Reeves v. Alabama

PETITIONER:Reeves
RESPONDENT:Alabama
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 66
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 368 (1958)
ARGUED: Jan 08, 1958 / Jan 09, 1958
DECIDED: Jan 13, 1958

Facts of the case

Question

  • Oral Argument – January 09, 1958
  • Audio Transcription for Oral Argument – January 09, 1958 in Reeves v. Alabama

    Audio Transcription for Oral Argument – January 08, 1958 in Reeves v. Alabama

    Earl Warren:

    Number 66, Jeremiah Reeves, Jr.versus State of Alabama.

    Mr. Hall.

    Peter A. Hall:

    Mr. Chief Justice, may it please the Court.

    Our argument would be a divided one.

    I will make a few of this statement, my colleague Mr. Billingsley will speak in rebuttal.

    This particular case is here in this Court the second time.

    Some time ago, back in 1952, petitioner, a young Negro boy, age 16, is arrested in Montgomery, Alabama and was held three to four days in jail and imprisoned (Inaudible) question.

    After that time, he was then indicted.On the next day, he was arraigned, charged with rape and subsequent to that, two days later he was tried, convicted of the crime of rape sentenced to the electric chair.On that occasion back in 1952, his counsel was (Inaudible), I believe.

    I don’t recall exactly what their exact name but he did not have the same counsel as now.

    On the day of the arraignment — I beg your pardon.He was arrested on November 10.

    He was indicted on November 14th, 1952.

    Now, from the 10th to the 14th of November, he was kept incommunicado in the City Jail of Montgomery and at Kilby Prison.

    He was not allowed to talk with his parents or to have counsel or have been into the counsel.On the 14th of November, he was indicted by grand jury of Montgomery — in Montgomery County Alabama.

    Now, on the very next day, on November 15th, he was arraigned some time between November 15 — November 14th and November 15th term of arraignment, counsel wasn’t good for him.

    On the arraignment, his then counsel asked for a continuance in order to (Inaudible) which request was abused.

    Subsequently, on the 17th of November 1952, after arraignment, he was shared with the copy of the indictment and a list of the merit which has been drawn especially on the day of arraignment.

    On the trial of the cause, his counsel sought to withdraw pleas, end it on arraignment, pleas to demerits in order that he might attack the indictment on constitutional grounds.

    That request was overruled.

    All of this is supplied at the record.

    It appears in the record.

    The trial then went ahead to a conclusion at which time Reeves is convicted as I’ve said before of rape.

    This decision was affirmed by the Alabama Supreme Court.

    Subsequently, this Court granted certiorari and after a hearing, the Alabama Court which has raised a reversal which is without directions, Kennedy against Alabama and (Inaudible) against Alabama was cited, subsequently, the State of Alabama against Jeremiah Reeves.

    There’s no trial in 1955.

    On this particular trial, there is no reindictment of the arraignment.

    Counsel for the defendant on the petitioner at that time again moved the Court — moved the Court for permission to withdraw please in it on his previous arraignment in 1952 for the purpose of attack, the validity of this indictment on federal constitutional grounds.

    We have specifically two grounds which we desire to explore.

    One was the fact that under the reversal of this Honorable Court in the previous case, in the citation of the two cases, Kennedy against Alabama and Vermont against Alabama.

    It was our conclusion that certain culprit statements and confessions introduced on the previous trial could not that — that because of those culprit statements and those confessions, the conviction could not stand and it was our conviction and our argument and the effort to attack the indictment this time, that the only thing before the grand jury that indicted Reeves was in fact the statements and the confessions which had been thrown out and without this, the indictment could not stand.

    Secondly, it was on the confession that the grand jury, which indicted petitioner contained absolutely no Negroes and that the system of the State of Alabama of throwing members of such grand jury said at that time was designed to exclude members or to discriminate against them by reason of their race and color then tried to the provisions of the federal constitution.

    Peter A. Hall:

    The trial court without a hearing overruled our motions.

    We then filed a motion to strike within our drawn to hear this particular case because of exclusion of Negroes from the juries in Alabama.

