Michel v. Louisiana – Oral Argument, Part 2: Michel v. Louisiana (32) – 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 1: Poret v. Louisiana (36) – 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:

Number 32, John Michel versus State of Louisiana.

Mr. Fust, you may continue.

George H. Fust:

May it please the Court.

In the few remaining minutes we have left, counsel for petitioner will attempt to put three questions before the Court and if possible answer those questions to the satisfaction of the Court.

Question number one, did petitioner in fact have effective counsel in time for him to comply with Article 202 as interpreted in the Wilson decision.

Your Honors, we submit that when Mr. Schreiber was told by Judge Hertz that you are appointed as of this day, March the 2nd, of which was the day the grand jury term ended and he was further told by Judge Hertz that other counsel will be appointed in this case.

Mr. Schreiber did not know at that time whether he would be the chief counsel or whether other counsels, whether it would be one or more, would be in charge of the case.

As it turned out, I was appointed on March the 6th which was the fourth judicial day following the expiration of the grand jury term.

And at that time —

Is there any dispute in the record as to the date of your appointment?

George H. Fust:

No dispute whatsoever.

It’s uncontradicted, sir.

At that time Judge Hertz told me he was appointing me to assist Mr. Schreiber and that I should get in touch with Mr. Schreiber.

That he would not send the usual notice.

I immediately attempted to get in touch with Mr. Schreiber but did not succeed in doing so and instead I called upon the defendant who was in the Parish prison at the time and for the first time learned the facts of this case.

Early the next morning, which was a Saturday, I succeeded in getting in touch with Mr. Schreiber.

And for the first time, he and I had an opportunity to discuss the facts of this matter and we decided to file this motion to quash.

And it was filed Monday morning before arraignment.

And we think that it was timely filed, especially it was timely filed if we were to consider the Article 202 as it had been considered by the Louisiana Supreme Court for many, many years prior to the decision in the Wilson case.

Because prior to the Wilson case, they had five articles which dealt with objecting to indictments by grand juries.

Article 202 is only one of those five articles.

Articles 284, 285, 286 and 287 of the Criminal Code were the others.

Under Article 202, if a person was indicted by a grand jury within the first three days of its term and had counsel then it was incumbent upon him to file any objections to that grand jury before the expiration of the third judicial day of the term.

That was counting from beginning of the term.

If a person was indicted by the grand jury at anytime after the grand jury’s third day, by then you have these other articles which provided that any objections to the grand jury, because they only dealt with indictments, these other Articles 284, 285, 286 and 287 report to grand juries only, not to petit juries.

Any objections to the grand jury must be urged in a motion to quash, must be pleaded before the arraignment, which we did in this case, and must be pleaded, filed and the heard, before the trial in any event.

Now, what happens under the interpretation given to Article 202 in the Wilson case?

Your Honors, it renders these other articles dealing with indictments by a grand jury, Articles 284, 285, 286 and 287 useless, useless in any instance where the State wants to take advantage of a late appointment.

Harold Burton:

Have those other articles been repealed?

George H. Fust:

No, sir.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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George H. Fust:

They’re still in effect, very much so, sir.

Even now, if a judge of any our sections of the Criminal District Court was to appoint a lawyer in the last couple of days following the expiration of the grand jury’s term.

First of all, as Mr. Schreiber pointed out, that lawyer may not know of his appointment until he gets his official notice.

When he gets that official notice, then he’s got to take it upon himself to immediately find out about his case, about the facts and see whether he should file a motion to quash such as we filed in this case.

We believe that the Supreme Court of Louisiana in interpreting Article 202 in the Wilson case actually was guilty of judicial legislation.

We believe that the Supreme Court of Louisiana is beginning to doubt in its own mind the wisdom of its decision because we see in one of the — of one of the latest cases to come before that Court, namely, the State of Louisiana versus Joseph Chianelli of which — the copy of which opinion is the main part of the record by the way.

And in the Chianelli case, Your Honors, the Supreme Court of Louisiana has this to say and we quote, “We conceive that this Court’s interpretation of Article 202 in the Wilson case may have been somewhat strained.

We can see likewise that it might be considered by some to have been judicial legislation rather than judicial interpretation.”

Nevertheless, this Court’s construction and interpretation of Article 202 in the Wilson case has been approved by this Court, the same Court in two recent cases.

And they name our case, the Michel case and the Labat case which Your Honors will also have argued before you.

In —

Does it — excuse me.

George H. Fust:

Yes, sir.

Does it — does it appear in the record whether Judge Hertz, at the time he appointed or talked to Mr. Schreiber about the possibility of appointing you, have told him that he was going to designate you or somebody else to act with him?

George H. Fust:

No, sir.

Judge Hertz did not tell Mr. Schreiber who he was going to designate.

He just told Mr. Schreiber that he would appoint other counsel, period.

In addition, you mean, to himself?

George H. Fust:

In addition to himself.

That’s what I want to know.

George H. Fust:

Correct, sir.

Earl Warren:

And that appears in the record, Mr. Fust?

George H. Fust:

That does appear in the record.

That’s correct —

Earl Warren:

Yes.

George H. Fust:

— sir.

Now, to show you further the confusion of the Supreme Court of Louisiana on this issue, these are their closing remarks in this Chianelli decision.

“We are conscious of the fact that under the — the interpretation given to Article 202 by the Wilson case and others following it, an accused can indefinitely — can indefinitely delay the trial of his case by waiting until the date fixed for trial to object to the petit jury.

This case incidentally concerns the petit jury and I have one more remark to state about this case after I finish here.

However, to avoid these unnecessary delays, Article 202 of the Code of Criminal Procedure requires legislative, not judicial action but the legislature in amending this article should be careful not to incorporate it — in it any provision that would subject the statute to an attack on the ground of denial of due process — process of law.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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George H. Fust:

Actually, if Article 202 is correctly interpreted, the intent of the legislature would have been met.

Article 202 is enacted to cover both grand juries and petit juries, and if you interpret Article 202 to mean the first three days of the jury’s term, right then it would do exactly what the legislature wanted it to do, have all attacks against petit juries urged before the trial.

And not to have the trial and then give them an opportunity to attack the petit jury.

Felix Frankfurter:

Did you say the question of the — the attack on the petit jury is also involved in this case?

George H. Fust:

Not in our case, sir, but —

Felix Frankfurter:

That’s what I’m talking about.

George H. Fust:

— in the Chianelli case.

Felix Frankfurter:

No, no.

But in your case, it isn’t involved?

George H. Fust:

No, sir.

Felix Frankfurter:

All right.

I understand that.

Stanley Reed:

You — you said the Chianelli case has been made part of the record.

You may —

George H. Fust:

It has been made.

Stanley Reed:

You’d file the copy of it.

George H. Fust:

That’s correct, sir.

Stanley Reed:

With the clerk, is that it?

George H. Fust:

That’s correct, sir.

And an — an amusing thing about the Chianelli case, the State in the Chianelli case is urging that the motion to quash is not good because it wasn’t filed within the first three judicial days.

Earl Warren:

Of the term?

George H. Fust:

Of the term.

They just changed their position.

Earl Warren:

You mean they repudiate Wilson?

George H. Fust:

The State did, not the State of Louisiana, the attorney who’s representing the State.

However, the State Supreme Court reversed the trial judge in this matter.

Earl Warren:

Well — well, let me — I think I guess I didn’t understand you.

Do you mean that in the Chianelli case, counsel for the State repudiate Wilson versus Louisiana?

George H. Fust:

Exactly, sir, exactly.

There’s no question about it.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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(Inaudible)

George H. Fust:

Sir?

(Inaudible)

George H. Fust:

No, the Supreme Court did not.

The — the Supreme Court stuck to its decision of State versus Wilson.

Felix Frankfurter:

May I ask you this?

Yes, sir.

As I thought I was I would really confirm, there is in this case, in your view, the Michel case, no challenge for the petit jury?

George H. Fust:

No, sir.

Felix Frankfurter:

You made no challenge to it.

George H. Fust:

No, sir.

Felix Frankfurter:

Was there any — that that might infer therefore, that the petit jury was chosen without discrimination because of absence of colored people — people under them at that time?

George H. Fust:

You may infer that, sir.

We were satisfied as counsel for Michel that the petit jury was satisfactory to us and to our clients.

Felix Frankfurter:

So — so Mr. Schreiber remarks about this common knowledge, judicial notice that he’s taking that there’s a discrimination affecting the (Inaudible) to the grand jury?

But when it comes to the petit jury they — the — they’re no observance of the requirement of the Constitution?

George H. Fust:

Largely so, sir.

You are correct.

I think the document that I was allowed to introduce into the record yesterday will prove that.

No Negro has ever served on a grand jury in the Parish of Orleans.

Felix Frankfurter:

I’m not touching on that but what is interesting to me is that I evidently may rightfully infer to what you said that there is observance, few observance of constitutional requirement against discrimination as the petit jury?

George H. Fust:

That’s correct, sir.

Because we — we do have juries, petit juries down in Louisiana with Negroes included.

Felix Frankfurter:

Well, that sort of disturbs my assumption that Louisiana is disregardful of the duty of having colored people in the part of the administration of justice.

Considering the fact, one would expect if there’s is going to be discrimination just as if say– whereas, from the north, I actually expect more discrimination process to petit jury as to the grand jury.

It’s certainly is a new light on the situation.

Earl Warren:

Mr. Fust, you — you said you had three questions.

You raised two of them.

Would you take just a couple of minutes to —

George H. Fust:

Yes, sir.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

— to raise your third point and answer please?

George H. Fust:

The third question was has there been systematic exclusion of Negroes from grand juries in all ends?

And I think that we have shown that by the information which we were prepared to offer and prove in support of our motion to quash.

But we were not allowed to — to even offer it, even though we filed a motion to perpetuate testimonies, we weren’t allowed to do it.

And the comment I have to make here that as long as Article 202 is allowed to have the interpretation as called for in the Wilson case then I’m afraid that this Court is allowing something to exist which will allow the — allow for continued systematic exclusion of Negroes from grand juries.

Harold Burton:

You want us to overrule Wilson?

George H. Fust:

We do, sir, definitely.

Felix Frankfurter:

Before you sit down, may I ask you this, Mr. Fust?

George H. Fust:

Yes, sir.

Felix Frankfurter:

I got the impression, perhaps they’re only (Inaudible) that there was testimony in the trial court before Judge Hertz in which there was oral testimony both by Mr. Schreiber and the judge himself, is that right?

