LOCATION:Arnold Schwinn & Co.
DOCKET NO.: 251
DECIDED BY: Warren Court (1965-1967)
CITATION: 385 US 538 (1967)
ARGUED: Dec 06, 1966 / Dec 07, 1966
DECIDED: Jan 23, 1967
Audio Transcription for Oral Argument – December 06, 1966 in Sims v. Georgia
Number 251, Isaac Sims Jr., petitioner, versus Georgia.
Mr. Chief Justice and may it please the Court.
This case here is on petition for writ of certiorari following the second trial of petitioner, Isaac Sims, a Negro, who was convicted on both occasions of the alleged rape of a white woman in Charlton County, Georgia in April 1963.
Following the first trial, he was sentenced to death.
His court appointed counsel took no appeal shortly before the date of execution one of the present counsel on the case was engaged by sentence, filed a petition for writ of habeas corpus in the state court and in the Supreme Court of Georgia secured a reversal of the conviction on the ground that inadequate representation of counsel.
The second trial was held on October 7, 1964, petitioner Sims was re-indicted on October 6, the day before the second trial commenced.
He was found guilty once more and sentenced to death on October 8, 1964.
This case presents two categories of issues to the Court.
The first involved discriminations selection of grand and petty juries which we claim was conducted contrary to the requirements of the Fourteenth Amendment.
The second involves various issues revolving around in alleged confession.
We submit —
I would submit if any of our points were good, you would not have to reach any of the other of the points.
Well, the Georgia Court didn’t — that’s what I read them as having said but their language — it was not precisely that their language was they denounced the decision as illogical, impracticable, something to create chaos and so forth.
They said, we didn’t do what Jackson requires but this is distinguishable because Georgia has three rules of law that New York didn’t have and so this is rather different.
Beside they said there was no factual issue involved and we claim that there was indeed a factual issue and if anything the factual issue should be resolved in the ground that this confession was coerced as matter of law as I hope to be able to demonstrate.
On the confession issue, we claim first of all that the confession was secured by means which is a matter of law are forbidden by the Fourteenth Amendment, that secondly this confession was appraised by the state courts according to standards not inconformity with Fourteenth Amendment and that finally was received in evidence according to procedures forbidden by the Fourteenth Amendment.
I would like to first discuss the jury question.
On pages three to four of the record, there is a clean abatement which attacks the composition of the grand jury.
It alleges that there has been over period of years systematic exclusion of Negroes, that the grand jury is selected from the tax digest that many Negroes’ names appear on the tax digest and many Negroes in the community are upright and intelligent citizens, that over period of 10 years, virtually no Negroes have served on the grand jury, that there has been none as jury commissioners are and that the tax digest are kept on basis of race indicating who’s colored and who’s white in the very book which is the source of the grand jurors.
The clean abatement also alleged that there was neither notice nor reasonable opportunity to petitioner to challenge the array of the grand jury prior to the time of the return of the indictment which took petitioner by surprise.
Petitioner supposed that he was going to be try on the first indictment and the trial was set for the seventh, he walked into court was still down to six, he’d been re-indicted by another grand jury.
There was also a challenged to the array of the traverse jury and that appears in the record, pages 68 and it claimed that there was a system of selection whereby Negroes who excluded and included on the basis of race and that Negroes selected Negroes who might have served down traverse jury was systematically struck from service on the basis of race and then there were some additional charges which similar to those made in connection with the grand jury.
Now, petitioner will not elaborate on what the law is that governs the jury question because it is familiar to this Court and has been argued at least several times each term but in the phrase, it is that a defendant is not entitled to members of his own race, on a panel or on a jury which tries him.
He’s merely entitled not to have them systematically excluded and the way this issue has been tried in case after case has been to look at the history and see what has been the method of selection of the jury, what have been the results and what kind of a judgment can you make from these facts and that would be particularly appropriate in this case because even though petitioners was re-indicted a day before his trial but there was no evidence whatsoever that the method of selection on the new indictment is any different from the method of selection that has been used over all the years in the past and indeed to extent of the record indicates it, it is the same method of selection and does rely upon the tax digest which are divided on the basis of race and white person’s name or in white pages and Negro person’s name are on yellow pages.
Why was he re-indicted?
It doesn’t appear.
The only possible reason one might imagine is that to secure a new grand jury in order to do it but there is no evidence of this grand jury was selected by any different method than any of previous grand jurors but there is — the second indictment is precisely the same as the first indictment.
Since was the 21 — it seems didn’t know was on May to which is part of our charge on the confession point that he is so ignored he wasn’t — didn’t know was on his but at the time of trial he was either 27 or 29.
How long that (Inaudible)
Well, the second trial was two years after the alleged incident.
No, one year after the allegiance in the ’60 — October, 1964 and the alleged incident was in April 1963.
At the out set of the hearing on the jury point, petitioner offered in to evidence the certified register of the jury list of the previous 10 years and this was the very first thing that he did.
And this obviously was a prelude to an examination concerning the pattern of jury selection.
This has occurred as I said on numerous cases.
