Smith v. Mississippi

PETITIONER:Smith
RESPONDENT:Mississippi
LOCATION:Beaumont Mills

DOCKET NO.: 667
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 373 US 238 (1963)
ARGUED: Apr 30, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 30, 1963 in Smith v. Mississippi

Earl Warren:

William Smith Jr., Petitioner, versus Mississippi.

Mr. Abram.

Morris B. Abram:

Mr. Chief Justice and members of the Court.

This case which comes to the Court on a writ to certiorari to the Supreme Court of Mississippi presents three questions.

The first is the right of counsel — to counsel of a 25 year old Negro, arrested and convicted of rape and given a capital sentence in the State of Mississippi on and in the County of Madison.

This Negro, being a functional illiterate being — having — had only a second grade education, having been arrested on July the 30th, 1961 and not having counsel assigned to him for either 52 or 53 days while he was detained in solitary detention.

Having had no counsel at his confession, having had no counsel at his preliminary hearing, and having counsel assigned to him on his arraignment on the 21st of September.

Earl Warren:

There was no preliminary hearing, was there?

Morris B. Abram:

Yes sir I’m —

Earl Warren:

There was?

Morris B. Abram:

The record Your Honor is silent on that point.

Mississippi Law requires it and I think it is conceded by all that he did have one on August the 3rd —

Potter Stewart:

I see.

Morris B. Abram:

— but it is not in the record.

You will understand Mr. Justice Stewart that this record is somewhat fragmentary in view of the fact that we are claiming that he had ineffective counsel.

And of course the record I think reflects this.

But in any event, he did have counsel appointed on the 21st when on the 22nd, the venire was drawn, his counsel announced that he was ready for trial on the 25th.

Now, the 22nd would’ve been a Friday.

Saturday and Sunday would’ve intervened and he proposed and agreed to go to trial on the 25th the following Monday.

So, the first question that we present to the Court is the right of counsel and the effectiveness of counsel is the second question.

The third question is another due process question which deals with the admissibility of a confession in this case and the fruits of the confession consisting of three items or physical exhibits which are important to the prosecution in the case.

And we finally submit that this confession was submitted by the Court to the jury under an incorrect constitutional instruction.

Now with respect to the facts of this case, may it please the Court, this defendant was arrested on the night of September or rather July the 30th, 1961 when apparently he was sleeping in his home in the sawmill quarters of a sawmill village in Mississippi.

Some time that night between the hours of 12 and 2 in the morning, this 14 year old white girl had been raped at a time when she had immediately before had been seated in an automobile with her 17 year old white companion.

The story that she told is that a Negro came up and put a knife in the window and around the neck of her companion who was seated on the right hand side of the car, she being on the left hand side of the front sit.

And after an attempt to rob and after taking away the knife and the watch and wallet of her boyfriend, he had them drive a short distance and then had to get out of the car and had her submit to a rape with a boy lying on the ground, her friend lying on the ground beside but afraid to move or afraid to offer any resistance because of the fact that the accused had a knife.

In any event, this occurred between the hours of 12 and 2 on the 30th of July.

Now, from the record it appears that the sole reason for the arrest of this defendant was because a police dog which was taken to the scene of the alleged crime picked up a scent and headed in the direction of the sawmill quarters.

Despite what the State of Mississippi says in its brief, that’s all of the evidence that points to the probable cause for the arrest of this defendant.

Not —

Byron R. White:

[Inaudible]

Morris B. Abram:

All in the records, yes sir.

Byron R. White:

[Inaudible]

Morris B. Abram:

There maybe more.

I’m speaking of the record.

You’re right Mr. Justice White.

Now, moreover, it appears that the accused or defendant in this case was one of maybe eight people or nine, I forget which, who were picked up in this dragnet drawn over the sawmill quarters.

At least as far as the record says, eight or nine other suspects were rounded up.

Now, with respect to identification with which this Court is not really concerned I supposed, but it’s interesting that on the trial of this case, neither the prosecutrix nor her friend ever identified or were asked to identify the defendant accused who was given a capital sentence.

Arthur J. Goldberg:

[Inaudible]

Morris B. Abram:

That was — I think the Court will find that was with respect to the testimony outside the presence of a jury on the question of admissibility.

I’m not sure about that but I’d liked to look at it.

But at least, she was never pointed out — she never pointed out this defendant as the person who did commit the crime.

Now, with respect to this defendant, he was arrested about 4 a.m.in his home, he was picked up in this dragnet.

He was taken to the Madison County Jail in Canton, Mississippi.

And he was held there until 11 a.m. That is on a Sunday morning.

And then, he was taken to the Hinds County, Mississippi Patrol Headquarters and he was held there until a confession was obtained at 4 o’clock that afternoon.

As far as the record is concerned, we don’t know whether he had breakfast.

We don’t know whether he had lunch.

The only thing the record shows is that when outside the presence of the jury, the officer who had him in custody was asked whether or not he did have breakfast, he merely said that breakfast facilities were available in the Hinds County or at the Madison County Jail.

It is almost apparent that he had no sleep.

If he were — the fact, the person who committed the crime, he would have gone to bed around 2 or 2:30.

He would have been arrested at 4 and he would have been held without sleep certainly from the time of his arrest until the time that he confessed at 4 o’clock the following afternoon.

His confession was obtained after he says he was accused — he was told by Mr. Snodgrass, one of the officers under whose detention he was, that if he didn’t confess, they were going to take him back to Canton, Madison County where the crime had been committed and let a mob crowd get him, he used the words mob crowd.

Outside the presence of a jury, the Sheriff Noble says of this threat, “I wasn’t present if he made that statement” Mr. John, but he didn’t deny the statement was made.

He says that he did — wasn’t present if it were made.

Now, I must candidly say that all of the persons present in the room denied that there was any coercion or any threat used against this defendant.

It is agreed that he was put on polygraph machine.

It is agreed that James Matlock who have been in — riding around with the accused before the incident occurred, that is the rape occurred, did — was arrested at the same time and it was told to the accused that his accomplice that evening at least in the robbery or the planned robbery had confessed.

Earl Warren:

Was that true?

Morris B. Abram:

Yes, I think as far as I know it was Mr. Chief Justice.

Now, with respect to that, the record shows a very interesting colloquy between the defense counsel and James Matlock who was the companion of the accused in this case.

Finally, it ends up and he agrees that he doesn’t have sense enough to testify because he testified one way and testified another way and finally just began to give no answers at all.

The record is right interesting in that respect.

In any event, after the accused in this case, the defendant confessed, he was taken back to his home and there, a watch, a knife and a pair of pants were recovered which are physically exhibits in the court’s office.

He was – this were picked up around 6:30 or 7 o’clock at night.