    The trial court set this motion down for a hearing and on the hearing, it appeared that the Commissioners, the Jury Commissioners of Montgomery County at a system of selecting persons for the jury absolutely contrary to the system laid down by the Alabama court and the testimony in fact of the Commissioners showed that they had very little system indeed for the selection of Negroes, although they contended that there was no discrimination.

    Judge Eugene Carter, the Circuit judge of the County who testified that he — members of the Board of Jury Commissioners had been for 27 years — some years said that his method was to interview some Negroes whom he knew, who suggested names for the — for the panel.

    But as to identify anyone of such persons, he refused because he said it might embarrass him.

    We asked him to identify anyone particular Negro who might be on the panel jury there at Montgomery County.

    He refused to do that.

    He also testified that he had drawn the grand jury in Montgomery County for the past 21 years that he remembered one Negro and he said on a grand jury, but could not remember as many as two during that period.

    I also testified that up until the past one or two years, it had been very difficult to get Negroes for service on the jury and that up until the past one or two years, very few Negroes had served.

    Judge Eugene Jones, the Circuit Clerk, Mr. Mathews who also served on the Jury Commission, both testified similarly.

    Their methods of selecting Negroes at the same manner through personal acquaintance by contact of various clubs and organizations, but none of them could designate or would designate a particular club or organization except for the NAACP and the local (Inaudible).

    Nor could we get from any of them, particular names of individuals that they knew to be on the jury role of Montgomery County are listed on the jury courts of that County.

    Incidentally, we ask the Court for permission to have the jury role examined by any of these particular witnesses for the purpose of ascertaining whether or no any particular name on such role could be identified by these witnesses who was certainly on a position to know as Negroes.

    The Court —

    William J. Brennan, Jr.:

    (Inaudible)

    Peter A. Hall:

    Mr. Justice, we do not know.

    We asked the Circuit Court Clerk who was also the clerk of the Jury Commission and as to what the size of the — the jury panel was or the role.

    You mean the entire role?

    William J. Brennan, Jr.:

    Well, what — what’s your practice?

    Does the Court draw a panel to serve for a week or two or something like that?

    Peter A. Hall:

    I — I beg your pardon.I think I misunderstood you.

    The panel is usually (Inaudible) of the trial of any — of any one term.

    William J. Brennan, Jr.:

    And when you tell us that Judge Carter, did you say?

    Testified —

    Peter A. Hall:

    Yes, sir.

    William J. Brennan, Jr.:

    — that he could remember not more than one Negro ever serving on the panel, do you mean on a panel of a hundred?

    Peter A. Hall:

    No, sir.

    Perhaps, I should — allow me to try to explain this, the panel — the jury panel drawn for service for a term is around a hundred persons.

    A hundred persons is enough.

    The number of persons who served on a grand jury is 18 persons.

    Peter A. Hall:

    Now, out of the panel of a hundred, they draw — they draw petty juries and a grand jury.

    Now, from this panel of 100 persons, Judge Carter, who draws most of this — of the grand juries will then take these 100 names, put them in their hat.

    They throw them through the hat and draw from that hat 18 new service grand jurors.

    William J. Brennan, Jr.:

    And he does that once a year?

    Peter A. Hall:

    He does that twice a year.

    William J. Brennan, Jr.:

    Twice a year.

    Peter A. Hall:

    Yes, sir.

    William J. Brennan, Jr.:

    Now — and I don’t quite get the significance of the one Negro.

    Peter A. Hall:

    Over a period of 21 years that he has enjoined such grand juries in Montgomery County, Alabama, he remembered one Negro having served on a grand jury.

    William J. Brennan, Jr.:

    That is only one —

    Peter A. Hall:

    Only one —

    William J. Brennan, Jr.:

    — in all the number of panels of a hundred —

    Peter A. Hall:

    — in 21 years.

    That was his testimony.

    William O. Douglas:

    There was a — there was a hearing on this?

    Peter A. Hall:

    Yes, sir.

    It was the hearing not on the motion to push the indictment Mr. Justice, but the hearing on the motion to question the jury drawn to hear this particular case.That is where this testimony came up.

    William J. Brennan, Jr.:

    Did — did the judge remember what year that was over the last 20 years?

    Peter A. Hall:

    No, sir.

    He didn’t.

    I don’t recall it.

    William J. Brennan, Jr.:

    Don’t bother to tell.

