Petitioners Brief — Reeves v. Alabama

Supreme Court brief1954

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IN THE

Supreme Court of the United States

October Term, 1954

No. 120

JEREMIAH REEVES, JR.,

Petitioner,

STATE OF ALABAMA,

Respondent.

Os Writ or CERTIORARI TO THE SuPREME Court or ALABAMA

BRIEF FOR THE PETITIONER

Tuurcoop MarsHatt,

Rosert L. Carrer,

Jack GREENBERG,

Counsel for Petitioner.

Exwoop H. Cutsoum,

Perer A. Hatt,

Davi E. Pinsky,

Lovis H. PottaK,

of Counsel.

——_-——

SuPREME PRINTING Co., Inc., 114 Wortn Street, N. Y, 13, BEEKMAN 3 - 2320

= sty

TABLE OF CONTENTS

PAGE

CEO TOW scccecdvcvesecccseveccccecccececees 1

PE vadduesdascoccsecnacenddvecvocedseééovs 1

Questbems PVOCCMOE oo cc ccccccccccsvsccsecccvcsoere 2

EE DE tS ed daah bo candied veuk d oka 3

Constitution of the United States—14th Amend-

SE ictdveawevecasv-< Ie CWOCCRCbeDseeenedoeae 3

See Or as i Gls OIE ocbcvccceccciceccencccecee 4

Bip, Comet, GF TRUE GOED noc ccccccccvcccccvecece 4

Title 15, Code of Ala. § 320 (1940) .............. 4

PD aU os 0 Unaluteedd bbe bed dbwd dhs keeccc deans 5

I. Events Which Preceded The Trial ............ 5

II. Preliminary Motions ..............cccceeeees 6

A. Exclusion of the Public ................... 6

B. Motion to Quash the Venire .............. 7

III. Testimony At The Trial .................2.. 9

A. Commission of the Offense and Identifica-

ST Oe SE abi kn ncbs soba wceeocete ca 9

B. Inculpatory Statements and Confession: Tes-

timony By Prosecutrix and Witness Clark .. 9

C. Petitioner’s Defense .............cceceece 10

1. Petitioner’s Attempt to Testify Concern-

ing Exaction of Confession ............ 11

D. Rebuttal: Confession to Dr. Bazar ........ 13

IV. Motion for Mistrial Because Juror Chief of

SN ND DD i ddbcdced cewecdscudcens 14

«ohio inher a |

DOREY GC BOGE co cccccvssccncsvccscecouccsce

I—A. Due process of law guaranteed by the Four-

teenth Amendment was denied to petitioner—a

little-educated, mentally unstable Negro youth—

by introduction into evidence of his ‘‘confessions”’

and ‘‘inculpatory statements’’ made following sus-

tained interrogation, punctuated by threats of

electrocution, while he was held incommunicado at

the State Penitentiary from Monday afternoon

through Wednesday morning near and frequently

in the very presence of the electrie chair ........

B. Even if the confessions were not coerced as

a matter of law, due process was denied in that the

confession issue was not ‘‘fairly tried and re-

viewed’’: The jury which heard the confessions

was not permitted to hear the relevant and im-

portant testimony offered by petitioner concern-

Bee CRG GGTINN 0.0 o veces cccvconecvccectcces

C. The Supreme Court of Alabama erred in hold-

ing that even if the confessions were coerced, the

decision in Stein v. New York, 346 U. S. 156 per-

mitted affirmance because there was sufficient evi-

dence apart from the confessions upon which the

conviction could have been based ...............

