Tollett v. Henderson

PETITIONER:Tollett
RESPONDENT: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

ADVOCATES:
H. Fred Hoefle – for respondent
R. Jackson Rose – for petitioner

Facts of the case

Question

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.

R. Jackson Rose:

He has a client who is facing a possible death penalty, and he has really one thing in mind, the welfare of his client theoretically.

Assuming that this issue crosses his mind, his client is in jail, his client has made a confession, and taking the feeling of the times in 1948, has a pretty chance of getting the death penalty or at least a reasonable chance of getting the death penalty.

And the issue of the composition of the grand jury crosses his mind, he is going to arrive at the conclusion that if I raise that, what will happen?

I will be successful, and there will be blacks included on the grand jury that will consider the re-indictment of him, but this grand jury has a confession in front of it.

It is my position, and I don’t think anybody would question the fact that in all likelihood a solid black grand jury would have been indicted him in the face of this confession.

Now, this would gain him additional time if he wanted additional time, but there is no speculation really that could come to that conclusion in this case, because he had successfully negotiated a plea.

He had agreed apparently successfully, at least he eliminated the possibility of the death penalty.

The only other reason that it could have — that an attorney would have considered waiving it, or raising it at that time, would be to further the calls of Civil Rights on this particular issue, to attempt to eliminate this illegal method, but it would have no effect on his client.

Potter Stewart:

General Rose, under the Tennessee procedure, at what point was it required to be raised, if it were –?

R. Jackson Rose:

Before a plea was entered to the indictment, whether there be plea of guilty or not guilty.

Potter Stewart:

Anytime before a plea?

R. Jackson Rose:

Yes, Your Honor.

Potter Stewart:

And what, I know there was a guilty plea in this case —

R. Jackson Rose:

Yes.

Potter Stewart:

— does the record show what happened if anything before the plea was entered?

You keep talking about negation and deal and so —

R. Jackson Rose:

Just that there was —

Potter Stewart:

You just assumed there were things, is that it, or does the record show something?

R. Jackson Rose:

Maybe the record does not show, Your Honor.

I am not sure at this point, but this was typically —

Potter Stewart:

Were there any Motions filed of any kind?

R. Jackson Rose:

There is no indication that there was, Your Honor.

This would typically be the situation, and where a retained counsel agrees to enter a plea of guilty for —

Potter Stewart:

Did the (Inaudible) your client as he saw it by way of negotiation with the prior with the state —

R. Jackson Rose:

Yes, Your Honor.

There is the question of knowing intelligent waiver.

I say in this case, knowing intelligent waiver took place.

Mr. Henderson’s retained counsel, apparently and obviously discussed it, there isn’t any question about that he — and this was raised by Mr. Henderson in an earlier thing that his attorney, or that he reluctantly did it, but that his attorney talked to him in to entering a plea of guilty.

They have talked about this, and they have finally come to the conclusion that to enter a plea of guilty is the best thing.

At this point, I think Mr. Henderson do, and I think the record, and the entire record in these proceedings support this, that from that moment on he had no more standing in court, that he was facing a term of 99 years, that he had eliminated the possibility of the death penalty, that the proceedings were over.

R. Jackson Rose:

And as a matter of fact they were over for him for some 16 years, before he ever came back to court for anything.

The evidence or the circumstantial evidence points to the fact that he knew, and the court has found earlier that it was a voluntary plea of guilty.

That he knew at the time he entered death plea, that this was end of the proceedings.

I am sure that he did not know constitutional law, that he had numerous rights which many of us spent years studying those particular hearings in law schools, and after we are out too.

There is no evidence, and I could admit candidly to this court that I am sure that it did not happen, that these were discussed with him.

I dare say that there is a prisoner in a penal institutions in Tennessee who knows all of his constitutional rights, and very few lawyers, but here is plea of guilty, was knowing, intelligent, and that he knew the consequences of it.

He knew that he has had his day in court, and that that was the end of the line.

Thank you.

Warren E. Burger:

Mr. Hoefle.

H. Fred Hoefle:

Thank you Mr. Chief Justice, and may I please the Court.

I think we can assume following counsel’s argument that there is no real question now that the rights of Mr. Henderson to a grand jury from which members of this race have not been systematically excluded, was violated.

This was conceded by the State of Tennessee in the District Court.

It was conceded in the Court of Appeals in the Sixth Circuit.

This Court has held recently that this is prejudicial.

There were no blacks on the grand jury from 1922 until 1953.

