Michel v. Louisiana

PETITIONER:Michel
RESPONDENT:Louisiana
LOCATION:

DOCKET NO.: 32
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Nov 08, 1955 / Nov 09, 1955
DECIDED: Dec 05, 1955

Facts of the case

Question

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

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

    Earl Warren:

    Number 32, John Michel versus State of Louisiana.

    Mr. Schreiber.

    Gerard H. Schreiber:

    May it please the Court.

    If Your Honors please, this case, the case of the State of Louisiana versus John Michel and the case that is immediately following this, the case of the State of Louisiana versus Labat and Poret are both petitions to the Louisiana Supreme Court for writs of certiorari from capital convictions for the crimes of aggravative rape.

    In both of these cases, the defendants are Negroes.

    In both of these cases, the — the prosecuting witnesses were in one case, the case of John Michel, a young white lady.

    In the case of the State of Louisiana versus Labat and Poret, it was an older white lady.

    Now, in both of these cases, the defendants, through their counsel filed motions to quash their indictments and both of them haven’t been indicted by the grand jury for the Parish of Orleans.

    Both of them filed motions to quash the indictments on the ground that there had been a systematic exclusion of Negroes from the grand juries in the Parish of Orleans since time memorable and from these particular grand juries that indicted these defendants.

    In both of these cases, we stood ready to prove that the population of the City of New Orleans which is coextensive with the Parish of Orleans is approximately one-third Negro, consisting of some 230,000 people — 230,000 Negroes of which there were countless numbers that were prominent, educated, businessmen and professional men.

    And countless numbers of whom they had been educated in elementary schools, high schools and universities of which we had a — have a Negro University in the City of the Orleans since 1869.

    Having filed our motions to quash in both of these cases, the State filed demurrer to our motions to quash on the grounds that the motions to quash were filed too late.

    And in both of the cases, the State’s demurrer was sustained and we were denied the opportunity and the right to offer our evidence in support of our motion to quash.

    And in both of these cases, if Your Honor — Honors please, we are here complaining that that action has denied to our clients, the defendants in these particular cases the due process of law that’s guaranteed to them by the Fourteenth Amendment of the United States Constitution.

    Now, if Your Honors please —

    You make — you make no question that if you had not filed that’s been a good trial.

    Gerard H. Schreiber:

    The fact — now, I answer it in this way, sir.

    The fact that there has been a systematic exclusion of Negroes from the grand juries in the Parish of Orleans is a judicially admitted and proven fact.

    Just recently, as a matter of fact, a motion to quash such as this was sustained by one of the — the trial judges for the Parish of Orleans.

    It is judicially admitted and it’s judicially proven that there has been such a systematic exclusion.

    Felix Frankfurter:

    Not in this case?

    Gerard H. Schreiber:

    Not in this particular case.

    We didn’t get that far.

    We only got as far as to file our motion to quash to which the demurrer was filed, the demurrer was sustained.

    We did not get to offer — offer (Inaudible)

    Now —

    Well, if you had been appointed a month ahead, the counsel had been appointed a month ahead and it had ample opportunity to make the motion and had not made it, then you would have no question as to the validity of the trial by — by a jury would you?

    Gerard H. Schreiber:

    You mean, presuming — presuming that there was a sufficient amount of time alloted to counsel?

    If Your Honor pleases, the best way that I can answer that is to cite to Your Honors, in which I propose to do in the case of Powell versus Alabama, wherein this Court had said that not only does the defendant have the right to counsel but he also has the right to effective counsel appointed at a time and under such circumstances whereby the counsel is going to render to that particular defendant the effect of aid.

    Now, of course, one of these cases are — is going to come up involving a period of time.

    Gerard H. Schreiber:

    In our particular case, the time interval is an extremely sharp interval.

    And all of this time, question arises by virtue of the fact that Article 202 of our Code of Criminal Procedure in the State of Louisiana provides in substance that attacks on the grand jury or a petit jury must be urged before the expiration of the third judicial day of the term for which the jury has been impaneled of the term —

    Oh, let — let me change that slightly, my inquiry.

    Assuming that your argument assumes that if you had made it in time, it would have been taken.

    If you made it too late, it would not have been listened to.

    Gerard H. Schreiber:

    Certainly, there — there must be a time beyond which you cannot urge motions to quash.

    Yes.