George H. Fust:

Yes, sir.

That’s correct.

Felix Frankfurter:

Now, can you please tell me where I could find that in this man’s original documents which is the bill of exception, do you have before that or if I ask the clerk to handle this would you (Voice Overlap) —

George H. Fust:

Sir, it’s bill of exception number 1 and it’s in the transcript of the record, too.

Felix Frankfurter:

The testimony?

George H. Fust:

Yes, sir.

Felix Frankfurter:

Well, perhaps (Inaudible)

Earl Warren:

(Inaudible)

Felix Frankfurter:

All there is — is printed, isn’t it, on this subject?

George H. Fust:

Yes, sir.

Earl Warren:

Mr. Hubert.

Leon D. Hubert, Jr.:

May it please the Court.

I want to clarify first the State’s position in the Chianelli case.

In the Chianelli case there was an attack upon the petit jury, not the grand jury at all.

Now, the Wilson case, of course, didn’t deal with the petit jury — jury.

It dealt with the grand jury only.

So that the State’s position was that 202 could be applied as written to a petit jury.

Wilson held that it could not be applied to a grand jury because if it did, if it were applied that way then it would be unconstitutional and that it would not allow a reasonable period or the raising of federal points.

I won’t say therefore that the State did not abandon its position in — in Chianelli at all with reference to the Wilson case.

We regard it as a different situation altogether.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

That it is possible to raise, to — to say that 202 applies to petit juries three days after the beginning of the term because a man knows he’s coming up in that time and has an opportunity, as a matter of fact, to raise them.

The Supreme Court took position and we disagreed with it that Wilson should be — that the language in 202 should be applied to both petit and — and grand juries.

So that while they disagreed with us, they affirmed action.

Now, on the Wilson case as recently as the Chianelli case and all of us know in the Chianelli case.

I would like to make this point which I intend to make a bit later.

And that is the meticulous concern of Louisiana and its Supreme Court for the protection of federal rights.

You recall that Mr. Fust, a moment ago, read a language from the Chianelli case wherein the Supreme Court, going out of its way, said, “Well now, if we are wrong about 202 as to petit juries and grand juries, it’s up to the legislature to do that but we want to make the caveat that they better be careful to protect federal constitutional rights.”

I think it’s important because part of the argument made in this case and in the next case, principally, has to do with the idea that Louisiana in Wilson was developing a sinister and anti-federal doctrine.

A doctrine that was intended as a mechanism to prevent the raising of federal rights and we contend that it — exactly the contrary is true.

That had as a matter of fact, the Louisiana Supreme Court not interpreted 202 to apply up to three days at the end of the term, then they would have found our statute precisely in the position of the statute in Texas which this Court declared unconstitutional some 40 years ago, Carter versus Texas, because it didn’t allow an opportunity for a person who had been indicted after the three days of the — the commencement of the term to raise the point, of course.

Whereas, Louisiana’s interpretation of 202 allows every person at least three days.

And in many instances, of course, far more because if a person, let’s say were indicted today in November by a grand jury whose term would expire on March that person will have until three days after the end of the term in March to raise that point which I submit to the Court is longer than exists in many States who cut off the right to raise pleas at the arraignment part.

So that Louisiana a man could be arraigned.

He could file other pleas in Louisiana.

And yet he’d still have until some date in March if he were indicted today to raise that point.

Felix Frankfurter:

May I — may I ask you on one of your questions about — I’ll try to.

Am I right in inferring on the basis of symphonious since I’ve been here that the term of grand juries is apt to be longer?

Is apt to be rather longer in southern States?

Leon D. Hubert, Jr.:

I am not in a position to — to say —

Felix Frankfurter:

How long?

Leon D. Hubert, Jr.:

— in general.

In Louisiana, it’s six months.

Felix Frankfurter:

Six months?

Well —

Leon D. Hubert, Jr.:

And, of course, the petit term is one month.

But the — then your term is six months.

I have — I’m not able to assist the Court with reference to the others.

Felix Frankfurter:

Well, in the cutoff period it’s varied of course with the time in which the indictment has had the approval — the indictment is handed down by your grand jury.

Leon D. Hubert, Jr.:

That is correct.

If a person were indicted on the first day of the new term, he’d have 180 days plus three.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

Instead of having a fixed time with reference to the case, you would get a — you have a general arithmetic term with reference to the whole term of the grand jury?

Leon D. Hubert, Jr.:

Yes, sir.

And which —

Felix Frankfurter:

Of this statute, but that there is — does this grant you under the laws of the other southern States are engaged to this —

Leon D. Hubert, Jr.:

I don’t believe so, sir.

Sir, I have had research made on comparable grand jury statutes.

And I’ve found that, of course, about one-third of the States don’t require grand juries at all, the indictments in capital cases.

The general period is arraignment.

That, you know, you cannot file the attacks of this sought after the plea in abatement, which is the general common law ruling.

Now —

Stanley Reed:

Does your grand jury and your petit jury, are they drawn from the same —

Leon D. Hubert, Jr.:

Yes, sir.

They are drawn from the same wheel.

The wheel is — consists of 1000 names.

And as Mr. Fust stated, that there are Negroes in the wheel, ever since Pierre versus Louisiana which this Court decided some 25 or so years ago.

So that —

Stanley Reed:

So the new grand jury had the — the venire from which the petit jury was to be taken during the succeeding month was all drawn from the same wheel?

Leon D. Hubert, Jr.:

That is correct, sir, on 1000 names —

Stanley Reed:

And —

Leon D. Hubert, Jr.:

— chosen by jury commissioners.

Stanley Reed:

And a — as the two then — who’s –who determines if it’s going to be a grand juror or if it’s going to be a petit jury?

Leon D. Hubert, Jr.:

Well, for the grand jury term, I think it’s — there are weeks before the term.

Stanley Reed:

Well, did the special drawing for the grand jury —

Leon D. Hubert, Jr.:

There is a special drawing of 75 names —

Stanley Reed:

Well, then you don’t draw your petit — while you draw them, the names in the same wheel, there are different drawings?

Leon D. Hubert, Jr.:

Oh, yes, sir.

They’re not — the — the petit juries are drawn by the month.

The 15th of the preceding month, like for instance for December, there would be a — a grand — petit jury drawn in between the 15th and the 20th of this month.

But its from the same 1000 names, of course, depleted as — as the jury goes along.

Sherman Minton:

They put the 1000 names here in the beginning of each year, isn’t it?

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Well, it must be 1000 names before that you commence drawing any kind of a jury.

Now, of course, if you draw — we have six sections.You draw 150 names to for each the jury, that’s going to reduce that wheel.

Then immediately at — thereafter and before a new drawing takes place, there is — the wheel is brought up to at least 1000.

It can be over.

But it must be at least — and no — no drawing can commence until there are 1000 names in the wheel.

Sherman Minton:

May accept the wheel?

Leon D. Hubert, Jr.:

The wheel is made up by jury commissioners appointed by the governor.

And they have authority and as far as I know, they exercise it to investigate the qualifications of jurors prior to their — of putting — putting them in the wheel.

And as I say, there’s been no attack of some — of that system since Pierre versus Louisiana in which —

Sherman Minton:

How long have you been district attorney?

Leon D. Hubert, Jr.:

May 3rd, 1954.

I was not involved in this case in its earlier stages.

I did argue it in the Supreme Court of Louisiana.

Sherman Minton:

Do you know of any other attacks on the selection of the grand jury similar to this?

Leon D. Hubert, Jr.:

I think that Mr. Schreiber mentioned the — the ones that have.

There had been several attacks.

And Mr. Schreiber correctly pointed out that Judge O’Hara some years ago actually threw one out.

Other than that, insofar as I know, there’s never been a holding by the Supreme Court that this is wrong.

And there’s no record in this case that the system is wrong at all.

Of course we never got to that because the lower court up — upheld the — upheld the demurrer on the State.

How does it come about that if the petit and grand juries are drawn under the same box that no Negro has ever served on a grand jury?

Leon D. Hubert, Jr.:

Well, it comes about — I don’t know how.

Let me say this to you, Mr. Justice Harlan.

75 names are drawn out of the 1000 for the grand jury per term.

These 75 names are presented to the judge who is going to have control of the jury for the next six months and they rotate.

He chooses, by own discretion, 12 to serve as the grand jury.

Now, the statement is made that how — how is it that that there has never been.

Actually, this record doesn’t show that there has never been.

There’s no record to show that there has never been any Negroes on the grand jury here.

As a matter of fact, the present grand jury has two.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

It is said and, of course, I will try and to believe it because the people who tell that, I think, they’re reputable people, that there never has been.

But what I don’t know is why.

And it seems to me that they all — that there can be legitimate reasons in New Orleans why the few who appear among the 75 by laws should be excused.

I don’t know.

Perhaps and I don’t think this is a rash conclusion.

Perhaps it isn’t.

The — the laboring class states that they don’t want to be on grand juries.

It’s a long term.

Felix Frankfurter:

How much of the term did they — how many days in the term do they actually exist?

Leon D. Hubert, Jr.:

It’s up to the grand jury.

It has —

Felix Frankfurter:

(Voice Overlap) —

Leon D. Hubert, Jr.:

— been once a week for the last — since my term for the last 18 months and sometimes twice.

But the point I’m making is that I am not satisfied.

And I do not admit that that system is wrong.

I’m aware of Hernandez versus Texas about a presumption of — that when there have been no grand jurors for some long period of time that that systematic exclusion must exist.

But I suggest to the Court that that’s a rebuttable presumption and I think the State can rebut it.

I don’t know.

I have not — I have not had occasion to — to do so.

I’m aware that in Hernandez, this Court said that the fact that commissioners who had appointed the grand jury attested that they had not systematically excluded — would not — this Court wouldn’t — but wouldn’t observe, wouldn’t honor that statement.

But I am trying to believe that this Court might well honor a statement by the general bench.

All of the bench of the Louisiana Criminal District Court to the effect that they have not — conscientiously they have not excluded Negroes systematically.

And that — that it is a fact that in the past years, there have been none if that is so, because they didn’t want to serve or they didn’t have the qualifications of some —

Apart from the timeliness of this motion, do you think that a sufficient showing was made to entitle them to a hearing?

Leon D. Hubert, Jr.:

Oh, I suppose so, yes.

That is to say the — the motion I suppose states a cause of action which by our demurrer we admit but only for the purpose of the demurrer.

Louisiana would want to counter that.