Now, a preliminary examination is required by Mississippi law and almost within the terms and language of Federal Rule 5 without unnecessary delay.

And it is the duty of the examining magistrate to initiate a commitment proceeding if that should appear to be required and it is his duty also in the language of the Act to examine into the case.

As far as the record shows, there was no counsel at this hearing.

He was indicted on the 20th of September, 1961 and it’s interesting to note that this could be a critical phase in the defense of the accused because the Mississippi Code says that before swearing any grand jury as such, he shall be examined by the Court on all matters touching his qualifications.

After swearing in the grand jury, no objection shall be raised and it shall be presumptively assumed that the grand jury is properly empanelled.

Now, this defendant was arraigned on the 21st which was a Thursday of September, 1961.

On Friday, the 22nd, he — the venire was drawn and counsel stood up in Court and said the counsel was ready for trial in this capital case on the 25th of September which would’ve been three days later with a Saturday and Sunday intervening.

Now, the trial did occur on the 25th.

No change of venue was asked though the statute of the State of Mississippi is very broad in this respect.

It says that there can be a change of venue if there is prejudgment or ill will against the defendant in the county where the crime is committed.

The State at the trial of the case presented 12 witnesses and I think this is important.

One of them was from Washington, D.C. Four of them were from Jackson, Mississippi which is an adjoining county and because of the language of this Court in Avery versus Alabama, I would point out that Jackson County — Hinds County, Mississippi is a county of 185,000 people.

Seven witnesses were from Madison County which has a population of 33,000 people.

I might point out that that makes 12 witnesses who were presented by the prosecution.

In addition, there was of course the possibility of inquiring of many other witnesses.

For example, what about the man who possessed the dog?

Or what would he have said with respect to the set and where it led him.

But he was never put on the stand by the prosecution and the defense never put anybody on the stand.

The defense only put the accused on the stand during the period that the jury had retired in order to investigate the legality of the confession.

Now, during the course of the trial, the Court will find that 11 times, attorney for the defense objected to leading questions after they had been answered.

Seven of those objections were sustained but he never once moved strike from the record and the jury’s consideration, the answers to leading questions on which his objections had been sustained.

He failed to object to a reference to a confession prior to its introduction into evidence.

And he let pass the equation by the prosecuting attorney of the word of white with American when an FBI agent was being examined.

I say this is not something fatal, but at least gives a flavor of the trial.

Morris B. Abram:

Now the defense counsel did file a motion for new trial in which he raised the question of a coerced confession and admission of certain items of evidence and the case was then taken to the Supreme Court of Mississippi which found no error.

And then at that stage, ACLU counsel came into the case and filed a suggestion of error which I understand of the Mississippi practice, my Brother could tell me if I’m wrong, is equivalent of a motion for rehearing in the Supreme Court of Mississippi.

At that time, the issues of the right of counsel, the right to effective counsel, and the question of unlawful detention and the proofs thereof were raised.

Now, I would like at the outset of the argument of the law of this case —

Earl Warren:

Before you start that may I ask, how long was the trial?

Morris B. Abram:

One day Your Honor.

Earl Warren:

One day.

Morris B. Abram:

And I might add in respect to that, there was half a page of cross examination of the prosecutrix in this case.

Now, I understand the problem in that kind of a case with a young girl, but in any event, it just indicates how fragmentary and how cursory the defense was.

Now, I say that this case, in as much as it complains of the effectiveness of counsel of course presents to the Court a record on which we have to rely and I think that a court can ask itself certain questions based upon the facts and the clear inferences from this record.

For example, it would not be normal I assume to have in a record where a counsel is willing to go to trial on the following Monday in a capital case in objection by him strongly making the point which he didn’t make that an adjournment was necessary.

I would’ve thought it would’ve been rather difficult in as much as you’re arguing for the effect — against the effectiveness of counsel for him to have made the point with respect to the exclusion of Negroes from the jury.

But there are matters of which this Court can take judicial notice which show the type of exclusion that you’ve got in this case or the point that could’ve been made.

For example, Madison County is a county of 23,637 Negroes.

Of them, 10,366 are of the age eligible to vote.

Of that group, only 5.9% are registered.

The county has 9267 whites and of those, 5622 are of voting age.

The point is that out of that tremendous Negro population which consists of 648 — tens percent of the county, only 5.9% are registered.

Now, what’s the importance of this?

The importance is precisely that importance which Judge Reeves in the Fifth Circuit pointed in the Seal’s case in which this Court denied certiorari that where as in Mississippi at that time, the whole construction of the jury system depends and is based upon the electorate, you can’t conceivably have anything but a systematic exclusion of Negroes from the grand jury and the petit jury.

Moreover, the thing isn’t built into the system as its presently operating.

In 1954, the Mississippi Constitution was amended to provide new methods of registration, with two subjective cases.

Does the person who wished to register understand the duties of citizenship, very subjective? And second, can he give a reasonable interpretation of the Constitution?

Now, when they passed this Constitutional Amendment, they put a Grandfather’s Clause in it and provided that all those already registered could continue to vote without re-registration.

Now at that time according to Mr. J.P. Coleman, then the Attorney General of the State of Mississippi, there were 500,000 Negroes of voting age in 1954 when this Grandfather’s Clause was built in to the system of whom only 22,000 were eligible to vote or 4.4% of the population.

Now these are matters which effective counsel could’ve dealt with at the appropriate time in this case.

And counsel of course did not make the point.

It is hardly likely in as much as if he wanted to plead for a change of venue.

It is hardly likely that counsel in this case would’ve made the points which have recently been made at another doctrine of which I think the Court can take judicial notice.

The Civil Rights Commission’s Report on the State of Mississippi, signed by [Inaudible], former president American Bar Association, and Erwin Griswold and others. Certainly, some mentioned of this kind of an in build prejudice in the very system and particularly in this county, it would appear to me, it could’ve made by effective counsel.

Morris B. Abram:

Now, going back specifically to the failure to have counsel at the various stages of this trial.

He was denied counsel as I say for 53 days.

The right to counsel under the Due Process Clause does not mean the right to counsel by form only.

I think the Court will have to go back to the bedrock case, Powell versus Alabama in which this Court said that duty is not discharged by an assignment at such time and under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case. The Court speaks of — from arraignment of trial beginning when consultation, thorough going investigation and preparation were vitally important and they called this a critical phase of the trial.

Now, I recognize the Court has not yet decided the case so far as I know which says that counsel is needed or were constitutionally required at the time of the questioning of the accused.

But if the Court will look at its language in Crooker, and look at its language in Siena versus Jay case, I think the Court will agree that if the failure to provide counsel at these stages under the circumstances, the total circumstances of a case amounts to the man not having a fair trial, then there would be a constitutional right of which the accused would’ve been deprived.