    Gerard H. Schreiber:

    My co-counsel —

    Here — here your entire argument is based on the fact that this was too late, that the appointment was too late and —

    Gerard H. Schreiber:

    Well, then we — we’re (Voice Overlap) saying that first of all, this man at that time, when his time was running out, we say that he did not have an attorney by virtue of the circumstances of the case.

    And we say secondly, that if Your Honors feel that he did have an attorney, then by no means he — did he have an attorney who was rendering to him the effect of aid, both of which falls within the purview of the Powell versus Alabama case, which set both of those rules.

    Now, if Your Honor — Honors please, the — the time interval, the date sequence in this particular case is applying of crime importance.

    This crime is allegedly had been committed on February the 10th, 1953.

    The defendant, John Michel was arrested on or about February the 13th, 1953.

    He was indicted by the grand jury on or about February the 19th, 1953.

    He was initially brought up for arraignment two judicial days following the return of his indictment on February the 23rd, 1953.

    Now, I’d like to deviate here to tell you just a little bit something about the grand jury for the Parish of Orleans, the grand juries for the Parish of Orleans are selected to serve for a six-month period.

    There’s one of them that’s impaneled in September to serve until the following March and then a new grand jury is in impaneled to serve from March until September.

    Now, in this particular case, this was the grand jury that had been selected in September 1952 to serve until March 1953.

    Now, this man was indicted by that grand jury on February the 19th, shortly before their term was expiring.

    He was brought up on February the 23rd, 1953, two judicial days following the return of his indictment.

    At that particular time, he was asked by Judge Hertz, the trial judge, if he was represented by a counsel.

    He told he was not and he — Judge Hertz asked him, was he going to be able to employ counsel and he told the judge that he thought that his family was going to be able to get money to employ a counsel.

    So Judge Hertz continued the arraignment until the following Monday, February 23rd was a Monday, and he continued the arraignment until March the 2nd the following Monday.

    Now, just so happened that on that particular Monday, March the 2nd, the term of that grand jury was expiring.

    That was their last day in office and a new grand jury was being impaneled on that day.

    Now, during the course of this ensuing wait, when Judge Hertz continued this arraignment, he discussed with me whether I will take the case and I told him if I could help the Court, I would take the appointment.

    However, he didn’t appoint me, he merely discussed the case.

    On March the 2nd, and incidentally I’m not deviating from the record.

    If Your Honors please, this is all born out by the record.On March the 2nd, this man was brought up again for arraignment and I have to be sitting down in court on other business.

    Gerard H. Schreiber:

    And the judge asked him, had he been able to employ a counsel and he said no.

    So the judge pointing to me, he says — well, he says, “I’m going to appoint Mr. Schreiber to represent you.”

    The judge had also told me that he was going to appoint several attorneys in the case.

    So nothing further happened.

    The judge, he recites solely in the record.

    The judge continued the arraignment himself for another week until the following Monday.

    He continued the arraignment because he said that — I had said that I didn’t know anything about the case which I did not and that he wanted to give me time to look into the case and so forth.

    So he continued the arraignment for one week, five judicial days after that.

    That would be the 9th of March?

    Gerard H. Schreiber:

    The 9th of March, yes.

    Under your local ground rules on timeliness of this motion as construed in the Wilson case, you had until the 5th of March to make your motion?

    Gerard H. Schreiber:

    That is correct, sir.

    We — under the ruling (Voice Overlap) of the Wilson case, we had until the — until the 5th of March.We need to file a motion.

    Now, in the State of Louisiana, there is another practice that we have and that is the serving of written notice of appointment on counsel.

    In many instances of course as you know the judge does not discuss appointment — appointments with counsel.

    He appoints them.

    He — he tells the — the clerk to send him a notice and a notice is sent out.

    Now, in this particular case, the judge said I am going to appoint Mr. Schreiber and myself, I received my written notice on March the 5th.

    Now, I did not consider myself to have been appointed as this man’s counsel until such time as I received that written notice from the court of my appointment.

    I considered my appointment need to be a very indefinite thing up until that particular time.

    Hugo L. Black:

    Was it in open court when he said on appointing (Voice Overlap) —

    Gerard H. Schreiber:

    Yes, sir.

    It was — it was in open court and he said, “I am going to appoint Mr. Schreiber in open court.”

    Now —

    Your docket entries reflect your appointment on the second remark.

