Michel v. Louisiana – Oral Argument, Part 1: Poret v. Louisiana (36) – November 09, 1955

Media for Michel v. Louisiana

Audio Transcription for Oral Argument, Part 1: Michel v. Louisiana (32) – November 08, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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Earl Warren:

Next case is Number 36, Clifton Alton Poret verus — and Edgar Labat, Petitioners, versus State of Louisiana.

Mr. Lozes.

Felicien Y. Lozes:

May it please the Court.

I represent the defendant, Edgar Labat, whose codefendant with Clifton Poret in Number 36.

At the outset, let me say that I feel that I am somewhat in agreement with Mr. Hubert and Mr. Justice Frankfurter and others with the general approach towards Article 202.

However, it is my contention that the proper interpretation of Article 202 by this Court, so as to ascertain if due process has been afforded, the petitioner depends upon all of the circumstances surrounding the case.

And this Court might consistently say in one case of Article 202, deprived him of due process because of the manner, the circumstances surrounding the administration of Article 202, either through a design of the state officials or possibly through negligence or over side of the state officials.

I think the important point and the real point before this Court is whether in fact, in fact, based on all of the circumstances surrounding the case, the administration of Article 202 by the Court, the lower court, by the state officials, the district attorney and by the Supreme Court, and by everyone who had anything to do with the case, whether in fact the defendant and petitioner here was denied the right of due process under the Fourteenth Amendment.

That, may it please the Court, is what gives this Court its strength, its power and its validity, the right to inquire and the right to say, “We have seen discrimination.

We have seen a refusal of due process and we will strike it down.”

Now, gentlemen of the Court, the facts of the case of Edgar Labat insofar as they applied to the motion to Article 202 are relatively simple and on page 1 of the transcript of the record, and two, they’re clearly indicated.

The record shows that Edgar Labat was arraigned on January 3rd, 1951.

The record shows that the above name, defendant in person, was placed at the bar of the Court to be arraigned on charges filed against him.

And after hearing the indictment, together with the endorsements thereon read, the defendant, unattended by counsel, at arraignment, the defendant unattended by counsel pleaded not guilty thereto, circumstance number one.

The Court informed the defendant of the seriousness of the charges and inquired that he was in a position to employ counsel by his trial.

The defendant notified the Court that his family was in the process of hiring counsel for his defense.

The Court notified the defendant to let the Court know on Friday, January 5th, if he had retained counsel.

That’s two days to give to a full ignorant Negro and the record shows that the hospital orderly right to employ counsel — time to employ counsel in a capital case.

And I might say, parenthetically, a case in which it is difficult sometimes to get counsel.

So, he then see January 5th, two days later, Edgar Labat is brought before the Court and the record says, “The Court this day appointed E. I. Mahoney as counsel to represent the accused, counsel notified.”

And then, the record speaks with an eloquent sounds for one year and 24 days and the next minute entry is January 29th, 1952, trial continued withdrawal of counsel.

And turning over, we see the pertinent part, E.I Mahoney, Esquire, moved the Court to allow him to withdraw his name as counsel of record.

And then, later on through the record, we find that the defendants’ employed attorney came into the case either in March or in June.

And I have studied the record as carefully as I can and I’m unable to ascertain just when Mr. Gill, the defendants then employed counsel, came into the case.

It — the record does indicate that Mr. Gill was sitting in the courtroom at the time, here.

But later, there is testimony indicating that maybe Mr. Gill came in, in March, and maybe he came in, in June.

Incidentally, I might state that I did not come into this case until after rehearing was refused by the Louisiana Supreme Court.

What was Mr. Mahoney doing in the meantime?

Felicien Y. Lozes:

The record shows that he did nothing.

I do know that for a substantial part of that time, I personally know because I knew Mr. Mahoney.

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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Felicien Y. Lozes:

And I think that everyone knows that is around the Court that Mr. Mahoney was in bed for some seven months of this period of the year.

Now, just what exactly Mr. Mahoney was doing from the time he was appointed until after the three days, after the end of the grand jury time run out?

I do not know.

The record does not state.

Harold Burton:

When did it run out, do you mind?

Felicien Y. Lozes:

It ran out in this case on March 5th, 1951 in the last day, or rather the last day upon which to file would be March 8th, 1951.

And when the grand jury expired on March 5th, and the three-day period would be March 8th, as I count.

Now, what Mr. Mahoney did from January until March because I see by the record there’s nothing.