25% of the population of that county in 1948 was black.

This is a violation of the respondent’s rights under the Equal Protection Clause, as well as the Due Process Clause, and I might point out that any analogy with the federal rules I think would be ruled out, because the Equal Protection Clause is not available to federal prisoners.

It’s a prohibition on the states.

This Court has also held recently that there is a presumption of prejudice.

He doesn’t have to show actual bias or actual harm, but there is a presumption of prejudice when his grand jury — when the members of his race have been excluded from his grand jury.

I pointed the case of Alexander versus Louisiana, decided last year where a timely motion was filed to object to the grand jury, but no objection was raised as to the petit jury.

He went to trail to the petit jury and was convicted, and this Court nevertheless reversed because it felt that the denial of members of his race from the grand jury was sufficiently important that it could not be cured even though he were tried by a constitutionally acceptable jury.

Warren E. Burger:

You think he is waiting more than 20 years to assert the right has as a factor in the case?

H. Fred Hoefle:

I think it’s a pathetic factor, Your Honor.

I think it only indicates that he did not find out that he had this right for 20 years.

In the previous case Mr. Justice White asked the question about holding something in reserve.

Well, I know I have got this right, I will see how I do on my trial for sentence like, is lighter I get acquitted, I will forget it.

If I am convicted it, then I’ll raise it.

That can’t be applied here because Mr. Henderson wouldn’t wait 20 years to raise it, he might wait six months or a year, and then bring it up.

This has been 20 years.

H. Fred Hoefle:

The testimony —

Byron R. White:

Has the laws changed since then?

H. Fred Hoefle:

I don’t think the law has ever changed on this point Your Honor.

Since Fay, as far as exclusion from —

Byron R. White:

Do you have to (Inaudible)

H. Fred Hoefle:

No, but since 1880 this has been a violation of —

Byron R. White:

(Inaudible) changed with Solicitor General?

H. Fred Hoefle:

I don’t think so.

There was a case in 1945, the name escapes me Your Honor, I believe it was Rice versus Olson, where a similar waiver was into a grand jury was raised.

Byron R. White:

Was there anything in this (Inaudible) in this record to impeach the —

H. Fred Hoefle:

I think the fact that he was unaware of the right to object.

There is an affidavit in the record —

Byron R. White:

I know, but that might indicate that he might not have known of his right to object to about the composition of the jury.

But how about, are there any allegations that his guilty plea wasn’t accurate?

H. Fred Hoefle:

He alleged, and he has alleged that his guilty plea was more or less coerced out of him.

His Attorney was not present when he was taken from jail about four days before the plea, taken to the prosecutor’s office.

Byron R. White:

Did he allege his attorney was incompetent?

H. Fred Hoefle:

No, he alleged his Attorney was not there at the time the arrangement was made for the plea, four days before his trial date they took him out into the meeting with the prosecutor, and the police, and threatening with a chair.

That’s when he says, he decided to plead guilty.

His lawyer wasn’t even at that meeting.

Potter Stewart:

There is also some indication in the record or somewhere that there was no corpus delicti, that there was no murder by anybody?

H. Fred Hoefle:

Also the —

Potter Stewart:

That the so called victim died of pneumonia?

H. Fred Hoefle:

Pneumonia, that’s correct.

So I think he would have a proximate cause defense there, and that would be a good reason not the waive this right had he known it, because a properly constituted grand jury might have felt pneumonia, maybe we can’t indict him at all, or maybe armed robbery or aggravated assault, or whatever they call it in Tennessee, assault with the deadly weapon, there or many things.

And this Court has also said recently, in jury exclusion cases, it’s impossible to speculate on what the jury would have said or done and this would apply to a grand jury as well as —

William J. Brennan, Jr.:

His testimony on page 85 in the record, is this on the raise, Mr. Henderson, you plead guilty, is that right?

Sir, you plead guilty, plead guilty?

It was that in this courtroom here.

I was tried in Division One.

William J. Brennan, Jr.:

Did you sit down at the table and stand up and say, you plead guilty?

No sir.

Did your lawyer say, you plead guilty?

My lawyer Mr. Tom Admiral, all I know that was in a little room, and came out, and they said he is guilty of first degree murder.

That’s all I know, and they gave me 99 years, that’s all I know, and I didn’t plead guilty.

I didn’t plead at all, did state put anything on any record of the proceeding or anything else?