    Gerard H. Schreiber:

    The — the endorsement — the endorsement to the indictment shows that I was appointed on March the 2nd and of course there is where the great difference of opinion came up between myself and Judge Hertz’s born out by the transcript as to exactly when I was appointed.

    I felt that it was indefinite up until the time that I received confirmation of it and of course the — actually, his — his recollection of it was not too good either because he said that — that he had appointed Mr. Fust on March the 2nd too.

    This is also in the record.

    Whereas, as a matter of fact, the record doesn’t even show that Mr. Fust was ever appointed or he appeared with me at all times, in all stages of proceedings.

    However, the record doesn’t show that he was ever appointed and as a matter of fact, Mr. Fust himself, took the witness stand and testified that the first notice that he had of his appointment was on March the 6th when Judge Hertz told him that he was going to appoint me and that he was not going to send him a written notice and Mr. Fust said, “Well, it’s not necessary that you send me a written notice.

    Gerard H. Schreiber:

    I’ll accept this as being my appointment.”

    Did you in fact get a written notice, you?

    Gerard H. Schreiber:

    I received it on March the 5th, which is purposely —

    What was the date of the notice?

    Gerard H. Schreiber:

    I beg your pardon, sir?

    What was the date of the notice — what date note —

    Gerard H. Schreiber:

    I don’t —

    — date of the notice carry?

    Gerard H. Schreiber:

    I do not know, sir.

    I do not know.

    Hugo L. Black:

    Came through the mail?

    Gerard H. Schreiber:

    No, sir.

    They’re — they are served by a sheriff and deputy sheriff.

    Of course you can appreciate the fact there’s a time interval that is involved.

    The arraignment takes place on — on the 2nd then he’s got to down to the clerk’s office and the clerk issues the — issues the notice and then he has to go to the — to the sheriff’s office and the sheriff serves it, he’s receiving it — as a matter of fact, receiving it only three days later, it is a good period of time.

    Customarily, it takes a little bit longer than three days.

    William O. Douglas:

    Does — does it make a return to the Court that he served it on?

    Gerard H. Schreiber:

    Yes, sir.

    He does.

    William O. Douglas:

    That — that’s in this record?

    Gerard H. Schreiber:

    Yes, sir.

    That is not in this record.

    But we — it’s a — I think it’s judicially admitted the fact that it was served approximately, let’s say March the 5th.

    And the return was made in the record and I admit that I received at that time.

    Tom C. Clark:

    They impel a new grand jury when the old (Inaudible)

    Gerard H. Schreiber:

    Yes, sir, immediately.

    The old one is not discharged until a new one is impaneled.

    Tom C. Clark:

    The one impaneled that day in court when you’re there?

    Gerard H. Schreiber:

    Yes, sir.

    There was one — no, we have six — six sections of the Criminal District Court for the Parish of Orleans and they rotate the grand jury.

    Gerard H. Schreiber:

    Their designated Section A, B, C, and so forth and they rotated, A has it for one six months, and B gets the next one and so forth.

    This did not happen to be Judge Hertz’s grand jury, neither one of them, either the new one or the old one as I recall it.

    It was in some other section.

    So anyway, we — we went ahead and we filed our motion to quash on March the 9th.

    Now, through our motion to quash, the — the State filed the demurrer and as I have recited to Your Honors, the State’s demurrer was sustained and we never got the opportunity to offer evidence in support of our motion to quash and that is what we are here, we’re complaining about it.

    Now, the reason why, if Your Honors please, the reason why this demurrer was filed was because of the State, the case of State versus Wilson.

    Now, Article 202 of the Code of Criminal Procedure of the State of Louisiana does not say, does not say that it has to be filed before the third judicial day following the expiration of the grand jury term.

    Article 202, he says it has to be filed before the third judicial day of the term for which the grand jury has been impaneled.

    It was the case of State versus Wilson that came along —

    Before the expiration of — before the expiration of the third judicial day?

    Gerard H. Schreiber:

    Of the day, yes.

    Before the expiration of the third judicial day.

    Gerard H. Schreiber:

    Yes, sir, of the term.

    That’s of the term.

    That’s what — what 202 says.

    The case, State versus Wilson came along and in the case of State versus Wilson, the Supreme Court of Louisiana interpreted of — in that particular article to mean following the expiration of the term.

    So that if — if in our particular case, if 202 would have been applied literally, our time for filing that motion would have expired on the first three — the first three days of the grand jury term.

    But the case of State versus Wilson came along and as a consequence, the State urged that our time expired or after the expiration of the third judicial day following the grand jury term.