Mr. Mahoney is dead now, so he can’t even be of any help.

Well, how can he — how can we tell from this record whether he just made a deliberate choice not to make a motion?

Felicien Y. Lozes:

We cannot tell from the record, Your Honors.

And of course, I — I took the record as it — as it came to me, but I think it is significant that the only thing that Mr. Mahoney did in this case was to withdraw from it when apparently, a year later, this defendant family apparently got to gather some money to employ Mr. Gill and at about that time, Mr. Gill seems to be hovering in the background of the case because the minute entry says Mr. Gill was in Court.

So, it can only be my conclusion from this record that this defendant, during all of the time that his rights were running out of — was represented by virtually no counsel, counsel who did nothing whatever for him and there was no way of course of getting that into the — into the record other than, “Here is the record,” at the time that we took up the case.

However, —

Felix Frankfurter:

Please resume.

Felicien Y. Lozes:

However, the issue of these defendants’ failure to have effective and adequate representation by counsel was raised by Mr. Gill in one of his first or second motions to quash, attacking the grand jury and it was an issue before the Louisiana Supreme Court, it was a definite issue in my petition for certiorari and it is a definite issue in my brief before this Court today.

Felix Frankfurter:

I see — I think that that is found on December 1950, was it?

Isn’t that right?

Felicien Y. Lozes:

December 11th, 1950, yes, Your Honor.

Felix Frankfurter:

1950?

He wasn’t brought into the jurisdiction of October.

When was the case called for trial?

When was — when did the State rule to have a trial on that event?

Felicien Y. Lozes:

No, no.

I think Your Honor is confused with —

Felix Frankfurter:

I’m not confused with anything.

I want to know when — I’m confused about a lot of things and not about the question I’m about to ask.

I want to know —

Felicien Y. Lozes:

Pardon me.

Felix Frankfurter:

— when the case — when the State rules bring this man to trial after he was in the jurisdiction?

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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When did he (Inaudible)

Felicien Y. Lozes:

He was arrested — he was arraigned on January 3rd and he was not brought to —

Felix Frankfurter:

What year it was?

Felicien Y. Lozes:

January 3rd, 1951.

Felix Frankfurter:

Well, it said — that can’t be.

I’m curious to know.

I happened to have an interest as to when it made the crime be brought to trial with the — to the instance — the consequences implications of failure to do so.

It was decided and when, in December —

Felicien Y. Lozes:

December 11th, 1950.

Felix Frankfurter:

But that is about the jurisdiction of October, 1952, no?

Felicien Y. Lozes:

No, sir.

That is not this defendant, the other defendant.

Earl Warren:

Not this one, the other one.

Felicien Y. Lozes:

The codefendant.

Felix Frankfurter:

Oh I understand, all right.

Well, now, let’s find out.

Felicien Y. Lozes:

Yes.

Felix Frankfurter:

It’s the third thing we follow, a separate brief?

Felicien Y. Lozes:

No, there are separate briefs.

Mr. Becker has one brief and I have one.

Felix Frankfurter:

I — I beg your pardon.

Felicien Y. Lozes:

That’s Poret

Felix Frankfurter:

(Voice Overlap) —

Felicien Y. Lozes:

Poret was the one.

Felix Frankfurter:

Very well.

Felicien Y. Lozes:

In this case, the defendant —

Felix Frankfurter:

Do you mean to say, is that — I want to know the date of the indictment.

Felicien Y. Lozes:

December 11th, 1950.

Felix Frankfurter:

When was he brought to trial?

When was this?

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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Felix Frankfurter:

When did the State move with a beautiful trial again?

That’s what I want to know, part of the indictment.

Felicien Y. Lozes:

As best I can see, February 24th, 1953.

Felix Frankfurter:

Well, what happened in the meantime?

Felicien Y. Lozes:

In the meantime —

Felix Frankfurter:

That was the — that was the first time the State sought to bring him to trial?

Felicien Y. Lozes:

To the best of my knowledge, looking at it hurriedly.

Felix Frankfurter:

Yes.

Felicien Y. Lozes:

In the meantime, the codefendant was not in the jurisdiction of the Court.

And as I say, nothing was —

Felix Frankfurter:

They waited another year.

They waited for the other codefendant.

You don’t have to try codefendants together.

Felicien Y. Lozes:

Nothing was done by anyone as I stated in my —

Felix Frankfurter:

But then Justice Harlan’s question becomes relevant.

Then Justice Harlan’s question becomes relevant.