The facts read it but I must confess on the cases of the other States in the light of the Hernandez doctrine which establishes, however, merely a prima facie presumption which can be, I believe, upset in which I think Louisiana could overcome.

Earl Warren:

Is there anything in the — in the record, Mr. Hubert, or anything within your knowledge showing how many Negroes on the average are among those thousand that go into the box?

Leon D. Hubert, Jr.:

No, sir.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

I do not know that.

All I can say is that that thousand has been approved by this Court.

This Court threw it out in — in Pierre versus Louisiana.

And then the system was changed and it’s — it’s been sanctioned.

Earl Warren:

So what is the system?

Well — well, the question that’s in my mind is this.

I — I think there’s some — in one of these cases there’s the statement that there were, I think 6, 6 out of 2500 in the in — in the box.

Leon D. Hubert, Jr.:

That would be a —

Earl Warren:

We find those and there’s three of those were — were men over 80 years old until they’re unable to serve these jurors.

Would that be an — approximate the situation or would it be entirely wrong?

Leon D. Hubert, Jr.:

I must say that I do not know the answer to that.

I am inclined to doubt it.

And I say that because of this reason.

Since I have been there which is so — there have been four grand juries since I have been there.

Of the 75 and I’m — I’m just thinking back.

There have been between 8 and 12 of the 75 Negroes since I have been there.

Harold Burton:

On the grand —

Leon D. Hubert, Jr.:

I don’t know —

Harold Burton:

— jury panel.

Leon D. Hubert, Jr.:

How’s that, sir?

Harold Burton:

On the grand jury panel.

Leon D. Hubert, Jr.:

On the 75.

Harold Burton:

Yes.

Sherman Minton:

Did they offer any evidence as to this panel?

Leon D. Hubert, Jr.:

No, sir, because —

Harold Burton:

(Inaudible)

Leon D. Hubert, Jr.:

— I believe this is cutoff by plea.

Sherman Minton:

What I mean is (Voice Overlap) —

Leon D. Hubert, Jr.:

Oh, he made the offer to — to support his — his plea.

Oh, yes.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

There was an offer to support his plea with them.

(Inaudible)

Earl Warren:

Is this — was this a case in which they offered to show that there, there were only six in the panel and that the three of them —

Leon D. Hubert, Jr.:

I don’t believe so.

Earl Warren:

— were over 80?

Leon D. Hubert, Jr.:

I don’t — I don’t recall that that’s (Voice Overlap) —

Earl Warren:

Perhaps, it might be one of the other case that I —

Leon D. Hubert, Jr.:

It might be one or other.

Let me pass on now and say this.

That Louisiana, in general, accepts the statement of the case as presented by Mr. Fust and Mr. Schreiber with at least three observations with reference to it.

The State does not see that there has ever been any doubt in this case concerning the date of Mr. Schreiber’s appointment.

Now, if the Court will look at the transcript on page — on page 34 and 35 when the evidence is taken on the point, the very bottom of page 34, when Mr. Schreiber said that his recollection was a bit hazy about the matter of the judging (Inaudible), my recollection is not.

And then proceed to give what his recollection was and it’s on page 35.

And it is to the effect that on February 25th, he first spoke to Mr. Schreiber about it.

And that he appointed him on March 2nd.

But there’s one other point that has not yet been brought out.

And that is according to Judge Hertz he spoke to Mr. Schreiber in the interval between February 23rd and March 2nd.

So that it’s hard to see that Mr. Schreiber wasn’t aware of — of this impending matter.

Now, from February 23rd, he’s been refreshed about it again in the interval.

And finally a formal appointment on the 23rd.

Now, the point has been made incidentally and I refer again to the record on page 47, the Supreme Court of Louisiana had no doubt about this question as a matter of fact at all.

If the Court would look at the bottom page of 47, the Court of Louisiana says this.

The counsel insists that the statute as interpreted as unfair and so forth.

There might have been some merit in this postulation if the predicate upon which it’s based were valid,But the minutes of the Court show that appellant’s chief counsel, chief if you noticed, Mr. Schreiber, an attorney of experience in criminal cases was appointed by the judge to represent him on March 2nd, 1953 (not on March 5th as counsel contend).

The judge of course, Judge Hertz, also said that in his per curiam.

So that you’ve got the judge saying that in the testimony.

You’ve got him affirm within his per curiam.

You have the State of Louisiana Supreme Court accepting that as a fact in the case.

Hugo L. Black:

What is the custom of that written notice?

Leon D. Hubert, Jr.:

Well, I was going to address myself to that but I’ll do it now.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

I have only been there 18 months.

And I can state to the Court I do not know of such custom.

I do not say it doesn’t exist.

Perhaps it does.

I do say this.

That there is no evidence in this record as to such a custom and I will —

Hugo L. Black:

Why — why was — why was he served with notice?

Leon D. Hubert, Jr.:

I don’t know, sir.

You asked me if I knew the custom, I must truthfully say I never heard any.

But if there maybe my own ignorance you see I wouldn’t come into contact with these appointments and all of it.

Earl Warren:

Did you try to find out if there were such a custom —

Leon D. Hubert, Jr.:

No, sir, because —

Earl Warren:

(Voice Overlap) —

Leon D. Hubert, Jr.:

— the point was first raised here.

I do not know if there was such a custom.

I do know it’s not in this record.

And two other things I know.

That there is no statute which requires service of the notice, nor is any court rule on the subject.

Stanley Reed:

You — you spoke of the Court’s minutes showing the appointment.

Leon D. Hubert, Jr.:

The Court’s minutes do, also.

Stanley Reed:

Is that in the record?

Leon D. Hubert, Jr.:

Yes, sir.

It is in the record.

Just at the moment, I may not be able to find it.

It would — it would appear in the minutes and also it would appear —

Stanley Reed:

Or perhaps your associate will find that while you go ahead.

Leon D. Hubert, Jr.:

Well, that’s — that’s right.

Now, while I’m on that —

Felix Frankfurter:

May I ask if you would just — were to mention.

I noticed the reading in the Wilson case in the report that counsel — one of the counsel for the State was Mr. Hertz.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

Is this the person Judge Hertz?

Leon D. Hubert, Jr.:

Yes, sir.

It is.

Also, one was Mr. Becker as — who was the counsel in this case.

Felix Frankfurter:

Well, then he knew about this business.

Leon D. Hubert, Jr.:

Oh, yes, sir.

On page 3 of the — of the transcript.

Earl Warren:

Knew about what business?

I — I just want to —

Felix Frankfurter:

202, the whole — the requirement on that.

He was counsel in the Wilson case which dealt with this problem of 202.

Is that right?

Leon D. Hubert, Jr.:

Mr. Becker was —

Felix Frankfurter:

I mean Judge Hertz.

Leon D. Hubert, Jr.:

— for the State.

He was for the State.

Felix Frankfurter:

I’m — I’m talking about Judge Hertz.

Leon D. Hubert, Jr.:

He was for the State.

Felix Frankfurter:

Judge Hertz?

Leon D. Hubert, Jr.:

He’s — he was Assistant Attorney General.

Felix Frankfurter:

It’s very important if he was the assistant, if he is the same man.

Leon D. Hubert, Jr.:

He is the same man.

Felix Frankfurter:

That he ever — if he had some familiarity with the problem about the filing the requirement of where and the challenge to be arraigned.

Leon D. Hubert, Jr.:

I don’t think there’s any doubt about it.

And I’ll say it further, I don’t think there’s any doubt about the familiarity.

They remember the bar with that question including the members all who were representing the defendants in this case.

It’s a common thing.

And has been since before Wilson, as a matter of fact.

With respect to Mr. Fust’s role in the matter, I mean Mr. Fust admits but I want to document the point by referring to page 37 of the transcript.

That Mr. Fust was appointed to assist Mr. Schreiber, not as main counsel at all but to assist him.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

When was he told that?

Leon D. Hubert, Jr.:

He was — I — when was he told that he was to assist?

Earl Warren:

Assist and not be —

Leon D. Hubert, Jr.:

I do not know.

Earl Warren:

— not be on a (Voice Overlap) —

Leon D. Hubert, Jr.:

I do not know.

The — the judge indicates that — well, I — I don’t know.

Earl Warren:

Did he say?

Leon D. Hubert, Jr.:

The judge says this, “With all due respect to you Mr. Fust, I appointed you to assist him.”

That is Schreiber, not —

Earl Warren:

But is — is there any question about the fact that Mr. Fust was appointed on the fourth day after this?

Leon D. Hubert, Jr.:

There’s no doubt about that.

Earl Warren:

Well, then that wouldn’t make — that wouldn’t be very informative to either Mr. Fust or his —

Leon D. Hubert, Jr.:

Well, I agree.

Earl Warren:

— or his associates so far as what had to be done before that.

Leon D. Hubert, Jr.:

Well, that’s correct.

But I’ll say this that the Supreme Court of Louisiana answered that point on page 47 by saying after all the man is not entitled to two lives within this case.

Earl Warren:

Why’d he appoint him?

Leon D. Hubert, Jr.:

How’s that?

Earl Warren:

Why did he appoint him?

Leon D. Hubert, Jr.:

To assist —

Earl Warren:

(Voice Overlap) —

Leon D. Hubert, Jr.:

— but I — I don’t think that the position —

Earl Warren:

Why did he —

Leon D. Hubert, Jr.:

— should be taken now.

Earl Warren:

What — what I’m trying to get at is, was — was Mr. —

Leon D. Hubert, Jr.:

Schreiber?

Earl Warren:

— that Mr. Schreiber told — according to the judge at the time he appointed him that he was going to appoint Mr. Fust or somebody else —

Leon D. Hubert, Jr.:

Yes, sir.

Earl Warren:

— to assist him.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Yes, sir, I believe that is so.

Earl Warren:

Does the record show that?

Leon D. Hubert, Jr.:

Yes, I think you’ll find that on page 35 where Judge Hertz gives his version of the appointment set up.

Stanley Reed:

Was Mr. Fust ever appointed in record?

Leon D. Hubert, Jr.:

Oh, yes.

He was appointed in the record.

Stanley Reed:

What?

Leon D. Hubert, Jr.:

I don’t think he was ever served with the notice but he served.

Stanley Reed:

Oh, yes.

I know it.

But —

Earl Warren:

Does the record show he was — he was appointed?

Leon D. Hubert, Jr.:

Let look that up for you.

I think it does, if Your Honor please.

I don’t see a minute.