    You — you make no claim that as a lawyer you didn’t know what the Wilson case held?

    Gerard H. Schreiber:

    No.

    No, sir, I — no, sir, I do not —

    That was on the books at the time?

    It was on the books at the time.

    The case, State versus Wilson was decided in the — in the early 1940s.

    I do make a claim to certain practice in the State of Louisiana.

    All of which also is born by the record that we had filed here with Your Honors and that is the practice of permitting motions to quash to — such as this to be filed at any time before — before arraignment.

    Although, the grand jury term has long expired — long expired, we cite two cases in here where the State permitted a motion to quash such as this to be filed long after the expiration of the grand jury term.

    Felix Frankfurter:

    Are you suggesting that that is the practice and that in this case, that practice was criminatory disregarded?

    Gerard H. Schreiber:

    I am — I am saying that — that that was the practice that is born out by the record and I do say that it was disregarded in this particular case, as well as that of the case following this, Labat and Poret.

    Felix Frankfurter:

    Are you saying that they singled out this on the next day as the practice from the certain practice?

    Gerard H. Schreiber:

    If Your Honor pleases, I just say that they did it.

    Felix Frankfurter:

    Well —

    Gerard H. Schreiber:

    I don’t —

    Felix Frankfurter:

    — (Voice Overlap) the difference.

    Gerard H. Schreiber:

    I — I can’t say that the case was singled out.

    I would not infer, as a matter of fact, in my State of Louisiana and in my Parish of Orleans that we have a discriminatory practice —

    Felix Frankfurter:

    But it is your duty to (Inaudible), wasn’t it?

    Gerard H. Schreiber:

    I do not think — I do not think that — that it was such.

    Felix Frankfurter:

    All right.

    Gerard H. Schreiber:

    I think that — that in this particular case, Article 202, the provisions as interpreted by State versus Wilson was literally applied.

    It is the law.

    There’s no question about it.

    Whether it’s right or wrong, it is the law.

    Felix Frankfurter:

    Throughout State against Wilson, (Inaudible) your legislature as (Inaudible)

    That’s what 202 means, probably —

    Gerard H. Schreiber:

    Well —

    Felix Frankfurter:

    — for the purpose of this Court.

    Gerard H. Schreiber:

    I wouldn’t —

    Felix Frankfurter:

    That’s the construction that the Supreme Court of Louisiana has placed upon.

    Gerard H. Schreiber:

    And if you bound to follow that construction and could find no fault with that construction —

    Felix Frankfurter:

    Aren’t we bound to follow?

    Gerard H. Schreiber:

    No, I don’t think that you are —

    Felix Frankfurter:

    But we can — we can say that the Chief Justice probably was right and the Court was wrong?

    Can we do that?

    Gerard H. Schreiber:

    Well, I don’t think that this Court is high bound to follow the — the interpretation.

    And as a matter of fact, I didn’t want to get on the case of State versus Wilson.

    My co-counsel here, Mr. Fust, was going to talk about the case of State versus Wilson and I don’t want to steal his thunder.

    I — I wanted to — if possible, explore the Powell versus Alabama case.

    Felix Frankfurter:

    Now state what — if you would be good enough to state, to what proposition your argument (Inaudible)

    Now what is it that you’re going to argue?

    Gerard H. Schreiber:

    I am going to address — address my remarks toward the — the holding of this Court in the case of Powell versus Alabama, wherein this Court held four propositions.

    One is that under the due process law of the Fourteenth Amendment, that a defendant is entitled to the right of counsel.

    And secondly, that he is entitled to the right of counsel at every stage of the proceeding.

    And the third thing that that case held was that the facts and circumstances are surrounding the case, dictate the necessity for a counsel in some cases more than in others.

    And the fourth thing that the case of Powell versus Alabama held was that that right to counsel was at a time and under such circumstances as court rendered effective aid to the defendant.

    And if Your Honors please, we say with reference to that, that first of all, this man did not have an attorney at that particular time.

    Felix Frankfurter:

    What time?

    What —

    Gerard H. Schreiber:

    At the time when his time was running out.

    At the time those — during those three — three days when his time was running out.

    Felix Frankfurter:

    You — you mean between the second and the third?

    Gerard H. Schreiber:

    Yes, sir, between the —

    Felix Frankfurter:

    You have not yet been appointed so as to have the responsibility of taking the necessary steps for defense?