There are several other cases I think which go fairly far pointing in this direction.

For example, Haley versus Ohio, in which a 15-year old Negro was questioned in relays for five hours and then, there was a confession shown by his accomplices to him and then he was held incommunicado for three days and the Court said that the absence of an adult at this stage voided the confession.

Now, here we have an illiterate Negro, afraid of his life, accused of what would be in the State of Mississippi and in the context there, the worst possible crime.

Held 53 days, he was held 12 hours before he confessed, there is no real evidence that he was fed.

There is his statement that he was told that if he didn’t confess, he would be taken back to the jail in Madison County where a mob crowd would get him.

He was forced to submit to a polygraph.

The accomplice was used against him.

He was in my judgment an easily manipulable man.

And with respect to the mob crowd in the county, the record in this case shows that the District Attorney who prosecuted him filed to the Court a paper in which he asked that the defendant here be detained not in Madison County where the crime was committed, but that he be detained in Hinds County because he said, and this is his language, “The facilities for the safekeeping of the defendant are not available.”

Now Mississippi puts a different construction on that than — that I had when I immediately read it, but in any event, there, the language appears.

Now with respect to the failure to grant this defendant counsel at his preliminary hearing, I think we must bear in mind first of all that the preliminary hearing is guaranteed by state law and it is an important stage of a hearing particularly for this man.

There it would have been possible for counsel to have made the judgment whether or not he wanted to cross examine the State’s witnesses to find out what kind of a case they had.

It would’ve been possible at that time if the man had his head beaten as some of the evidence outside the record demonstrates in this case.

He could’ve been looked at by the examining magistrate.

Moreover, the officers who did get his confession could’ve been examined separately and each of them put on a record and if there was any confusion or any contradiction, all of these contradictions could’ve been used on the cross examination of these officers at the trial in chief.

There were four persons present in that room where he confessed and I’m reasonably sure as I am sure any trial lawyer would agree that you would never get all four to say the same thing and if you had it in the record, there could have been a more successful cross examination of the persons who procured the confession.

Earl Warren:

Is the defendant entitled to call witnesses at the preliminary examination?

Morris B. Abram:

I do not know what the law is under this — with Mississippi Your Honor.

That the question I think would be better to be asked of my Brother.

Generally he — in my practice, he would’ve been.

In the case of Hamilton versus Alabama, this Court in 1961 said that in the case of Alabama, in the State of Alabama where there was a defendant accused of rape and the accused had no lawyer appointed for him at the arraignment.

The fact in that case, he was prejudiced so that his constitutional rights were deprived.

Now, it’s interesting that the insanity plea in Alabama could’ve been raised at the arraignment and also the question of the systematic exclusion of jurors.

Certainly in the State of Mississippi, at least as far as its law is concerned and the case that there has been cited to us, it appeared that you must challenge this grand jury’s composition before it is sworn and that would’ve occurred of course before his indictment.

Morris B. Abram:

In Reece versus Georgia, this Court held in 1955, that where there was no challenge to the grand jury before an indictment and the accused had no counsel until arraignment, the court reversed when there was evidence of the exclusion of Negroes.

I think that the question with respect to the time of appointment of counsel is adamantly and inexplicably intertwined with the question of the effectiveness of counsel.

This is not Avery versus Alabama and I should like to discuss that in a moment.

In Avery versus Alabama which was decided by this Court in 1939, you had a case in which an accused was arrested shortly before the 31st of March 1938, counsel was appointed on the 21st of March, 1938 and counsel put him on trial or went to trial on the 24th.

Now there are several things that are important about this.

Those dates occurred between a Monday and a Thursday, not between a Friday and a Monday, not over the weekend.

Second, there were two attorneys appointed in that case, and third as Mr. Justice Black pointed out in his decision, there was no suggestion that a better result could’ve been obtained or a better trial had, had there been more time.

Furthermore, as Mr. Justice Black pointed out in that case, I believe it was Bibb County, Alabama, the county seat had less than a thousand persons in it and the trial was a trial of a very simple shooting in which there were almost no witnesses.

Now, here is the case on the other hand involving witnesses in a county of 185,000 people.

The county in which the crime occurred had 33,000 people.

The State presented 12 witnesses.

There were numerous other witnesses that could’ve been presented.

The appendices to the brief which are not in the record shows quite clearly I think what might have been presented by a competent counsel, if competent counsel — I don’t mean competent, effective counsel had been available.

Now Your Honors, under the Betts versus Brady doctrine, a system of guidelines with respect to the right of counsel have been established which make the following elements crucial in the court’s consideration of the totality of circumstances.

The first is ignorance of the accused.

Here, you’ve got a functional illiterate.

There’s a lack of education.

His familiarity with legal procedures whether the issues are complex or simple and the atmosphere of prejudice.

Without any question in this case, the atmosphere of the prejudice was pervasive.

Now, I turn to the question with respect to the confession.

For in as much as the accused was never pointed out by either the girl or her companion as the one who committed the crime, what you have in the case.

You’ve got a knife, you’ve got a Timex watch and you’ve got a pair of pants over which there is much controversy, but all of these were obtained as a result of the confession which occurred some 12 hours after his arrest.

Earl Warren:

Mr. Abram, may I ask what you base your statement on when you say that the atmosphere of prejudice was pervasive and it is —

Morris B. Abram:

I say that Your Honor in view of the following.

First of all, I take the instruction that I make of the District Attorney’s removal of the defendant from one jail and putting him in another.

I also —

Potter Stewart:

Do you question – do you question the statement of the State that this is done routinely for everybody in that event?

Morris B. Abram:

I have no knowledge of it one way or another Your Honor.

I don’t know.

The record doesn’t help me on it.

Morris B. Abram:

The next point I think is Your Honor, the words that I just quoted and I could’ve quoted many others from the Civil Rights Commission’s recent findings with respect to Mississippi and the exclusion of Negroes from the jury in the whole voting system.

And my feeling is that under the facts of this case, this defendant needed a lawyer perhaps more than most defendants because he was a Negro, he was in a county in which there are 64.8% Negroes, and moreover, he had been accused of a crime then which there was nothing worst of course.

Now with respect to his confession, there was much here that was not investigated by a counsel.

Was his head touched?

Was he dazed when he was sent back to his home for picking up the pants and the getting of the knife and the watch?

If it could’ve been shown that he had in fact been beaten, we would have fallen under the doctrine of Mapp versus Ohio.

In any event, an inquiry might have been made.

There isn’t in my judgment anything in this record which indicates probable cause for the arrest and under the doctrine of the Court recently announced Wong Sun case where the admission is obtained as the result of an illegal arrest, it is not admissible and if you tie the doctrine of Wong Sun versus — Mapp versus Ohio, then I think you would exclude the fruits of the illegal detention and does the illegal confession.