H. Fred Hoefle:

This is all I have Your Honor, what is in there —

William J. Brennan, Jr.:

It’s all —

Byron R. White:

Is there a transcript of the proceedings’ excerpts at all?

H. Fred Hoefle:

This I don’t know, it would not be — I was appointed by the Sixth Circuit and I never had access to the Tennessee records down there, Your Honor.

I also would like to point out while we are in here the affidavit of the Attorney on page 95 and 96 of the single appendix, I believe I don’t see a date on it, but yes, it was 1968 when he filed this affidavit.

He was not aware, he had never been aware of any irregularity in grand jury selection, he had never advised his client, he never discussed it about it.

If the petitioner, which is Mr. Henderson had any knowledge of it, he certainly did not talk to Mr. Murray, his Attorney about it.

William H. Rehnquist:

Mr. Murray does rather truly indicated that the petitioner did plead guilty or doesn’t he —

H. Fred Hoefle:

Yes, there is no question if there was a plea of guilty.

He was also sentenced Your Honor by a jury.

Byron R. White:

What do you mean there is no question of the plea of guilty?

H. Fred Hoefle:

There was a plea of guilty.

Whether he pleaded guilty, this, what Justice Brennan has said, raises a question.

Unfortunately this was not raised.

I feel that I am limited in this proceeding to defending the Sixth Circuit’s opinion, and the Sixth Circuit has said that they didn’t reach that issue because Henderson didn’t raise it in the district court, so here we are.

It does disturb me, but I think that it can be affirmed on ample grounds.

Byron R. White:

So isn’t there some connection between these two issues as to whether — I mean, his conviction rests on his plea of guilty?

H. Fred Hoefle:

Yes, Your Honor.

And also the other issues —

Byron R. White:

And when he was represented by counsel?

H. Fred Hoefle:

I think — I am sorry.

Byron R. White:

Are there rights to go to trial or rights to be indicted by some of the kind of a jury, they may have existed, but he pleaded guilty.

Well, at times it sound he didn’t, although with the advice of counsel, but if the issue of whether he pleaded guilty or not wasn’t raised, if the case preceded on the assumption, yes, there was a valid plea of guilty, then aren’t you in a little bit of trouble raising some of these other issues?

H. Fred Hoefle:

I don’t think so Your Honor.

Byron R. White:

Mann and Parker and Brady cases.

H. Fred Hoefle:

Well, first of all those cases all evolved about — there was a consultation between counsel and client in those cases.

These cases also —

Byron R. White:

Is that issue here?

H. Fred Hoefle:

I think it has got a lot to do as far as the grand jury, because there was no consultation. Henderson didn’t know about it, the lawyer didn’t know about it.

So how can he waive it if he didn’t know it?

I feel this comes completely within the purview of Fay and Johnson versus Zerbst.

Now the circuits, I think five of them to date have distinguished the McMann cases on which —

Byron R. White:

You are saying the reason for — isn’t barred by McMann and that line of cases, because this was an incompetent counsel case.

He didn’t know about this right, he was incompetent?

H. Fred Hoefle:

That the part —

Byron R. White:

And he wasn’t advised?

H. Fred Hoefle:

That’s part of it, and also another part is, it wasn’t really voluntary, he didn’t attack that, but these are all facets of the same thing.

William J. Brennan, Jr.:

He didn’t attack the voluntariness of the plea, is that?

H. Fred Hoefle:

No, but I think it’s almost implicit —

William J. Brennan, Jr.:

Although here at least he testified, he never plead guilty at all?

H. Fred Hoefle:

That’s true.

William J. Brennan, Jr.:

But obviously a plea of guilty was entered though?

H. Fred Hoefle:

These are all part of the same thing.

I have chosen to base my argument on the what I feel is plain clear law in Humphrey versus Katie, Peters versus Cliff, Alexander versus Louisiana, which this Court has decided the last term.

William J. Brennan, Jr.:

I notice that at the end here at pages 8, A128, there are excerpts of proceedings in 1948, largely they were dealing with the selection of the jury.

It doesn’t seem to be, or at least I don’t find any here, any minutes of the proceeding at which he said to have plead guilty, is it?

H. Fred Hoefle:

There is Your Honor, A137.

William J. Brennan, Jr.:

A 137?

H. Fred Hoefle:

Yes, this is — it’s not a transcript —

William J. Brennan, Jr.:

Oh!

I see.

H. Fred Hoefle:

Pardon me, 135.