    Gerard H. Schreiber:

    Yes, sir.

    Felix Frankfurter:

    That’s the thing —

    Gerard H. Schreiber:

    That is correct.

    Yes, sir, that is correct.

    And we say that regardless of what the record shows and rightfully or wrongfully, I am here admitting the fact that during those three — three days, I did absolutely nothing.

    I did nothing until I —

    Harold Burton:

    Suppose we heard the opinion —

    Gerard H. Schreiber:

    State what sir?

    Harold Burton:

    Suppose we heard the opinion that the judges per curiam stated was correct that you were appointed on May the 2nd.

    Would it be a denial of due process that you only had three days in which to file this motion?

    Gerard H. Schreiber:

    If Your Honors pleases, I think — I think that under the circumstances of this case, the fact that this is a capital case, the fact that a motion to quash an indictment is a technical pleading, the fact that it takes time and deliberation and facts, facts that are not readily available in order to perfect a good motion to quash.

    The fact also that in this particular case it was a court appointment.

    I think that under those circumstances, I believe that those three judicial days as applied to this particular case, now these facts that I have recited to you, I think that it is an unreasonable — unreasonably short period of time to expect action.

    Now, I can only —

    Harold Burton:

    Concerning the fact that Louisiana apparently has held that it is reasonable.

    Gerard H. Schreiber:

    I don’t — I don’t think that this particular — this particular point has ever come before the courts of the State of Louisiana.

    In the case of State versus Wilson, it was a motion to quash that had been filed long after the grand jury term had expired.

    Gerard H. Schreiber:

    The — it wasn’t this three-day interval.

    It just — just so happened that on this — this March the 2nd, that grand jury term expired on that very same day and that’s — that’s a fact that complicates this particular — not complicates but (Voice Overlap) —

    Harold Burton:

    But you had three days after the expiration of the grand jury in which to file?

    Gerard H. Schreiber:

    I beg your pardon, sir?

    Harold Burton:

    You had three days after the expiration of the grand jury in which to file?

    Gerard H. Schreiber:

    Yes, sir.

    Harold Burton:

    Now, if you had been appointed, do you think it was — three days was not enough if we’re to recognize due process?

    Gerard H. Schreiber:

    By way of passing?

    Yes.

    Harold Burton:

    Of passing what?

    Gerard H. Schreiber:

    Well, if Your Honor pleases, I think that something that this Court should consider very definitely whether — whether that — those three — three days is an unreasonably short period of time.

    However, that’s not our main contention.

    Our main contentions are first, that he never had counsel during these days and if — if the record — if you are high bound to follow the — the per curiam of the judge and follow the endorsement on the indictment, then we say very definitely that he did not have effect of counsel during those — those three days.

    And I mean whether it was rightfully done or wrongfully done, the fact remains that he didn’t have it and according to —

    (Inaudible) the motion was filed?

    Gerard H. Schreiber:

    The motion was filed on March the 9th, which was the fifth judicial day following the expiration of the grand jury term.

    March the 2nd was Monday, March the 9th.

    And of course we don’t have any — any court on Saturday and Sunday, so as the fifth judicial day following the expiration of the grand jury —

    Harold Burton:

    But of course that doesn’t mean this that you point out you did nothing between the second and the fifth.

    You started on the — on the fifth and you completed your motion within four days (Voice Overlap) —

    Gerard H. Schreiber:

    Oh, we prepared it.

    Actually, it was filed the second judicial day after — after I received the notice of my appointment.

    Harold Burton:

    You say you didn’t have them before?

    So if you’d started on the second, you ended on the fourth?

    Gerard H. Schreiber:

    I don’t follow you, sir.

    Harold Burton:

    Well, you took two days actually to file it?

    Gerard H. Schreiber:

    Well, time permitting.

    Harold Burton:

    You took two days?

    Gerard H. Schreiber:

    Yes, sir.

    Harold Burton:

    Well, if you’d started on the second, you had been done on the fourth?

    Gerard H. Schreiber:

    Well, it’s time permitting.

    I’m not sure what was happening on the second —

    Felix Frankfurter:

    Did I understand you —

    Gerard H. Schreiber:

    — and during the fourth.

    Felix Frankfurter:

    Did I understand you to say that the well-known fact that you want to take judicial notice that they’re discriminating your — the Negroes that kept off the grand jury term?