And if you did to exclude this confession and excluded the fruits that were obtained from it, the State would have had nothing that tied this defendant with the crime.

Now, the final point I would like to make is it that jury in this case was clearly directed by wrong constitutional standards.

The judge when he charged the jury, and I must admit that the charge was a charge that was requested by the defense counsel, he charged him as he charged the jury as follows: The Court instructs the jury for the defendant that if you believe, I’m reading the record at page 7, sir.

The Court instructs the jury for the defendant that if you believe from the evidence that the alleged confession wasn’t true, you should disregard it, or if you believe from the evidence that was made under the influence of hope or fear, you may take this into account in determining what weight or credit if any, you may attach to it as evidence.

Byron R. White:

[Inaudible]

Morris B. Abram:

That’s exactly my point Your Honor.

That’s exactly my point.

Byron R. White:

It is not their function?

Morris B. Abram:

It is not the function of the jury to decide upon the admissibility of the confession.

Byron R. White:

[Inaudible]

Morris B. Abram:

I think that is correct, sir.

Byron R. White:

And it’s the function of the judge?

Morris B. Abram:

It’s the function of the Judge.

Byron R. White:

[Inaudible]

Morris B. Abram:

Well, I would have thought Your Honor that what he was doing was placing upon the jury a determination which essentially was his and he was sharing it to the jury.

Potter Stewart:

He had made the determination?

Morris B. Abram:

He had made the determination but then he turned around and says, “You may take into account whether the evidence was made or obtained under the influence of hope or fear.

Potter Stewart:

That’s giving the defendant more than he’s entitled to under the Mississippi law, isn’t it?

Morris B. Abram:

I think Your Honor that it is confusing the jury because it permits the jury again to pass on the question of admissibility, of the confession to begin with.

And in any event as the State of Mississippi says clearly in its brief that this language is probably confusing but they go on to excuse the language by virtue of the fact that it was requested by the defendant’s lawyer.

Byron R. White:

[Inaudible]

Morris B. Abram:

Well, I can see the Court’s point about it but on the other hand, in the Richmond case, the Court held that the defendant is entitled to a correct and non-confusing statement and I’m not sure whether in that case the Court would’ve considered it beneficial or not beneficial but at least it was considered to be confusing.

Byron R. White:

[Inaudible]

Morris B. Abram:

I didn’t hear Mr. —

Byron R. White:

[Inaudible]

Morris B. Abram:

On that point, that’s right, that’s exactly right.

Potter Stewart:

If the Court had simply called the jury that the — the Court had determined that the confession was voluntary, that’s all.

Morris B. Abram:

Yes sir, I think (Voice Overlap) —

Potter Stewart:

I think that would’ve been more helpful to the defendant than the charge of the accused?

Morris B. Abram:

Well, I can’t — I can’t make that judgment Your Honor.

I don’t know.

It’s possible that what you’re saying may be in fact true but on the other hand, there could be cases I should suppose where the jury might feel that —

Byron R. White:

[Inaudible]

Morris B. Abram:

Well, I don’t really know, I think that’s a tough question.

I conclude now Your Honor to save some time with this.

The record in this case is quite sufficient in showing the fact that there was in this case a combination of total circumstances which made the — this defendant subtle from the deprivation of due process in respect to the right of counsel at critical stages of his trial and his detention and right of effective counsel at his trial.

And he is also I think been deprived of his rights under the Due Process Clause with regard to the arrest without a probable cause, illegal detention and confession obtained in the fruits thereof which resulted in his conviction.

Earl Warren:

Mr. Lyell.

G. Garland Lyell, Jr.:

Mr. Chief Justice, may it please the Court.

At the outset, this is my first appearance before this Honorable Court.

I always thought it was an appellate court and not one where evidentiary proceedings took place.

I would be the first to admit that if the implications and charges by my Brethren in their brief and in their argument were true, this Court should reverse the conviction of this petitioner.

However, those things are not reflected by the record.

Some of them I know as a matter of fact are not true and while I hate to be put in the position of testifying, I feel that I must.

If I may say this, to set the scene, Canton, Mississippi is about 22 miles North of Jackson, the capital city.

It’s the county seat of Madison County.

It’s a typical courthouse square town.

I don’t know the population, just a few thousand people.

This crime took place just a few miles outside of Canton late at night where these children had no place to be.

The petitioner was arrested.

He was taken to jail.

There is absolutely nothing in this record to indicate that there was any coercion whatsoever used to get the confession from this petitioner except his lone statement out of the premise of the jury to the effect that they’ve told them they were going to take him back to Canton and let a mob crowd him.

G. Garland Lyell, Jr.:

Well, I submit those things are usually found and practically all confession cases that where a person confesses and finds himself in court confronted with it.

He tries to get out of it some way.

I want say that this counsel, court appointed counsel told him to say that or whether he dreamed of that himself but suffice then to say, the Court inquired very carefully into the voluntary nature of the confession.

And incidentally on that score, the reason for bringing all these witnesses from Hinds County, who were witnesses to the confession, is this.

We have a rule in Mississippi.

Our Supreme Court will reverse a confession case on objection if all the witnesses to the confession do not testify.

You’ve got to produce them all, hence the number of witnesses that came up to testify in this case. It’s another — it’s a safeguard to the defendant rather than something prejudicial.

Counsel speaks of a dragnet in the brief of 12 hour inquisition.

I submit that none of that’s in the record.

I find nothing about it and knowing the geographical locations of these things, I can well understand that it took perhaps 12 hours to do all these things, traveling back and forth.

He was not — because he had no counsel at the time of the confession and nowhere that I find that this Court has held that you must have counsel.

That would be an unreasonable restriction on the police investigation I believe as this Court has stated.

As to the preliminary hearing, here is our procedure.

We have no continuous Circuit Court or trial court for the felony cases.

There are court terms and I believe that two or perhaps three in Madison County a year.

It’s in the same Circuit, Fourth District with Hinds County.

The only magistrate before whom an accused can be taken for preliminary inquiry or hearing is a justice of the peace.

They have — they are not in continuous session even though they can expressly sit.

Our statutes require it.

We have no commission of such as the U.S. Commission.

Our statute does require that persons accused of crime be taken without an — unnecessary delay before a magistrate.

However, our Supreme Court, State Supreme Court has held that will not — that neither that know the absence of a preliminary hearing will void a subsequent prosecute — prosecution and a conviction.

It is not essential to exert —

Arthur J. Goldberg:

[Inaudible]

G. Garland Lyell, Jr.:

I have no idea, Mr. Justice Goldberg.

I did not participate in the trial.

I only have a case — I’ve been — our State Supreme Court.