II—There was systematic exclusion of Negroes from

the venire in that the commissioners employed a

selection method whereby it was ‘‘particularly

hard’’ for Negroes to become jurors if the com-

missioners did not personally know them; commis-

sioners knew fewer Negroes than whites; and al-

though the Negro population of Montgomery

County is 43.6%, panels contained only 0% to

8.5% Negroes

POOR COPY

iii

PAGE

[1J—Arbitrary exclusion of the general publie from

all phases of petitioner’s trial denied due process

ME cencondeudbescusdabdscteeeys:s uevdeuden? 39

CAE 56 chs ksénsecesse veces weevessevenicesose 49

Cases Cited

Asheraft v. Tennessee, 322 U. S. 143 ............ 19, 20

Avery v. Georgia, 345 U. 8S. 559 ............ 35, 37, 38, 39

Beauchamp v. Cahill, 297 Ky, 505, 180 8. W. 2d 423

CRPEE) cccccensvasccrevcocescesevcesesscvecees 42, 43

Benedict v. People, 23 Colo. 126, 46 P. 637 (1896) .. 45, 46

Berger v. United States, 295 U. S. 78 ..........4. 49

Brooks v. State, 178 Miss. 575, 173 So. 409 (1937) .. 2

Brown v. Allen, 344 U. S. 443 ...... cece ee cece 32

Bryant v. State, 191 Ga, 686, 13 8S. E. 2d 820 (1941) 25

Cassel] v. Texas, 339 U. S. 262 ........005: 34, 35, 36, 37

Catoe v. U.S., 131 F. 2d 16, 76 App. D. C, 292 (1942) 26

Cavazos v. State, 143 Tex. Cr. 564, 160 S. W. 2d 260

ea Ei RR EEE, a GA es SE ae 26

Chambers v. Florida, 309 U. S, 227, 241 .......... 19, 20

Clay v. State, 15 Wyo, 42, 86 Pac. 17 (1906) ...... 26

Collier v. Hicks [1831], 2 Be. Ad. 663 ............ 45

Commonwealth v, Blondin, 324 Mass. 564, 87 N. E.

Se CN 6 eSnGon cvbuuh veshesucbesheotanes 41

Commonwealth v. Principatti, 260 Pa, 587, 104 Atl.

SORE ‘sp bdlnesecd oes oe echeseunesaséevessede 43, 44

Comm. v. Sheppard, 313 Mass, 590, 48 N. E. 2d 630

(1943) cert. den. 300 U. S. 213 2... cece eee eee 26

Comm. v. Van Horn, 188 Pa, 143, 41 A. 469 (1898) 26

Cramer v, State, 145 Neb. 88, 15 N. W. 2d 323 (1944) 26

Daubney v. Cooper, 10 B. & C, 237 (1829) ......... 45

Davis v. United States, 247 F. 2d 394 (C. A. 8th,

DE seceds dk ubichedatkansesdtetseddcedcesess 43

LOLS TARA OE AIRY NaN. ORRIN EI TR LSE ARM RNIN ee Bee are Phas ee Se a

PAGE

Diaz v. People, 109 Colo, 482, 126 P. 2d 498 (1942)... 95

Doyle v. Commonwealth, 100 Va. 808, 40 S. E. 925

CROUED evcecncnscescucecehececveusseeneteee 42

Dutton v. State, 123 Md. 373, 91 A. 417 (1914)... .41, 45, 46

Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941)..... 25, 27

Gallegos v. Nebraska, 342 U.S. 55 .............24. 19, 32

Gordon v. United States, 344 U. S. 414 ............ 29

Grimmett v. State, 22 Tex. Cr. 36, 2 S. W. 631

GHEE Sebenkceebesteideeuteccecravecncaabein 42, 44

Haley v. Ohio, 332 U. S. 596 ................ 19, 20, 25, 32

Hampton v. Commonwealth, 190 Va. 531, 58 8. E. 2d

ee LEE ee ckbsegscaducdvevesciccedastuabaen 46

Harris v. South Carolina, 338 U.S. 68............ 19, 20

Hearts of Oak Assurance Co., Ltd. v. A. G. [1931]

Ge MU Sékeccesscededecusssekekadevoune ane 45

Benes W, wee, 00.0. DOOD oan csevkcsevsvavesoucs 34, 35

Hogan v. State, 191 Ark. 437, 86S. W. 2d 931 ..... 42, 43

Ingram v. State, 34 Ala. App. 597, 42 So. 2d 30.... 20

Jackson v. Commonwealth, 193 Va. 664, 70 S. E. 2d

CREE, Haba beds rabdenheasebabaeks - been 26

Johnson v. State, 242 Ala. 278, 5 So. 2d 632, cert. den.

UEP 60-605 664.0 0rbuewans beaeseeuate 30

Jones v. State, 23 Ala. App. 493, 127 So. 681 ....... 49

Keddington v. State, 19 Ariz. 457, 172 P. 273 (1918).. 45, 46

Leach v. State, 245 Ala. 539, 18 So. 2d 289 (1944) ... 48

Leyra v. Denno, —— U. 8S. -——, 98 L. Ed. (Adv.

UE SeGinventat sec doukeusneasekses ¥uvnen 21, 23, 28, 32

Logan v. Commonwealth, 308 Ky. 259, 214 S. W.