Actually, my assistant here told me he doesn’t.

Earl Warren:

That it was not.

He was not appointed on the record.

Leon D. Hubert, Jr.:

I don’t see it, Your Honor.

It may — it may had been.

If we discover it in — in a few moments, I’ll point it out.

Stanley Reed:

I noticed on page 3 where Mr. Schreiber’s appointment appears and the next day and this is beyond March the 9th, which of course —

Leon D. Hubert, Jr.:

Well, that it does then.

What it recognized is Fust as being in the case if we have that.

Stanley Reed:

Oh, yes.

That was —

Leon D. Hubert, Jr.:

But there is — there is no amended entry.

Stanley Reed:

(Voice Overlap) — as to precise moment that the official appointment was made.

Leon D. Hubert, Jr.:

There is no amended entry nor does it appear on the reverse of the indictment which is — would give Mr. Fust’s formal appointment.

Earl Warren:

Mr. Hubert, as — as I understood Mr. Schreiber when he was in Court on the 2nd, the judge said to him, “I’m going to appoint you to represent the defendant in this case.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

And I’m also going to appoint some other lawyers to represent —

Leon D. Hubert, Jr.:

To assist you.

Earl Warren:

Now, at that time, was there anything said about appointing him just to assist him or — or was there anything to infer that they weren’t equals in — in the case and acting in a way that would require collaboration between them as to what they’re going to do in an important matter?

Leon D. Hubert, Jr.:

Well, the judge says this about it.

I don’t — and that’s on page 35.

I don’t remember the time.

That was between the first discussion on March 2nd and I told him that’s, Mr. Schreiber, in the event —

Earl Warren:

(Voice Overlap) —

Leon D. Hubert, Jr.:

— he accepted the appointment.

Earl Warren:

Where is that, you’re saying?

Leon D. Hubert, Jr.:

It’s page 35.

It’s Judge Hertz’s version you see on what happened.

“Until that in the event he accepted the appointment, I would appoint him no lawyer because the case was a capital one.”

I’m not sure that this is —

Earl Warren:

In the event that he accepted it, now, is there anything in there to show that on this occasion Mr. Schreiber did accept it on the 2nd?

Leon D. Hubert, Jr.:

Yes, the record shows that.

The record shows the appointment.

Earl Warren:

What it is this —

Leon D. Hubert, Jr.:

Judge Hertz says he was appointed on that date.

Earl Warren:

Well, now but this says, this — this part you just read said that the — the judge’s testimony was that that if he accepted that he would appoint another.

Leon D. Hubert, Jr.:

Now, that doesn’t (Voice Overlap) —

Earl Warren:

It didn’t say that he accepted it.

Leon D. Hubert, Jr.:

I — I don’t see any doubt until it’s been raised here that Mr. Schreiber was actually appointed on the 2nd.

The minutes show it, the back of the indictment show it.

Judge Hertz says so.

His per curiam says so.

And the Supreme Court says so.

The Supreme Court’s, actually, by parenthetical statement which I read said and not on March 5th as contended by counsel.

They made that finding of fact in this case.

It was March 2nd.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Now, I want to address myself to one other point before I go into another matter.

Now, yesterday, Mr. Justice Reed asked the question.

I think it was about Mr. Schreiber as to whether or not, as the way I understood it, as to whether or not this point concerning effective counsel because you see Mr. Schreiber now says, well, even if I was appointed on the 2nd, I wasn’t really effective.

He’s candid in saying so.

I’m not so sure I understood Mr. Justice Reed’s question all right or the answer.

But I think there’s enough confusion at least in my mind to make this clarification.

So far as I know and it’s true that I’ve been this case only since its appeal in Louisiana.

The first time the point was ever raised about Mr. Schreiber not being effective counsel was in this Court.

It was not raised in the State of Louisiana.

It was not raised in the application for writs to this Court.

And it’s not raised in their brief.

Yesterday, for the first time on argument, I heard the — the statement that we’re now — even if I was appointed on March 2nd, I really — I really wasn’t effective.

I might say that if the Court wishes to consider that point that precisely that is involved in the next case for rape cases where this Court will be called upon to state what is effective counsel.

And how we didn’t have reply to it.

You see in our briefs because it has not been raised.

But if the Court should choose to — to consider the point, we ask that our argument in the next case be made applicable here.

Sherman Minton:

Who is (Inaudible)

Leon D. Hubert, Jr.:

Where is Lewis, sir?

Sherman Minton:

Who is (Inaudible) that’s mentioned on —

Leon D. Hubert, Jr.:

She was the aunt of — of the defendant.

Hugo L. Black:

Seems that the judge introduced her to Mr. Schreiber (Voice Overlap) —

Leon D. Hubert, Jr.:

She was the one you see who was trying to get money to employ counsel.

She’d spoken to the judge on a previous occasion.

And on this —

Hugo L. Black:

If I understand the record is that she — the judge introduced her to Mr. Schreiber and told her on March the 2nd, this is the lawyer I appointed?

Leon D. Hubert, Jr.:

Did I not call you up and introduced Mr. Schreiber until he — this is the lawyer l appointed and she said yes.

Hugo L. Black:

Then the judge went further, he said on that same day, March the 2nd as you said to me that Mr. Schreiber, if you don’t mind I don’t know anything about the case but you might obtain the arraignment to give me another week (Inaudible) record.

Leon D. Hubert, Jr.:

Well, it seems certainly he was appointed.

Hugo L. Black:

That’s on March the 2nd?

Leon D. Hubert, Jr.:

On March the 2nd.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Now, I should like to press on to the State’s argument with respect to this matter.

And point out this.

That the only question before this Court, of course, is whether Wilson interpreting 202 is constitutional.

This Court does not have before it.

It couldn’t have mechanically the question of whether the Louisiana system of choosing grand jurors is valid because that point is not in the record.

It can’t be passed on administratively, mechanically in this case.

The only issue is, is 202 as interpreted by Wilson a constitutional statute?

Now, I should like to say this about Wilson.

Wilson occurred 15 years ago.

Louisiana has been operating on the Wilson then for 13 years.

And I want to point out that this Court approved Wilson in 1943.

And as writ of certiorari was granted if the Court will look at our brief on page 6, motion to dismiss was filed in this Court said about the Wilson doctrine, the motion to dismiss is granted.

And the appeal is dismissed that appearing for decisions based upon a nonfederal ground adequate to support it.

In other words, the Court’s interpretation of 202 has been approved by this Court.

And I submit that if the Wilson doctrine is to be inquired into it all, it means an overruling of the — of — by this Court of its own decision in its per curiam in 1943.

Felix Frankfurter:

If you wouldn’t mind my correction, the Court found the no federal question.

Leon D. Hubert, Jr.:

That’s correct, sir.

Felix Frankfurter:

Not that it approved?

Leon D. Hubert, Jr.:

Well, that’s right but it — it found no —

Felix Frankfurter:

I — anyway —

Leon D. Hubert, Jr.:

Where is the federal question now then?

You see —

Felix Frankfurter:

Merely verbal correction sometimes is casually complicated.

Harold Burton:

Mr. Hubert, you referred to page 6 of your brief.

Did you file a brief in this case?

Leon D. Hubert, Jr.:

Yes, sir.

It’s the yellow one.

Harold Burton:

I see.

Leon D. Hubert, Jr.:

I say therefore that this case could — that this Michel case could very well be decided on the basis simply that there is no federal question.

That the case rests upon an adequate state ground already approved by this Court.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

And certainly, we have been operating under it —

Felix Frankfurter:

Well —

Leon D. Hubert, Jr.:

— for 15 years.

Felix Frankfurter:

Between — between saying that the federal — that the construction placed upon your statute by your Supreme Court, it raises no federal question and a specific instant in which an otherwise valid statute may in the circumstances of the particular case not give an opportunity, a timely opportunity to challenge there’s a difference.

Leon D. Hubert, Jr.:

Oh, yes.

I’m — I’m quite —

Felix Frankfurter:

This particular application or rather a particular application are an otherwise valid statute, may lay the federal question or the statue itself in its — or their reapplication was not.

Leon D. Hubert, Jr.:

I — think that’s correct.

So that actually —

Felix Frankfurter:

And that’s — that’s what’s involved in this case?

Leon D. Hubert, Jr.:

That — that brings us to the question —

Felix Frankfurter:

That —

Leon D. Hubert, Jr.:

— in this particular case —

Felix Frankfurter:

That’s right.

Leon D. Hubert, Jr.:

— under the facts of this case —

Felix Frankfurter:

That’s right.

Leon D. Hubert, Jr.:

— there were three days.

In another case that may be 25 or 100 or — and still another there may be none.

Hugo L. Black:

Is it altogether be correct to says that there are only three days if you accept the judge’s statement as correct as here he said on March 2nd, to Mr. Schreiber, according to the judge, he told him that he’s going to appoint him and so forth.

And that Mr. Schreiber had said — asked him to give him an opportunity to look it over and continue the matter for a week.

And what was the object in continuing it for a week to give them in that question up till he look it over?

Leon D. Hubert, Jr.:

Well, I don’t know.

Hugo L. Black:

What makes you get ready to see what he would want to do?

Leon D. Hubert, Jr.:

Well, except as that’s so.

But the point has never been made that this application for continuance had the effect of extending the three days.

I doubt it if it’s extensible (Inaudible)

Sherman Minton:

To you the — the arraignment was therefore March the 2nd.

It either had to be held or be continued.

So what happened as I read record was, the counsel was set to continue over for a week and in fact the arraignment which would protect him on the other matters was (Voice Overlap)–

Leon D. Hubert, Jr.:

Not on this —

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Sherman Minton:

— And this covered by the statute.

Leon D. Hubert, Jr.:

That’s correct but not on this, with where the three days is well established, was then and well then.

Hugo L. Black:

Maybe that’s true and maybe that’s the letter of the law.

What if the lawyer was in and they’re talking about this point, they’ve been talking about this point.

And the judge says, “I’m going to ask of the — has told the (Inaudible) maybe you got to get a lawyer.

And they didn’t get a lawyer.

And then he tells him he hadn’t got any.

And the lawyer says, well, I’d like to have it put it in the open.

He says, well, I am going to appoint somebody else to help you.

And he does put it off to him.

I would think that most lawyers under those circumstances would think that the matter was over for a week.

And they — they had a right to ignore on that basis.

Leon D. Hubert, Jr.:

Well, of course —

Harold Burton:

And do nothing?