Arthur J. Goldberg:

[Inaudible]

G. Garland Lyell, Jr.:

All I know is what’s in this brief if we can take that as fact and that’s predicated on two newspaper items, one in the Jackson paper, one in the Madison County paper to the effect that the accused had waived the preliminary hearing.

And I submit that at least with interest to the decision you handed down yesterday, I believe in the case from Maryland and I —

William J. Brennan, Jr.:

The White case.

G. Garland Lyell, Jr.:

The White — White versus Maryland and I certainly don’t think this situation would be equated with that.

He made — entered no plea, just waived the hearing.

Knowing the purpose of that hearing in Mississippi is to determine if there is sufficient evidence to hold him, to await facts from the grand jury.

Tom C. Clark:

[Inaudible]

G. Garland Lyell, Jr.:

Sir?

Tom C. Clark:

[Inaudible] plea on hand?

G. Garland Lyell, Jr.:

If they waive, there is not sir.

Tom C. Clark:

[Inaudible]

G. Garland Lyell, Jr.:

If —

Tom C. Clark:

But you do have here [Inaudible]

G. Garland Lyell, Jr.:

Yes, sir.

Yes, we do.

Earl Warren:

May the defendant subpoena witnesses from —

G. Garland Lyell, Jr.:

Yes sir.

Earl Warren:

— of the preliminary examination —

G. Garland Lyell, Jr.:

Yes sir.

Earl Warren:

— and may cross examine the —

G. Garland Lyell, Jr.:

Yes, sir.

Yes sir.

I don’t how I — however, this Court or anyone can determine whether or not this court appointed counsel did all that could be done to this petitioner.

William O. Douglas:

Before you leave the preliminary hearing, you’re brief says that Mississippi law requires taking of an offender before proper official without unnecessary delay?

G. Garland Lyell, Jr.:

It does.

William O. Douglas:

Is that done — in practice is there — is there usually or a preliminary hearing or is there always a preliminary hearing?

G. Garland Lyell, Jr.:

Always if requested, most of them waive it on its — its only on felony cases, most of —

William O. Douglas:

Yes.

G. Garland Lyell, Jr.:

— most of the accused waive it for the obvious reasons, quite contrary to what my brother had to say.

There are very obvious reasons why a guilty accused would want to wave it for evidence then have the case more fully developed against them at a preliminary hearing.

I believe it was in Avery versus Alabama that the Court remarked on the rural aspects of the case.

Canton is that type of locality, they’re concerned with more people than they were in the – [Inaudible] Alabama.

G. Garland Lyell, Jr.:

This court appointed lawyer, was one of the oldest lawyers of the Canton Bar.

He was selected by the trial judge because of his experience and he is even characterized in the petition filed in this Court as an experienced trial lawyer.

He’s that type of person, his office is right across the street from the courthouse even they — everybody there knows what’s going on, communications are easy.

And I dare say even though this is a serious case and a capital case that it would be one of the most simple types of cases to investigate.

So, it’s quite logical that even though he was only appointed on a Wednesday and the next day announced ready for trial on the following Monday, that he had ample opportunity after discussing the case with his client, to interview every conceivable witnesses the client could give him, and to make any other independent investigation.

Certainly, it was that he voluntarily announced ready for trial, he was not pushed into it.

Hugo L. Black:

Was this a special session of court —

G. Garland Lyell, Jr.:

No sir, regular term, Mr. Justice Black.

The crime took place about — the 4th of July.

The Court did not meet until I believe was the third Monday of September.

So not — the only time that the attorneys were appointed —

Hugo L. Black:

Then what —

G. Garland Lyell, Jr.:

In my — sir?

Hugo L. Black:

[Inaudible]

G. Garland Lyell, Jr.:

Court met on Monday.

A grand jury was drawn, the grand jury was returned on — the indictment was returned on Wednesday.

The counsel was appointed.

He was arraigned on Thursday with counsel present.

The case was set to call the following morning, Friday, at which time both the State and the defense announced ready for trial on the following Monday.

Hugo L. Black:

[Inaudible]

G. Garland Lyell, Jr.:

I don’t re — I don’t know possibly four — three, four, five weeks, yes sir.

Hugo L. Black:

How many terms during the year?

G. Garland Lyell, Jr.:

In that county, I think they’re just two, perhaps three.

Hugo L. Black:

Spring?

G. Garland Lyell, Jr.:

Spring and Fall.

Spring and —

Hugo L. Black:

Spring and Fall.

G. Garland Lyell, Jr.:

Spring and Fall, yes sir.

Earl Warren:

At what time is it open to the defendant to challenge the grand jury?

G. Garland Lyell, Jr.:

At any time, Your Honor.

G. Garland Lyell, Jr.:

If the challenge — the qualifications, it must be done before this forum.

Not to make of it of con – how it was constituted.

A motion — to quash the indictment is a proper procedure to reset on a constitutional grand jury.

I might say this; all of these things are so speculated.

Who would know better than this lawyer as to whether or not he needed the change of venue.

It became necessary in this case for me to get an affidavit from the trial judge and attach to this brief.

I never heard of such a practice but I have to do it because of the affidavits attached to the petitioner’s brief.

There was one there that I couldn’t let go unanswered even though the judge didn’t want to dignify it with an answer.

And in that affidavit, each page among other things that the atmosphere here was not a motion charged as is charged here.

So if we can’t — this Court on this record can’t condemn this lawyer for not asking for a continuance, for a change of venue.

It suggested or urged that he should’ve raised a question of systematic exclusion of Negroes from jury service.

There’s nothing in the record about it.

As a matter of fact, I’ve got documentary evidence here that there were Negroes on both the grand jury and the petit jury.

The grand jury had indicted him and the petit jury had tried him.

It’s that type of thing that I’m confronted with here and it’s particularly —

Earl Warren:

Was it open to counsel when he was appointed to attack the composition of the grand jury?

G. Garland Lyell, Jr.:

Yes, sir.

Earl Warren:

I thought —

G. Garland Lyell, Jr.:

Yes, sir.

Earl Warren:

Well —

G. Garland Lyell, Jr.:

By motion —

Earl Warren:

But what, what —

G. Garland Lyell, Jr.:

By motion to quash the indictment.

That would be to waive to reset.

Earl Warren:

But what — what did he lose by reason of the fact that he didn’t attack the grand jury before it was empanelled? He did lose some right, didn’t you — didn’t you say that he could do something —

G. Garland Lyell, Jr.:

I must’ve misunderstood you, Mr. Chief Justice.

I don’t —

Earl Warren:

I understood you to say that there was one certain kind of attack that he could make on — against the grand jury, but it would have to be made before the jury was empanelled?

