Tollett v. Henderson

LOCATION: Frontiero's Residence

DOCKET NO.: 72-95
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 411 US 258 (1973)
ARGUED: Feb 20, 1973
DECIDED: Apr 17, 1973

H. Fred Hoefle - for respondent
R. Jackson Rose - for petitioner

Facts of the case


Media for Tollett v. Henderson

Audio Transcription for Oral Argument - February 20, 1973 in Tollett v. Henderson

Warren E. Burger:

We'll hear arguments next in Number 72-95, Tollett against Henderson.

Mr. Rose.

R. Jackson Rose:

Mr. Chief Justice, may I please the Court.

This case involves a black defendant who was indicted in Davidson County, Tennessee in 1948 by a grand jury which did not and had not for some years before, and did not for some years after include a member of Black Race.

Mr. Richardson with the advise and consent of retained counsel, entered a plea of guilty, and accepted a sentence of 99 years in the state penitentiary.

In 1964, Mr. Henderson first came back into the courts when he attacked or alleged that his confession was coerced, and that his guilty plea was involuntary.

The case was ultimately heard by writ of habeas corpus to Federal District Court, the Sixth Circuit, denied him relief and this Court denied cert.

Warren E. Burger:

No reference to this claim at that time?

R. Jackson Rose:

No, Your Honor, none.

There was reference in the evidentiary hearing in the state court at this case that he was advised at that time that he could raise this question by the -- advised by the attorney that represented him at that time.

The state court granted an evidentiary hearing in this case.

Warren E. Burger:

In what year is this now you've moved?

R. Jackson Rose:

Then we have moved to 1967.

The state granted an evidentiary hearing, and the proof as I have stated earlier showed that there had been no blacks to serve on the grand jury from 1922 until 1953, when the first black was put on the Davidson County grand jury.

The selection system from 1947 was that the trial judges, criminal trial judges would pick the people that they wanted on the grand jury.

There was no random selection.

The court denied relief, the state court did, and ultimately the Tennessee appellate court said that he had waived the right by his failure to object by plea of indictment, prior to entering a plea to the indictment.

The rule in Tennessee is substantially the same as the Rule 12 (b) (2) of the Federal Rules for Criminal Procedure.

He filed a petition, of course, for habeas corpus in the Federal District Court, and that court granted the relief on the basis of the conclusion of the court that the grand jury was void, it therefore rendered a void indictment, and that he could not have waived it because no attorney in Tennessee would have thought of raising the question in 1948.

Quoting the statement from a concurring opinion in the Tennessee Court of Criminal Appeals about judge Harvard (ph), the Sixth Circuit held that the indictment was not void, but voidable, but under the unique circumstances of this case in light of back that one of our judges had stated, no lawyer would have thought of raising this in 1948 that Mr. Henderson was entitled to the relief that it was not a knowing intelligent waiver.

It is our position that Mr. Henderson waived his right to the taxes twice.

Once by entering a plea at all, or before raising it and the second time when he entered a plea of guilty.

The first issue of waiving it, by failing to question it prior to waive -- entering a plea to indictment, we follow the same line of reasoning generally, that government did in the proceeding case.

The court --

Warren E. Burger:

Would you just think that he had any kind of waiver in 1964 when he sought habeas corpus release and did not raise the claim?

R. Jackson Rose:

Yes, Your Honor, as a matter of fact I filed a motion to dismiss the petition for that reason in the district court.

I did not pursue that issue in there, sorry, in the Court of Appeals, but at least that was my original position in this case.

This Court as has been stated earlier here today, has held that where a defendant is convicted as the result of some illegal evidence, or illegal proceedings that went to the question or the issue of innocence or guilt, that it must be knowing intelligent waiver.

In this case, if I may state to the Court, this is typically of what -- or shall I say hypothetical situation.

Here is a retained counsel.