    Charles E. Whittaker:

    I thought the reference showed (Inaudible).

    Peter A. Hall:

    Yes, sir.

    Charles E. Whittaker:

    There were eight Negroes on the County and agreed on — on the aide of the matter.

    Peter A. Hall:

    Yes, sir.

    Charles E. Whittaker:

    Three on the panel that tried this case.

    Peter A. Hall:

    That is true, Your Honor.

    That is true but this was the petty jury.

    Now there had been.

    Peter A. Hall:

    There was testimony from the bar.

    We questioned the members of the Bar of Montgomery County, several of them and that was a considerable testimony to the extent that several Negroes had been on jury panels in previous years.

    But to have Negroes actually serve on juries was another thing.

    That was the testimony.There were eight on this panel of 100 persons.

    I have — none served on this jury and none served on the grand jury which indicted it.

    Charles E. Whittaker:

    They were not been served on this jury —

    Peter A. Hall:

    Yes, sir.

    Charles E. Whittaker:

    But they were called to serve on —

    Peter A. Hall:

    They were called —

    Charles E. Whittaker:

    — and stricken for (Inaudible) presumably by the prosecution.

    Peter A. Hall:

    Absolutely, sir.

    Yes.

    Peter A. Hall:

    Now, getting back to the — to the question which Mr. Justice asked me.

    Judge Carter testified that he had known one Negro to serve on a grand jury in 21 years, only one.

    Now, he had — he had drawn most of these grand juries and addressed most of them.

    Our contention made by way of motion was that Negroes did not served through some design, either because they were lift off of the jury rules all together or somewhere between the time of placing them on the roles and getting them to serve by reason of some design of the State of Alabama, they never got on a grand jury.

    William J. Brennan, Jr.:

    Now, what’s the method by which the 18 are selected?

    Does the judge just select them?

    Peter A. Hall:

    Oh sure.

    They are put in a hat — handkerchief put over the hat, placed over the hat.

    I believe that’s correct from the Solicitor of Montgomery County here and he draws them out.

    There is no contention on the part of petitioner that the judge has a method of knowing which are Negroes or which are white.

    William J. Brennan, Jr.:

    But it so happened I gather —

    Peter A. Hall:

    But he does draw them out of the hat from under the handkerchief.

    William J. Brennan, Jr.:

    And your position is that over 21 years.

    Peter A. Hall:

    Yes, sir.

    William J. Brennan, Jr.:

    Although there had been this process followed and in the hat would be a number of names of Negroes.

    Peter A. Hall:

    Yes, sir.

    Well, no, sir, we do not admit that.

    William J. Brennan, Jr.:

    You do not admit that, I see.

    William J. Brennan, Jr.:

    In any event, only one Negro over the 21 years ever had his name drawn from the hat, is that it?

    Peter A. Hall:

    According to the testimony of Judge Carter.

    Now, Judge Carter remembered positively one Negro serving, but he could not remember as many as two or four serving according to his testimony.

    Felix Frankfurter:

    Mr. Hall.

    Peter A. Hall:

    Yes sir, Mr. Justice Frankfurter.

    Felix Frankfurter:

    Do I understand a right that the second trial, the trial in which there was (Inaudible) in which they had this conviction which you refer, was on the original indictment.

    Peter A. Hall:

    Yes, sir.

    Felix Frankfurter:

    Please refresh my recollection because I ought to remember this but I don’t.

    When the case was here, 1954 —

    Peter A. Hall:

    Yes, sir.

    Felix Frankfurter:

    — was the question of the makeup of the grand jury panel as well as the selection urged on this before?

    Peter A. Hall:

    Yes, sir, Mr. Justice Frankfurter.

    It was argued extensively.

    Felix Frankfurter:

    I don’t mean to draw any instance.

    I just want to know the fact.

    That was true, wasn’t it?

    Peter A. Hall:

    Yes, sir.

    Felix Frankfurter:

    It was urged and argued — the briefs —

    Peter A. Hall:

    Yes, sir.

    Felix Frankfurter:

    — argument and accounted by counsel for the State.

    Peter A. Hall:

    Yes, sir, of course.

    Felix Frankfurter:

    And you are now — you are now — you are now again challenging the validity, the constitutional of validity of the indictment because of the composition of the panel, is that right?

