Payne v. Arkansas

PETITIONER:Payne
RESPONDENT:Arkansas
LOCATION:Alabama State Capitol

DOCKET NO.: 99
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 356 US 560 (1958)
ARGUED: Mar 03, 1958
DECIDED: May 19, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – March 03, 1958 in Payne v. Arkansas

Wiley A. Branton:

— The Supreme Court of the State of Arkansas, the defendant Frank Andrew Payne is or rather was at the time of the alleged commission of the crime a 19-year-old Negro youth, was tried for a charge of murder in the first degree in the Circuit Court of Jefferson County, Arkansas.

He was convicted of that crime in Jefferson County, took an appeal to the Supreme Court of Arkansas where the conviction was affirmed and this Court has granted certiorari to the petitioner to hear or to determine two points raised in the petition.

One, whether or not members of the Negro race were systematically excluded or their number limited in the selection of the jury panel and of the jury commission.

And two whether the petitioner’s alleged confession was introduced into evidence after the same had been illegally and unlawfully secured from him.

I should like to argue those two points in the order of that certiorari was granted, namely beginning with the filing of our motion to quash the then panel on the grounds of racial discrimination.

In order to fully appreciate the motion which was filed in the lower court, it should be pointed out that the petitioner in this case is a Negro, that he was charged with the slaying of an elderly white man and that he was tried before an all white jury in Jefferson County, Arkansas.

The population of Jefferson County according to the 1950 census is 76,075 of which 37,835 or approximately 50% of the total population is composed of colored people.

The jury panel is selected from qualified electors within the county pursuant to Arkansas law.

And at the time of the trial on the lower court there were 19,452 qualified voters in Jefferson County, of which 5774 or 30% were Negroes.

The petitioner in proper time prior to the hearing of the case on the merits filed a motion seeking to quash the jury panel on the grounds, one, that for more than 50 years in Jefferson County, Arkansas no Negro had ever been appointed to the three-man jury commission which is charged with responsibility of selecting persons to serve on the jury panel in Jefferson County.

And two, that of the persons selected for jury service, that the jury commission was acting in a manner so as to have and inapportioned limiting of the number of Negroes called for jury service in Jefferson County.

John M. Harlan:

What is the term of office of the jury commission?

Wiley A. Branton:

The term of office of the jury commission amounts to approximately six months.

There are two terms of court each year and the court appoints a three-man jury commission a few days prior to the beginning of each term of court.

The term —

Earl Warren:

Is it a — was it a practice to change them or do they go on (Voice Overlap) —

Wiley A. Branton:

It is the practice to change them and I’m rather definite that it is required by law that they be changed.

I think there is a two year span between the time that they can serve.

So that you do get a different, an entirely different jury commission at each term of court.

The terms of court in Jefferson County begin in March and in October, of course each commission serves until the next term the court begins.

Earl Warren:

May I ask before you get into your argument, is there any literacy test for registering for voters?

Wiley A. Branton:

Not in the State of Arkansas, the only prerequisite for voting in the State of Arkansas is a payment of a $1 poll tax —

Earl Warren:

Yes.

Wiley A. Branton:

— and then you are a qualified to elector for all purposes under the Arkansas law.

Hugo L. Black:

Is that accumulated?

Wiley A. Branton:

No, sir.

You can skip as many years as you want, the only requirement being that if you pay on or before October the 1st of the year preceding the year in which the elections take place.

William J. Brennan, Jr.:

Are public officials eligible to serve as jury commissioner, as sheriffs, et cetera?

Wiley A. Branton:

I do not believe that they are, Your Honor, I could not answer that question.

I know that there are some exclusions by law.

Wiley A. Branton:

But as to what public officials they include, I couldn’t answer that.

William J. Brennan, Jr.:

Well in this instance, were any of the jury commissioners public officials?

Wiley A. Branton:

No, sir, none of the jury commissioners were public officials, no.

They were proper persons to serve on the jury commission.

We only charge the racial discrimination of the selection.

This three-man jury commission was appointed by the court a few days prior to each term of court, and there has never been a Negro serving as a jury commissioner in the history of anybody who we were able to get to testify who had any knowledge on it at all.

There has been a long line of cases from this Court and from other courts that there shall be no discrimination on account of race in the selection of petit juries which try the cases, nor of grand juries which return the indictment.

And as early as Strauder versus West Virginia this Court said that the constitution of juries is a very essential part of the protection such of mode of trial is intended to secure.

We have no case law at all to support our argument, other than to say a fortiori that we contend that such reasoning should also apply to the three-man jury commission which selects the people to serve on the jury panel in the first place, and that the appointment of this three-man jury commission at each term of court is such an integral part of the selection of jurors, that if there has been racial discrimination in the selection of persons to serve on this commission in the first place that that is just as unconstitutional as discrimination by race for serving on either a petit or grand jury.

William J. Brennan, Jr.:

Well do the jury commissioners for a given term pick the jury panels?

Wiley A. Branton:

Only for that one term of court.

William J. Brennan, Jr.:

And how do they do that within a few days before a term?

Wiley A. Branton:

They are given the poll tax record from the county and purportedly they go through this entire record of persons, of qualified electors and select at random or in any manner that they so desire a sufficient number of persons to serve on the jury panel.

William J. Brennan, Jr.:

How large is the panel usually?

Wiley A. Branton:

The panels normally in that particular county consist of about 36 persons for the regular panel, then there is a 25-man special list which normally is not opened unless the 36-man panel has been exhausted.

William J. Brennan, Jr.:

And does that panel, a grand jury as well as the petit jury is picked from that panel?

Wiley A. Branton:

No.

They select really three panels.

The jury commission selects a grand jury panel, they select a civil petit jury and then they select a criminal petit jury.

And all of the facts now which I talk about with reference to the racial discrimination in the selection of the jury panel, I have specific reference to the criminal jury only and I do not have with me nor do I raise in this argument discrimination as to the grand jury or as to the civil jury.

Now, insofar as the grand jury is concerned, in Arkansas it’s something that is just more or less a tradition, because to my own personal knowledge, as long as I have been practicing I do not recall a single instance that a grand jury has returned an indictment in the State of Arkansas.

It is normally done by the filing of an information by the prosecuting attorney.

We raised that as a question on certiorari but we were not granted the right to review on that question.

As a matter of practice it is done by the filing of the information of the — by the prosecuting attorney.

Earl Warren:

Do you have peremptory challenges?

Wiley A. Branton:

Yes, Your Honor, we have —

Earl Warren:

How many —

Wiley A. Branton:

— peremptory challenges.

Earl Warren:

How many in a criminal case?(Voice Overlap) —

Wiley A. Branton:

In — in a capital case the state has 10 peremptory challenges and the defendant has 12 peremptory challenges.

Wiley A. Branton:

Now, the second reason for the filing of our motion to quash the panel, aside from the fact that no Negroes have ever been appointed to the jury commission, the fact that we contend that there has been an arbitrary and an inapportioned limiting of the number of Negroes serving on the petit jury.

Now, prior to 1947 no Negro had ever served on a jury in Jefferson County for more than 50 years.

And in the March 1947 term of Jefferson Circuit Court, in a case then pending, the defense attorney filed a motion to quash the then panel on the grounds that there had been systematic exclusion of Negroes from jury service in that county.

That motion was granted and the jury commission was directed to select a new panel and on that panel there were some 13 or more Negroes appointed on the panel.

But beginning with the next term of court which was the October term of 1947, down to and including the October term of 1955, on page 25 of the petitioner’s brief we set forth there the total number of persons selected on the panel and off to the right we have the total number of Negroes who have been placed on that panel.

If you will note there, the number of Negroes who have been called for jury service not for one term of court, but for 17 consecutive terms of court from October of 1947 down to October of 1955, you have only had a total of 29 Negroes called for jury service out a total of 669 jurors which constitutes only four and three-tenths percent of the number of persons called for jury service.

If you will note there it seems to follow a rather definite pattern of limiting the number of Negroes on the panel to just to two or three Negroes per panel.

And of course that means that in, not only in a capital case but even in a misdemeanor, unless there happens to be a Negro on that panel who satisfies the prosecuting attorneys, then it means that the state has more peremptory challenges authorized by law, so that they can exclude all of the Negroes on the panel so that in practical effect no Negro can actually serve on a jury unless it meets with the approval of the prosecuting attorney in that case.

William J. Brennan, Jr.:

Did I understand you to say that there are no qualifications whatever that guides the jury commissioners in that —

Wiley A. Branton:

They must be persons of good moral character, is about the only requirement for serving on the —

William J. Brennan, Jr.:

Well, is that a statutory requirement?

Wiley A. Branton:

That’s a statutory requirement.

William J. Brennan, Jr.:

And that’s the only one in the statute?

Wiley A. Branton:

There is — there’s no educational requirement, there’s nothing else, that’s — it — they are taken purely from the electors.

I’m tying to see if I cite in my brief the exact requirement.

On the top of page three.

They shall select from the electors of the county 16 persons of good character, of approved integrity, sound judgment and reasonable information to serve the next time that the court has grand jurors.

And I do know that that is the same requirement for persons serving as petit jurors.

Those are the only requirements under the Arkansas law.

That is cited under Arkansas — on page 3 of the petitioner’s brief and Arkansas Statute Section 39-206.

Those are the only requirements for serving on the jury in the State of Arkansas.

Harold Burton:

You mentioned that the state might excise its challenge and thereby challenge all the Negroes who were drawn from the selection of petit juries, you take exception as to that?

Wiley A. Branton:

Only by saying that because of this inapportioned limiting and having such few Negroes on the panel, we see here that as a practical matter, the total number of Negroes ever appearing on the panel is less than the peremptory challenges allowed to the State even in a misdemeanor case, to say nothing of a capital case.

And that therefore, the State could if it wanted to, use their peremptory challenges to exclude the few Negroes who were actually on the panel.

Do you construe that as an argument, there must be more than that number on the panel?

Wiley A. Branton:

No, Your Honor, we do not contend that there should be any certain number of Negroes on the panel.

In fact, we don’t insist there should be a single Negro on the panel.

We don’t ask for any systematic inclusion and certainly I think we all agree that systematic exclusion is wrong.

Well, we say that a defendant is entitled to a jury from which there has been no racial consideration or discrimination shown, it might be an all Negro panel, it might be all white panel, but we say that the pattern that has been followed is one to inapportionately limit the number of Negroes who are placed on that panel and that it is therefore discriminatory.

John M. Harlan:

You’re arguing this pattern (Inaudible)

Wiley A. Branton:

That is what we allege, yes, sir.

John M. Harlan:

(Inaudible)

Wiley A. Branton:

Well, that is the position that we take in our brief and —

William J. Brennan, Jr.:

Well now, in that connection are you suggesting that these qualifications in 206 all add up to one thing?

This has good character, approved integrity, sound judgment and reasonable information.

Wiley A. Branton:

Well, we say that there is no reason to say that there are not a sufficient number of Negroes who possess all of those qualifications.

William J. Brennan, Jr.:

I’m not suggesting that, I thought you told me earlier that the only qualification is good moral character, and this indicates that, in words at least there are four requisites, good character, approved integrity, sound judgment and reasonable information.

Wiley A. Branton:

That is correct.

William J. Brennan, Jr.:

Well do they ought — add up to the one thing or are they four separate things?

Wiley A. Branton:

No, sir.

I think they are separate things.

We don’t — we don’t raise that in our argument.

It’s — it’s our contention that there is sufficient number of people from both races who possess the necessary qualifications, and that the qualifications of the individual juror does not enter into this other than the fact that we allege that there is a racial discrimination.

John M. Harlan:

Could I ask you a question about your table on page 25, is that the total number of Negro column on the righthand side, does that show all the people who were called or merely those who were on the top?

I mean, in other words, would it be — does this exclude the possibility that there were others who were called and for some reason or other, were not put on the panel because they asked to be excused, that they weren’t found qualified or something?

Wiley A. Branton:

This includes all of the people who were on the payroll record and in trying to show the number of persons called, at that time the only information which we could find was that if they were — if their names never appeared on the payroll record at sometime or another, that there would be no record of the number — of the persons who were actually called for jury service.

Now in our brief we cite the law which requires that these persons must come into court, in answer to the service of the summons by the Sheriff after having been selected by the jury commissions.

And that if they are then excused from jury service, they are still entitled to $5 per day, even though they maybe excused when they come there and show some good cause why they should not serve on their — on that panel.