Leon D. Hubert, Jr.:

— Your Honor is making the point —

Hugo L. Black:

And do thing nothing —

Leon D. Hubert, Jr.:

that this Court —

Hugo L. Black:

— except consider whether or not what they would do and — and particularly when the appointment comes later in writing.

Leon D. Hubert, Jr.:

Of course on —

Hugo L. Black:

And after your appointment comes in writing, I would suppose that would be entirely different.

Leon D. Hubert, Jr.:

Of course, it may well be, too, that Judge Hertz was familiar with this and Mr. Schreiber was familiar with this.

Both knew that this was the last day of the — of the Court’s term.

Harold Burton:

On page 3 of the record, the minute of the Court shows that the Court appointed Mr. Schreiber to represent the defendant in this matter.

On motion of the defendant, the Court ordered arraignment to continue to — to March the 9th, who made the motion for the defendant?

Stanley Reed:

I understand that most was made by the defendant, by Mr. Schreiber.

Hugo L. Black:

If you’ll look on —

Harold Burton:

He must have been acting then on March the 2nd?

Hugo L. Black:

If you’ll look on —

Harold Burton:

If the — if the record purports to speak verity.

Hugo L. Black:

The record, of course, you don’t claim of that record but not be explained by what the testimony shows on the other pages.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Hugo L. Black:

At page 35, do you think (Voice Overlap) —

Leon D. Hubert, Jr.:

Oh, yes.

I think that if the Court has to take it altogether —

Hugo L. Black:

— (Inaudible) have to take it exactly as it says it?

Leon D. Hubert, Jr.:

Well, yes.

I — I — no, sir.

I — I don’t mean that this Court is bound to accept it.

Hugo L. Black:

Well, what I get — what I get from this statement on 35 that she has a question that — that he didn’t know exactly as he stands and appointed definitely but he says now, I’m going to appoint you.

He said, well, give me a week that an opportunity to look it over.

Well then I suppose an opportunity to look it over is an opportunity to look it over.

Leon D. Hubert, Jr.:

Of course, he’d been in the case really and assess since February 23rd.

But it seems to be there’s another answer to that.

Hugo L. Black:

I don’t understand that even the judge says he had been in since February 23rd.

Leon D. Hubert, Jr.:

But he spoke to him at first.

Hugo L. Black:

The judge said he had discussed the matter with him cursorily –cursorily right after the date of the first arraignment which was February 23rd.

Leon D. Hubert, Jr.:

Well, my point —

Hugo L. Black:

He came there without a counsel but he didn’t claim the appointment.

Leon D. Hubert, Jr.:

Well, I don’t think — my point is that on March the 2nd, it was not a new matter to Mr. Schreiber.

No, it was a week old.

Hugo L. Black:

But it was not a new matter.

And that if — if there was a new matter insofar as whether he was definitely from that moment, charged to the fixed responsibility (Voice Overlap) —

Leon D. Hubert, Jr.:

Well, certainly the Court —

Hugo L. Black:

— but it also means in perjury.

Leon D. Hubert, Jr.:

Certainly, the courts thought so.

Certainly, the Supreme Court thought so.

Therefore, the question is, is this Court is going to substitute its judgment for the state court on the matter of fact.

It must go beyond the record.

It must go beyond what the Supreme Court had said.

It is true that, of course, that if a court or if a state court misinterprets the facts and does so for evasive purposes, this Court, to avoid the presentation of constitutional rights, of course, this Court can intervene.

Hugo L. Black:

And I’d suppose that the question of whether under the circumstances here, taking it all into consideration, in this said, that we have to say that he was charged with the responsibility there at the time when the Court told him he had a week to file the papers so that his prime interest — final interest in the law in case he didn’t do it.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Hugo L. Black:

And I don’t see why —

Leon D. Hubert, Jr.:

That’s certainly one aspect.

Hugo L. Black:

That seems to me that what it’d be.

Felix Frankfurter:

I — I’d suppose the real question is whether we can say the Supreme Court of Louisiana couldn’t answer that question in the way that you did.

Leon D. Hubert, Jr.:

That’s a direct point I made a moment ago.

And I submit that this Court in all of the other cases I’ve ever seen about the point, it’s always the followed the state court on the questions of fact unless it found a sinister, anti-federal attitude.

And I don’t think that exists.

Hugo L. Black:

I don’t — I don’t understand that that is required.

Leon D. Hubert, Jr.:

Well, I —

Hugo L. Black:

But you understand that we have a right to consider the circumstances on constitutional question.

And that we are not bound only by what the Supreme Court and the State says in its opinion.

Leon D. Hubert, Jr.:

On questions of fact?

Hugo L. Black:

I don’t think any cases (Inaudible)

Leon D. Hubert, Jr.:

On questions of fact?

Hugo L. Black:

That it fell on questions of circumstances and the effect as it with the relation to a man’s constitutional protection.

Leon D. Hubert, Jr.:

Well, I do believe —

Hugo L. Black:

Otherwise, I think this Court said that you — we don’t have chance to protect the Constitution at all.

Leon D. Hubert, Jr.:

Well, I do believe —

Hugo L. Black:

Not reading the right at all in many cases.

Leon D. Hubert, Jr.:

— that if the State or the Court refuses to follow facts to this — there’s one case cited by the defendant exactly to that effect.

One of them, the Missouri Supreme Court simply had no facts upon which to base its adequate state ground.

Then the Supreme Court of — this — this Supreme Court said we’re going to — we’re going to say this is not an adequate state ground because there’s nothing to support it from the record.

Now, of course they didn’t say that Missouri was or say dishonest about it.

But it’s close to that.

Felix Frankfurter:

Well, of course no state court can by absence, a complete absence of fact and saying there’s a fact where there isn’t.

Or by distorting what obviously lies on the surface of the record and calling it a finding of fact preclude a constitutional right.

Leon D. Hubert, Jr.:

That’s correct.

I agree.

Felix Frankfurter:

That’s a very different thing to say, well, he preferred to the (Inaudible)

Leon D. Hubert, Jr.:

That’s certainly one position that can be taken.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

And mind you this Court has frequently said that they may not agree with the state setup, with the state procedure.

They may think it’s not good at all but that’s not the test.

They may prefer another way of handling a certain point.

That’s not the test.

The test is after all even though you don’t agree with it, you’d prefer a different system, you might make a different finding.

Nevertheless is that so little here that it can be said that this bends constitutional rights that deliberately were taken away from him.

I think not.

Harold Burton:

Nor do they have to be deliberate.

Leon D. Hubert, Jr.:

Well, I believe so if Your Honor —

Hugo L. Black:

Suppose they were mistaken — suppose they were mistaken, they had taken away from him.

Leon D. Hubert, Jr.:

Well, how is Louisiana then to operate its system?

Certainly, no one will fall with the proposition that Louisiana has a right to say sometimes that now here, you cannot file pleas after this given date.

Everybody does that.

I mean procedural statute of — statutes of limitations and that’s what this is.

They’re common.

I’ll mention (Inaudible) that important rights are always lost by any statute of limitation as perhaps they were here.

But this Court has always said we will not interfere unless they’re just isn’t any way to raise the federal question.

Louisiana has said yes, you had three days.

This Court must say no.

You did not have three days.

We disagree with Judge Hertz.

We disagree with the Supreme Court of Louisiana which addressed itself precisely to the question.

Parenthetically, I have called that, not as on March 5th as the counsel contend.

Louisiana addressed itself directly to that point and filed to the contrary.

Stanley Reed:

I heard your reply to Mr. Justice Black in — in reference to the minute entry on March the 3rd that that — as I understand from you that you think that is subject to attack as not being correct?

Leon D. Hubert, Jr.:

No, sir.

You mean that minute entry itself is inaccurate?

Stanley Reed:

Yes.

Leon D. Hubert, Jr.:

No, sir, I don’t believe it’s inaccurate.

Stanley Reed:

No, no.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Stanley Reed:

Is it subject to attack as not stating the correct fact?

Leon D. Hubert, Jr.:

Well, I suppose so if —

Stanley Reed:

Or is an order of the Court beyond that?

Leon D. Hubert, Jr.:

I think that if there were overwhelming evidence in this record to show that the minute entry was wrong then I think that if Louisiana had found that the minute entry was right, this Court might be entitled to intervene.

Stanley Reed:

That it doesn’t attack only support.

Leon D. Hubert, Jr.:

Yes, sir.

Stanley Reed:

But when it comes here, is it open to (Voice Overlap) —

Leon D. Hubert, Jr.:

I think not.

Unless as I say except in the rare case practically amounting to bad faith and evasion.

Earl Warren:

Mr. Hubert, may I ask you this question, assuming that — that Mr. Schreiber was appointed on the 2nd of March and there’s no controversy about that at all.

But assuming also that he’s — he did not do anything for this client until after his time had expired whether it was willfulness or neglect or whatever it might have been.

And as a result this man was deprived of his right to — to move in — in Court to course his indictment, would he have had effective representation of counsel —

Leon D. Hubert, Jr.:

I think so.

Earl Warren:

— as this — as this Court has —

Leon D. Hubert, Jr.:

I — I don’t — I think so.

I don’t want to — if — if the Court will permit me to (Inaudible) that for this reason, Mrs.Dupont here my assistant —

Earl Warren:

Yes.

Leon D. Hubert, Jr.:

— will handle that in the next case.

Earl Warren:

That — that’s perfect — that’s perfectly all right.

Leon D. Hubert, Jr.:

I will say, generally speaking, we are prepared to say that non-action may be significance of wise action in this instance.

To use Mr. Justice Minton’s phrase in Williams versus Georgia, put a built-in error, don’t raise it.

Earl Warren:

Well, if — if your associate is going to answer that —

Leon D. Hubert, Jr.:

Yes. (Voice Overlap)

Earl Warren:

— I won’t question.

Could I ask you one question before you continue?

Under your practice, does the Court have a right to extend the time beyond the 202 period?

Leon D. Hubert, Jr.:

I do not know whether 202 —

If in that case it had been made?

Leon D. Hubert, Jr.:

I do not know whether 2 — 2 — I do not know whether — whether 202 is absolute.

I think that it certainly can be argued that it is because last clause of 202 says and if not filed within the time set by the statute, it is waived.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

So that it is questionable, it seems to me, whether a waiver is possible by the — by the States.

But our position is that there was no waiver here.

It was not asked for in that sense.

I think it would have to be exact.

Not to miss the judge’s statement that he is continuing the cases.