In page 50 of our brief, we cite perhaps the half page full of citations of cases in which this and other courts have looked to the practices of years passed in order to make a judgment on this point.
There was an objection, the counsel for the state said, “I mean to object that any list of any grand jury that doesn’t have anything to do with the present grand jury or petty jury and wouldn’t have anything to do with this particular grand jury or petty jury.”
And the Court said, “I am the opinion that would be right.”
The objections were sustained and so as to leave no doubt whatsoever about the grounds of sustaining them, the grounds of the ruling on the State Supreme Court, we find on page 331 of the record in the opinion of the Supreme Court of the state, we are of the opinion that the Court properly excluded jury lists for prior years.
They would not be relevant in the face of a showing that no discrimination existed in the composition of the present juries.
So, the holding below and both the trial and the appellate courts were that petitioner would not be permitte to demonstrate what the pattern of selection had been over the past leading-up into the present.
And we submit that on this ground alone and we will discussed the method of selection, the yellow and white pages in a moment but in this ground of alone on the basis of this Court’s decision in Carter against Texas and the decision of a term or two go in Coleman against Alabama that is reversible error in and of itself for this petitioner at a minimum has a right to prove his case and his case consists of demonstrating what the method of selection is and what kind of juries this method produces and he wasn’t permitted to do that.
Now, on this grand jury, we do know that if the grand jury that indicted petitioner, there was a stipulation that there was a single Negro and we do know that on the petty jury array of 99, there were five Negroes and if we put together the names of the Negroes alongside the list of strikes which appear on page 19 to 21 of the record, we also know that three Negroes were struck by the state and two Negroes were never reached, so all five Negroes were disposed of.
Now, we submit that if we could demonstrate — forbidden to demonstrate, if this have been the pattern of the past 10 years or less over period of many years at all that there have been no more representation in this, so perhaps less representation on this, there would be clear grounds reversal but petitioner was never permitted to show anything about the previous years and all we have is the — this bid of evidence about the single year which in and on of itself is a suspicious to the point of I think indicating to a certainty that something was a missed in the method of selection in so far as securing adequate representation without regard to race.
And you told this, what percentage of Negroes and whites there were in the county, Mr. Greenberg?
Yes, I have those statistics here Mr. Chief Justice.
The white population over age 21 on the county was 1,928 and the non-white population over 21 was 728.
Now, the jurors were selected from the tax digest and the white taxpayers in the county were 1,548 and the Negro taxpayers were 411.
Hugo L. Black:
What county is that?
Charlton County, Georgia.
Now, the method of selection that was employed, we submit, is unconstitutional per se but certainly taken in conjunction with the small representation that petitioner was permitted to show and the refusal to permit him to demonstrate whether the representation have been the same or perhaps less in the past adds up to a reversible error.
Now, the commissioner and here’s the way the jury was made up, the commissioners testified or a commissioner testified that they went through the tax digest list so these are two books, one book for Negroes, one book for whites, the book for whites raving there were in single volume but the pages for whites were white, the pages of Negroes were yellow.
The commissioner went through the white pages alphabetically A to Z and they said around the table and somebody said John Jones and somebody said, I know him, he’s pretty good and there were another names that I’m hope so and so and say, let’s not take him and they didn’t take him, went to this informal manner.
When they got all through with the white names they then took up the Negro names and so at the very outset there was a method of selection which intrudes thrust under the very knows of the jury commissioners, the consideration of race then these names are put on the box and the judge selects from the box in appropriate number of a grand and petty jurors and a proportion required by the statute.
Hugo L. Black:
How does he select?
He just suppose to reach and pull their names out, I mean I –- this is —
Hugo L. Black:
(Voice Overlap) put indiscriminate —
In a way, but yes they’re in put together indiscriminately.
They’re on the same colored paper and you no longer have yellow and white paper and that the judge then selects as in this case 99 for the petty jury array and then counsel select the jury from that array.
Now, we claim first of all that the very outset the method of selection is infected with racial consideration.
This Court has held in Hamm against Virginia that the maintenance of tax list on these basis, there is no jury question involved in that case but the maintenance of tax list on this basis violates the Equal Protection Clause of the Fourteenth Amendment and a case that is very much in point we submit is Anderson against Morton, the Louisiana case which said that it was unconstitutional to place the race of a candidate next to his name on a ballot and the reason that is unconstitutional is that at the last moment before the voter makes his choice the state thrust under his nose the racial consideration.
It’s the only thing that the state tells him at that point and the Court held that this was impermissible combination of private and public action that while you could not stop voters from knowing what the race of the candidates would be and in fact in most cases they would be expected to know and no way certainly couldn’t read their minds, you know why they voted for candidates in some instances they might vote for him on a basis of race or might vote against him on a basis race.
Nevertheless, for the states to inject the racial consideration that thrust forward at that point was impermissible.
Well, I don’t think it is a farfetched analogy to say that what the jury commissioners at this point are doing is electing juror.