How do you know that counsel may not have thought instead of that pleading on trial?

Felicien Y. Lozes:

I submit Your Honor that this defendant was deprived of a substantial right or substantial procedure of right.

And I submit that the –the record indicates that Mr. Mahoney never really felt that he was ever going to be in this case.

Felix Frankfurter:

How — how can this — how can I get this feeling from Mr. Mahoney through the record, the fact that he did nothing?

Felicien Y. Lozes:

The fact that he did nothing.

Felix Frankfurter:

I was brought up by a very able district attorney who thought being told before than one.

The philosophy of the prosecution is press, press, press and the philosophy of the defendant is delay, delay, delay and file to recover.

Or maybe Mr. Mahoney was brought up by a district attorney at the same time.

Felicien Y. Lozes:

Well, of course, all I know is what — what the record shows that time.

Felix Frankfurter:

That’s what I know, but —

Felicien Y. Lozes:

But the (Voice Overlap) —

Felix Frankfurter:

You said you know how Mr. Mahoney felt.

Felicien Y. Lozes:

Well, Your Honor, as I say, nothing was done for this defendant and his rights ran out.

Now, here is what I say, the circumstances, the circumstances surrounding this case, and that is why I argued in point 2, point 2 of my brief that the legal issue that petitioner was faced with at the time, namely, the right to go in and challenge the grand jury under Article 202 was a complex one.

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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Felicien Y. Lozes:

That is why I quoted extensively in my brief from the law review authorities, from the professors at Tulane and at Louisiana State University who point out that Article 202 is one of the confusing technicalities of criminal law.

They point out that in many instances, Article 202 can be used as a means of circumventing, the right to make a plea of racial discrimination.

Mr. Lozes, on Mr. Mahoney, we have this much in the record.

Your Supreme Court characterizes him as — it says, “The defendant, Labat was represented by able, learned and experienced counsel appointed by this Court to represent him.”

I assume that refers to Mr. Labat or Mr. Mahoney, doesn’t it?

Felicien Y. Lozes:

Yes.

The only comment I can say on that, Mr. Justice Harlan, is that that is a standard phrase used by the Supreme Court of Louisiana to describe attorneys, especially elderly attorneys like Mr. Mahoney who had been practicing some 52 or 53 years at the time that he was appointed in this case and there was some 70 — I believe 76 or 78 years of age at the time that he was appointed in this case.

And that’s just a standard phrase that they say, “Well he had represented by able counsel.”

That’s — that’s my only comment on that.

I don’t’ think it’s a finding of fact or anything else.

I do say that the circumstances was such that Labat, the defendant, not Mr. Mahoney, not — not the lawyer but the defendant whose life the State of Louisiana seeks to take in this proceedings, the defendant could not have intelligently waived his right.

Under the circumstances, when a lawyer was appointed and they said, “Well, we’re going to hire a lawyer,” and nobody does anything for him, the State doesn’t do anything.

He languishes in jail for all that time, and then, the State comes up, “Article 202, your blocked from asserting your rights, Article 202.”

And then you say, “Labat waived his right.”

How could he have made an intelligent choice?

No one — no one explained anything to him.

He didn’t have anything and the complex situation of whether Article 202 applies, whether Article — the other various articles that have been quoted in here apply, whether he had a right to go in and file it before a later arraignment and I might say on that score, I know in — and I’ve been with the exception of the war years.

I was in the District Attorney’s Office prior to the war, and since the war have been not exclusively in the criminal practice, but I have followed substantially the criminal practice.

And I know I have only three cases, when Article 202 was used in connection with the attack on grand juries and I — I even — I mean, it have to ever come in anywhere.

I know of only three, and those are the Wilson case, the Labat case and the Michel case, the two cases here before you today.

In all other cases and in that — and in that choice to the grand jury that Mr. Fust filed with the Court, Judge O’Hara where as he simply stated that whenever defendants come in and timely attack the grand jury, they cop out of plea.

So, here, we have a situation wherein —

William J. Brennan, Jr.:

I did — I didn’t hear those words.

Felicien Y. Lozes:

They cop out of plea, words to the effect that they get a — they get a — a lesser plea, their plea to a lesser offense.

They come in on a capital case, attack the grand jury on the ground that is discriminatory.

And the district attorney gives them as Judge O’Hara says, “An acute technical advantage.”

He lets them plead to something less.

When did Mr. Gill come in the case?

Felicien Y. Lozes:

Mr. Gill came into the case — that is confusing from the record, either in March or in June.