Se Ee ROD oN cbeenevcansdesseévesecunaunes 26

Lyons v. Oklahoma, 322 U. 8. 596 ............ 22, 23, 28, 32

areee ©. U. &, 386 0. B Se... ccccscevcvess 20

McPherson v. McPherson [1936] A. C. 177, 1 D. L. R.

—~-

PAGE

Mack v. State, 203 Ind. 355, 180 N. E. 279 . 26

Mahlikilili Dahlamini v. The King [1942] a C. 593

IPC) ccavcccsvvccveveccessevecstvesassnsenes 41, 45

Maliniski v. New York, 324 U.S. 401 ..... 20, 21, 22, 23, 32

Mooney v. Hollohan, 294 U. S. 103 .............. 49

Moore v. State, 151 Ga. 648, 108 S. FE. 47 (1921) .. 46

Murphy v. United States, 285 F. 801 (C. A. 7th,

1923), cert. den. 261 U. B. GIT... cece ceeees 26

Neal v. State, 86 Okla. Cr. 283, 192 P. 2d 294 (1948) .. 44

Nelson v. State, 190 Ark. 1078, 83 S. W. 2d 539

CONROE cu vdensdcdkwaressisesuscenotevekeandews 25

Nicholson v. State, 38 Md. 140 (1873) ............ 26

ie EE: Se als nde w ceabdessadsvenstews 40, 42, 47

Palko v. Connecticut, 302 U. S. 319 ............... 41

People v. Dudgeon, 229 Mich. 26, 201 N. W. 355 (1924) 26

People v. Elmore, 277 N. Y. 397, 14 N. E. 2d 451, 124

Bh ee ee SE Kaho yk vedanee dadenddnneease 26

People v. Fox, 25 Cal. 2d 330, 153 P. 2d 729 (1944) . 25

People v. Hartman, 103 Cal. 242, 37 P. 153 (1894) 43

People v. Roach, 369 Ill. 95, 15 N. E. 2d 873 (1938) 26

People v. Yeager, 113 Mich. 228, 71 N. W. 2d 491

END Sudévnchevdewhsd ieéeuan send Te eeeeseec capes 43, 45

Pierson v. State, 99 Ala. 148, 13 So. 550 (1891) 47

Pollack v. State, 215 Wise. 200, 253 N. W. 560 (1934) 26

R v. Hamilton [1930], 30 S. R. N. S. W. 277; 47

es es Es ed Te hecckvsawenetvolectnedasaes 41, 45

R v. Ladbrooke [1931], N. L. R. 475 .......... 41, 42, 45

R v. Neff [1947], I. W. W. R. 640, 88 Can. C. C. 199 45

Rv. Murray, 1 K. B. 391 (1951) .........-.20e00e 28

Rhoades v. State, 102 Neb. 750, 169 N. W. 433 (1918) 44

Robertson v. State, 64 Fla. 437, 60 So. 118 (1912) .. 45

Rochin v. California, 342 U. S. 165 .............. 21

a ee ee a ec cn aes wines neerie

PAGE

este w. Beate (10551, A. ©. GAT nccccccccveccocces 41, 45

Shapiro v. City of Birmingham, 30 Ala. App. 563,

er Se A ED Ss vdnieadacaccdendeccuceasaa 48

Smith v. State, 77 Okla. Crim. 142, 140 P. 2d 237

SD 85 644 Aber a das eadedeseudetetaevexecis 26

ieee Vee, SE Wn WA BD a vecnvecdetvoscoscce 37

State v. Adams, R. I, ——, 121 Atl. 418 (1923) 26

State v. Adams, 100 8. C. 43, 84S. E. 368 (1915) .. 4

State v. Auguste, 50 La. Ann. 488, 23 So. 612 (1898)... 21

State v. Bonza, 72 Utah 177, 269 P. 480 (1928)..... 44, 45

State v. Brooks, 92 Mo. 542, 5 8S. W. 257 (1887).... 44, 47

State v. Callahan, 100 Minn. 63, 110 N. W. 342

RRR pi Ra ee ene a ny er Rae oes ts aera 42, 44

State v. Cleveland, 6 N. J. 316, 78 A. 2d 560, 23