    Peter A. Hall:

    Yes, sir.

    That is one reason, Mr. Justice Frankfurter and the other reason we attack the indictment was because our contention is that there was no sufficient legal evidence before such grand jury as is required by a statute of the State of Alabama on which they could base the indictment.

    Earl Warren:

    Do you challenge the — the Constitution of the petty jury also?

    Peter A. Hall:

    We did challenge that, sir.

    We had a hearing on this, Mr. Chief Justice Warren.

    Earl Warren:

    But what is the fact in regard to petty juries in that county in recent years?

    Peter A. Hall:

    We set out in our motion for pushing the petty jury, call to hear this case the fact that the Negro population of Montgomery County, Alabama constitutes something like 40% from the total population of the County.

    They contended in that motion that from nothing to no more than 10% that no jury — put it this way, sir.

    Peter A. Hall:

    No jury ever was composed of more than 10% no panel or the jury role itself did not contain the names of more than 10% of its total makeup over Negroes.

    William J. Brennan, Jr.:

    Does that mean that if the — if the hundred every time, you never had a panel that had more than 10 Negroes —

    Peter A. Hall:

    Never had that more than 10 —

    William J. Brennan, Jr.:

    — names, is that it?

    Peter A. Hall:

    Now, in —

    Earl Warren:

    (Inaudible) any concern on petty juries?

    Peter A. Hall:

    I — yes, sir, Mr. Chief Justice Warren.

    We must admit that Negroes have served on petty juries.

    I have seen them serve in Montgomery County in recent years.

    However, one of our main contentions is that Jeremiah Reeves was arrested and indicted in 1952 and as Judge Eugene Carter says, “Until recent years, they have had very few Negroes on the jury.

    And in 1952, I don’t believe they had any.”

    In 1955, I have to reflect that Negroes are serving on petty juries in Montgomery County, Alabama.

    Now —

    Felix Frankfurter:

    By way of information.

    Peter A. Hall:

    Yes, sir.

    Felix Frankfurter:

    Is the situation also from your point of view is ameliorated or changed as to grand jury — serve on grand jury on the panel from which grand jury to draw?

    Peter A. Hall:

    Mr. Justice Frankfurter, I do not know.

    I do not know of any Negro who has served on a grand jury in Montgomery County at any time.

    On this hearing, we questioned several Negroes and leaders there in the city of Montgomery, well educated persons, persons with position and none of them knew of any Negroes who had served on a grand jury.

    William J. Brennan, Jr.:

    Do you practice in Montgomery, Mr. Hall?

    Peter A. Hall:

    I am in Birmingham, Mr. Justice.

    William J. Brennan, Jr.:

    In Birmingham.

    Peter A. Hall:

    But I have also practiced in Montgomery and all of the State of Alabama.

    I have seen, however, in the City of Montgomery, Alabama as many as three or four Negroes on petty jury in recent years.

    Felix Frankfurter:

    Criminal petty jury?

    Peter A. Hall:

    I couldn’t be sure, Mr. Justice Frankfurter, possibly so, but that has been in recent years.

    I must stress that.

    There has been a change and our contention is that the grand jury which indicted Jeremiah Reeves in 1952 was made up under that whole system which of course has changed recently and that at that time, it was greatly wrong and deprived the rights guaranteed him by United States constitution and that, the system by which they selected persons to serve was designed to discriminate against Negroes because of their race.

    Charles E. Whittaker:

    (Inaudible)

    Peter A. Hall:

    Yes sir, Mr. Justice Whittaker.

    Peter A. Hall:

    The Alabama law requires that the composition of a grand jury can be attacked only by a plea in abatement and that such plea must be made in any case before arraignment.

    Charles E. Whittaker:

    (Inaudible)

    Peter A. Hall:

    In 1952, sir, as we try to outline to begin with, Jeremiah Reeves is arrested on November 10th, 1952.

    He was kept in the Montgomery City Jail for —

    Charles E. Whittaker:

    (Inaudible)

    Peter A. Hall:

    Yes, sir.

    He was kept in the Montgomery City Jail four or five hours where he was questioned intensively.

    This record, the previous record will show that.