It’s more or less I guess a journal entry setting forth, the fact that it came on hearing on a plea of guilty, and that these jurors were sworn to —

William J. Brennan, Jr.:

Right.

H. Fred Hoefle:

— and I assume they were all white also, but he didn’t (Voice Overlap)

William J. Brennan, Jr.:

Whether there was any colloquy between judge and this petitioner when his plea was entered?(Voice Overlap)

H. Fred Hoefle:

Another thing that the requirements of Boykin about the fact that the Judge must satisfy himself.

William J. Brennan, Jr.:

Yes, but this was back in 1948?

H. Fred Hoefle:

Righ.

William J. Brennan, Jr.:

But there doesn’t seem to be at least any transcript of any proceeding, involving any kind of colloquy with the court when his plea of guilty was entered?

H. Fred Hoefle:

I could find then Your Honor there are transcripts in your testimony that occurred at the habeas corpus hearing in the State Court, which is what was relied upon by the in lieu of the hearing by the Federal District court.

William H. Rehnquist:

Well, did you allege in your Federal habeas that the plea of guilty was involuntary?

H. Fred Hoefle:

Henderson did Your Honor, it was per se.

I didn’t get into it till the Circuit Court level.

William H. Rehnquist:

And what was the district court’s ruling on that aspect of his petition?

H. Fred Hoefle:

He defined to consider, he indicated I believe that — first of all he went forth on the systematic exclusion issue, and did not consider the others.

Potter Stewart:

But it doesn’t have much do about it, but in the journal entry as you call it, as you just read the case that after a guilty plea the jury was impaneled and so on.

H. Fred Hoefle:

Yes, to sentence.

Potter Stewart:

That’s a little alien to what is done in most jurisdictions, isn’t it?(Voice Overlap)

Warren E. Burger:

It was on the punishment wasn’t it?

H. Fred Hoefle:

That was just for the punishment.

Thurgood Marshall:

(Inaudible)

H. Fred Hoefle:

And they —

Potter Stewart:

At that stage, at least to that time the jury has —

H. Fred Hoefle:

I assume they were all white —

Potter Stewart:

— although the indication was from General Rose that the punishment had been kind of agreed upon beforehand.

H. Fred Hoefle:

It would seemed that there have been some discussion, but I would see how we can infer that.

Thurgood Marshall:

Well, it says, they find that the defendant guilty of murder in the first degree?

Potter Stewart:

And that was after a guilty plea?

H. Fred Hoefle:

Yes, I guess based on the plea they determined the guilt and went on from there.

Thurgood Marshall:

Well, just like the British men where the jury is instructed to find a man guilty stealing the watch go out and receive verdict, is that what they say?

H. Fred Hoefle:

I am not sure it doesn’t say, I am not familiar with Tennessee procedure, Your Honor, I am sorry.

Harry A. Blackmun:

Is it fair to say that Mr. Henderson might have had a little luck here, I suppose his counsel had raised the point back in 1948 and suppose that there had been a new indictment by a validly selected grand jury, and he had been tried and convicted, he might have been executed, might he not?

H. Fred Hoefle:

Yes, he might have.

H. Fred Hoefle:

I think that was a distinct possibility, but again, as Mr. Justice Stewart pointed out, the record that we have indicates that the decedent died of pneumonia.

Perhaps it was caused by the gunshot wound, perhaps it wasn’t, it’s hard to say.

William J. Brennan, Jr.:

Mr. Hoefle, under Tennessee practice at that time, when the guilty determined punishment after the entry of a guilty plea, was that limited to giving him a — well, or was a death penalty then excluded?

H. Fred Hoefle:

That I don’t — not by statute, I don’t believe and there are some states have excluded that —

William J. Brennan, Jr.:

You mean, if he pleaded guilty, and he might still have got the death penalty?

H. Fred Hoefle:

I believe that’s correct Your Honor, but I really — I don’t want to give you definitive answer on that —

Warren E. Burger:

Is it possible, reasonable that in this kind of a negotiation for a plea that the prosecutor would then and going to the county jury make certain the plea negotiation was carried out —

H. Fred Hoefle:

I assume that was possible.

Warren E. Burger:

— as certain as he could?

H. Fred Hoefle:

I assume it is possible, Your Honor.

Warren E. Burger:

That is he would ask for only a life sentence not for the death penalty?

H. Fred Hoefle:

The only thing is again, in one of our recent theories and cases last year, I don’t remember which one, but it was stated real emphatically that it’s impossible to tell what the jury would have done.