ee es CED Sb b4h od ers besser doe ounces 26

State v. Collett (Ohio) 58 N. E. 2d 417 (1944)....... 26

State v. Crank, 105 Utah 332, 142 P. 2d 178, 170

me ee EE dnd nade cs ie aeheeidetss ccs 26

State v. Croak, 167 La. 92, 118 So. 703 (1928)....... 46

State v. Damm, 62 8. D. 123, 252 N. W. 7 (1933).... 42,44

State v. Genese, 102 N. J. L. 134, 130 Atl. 642 (1925). 42, 44

State v. Gibilterra, 342 Mo. 577, 116 S. W. 2d 88

RE Es Fe eer Rae ae neta y 26

State v. Grover, 96 Me. 363, 52 A. 757 (1902)....... 26

State v. Hensley, 75 Ohio St. 255, 79 N. E. 462

SUE <Sased0bs 605654 Lede Chee 6he0 0840 Ra ee ie Ces 42,44

State v. Hofer, 238 Ia. 820, 28 N. W. 2d 475 (1947)... 3S |

State v. Holm, 67 Wyo. 360, 224 P. 2d 500 (1950).... 41,46

State v. Johnson, 26 Idaho 609, 144 P. 784 (1941)... 5 |

State v. Jordan, 146 Ore. 504, 30 P. 2d 751 (1934).. 26

State v. Keeler, 52 Mont. 205, 156 P. 1080 (1916)... 44

State v. Kerns, 50 N. D. 927, 198 N. W. 698 (1924).. 26

State v. Marsh, 126 Wash. 142, 217 P. 705 (1923) .. 44

State v. Miller, 204 Ala. 234, 85 So. 700 (1920) .... 39

State v. Nicholas, 62 S. D. 511, 253 N. W. 737 (1934) 26

State v. Nyhus, 19 N. D. 326, 124 N. W. 71 (1909) .. 46

» sigh ee v x ip Oy

SERENE LOL DELETE IGE EG IE EDO ELS ALR GOA A Lie oN OND ie OE TD

vii

State v. Osborne, 54 Ore. 289, 103 P. 62 (1909) .... 42, 44

State v. Richards, 101 W. Va. 136, 132 8. KE. 3875

EI OR Eee rr nme 26

State v. Saale, 8308 Mo. 573, 274 S. W. 893 (1925) .. 42

State v. Schabert, 222 Minn. 261, 24 N. W. 2d 846

Lee ear rer rrr yy err ery yr rer rer erie 26

State v. Scott, 209 8S. C. 61, 38'S, KE. 2d 902 (1946) .. 26

State v. Seruggs, 165 La. 842, 116 So. 206 (1928) .. 42

State v. Sherman, 85 Mont. 512, 90 Pae. 981 (1907) .. 26

State v. Smith, 62 Ariz. 145, 155 2. 2d 622 (1944) .... 25

State v. Taylor, 119 Kan, 260, 257 Pae. 1058 (1925) . 26

State v. Vaisa, 28 N. M. 414, 215 Pae. 1088 (1923) .. 26

State v. Van Brunt, 22 Wash. 2d 1038, 154 P. 2d 606

TR COS), oo be ae 26

State v. Van Viack, 57 Id. 316,65 P. 2d 736 (1937) .. 26

State v. Williams, 31 Nev. 360, 102 P. 974 (1909) .. 26

State v. Willis, 71 Conn. 293, 41 Atl 820 (1898) .... 25

State v. Wilson, 217 La. 470, 46 So. 2d 738 (1950)

rn nr We Me WE a pedbsiacivesasveesenss ces 26

Stein v. New York, 346 U.S, 156 ........ 2, 15, 16, 20, 25,

29, 30, 31, 32, 49

Stroble v. California, 343 U. S. 181 .............. 23, 32

Tanksley v. United States, 145 F. 2d 58 (C. A. 9th,

SE OSS Oe OPE Per Pee ArT treme reer 43, 47

The King v. Governor of Lewes Prison, ex parte

ee ee RAE bd andbckendcessnses 43, 45

See 0, SI Ee Win PO wd eevee id enseneduces 48

Turner v. Pennsylvania, 338 U. S, 62 ............ 20

U.S. ex. rel. Almeida vy. Baldi, 195 F. 2d 815 (C. A.