G. Garland Lyell, Jr.:

That would be as to the qualificate — qualification of a particular person to sit on that grand jury.

Earl Warren:

Yes.

Earl Warren:

Well, now did he have — did he have a counsel who was trying to do that?

G. Garland Lyell, Jr.:

No, sir.

No, sir, he wouldn’t have because the grand jury was empanelled on the first day of court which would’ve been Monday.

Earl Warren:

Might that not be a substantial right to the — to the defendant?

G. Garland Lyell, Jr.:

Well, I didn’t realize that that point was going to be argued here.

I don’t recall that it was raised in the brief and I don’t — it’s conceivable of course, Mr. Chief Justice, that someone inimical to any particular defendant that the — on a grand jury and sway that grand jury in returning an indictment.

Tom C. Clark:

Had to be protected [Inaudible]

G. Garland Lyell, Jr.:

Yes sir.

Tom C. Clark:

[Inaudible]

G. Garland Lyell, Jr.:

Yes sir, under —

Tom C. Clark:

[Inaudible]

G. Garland Lyell, Jr.:

The criminal record they set Your Honor.

Tom C. Clark:

On determination where that’s coming up with an intention of — on a motion to quash —

G. Garland Lyell, Jr.:

A motion to quash the indictment, yes.

Tom C. Clark:

[Inaudible]

G. Garland Lyell, Jr.:

Yes sir.

Tom C. Clark:

— before a jury.

G. Garland Lyell, Jr.:

Yes, any time prior, yes sir.

There’s a — something in here I hate to even mention but I feel that I have to because of the vigorous attack on the activities of the court appointed lawyer, of counsel on his brief, of petitioner, as one William L. Higgs, who was recently been associated with the American Civil Liberties Union.

He filed an affidavit attached to this brief made of — before my Brother Wulf here of notary public, that on the morning that this petitioner was arraigned from his office in Jackson, Mississippi he called the circuit judge at the courthouse in Canton and that the judge he — to tell him that he had been employed by the family of this petitioner to represent him.

And that this judge and I had assumed to believe of either one of you Honorable gentlemen, then of this particular judge, that this judge personally threatened him and told him his life would be in danger if he came to Canton, Mississippi to defend this man and that he followed the judge’s suggestion and didn’t come.

Well, what’s left behind that affidavit; I had to get an affidavit from Judge Henry to counteract that thing and in his affidavit he says, the only thing true in Mr. Higgs’ affidavit is that he did call me.

What happened was this?

He called Judge Henry just as he was about to respond to the motion of the court appointed counsel to draw a special venire of I think 60 men, get him out of the courtroom, did tell him that he had been approached to represent this man, says Henry told him that he had already appointed this lawyer but that he was going to represent him, I suggest you get right on up here to the courthouse and he hasn’t come yet.

But that the interesting aspect to that affidavit of Mr. Higgs, if there’s any truth at all in it while he would condemn, derelict — so-called derelictions on the part experienced court appointed attorney.

I call the Court’s attention to this second sentence in the affidavit.

Smith also requested me to represent him when I first saw him and talked to him in the Hinds County Jail in Jackson, Mississippi.

He could only have been employed by Smith at the Hinds County Jail in Jackson, Mississippi before this term of court ever convened in Canton.

If anyway, if he were employed as he speaks in his own — his own affidavit in this brief by this man at the jail in Jackson to represent him.

He was most derelict in his duty not even coming to court and yet he and counsel in this case would severely criticize what the court appointed counsel did.

Arthur J. Goldberg:

[Inaudible]

G. Garland Lyell, Jr.:

Not so much, Mr. Justice.

Arthur J. Goldberg:

Was it conceivable to you that a retained counsel [Inaudible]

G. Garland Lyell, Jr.:

Well, I understood your question to be a retained lawyer.

Arthur J. Goldberg:

Yes, [Inaudible] —

G. Garland Lyell, Jr.:

And then — you finish your question by saying one day after appointment.

Arthur J. Goldberg:

One day after the detainment.

[Inaudible] Chapter 21 in a capital case and it amounts [Inaudible] —

G. Garland Lyell, Jr.:

Well, Mr. Justice Goldberg, I can’t answer that question.

Of course I as a lawyer would certainly try to get all the time I could.

I think one of you would, but it doesn’t necessarily condemn it, I don’t think.

Arthur J. Goldberg:

I’m not passing [Inaudible] —

G. Garland Lyell, Jr.:

Well, I understand that.

Arthur J. Goldberg:

[Inaudible]

G. Garland Lyell, Jr.:

But, well, very — it’s often said that if you win your lawsuit — no, but I got a continuance, it’s the next best thing.”

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

From Canton.

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

Mr. Justice White, I don’t know.

There must be 20, I suppose, 15, 20.

They have a small town, very strong bar there.

William J. Brennan, Jr.:

[Inaudible]

G. Garland Lyell, Jr.:

When court — when they returned the indictment then they brought him back up to —

William J. Brennan, Jr.:

Madison County.

G. Garland Lyell, Jr.:

— Madison County.

William J. Brennan, Jr.:

[Inaudible]

G. Garland Lyell, Jr.:

I can’t answer that with certainty because if the record doesn’t show it in —

William J. Brennan, Jr.:

[Inaudible]

G. Garland Lyell, Jr.:

All the record shows he was indicted on Wednesday.

The indictment was returned.

G. Garland Lyell, Jr.:

Why they brought him from the Hinds County Jail back to the Madison County Jail on the day court convened that, I don’t know.

Byron R. White:

Do you know whether the facts [Inaudible]?

G. Garland Lyell, Jr.:

As soon as the indictments are returned and I think that’s what the record in this case will show.

First, find out if the accused, the defendant has an attorney —

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

I should say —

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

Sometimes yes, and sometimes no.

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

They vary — made of some, Mr. Justice White.

Until Gideon versus Wainwright at the other day, we didn’t appoint counsel in any thing but capital cases.

Byron R. White:

[Inaudible]

G. Garland Lyell, Jr.:

But it provides for the sum of $75 if you — if you can cap a guilty plea, $150 to defend him in — at a trial, then another $100 to carry the thing to the State Supreme Court.

Byron R. White:

But that is a — is that statewide or —

G. Garland Lyell, Jr.:

Yes, sir.

That is the —

Byron R. White:

The statute?

G. Garland Lyell, Jr.:

That’s the statute that provides it be paid out of county funds, in the county in which the case was tried.

Hugo L. Black:

Can I ask you for a little more information about the Circuit?

How many counties in that Circuit?

G. Garland Lyell, Jr.:

Three.

Hugo L. Black:

Three?

Do they have a judge for Madison County or do they have a (Voice Overlap) —

G. Garland Lyell, Jr.:

Have a —

Hugo L. Black:

— [Inaudible]?