And that therefore the payroll record is probably an accurate record of the number of persons called for jury service, both white and colored.

Now, there was some discussion with the trial court when that was offered in which the court made some statement that persons had been excused by the court without ever coming to the court that therefore their names would not appear.

There was no proof offered on it, and there is nothing to suggest that Negroes were excused in any greater percentage or proportion than white persons were excused.

Hugo L. Black:

Well, why wouldn’t the names appear if they were paid?

Wiley A. Branton:

Well, if — this is the record of the names of the persons who appeared.

Now the law says that if they appear, they are suppose to draw the pay.

So we insist —

Hugo L. Black:

So that there are many of them who were called for that obligation?

Wiley A. Branton:

I don’t think so Your Honor.

They might — of course that’s not in the record, but in talking with the clerk, sometimes they go maybe several months before they come by and claim it, if they don’t come by, you mail some check or something.

The general rule, they claim it.

Hugo L. Black:

Does the law require that they be paid?

Wiley A. Branton:

Yes, sir.

The law requires that they be paid.

I think there are some people who have never actually picked up the check, never drawn the pay, but their name is on the payroll record there and they authorized — I mean, they have the right to pick it up if they ever come and call for it.

I don’t know when the list expires, but the information that we cite here was obtained from the clerk of the court and the record, the payroll record went back to October of 1947.

Hugo L. Black:

Is there any statute or any practice shown under which the clerk can fail to put their name on the payroll record if they’re summoned and appear?

Wiley A. Branton:

No, sir.

If they are summoned and appear their name automatically goes on that payroll record.

Now the — the apparent allegation by the state is that there are persons who are summoned and who get excused without ever even coming to court, and that their names do not appear on the record.

Now, if there is such information, we don’t have it, and we feel that that burden was on the state to show it, but we —

Hugo L. Black:

I suppose — I suppose you wouldn’t deny that that sometimes occur.

Wiley A. Branton:

We — we do not deny it that it —

Hugo L. Black:

(Inaudible)

Wiley A. Branton:

— that at sometime it probably occurred, but we — what we are saying is that there is nothing for us to — we certainly do not concede that Negroes were excused in any greater percentage or proportion than white persons, if they sought excuses prior to the time of coming to court.

Hugo L. Black:

What’s the county seat?

Wiley A. Branton:

Pine Bluff.

Hugo L. Black:

Don’t they have a record to some (Inaudible)

Wiley A. Branton:

Actually Your Honor they do have.

I’d have to go out of the record to discuss that because at that time that was all of the information that we could get.

Hugo L. Black:

(Inaudible)

Wiley A. Branton:

It would.

There again, that is not in the record, and at the time that we tried this case, we were not aware of the fact that there was such a record.

In fact, the record we have is the only record that was available to us at that time, the only one that we could find or determine was actually in existence.

Since that time we’ve found that there is another record but it is not in this record and I certainly would have to go outside the record to comment on what that record contains.

(Inaudible)

Wiley A. Branton:

Sir?

That’s the record (Inaudible)

Wiley A. Branton:

There is a — there is a record in the Circuit Clerk’s office which contains the actual names of persons selected by the jury commission which differs somewhat from the names on page 25 of our brief in that it includes all of the persons put on the panel whether they served or not, and it is of course the true and accurate record.

You didn’t use it?

Wiley A. Branton:

We did not use it because we did not know that it was in existence at the time of the hearing.

And we only found out about that record subsequent to the trial.

Wiley A. Branton:

In fact the clerk told us that the payroll record was the only record that he kept.

Is that what you were told at the time (Inaudible) in this record?

Wiley A. Branton:

Yes, sir.

He said that that was the only record that he kept and that unless they had actually served and got on the payroll record that he would have no record.

But now that of course is — is not in the record of this case.

Since that time we have learned that there was a true record and I have had the opportunity of examining that record.

But that was subsequent to the trial of this case and therefore is not in the record of this case.

Charles E. Whittaker:

Mr. Branton, excuse me, go ahead.

No, go on.

Charles E. Whittaker:

I notice that this table on page 25 is based on your statement as a witness of the trial.

Wiley A. Branton:

Yes, sir.

Charles E. Whittaker:

And you state there that by reference to the names you were able to tell which persons were white and which were Negroes, will you explain to us how you could do that?

Wiley A. Branton:

First why in order to explain why I happened to testify because it’s a little bit unusual for a defense lawyer to testify.

I had intended to prove this information by the testimony of a Deputy Sheriff who has been in the Sheriff’s office for a good many years and who is the person charged with the responsibility for serving these summons.

The trial court felt that it would delay the trial, to put him on and to have him go down this long list and suggested and in fact invited me to take the stand and to testify since I claimed to have already made the search.

It is nothing unusual in a rural community like Pine Bluff or Jefferson County.

Charles E. Whittaker:

Pine Bluff is a pretty good sized town.

Wiley A. Branton:

Pine Bluff is a pretty good sized town Your Honor, it’s about 40,000 persons.

But generally the jury commission uses the same people over and over for jury service at each term of court, allowing only an elapse of the time requirement, that is required by statute in which they cannot serve.

And as a matter of practice you would not find — I mean, of the 669 people, for example listed on page 25, while I do not have the actual record on it, I would say that there are not more than 150 different people, they have used the same people over and over.

And for most of this time, the jury commission would insert a C behind the name of every colored person placed on the panel.

Now, they just stopped that practice just a few years ago, and if you go back from 1947 down for about 1952, wherever there is a Negro on the panel there will be a small C in parenthesis at the end of the name and so they make the designation by race.

But —

(Inaudible)

Wiley A. Branton:

Sir?

(Inaudible)

Wiley A. Branton:

It ended somewhere about 1952.

I couldn’t be exact about the years, but I know that the first few years, beginning in 1947 the jury commission in filling out the summons list would insert a small C in parenthesis behind the name of each Negro, and it is nothing unusual in a situation like that where you have only had approximately 150 different people and they use them over and over to not know —

Felix Frankfurter:

(Inaudible) was the practice stopped voluntarily or because of some (Inaudible)

Wiley A. Branton:

It was not stopped because of any specific decision, I rather think that it was stopped voluntarily or they may have been looking at decisions from other courts, they then stopped (Voice Overlap) —

Felix Frankfurter:

There wasn’t any —

Wiley A. Branton:

There was no — no case pending in Arkansas which called at least.

Earl Warren:

Were those — were those Negroes who were on the panel also repeated in the same manner as the whites?

Wiley A. Branton:

Yes, sir.

They were also repeated.

In fact on page 26 of our brief we say that only 23 different Negroes have ever been called for jury service.

And of course, you’ve only had 29 calls so there were some repeats there.

And most of these Negroes who have been called for jury service are placed on the panel, are persons above the age of 65 and while persons 65 years old and older may serve on the jury panel, they can claim an exemption and are not required to serve if they so elect.

Felix Frankfurter:

Mr. Branton, I’d rather go on the inference over the years in cases that have come before us the things that are not in the record, the documents therefore, nevertheless, taking into account of my — as a matter of practice, it would make (Inaudible)

I’m told they can’t fight specifically, take it outside the record in the usual sense of that phrase.

What I want to ask you is this, whether you and Attorney General would agree on whether or not in practice of — practice that happens to be common, it was found that Negroes on the whole if they are summoned are more likely that they asked to be excused than white folks?

Wiley A. Branton:

I could not agree.

I rather — I am rather of the opinion and it has been my experience that the few Negroes who have been called for jury service are so proud of the fact of having been called, that the percentage of persons asking to be excused is less than that of white persons.

Felix Frankfurter:

That maybe, if one gets going on this, that maybe because they are selected because they would (Inaudible) that may well be.

Wiley A. Branton:

It is also interesting to note that in the selection of this jury panel, the jury commission is given the poll tax list and they select their names entirely from the poll tax list.

And under Arkansas law it is required that the race of the taxpayer be shown on that list so that therefore the very two which is being used by the jury commission has a racial designation and they therefore know in advance whether or not they are in fact selecting a white person or a colored person.

The three jury commissioners testified and the sum total of their testimony we think brings this case squarely in line with Cassell versus Texas.

We cite — repeat some of that testimony on page 28 of our brief.

For example, in the footnotes there, in asking Mr. Truelock one of the commissioners a question, he said I felt that in the selection of a jury I could not take anybody that I didn’t know, he might be a better qualified man that I would, but I still wouldn’t know it.

I was limited to the number of people whom I was trying to select.

And in answer to a further questions as to whether or not he was personally familiar with very many Negroes in the county who might be qualified as jurors, his answer was, “I don’t think I am sir.”

And then down at the bottom, Mr. William stated that he had raise in mind when he selected the one or two Negroes whose names appeared on the panel.

We say that to select persons from a poll tax list that has a racial designation is pretty much the same situation that you had in Avery versus Georgia where they put the names of the white jurors on the white slips and the names of the Negro jurors on yellow slips.

Now we can’t see where that situation is any different from where you go out and select the names in the first place from an official poll tax record that designates the taxpayer by race.

And we say that the whole of the petitioner’s evidence in this case was uncontradicted and that his motion to quash the jury panel should therefore have been granted.

We’d like to move on to the confession which we contend was unlawfully obtained from the defendant.

There is some testimony which is in conflict as there always is in these cases, and therefore we do not intend to even mention the testimony which is in conflict.

The Court under the usual procedure which we follow in Arkansas first heard the testimony relating to the confession in Chambers.

And then overruled our motion to quash the confession on the grounds that it has been unlawfully obtained and we went then into the jury room and went over pretty much the same testimony before the jury.

The defendant, petitioner in this case —

John M. Harlan:

Could I ask you a question going back to the jury point?

Wiley A. Branton:

Yes, sir.

John M. Harlan:

(Inaudible)

Wiley A. Branton:

Absolutely total exclusion.

John M. Harlan:

(Inaudible)

Wiley A. Branton:

Yes, sir.

John M. Harlan:

(Inaudible)

Wiley A. Branton:

There were one or two cases, the first case that it was raised in was in Washington versus State of Arkansas which was immediately following the Wilkerson case where the petition was granted.

And the Court said in that particular case, that because of the fact that in the proceeding term of Court, the motion was granted and Negroes were put on the jury for the first time, that the petitioners could not come in and say that simply because of the fact that you only have so many in the next term of court that that showed a systematic inclusion or an arbitrary limiting of the numbers of Negro.

In other words, there had not been a sufficient pattern established.

And this is the only case to my knowledge to reach the State of Arkansas on this systematic inclusion where you’ve had a pattern over the years, of course the Supreme Court of Arkansas affirmed the lower court.

As to the confession the defendant took the stand on his own behalf and testified that he was 19 years old, that he was arrested while was at work about 10 or 11 o’clock on a Wednesday morning.

That he missed his regular noon meal because he has been arrested.

And that he was in the Chief of Police’s office that afternoon when supper was being served and consequently other than getting his breakfast on Wednesday morning, he received no food on Wednesday.

That on Thursday morning he was awakened around 6 o’clock in the City Jail in Pine Bluff, required to remove his clothing and his shoes and socks, that he was then taken to Little Rock without any breakfast, and that he was taken to State Police Headquarters in Little Rock where he was given a lie detector test, and that he was given a sandwich around 1 p.m. on Thursday, and that that was the first food in the more than 26 hours that he — since he had been arrested.

Hugo L. Black:

What did you say about taking off his clothes?

Wiley A. Branton:

He — the record shows that he was required to take off his clothing, take off his shoes and socks and in researching the record, I see where he got some shoes back when he got to Little Rock, the record is silent on —

Hugo L. Black:

Carried to Little Rock (Inaudible) according to the evidence, it’s undisputed.

Wiley A. Branton:

According to the record he was taken naked, now nobody asked that question and frankly that’s a question that has intrigued me upon rereading the record.

Does the — does the (Inaudible)

Wiley A. Branton:

Well, they were taken off —

(Inaudible)

Wiley A. Branton:

That’s correct Your Honor.

(Inaudible)

Wiley A. Branton:

Oh, no, no.

They say that they took them off to examine for blood stains, but they also say in answer to some questions that they gave him some shoes back, when they got him up to Little Rock.

Hugo L. Black:

(Inaudible) that they carried him to Little Rock without clothes.

Wiley A. Branton:

No, sir, because the question was not raised as to — by either side as to whether or not they ever gave him any clothes back.The only question which is in the record is to whether or not they ever gave him any shoes, and in answer to that they said, yes, they gave him some when they got to Little Rock.