ED! Peeves buvdawess Keds ekoekdebas ceaeess 28

United States v. Bayer, 331 U. S. 532 ............ 22

United States v. Kobli, 172 F. 2d 919 (C. A. 3d,

NE eve rvaskesd chen dV thee eeedaecevaresctirs 42, 43

United States v. Sorrentino, 175 F. 2d 721 (C. A. 3d,

RE hrc Gita teks s eee ede ens s adeeb viceecaeeve 47

BON Aa cme a BAILA OVO Bas OE ANNA TER en Om Pa nach Ig

viii

PAGE

Vernon v. State, 239 Ala. 593, 196 So. 96 (1940) .. 0 7

Ward v. Texas, 316 U. 8. 547 ..........cccccecess 19, 20

Weaver v. State, 3 Ala. App. 207, 31 So. 2d 593

SNE cota caseetauesscudiiednerscdhoes wit. 46

Williams v. State, 156 Fla. 300, 22 So. 2d 821 (1945) 95

Wilson v. Louisiana, 341 U. 8. 901, aff’g. 217 La. 470 21

Wilson v. U. S., 162 U. S. 613 (1896) ..........., 26

Witt v. United States, 196 F. 2d 285 (C. A. 9th,

1952), cert. den. 344 U. S. 827 ................ 26

Wynn v. State, 181 Tenn. 325, 181 S. W. 2d 332

NE aac her ag ea aed oe 26

Constitutions

United States Constitution, Sixth Amendment .... 41

United States Constitution, Fourteenth Amend-

WE Sivtuccueukhive hd ven cdeveneveotbesdel 2, 3, 18, 33, 48

Mees Cael, Bak, BOG so kickvicénckdotccaseares 41

SN NN GIN vic cecedkdacdedbauesasccan, 4, 45

Arizona Const. Art: II, Section 24 ................ 41

Arkansas Const. Art. II, Section 10 .............. 41

California Const. Art. I, Section 13 .............. 41

Colorado Const. Art. II, Section 16 ................ 41

Connecticut Const. Art. I, $9 .......... ccc cece 4]

Be GN, OE, BS veo ncuccuescncevucces 41

Florida Const., Declaration of Rights, Section 11 .. 41

Georgia Const. Art. I, § 2-106 .........ccccccccces 41 }

NOG IE Onc ives kuvdcdconeecveges 41

SD MA IIE ioe ob S sous dacoevceedies 4.

en OE Se no cwoebekebeyn 41

Iowa Const. Art. I, Section 10 ................... 41

Kansas Const. Bill of Rights £10 ................ 41}

Kentucky Const. Section 11 ...................0.. 41

Louisiana Const. Article I, 69 .................... 41

Maine Const. Art. I, Section 6 ................... 41

Michigan Const. Art. IT, §19 ..............ecceeee 41

BLEED THROUGH "oun Com

— —

| PAGE

minetasin Comet, B06, 0,96. xcccsvecossvsseceuvces 41

Mississippi Const. Art. 3, § 26 .........ecccececess 41, 45

nent Comeh, 256. 5, STIRS oe sccvcccescoescsses 41

| Si Te, MOD vececebetetecveneses 41

ian Ce ee. i ae ob ieesceseed eubeceece 41

New Jersey Const. Art. I, Par. 10 ........esccceess 41

New Mexico Const. Art. IT, $14 ........ccceccees 41

North Carolina Const. Article I, §13 .............. 41

North Dakota Const. Art. I, $13 ............0008- 41

CC, A a OP ode b dd vetekeséewbectavaces 41

Obishome Const. Ant. TT, 6 3D... ccccccccccsccceses 41

ee ee ee eee pee 41

Pennsylvania Const. Art. I, $11 ..........esceeee 41

Rhode Island Const. Art. I, §10 .................. 41

South Carolina Const. Art. I, §18 ............... 41

South Dakota Const. Art. VI, 47 .............c000- 41

IR I, SI i ee ea oa 41

ee Ss A Oe DD cence recventsosbewntedecs 41

es I a A a eee wden seeds 41

ees Ce Gs Bi ev vn cbcecececocdoousece 41

| Washington Comet. Art. 5. 628 ....cccvcscevevess 41

West Virginia Const. Art. ITT, § 14 ............... 41

Weare Cy: SO By OF ck nctécnvocsecsecdesnewe 41

Statutes

LS ENS tated RPA PEM ed iret eal A RES 4, 33

Sa SY le a he 20

ee ee ED sv kdebducececconcneeeaerecks 4, 45

LO SE UE bac anuredwaecedesennemisioe 14

Pe Or EE av divas nak voce cseseedekon vanes 33

Ga. Code of 1933 Sec. 81-1006 .............cccceee 45

Ky. Rev. States. § 455.130 (Baldwin’s 1943 Rev. Ed.) 42, 43

Mass. G. L. (Ter. Ed.) e. 278 §16A ............ 45

Mich. Stat. Ann. (1935) See. 27.465 .............. 43, 44

Minn. Stat. Ann. (1947) § 631.04 ................. 42,44

PAGE

Nev. Comp. Laws Ann. See. 10654 ee Ree 41, 42

Nevada Comp. Laws 1929 § 8404 ................. 41

29 McKinney’s Cons. Laws of New York, Sec. 4... 41, 45

Gen. Stats. No. Car. (Recompiled 1953) See. 15.166.. 42. 44

’