G. Garland Lyell, Jr.:

Two circuit judges who sit in all three of those counties.

Hugo L. Black:

As a what?

G. Garland Lyell, Jr.:

They ultimately —

Hugo L. Black:

Madison County is much larger in population?

G. Garland Lyell, Jr.:

Jackson, Hinds County, the capital city, it is one of these three counties, yes, sir.

Hugo L. Black:

And do the — does the law provide the number of terms they will have for a year?

G. Garland Lyell, Jr.:

Yes, sir.

They are fixed by statute.

Hugo L. Black:

And if the court — the judges come in with the prosecuting attorney that you have one prosecuting attorney for the Circuit?

G. Garland Lyell, Jr.:

One district attorney for the Circuit and then each county within the district has a county prosecuting attorney who works with the district attorney in the prosecution of these cases.

Hugo L. Black:

But in the case to which references are made in Alabama, they had a Circuit there in which several counties were in the Circuit.

The custom was to have court sessions twice a year at which time the cases on the docket will be taken up, the grand jury would act on them.

If they’re indicted, the cases would be set for the next week by the judge who was there.

And he would try to dispose of those cases during the two weeks or one week or three weeks, he sat in that country — county.

Is that similar to this situation?

G. Garland Lyell, Jr.:

Sounds identical, Mr. Justice.

Hugo L. Black:

And this is a small — what you say is the size of the county seat?

G. Garland Lyell, Jr.:

I would estimate a total of six, eight thousand.

Hugo L. Black:

How large is the county?

Just comparatively speaking?

G. Garland Lyell, Jr.:

[Inaudible]

Hugo L. Black:

The large county [Inaudible] —

G. Garland Lyell, Jr.:

Oh, just an average, average-size county.

Hugo L. Black:

Average-size county?

G. Garland Lyell, Jr.:

I was — I should say, 30 miles, or more into the other.

William O. Douglas:

It adjoins Hinds County?

G. Garland Lyell, Jr.:

Adjoined to the north, sir.

Arthur J. Goldberg:

Mr. General, how far does [Inaudible]

G. Garland Lyell, Jr.:

No, sir.

Arthur J. Goldberg:

[Inaudible]

G. Garland Lyell, Jr.:

No, sir.

It’s just one of the burdens of the profession and the lawyer’s practice — gentlemen from Lake Charles, Louisiana here yesterday, he just had to bear himself and I might probably say that I was to do their share.

I don’t believe my Brother here got into this aspect of the thing unless perhaps he says or some remarks about it.

He had suggested to the Court that this is a case where the Court might extend the McNabb-Mallory rule to a state court confession under the Fourteenth Amendment.

[Inaudible]

G. Garland Lyell, Jr.:

There are two cases —

Hugo L. Black:

Pardon me before you — would you give me the name of that city, that town again in the county?

G. Garland Lyell, Jr.:

Canton.

Hugo L. Black:

C-A-N-T-O-N?

G. Garland Lyell, Jr.:

Yes, sir.

Hugo L. Black:

Thank you.

G. Garland Lyell, Jr.:

If the Court will bear in mind that this arrest took place on a Sunday morning, about 4:30. And the confession was obtained that afternoon at the highway patrol headquarters.

There are two cases in which this Court has denied certiorari, where that question was raised; one was a federal case from the Second Circuit, United States versus Walker and the other one was another case from my own State of Mississippi, Robinson versus Mississippi.

And the substance of the holding of those cases is that the petitioner has a burden of proof that a magistrate was available before whom he could be taken and be charged with the crime.

The Robinson case was likewise on a Sunday morning in which there was neither a grand jury in session or justice of the peace which is the only other magistrate available there and that therefore, the cases did not come — could not come within that rule.

There are other things in here, factual matters which I say I hesitate to testify and I’m going to quit but the things charged in here that — by affidavit attached to this brief, not only as to treatment of the petitioner before his interrogation but after.

Their affidavits or they are actually not affidavits but their statements signed before a notary public but not sworn to one to the effect that when the officers brought this man back to his house to get the watch, the knife, the clothing and so forth, he was dazed, his head was bloody, he had cut in.

All the — I have no way of refusing that.

I could have gone out and gotten a stack of affidavits [Inaudible].

There are other things of that nature that I just don’t believe this Court will pay any attention to being an appellate court.

Potter Stewart:

Do you — as I understood it at the outset of arguments you conceded that if the allegations, the allegations which had been made by the petitioner were true that this man’s conviction should be reversed.

Did I understand that correctly?

G. Garland Lyell, Jr.:

If they can be substantiated, the allegations of the petitioner as well as the ex parte statement as an affidavit or so-called affidavits in his brief I’d be the last one to say it should be reversed.

Potter Stewart:

Right.

Does that suggest a —

G. Garland Lyell, Jr.:

That is with respect to any actual coercion, not on the —

Potter Stewart:

I understand it and I had particular reference to what you’re talking about now that this extra — outside the record, un-sworn statements that he had been hit over the head or at least that his head was bleeding when he was brought back [Inaudible] to his house.

G. Garland Lyell, Jr.:

If those things were true, if those things were true, I believe he has a very simple remedy by a petition for habeas corpus in the United States District Court.

Potter Stewart:

Oh, that’s what I was going to ask you.

G. Garland Lyell, Jr.:

And I believe this Court has made it very plain and spelled it out in some recent cases last month, Fay versus Noia, Douglas versus California and some others that he doesn’t — not only doesn’t have to exhaust his state route now but — but this proceeding right here today is unnecessary.

Earl Warren:

Mr. Abram.

Morris B. Abram:

May it please the Court.

I want to say that I have — I had not referred to the Higgs matter and I do not intend to refer to it any further except to point out that this is not a case of the State of Mississippi versus Higgs but State of Mississippi versus Smi — Smith.

Now, with respect to the use of certain evidence outside the record, I don’t think that the Court really needs to go outside the record to deal with the main thrust of the petition for certiorari in this case.

For when you get down to it, the main thrust, I think is the reply that the Court would give to these questions.

Morris B. Abram:

Why was it necessary for Mississippi to hold a man 53 days and assign a lawyer so shortly before a trial?

Why —

Potter Stewart:

It suggested — it suggested that he had a lawyer long before trial.

Morris B. Abram:

Your Honor that is out — that of course is outside the record.

Potter Stewart:

But that’s in your — that’s in your affidavit.

Morris B. Abram:

Yes, it is in my affidavit, but I would point out to you this, Your Honor, he doesn’t say that he was retained.

He ac — he is — merely says that Smith asked him whether he would represent him or asked him to represent but there was no suggestion that there was any attempt by Higgs to represent him until the day when the venire was called, which was on the 22nd of September.