    Gerard H. Schreiber:

    Well, I say actually that the very court that — the trial court, this —

    Felix Frankfurter:

    As a matter of common knowledge with the bar?

    Gerard H. Schreiber:

    Yes, sir.

    In this — in this particular case, we cite in here the case of — of Alfred Dowell.

    I think that’s his — his name.

    In the testimony that — that we took in support of our answer to our demurrer.

    The — we offered in evidence the indictment in the case of State of Louisiana versus Alfred Dowell.

    It’s contained on page 31 of our transcript.

    And in that case — that was a case pending before Section A of the Criminal District Court for the Parish of Orleans.

    And in that case, the motion to quash was filed on the same grounds and Judge O’Hara, the presiding judge of Section A, quashed the indictment.

    And of course we have had the — which is outside the record but judge — the present grand jury is Judge O’Hara’s grand jury.

    And Judge O’Hara, he has placed several Negroes on the grand jury, which is the first time that that has ever happened.

    These — these are facts that have been offered in support of other motions to quash such as this and these — these are judicially proven facts and I think by virtue of the action taken by Judge O’Hara, they are also judicially admitted facts.

    Does this jury took its seat on March the 2nd, is it?

    Gerard H. Schreiber:

    Yes, sir.

    On March the 2nd.

    Then the first end of term?

    Gerard H. Schreiber:

    This — no, that was the last day, that was the last day of the — the grand jury that indicted John Michel.

    That was the last day of that term.

    The new grand jury was impaneled on March the 2nd.

    They — the — the one —

    Was March the 2nd both the last day of the former grand jury and the first day of the new?

    Gerard H. Schreiber:

    Yes, sir.

    They hold the grand jury in office until — they usually swear the grand jury in about 10 o’clock in the morning and/or at 10:30, when the Court opens and they hold one grand jury in office until such time as the second one has been sworn in and the minute that the second one has been sworn in, the judge discharged the first — discharges the first one.

    Does the record show what hour of the day on the fifth you got your formal notice of appointment?

    Gerard H. Schreiber:

    No, sir.

    The record would not show that.

    What puzzles me is the formality of drawing a notice of motion.

    We would do it for 10 minutes and knowing as what you did about the Wilson case, even assuming that you considered you had no responsibility on the fifth.

    You had plenty of time to file a standby motion there, didn’t you?

    Then as for your adjournment to get up your —

    Gerard H. Schreiber:

    Well —

    — affidavits or whatnot.

    Gerard H. Schreiber:

    Well, I can’t — I can’t say Mr. Justice.

    I can’t say at what time on the fifth I received the notice.

    That’s the reason I asked the question.

    Gerard H. Schreiber:

    The — the notice — the notice may have been served on my secretary, which is customarily what happens.

    As a matter of fact, the sheriff doesn’t wait until I arrive in my office.

    He leaves it — leaves it with the secretary, he leaves it with one of your law partners, anything like that.

    And actually, I could not say on — at what time I received the particular notice.

    Tom C. Clark:

    The notice is not in the record?

    Gerard H. Schreiber:

    No sir, it is not in the record.

    But the notice wouldn’t — the notice wouldn’t die.

    I don’t think the sheriff’s return shows the time.

    It shows the date and it shows the person on whom it was served but I don’t think it shows the time.

    Tom C. Clark:

    You’re depending on your appointment being effective on the sixth.

    That’s right isn’t it?

    Gerard H. Schreiber:

    Yes, sir.

    Tom C. Clark:

    Or fifth.

    Why didn’t you put the notice in the record?

    It would show when you were served.

    Well, then you’d have support the —

    Gerard H. Schreiber:

    Well, there’s no — the — it’s testified, there’s testimony in the record when — when I was appointed — I mean when I — when I received the notice, it’s not controverted.

    I — I took the witness stand myself and testified that I received it on March the 5th.

    There’s — there was no contrary evidence offered.

    Gerard H. Schreiber:

    The motion wasn’t brought out to show that it wasn’t true.

    So, if Your Honors please, that is the gist of our complaints about this action and more particularly, the point that I have sought to explore is that — that has a bearing on the decision of this Court in Powell versus Alabama.

    We say very definitely that this man even if this Court holds that he did have counsel, we say very definitely the man did not have effective counsel.

    And going further with reference to the case of State —

    When — when did you first raise that point?

    Gerard H. Schreiber:

    We raised it in our petition.

    Petition for certiorari?