How long was that — how long was that after they took the shoes away from him?

Wiley A. Branton:

The police officer who testified said they gave him some — maybe an hour or so after he got to Little Rock which was about three hours after they took them off.

Wiley A. Branton:

Well, I think they took the shoes off the night before —

(Inaudible)

Wiley A. Branton:

Sir?

Felix Frankfurter:

Where is that testimony about the shoes?

Wiley A. Branton:

On page 56 of the record, up at the top of the page, the question was on the morning you got him up —

Felix Frankfurter:

Was that your cross-examination?

What is it?

That’s your cross-examination?

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

What — what (Inaudible)

Wiley A. Branton:

This was in — this was in the middle of October.

Felix Frankfurter:

(Inaudible) a normal climate, is that it, any normal climate (Inaudible)

Wiley A. Branton:

I rather think it was more or less normal climate.

Felix Frankfurter:

(Inaudible)

Wiley A. Branton:

A little — a little bit on the cool side but people to put shoes back on by that time in Arkansas.

Felix Frankfurter:

But they also not (Inaudible)

Wiley A. Branton:

How is that, sir?

Felix Frankfurter:

(Inaudible) is that the extraordinary?

Wiley A. Branton:

Well, most of them don’t — most of us don’t go barefooted as late as October, Your Honor.

Felix Frankfurter:

(Inaudible)

(Inaudible)

Wiley A. Branton:

Well, Your Honor it would vary depending of course upon the time of day and I just couldn’t answer that —

You couldn’t answer that —

Wiley A. Branton:

I just couldn’t answer that question.

Hugo L. Black:

Is that right on the (Inaudible)

Wiley A. Branton:

Arkansas is just below Missouri.

Hugo L. Black:

I mean, Pine Bluff.

Wiley A. Branton:

No, sir.

Pine Bluff is in South Eastern Arkansas.

Hugo L. Black:

(Inaudible)

Wiley A. Branton:

No, sir.

It is — it is only a 100 miles from Greenville, Mississippi.

But it’s —

Felix Frankfurter:

Is it fair to infer that a (Inaudible) cross-examiner like you have asked some questions as to the fact he’s been taken naked to Little Rock.

Is that a fair inference to be drawn?

Is this considering the purpose of the court’s examination?

Would I be stretching much to assume that you would not have missed the chance to prove, they took him naked to the indignity that that involved?

Wiley A. Branton:

I think Your Honor can conclude that I probably would have asked the question if I had thought that he had been taken naked.

Felix Frankfurter:

And secondly that did you ask — if you had thought he would, you would have thought about it.

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

All right.

Wiley A. Branton:

The defendant also alleges that on Thursday upon his return to Pine Bluff, after this lie detector examination and questioning in Little Rock, that he was taken to Dumas, Arkansas and locked up in jail down there.

That he was kept awake all night by a jailer who threatened him with the same type of treatment which was accorded to a Negro boy over in Mississippi.

That’s a Thursday?

Wiley A. Branton:

This was Thursday night.

Now, Your Honor that point is in dispute, the defendant claims that he was taken down to the City Jail in Dumas on Thursday night before his confession on Friday.

The State contends that he was not taken to Dumas until Friday night after the confession.

Now, they don’t deny that those things didn’t happen to him down there, but they just say that it happened after the confession and not before the confession.

Hugo L. Black:

Did they say what happened after the confession?

Wiley A. Branton:

The fact that the defendant was taken to Dumas, Arkansas which is some 50 miles south of Pine Bluff where he was locked up in jail for safekeeping because the Chief of Police thought that there might be some mob action in Pine Bluff and he was kept awake all night long by the jailer who threatened him with physical abuse and told him that the same thing would happened to him that had happened to a Negro boy over in Mississippi.

And why, we don’t know what he had in mind.

This was at or about the same time that the (Inaudible) case was in the news everyday.

The —

Felix Frankfurter:

(Voice Overlap) — did you happen to know the exact date of that?

Wiley A. Branton:

That he was taken down there?

Felix Frankfurter:

No, in Mississippi.

Wiley A. Branton:

No, sir, I do not, other than the fact I know that it was in the news at that time.

I do not know the exact date.

I do recall that the incident happened in August of 1955.

The Supreme Court found that was after the confession, was it not?

Wiley A. Branton:

Yes, sir.

Well, they — they point out the fact that the State says that that was after the confession.

I think they agree with the statement, it was after the confession.

That is the only point in the confession that we say that there is any conflict of testimony on it all.

Felix Frankfurter:

I’d like to pursue this, (Inaudible) is relevant, it comes to my mind (Inaudible)

Now, what is the relevance (Inaudible)

Wiley A. Branton:

The jailer — the jailer at Dumas, Arkansas kept the petitioner awake all night in the jail questioning him, threatening him, tell him that — and according to the defendant, made remarks that he was going to be hang, and that he, the jailer, would be there when they hang him and that they would do the same thing to him that they did to the colored boy over in Mississippi.

Felix Frankfurter:

Now that is not questioned that that took place?

Wiley A. Branton:

It is not questioned that that took place.

Felix Frankfurter:

And it is not questioned.

Wiley A. Branton:

The only thing that is —

Felix Frankfurter:

That preceded the —

Wiley A. Branton:

That — yes, sir, Your Honor, that is questioned.

The petitioner said that it happened on Thursday night before the confession on Friday.

The State says that it happened on Friday night after the confession on Friday afternoon.

Felix Frankfurter:

I cannot find anything (Inaudible)

Wiley A. Branton:

Well, that’s the point that’s in conflict.

Hugo L. Black:

What did the jailer said?

Wiley A. Branton:

The jailer did not testify.

They offered no evidence to contradict that this situation happened, they only say that it happened on the night before the confession, I mean, on the night after the confession.

Hugo L. Black:

Well, whose —

Felix Frankfurter:

The State.

Wiley A. Branton:

The State.

Felix Frankfurter:

(Inaudible) somebody’s testimony.

Wiley A. Branton:

Or the state patrolman who took, Sergeant Halsell, who took the defendant down to Dumas, stated that he took the defendant to Dumas on Friday night after the confession.

The defendant said that he was taken to Dumas on Thursday night before the confession.

Felix Frankfurter:

So, the vital thing is when he was taken, is that right?

Wiley A. Branton:

Yes, sir, insofar as —

Felix Frankfurter:

That — that there was testimony one way by the State and another way by the defendant.

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

All right.

Wiley A. Branton:

The defendant also testified that he knew of his own knowledge that two of his brothers were arrested prior to his confession.

He also states that he knows that three of his nephews were arrested, and he claims that the Chief of Police told him that before it was over with, if he didn’t confess that they were going to go out and get his whole family including his mother.

The Chief of Police of course denies making that statement.

The Chief does admit however and substantiates a statement made by the defendant that immediately prior to his confession at or about 1 o’clock on Friday afternoon that the Chief of Police came up to his cell in the jail and told him that there were 30 or 40 people outside who wanted to get in to him and that if he would tell the truth about it that he could probably keep these people from getting to him.

Felix Frankfurter:

May I ask this, whether this conflicting — from — to verify it from my point of view, highly damaging testimony, was this conflict developed before the judge’s chamber —

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

— in order to have him decide (Inaudible) let it go to the jury.

Wiley A. Branton:

Yes, sir and we — we raise —

Felix Frankfurter:

And that — and that again was testified before the jury.

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

Is that right?

Wiley A. Branton:

And — and as to that issue which is in conflict, we merely state that part for the record because we take the position that the trial court and the jury had the right to pass on that as a factual matter and we don’t raise that as a part of it at all.

But we merely mentioned it in relating the testimony that we do have here, because so many of the other things —

Felix Frankfurter:

Would you — would you —

Wiley A. Branton:

— are not conflicted.

Felix Frankfurter:

Would you state the merits of that argument, what you regard as uncontradicted, a non-conflicting testimony in which from your point of view — from your point of view establishes (Inaudible)

Wiley A. Branton:

Yes, sir.

Felix Frankfurter:

Just summarily in part, one item after another.

Wiley A. Branton:

The defendant was arrested on a Thursday morning without a warrant.

He was held in jail all day on Thursday through the noon hour without any food.

He was not given any supper on Thursday night or rather on Wednesday night the day of his arrest.

He was awakened at 6 o’clock on a Thursday morning and taken at least barefooted and with no socks to Little Rock without breakfast.

He was given a lie detector test up in Little Rock and questioned all day in Little Rock.

He was never arraigned, not even up until the day of his trial, the first time that any — any question came up about arraignment was on the day of the trial.

Of course, at the day of the trial there was no point in worrying about arraignment at that time.

Arkansas law requires first of all that a person not be arrested without a warrant, unless there is probably reason for believing that the person being arrested has committed a felony.

Well even if they had probable reason for thinking that he had committed a felony, the law still requires that the person so arrested be taken forthwith before the nearest magistrate and properly informed of the charges placed against him and advised of his right to counsel.

This defendant was never arraigned and that is uncontradicted and is admitted to by the parties.

He was — the Chief of Police went up to his cell on 1 o’clock on Friday, the day of the confession —

Now, I wonder if you’re not jumping a little, you got into Little Rock.

They’ve awoke — they awakened him at 6 o’clock in the morning on Thursday, is that right?

Wiley A. Branton:

Yes, sir.

And then they took his clothes off and how much they gave him back we don’t know except that they left him shoeless and stockingless and took him to Little Rock.

Wiley A. Branton:

Yes, sir.

All right, now did he have breakfast that morning?

Wiley A. Branton:

He did not have breakfast before going to Little Rock.

Felix Frankfurter:

Well, did have —

Now go from there.

Felix Frankfurter:

What about — you — you said also the day before, he didn’t have lunch or did he have no food or when did he have food, did he not have — did not breakfast at Little Rock and before he was taken to Little Rock —

Wiley A. Branton:

No sir.

Felix Frankfurter:

— they gave him breakfast later?

Wiley A. Branton:

No sir.

Felix Frankfurter:

So then he was kept without food, am I to infer –

Wiley A. Branton:

He was arrested —

Felix Frankfurter:

— (Voice Overlap) no food, suppose you state what food he did have.

Wiley A. Branton:

All right.

Felix Frankfurter:

Instead of having me ask what he didn’t have.

Wiley A. Branton:

Well, from the time of his arrest at 10 o’clock on a Wednesday morning, until the time of his confession at 1 o’clock on Friday, he had a sandwich at about 1 o’clock on Thursday and he had breakfast on Friday morning.

Hugo L. Black:

You had just started about the police, the Chief of Police.

Wiley A. Branton:

Immediately prior to his confession and following all of the other events which we have alleged, it is uncontradicted that the Chief of Police went to his cell on the jail and told the defendant that there were 30 or 40 people outside who wanted to get into him and that if he would tell the truth and confess that he could probably keep them from getting him.

Hugo L. Black:

Did the Chief of Police testify?

Wiley A. Branton:

The Chief of Police testified and admitted on cross-examination that such an event occurred.

Hugo L. Black:

How long before it (Inaudible)

Wiley A. Branton:

Five minutes, the man confessed and went downstairs and made the confession orally to the Chief and then went out and got a stenographer and wrote it out.

Earl Warren:

Mr. Thomas.

Thorp Thomas:

May it please the Court.

The question in this case regarding the systematic exclusion is as I see it, did the petitioner here meet the burden of proof imposed on him by the rule announced in Patton against Mississippi, by showing a conscious and a purposeful and arbitrary discrimination of race in the selection of a petit jury.

Since they were members of the Negro race on the panel at which this petitioner was tried, then the burden of proof is on the petitioner to prove a conscious discrimination by the limiting of the number of Negroes on the panel.

Now this, the State of Arkansas contends that he has failed to do, taking the record and staying well within its bounds, on record 11 and 12, it’s pertinent testimony of the jury commissioner Truelock, said the question, “Do you know very many Negroes who would be qualified for jury service?”

Thorp Thomas:

He answers, “I think so.”

Question “Do you think of any while you served on this panel?”

Answer “Well, there were quite a few that I certainly would have selected, but they had already served the past year or had some other reason why they could not.”

Also on —

Earl Warren:

How many had served the year before?

Thorp Thomas:

The payroll record —

Earl Warren:

Well, they couldn’t have served without a payroll, could they?

Thorp Thomas:

They — no, Your Honor they could not have served without being on it.

The last record was in 1955 which showed a total number of two Negroes on the panel.