Who knows what the grand jury would have done, in the face of the fact that the decedent died of pneumonia.

It’s obviously prejudicial, they had been doing this at that time for 68 years down in Tennessee.

Mr. Henderson was totally ignorant of his right to object for 20 years.

His lawyer didn’t tell him.

His lawyer came in and testified, and the state did not challenge his lawyer as they could have.

What did you talk about, besides the fact that you didn’t talk about the fact that he had a bad grand jury.

The one thing I do want to mention about the McMann case is also, number one, as has been pointed out, the act of waiver in Tennessee is the entry of a plea.

It doesn’t matter if had pleaded not guilty under Tennessee law, that would have been as effective a waiver has he had pleaded guilty.

Potter Stewart:

As if he get to pleaded not guilty without having a motion?

H. Fred Hoefle:

Without motion, yes.

Without filing —

Potter Stewart:

Once he pleaded to the indictment, he waived that he has the right to make any motions challenging in the grand jury, that’s your point?

H. Fred Hoefle:

That’s my point, Your Honor.

I don’t think the fact that the plea was guilty, can be said to be a separate ground.

In the post Leary, and cases dealing with the narcotics transfer tax and the firearms tax, five Circuits have held that people, defendants who have pleaded guilty prior to these decisions, they have not waived by pleading guilty.

Their rights to object to the self incrimination things, that aspects to this Court found invalid.

The Circuits that have decided this are unanimous.

They are saying, we are not attacking the fact that the plea was voluntary.

H. Fred Hoefle:

We are saying, he did plea guilty voluntarily, but even in doing so there he did not intend to waive his right to raise his objection had he known about it.

Now even there, there would have been some inkling I would think, they knew these cases were on their way upstairs, but I don’t think Mr. Henderson even had that much benefit.

The Fifth Circuit in at least Sixth cases, and in one case particularly, they took judicial notice to the fact that white lawyers representing black defendants in the South, rarely to the point of never raised these objections at the proper time, if they ever.

I don’t see, I think this case squarely falls within Fay v. Noia and Johnson versus Zerbst.

I am afraid that if the Court does reverse that the impact of these cases is going to be lost, and it will all go back to the State Courts and they’ll have to determine, Federal rights.

Potter Stewart:

This case in your state — the Supreme Court, you had concurring opinion stating just what you have said, didn’t you that at least the 1948, that nobody would have thought of bringing this up?

H. Fred Hoefle:

Yes and that I would believe that was a Court of Criminal Appeals and then in Tennessee Supreme Court I believe in another opinion said that rather regretfully declined Henderson the relief and said perhaps it is over due, it should come from someone higher than us and here we are.

Thurgood Marshall:

I think you are spreading it little far when you say no I know one who did —

Potter Stewart:

Unsuccessfully —

Thurgood Marshall:

A lawyer in Cheatham, Tennessee did raise it and he was white so there is at least one?

H. Fred Hoefle:

And what is this objection —

It were raised —

Thurgood Marshall:

This is not.

H. Fred Hoefle:

I am sorry—

Thurgood Marshall:

I do not think I have to go through as far as none?

H. Fred Hoefle:

No sir, I am sorry.

I was quoting the Fifth Circuit and I guess they were talking for their Circuit which Tennessee is part of the Sixth Circuit.

Thurgood Marshall:

They were talking about the Sixth Circuit?

Potter Stewart:

In the other court, in brief there was another lawyer, who did too in the adjoining county

H. Fred Hoefle:

Yes there was I believe.

I might point out in that situation on the Kennedy case that there is a distinction the Maury County grand jury was perhaps disproportionately represented with Blacks but it did some blacks on it.

This county had not.

Thank you.

Warren E. Burger:

Mr. Hoefle.

Do you have anything further, Mr. Rose?

R. Jackson Rose:

Yes Your Honor.

Mr. Chief Justice and may it please the Court.

Thurgood Marshall:

(Inaudible) parole from 99 years in Tennessee?

R. Jackson Rose:

30 years.

Thurgood Marshall:

30?

R. Jackson Rose:

The same, any penalties you are entitled in a maximum of 30 years.

As there was some question about whether the guilty plea was raised, the voluntariness of guilty plea.

This question was raised earlier it was decided in the case of Henderson, the Henderson in Sixth Circuit number 1785 in 1968 and cert was denied in 391 US 927 by this Court.

According to the list that is in my petition for certiorari, the Appendix of page 2A in the Footnotes to the Sixth Circuit opinion, in those early or pro se petitions he did claim that his confession had been coerced and that his guilty of plea was therefore involuntary.