Leon D. Hubert, Jr.:

But we — there are many other objections that could be raised, you see, until arraignment.

But this is a waiver concept.

Well, it is statute of limitations and waiver together.

Earl Warren:

Do I understand Mr. Schreiber correctly when in — in understanding him to say that — that had been done on many other occasions, was being done in the —

Leon D. Hubert, Jr.:

I don’t —

Earl Warren:

— when the Court (Voice Overlap) —

Leon D. Hubert, Jr.:

Yes, I understood Mr. Schreiber to say that but the State has not availed itself of 202.

Is that what Your Honor —

Earl Warren:

Yes and permitted them to make this — make this afterwards.

Leon D. Hubert, Jr.:

All I can say is I do not know.

You see because I’ve been there only 18 months.

Earl Warren:

Yes.

Leon D. Hubert, Jr.:

And as far as I’m concerned, I’ve never — we’ve — we’ve taken advantage of state rights every time we have a changed.

I will not deny because it may well be so.

Sherman Minton:

Are you familiar with the two cases that you cited in that respect?

Leon D. Hubert, Jr.:

Which ones are those if Your Honor please, sir?

Sherman Minton:

I think he was in them when he was the assistant —

Leon D. Hubert, Jr.:

Oh — oh, you mean the Dowels case and the Green case?

Sherman Minton:

Do you — what about this case?

Leon D. Hubert, Jr.:

Well, in Dowels case that’s the one that Judge O’Hara held that the jury was bad and threw it out.

That’s some years ago.

The Green case involved, and this is quite important, the Green case involved a grand jury in the country parishes of Louisiana.

And I make the point because the system of choosing juries in the country parishes of Louisiana is not the same as in New Orleans at all.

So, the Green point, the Green case is not threatened by this at all.

It had to do with grand juries in the country and it’s (Inaudible)

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Sherman Minton:

How was it then it raised in — later in — in the Green case?

Leon D. Hubert, Jr.:

How’s that sir?

Sherman Minton:

Was it raised after the time they expired in the Green case?

Leon D. Hubert, Jr.:

I think not.

I believe it was raised in time, I’m sure it was.

Sherman Minton:

Was it a grand jury case?

Leon D. Hubert, Jr.:

Yes, sir.

It was a grand jury case.

Incidentally, the Supreme Court of Louisiana upheld the grand jury there.

Do you want to know why?

Hugo L. Black:

Do you know —

Leon D. Hubert, Jr.:

It was a country grand jury.

Hugo L. Black:

Do you know of any statutory provisions in Louisiana with reference to the selection of juries or grand juries or motions to be made in connection with the things of that kind?

Leon D. Hubert, Jr.:

Only two —

Hugo L. Black:

Where it has never been held — where — where it never been held that they could not be waived?

I would be surprised if it’s other than him.

Leon D. Hubert, Jr.:

I — I do not say they do not exist.

I don’t know.

Hugo L. Black:

Usually with reference to the motions so that the grand jury and the venire and so forth, either sides can waive all of these.

Leon D. Hubert, Jr.:

You see actually here’s the point that must be remembered.

202 you know is not an old statute in Louisiana.

202 dates from 1928 when the Code of Criminal Procedure was adopted prior to 202.

They are a different system altogether so that in fact these cases have held since time immemorial if you had such — such a time.

It has nothing to do with this case because those cases, and they are old ones, were under the statutes existing prior to 202.

202 was actually a reversal, a deliberate reversal, we claim, of the previous practice.

Hugo L. Black:

I understand — what I had in mind was this.

Will that suppose that you had, has been the prosecuting attorney at this time and you said, well, times up or that the — we’re going to waive, we’re going to let you make that motion in 6 days or 10 days.

And you had gone through this.

Do you have any doubt?

Do you think there’s any possibility that the State Supreme Court would avail that you couldn’t waive it?

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Well, I don’t know because personally I wouldn’t reverse my position just on the matter of personal integrity.

I wouldn’t tell a man you got until such — such time and then — and then —

Hugo L. Black:

Well, of course —

Leon D. Hubert, Jr.:

— walk out on my client.

Hugo L. Black:

I understand this.

And — and —

Leon D. Hubert, Jr.:

But —

Hugo L. Black:

That — what I mean is that that kind of proceeding with reference to view this, with a motion and so forth.

Leon D. Hubert, Jr.:

Why I think (Voice Overlap) —

Hugo L. Black:

Ordinarily we —

Leon D. Hubert, Jr.:

— to clear showing that this man and Mr. Schreiber were mislead by the judge who told them, “Now, look you have the whole week to go by natural equity to require.

But I don’t think that’s the situation.

Hugo L. Black:

Now, I — perhaps I understand.

Leon D. Hubert, Jr.:

I don’t know if this Court is — is interested in — in our arguing now as — in support of the Wilson doctrine.

We had cross-claimed that it’s settled in principle, at least, with the understanding of Mr. Justice Frankfurter who pointed out that every case will stand on its own facts.

I will say this —

Felix Frankfurter:

Well, I was speaking for myself.

I don’t see what is the argument about they — that — that 202 had been construed the way the Supreme Court of Louisiana construed it.

Leon D. Hubert, Jr.:

I don’t — that I don’t know of any case.

Felix Frankfurter:

And — and out of (Inaudible) shows that construction does not remotely touch his federal constitutional rights.

What is there to argue that this judicial legislation —

Leon D. Hubert, Jr.:

Well, that those —

Felix Frankfurter:

— of judicial construction.

Leon D. Hubert, Jr.:

The point made by the opposition is that it’s — it’s such an outrageous construction, which I don’t admit, that it must be tainted, that it must have been created for the purpose of evading the federal —

Felix Frankfurter:

Presumably, that’s what we’ll see in Wilson.

Leon D. Hubert, Jr.:

What’s that sir?

Felix Frankfurter:

That presumably, that was here in 320 U.S.

Leon D. Hubert, Jr.:

Yes, sir.

And Your Honor says that it’s not bad if it’s not tainted with this idea of evasion.

We have in our brief adequate logical support for the Wilson doctrine.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

It’s pointed out in the Wilson case by itself.

But why — but why — why does the State have these three days?

In the first place, because if they interpret it to mean three days after the commencement of the grand jury term then there would not be adequate time to raise federal rights.

Had to make it at the end which show the meticulous concern as I said a moment ago for federal rights.

Now, let’s look at it from another point of view.

And — and Wilson says so, too.

Louisiana has a valid interest in seeing that these attacks upon grand juries are made early, why?

Because after all if we have to justify a grand jury presumably we have to call the grand jurors.

And in months or years they’re gone.

They’re scattered.

That language is used in Wilson.

Then, of course, another part is that Louisiana is interested in correcting its errors as soon as it may do so.

I don’t believe that — why, I know this Court has never held that a statute of limitation which is reasonable a — a waiver system which is reasonable.

And which, however, happens to cut off federal rights is thereby unconstitutional.

We state in our brief quite a number of cases on page — page — well, starting at page 15, Parker versus Illinois.

A very strong language which we quoted.

I won’t read.

It’s there.

Haley versus Commonwealth where this Court — the Virginia case where this Court only recently denied writ.

The man made an attack upon the grand jury after the trial.

Too late.

And I suppose he went to his death.

My point is that these — you’ve got to have a rigid procedure.

You cannot upgrade.

Hugo L. Black:

I suppose — I suppose that there, speaking of the circumstances that if — if this particular defendant has had no — conceding that as assumed.

He had no lawyer hired, no lawyer appointed and the time expires.

What — what would you say then?

Leon D. Hubert, Jr.:

Well, my answer to that would be this.

I think 202 still stands.

But I say another constitutional privilege enters into the picture.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

Lack of counsel —

Hugo L. Black:

Yes.

Leon D. Hubert, Jr.:

— at an important phase of his life.

So, I would say that if a man does not have an attorney until after the three days have passed, let’s assume, 202 will still stand but another principle will come to his aid.

And I think that then it would be a –a reasonable time after his appointment.

And I think that Louisiana could well say it, three days is reasonable.

I want to comment before I close, and I see my time is growing short, about one case and it’s the only one the State has been able to find really quite close, I think, to this case.

And that’s Avery versus Alabama on — on page — the end of our brief.

It’s on page 18 of our brief.

There, the defendant had counsel appointed for him on a Monday.

He was brought to trial on a Thursday in a capital case.

And this Court, I think it was Mr. Justice Black, who wrote the opinion, examined it carefully.

There’s no doubt about it.

But found the three days was not an unreasonable time to — to raise all he had to do.

And to prepare for trial in spite of the fact that a motion for a continuance was made on a Thursday based upon inadequate time to prepare.

And this Court upheld that conviction.

Now, our position is that if three days is enough, is a reasonable time to prepare for trial, then it certainly must be a reasonable trial time to file a motion which I want to parenthetically state is in fact a simple motion.

If this Court will look at the motion in the record, it’s a — it’s a one page motion.

It’s a one page motion well-known to Mr. Schreiber, well-known to Mr. Fust.

Mr Schreiber probably defended against it, his Assistant District Attorney before,.

Nothing novel.

Nothing requiring great study.

Nothing requiring even great typographical effort.

A simple statement practically formed could be done in a half an hour.

The State therefore submits, if this Court pleases, that —

Hugo L. Black:

Of course, we didn’t hold in the Avery case that a rigid law to that effect would have complied with due process.

It — it was in the nature of examining the circumstances such as Mr. Justice Frankfurter mentioned a while ago in connection to this case.

Leon D. Hubert, Jr.:

That’s correct.

Hugo L. Black:

How it was applied.

Leon D. Hubert, Jr.:

Certainly, this Court may examine the circumstances here but I submit that it will find, that unless he’s willing to say that Judge Hertz in the Supreme Court of Louisiana do not read the evidence from it or that the — that there was a reasonable opportunity for all (Inaudible)

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

I want to point out another point just in closing that you see Wilson and this case too, these — these principles are not applicable solely in this Negro exclusion area.

The Wilson doctrine applies to white people.

Chianelli was a white man.

It applies to other pleas or or attacking the grand jury then on the basis of — of a systematic exclusion.

Now, that was the case in Chianelli, too.

Or the Chianelli case, the attack was based upon the fact that the argument, that there were not 1000 names in the box when the — when the drawing began.

My point is that the effort made in — in the — by the defense and that’s all the reason I mentioned it.

The effort made by the defense is to say Wilson is — is a terrible case.