Felix Frankfurter:

May I stop you long enough to either tell me, to explain what is meant by his answer, “Well, they had other reasons.”

(Inaudible) as to other reasons serving, how would that A, what kind of other reasons and B, how would those other reasons be communicated to the authority?

Thorp Thomas:

Well, the —

Felix Frankfurter:

(Voice Overlap)

Thorp Thomas:

— the other reasons Your Honor I can’t answer.

He did explain later in his testimony that he felt some of them lived too far away from Pine Bluff, that it would impose on them to ask them to come in, some —

Felix Frankfurter:

He didn’t say, I asked some other reasons for not taking this, (Inaudible)

Thorp Thomas:

He said they, and later on in his testimony he does explain that.

But one of the reasons he said that he did not select more Negroes on the panel was because they had already served the previous year and under the Arkansas law they can only serve once every two years.

Felix Frankfurter:

But you’ve just answered the Chief Justice as to how few they were, so that takes care of the two, (Inaudible)

Thorp Thomas:

Now —

Earl Warren:

Well then, in the year 1954 there were two terms, March 1954 and there was only one Negro who would have disqualified himself for that year because he was the only one called and in the October term there were none called.

Thorp Thomas:

Mr. Chief Justice Warren it reflects —

Earl Warren:

(Voice Overlap) —

Thorp Thomas:

— this — this record that —

Earl Warren:

— the number of them (Voice Overlap) —

Thorp Thomas:

— that you are reading from is the payroll record which does not disclose all of the Negroes that were summoned for jury service.

It reflects only those who actually served on the jury.

Earl Warren:

Well, if you’re — if you’re summoned but excused before you respond to the summons you haven’t been on the jury, have you?

Thorp Thomas:

Well, as a practical matter in Arkansas and the way it works is if you have a toothache or something you can get on the phone and call the judge and tell him, “Well, I’ve got a toothache.

I got to go to a dentist or I am sick or my wife is going to have a baby,” and the judge is simply not going to make you come down.

Thorp Thomas:

Therefore —

Felix Frankfurter:

Now, I can understand all that.

That was the four point of my question to your Brother.

What I want to know is what basis have we pursued that there were these rejections or non-acceptance or non-calling on such grounds?

Thorp Thomas:

Well, the — the record is silent as to that.

But I will — there is some testimony here between Mr. Branton and the trial judge regarding that particular point.

And it appears at 25 and 26 of the record.

About three-fourths of the way down on page 25.

The Court made this statement.

“You are testifying from the payroll that indicates that that is the number who have actually served on the jury.

Do you know that the jury commission has selected many other colored people who at their request the Court has excused and who did not serve?”

Mr. Branton answers, he said, “Are you asking me that?”

The court said, “I am asking you if you know that.”

Mr. Branton says, “All I know is that from time to time Negroes have been excused from jury service.”

And then the Court says if their names don’t show on this list because they were excused, they don’t draw or pay and Mr. Branton says that may be true.

Earl Warren:

That’s part of the testimony, is it?

That’s — that’s a query, isn’t it, and not a testimony on the part of the Court?

Thorp Thomas:

Well, I think its testimony on the part of Mr. Branton’s.

Earl Warren:

Well, he doesn’t know it.

Thorp Thomas:

It’s — it’s certainly a fact that needed clarifying.

Now to give you an example of what I’m —

Earl Warren:

I’m asking proof that there were any number — any number of them, who were thus excused, is it?

Thorp Thomas:

There’s no — there’s no proof in the record as to that —

Earl Warren:

(Voice Overlap)

Thorp Thomas:

— and that’s Your Honors, precisely the point I’m making, that under the holding in the Patton against Mississippi, the burden since there were Negroes on this particular panel, the burden was not on the State to show how many Negroes it served or had not served.

The burden was on the petitioner and he did not meet that burden because he doesn’t show how many were actually selected, he just merely shows how many actually served and was paid.

Now, to indicate my point a little further, you will notice that on page 25 of the petitioner’s brief, on the October 1947 term.

It says the total number of jurors is 31 and the total number of Negroes two.

Well in this Washington against the State in the 213, Arkansas at 218, it involves a trial during this particular term, this October of 1947 term.

And here is what the Arkansas Court said speaking on the facts that the proof in this record shows that the three Negroes who were a member of the regular panel, petit jurors called in this case and then they list them (Inaudible), and they were numbered 7, 10 and 12.

Thorp Thomas:

Now then, if Mr. Branton’s payroll record is correct, then he is minus one on that very proof alone.

In other words, we have a Supreme Court record of the March 1947, October term rather of 1947 in Jefferson County that shows that there were three Negroes.

Mr. Branton’s record here merely shows two.

Earl Warren:

(Voice Overlap) we have to take this at face value, this testimony, Mr. Branton, you didn’t contest it down there.

Thorp Thomas:

I wasn’t there Your Honor.

Earl Warren:

But (Voice Overlap) —

Thorp Thomas:

But the prosecuting attorney did not contest it.

Earl Warren:

They didn’t contest it.

Thorp Thomas:

No.

Earl Warren:

They wouldn’t even — they wouldn’t even let a state officer give the testimony.

Thorp Thomas:

Well, the delay of time, I don’t think that Mr. Branton would deliberately fabricate his testimony, and I doubt that the judge did there either.

If I had been there I would probably agree to it, although what I’m saying here now, the burden was not on the State to prove how many were summoned, the burden was on the petitioner to show a conscious and deliberate discrimination and he has failed to do it.

For example, and I think to show —

Hugo L. Black:

Did you — did you mean if Arkansas had shown there had been only one colored man in 15 years, the burden would be on the — shall remain on the county?

Thorp Thomas:

It probably wouldn’t in that instance, no.

Hugo L. Black:

There are — there are some other points at which —

Thorp Thomas:

There are some breaking points.

Now, I noticed in the cases like Hill against Texas, in Patton against Mississippi, there it had been a great lapse of time in all of those cases where there had been no Negro to serve on the juries, now here in this case on the payroll evidence alone it indicates that they were including Negroes.

Hugo L. Black:

May I ask you one question about the — those who were excused, I noticed because that figure is probably the same (Inaudible)

As I understand it, what you say is that the jury (Inaudible) maybe a week, they can’t do this two weeks before that time, frequently some of them will call up the judge or the clerk, get excused before they come to court.

Thorp Thomas:

That’s correct.

Hugo L. Black:

But if they come to court in response to the summons, they are entitled to their pay, is it not, and get on the paperwork.

Thorp Thomas:

Now, I believe Mr. Justice Brennan asked this question too about an Arkansas statute in regard to how the jurors are paid, and that is that Arkansas statutes 39, 301.1 and it reads thusly, “Person whose names appear on any legal and authorized grand jury or petit jury list of the respective counties of Arkansas, shall receive in addition to other fees allowed down blow other than under authority of another Act, A, when such person or a person failed for any reason to attend court, none.

B, when such persons are persons attend court and are excused by the Court for any reason from serving as a juror $5 and then when they actually serve its $7.50.”

Hugo L. Black:

(Inaudible)

Thorp Thomas:

That’s what actually occurs.

I mean, there’s — if — of course there’s no proof in this record that that happens.

Hugo L. Black:

I understand, but we — we can accept the payroll.

I didn’t mean that everybody can.

Thorp Thomas:

As meaning everybody who actually served.

Hugo L. Black:

Everybody who actually appeared.

Thorp Thomas:

Yes, I believe you can go that far.

Hugo L. Black:

Actually appeared.

Thorp Thomas:

Actually appeared.

Hugo L. Black:

And those who get excused in advance (Inaudible) that’s — they have to hear from the judge to be excused or not.

Thorp Thomas:

Not necessarily —

Hugo L. Black:

(Inaudible) knows how to go up there, calls him up (Inaudible) to get excused.

Thorp Thomas:

I — I think the — how easy can — you can get excused from serving depends in large part on how pressing the need is for a juror’s particular time.

Hugo L. Black:

Well, I’m taking about the — it’s a small number that get excused, is it not?

Thorp Thomas:

I would say so, yes.

Hugo L. Black:

And — and it would likely be as many on one side —

Thorp Thomas:

As the other.

Now to get back to the — and I believe there was one other question that Mr. Justice Harlan asked in Arkansas, around the 1st of October, it is generally around 70 degrees.

(Inaudible)

Thorp Thomas:

Which might —

Hugo L. Black:

70 degrees.

Thorp Thomas:

— count in part for that we in Arkansas don’t wear shoes.

Hugo L. Black:

That’s a good climate, isn’t it?

Thorp Thomas:

Sir?

Hugo L. Black:

That’s a good climate there.

Thorp Thomas:

Yes, it is.

Hugo L. Black:

Not going to freeze in October.

Thorp Thomas:

Hardly ever gets really cold until sometime in —

Hugo L. Black:

November.

Thorp Thomas:

— January.

Hugo L. Black:

January?

Thorp Thomas:

To get back to the — on my point here, that the petitioner has failed to show this conscious limiting of the juries and the burden was on him to show it, Jury Commissioner (Inaudible), when he was asked at record 15, when you selected Al Pinnington, were you selecting him as just another juror or were you selecting him with a special and point in mind to get a Negro on the panel.

And the commissioner answered, “Well, I don’t know that we made anything special of that.

We felt like the jury we were selecting was responsible citizens of the county.”

In other words he — that’s no proof of any conscious or arbitrary discrimination.

Felix Frankfurter:

(Inaudible) for reason of what?

Thorp Thomas:

Sir?

Felix Frankfurter:

What’s the last word, as in, responsible citizen of what?

Thorp Thomas:

Of the county.

Felix Frankfurter:

Of the county.

Thorp Thomas:

Now —

Felix Frankfurter:

May I ask you whether there’s any difference in the selection of juries between criminal cases and civil cases?

Thorp Thomas:

There is — it’s the same method, it’s identical.

Felix Frankfurter:

Is it easy for you to state what the records would show roughly in civil cases down there?

Thorp Thomas:

Only in the county in which I am from.

Felix Frankfurter:

That’s — that’s what I’m taking —

Thorp Thomas:

But in our county the — there is pretty good cross section on our juries, both civil and criminal.

Felix Frankfurter:

No.

Earl Warren:

That’s a different county?

Thorp Thomas:

It’s a different county.

It is an adjoining county, I believe.

Felix Frankfurter:

But in this county do you have to know what the showing would be to civil cases where juries (Inaudible)

Thorp Thomas:

No, Your Honor, I do not.

Now, to get back to the minds of these jury commissioners, where to me the whole answer to this problem lies is to the — it was the burden on the petitioner to show this conscious discrimination.

Now, here is what one of the commissioner, this was Truelock.

“So, do you recall whether or not the names of other 12?

Do you recall whether or not the names of any other Negroes were mentioned to the panel?”

Answer “Any others, yes, sir, other than the ones that were selected, the answer is yes, sir.”

Question “How did you arrive at the selection of those that were selected?

Did you decide you wanted so many on there?”

Meaning so many Negroes on there, presumably to — as the way the question was loaded, presumably to comply with the law or just barely comply, and his answer was, “No, we just go down the list and here is the man.

We discussed to him what he would do or would not do, will it be possible to serve or was he too old.

What was his work and just those things, in fact it is a very difficult operation to get a jury and we were coming to get anybody we thought could serve.”

Now that is completely barren of any inference that they wanted to get anything other than a representative jury.

And his —

Felix Frankfurter:

May I — may I ask you this question.

What inference do you think is allowed if any inference is allowed from the fact that in a county in which the population between colored and — white and colored is about half and half, as it is in this county and the process by which jurors get on panels runs over a course of years from 30 to 60, as to white and never more than six, only one as I noticed it, runs from zero to normally two, what inference is allowable that there is not operating an individualized judgment each year for some predisposition in the selection of people which already makes a classification that they want more whites than of colored?

Thorp Thomas:

I don’t think that you —

Felix Frankfurter:

I’m asking you what you —

Thorp Thomas:

What I think would be the fair inference.

I don’t think —

Felix Frankfurter:

Of the inference —

Thorp Thomas:

— that based, and I’d have to draw two inferences from your question, one that the number of Negroes as you said ran from zero to six, I’d have to assume that that list included all those who had been selected to serve.

Felix Frankfurter:

Well, the difference couldn’t be much, the margin of error couldn’t be large, could it?

Thorp Thomas:

Well, one or two it might —

Felix Frankfurter:

Well, (Voice Overlap) —

Thorp Thomas:

— double it or less than?