And according to his affidavit he called the judge and the judge made it for — proclaimed to him according to his affidavit that he better not come.

Byron R. White:

When was a [Inaudible] — when was he indicted?

Morris B. Abram:

He was indicted, Your Honor, on the 21st.

Byron R. White:

[Inaudible]

Morris B. Abram:

20th and arraigned on the 21st.

And counsel announced ready on the 22nd for a trial on the 25th.

Byron R. White:

[Inaudible]

Morris B. Abram:

Yes, he was appointed.

Byron R. White:

[Inaudible]

Morris B. Abram:

He was appointed the day after indictment for the purpose of standing with him on arraignment.

Byron R. White:

[Inaudible]

Morris B. Abram:

That’s right, sir.

Byron R. White:

[Inaudible]

Morris B. Abram:

It makes — makes no difference, Your Honor.

Byron R. White:

[Inaudible]

Morris B. Abram:

I would think —

Byron R. White:

[Inaudible]

Morris B. Abram:

That’s right.

William J. Brennan, Jr.:

Specifically at this state, at what point?

Morris B. Abram:

I think he should have had a lawyer, Your Honor, at the time of his preliminary hearing and I think that important —

William J. Brennan, Jr.:

And what date was that (Voice Overlap) —

Morris B. Abram:

That would have been outside the record but by newspaper articles, on August the 3rd.

William J. Brennan, Jr.:

[Inaudible]

Morris B. Abram:

This — the arrest was on the 30th and the newspaper story, I will be perfectly candid, the story was printed on the third whether it referred to something of the previous day or not, I couldn’t tell from reading the story, but my point is the record does show that 53 days without counsel.

It does show there was no request for a change of venue under circumstances here prevailing.

No request for an adjournment.

I conceive an answer to one of the questions I believe from Mr. Justice Goldberg, I can’t conceive of a retained a lawyer in a capital case involving a client known to him not requesting a change of venue but certainly a requesting an adjournment in a case of this type so that he might have more than a weekend for trial.

Byron R. White:

[Inaudible]

Morris B. Abram:

I don’t know, Your Honor.

I don’t know, but a strong suggestion is that in the judge’s affidavit that he called him to stand with him on the arraignment.

Arthur J. Goldberg:

[Inaudible] outside of the record in the trial [Inaudible]

Morris B. Abram:

I don’t think so, Your Honor.

Let’s see what is on the record.

The first thing that’s on the record is that the appointment of counsel was certain, I think it’s conceded no sooner than the 21st.

That on the 22nd he announced that he was ready for trial on the 25th.

There is no question, but in this case there were no challenges to the grand jury, there were no challenges to the petit jury, no request for change of venue, no request for adjournment and no witnesses were presented.

There is no question in this case that he did not have counsel at very critical stages of the pretrial investigation and of pretrial hearings.

Now, while —

Arthur J. Goldberg:

[Inaudible] that was the purpose of the affidavit to be included in the —

Morris B. Abram:

Well, Your Honor, I am frank to say I came in the case after the brief was prepared.

I did not — I do not know what the purpose of their affidavits.

I think they probably have some purpose but nevertheless I agree they’re outside the record and they look more towards habeas corpus than they do to petition for certiorari.

Now, while we are outside the record, I would like to say that Mr. Greaves in a letter which I have here, Mr. Greaves was a trying a capital case obviously on Saturday when Mrs. Jones tried to see him.

I think the case is one which clearly demonstrates there wasn’t time in this case to try it.

Now in answer of Mr. Justice Black’s question, the size of the county in which this trial was held sir is 33,000 people.

That’s it.

Hugo L. Black:

Population seems to be nearly 10,000.

Morris B. Abram:

Sir?

Hugo L. Black:

Population of Canton seems to be between 9 and 10,000 seems to be between nine and ten (Voice Overlap) —

Morris B. Abram:

That of the county seat.

Hugo L. Black:

Yes.

Morris B. Abram:

Yes.

But the county — I have only the county figures, they are approximately 33,000 — about 23,000 Negroes and 9,000 some odd whites.

Morris B. Abram:

And the population of Hinds County in which the confession is obtained is a county of a 185,000 people.

Potter Stewart:

That’s Jackson County (Voice Overlap) —

Morris B. Abram:

That’s Jackson in which Jackson is located.

Hugo L. Black:

Capital of the state?

Morris B. Abram:

Capital of the state, yes sir.

Now, I want to make two other observations then I’m through.

The first is that with respect to the material which appears outside the record and which was brought up by counsel opposite that there were some Negroes on the grand jury panel and two Negroes put on the venire to hear this case, ought to be struck — stricken in this case.

The recent case of the Fifth Circuit, the Seals case, I think is rather interesting on what we mean or what the courts mean by exclusion.

And mister or rather Judge Reeves said this, “Actually, whether the presence of a few Negroes on a venire containing many names is evidence tending to prove or to disprove racial discrimination, depends upon the proportions of Negroes and whites who are qualified for jury service.”

Citing Reece versus Georgia, fairness and selection does not require proportionate representation of races upon a jury venire.

It is nonetheless true that the very decided variations and proportions of Negroes and whites on jury list from racial proportions in the population, which variations are not explained in a long continued furnished — efficient evidence of systematic exclusion of Negroes from jury service.

And then they — it quotes Brown versus Allen, “Of course, token summoning of Negroes for jury service does not comply with equal protection.”

And I submit the competent counsel in this case or rather effective counsel in this case or counsel that had time to prepare this case could certainly have raised the question with respect to systematic exclusion, a case in which the exclusion is in-built, in through and because of the voting system.

Now finally, my brother mentioned that I applied to make this a Mallory case.

I want the Court to understand that while I do feel that the circumstances of this confession, having been obtained when I presume that they — could’ve been possible for the State of Mississippi to provide a preliminary examination, raises the issues of Mallory but I particularly call to the Court’s attention to another issue and that is that this man was arrested by virtue of the fact that the dog sniffed from the scene of the incident into the sawmill quarters and the words in the record are, “He took the truck and headed west and crossed the cotton field in the direction of the sawmill quarters.”

Byron R. White:

You don’t know what happened?

Morris B. Abram:

We don’t know what happened after that but we do know from the record that eight or nine other suspects were rounded up.

Now, if there were no probable cause, what the State of Mississippi has done here is to arrest a group of people who happen to live in a certain section of town and have obtained from one a confession under the circumstances that we’ve already described and I suggest this is not probable cause, the detention was without probable cause.

The confession resulted from that illegal detention and illegal arrest, just as much as it if it were a material seized without a search warrant.

The whole fruit of the investigation is suspect and poisonous and consequently the confession is of no use in a constitutional sense.

Thank you sir.

Earl Warren:

We’ll recess now.