Had he file a motion —

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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Felicien Y. Lozes:

He filed a motion for a continuance, sometime in June.

But Mr. Mahoney went out of the case in January?

Felicien Y. Lozes:

That’s right, sir.

Well, what did he do during that six months, Mr. Gill?

Felicien Y. Lozes:

I do — I do not know either.

He filed a motion to continue on the ground of illness June.

Felicien Y. Lozes:

That is correct, Mr. Justice.

He never filed any motion before it.

Felicien Y. Lozes:

Well, by that time, under any interpretation of Article 202, that — that delay had already elapsed.

Now, may I go because I want to save some time for my colleague, Mr. Becker.

May I go to the — the next point in the case that I have argued and submitted on the brief and that is, that again, where this Court should assume the jurisdiction in the case of this type to a right or to permit a defendant, to assert his federal rights in these two well-known instances and I submit that they both apply in this case.

And I give the well-known instances that were given by this Court by the minority in the recent case of Williams versus Georgia at the last term of this Court.

And that is, first, where the circumstances give rise to an inference that the state court is guilty of an evasion, namely, an interpretation of a state law with the specific intent to deprive a litigant of a federal right.

And I submit that a clear, accurate analysis of the Wilson case in all of its circumstances and all of its surroundings will show that the Court took the plain meaning of a law which said, “You’ve got to — you’ve got three days here.”

The motion was filed sometimes after that and they reinterpreted that so as to put a new time limit on it and say, “Ah, we got a new time limit on it.”

Three days after the time, you’re still too late so you’re electrocuted.

Now, I submit that that was an interpretation which later the Court itself said, “He’s trained judicial legislation, all of the circumstances surrounding that.”

But we got — we’ve got an interpretation here on the Wilson case, the (Inaudible).

Now, the law review writer, Dr. Bennett of Louisiana State University, an outstanding authority says, “This Article 202 as interpreted in the Wilson case provides a very complex situation especially when defendants are not represented by counsel at arraignment.”

And the Louisiana — I mean the Tulane University commentator says, “This is one of the devices used by the Courts of Louisiana to sidestep the issue of racial discrimination in criminal cases.”

Now, gentlemen, you’ve held further and secondly that where a state law honestly though applied, and this is a ground that I would prefer to go on, honestly, though it may be and even dictated by presidents, throws such obstacles in the way of the enforcement of federal rights that it must be struck down as unreasonably interfering with the vindication of those rights.

Now, we submit that it has been judicially admitted here that for the — since the time of men, the memory of men run, not to the country of Louisiana has never released.

The Parish of Orleans has have — never had a Negro on the grand jury until just about a month ago or month and a half ago.

We submit that that shows a prime facie case of racial discrimination.

We submit that we — this defendant should have a right, having a prima facie case before the Court should have a right to show it.

We submit that it is a result, either of deliberate evasion or even though they are honestly applying it, the obstacles placed in the way of these defendants or actually asserting the right mean even getting a day in Court as set up and as — as modelled up by Louisiana with Article 202 is such that it should be struck down by this Court.

William O. Douglas:

Do you mean we should pass on the Constitution —

Felicien Y. Lozes:

No, no, Your Honor, but when all of the circumstances as indicated in this case —

William O. Douglas:

But we should say that in this case that you are arguing —

Felicien Y. Lozes:

In this case, yes.

Audio Transcription for Oral Argument, Part 2: Michel v. Louisiana (32) – November 09, 1955 in Michel v. Louisiana
Audio Transcription for Oral Argument, Part 2: Poret v. Louisiana (36) – November 09, 1955 in Michel v. Louisiana

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William O. Douglas:

The application of it works constitutionally.

Felicien Y. Lozes:

That’s right, because he never had the right to have his day in Court to show it.

And I submit that, Your Honor, in Smith versus Texas, this Court very amply expressed the rule.

It’s — this Court said in the last lines of that case at 311 U.S.on page 128, “If there has been discrimination, whether accomplished ingeniously or ingeniously, the conviction cannot stand.”

Finally, Your Honors, I submit that since both Labat, my client, and Poret, Mr. Becker’s client were indicted by the same grand jury and under the same indictment itself that if for any reason, Your Honors, should find that a new trial should be granted to Poret, Mr. Becker’s client, then the same new trial should be granted to my client because the Louisiana law has held for some 80 years that if the grand jury falls, the indictment under is — is illegal.

Thank you.