Felix Frankfurter:

Well then say four, it runs never at — on the average of four a year, it’s much less, I’m giving the figures but the Negroes (Inaudible)

Let us say the average of Negroes is never above four, and the average of whites is never below 13, what inference is allowable if any, this is not an argument, this is a real question?

Thorp Thomas:

I don’t think there is any inference allowable from there.

Felix Frankfurter:

You can’t even say —

Thorp Thomas:

Now, you said the population was equally divided, that is true but when it comes down to the number who are qualified to serve as juries then it ceases to be 50-50.

Then it comes down to something like one-third and two-thirds.

Felix Frankfurter:

Well, when you say qualified.

Thorp Thomas:

That in Arkansas was having a poll tax, plus the other four things that are set out by the statute.

Felix Frankfurter:

Well, that is — does the record show what the base of — what the pool from which whites and coloreds are drawn in?

Thorp Thomas:

Yes.

Felix Frankfurter:

What the rules are?

Thorp Thomas:

It’s — it’s set out in both briefs Your Honor, page 24 of the petitioner’s brief and at page —

(Inaudible)

Thorp Thomas:

About 2 to 1.

— page 15 of the respondent’s brief.

Hugo L. Black:

May I ask you, have you looked up the Government census to see what percentage of colored people in the county are educated, to the highest degree of education?

Thorp Thomas:

No, sir, I have not.

Hugo L. Black:

Is there unusually low percentage when they (Voice Overlap) —

Thorp Thomas:

I have no — I have no idea.

Judging from the makeup of that particular county, it would be my guess that there is a great amount of illiteracy, because it’s largely an agricultural county.

It is changing somewhat now.

Felix Frankfurter:

What you are saying and what your — your state’s position, it seems that the state’s position, that merely on the face of the petition, the pool of white people, pool of colored people, having the disparity of which you refer.

Merely on the face of the figures, in the light of no human testimony that in fact biased, determined the selection, the elements that enter into the area of judgment is open to the jury commissioners, might well work out this way, is that the statement — your position?

Hugo L. Black:

I believe that’s it.

But this Court has many times held that no race is entitled to portional representation on the jury.

Felix Frankfurter:

No, I’m not — no I’m not suggesting that.

I am merely suggesting that — that in one or two cases, the dice should always fall the same way.

And if one assumes what is required is a judgment subject to all the non-provable fair basis of discretion, there shouldn’t enter consciously or unconsciously — consciously or unconsciously an exclusionary consideration.

Thorp Thomas:

I think that they have to show that — that the jury commissioner’s mind, there is an intent to discriminate and I think that the only way you could show it even backing, apparently as you are over a number of years, that you could not take the jury commissioner’s one isolated instance where the — and bring the jury commissioners in and have him testified.

I think you would have to go back to really prove it, to go back to the jury commissioners and at each term they were selected and examine them.

Felix Frankfurter:

Well, intent is a — is an ultimate judgment of inference on a lot of non-demonstrable facts.

Thorp Thomas:

That’s true.

Earl Warren:

Well, doesn’t it seem strange to you that in about 16 or 18 terms of the Court over a period of nine — nine years, that once there was six, another time there were four Negroes and on no other occasion was there more than two and on the good many of the times there was one and several times none on the panel out of 5774 qualified electors, doesn’t seem to you a little strange that that would become the pattern —

Thorp Thomas:

Not when —

Earl Warren:

— and that would be the — the extent to which any one of those — those panels would have colored people on them?

Thorp Thomas:

I think if you look at it from a mathematical viewpoint which I know sometimes this Court does, from the number of white people selected which Mr. Branton I believe his record shows 669, if you re-add the column at 640, the number of white persons who have served in relation, in their ratio to the number that have poll taxes and we presume they are qualified meet the other four requirements, then only 4.68% of the qualified white persons have served over the same period of time.

So I don’t think that that’s any criteria.

Earl Warren:

Well, could you — could you give me some rationale explanation of the October 1954 term which is the same as about five others in that there are no Negroes on the panel?

Thorp Thomas:

October 1955?

Earl Warren:

October 1954.

They had 39 — 39 whites on that jury and not a single Negro, now would you just give me some rationale explantation as to how that would —

Thorp Thomas:

Well, they’ve —

Earl Warren:

— happen if they were trying to give a cross-section of the — of the county in — in establishing this jury panel.

Thorp Thomas:

Now, of course you are having first to speculate that none were chosen, because this is not (Voice Overlap) —

Earl Warren:

Well, you have no evidence in here that there were any so excused.

You have a question by the judge, but there is no testimony in this record as I see it that any Negroes were excused before they came in here to respond to the — to the subpoena.

Thorp Thomas:

Well, as I understand the holding in Patton against Mississippi, the burden was not on the State to prove that.

Earl Warren:

That’s the only answer you have to it.

Thorp Thomas:

That is correct, I mean I don’t know.

I can’t speculate or draw an inference from jury commissioners that I have never seen and don’t know.

I don’t know what they were thinking.

Hugo L. Black:

(Inaudible)

Thorp Thomas:

They — to — I grant you it does arouse your suspicious — suspicions somewhat.

(Inaudible)

Thorp Thomas:

That’s probably true.

But what I’m getting at is this is not the complete picture.

And it’s somewhat the same situation that the —

Earl Warren:

Did the State make any effort to show what the — what the true picture was?

Thorp Thomas:

No, none.

Hugo L. Black:

Didn’t we see in Pierre versus Louisiana, where there was a very great disproportion or he’s done it all and (Inaudible) that was shown, the Government and the State failed to show why there would be such a disproportion and it had (Voice Overlap) to perform its duties.

Thorp Thomas:

I believe in the Pierre case there was a showing that for a great number of years there had been no Negroes on the panel.

Hugo L. Black:

Well, suppose here, did they come —

Thorp Thomas:

Then —

Hugo L. Black:

But suppose in all these years, that shown each year they’ve put one, would that be (Inaudible)

Thorp Thomas:

It probably wouldn’t if it were consistently come up with one on it.

Hugo L. Black:

Now, when it consistently gets this —

Thorp Thomas:

However —

Hugo L. Black:

— this low, when it consistently gets this low in such a (Inaudible) a number of colored people there.

Is it possible to draw any inference that that would happen accidently unless you say that the jury commissioners just didn’t know.

Would that —

Thorp Thomas:

Well, it’s possible that they didn’t know.

Hugo L. Black:

(Voice Overlap) —

Thorp Thomas:

It’s possible that they knew some and they didn’t think they were qualified.

There is many probables in it.

Hugo L. Black:

Haven’t we also said that if say they don’t know, they did not know (Inaudible)

Thorp Thomas:

In the Cassell case, yes.

But in the Pierre case, and in the Patton case, where for a great number of years it is — it has shown that there have been no Negroes on the panel, then they have made out a prima facie case of discrimination and the burden of proof then shifts to the State to bring on some evidence to prove why there were never any selected.

Hugo L. Black:

Well, in your mind —

Thorp Thomas:

But here — in here I think there is a difference, because here there — we know some have served in practically every — in every term of court.

Hugo L. Black:

A very, very small percentage —

Thorp Thomas:

That’s true.

Hugo L. Black:

(Inaudible) of the two.

Thorp Thomas:

That’s true.

According to the payroll record.

Hugo L. Black:

And there’s no reason at all, except to guess where it is.

As to why that should so consistently happen that way.

Thorp Thomas:

That’s true, and I think that this Court will have to change its past decisions.

Hugo L. Black:

Which one?

Thorp Thomas:

Let’s say Patton against Mississippi, or even — let’s take the Brown against Allen.

There the jury commissioners, I believe they were selecting a grand jury, very frankly stated, and it’s in the record.

And it’s in — it’s in the report that they didn’t intend to select but one, Negro for the grand jury and after they got him on there they were through with the Negro question.

Hugo L. Black:

I think as I recall it, maybe I should consider that case, but as I recall it, there was something said there about the fact that they had shown the breaking away from an old pattern of the past.

Thorp Thomas:

Well, that’s true but I mean taking this record from what was happening prior to the Wilkerson case in — in this particular county —

Hugo L. Black:

(Voice Overlap) —

Thorp Thomas:

— in 1947, it’s changed radically too.

Hugo L. Black:

Well, that’s the period of 01(Inaudible)

Thorp Thomas:

A period of —

Hugo L. Black:

(Inaudible) have made the change.

Thorp Thomas:

Well, this — I think this brings up to 1955, but it — some changed from none to some.

Hugo L. Black:

That’s right.

[Laughter]

(Inaudible)

Thorp Thomas:

That’s right.

This is not the complete record.

(Inaudible)

Thorp Thomas:

That — under the decision in Patton against Mississippi, he failed to meet his burden.

William J. Brennan, Jr.:

But didn’t he tell us — didn’t he tell us that it was represented to him, that there was no record except the one that he did get.

It wasn’t until later that it was disclosed and he —

Thorp Thomas:

Well, I think that —

William J. Brennan, Jr.:

— somehow learned that there was a — that there were other records.

Thorp Thomas:

I — I think that he said this, that he asked Mr. Meade, who is the County Clerk, “Was there any other record?”

And Mr. Meade said, I don’t have any other record that would indicate and don’t I think —

William J. Brennan, Jr.:

What did —

Thorp Thomas:

— he went any — I don’t think he searched any further than that —

Hugo L. Black:

Who did have it?

Thorp Thomas:

Sir?

Hugo L. Black:

Who did have another record?

Thorp Thomas:

I believe the Sheriff’s office.

Earl Warren:

Is that a public record?

Thorp Thomas:

Yes, sir.

Earl Warren:

Required by the statute to be kept in the Sheriff’s Office?

Thorp Thomas:

Yes, sir.

Earl Warren:

Is that statute quoted in your brief?

Thorp Thomas:

I don’t have that statute but the statute on summoning the jurors, they have to have a summons with their name on it and their address which is kept from the record in the Sheriff’s office, and I say this, that this record could have been complete with a little more — if he had just gotten that in then we’d have a complete picture of it.

And I’ll confess, I’m as ignorant of the true facts as anyone, but I do know this, that this list are the number that he say actually served, actually appeared that’s true, I’ll accept his testimony on that, but I’ll say this, it is not the actual number who were selected.

Earl Warren:

Does the record show that he tried to prove this through the Sheriff’s office and —

Thorp Thomas:

Well —

Earl Warren:

— the judge wouldn’t permit him to do it?

Thorp Thomas:

Well, Your Honor it was the same record that — that he had searched.

It was the —

Earl Warren:

What?

Thorp Thomas:

It was the record from the clerk’s —

Earl Warren:

(Voice Overlap)

Thorp Thomas:

— office.

Sir?

Earl Warren:

Wasn’t that a particular record, they wanted him to consult the records and find out how many it was, and the judge said that’ll take too much time, we can’t do that, you do it, you’ve made an investigation of these records, you use — you use —

Thorp Thomas:

He had —

Earl Warren:

— your information.

Thorp Thomas:

The judge —

Earl Warren:

Now, he’s trying to get it from the Sheriff, didn’t he?

Thorp Thomas:

No, sir.

Earl Warren:

What did he try to get?

Thorp Thomas:

That the record that he was attempting to have this other gentleman testify from, was the record from the County Clerk’s office which is the identical record that he had searched and already knew the numbers, so in order to expedite the trial the judge asked him haven’t you searched the same record and he said, “Yes.”

“Well, put to testimony on by yourself otherwise we’ll have to sit here while this man reads some 40 pages of records.”

Hugo L. Black:

Did the State make any objection to this (Inaudible) the record?

Thorp Thomas:

No, sir.

Hugo L. Black:

(Inaudible)

May I ask you now, you — you know the system, have you any reason to tell us some (Inaudible) that the other record would make any substantial difference?

Thorp Thomas:

I think that it would possibly maybe not over two or three more on each panel.

I wouldn’t venture more than that.

Hugo L. Black:

You think it might possibly show that two or three were summoned but didn’t come.

Thorp Thomas:

That’s true.

And it might show four, five or six, white that didn’t come too?

Hugo L. Black:

Probably about the same percentage (Voice Overlap) —

Thorp Thomas:

I would think so.

Hugo L. Black:

(Inaudible) a little more than white.

Thorp Thomas:

I doubt it.

Hugo L. Black:

You do?