    He was then taken from the city jail to Kilby Prison, a penitentiary where the record said and where the testimony was to be effective that he was placed in the electric chair and some other things and kept there from November 10th to November 14th.

    But this was — we’re not urging this, Mr. Justice Whittaker but in order to make the point that he did meet the requirement.

    He was taken to Montgomery City Jail to Kilby Prison where he was kept from November 10th to November 14th.

    William J. Brennan, Jr.:

    Well, the — the idea was that the confession which —

    Peter A. Hall:

    Yes, sir.

    Whether in this confession —

    William J. Brennan, Jr.:

    — has been thrown out by the previous decision was gained by bringing him in alongside the electric chair and telling him (Voice Overlap) —

    Peter A. Hall:

    That was the confession on the previous trial.

    At least he was queried intensively.

    He was kept incommunicado.

    We urged on the previous hearing that he was threatened.

    From the 10th to the 14th, he was not allowed to see his parents to have counsel or to see anyone.

    On the 14th, allegedly, he had made certain statements and has made certain confessions.

    Now, on that same day, he was allowed to see his mother for the first time.But on that same day, he was indicted by the Montgomery County grand jury.

    Now, he — on the next day, the 15th, he was arraigned.

    Charles E. Whittaker:

    He had counsel —

    Peter A. Hall:

    He had counsel on that day.

    Charles E. Whittaker:

    Now, where did he get counsel?

    Peter A. Hall:

    He — and that, we do not know, sir.

    We were not the counsel for him at that time, but this — the man that he had as his lawyer at that time and tried to see him at Kilby Prison and according to the record on the first trial — on the first trial had been refused, admitted.

    So, he had no chance to confer with.We would like to also point out the fact that on the 15th, when he was arraigned, he had not been served of the copy of his indictment nor did he know who the members of the grand jury that had indicted him were.

    Mr. Hall, what was the ground in which the state court denied your motion to —

    Peter A. Hall:

    Motion to quash?

    Yes, motion to quash —

    Peter A. Hall:

    It came too late —

    It came too late.

    Peter A. Hall:

    Mr. Counsel, may I attempt to make this point a little clearer?

    Counsel for petitioner on the first hearing, on the day of arraignment, requested a continuance from the trial court for the purpose of drawing up motions going towards an attack on the indictment.

    The trial court refused that continuance.

    He was required to plead.

    At that time, they made a plea of not guilty, not guilty by reason of insanity.

    Now, that was in 1952.

    Subsequent to that, he again attempted to attack the indictment and the trial court held that the attack came too late in as much as he had already made a plea to the merits.

    On this hearing —

    William J. Brennan, Jr.:

    Let’s see.

    He made the plea, you tell us because he was denied a continuance —

    Peter A. Hall:

    Yes, sir.

    William J. Brennan, Jr.:

    — which he sought for the expressed purpose of making an attack in the indictment, isn’t it?

    Peter A. Hall:

    Yes, sir.

    Charles E. Whittaker:

    Now, that was —

    Peter A. Hall:

    Reeves had been indicted on the 14th.

    He was arraigned on the 15th and at the time of arraignment, he was required to plea.

    He asked for continuance, the judge says no so he had plea.

    Charles E. Whittaker:

    He was tried on the 26th?

    Peter A. Hall:

    Yes, sir.

    Charles E. Whittaker:

    Under what, on the same month?

    Peter A. Hall:

    On the same month.

    Charles E. Whittaker:

    Now, he had a lawyer and as I understand the point — well, can you tell us precisely when he had a lawyer?

    Was it on the 14th the day he was indicted?

    Peter A. Hall:

    He was not allowed to see anyone until the 14th and afterwards, so it had to be the 14th, sir.

    Charles E. Whittaker:

    It’s important to me because I want to know how much time intervened from the time he had a lawyer until he had to plea in this case.

    Peter A. Hall:

    Please excuse me, Mr. Justice Whittaker.

    Peter A. Hall:

    I have here somewhere in the brief.

    On page 7 —

    Charles E. Whittaker:

    Page 7?

    Peter A. Hall:

    — of — of petitioners brief under (1), at the bottom of the page.

    We set out some of this.

    At the bottom of the page, we set out at the last paragraph.

    He was taken from the county jail, situated in the City of Montgomery, Alabama where he was kept five or six minutes and then taken immediately to Kilby Prison, the State penitentiary, situated in the same County where he was put in the test cell, questioned and threatened without advise of counsel and not allowed to see his parents from Monday, November 10th until the afternoon of Thursday, November 14th after he had made certain admissions and culprit statements when his mother was allowed to see him.

    I don’t know if counsel was allowed to see him that afternoon or the morning of the 15th, but I know he saw no one until the afternoon of November 14th and he was required to plea on trial for his life on the morning of November 15th.

    William J. Brennan, Jr.:

    And he was actually indicted on the 14th, the same say he first saw his mother.

    Peter A. Hall:

    Yes, sir the same day.

    William J. Brennan, Jr.:

    So at most, it had to be within 24-hours.

    Peter A. Hall:

    Yes, sir.

    William J. Brennan, Jr.:

    Well, now did I understand you to say earlier that — does the record show that his mother had retained a lawyer who had tried to see him between the 10th and 14th —

    Peter A. Hall:

    The record of previous hearing, in the record of the previous hearing shows that some attorney, Mr. (Inaudible) I believe attempted to see him at Kilby Prison.

    William J. Brennan, Jr.:

    That’s between the 10th and the 14th.

    Peter A. Hall:

    Between the 10th and the 14th and was to — there is some contention.

    We don’t have it in this record.

    We didn’t go into that issue.

    On —

    Tom C. Clark:

    Is there anything in the record that shows that he actually, at the time that he made his motion to continue (Inaudible).

    Peter A. Hall:

    For the motion for continuance, Mr. Justice Clark?

    Tom C. Clark:

    Contend that he was going to raise the question of attack on the grand jury.

    Peter A. Hall:

    I don’t —

    Tom C. Clark:

    (Inaudible) a motion for continuance is made and to say what grounds or what is the further motion.

    Peter A. Hall:

    I am not sure of that contention, Mr. Justice Clark, but somewhere in the record, there is a suggestion.

    I don’t know if it’s in this record, previous record because we argued the same point on the cause that came up before.

    I believe in that record and on that brief, we set out the counsel and — and indicated the place in the record where it was that counsel wanted to make a motion or I didn’t make a motion for continuance for the purpose that argued on his motion for continuance that he wanted to attack the indictment and go into that, but they refused to grant him continuance or he wanted to study the matter.

    I’m — I’m not sure, Mr. Justice Clark.

    Tom C. Clark:

    He made a motion to quash.

    He made — he has to make a motion to quash.

    Peter A. Hall:

    Yes, sir.

    He made a motion to quash subsequent to his plea on the arraignment.

    Tom C. Clark:

    Now, did he — on the 15th, the record showed that he came in and made a motion to continue the arraignment and then go over it.

    The judge said he denied it.

    Peter A. Hall:

    Yes, sir.

    Tom C. Clark:

    Can you say what the grounds were?Now, my question was and I understand (Inaudible) it’s in the record that was here before.

    Peter A. Hall:

    Yes, sir.

    Tom C. Clark:

    That record should show that at that time, the counsel stated that he wish to attack the merits.

    Peter A. Hall:

    Mr. Justice Clark, he also suggested that he subsequently on the trial made a motion to quash, I believe.

    Tom C. Clark:

    That was the 13th.

    Peter A. Hall:

    On the 13th, yes sir, but that was after —

    Tom C. Clark:

    The arraignment.

    Peter A. Hall:

    — the arraignment and everything else, but he actually made a motion to quash the indictment.

    And the trial court held then that he came too late.

    He had already pleaded.

    On the previous hearing, in this honorable Court, it is our understanding that the reversal was predicated on the Commission and the evidence of an illegal confession or certain statements made by petitioner alleged to it and made by the petitioner.

    The record of the previous file indicates that no written confession was introduced into evidence or read to the jury, but that certain words or certain statements alleged to have been made to the prosecuting witness, Mrs. (Inaudible), and to a state official were repeated for the benefit of the jury or went to the jury.

    On the second trial, no confession was read to the jury nor did Mrs. (Inaudible) this time repeat verbatim what had been said to her previously, but she admitted on the stand that at the time she allegedly identified petitioner on November 12, the state is important.

    Before she viewed him through a one-way window as he stood alone in a cell, it’s either the city or county jail that she had been given a statement by a police official which indicated that the man which she was looking at had confessed to the crime.

    This record shows that?

    Peter A. Hall:

    Yes, sir.

    They referred to (Inaudible).

    Now, the State is under the assumption that they did not introduce a confession.

    Our contention is that if it was ever introduced, it was introduced this time too, because a prosecuting witness indicates from everything she says and from her actions and the fact that she had to talk with the man.

    She looked at him through a one way window.She did not have to go into the cell.

    She had to go in and talk to him.

    She saw the statement before she went in and then she still had to go in and talk to him and have a conversation with him before she could come out and say she’s identified.

    But her entire identification was based upon that culprit statement or whatever that confession was.

    The State certainly don’t have to introduce it into evidence, only by introducing her and letting her point the finger on the petitioner and identifying him.

    The State’s whole case is grounded upon the identification of the prosecuting witness and the corroborating testimony of one witness called — his name is Clark who allegedly picked up a colored boy somewhere in the vicinity of the neighborhood where this crime took place on the day in question.

    Peter A. Hall:

    And this man, this witness that remember everything in the world about petitioner, but he couldn’t even remember the day he talked to him in prison.

    And he — and the record of the previous hearing, again, this hearing will show that he could identify him until he talk to him, so whatever admissions were made for the basis of his identification.

    Assuming that we had been allowed on a proper hearing to question those people, those persons who must have appeared before the grand jury and as much as the State’s whole case rested up on that identification, if we could have shown that the indictment was granted upon these illegal admissions, then it seems to me on the decisions of this Court and under the Federal Constitution decision and under the law of Alabama which is clearly set out in our statute and in here looking at the State where the Supreme Court is held that were — the legality of evidence before the grand jury when it’s brought up on a motion to quash must be decided by the trial court before they can go on to hear the case on the merits.

    (Inaudible)

    Peter A. Hall:

    No, sir.

    The State brought up Costello and while we didn’t discuss it, we didn’t take issue there.

    It seems to us that Costello appears sort of different situation and as much as it’s a criminal case to those in the Federal Courts and Costello is relying upon the Fifth Amendment and whatever rights he might have under the Fifth Amendment.

    It was his contention that if the Fifth Amendment guaranteed him nothing that this Court should setout certain rules by which grand jury should go before and bringing in an indictment.

    The Court, Mr. Justice Black’s opinion held that the Fifth Amendment guaranteed him nothing only that — all the murders and infamous trials should begin by indictments are presented.

    And in a review of the grand jury system, he pointed out that they’ve been more or less left on their own.

    However, we are relying upon an Alabama statute which says that only legal evidence can go to grand jury.

    William O. Douglas:

    (Inaudible)

    Peter A. Hall:

    They didn’t say the statute was set aside, sir.

    They absolutely refused to give us a hearing on our motion.

    William J. Brennan, Jr.:

    On the ground that you’re out of time, was it?

    Peter A. Hall:

    On the grounds that we — that there was no merit (Inaudible), sir.

    They absolutely refused to give us a hearing on our motion.

    I don’t know what the — I don’t recall exactly what the Court held.

    But in addition to that — that statute incidentally while I check this, we had an Alabama case to back our position up and that was the Hill case which we just mentioned and which we cite in the brief, Hill against State 20 Alabama (Inaudible) which was a — a conviction for a liquor law violation where the defendant alleged the grand jury which returned the indictment.

    It has no legal evidence before it and that the indictment should be quashed.

    The trial court overruled it and went up to the State Supreme Court and the State Supreme Court held that there was a merit in his contention and that the — that the motion presented an issue of fact to be determined by the trial court before the defendant could be required to plea on the merits.

    But in this particular case that the Supreme Court of Alabama would not —

    William J. Brennan, Jr.:

    Where does it appear why — are the reasons stated why the motion to quash was denied?

    Peter A. Hall:

    No, sir.

    The trial court gave no reason.

    They just overruled on this.

    William J. Brennan, Jr.:

    Where is the order?

    Peter A. Hall:

    Find it for me.

    Would you allow him to find (Inaudible)?

    Record 18 and Record 207.

    William J. Brennan, Jr.:

    Is this at page 19, additional judgment and pleadings?

    Peter A. Hall:

    18.

    William J. Brennan, Jr.:

    18?

    Peter A. Hall:

    On the record, sir.

    William J. Brennan, Jr.:

    Does the record of the proceedings which led up to those judgments anywhere?

    Peter A. Hall:

    On page 207 of the record, motion to quash indictment (Inaudible) on page 207 of the proceeding, sir.

    William J. Brennan, Jr.:

    Well, apparently, the State objected to the motion on single ground, wasn’t it, that it came too late?

    Peter A. Hall:

    The State objected, Your honor.

    I — I recall the trial court giving no reason they overruling the motion and we took exception.

    William J. Brennan, Jr.:

    You’re right that he says nothing, but I notice that the Solicitor for the State, the top of page 207 states his reasons for objecting that it comes too late.

    Now, the trial judge says — he says “Considered opinion that the motion should be denied”.

    Peter A. Hall:

    That’s right.

    William J. Brennan, Jr.:

    Is that right?

    Peter A. Hall:

    That’s right.

    If Your Honors please, I’m don’t want to take all of the time.

    We have this divided time but we have another argument which we wanted to present, another point.

    The petitioner understands that an ordinary circumstances, it’s unnecessary to re-indict, to re-arraign a man simply because — because it’s been reversed on appeal.

    Usually, the error, if it appears, is some error which goes on the trial of the cause, an error in ruling on the part of the Court, errors of otherwise.

    But in this particular cause, we think it is particularly urgent and under the circumstances here, the trial court’s refusal to allow petitioner to withdraw his pleas previously in it, which petitioner asked first before attacking the Court’s position and asking for reindictment and rearraignment.

    Petitioner asked that he be allowed to withdraw his pleas in it at his previous arraignment in order that he might attack the legality of his indictment.

    The trial court absolutely refused to allow him to withdraw his pleas.

    Now, it is admitted by petitioner that the trial court had discretion to refuse or to grant that request to withdraw pleas.

    But we submit that under the circumstances, his refusal to allow to withdraw was arbitrary to the extent that it was — it’s a revisable error and that it did deny the defendant, a very substantial right guaranteed him by these laws of Alabama and by the federal laws.

    Thank you very much.

    Earl Warren:

    Mr. Thetford.

    William F. Thetford:

    Mr. Chief Justice, may it please the Court.

    We, my colleague and I, Mr. Stewart are here as the Solicitor and Deputy Solicitor who prosecuted this case, prosecuted it both the first time and the second time.

    We’re here by order and direction of Attorney General of the State of Alabama.

    We are dividing our time and I propose to argue in this order, is the Board of Jury Supervisors of Montgomery County systematically excluding Negroes because of race or color and let me explain this that what I say would apply equally to grand or petty juries because they’re all drawn out of the same box.

    Does due process require the reindictment, rearraignment of the defendant for a second trial?

    William F. Thetford:

    Did due process require the trial court to allow the defendant to withdraw his pleas of not guilty and not guilty by reason of insanity entered on November the 15th, 1952 upon a subsequent trial held after reversal of this case by the Supreme Court of the new — the request being made on May 30th, 1955 and should the defendant have been allowed to inquire into this efficiency of the evidence before the grand jury which indicted him.

    Those are the four of the points which have been argued.

    Mr. Stewart will cover the two remaining points which are the certain remarks which were made and certainly a request that was made in the qualifying of the jury or trial, the actual trial jury and the question of excluding the public from a court room during the trial of case — a rape case, case of this nature.

    Felix Frankfurter:

    Did you mention the question of the confessions of —

    William F. Thetford:

    There is no question of a confession in here.

    What — are we going to deal with it?

    William O. Douglas:

    What’s the point that you talk about it?

    William F. Thetford:

    Well, there is.

    The State offered no confession or anything approaching a confession.

    He said so, but I’m — and I’m going to answer that.

    Felix Frankfurter:

    All right.

    William F. Thetford:

    But that is simply our concern on the statement of the fact.

    Felix Frankfurter:

    Very well but you’re going to deal with it.

    William F. Thetford:

    I will.

    Earl Warren:

    We’ll — we’ll recess now, Mr. Thetford.