Wilson is a case designed by Louisiana to — to keep Negroes from raising constitutional points, is not so.

Sherman Minton:

Mr. Hubert, under 202, they could have attacked the petit jury, do you think?

Leon D. Hubert, Jr.:

Oh, yes, sir.

Sherman Minton:

They didn’t do that?

Leon D. Hubert, Jr.:

Yes, sir.

We could attacked the petit jury under the — under the reasoning of the Chianelli case until the trial but Mr. Fust quite correctly stated they didn’t attack the petit jury here.

I don’t know whether there were Negroes on this jury or not.

I know that ever since I have been there, the petit jury has always had four or five Negroes or more in the panel.

Felix Frankfurter:

What is the part of — may I ask before you sit down the — for him (Inaudible)

What is the volume of criminal cases in your parish?

Leon D. Hubert, Jr.:

We have something between 6000 and 7000 cases per year, felonies.

Felix Frankfurter:

That are up for arraignment — up for arraignment?

Leon D. Hubert, Jr.:

Yes, sir.

We have six divisions of court.

Felix Frankfurter:

Out of those 6000 or 7000 how many goes to a different trial?

Leon D. Hubert, Jr.:

More than a small percentage and then they haven’t plead guilty.

Felix Frankfurter:

10 — 10%?

Leon D. Hubert, Jr.:

Possibly a bit more than that.

I would say closer to 20%.

It depends on the section, too.

There are some sections where all cases go to trial.

Felix Frankfurter:

You mean the section of the judge presiding?

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

That’s rather one of the most troublesome a phenomena of criminal justice.

Leon D. Hubert, Jr.:

No doubt about it.

Some judges just simply won’t talk to counsel —

Felix Frankfurter:

You mean to say you —

Leon D. Hubert, Jr.:

— in advance about what the sentence is going to be, so they go to trial.

Felix Frankfurter:

You mean to say even New Orleans judges play what — play the judge’s presiding to that extent on which —

Leon D. Hubert, Jr.:

Well, if Your Honor please, I —

Felix Frankfurter:

(Voice Overlap) —

Leon D. Hubert, Jr.:

— I don’t know.

Felix Frankfurter:

— whether there’s a truer version.

Leon D. Hubert, Jr.:

I really don’t know.

I — I really don’t.

Hugo L. Black:

You must mean by 6000 or 7000 to include misdemeanor?

Leon D. Hubert, Jr.:

Yes.

If I — I had a —

Hugo L. Black:

Yes.

Leon D. Hubert, Jr.:

Frankly, we’re making surveys all the time, what are load is but it’s about that.

Hugo L. Black:

Yes.

Earl Warren:

Mr. Duplantier.

Leon D. Hubert, Jr.:

Mr. Duplantier is not going to argue in this case, if Your Honor pleases.

He is going to argue in the next one.

Earl Warren:

I see.

Before we conclude this case I’d like to ask Mr. — Mr. Schreiber if he will file a memorandum concerning those cases where this — where 202 has been departed from as you — as you mentioned —

Gerard H. Schreiber:

If Your Honor pleases —

Earl Warren:

— that this —

Gerard H. Schreiber:

— that is borne out of the — by the record.

The — Mr. Hubert was mistaken.

The case that we cite in here, the Robert Green case, that never did go to the State of — to the Supreme Court of the State of Louisiana nor did the Alfred Dowels case go to the Supreme Court in the State of Louisiana.

These two cases as I recall the circumstances, the Robert Green case was eventually (Inaudible), if I remember correctly.

I was out of the District Attorney’s Office at the time but if my recollection of it is that it was eventually (Inaudible)

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Gerard H. Schreiber:

The Alfred Dowels case is the case where Judge O’Hara quashed the indictment.

Now, those were the two cases where the Court long after the expiration of the grand jury term and as a matter of fact, after the defendant had pleaded to the indictment, had pleaded not guilty, had been arraigned, permitted the withdrawing of that plea of not guilty in order that a motion to quash could be filed.

That is cited in the testimony taken in support of — or our — our answer to the demurrer filed by the State.

What happened in the thing is the — that we filed our motion to quash, the State filed their demurrer to our motion to quash.

We filed an answer to their demurrer.

In support of our answer to the demurrer, we took notes of evidence where I testified, Mr. Fust testified and the judge testified.

And all of that is in this record.

Earl Warren:

Yes.

Gerard H. Schreiber:

The testimony is here.

We made it part of the bill of exception that we presented to the State of Louisiana.

And it’s in that testimony where Judge Hertz says, “I continued the case.”

I didn’t continue it.

When Judge Hertz says you requested the continuance, I had to say well, judge, I’ll have to take exception to that.

I was on the stand testifying —

Earl Warren:

Yes, I know that.

Gerard H. Schreiber:

— I’ll have to take exception to that.

I didn’t continue it.

And he says, no.

He says, I contended it.

Earl Warren:

Yes.

Gerard H. Schreiber:

So all of that is part of it.

Earl Warren:

Yes.

(Voice Overlap)

Felix Frankfurter:

Before you sit down may I ask you this?

Have you contended and are you now contending that there’s a practice to disregard the three-day limit of which and that this case is a discriminatory failure to apply that (Inaudible)

Gerard H. Schreiber:

I will —

Felix Frankfurter:

Are you contending that?

Gerard H. Schreiber:

I will say with reference to this particular case that this is the first case following the Wilson case, that in my knowledge where a — a demurrer was filed to a motion to quash of this type.

Now, in my experience it does not extend back into the Wilson case.

Mr. Becker’s experience does extend that far back.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Gerard H. Schreiber:

He perhaps can answer that better than I can.

Felix Frankfurter:

But I don’t know if that —

Gerard H. Schreiber:

This is the first case where they did it.

Felix Frankfurter:

I don’t know what the statute — the implication of that.

Whether demurrer filed or not filed.

What I want to know is whether you’re contending that this case is a discrimination, meaning by that a conscious refusal or even mechanic refusal by a judge not to apply 202 when the time was up in that effect is, is in all other instances such litigation is allowed.

Are you contending that?

Gerard H. Schreiber:

I say it happened.

Now, I would not say either Judge Hertz.

And I would not say that Judge Hertz deliberately waited up until a certain time he had so forth to appoint me not by any means at all.

Felix Frankfurter:

I’m not talking about that.

It’s a question of when he appointed you.

The question is assuming that literally, technically, arithmetically, the three days have expired, what I’m asking is whether in — in — on every other case or as a matter of habit, the course of business before the criminal courts in this parish, they did not apply 202 as it applied in this case.

Gerard H. Schreiber:

Mr. Justice —

Felix Frankfurter:

Are you contending that?

Gerard H. Schreiber:

I don’t have to make that contention, it happened.

Felix Frankfurter:

Well, are you telling me, what I want to know is that in every other case that they disregarded the requirement.

Gerard H. Schreiber:

Yes, sir.

Felix Frankfurter:

That’s your position?

Gerard H. Schreiber:

That is right, sir.

Felix Frankfurter:

Did you make that position?

Did you argue that before the Supreme Court of —

Gerard H. Schreiber:

Oh, yes, sir.

Felix Frankfurter:

— Louisiana?

Gerard H. Schreiber:

Yes, sir.

All of this went before the Supreme Court of Louisiana.

Felix Frankfurter:

Did you argue there?

Gerard H. Schreiber:

Yes, sir.

Felix Frankfurter:

That 202 is practically a dead letter?

Gerard H. Schreiber:

Well, I — I — of course in our practice before Louisiana, we reserved those with exceptions.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Gerard H. Schreiber:

And we present these bills into — to the Supreme Court before a review.

Then we argue our bills before the Supreme Court.

Now, all of the things that we are talking about are part of our bill of exception number one.

Now, as I say we reserved 42 bills.

Now, whether I specifically call the Supreme Court of Louisiana’s attention to this specific thing or not, I cannot say yet at this time.

Felix Frankfurter:

If it — did you present this as a question for this Court?

Gerard H. Schreiber:

Yes, sir.

Felix Frankfurter:

Do you think that the question that you put on page 4 of your brief in this main argument includes the fact that this is a departure from our norm and therefore the discrimination.

And therefore the denial of the equal protection of the law?

Gerard H. Schreiber:

No.

If Your Honor pleases, we do not do solely.

I might say that with reference to that in that we were not going to urge this question of time before this Court.

Last week, Mr. Fust and I, we conformed with reference to this case.

And we felt that we would be making a big mistake if we did not urge what, at this particular time, we consider to be a very, very important issue in this case.

And unfortunately, this brief was printed by — by this — by the — the Court and we had no time, this only happened last week.

We had no time to get another — issue a supplemental brief and a request that it be printed so that we come up here and we orally urge at this particular time.

But it is — it is raised in our petition for writs of certiorari.

Felix Frankfurter:

With this — I’d just like to call your attention to state the — the petition for certiorari was granted last February.

And your brief was filed here and all these printer form and what the judge said is that between all that time, the reflection on the case, you didn’t think of this important point?

Gerard H. Schreiber:

No, sir.

Well, it — it — we thought of this important point.

We did know whether —

Felix Frankfurter:

Isn’t that why he (Voice Overlap) —

Gerard H. Schreiber:

— we didn’t know —

Felix Frankfurter:

(Voice Overlap)

Gerard H. Schreiber:

— whether — no, sir, not in our brief.

In our petition we have raised it.

But we didn’t.

At that particular time we — we didn’t think that — that it was important for many reasons.

Maybe we just didn’t want — want to raise it because we didn’t think we were going to get any results out of it.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Gerard H. Schreiber:

However —

Felix Frankfurter:

Well (Voice Overlap) —

Gerard H. Schreiber:

— it is a significant point.

Felix Frankfurter:

Why does it state here?

Now, you think it’s a point of great importance.

You say you had it in mind but before you — you rejected the raising of it but now you think it’s important.

Gerard H. Schreiber:

Well, we didn’t —

Felix Frankfurter:

Why didn’t you raise it?

Gerard H. Schreiber:

We didn’t reject it.

There are a lot of points that —

Felix Frankfurter:

What I mean you didn’t reject it so far as notice to this Court is concerned?

So far as notice for the State is concerned, you rejected it.

Gerard H. Schreiber:

No, sir, the —

Felix Frankfurter:

But you said you had it in mind but you didn’t — decided not to put it in your brief.

Gerard H. Schreiber:

Well, that’s the only thing.

We didn’t — we didn’t put it in our brief.