Felix Frankfurter:

Have you any — have you — do you happen to have any light on why from 1947 to 1955, figures on the whole run pretty uniformly except in (Inaudible) there are considerable variances, 64 (Inaudible) the total number of jurors is white, 64 in 1950, 54 in 1951, (Inaudible) and then 65, 1958.

Which is considered the smallest of the number, the percentage of increases from the average is enormous rather considerably.

Do you happen to have any reasons why that in March (Inaudible) there were 64, in the October term, 49 — I mean, 32.

Thorp Thomas:

There is nothing in the record —

Felix Frankfurter:

To the —

Thorp Thomas:

— for me to base —

Felix Frankfurter:

(Inaudible) got anything to do with it, this October?

I noticed that — that is true because two of the increased numbers happen to be in October, two in March and (Inaudible)

Hugo L. Black:

Do you summon a bigger panel when you have capital cases (Inaudible)

Thorp Thomas:

Ordinarily if it —

Hugo L. Black:

You have elected —

Thorp Thomas:

— if there’s a lot of feeling about it, the answer would be yes, they would summon more.

Felix Frankfurter:

Are there more before there’s more peremptory challenges.

Well, you got to have more (Inaudible)

Thorp Thomas:

That’s — that’s true and then of course if a perspective juror on his voir dire examination would say that he does believe in capital punishment, why, he’d be crossed off and so it does take a greater amount of veniremen for a capital case.

You don’t have a special panel?

Thorp Thomas:

Sir?

You don’t have the special panel?

Thorp Thomas:

We have special, what we call special panels that are picked by the jury commissioners at the same time they select the grand jury and the petit jury.

Hugo L. Black:

I mean (Inaudible) capital cases we try, can you summon a greater number of jurors, prospective jurors for that venire.

Thorp Thomas:

Yes.

Hugo L. Black:

That’s a special venire.

Thorp Thomas:

Yes.

There are always — a list is always available and then of course if something like this is coming up then they can’t summon.

But I think possibly that this case stands pretty much in the same situation, that United States against Brant in the Northern District of Ohio which was a 1955 case, 139 F. Supp. where we are making the same claim as they are making here that Negroes as a class were excluded from jury service.

However, in the Brant case the record was clear that throughout the years covered by the evidence colored persons were represented on the jury list and actually served as jurors in the cases and that’s the same thing that we have here.

The Court said to sustain this claim.

Defendant’s relied in part on the fact that no member of the indicting grand jury was a Negro that their contention that this evidence — that this is evidence of discrimination is void of merit, because it’s well settled and an accused person is not entitled to have a jury composed and in part of persons who are members of the his own race nor is anyone entitled to that.

And then they cite the Martin against Texas in 200 US and Akins against Texas in 325 U.S.

Now to — I think that the Akins case is probably the complete answer to this one.

And the language of this Court in that case is that petitioner’s sole objection to the grand jury is that the commissioners deliberately and intentionally and purposefully limited number of the Negro race that should be selected on same said — grand jury panel to one member.

Now, that’s what he is saying here that that we are systematic — we have systematic inclusion rather than systematic exclusion.

And this Court said fairness in selection has never been held to require proportional representation of races upon the jury citing Virginia against Rives and Thomas against Texas.

This Court further said our direct —

Earl Warren:

The other side of this —

Thorp Thomas:

Sir.

Earl Warren:

The other side of this involves of any such — trying to maintain the said principle, don’t they?

Thorp Thomas:

I am sure that’s true.

Earl Warren:

(Inaudible) as I understood Mr. Branton, he said he didn’t make any such contention on his brief, (Inaudible)

The brief excludes that.

Thorp Thomas:

But I mean, I think what he is saying though that the fact that the number of Negroes were so small on the jury panels that that would show inclusion, systematic inclusion but to follow that line of reasoning further then the only way a state could ever prove that it — there was not systematic inclusion would — then you’d have to go the proportionate basis.

Felix Frankfurter:

Systematic inclusion isn’t allowed, isn’t it, the legal doctrine, all that was meant (Inaudible) that you do not satisfy — do not disapprove prohibitive discrimination by, saying, “Well, we’ll have one Negro or two.”

In any event that will — that will satisfy the requirement or disprove on this way the systematic discrimination.

You can’t — he wouldn’t object having systematically included more Negroes than — than anybody mathematically required (Voice Overlap) —

Thorp Thomas:

He seems to be objecting though because we are not —

Felix Frankfurter:

He wasn’t objecting that — he wouldn’t be here though we’ve had a case there are (Inaudible)

Thorp Thomas:

Well, he seems to be objecting though Your Honor that we haven’t included enough.

Felix Frankfurter:

Well, that — that’s a discrimination, that the inclusion of the (Inaudible)

Thorp Thomas:

But it’s still the State’s contention that he has not met his burden of proof because we don’t know how many.

There are actually — that they were actually selected and the only way we can arrive at any figure on that would be by speculation and conjecture because —

Felix Frankfurter:

(Inaudible) you do not disapprove this claim of intentional discrimination by saying, “Well look, each term is quite so — that each term we did that, one Negro, do not satisfy the principle of inadmissible exclusion by including a (Inaudible) colored man?

Thorp Thomas:

When a — Your Honor, I believe —

Felix Frankfurter:

I’m not saying that this — I am not saying that this — that this case, I’m saying that its position, your answer is that he has a burden of showing no matter what the figures show that the figures are of the result with the intention of keeping out colored people from service, who shouldn’t be allowed to be on the panel.

Thorp Thomas:

And I think to prove, to prove his claim then he must show how many were actually selected, not how many actually served, which is all his record shows here.

And if it were like you, your example there just one every time then I’d agree with you that —

Hugo L. Black:

Why wouldn’t it — why would this — that settled it.

People can be (Inaudible) in such a way that those selected could know in advance they would serve and that has come up (Inaudible) the result.

Why therefore do you say that that wouldn’t — you have to show the number that you’ve selected.

Thorp Thomas:

Well I mean if you are ever going to prove that discrimination then I think you must show the actual numbers that were selected because the discrimination lies in the selection rather than in the serving.

Hugo L. Black:

Suppose — suppose this thing could show — suppose the whites were — they haven’t made those (Inaudible)

Would you say that (Voice Overlap) —

Thorp Thomas:

I’d say that —

Hugo L. Black:

— that that’s discrimination?

Thorp Thomas:

I’d say the petitioner had a much stronger case —

Hugo L. Black:

Well, you — would you still say think that nobody could infer from that in the record?

Thorp Thomas:

You mean from a —

Hugo L. Black:

No, no — (Voice Overlap) —

Thorp Thomas:

The number that we are actually served rather than from the number that was selected?

Hugo L. Black:

Yes.

Thorp Thomas:

I’m afraid that I’d probably have to infer that there was some discrimination.

Hugo L. Black:

And suppose that — but supposed it’s reversed the other way that a number of white people had served with (Inaudible)

A number of colored people would (Inaudible) how would you feel about that?

Is that your discrimination?

Thorp Thomas:

You mean, with the same number of qualified electors?

Hugo L. Black:

(Voice Overlap) — just like in here.

Thorp Thomas:

Probably wouldn’t.

I’d like to briefly discuss the petitioner’s confessions.

I believe Mr. Justice Frankfurter said to — set out the grounds that — believed that it was coerced.

Well, the petitioner’s grounds, he alleges one that he was mentally retarded, that he was arrested without a warrant, that he was interrogated constantly, that he was deprived food, threatened by mobs and that he was held incommunicado and that the Chief of Police had threatened to arrest all the members of his family if he didn’t confess.

Now, if all these things were true then I would not hesitate to tell this Court they should reverse it because in my mind it would coercion.

But the only thing that I know to do in explaining these things is go to the record and see what the testimony is.

And Mr. Branton — I believe all of the facts as he gave them was based on the testimony of the petitioner and since he was on trial for his life he might be excused some latitude in his testimony.

Now, to go to the —

Hugo L. Black:

I want to — I wanted (Inaudible) Mr. Justice Frankfurter asked you this (Inaudible) what he considers the undisputed facts but were — but it can be shown towards you.

Would it serve your argument if you were to state what you conceded would be fact, undisputed fact insofar as the confession is — was at first (Inaudible)

Thorp Thomas:

All right, there’s only one and that is a testimony of the Chief of Police when he told the petitioner he was the — the Chief of Police was on cross-examination, was asked by Mr. Branton, “Did you tell the petitioner that 30 or 40 people were likely to be there in a few minutes?

And he said, “I said there could possibly be that many and there possibly would be.”

Now, I frankly and in all truthfulness do not know whether he meant they were coming there to witness the confession, that they were — that he told them there was a mob outside, the record to me is not clear but that is the only questionable incident —

Hugo L. Black:

How long was that —

Thorp Thomas:

— in this whole record —

Hugo L. Black:

How long was that supposed confession?

Thorp Thomas:

About five minutes.

Hugo L. Black:

(Inaudible)

Thorp Thomas:

Record 69, it’s about 12 lines down, question is, “State whether or not you told him, the defendant, there might be 30 or 40 people there in the next few minutes?”

Answer “I said it was possible.”

Now, to me that is the only piece of evidence —

Hugo L. Black:

What — now what — where is the — the piece of evidence where the defendant said he was told there might be 30 or 40 people there?

Thorp Thomas:

That’s on record page 69.

Hugo L. Black:

I mean, the petitioner, they have — they have said — stating there’d be 30 or 40 people there.

Thorp Thomas:

Well, now this —

Hugo L. Black:

What did he say was the reason?

Thorp Thomas:

What did the petitioner say, he said that there was — that the Chief of Police told him that there were 30 or 40 people that wanted to get in there to get him, I believe is the way he put it.

Hugo L. Black:

Was the Chief of Police — did he make any further statements in this — about it at all?

Thorp Thomas:

To my knowledge this is at — on page 69.

Felix Frankfurter:

Where is — could you quickly turn to the testimony of the petitioner on this very point, what is his comment of these 30 or 40 people?

Thorp Thomas:

I believe 128.

Felix Frankfurter:

128.

Thorp Thomas:

At the bottom of the page.

Question “What caused you to be afraid, Frank?”

Answer “Well, it was the conversation that Chief Norman Young was talking, when he said, 30 or 40 peoples outside.”

Then from the conversation of this officer down at Dumas and the way he was talking, in other words.

He says peoples, it were somebody outside and were someone that was outside wanting to get in to me.

Felix Frankfurter:

This officer down at Dumas, that’s a different —

Thorp Thomas:

That happened a different night, the record is clear on that.

Felix Frankfurter:

Isn’t that — and that you say were —

Thorp Thomas:

This, but this —

Felix Frankfurter:

Is that — is there a — is that also unquestioned, is there also agreement on that?

Thorp Thomas:

But only as to —

Felix Frankfurter:

As to what —

Thorp Thomas:

– what is in the —

Felix Frankfurter:

— (Voice Overlap) of the confession, is that it?

Thorp Thomas:

What happened at Dumas is fairly, clearly happened a night later.

There is — there is just, I mean the evidence in the record is just abundant on that.

William O. Douglas:

After the confession?

Thorp Thomas:

What occurred at Dumas —

William O. Douglas:

Was after the confession?

Thorp Thomas:

Was after the confession.

I don’t think there is any question about that and I have the record cited to show what happened after the confession at 58, 60, 66, 90, 91 and 106.

Now, at record 91, now this is petitioner testifying, he forgot himself here and he — what was this statement the man said you about hanging somebody?

Answer “And the petitioner has testified and he has mental lapse here, he wasn’t on guard, while he was questioning me, as I said before, he was questioning me, had I confessed that I did it, and I told him, yes, I had.”

Hugo L. Black:

Now, at — on page — at the top of page 128 —

Thorp Thomas:

128.

Hugo L. Black:

I believe he said, with reference to the same conversation that the Chief testified about — Chief of Police, Chief Norman Young said 30 or 40 people were outside wanting to get in to me.

And he asked me if I wanted to make a confession he would try to keep them out.

Did any — did the state ask the Chief whether or not that was true?

Thorp Thomas:

Yes, sir.

Hugo L. Black:

Where is that?

Thorp Thomas:

Page 69.

Hugo L. Black:

Page 69.

Thorp Thomas:

I believe it was the — Mr. Branton was cross-examining the Chief on that point.

Hugo L. Black:

But where did he deny that.

Thorp Thomas:

At — that state whether or not — it’s about the — about 12 lines down on page 69.

“State whether or not you told him, the defendant, there might be 30 or 40 people there in the next few minutes.”

