One juror said that she had a formed or expressed in opinion as to guilt or innocence.

But beyond that, no jurors in anything more than no, no, yes to the entire board to your proceeding.

Potter Stewart:

Mr. Shapiro, do you have your brief at hand there?

Jonathan Shapiro: