Rose v. Mitchell

LOCATION: US Department of State

DOCKET NO.: 77-1701
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 443 US 545 (1979)
ARGUED: Jan 16, 1979
DECIDED: Jul 02, 1979

Walter C. Kurtz - for respondents
William M. Leech -

Facts of the case


Media for Rose v. Mitchell

Audio Transcription for Oral Argument - January 16, 1979 in Rose v. Mitchell

Warren E. Burger:

We will hear arguments next in Rose against Mitchell.

Mr. Leech you may -- Mr. Attorney General, you may proceed whenever you are ready.

William M. Leech:

Thank you.

Mr. Chief Justice and May it please the Court.

This case had its origin, or its genesis in late October of 1972, when the respondents in this case were arrested for murder in Shelby County for a homicide committed in Tipton County, Tennessee.

They were indicted on November of 1972, before the Grand Jury of Tipton County which was chaired by an acting foreman who had been appointed by the Trial Judge under Tennessee System of appointing the foreman of the Grand Jury.

The acting foreman was accompanied on the Grand Jury by 12 other grand jurors selected from the general venire list of Tipton County.

There was a pro se plea in abatement to that indictment.

A hearing was held in the Trial Court and evidence was taken, the Trial Judge overruled the plea.

It went on to trial and the conviction was had against both respondents and each was sentenced to 60 years.

The respondents then perfected their appeal to the intermediate Court of Criminal Appeals, and the Court of Criminal Appeals considered the same assignments of error in their original plea which attacked the method of selecting the foreman of the Grand Jury and that the plea originally alleged systematic exclusion in the appointment of the acting Grand Jury by the Trial Judge.

The Court of Appeals ruled favorable for the state and against the plea, it then was appealed to the Tennessee Supreme Court certiorari was denied and a per curium opinion.

The Court found that the case had been adequately dealt with that the Court of Criminal Appeals.

Thereafter in 1975 petitions were filed by respondents and the District Court at Memphis for petitions of habeas corpus, writ of habeas corpus.

Thereafter the reference to the magistrate was had by Judge Bailey Brown on the bench and the magistrate did take proof, responses, the trial were filed, the trial record was filed and affidavits were submitted.

Subsequently the case was dismissed by the District Court and that the District Court found that the foreman of the Grand Jury had been selected for other reasons than racial.

In essence the proof before the Court at that time was the fact that the Trial Judge had selected the acting foreman of the Grand Jury because of his prior experience in the satisfactory manner in which he had performed that duty.

Petition to rehear was filed before the District Court which was further considered and overruled and then the appeal of course was taken to the Sixth Circuit Court of Appeals and the action of the Federal District Court at Memphis was reversed and the Sixth Circuit did find that there was a systematic exclusion in the selection of foreman of the Grand Jury.

Our arguments and contentions on behalf of the State of Tennessee basically are -- that Judge Brown’s finding was correct.

And that the foreman was selected for reasons other than racial and that the foreman had been selected acting foreman to fill the vacancy of the normal foreman who was unavailable during that term of court and the Trial Judge affidavits of the Trial Judge and the foreman of that grand jury both indicated that it was for prior experience and satisfactory work well done.

Further at that time it should be noted that the foreman of the Grand Jury did not vote in indictment.

The indictment can -- the voting of the indictment was by 12 grand jurors who were selected from the general venire list, raised further that the record indicates that the raise of the defendants who're respondents here was unknown to them at that time and that there was no mention or there was no alluding to the race of the respondent defendants.

Lewis F. Powell, Jr.:

Does the Grand Jury of vote have to unanimous in Tennessee?

William M. Leech:

No sir it requires that 12 grand jurors indict.

Lewis F. Powell, Jr.:

Otherwise it takes a vote of 12.

William M. Leech:

Yes sir and the foreman is under Tennessee law the 13th Grand Juror and may vote.

Lewis F. Powell, Jr.:

And under Tennessee law before a person can be tried for this kind of an offense must he be indicted by a grand jury or can there be an information?

William M. Leech:

Must be Grand Jury Your Honor.

William H. Rehnquist:

Are the Grand Juries statutorily regulated as to size that they all theoretically are 13?

William M. Leech:

Yes sir, yes sir Mr. Justice Rehnquist.