    Gerard H. Schreiber:

    Yes, sir.

    But never raised it in Louisiana?

    Gerard H. Schreiber:

    Oh, yes, sir.

    We raised this — we raised this in Louisiana.

    As a matter of fact, all of this —

    In the Supreme Court?

    Gerard H. Schreiber:

    Yes, sir.

    The — this is — this is raised by way of Bill of Exception.

    Number one — in the trial of this case, we reserved 42 Bills of Exception.

    This is one of them?

    Gerard H. Schreiber:

    And this was — this was Bill number one as a matter of fact.

    And Bill number one was submitted to the Louisiana Supreme Court.

    And there is — there is the further — the further point that I would like to raise and that is that Your Honors have to consider the practice in the State of Louisiana.

    Your Honors have to consider the fact that written notice is given.

    Your Honors have to consider the fact that motions to quash are permitted to be filed at any time before arraignment.

    And in this particular case, that’s exactly what has done — what was done.

    Your Honors have to consider which is borne out, all of this is borne out by the record.

    Your Honors have to consider in — in many instances as a matter of fact to show — to show that the arraignment is the crux of the thing that in many instances and in several of the — in the cases cited by us, the Court permits the withdrawing of a plea of not guilty to an indictment in order that a motion to quash may be filed.

    Now, Your Honors also have to consider that this — this arraignment from March the 2nd until March the 9th was not continued by me.

    I didn’t continue the arraignment.

    It was continued by the Court and that is borne out by the transcript of the record too.

    So that Your Honors have to consider that if I did wrong in not hurrying out, rushing to file this motion to quash, that I was definitely misled not — not purposely by the Court or anything like that.

    I was just misled by the practice into thinking that I had time before that arraignment need to file this motion to quash and that’s what was done.

    Gerard H. Schreiber:

    It was filed before the arraignment.

    It was filed the fifth judicial day following the expiration of the grand jury term.

    It was filed the second judicial day after I received a written notice of my appointment.

    Hugo L. Black:

    Are those motions filed down there very often?

    Gerard H. Schreiber:

    They have been — they have been recently.

    As a result, the line of jurisprudence that this Court has decided and that they’re being filed quite considerably where a Negro and a White person is — is involved.

    Hugo L. Black:

    Were any of them filed when you — you’re assistant district attorney?

    Gerard H. Schreiber:

    Yes sir, I was.

    That’s — that’s the reason why I know about — about the Dowell case and the Green case.

    I was the assistant district attorney in Section B and the Green case came before my section as a matter of fact.

    I mean that’s how we know about this.

    Felix Frankfurter:

    That’s why (Inaudible) about the Wilson case.

    Gerard H. Schreiber:

    Oh, I know about the Wilson case.

    The — the thing is that I just very definitely didn’t feel that I have been appointed.

    It — it was a very inconclusive thing.

    It was not such as, “You are appointed Mr. Schreiber,” or anything like that.

    I don’t know the endorsement on the indictment is made by a clerk.

    I don’t know what endorsement was made — made on the indictment by a clerk and I thought it was a very inconclusive thing.

    The judge says — as he says in the transcript, I continued the case to give you time to look into it and so forth.

    It was completely inconclusive.

    Now —

    Hugo L. Black:

    Does the statute require that notice be passed on the attorney’s appointment?

    Gerard H. Schreiber:

    I don’t believe, sir.

    Hugo L. Black:

    Or that’s just accustomed.

    Gerard H. Schreiber:

    I think it’s just accustomed.

    I don’t believe the statute requires it.

    I think it’s just accustomed, but it is accustomed.

    It’s an unvarying custom as borne out by the fact that Judge Hertz told Mr. Fust, “I’m not going to send you a written notice.”

    And Mr. Fust said, “Well, it’s not necessary that you send me a written notice.

    I’ll accept this as being my appointment.”

    Earl Warren:

    Did I understand you to say that at the time the judge told you he intended to appoint you that he also said he was going to appoint some other lawyers?

    Gerard H. Schreiber:

    Yes, sir.

    That is —

    Earl Warren:

    Also to defend this same man?

    Gerard H. Schreiber:

    Yes, sir.

    That’s borne out also —

    Earl Warren:

    Yes.

    Gerard H. Schreiber:

    — by the record, by Judge Hertz’s testimony in this record, not by my testimony.

    Judge Hertz’s says that.

    Thank you very much.

    Earl Warren:

    Mr. Fust.