He also asserted that he had been denied the assistance of counsel.

The District Court considered these claims and decided they might virtually on the merits we affirm.

The question of impaneling a jury to impose sentence, this is done in Tennessee as it might appear to be somewhat of a fiction, where there will be a negotiated plea, a jury is impaneled, the situation is presented to the jury typically by the District Attorney General.

He says, it is the recommendation of the State and we have agreed to a number of years, being 99, the jury walks out and comes back in and back at that time, many times there was evidence, some evidence introduced to the jury even though there was a guilty plea.

This is not necessary now, I am not sure whether it was necessary then but at any rate it was done and it has been done in recent years and has been practice throughout.

William J. Brennan, Jr.:

I am sorry, how did the — you make assumption that back in 1948 that the jury would not bring in the death penalty?

R. Jackson Rose:

Please the Court that is the problem I have never been faced with.

I say typically when it is presented to whom that it the guilty plea is going in for 99 years sentence, do you agree with that, that is about the way it is presented to the jury.

William J. Brennan, Jr.:

The judge addresses the jury this way?

R. Jackson Rose:

Yes Your Honor.

William J. Brennan, Jr.:

Oh I see.

R. Jackson Rose:

And the jury in the cases that I have been involved in always came back and did what the Judge —

Potter Stewart:

Do they leave the box?

R. Jackson Rose:

Yes Your Honor.

Potter Stewart:

They do leave it —

R. Jackson Rose:

Well not necessarily I have seen them, as I recall now and I did not realize we had get into this I have seen them, if they say so you all and will you raise your hand.

Now that I am refreshing my memory on it.

I would like to bring up, the Parker case was brought up, I am sure this Court is aware of it, but the Four Circuit did deny Parker relief in December of this past year on his petition for habeas corpus on the same issue that is presented here today and relied on the trilogy Richardson versus McMann, Brady and Parker previously decided by this Court.

The number of that in that Court is in 71-1925 Parker versus Ross.

This is not — I would like to reiterate further or in answer to Mr. Hoefle, this is not similar to Noia or Johnson or there is a distinguishing characteristic that is one that he knowingly intelligently made a guilty plea knowing the consequences of it, had his day in Court and knew that it was over and number two the constitutional error alleged in this case did not go to the innocence or guilt and was a matter that was curable at that time, but that is not curable at this time.

Byron R. White:

And what about the allegation that his lawyer did not know any — did not know of his right at all?

R. Jackson Rose:

The record does not say that.

The lawyer filed an affidavit in this record.

He said I did not know that blacks systematically excluded in 1948.

I did not know that on the grand jury I do not know today that they were excluded.

Byron R. White:

And then he said he did not think of doing it, what is he saying, what did he say?

R. Jackson Rose:

No Your Honor.

Byron R. White:

What about the right to object?

R. Jackson Rose:

I am sure — I mean I have to concede that this was not discussed and from the record was not entertained in the mind of the the Attorney or the defendant, Mr. Henderson at that time.

I say it is knowing intelligent waiver even though they did not directly say we don’t waive this he knew that he was waiving everything.

Byron R. White:

Do you think it is knowing intelligent plea of guilty that is all you need?

R. Jackson Rose:

Knowing intelligent plea of guilty and that it was a conclusion of his proceeding.

Byron R. White:

Which is a waiver of his a right to go to trial?

R. Jackson Rose:

Waiver to right —

Byron R. White:

You say that’s about all you need?

R. Jackson Rose:

Yes, Your Honor in a curable defect that existed at this time.

His affidavit was just that he had no knowledge that they were excluded at that time from the grand jury, from the petit jury on Page 895 of the Appendix and A96.

He did not say that he was unaware of the right to attack the composition of the Grand Jury on the basis of systematic exclusion of blacks.

They are really — it’s not the question of the systematic exclusion of blacks as much as it is the systematic exclusion of anybody or the illegal composition of the grand jury of black has no more act to legally constituted grand jury than any other person or in Court.

And such as in the Chadwell, Chadwell had this the same right to the constitutional grand jury that Mr. Henderson had.

Warren E. Burger:

Thank you Mr. Rose.

The case is submitted.

Mr. Hoefle you appeared here by our appointment and at our request and on behalf of the Court I want to thank you for your assistance to your client and your assistance to the Court.

H. Fred Hoefle:

Thank you, Your Honor.