They’re going to the list and the one piece of written information, the one thing on the face of the documents from which they are making the selection is the yellow one and white pages and in fact, it’s done in a way which almost invites setting up some sort of proportion because when they get all of a group the white pages then sort of placed in a position where they have to save themselves.
Well, how many Negroes shall we choose in view of the fact that we have?
How many jurors in an array?
Of the — and petty jury array in this case, there were 99, I don’t know –
That information isn’t available, Mr. Justice Harlan but we do now that the array was presumably chosen out of the box by fair selection process just totally by chance so far as anyone can tell produced five Negroes out of 99.
Now, in a case that involved the colors yellow and white corresponding to Negro and white, Avery against Georgia, we had a situation in which there were yellow and white tickets in the jury box and it had not been established that anyone did use these yellow and white tickets for an invidious racial purpose.
It wasn’t known.
One of the concurring opinions pointed out, that it might have been possible peek into the box but nobody did know that anyone actually had peeked into it but the opportunity for discrimination which the use of yellow and white tickets presented plus the fact of this proportionately small representation was held by this Court to warrant a reversal under the Fourteenth Amendment.
We submit that this case is even stronger than Avery against Georgia because we do know that the jury commissioners in selecting the jury did know who is Negro and who was white as a result of looking at the yellow and white pages.
And in fact, while we have a very small proportion on the base of the information that’s now possessed by us, we were precluded from demonstrating in fact what the proportion actually was.
So, we submit that on uncontradicted evidence out the mouth of the jury commissioners and the statutes of the State of Georgia, we have a situation here in which the jury was selected in a manner who are not permitted by the Fourteenth Amendment of the Constitution of United States.
I now like to argue the second portion of our argument and that relates to the admissibility of the confession and evidence, the standards by which it was committed in evidence, the standards by which it was praised.
Petitioner contends that the process followed below violates principles declared by this Court in Jackson against Denno and if we turn to the opinion of the Supreme Court of Georgia, we’ll find a number of things that the State Supreme Court had to say about Jackson against Denno though with made no effort to demonstrate, it was in compliance but only to distinguish it.
It said that the Jackson decision is illogical, impracticable and utterly unsound.
It said that we hope the present justices will after more mature consideration overrule Jackson against Denno.
Said, of Jackson against Denno, that an alarming injustice is being unintentionally forced upon American Courts and having said this that proceeded to distinguish this case in Jackson against Denno while they said at no point ever asserting that it had in fact follow the Jackson against Denno procedure.
Now, before considering all of the distinctions on which the decision of the Georgia Court purports to rest, I should like to for a moment to discuss one of them that is on page 339 of the record in the opinion of the States Supreme Court.
It stated, there was no evidence to make any issue of voluntariness.
Without an issue, there is nothing to try.
Now, we submit however that not only is there an issue of voluntariness that this issue in voluntariness on uncontradicted testimony on this record.
Testimony such of this Court has considered in other confession cases that uncontradicted testimony in this record there can only be one determination and that is –-
Byron R. White:
Mr. Justice White, I don’t know at what point I would draw the line, but I would say certainly within the matters after –- within matter of hours after the events in the doctor’s office, there would be no doubt about it.
He stated he was in pain for period of several weeks thereafter and I think that’s quite believable given the uncontradicted testimony and what had happened to him.
Byron R. White:
Well, not alone but if you take this extreme pain and had been afflicted upon him by somewhat to whom the police had brought him as part of the process of investigation that this man cannot read or write, he graduated from the third grade if you may call it graduated at age 17 or 18, doesn’t even know his own age, doesn’t know when his father died, totally ignorant.
Byron R. White:
Well, he said the sheriff scolded him and I would think that having been through the experience he was through just several hours earlier.
He was probably not in any position to think even as clearly as he might that is clearest.
We like to — in introducing the confession point just state who this petitioner is and I said a word or two about it, he’s indigent, he’s ignorant, finished the third grade at age 17 or 18, he’s illiterate, can’t read or write.
He can write his name as he says pretty good but that’s all.
Wasn’t quite certain what his own age is, his father, mother or daddy didn’t know when his father died.
There were some elaborate recitations in the confession he suppose to have given there were written into it which were they later admitted that he hadn’t given that they wrote in all in their own but to many simply words in there words that even many illiterates might be expected to understand, he didn’t understand.
I think this testimony all rings through, “Isaac, do you know what freely and voluntarily means?”
“I beg your pardon?”
“Do you know what freely and voluntarily means?”
“Freely and voluntarily?”
“No, sir I do not.”
“Do you know what is meant by the statement can be used against you in Court?”
“Statement can be used against me?”
“Statement can be used against you in Court, do you know what that means?”
“Do you know what it means to be informed of your legal rights?”
“Well, that’s like being good or something?”
“Is that what means to you, Isaac?”
And this goes on for a several pages.
There’s one page, on page 141, he is — page 144 rather, he’s asked, “Do you know what normal and ordinary mean, Isaac,” which I submit that many illiterate understand like you’re sick or something, is that would have means to you?
“I imagine so, yes sir.”
So this is the man that we’re dealing with.
We’ll recess now.