    George H. Fust:

    May it please the Court.

    Your Honors, just to finish the answer of Mr. Schreiber to your question.

    I was appointed by Judge Hertz after court had adjoined at about 1:30 on the afternoon of Friday, March the 6th.

    It has been our contention that until Judge Hertz made his final appointment of counsel that actually we weren’t under any duty to act.

    Now, since I was appointed on the fourth judicial day following the term if we are accept — or if we are to accept the Wilson decision as being correct.

    We say that it was impossible to comply with the Wilson case and file our motion to quash within the three judicial days following the expiration of the grand jury’s term.

    And before I start into my main argument, I’d like to answer Mr. Justice Frankfurter’s question which he put to Mr. Schreiber.

    Is it a fact that the courts and lawyers at taking judicial notice of the fact that there has been systematic exclusion of Negroes from grand juries in the Parish of Orleans.

    I have before me a document which is not a part of the record but I would ask leave of this Court to make it a part of the record because it is a very important document.

    The document is Judge William J. O’Hara’s charge to the present grand jury in which he states in part and I’ll make this very brief, “Every grand jury selected in Orleans — Orleans Parish within the memory of man has been an all White grand jury.”

    I like very much, sir, to make this a part of our record.

    Earl Warren:

    You may file it.

    George H. Fust:

    Thank you, sir.

    The States, Your Honor, has in its second argument said — say that federal courts as a general rule must accept the interpretation placed upon state statutes by state courts.

    We admit that the State of Louisiana has the right to pass a procedural law and that’s what Article 202 is.

    We further admit that the Supreme Court of the State of Louisiana has a right to interpret that law.

    But we believe and we think that the facts show that the Supreme Court of the State of Louisiana did not interpret this law in the instant case and in the case of State versus Wilson, that what the Supreme Court of Louisiana did was to substantially and materially amend the law.

    We would like to call your —

    Felix Frankfurter:

    Suppose your legislature, perhaps the statute has said a year after the Supreme Court of Louisiana for the power of amending the Criminal Code — Criminal Procedure of Louisiana.

    Felix Frankfurter:

    Is that the effective (Inaudible) of the Federal Constitution?

    George H. Fust:

    I’m afraid so, sir, because we’ve got the three branches of Government —

    Felix Frankfurter:

    But you don’t have to have it so far as the Federal Constitution is concerned.

    It may violate your Constitution but doesn’t violate the Federal Constitution for you to have only two branches of Government.

    George H. Fust:

    Sir, we’d like to call your attention to the language used in Article 202, which if you run as we referred to it maybe found on page 23 of our brief.

    Article 202, ”All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, etcetera.”

    For 50 years or more prior to the Wilson case, the statute meant what it said that all motions to quash must be filed, pleaded or urged before the expiration of the third judicial day of the term which said jury shall had been drawn.

    That is if the grand jury’s term started on the first of the month, then all objections must be made before the end of the third day of that month.

    If a man was indicted after the third day of the grand jury’s term, then there were other articles in the Louisiana Criminal Code which would govern a situation, those articles being numbers 284, 286, and 287.

    All of which are quoted in our brief on page 24.

    The Supreme Court of Louisiana, however, stated for the first time in the Wilson case and then repeated its opinion in our case that Article 202 meant that all objections to a jury or jurors must be made before the expiration of the third judicial day following the expiration of the grand jury’s term.

    And in the case now before Your Honors, the Supreme Court has made the same ruling.

    We submit that the language of Article 202 is clear that it permits of no other meaning except that the third day of the grand jury’s term means the third day from the day the term started and not the third day after the term has ended.

    I got a notice from this — from the clerk of this Honorable Court that this case would be argued on the 8th day of November.

    The language was clear and here we are.

    Suppose, Your Honors, we had appeared here on December the 8th and you’d say, “Well, where were you, Mr. Schreiber?

    Where were you Mr. Fust on November the 8th?”

    We said — we’d tell you, “Well, Your Honors, on the Louisiana interpretation of this language we had a right to be here on December the 8th.”

    I don’t think we would get very far with that argument.

    Felix Frankfurter:

    (Inaudible)

    George H. Fust:

    I don’t believe so, sir.

    As I’ve stated, we believe that the Supreme Court of Louisiana did more than interpret Article 202 in its decision in the Wilson case.

    Thank you, sir.

    Earl Warren:

    We’ll adjourn now.