And Chief Young answered, “I said it was possible.”

Hugo L. Black:

Well, that pretty plainly refers to the statement that this man made that he said there were 30 or 40 people out there waiting to get him, doesn’t it?

Thorp Thomas:

Well now, it goes on here is the reason that I have a question about —

Hugo L. Black:

Did — did the state ever ask that the policeman ever deny it, Chief of Police ever deny it that other parts of the statement that he made about the 30 or 40 people?

Thorp Thomas:

To my knowledge he didn’t, this is it.

He just says, “I said it was possible.”

And I think another place in the record somewhere, he was testifying about it and he says, “I said it was possible there could be that many.”

And he said, “It was possible there would have been that many.”

Felix Frankfurter:

But you say that’s the —

Thorp Thomas:

That’s the Chief of Police.

— (Voice Overlap) as I understood you, you say that is according to your view and I should just apply the question, that the only thing that is — as to which there is agreement between the petitioner —

Thorp Thomas:

Well, that’s —

Felix Frankfurter:

— that the State couldn’t, isn’t that right?

Thorp Thomas:

That’s — that’s the only thing I think that —

Felix Frankfurter:

So, that result —

Thorp Thomas:

— that you might infer any — any course from —

Felix Frankfurter:

There will be (Voice Overlap) —

Thorp Thomas:

That would be the only statement in the whole record.

Felix Frankfurter:

No, and there’s no controversy that the Chief of Police said something about 30 or 40 people in the next few minutes, is that right?

Thorp Thomas:

That’s right.

Felix Frankfurter:

All right.

Thorp Thomas:

But then he goes on right on page 69 —

Hugo L. Black:

Nobody — nobody every denied the statement of petitioner that the Chief of Police told him that they were out there to get him.

Thorp Thomas:

What I — I wish you would note Mr. Justice Black, how this question is phrased on page 69.

You’ll notice that he doesn’t mention anything that 30 or 40 people to go in there to get you, he said there’d be 30 or 40 people there in a few minutes.

Hugo L. Black:

I understand that.

Thorp Thomas:

Now, there were several people —

Hugo L. Black:

But you’d have a —

Thorp Thomas:

— that did come in after this confession who witnessed it.

Now, I don’t personally know and can’t gain from the record whether the — the Chief was referring to the witnesses or he actually did say something about a mob.

Hugo L. Black:

But you — the fact remains, does it not, that you have a statement by the petitioner that he said — he said there were 30 or 40 people, that he said they were there to get him, you have no denial of that in the record by anybody representing Arkansas.

Thorp Thomas:

I believe that’s correct.

Felix Frankfurter:

Now, that isn’t quite regarding the testimony because the action to include not only the connotation that Chief Norman Young but also of that officer at Dumas, can they —

Thorp Thomas:

Well, I believe you’re on a different page.

Felix Frankfurter:

I’m talking about page 128.

Thorp Thomas:

Well, I was talking about page 69.

Felix Frankfurter:

I understand that, that when a (Inaudible)

I understand that the chief of your argument is the Chief of Police simply says, 30 people there in the next few minutes without saying what the people were there for, what their purpose was, that is correct, isn’t it?

That’s your point.

Thorp Thomas:

That’s — that’s true.

Felix Frankfurter:

Now, what I’m — I’m turning to what the petitioner has made on page 28 — 128.

And the petitioner gets in the phrase to get — to get into me, he concludes that act referring not only what Chief Norman Young said there, but also what the officer down at Dumas said.

Thorp Thomas:

That’s true.

Hugo L. Black:

That’s at the bottom of the page.

Thorp Thomas:

That’s —

Hugo L. Black:

But what about the top of the page?

Thorp Thomas:

— at the bottom of page 128.

Hugo L. Black:

What about the top of the page, is that —

Thorp Thomas:

Well, that —

Hugo L. Black:

Excuse me.

Thorp Thomas:

Only the part says, wanting to get in to.

Hugo L. Black:

Well, has that been disputed by you here?

He would try to keep them out, has that been — has that been disputed by you?

William O. Douglas:

In your brief on page 11 counsel of your brief a few lines from the bottom of the page.

You state it as apparently what Chief Young meant was there would be other people there to witness the confession.

Now, where is that?

Thorp Thomas:

That is what I get out from page 69 because when you come on down and read in context without taking it out of context.

If you take it out of context, it looks — you don’t know.

But, if you go on down close to the bottom of — that’s the —

William O. Douglas:

But the thing that’s wrong with that is that when somebody did knock on the door to want to come in, he wouldn’t let anybody in, even though he was the Sheriff to witness the confession.

Thorp Thomas:

That’s true, he — he had — he — in his testimony, the Sheriff said, I had promised Frank, the petitioner, that he could make this confession to me in private and he kept his promise and he wouldn’t let anyone else in, he testified until he got Frank’s permission.

William O. Douglas:

So that — that all adds up against what you say in the bottom of page 11 as to the reason that he — he would.

Thorp Thomas:

I don’t think so if you read it in context.

On 69, right after he says, “I said it was possible.”

“Did you go downstairs to your office?”

“Yes.”

“Was his confession interrupted?”

Says, “It was by a knock on the door,” and he went to the door, he said the then Sheriff and a State Trooper were at the door.

“Did you permit them to come in?”

“I did not.”

“Did you tell them anything about the defendant?”

He said, “I told them that he was making an oral confession.”

And said then, “Did he complete his confession roughly, then what you do?”

“I asked him if he would mind the Sheriff and Sergeant Halsell to come in.”

“How much later was that?”

He says, “Not more than five minutes.”

Question “Then, did the other people come in?”

Thorp Thomas:

Connect it back up here, there would be 30 or 40 there, reading it directly in context.

Hugo L. Black:

So what you have here, I wish you’d state whether or not you think that shows the confession was coerced or not.

Thorp Thomas:

I do not.

Hugo L. Black:

Well, let me ask a question.

You have undisputed testimony to this effect, no witnesses deny it.

Chief Norman Young said 30 or 40 people were outside waiting to get in to me, and he asked me if I wanted to make a confession, he would try to keep them out.

And nobody has denied that.

In your judgment, if that is true, was this a free and voluntary confession?

Thorp Thomas:

I think it was.

Hugo L. Black:

Even with that statement?

Thorp Thomas:

For — for this reason.

Hugo L. Black:

Even with that statement made?

Thorp Thomas:

I don’t think possibly the statement as you put it was not denied as such, but during Chief Young’s testimony, he explained it in a different way, I mean answered the questions in a different way where you could possibly draw any inference you want to, you —

Hugo L. Black:

He made no statement on (Inaudible) about whether this man — whether 30 or 40 people there, the statement was true, that he had told this young fellow that there were 30 to 40 people out there waiting to get him.

Thorp Thomas:

But the reason that I think that it wasn’t coerced is his subsequent demeanor after that.

That is shown by the testimony of the court reporter and the other witnesses to the effect that, well, a few minutes later, here he is testifying, and he was watching the court reporter to takes the notes in shorthand, and he is very careful not to talk too fast, so she’ll get everything down that he is saying.

Hugo L. Black:

(Inaudible)

Thorp Thomas:

And he shows no outward signs of fear, and that would lead me to believe that there is just no substance to —

Hugo L. Black:

But you do have —

Thorp Thomas:

— the argument of a coerced confession.

Hugo L. Black:

But you do have to defend it, do you not, on the basis that this undisputed testimony in the record.

The Chief of Police told him five minutes before the confession, you got to go ahead and talk to the 30 or 40 out there waiting to get you.

Thorp Thomas:

Well, it depends on whose testimony you’re going to believe, the Chief of Police —

Hugo L. Black:

Well, who denies it?

Thorp Thomas:

They didn’t deny it as such.

Earl Warren:

Mr. Thomas before you sit down, what have you got to say about the proof, the lack of proof?

Now as I understood Mr. Branton, as I understand the briefs, this man was arrested at about 10 o’clock Wednesday morning.

He was given no food on Wednesday, he was given the sandwich, I think, your witnesses say two sandwiches on — at noon on Thursday, and then nothing more to eat until after he — after he confessed on Friday afternoon.

Now, what do you have to say about that?

Thorp Thomas:

There is no testimony in the record on behalf of the State that shows whether he was fed or not.

Thorp Thomas:

The — Chief Young testified that the first meal in the morning at the jail was at 8, the evening meal started around between 4 and 5.

Earl Warren:

And they took him by 6 o’clock to Little Rock.

Thorp Thomas:

Yes, sir, but —

Earl Warren:

So he had no breakfast.

Thorp Thomas:

The — the record positively shows that he was fed two sandwiches or at least one, by his own testimony, at noon that day.

Earl Warren:

Yes.

Thorp Thomas:

That after he came —

Earl Warren:

26 hours (Voice Overlap) —

Thorp Thomas:

After they had finished taken the lie detector —

Earl Warren:

26 hours after he was arrested.

Thorp Thomas:

Well, he was arrested on —

Earl Warren:

At 10 o’clock on Wednesday morning (Voice Overlap) —

Thorp Thomas:

11 o’clock on Wednesday —

Earl Warren:

— or about noon on — on Thursday as I understood it.

Thorp Thomas:

He was arrested on Wednesday, the sandwiches were on Thursday noon —

Earl Warren:

Thursday (Voice Overlap) —

Thorp Thomas:

— when — that was after he had completed the lie detector test, and was turned back over to the police officer.

They fed him and returned him to Pine Bluff, where he was placed in jail for the remainder of the night, which would indicate to me that he was there at the time that the food was served.

Certainly he was there the next morning, because he wasn’t taken out of that cell until he wanted to confess at approximately 1 o’clock on Friday.

Earl Warren:

But he testified — he testified that he did not receive any food and although the State took notice of that, all they would say was that he was in the building when the others were fed.

Thorp Thomas:

I don’t know whether they could prove it Your honor or not.

As I say I wasn’t in that phase of the case, I have only been connected with it during the —

Earl Warren:

But that’s all that — that that’s (Voice Overlap) —

Thorp Thomas:

But there is nothing — I will say that very frankly there’s nothing in the record any direct testimony that would reflect anything to the contrary other than what the petitioner said.

Earl Warren:

Yes.

Well now do you not — do you not think that a 19-year-old man, whatever you want to call him or a boy, whichever it is, who was thrown into jail and held for 26 hours, without any food, and then is given one or two sandwiches.

And then this questions off and on for another 26 hours or so before he’s given any more food.

And half of the time without even any shoes on, dragged around the country.

Do you not think that that has some effect upon his — his mental condition and his willingness to — to do what the police wanted to do?

Thorp Thomas:

Well, Your Honor may I say you this.

Earl Warren:

Yes.

Thorp Thomas:

I — reading the record, and staying strictly with the record, I have not drawn the same conclusions from this that you have, like you say —

Earl Warren:

But what good —

Thorp Thomas:

— where he is dragged around the contrary without any shoes, he was merely taken from Pine Bluff to Little Rock without shoes where he was given shoes.

Earl Warren:

Yes, but as I read the record, your own witnesses said that his shoes were taken from him about 6:30 in the morning and then they took him to Little Rock and they gave him some shoes about 4:30 in the afternoon.

Thorp Thomas:

Well, the officer testified that — Officer Halsell testified that he gave him the shoes immediately upon his arrival at State Police Headquarters that morning.

Now, it was the petitioner who said that he didn’t receive the shoes until 4:30 in the afternoon.

Earl Warren:

Well, I made a mistake about (Inaudible)

Thorp Thomas:

But I say according to the record —

Earl Warren:

Yes.

Thorp Thomas:

— if the facts were as you stated to me, then my answer would have been different.

Earl Warren:

Well, let’s just — let’s leave the shoes out of it, and just take that food conversation.

Do you not — do you think that that to his conduct compatible with free and voluntary confession?

Thorp Thomas:

I don’t think that one factor alone would affect it.

Earl Warren:

No.

Well, how about — how about (Voice Overlap) —

Thorp Thomas:

That’s because I’m very (Inaudible) myself voluntarily.

Earl Warren:

How about that factor coupled with the other one, to the effect that the Sheriff told him that there were 30 or 40 people out there and he tried to protect him.

Would that be —

Thorp Thomas:

Well now, on the — on the morning — on that Friday morning, I — I don’t believe there was any dispute in a record that he was placed back in the jail on his return from Little Rock, for the remainder of the night.

They had to put him there the next morning.