Of course, our brief is only a written — a written argument.

And we raise it at this time by way of oral argument.

And as matter of fact with the — the request, the — that we’d like to make to the Court that we be given the time to file a — supplement brief covering this particular point, if Your Honors would like to have it by way of written brief.

Earl Warren:

Thank you.

Sherman Minton:

(Inaudible) Wilson case?

Gerard H. Schreiber:

Yes, sir, we do.

Sherman Minton:

That’s inconsistent to this position (Voice Overlap) —

Gerard H. Schreiber:

Well, it’s an alternative position.

It’s not inconsistent.

It’s an alternative.

Sherman Minton:

You said yes, that these people have not received equal protection because in the — they hadn’t — there’s been discrimination as between cases isn’t it?

The rules are unlike, the discrimination of the rule.

Gerard H. Schreiber:

Well, this — this Wilson — this Wilson case has — has been a disturbance in the State of Louisiana ever since it was decided.

And it is purely, the Wilson case is purely a question of law.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Gerard H. Schreiber:

We have here — we are urging at this particular time a mixed question of law and fact in accordance with the judgment of this Court in the case of Powell versus Alabama.

We can’t prove anything or any of the points raised by Powell versus Alabama without bringing some of these facts in.

But we did make them up in the record.

We’ve got them in that — in that record.

Of course, the Wilson case is purely a — legal question.

It’s a question of whether the Supreme Court of Louisiana in its interpretation of Article 202, whether it, by virtue of that interpretation has to deny, not only to this defendant but to the defendants coming after him and to subsequent defendants coming after them, the due process of law.

Earl Warren:

Thank you.

Mr. Becker, may I ask you concerning this practice that Mr. Schreiber has spoken of as to — to the applicability of Section 202.

He stated you were more familiar than — than he is.

Rudolph F. Becker, Jr.:

Yes.

If Your Honor pleases, I handled the Wilson case.

I applied to this Court.

My learned counsel on the other side is — is in error.

He read the report that this Court dismissed an appeal.

This Court never granted certiorari in the Wilson case.

As Justice Frankfurter pointed out, certiorari was refused on the ground that there was no federal question involved in the interpretation of Article 202 of the Louisiana Court of Criminal Procedure at that time which is now the revised statutes of Louisiana.

And it’s taken right out word for word.

There wasn’t — as the Supreme Court of the United States said in refusing the writ of certiorari that there was no federal question involved.

That the State had the right to interpret its own statutes as long as that interpretation was not in violation of the constitutional rights of an accused.

I think that is the point on this saying.

But I might say this that throughout the Wilson case, is the first time that Article 202 was ever invoked against any defendant, white or colored, in Louisiana.

That’s the only time it was ever invoked to my knowledge after 28 years of criminal law practice.

202 was only invoked for the first time in the Wilson case.

Learned counsel on the other side cannot cite a case from the Louisiana Supreme Court in which Article 202 of the Court of Criminal Procedure was ever invoked until the Wilson case.

Now, in as far as the procedure which the different justices have asked counsel in Louisiana, we have a system in Louisiana of selecting grand juries and petit juries which does not — is not the same as in other States.

Now, up until the case of Pierre — Pierre, there were no Negroes ever served on petit juries or grand juries in Louisiana.

It was the Pierre case which is the case that came from the 24th Judicial District Court of the State of Louisiana, the Parish of Jefferson, in which this Court forced the State of Louisiana to, at least, put the names of colored people on the petit jury.

The State of Louisiana, never at any time, put a colored person on any jury, petit or grand jury.

And in the cases of Pierre versus State of Louisiana, this Court forced the State of Louisiana to put colored people on the petit juries.

Now, what we are attempting to do is to have the State of Louisiana do the same thing in as far as the grand jury is concerned.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Rudolph F. Becker, Jr.:

And each time that there is a case in which that is invoked, they come up and use 202 since the Wilson case.

In my — my humble opinion, I think that the decision in the Wilson case was a decision to deny to Wilson his constitutional rights and of due process of law because if that statute, with all due respect, had been interpreted as written to deny him the right to question the grand jury would certainly have been a denial of due process of law and had been unconstitutional.

Earl Warren:

Well, Mr. — Mr. Becker —

Rudolph F. Becker, Jr.:

Yes, sir.

Earl Warren:

— they — that isn’t precisely the point I asked.

Mr. Schreiber said that since the Wilson case, that 202 was not invoked in the manner it was — has been invoked in this case and under these circumstances.

And he cited some other cases and — and he said inferentially that that was — it was more or less the practice not to — not to invoke it in circumstances of this kind.

And all I wanted to know, he — he admits that you knew the practice for those days better than he did.

And I — I just wanted to ask you what that means?

Rudolph F. Becker, Jr.:

I don’t — I don’t know of any case in which Article 202 has been invoked except about three cases.

And strange as it may seem, that in each one of those case, the defendant is a colored person.

And each time it’s been invoked, it’s been attacked.

An attack has been made upon the grand jury that filed a motion to quash the indictment because no colored person’s won the grand jury.

And that’s the only time to my knowledge in Louisiana that it has been used.

Now —

Sherman Minton:

Is that Chianelli?

Rudolph F. Becker, Jr.:

In the Chianelli case —

Sherman Minton:

He’s a white man, wasn’t he?

Rudolph F. Becker, Jr.:

In the Chianelli case which is a white man, counsel for Chianelli used the — the decision of the Supreme Court to walk in the morning of the trial and file his motion to quash.

That’s what he did.

Earl Warren:

Oh, where was that — when then did he do it?

Rudolph F. Becker, Jr.:

He did it the morning of the trial.

That Chianelli was coming to trial —

Earl Warren:

Yes.

Rudolph F. Becker, Jr.:

— and the judge — the trial judge in — in the Chianelli case said, “Oh, no.

The — I’m not going to follow the decision of the State versus Wilson because that applied — the Supreme Court of Louisiana was — was referring to grand juries and not to petit juries and I’m going to overrule your motion to quash this indictment.”

That’s the situation.

Earl Warren:

Thank you, Mr. Becker.

Felix Frankfurter:

Before you sit down —

Earl Warren:

Now —

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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:

— Mr. Becker.

Rudolph F. Becker, Jr.:

Yes, Justice Frankfurter?

Felix Frankfurter:

(Voice Overlap)

— I’d like to ask you why you stated Mr. Hubert was wrong in what he said about the Wilson case.

You said he was wrong in stating in this Court found that Mr. — merely denied certiorari.

You were counsel in that case?

Rudolph F. Becker, Jr.:

Yes, sir.

Felix Frankfurter:

You filed an appeal here?

Rudolph F. Becker, Jr.:

No, I filed an application for writs of certiorari, sir.

Felix Frankfurter:

Now, I have the records before me —

Earl Warren:

(Inaudible)

Rudolph F. Becker, Jr.:

Yes, sir.

Felix Frankfurter:

— you filed a jurisdiction of statement as to — as of an appeal claiming the statute as unconstitutional.

The State filed a motion to dismiss and this Court —

Rudolph F. Becker, Jr.:

Dismissed.

Felix Frankfurter:

— appealed from the Supreme Court per curiam, the motion to dismiss was granted.

Rudolph F. Becker, Jr.:

Yes, sir.

Felix Frankfurter:

And the appeal was dismissed.

It’s a period of the decision based upon a nonfederal ground adequate to support him.

I am bound to say that Mr. Hubert was entirely correct on what he said.

Rudolph F. Becker, Jr.:

Well, I — I meant to say this, Justice Frankfurter.

That there was no writ of certiorari granted that I know of in that case.

Sherman Minton:

Of appeal?

Rudolph F. Becker, Jr.:

It was an appeal.

Earl Warren:

Yes.

Felix Frankfurter:

The point is the Court said there’s no federal question in attacking that statute.

Rudolph F. Becker, Jr.:

I agree with you.

I agree that’s what —

Felix Frankfurter:

(Voice Overlap) —

Rudolph F. Becker, Jr.:

— the Court said, yes.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Rudolph F. Becker, Jr.:

That’s what the Court said in the Wilson case.

This Court said that there was no federal —

Felix Frankfurter:

Until where and what (Inaudible)

Rudolph F. Becker, Jr.:

Well, I mean in the matter that he said that there was a writ of certiorari was granted.

And then it was dismissed.

Felix Frankfurter:

Now, if you don’t need to —

Rudolph F. Becker, Jr.:

That’s what I meant for the —

Felix Frankfurter:

Very well.

Rudolph F. Becker, Jr.:

— that he was wrong.

Felix Frankfurter:

All I’m saying is that he stated correctly what our record show and what your (Voice Overlap) —

Rudolph F. Becker, Jr.:

Oh, yes.

That there was no federal — federal question involved.

That’s exactly what this Court has held.

Earl Warren:

Thank you, Mr. Becker.

Mr. Hubert, if you should desire to — to answer this gentleman, you may feel free to do so.

Leon D. Hubert, Jr.:

Well, the only point I have — I have to make is Your Honor asked the question and I don’t know that you have a — a full answer to whether or not — I think Your Honor’s question was — was this — it was that same question Mr. Justice Frankfurter had in mind was this an odd case, this particular case.

If this was pooled to use against these people whereas it was not used against others.

I don’t think that’s so.

Now, of course, it — it turns out to be an issue of fact between Mr. Becker and myself.

He admits that they’ll — three or four he says, maybe it’s five or six.

If there’d been five or six in the past 15 years, that’s normal.

It’s about what it would be.

(Inaudible)

Leon D. Hubert, Jr.:

How’s that, sir?

The motion to quash (Inaudible)

Leon D. Hubert, Jr.:

No, sir.

And I want to make the point that’s been made I think by — I think it’s Mr. Justice Frankfurter.

These points were not raised until in this Court.

Mr. Schreiber admits that.

I don’t mean for that that this Court has to stop from considering those points.

Audio Transcription for Oral Argument, Part 1: Poret v. Louisiana (36) – 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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Leon D. Hubert, Jr.:

But I do want to say we didn’t know they were coming up.

We had no opportunity to answer them.

We had no idea.

The whole brief that the petition for certiorari does not signal out these issues.

Does not signal out that this was a direct discrimination against these people.

Felix Frankfurter:

I should like to interrupt by saying that nobody would feel stronger against any such particular resolve as (Voice Overlap) —

Leon D. Hubert, Jr.:

There’s nothing to show that there was such here.

Earl Warren:

Thank you, Mr. Hubert.