I mean, he had to be in jail the next morning during the time they served breakfast.

Earl Warren:

Well that doesn’t prove that they gave him any breakfast.

Thorp Thomas:

That’s true.

Earl Warren:

And there’s — there is no one for the State who testified that they did give him any breakfast.

Thorp Thomas:

That’s true.

Earl Warren:

There’s no one who testified that any if at all except those two sandwiches 26 hours after he was arrested.

Thorp Thomas:

But by his own testimony he said the reason I confessed is because I was afraid of what the Sheriff told me and what the jailer at Dumas told me.

He never once says in his testimony that the reason he confessed was because he was hungry.

Earl Warren:

Well, he testified the fact that he didn’t get any food, didn’t he?

Thorp Thomas:

Well, he said he had two sandwiches and the coke and a candy bar and some peanuts and testified that Sergeant Halsell, although he had had breakfast, now this was in Dumas that morning in jail, Sergeant Halsell, he told him he was still hungry and he stopped outside of Dumas and bought him ham and eggs and milk.

Earl Warren:

Ham and eggs?

Thorp Thomas:

Yes.

Earl Warren:

When was that, after his defense?

Thorp Thomas:

Well that was — apparently after — that was after he had confessed, that was at Dumas.

Earl Warren:

Yes.

Well, that makes a difference, doesn’t it?

Thorp Thomas:

But he also fed him, the day that he had him in Little Rock, of course there is no — it is like you say there is no testimony to the contrary, to contradict that he said he wasn’t fed.

Earl Warren:

Well then, that’s the reason why I — I asked you whether there isn’t more than just the one point, you say the only issue in the case, as you see it is what the Sherriff is supposed to have told him just beforehand.

But you don’t attach any significance to the fact that this young was kept in jail and questioned and night and day at various times, I don’t say continuously, and that he was given no food, except one or two sandwiches over a period of more than two day.

Thorp Thomas:

Well, the record will reflect that he was given more then just the two sandwiches.

Earl Warren:

Well when — where — where —

Thorp Thomas:

By his own testimony, he says in there that besides that that he was given a candy bar, that he was given some peanuts and on his own testimony he said that the jailer threatened him in Dumas before he confessed and that he goes in all that that he was fed before he was confessed.

Of course, that isn’t true because —

Earl Warren:

And you tell us that those things happened afterwards so the —

Thorp Thomas:

That’s true —

Earl Warren:

— the statement about — about the —

Thorp Thomas:

But he still received — he —

Earl Warren:

— (Voice Overlap) about getting the time he got that candy and so forth in Dumas.

Thorp Thomas:

No.

He didn’t say he got it in Dumas, he said he got it in the jail.

Charles E. Whittaker:

(Inaudible) ham and eggs for breakfast on Friday morning.

Thorp Thomas:

Sergent Halsell purchased that for him outside of Dumas.

Charles E. Whittaker:

Now, what was the defense on the merits?

John M. Harlan:

Could I ask —

Thorp Thomas:

I — I don’t quite follow you Judge Whittaker.

Charles E. Whittaker:

Well, did — he denied guilt on the finding of the case, the defense on the merits that —

Thorp Thomas:

No, no.

He — he admitted that he killed the man.

But he said he —

Charles E. Whittaker:

What was the defense?

Thorp Thomas:

He said he did it in a sudden heat of passion.

John M. Harlan:

That doesn’t appear in this record, I (Voice Overlap) —

Thorp Thomas:

No, Your — no —

John M. Harlan:

— typewritten record this morning and I looked at it hastily, am I —

Thorp Thomas:

There is much at this recording —

John M. Harlan:

Am I correct in thinking that he took the stand in his own defense apart from the confession, he admitted that he killed the man and that the defense was that he had done it in self defense, is that correct?

Thorp Thomas:

Self defense and sudden heat of passion, there were two —

John M. Harlan:

Heat of passion.

Thorp Thomas:

(Inaudible) there.

John M. Harlan:

But he never repudiated his confession on the witness stand which he did — where he testified in his own behalf, did he?

Thorp Thomas:

He said the — I believe that that wasn’t the truth, and that he was telling the truth when he testified in his behalf, that he did repudiate the confession.

Charles E. Whittaker:

Well, I don’t understand that statement.

Where does the confession deviate from his testimony in his affirmative defense?

Thorp Thomas:

It may — it may not — you mean, how does his testimony differ from his plea of —

Charles E. Whittaker:

It — of his confession?

Thorp Thomas:

It doesn’t itself in that sense.

As I remember the record, he said that the confession he made was not true and the prosecuting attorney said, “What is the truth?”

And on objection by Mr. Branton the Court stopped the prosecutor from pursuing that line of questioning any further.

And I believe that testimony was taken in chambers possibly at around 91.

Charles E. Whittaker:

Well, was there testimony before (Inaudible) on the affirmative defense that petitioner slew his employer?

Thorp Thomas:

Yes, but it is not in this record.

Charles E. Whittaker:

It’s not in this record.

John M. Harlan:

It’s in the typewritten record that you haven’t —

Thorp Thomas:

Yes.

John M. Harlan:

But you haven’t printed that part of the testimony in that —

Thorp Thomas:

That’s — that’s true.

John M. Harlan:

— typewritten record to get the whole picture of what this fellow testified to.

Thorp Thomas:

That’s — that’s correct.

John M. Harlan:

You’ve got to look at the typewritten record —

Thorp Thomas:

That’s correct.

John M. Harlan:

— is that it?

Thorp Thomas:

Yes, sir.

Charles E. Whittaker:

Is the — is the $400 of the employer’s money that was found in petitioner’s home, is that — this evidence — is that in this record?

Thorp Thomas:

Yes, it is in this one and the other one too and the typewritten, it’s in both of them.

Hugo L. Black:

Did he admit or deny he got the money?

Thorp Thomas:

Well, he took the officer’s — very frankly admitted that he took it, he took them to where he had it hidden in a piano.

Hugo L. Black:

You’re talking about the confession.

Thorp Thomas:

And also there’s some other testimony and I don’t know whether it’s in this particular record or in the typewritten.

John M. Harlan:

Well, this typewritten testimony, this typewritten record, he admitted that he took the money, didn’t he?

Thorp Thomas:

Yes.

John M. Harlan:

Testified affirmative of having taken the money.

Thorp Thomas:

He even took them, the officers to the spot that he thrown the iron rod where he crushed his employer’s skull and point out this is where I threw it and that’s where a man had found it.

There was an ample independent evidence which he can — been convicted of —

Hugo L. Black:

There’s ample (Voice Overlap) —

Thorp Thomas:

— other than the confession.

Hugo L. Black:

The ample independent evidence was that he denied that he had made the confession that they offered against him.

Thorp Thomas:

No, he did never deny making the confession.

Hugo L. Black:

I mean as they stated it.

Thorp Thomas:

He said that that wasn’t the truth, but I don’t think he — in any, in the other record the typewritten record, he tells his story that is different than the confession.

Thank you.

Earl Warren:

Mr. Branton, you may — you may finish if you wish (Inaudible) want to come back tomorrow.

Wiley A. Branton:

May it please the Court.

I noticed that there has been considerable questioning back and forth as to what the Chief of Police meant about whether or not there were 30 or 40 people downstairs just prior to the confession.

I wish to point out to the Court that on bottom of page 113 on cross-examination of the Chief of Police by myself, I specifically asked him this question, “State whether or not anything was said to the defendant to the effect that there would be 30 or 40 people there in a few minutes that wanted to get him?

His answer was, “I told him that would be possible, that would be that many.

It was possible there could be that many.”

I think that clears up what the Chief of Police meant because certainly the question was, “Did you tell him that there’d be that many people there to get him.”

Now the State contends what he meant was, there’d be 30 or 40 people there to witness the confession.

And certainly to use the language to get him, it can’t mean but one thing namely just what it implied that there would be possible mob violence.

Wiley A. Branton:

The defendant specifically repudiates his confession on page 94.

It does not appear in the transcript of record printed here as to the defense on the merits for the simple reason that the only part of the record here is that part designated by the petitioner.

Naturally, the petitioner was only going to designate that part that this Court would consider on certiorari, we didn’t feel that we should make our state’s case, they failed to cross designate, it’s not here.

The defendant took the witness stand on his own behalf admitted to the slaying, but states that he was working there, that he and his employer got into a very heated argument that the employer slapped him and that he reached down, passed an iron bar, and that he jumped over this counter, that they fought over, he got it away from him and beat him with an iron bar and when he realized what he had done that his first thought was to get away and the man was there checking up and he took some money.

Now it should be remembered that this defendant was not charged with a crime of murder in the first degree while in the perpetration of a felony, because the State would have had — would have had an easier case in the Arkansas law, no premeditation being required.

Now, they’re trying to imply here that he was charged with robbing the man.

But he wasn’t even charged with that.

It’s true that he had 400 some odd dollars but he was never charged with a slaying while the perpetration of a felony.

And that is significant.

Charles E. Whittaker:

Did that testimony (Inaudible) $400 from the deceased?

(Inaudible)

Wiley A. Branton:

No, sir.

Charles E. Whittaker:

(Inaudible) and the testimony went in.

Wiley A. Branton:

If Your Honor please, we object to the information in the first place because —

Charles E. Whittaker:

Well, did you object to the inference that the $400 of the deceased money was found in the home of the deceased —

Wiley A. Branton:

We objected —

Charles E. Whittaker:

— of the petitioner.

Wiley A. Branton:

We objected to the testimony of Sergent Halsell who first testified, yes, sir we did.

But if — if you have reference to the objection of the possible commission of other crimes insofar as that angle is concerned we did not raise that as a legal question.

As to that payroll record, the payroll record is — the payroll record accurately reflects the actual number of persons who served on the jury in Jefferson County.

And therefore in answer to a question as to the number of Negroes who served the preceding year, one commissioner said that he couldn’t use all of those who had been used a year before.

The record shows that only two or perhaps four had been used a year before.

Anybody who had been excused would not be on the payroll record and therefore could be used on the next panel.

The testimony as to that payroll record is uncontradicted.

The State says if we don’t know how to add and that the total number there is 640, we still get 669.

We attempted to put the sheriff on the stand, the record, the permanent record is kept not in the Sheriff’s office, but in the office of the circuit clerk the same person who said he had no such record.

And the Court didn’t even want us to burden the trial because after all we had been in court for half a day and if you take longer than two days in Arkansas to electrocute a Negro, why then, you have an unusually long trial.

So we wound up in two days.

And the Court didn’t want this trial delayed and suggested that I get on the stand and testify.

Now we submit that after having been invited to make this testimony and certainly we have the burden, then the burden of rebutting that presumption which we had raised was on the State and they offered no testimony whatsoever to rebut the evidence which we had offered.

Wiley A. Branton:

As to whether or not there were more Negroes excused from jury service as compared with white, the record is silent.

As I say, we’d have go outside the record but certainly the percentage of Negroes who served would be even more disparaging if we used the accurate record rather than the payroll record.

And even if that was not true there is nothing here that the State says that people get excused for two things, having made this, and this, that and the other.

And I don’t think that this Court can take any judicial knowledge of the fact or be presumptuous enough to say that Negroes have any more (Inaudible) than white people, that therefore a greater percentage of Negroes would asked to be excused than would white.

And as to the inference that might be raised by such a situation as you have in Jefferson County with such a small number of people, being — Negroes being called for jury service over a long period of time.

This Court said, in another decision coming out of Texas that it should tax the credulity of the Court, to say that mere chance resulted in such few Negroes being called for jury service in a county, where you have such a high percentage of Negroes making up the population and a high percentage of qualified voters.

Another question was directed to the Attorney General as to whether or not in Jefferson County you would find an unusually high percentage of illiterate colored people in that county.

Now I’ve lived in that county all in my life.

Insofar as Negroes are concerned, Jefferson County is the leading cultural and educational county of the State of Arkansas for Negroes.

It is the home of the Arkansas State College for Negroes.

It is the home of (Inaudible) Institute for Negroes.

For many, many years the Negro High School has been accredited by the North Central Association.

And I dare say that percentage wise there is a greater percentage of literate Negroes in Jefferson County than any other county in the State of Arkansas, and that the literacy qualifications of Negroes is probably equal to or superior percentage wise than the literacy test of white people in that county because there is not a single white college within that county.

And certainly anytime that you have a county where you’ve had a college down through the years, there generally is a higher literacy portion in that particular county than you have in a county where you do not have a college.