North Dak. Rev. Code of 1943 27-0102 ............ 45

Code of Va. 1950, Sec. 19-219 ...............055., 45

Wise. Stats. 1951 § 256.14 ........ cc cccccceveece, 42, 44

England: Children and Young Persons Act (1933)

en A 42

cael kk SRP RES ADE ene a en 27

Archbold’s Criminal Pleadings, Evidence & Prac-

thee (Slst Mdm. 1943) 174 ...........ccccceecse, 42, 45

8 Halsbury’s Laws of England (2d edn.) 526-527 .. 45

1950 Census of Population, Vol. Il, Characteristics

of Population, Part 2, p. 2-87 .................. 35

Note, 49 Col. L. Rev. 110 Er oN cbs b asdewwcss 40

Note 35 Cornell L. Q. 395, 399 (1949) .............. 47

Note, The Supreme Court, 1952 Term, 67 Harv. L.

Me Wy BOUND: vccnccenvccddccccdccoeee., 31

ee I Eh dn ie ceo awe base ieeecncss, 23

We I ME So ves no op. s.ccdedce veevcascleg. 25

: IN THE

—s Supreme Court of the United States

October Term, 1954

No. 120

ray

JEREMIAH REeEvEs, JR.,

Petitioner,

Srate oF ALABAMA,

Respondent.

On Writ or CertTionARI TO THE SUPREME Court oF ALABAMA

BRIEF FOR THE PETITIONER

Opinion Below

The opinion of the Supreme Court of Alabama (R. 184)

is reported at 68 So. 2d 14.

Jurisdiction

The judgment of the Superior Court of Montgomery

County was affirmed by the Supreme Court of Alabama on

August 6, 1953. Rehearing was denied November 27, 1953.

Time for filing petition for writ of certiorari was extended

to and including March 12, 1954 by order of the Chief Jus-

tice dated February 17, 1954. Petition for writ of certiorari

and motion for leave to proceed in forma pauperis were

granted on June 7, 1954. The printed record was received by

a {LEONEL RT, Rae ST REIN PETUNIA ET Oe We

petitioner’s counsel on August 17, 1954. The jurisdiction of

this Court is invoked under 28 U.S. C. § 1257(3), petitioner

having asserted in the courts below rights, privileges and

immunities conferred by the Constitution of the United

States.

Questions Presented

Whether due process of law guaranteed by the Four.

teenth Amendment was denied petitioner—a _ little.

educated, mentally unstable Negro youth—by introduction

into evidence of his ‘‘confessions”’’ and ‘‘inculpatory state-

ments’’ made following sustained interrogation—punctu-

ated by threats of electrocution—while he was held in-

communicado at the State Penitentiary from Monday

afternoon through Wednesday morning, near and fre-

quently in the very presence of the electric chair.

Whether, even if, arguendo, the confessions were not

coerced as a matter of law, due process was denied in that

the confession issue was not ‘‘fairly tried and reviewed”,

for the jury which heard the confessions was not permitted

to hear the relevant and important testimony offered by

petitioner concerning their exaction.

Cc.

Whether the Supreme Court of Alabama erred in pro-

ceeding on the premise that even if the confessions were

coerced, it might properly, on the basis of Stein v. New

York, 346 U. S. 156, affirm the judgment of the trial court

because there was sufficient evidence apart from the con-

fessions upon which the conviction could have been based.

-_— eee 0ClUCU CO ee

Whether there was systematic exclusion of Negroes

from the venire where there was © system of jury selection

based entirely upon the jury commissoners’ personal

acquaintanceship; where they knew very few Negroes and

it was ‘particularly hard’? for Negroes to become jurors

if the commissioners did not know them; and where jury

panels contained only 0% to 8.59% Negroes in a county

where the Negro population is 43.6%.

Whether due process was denied in that the general

public Was artetrardy exeluded from all phases of peti-

tioner’s trial especially when this ban included a time

when, as subsequent events proved, the public’s presence

Was most necessary: during the voir dire when the Chief

of Police of the Montgomery Reserve Police Force became

a juror, after having concealed his police affiliation which

was known to the State but unknown to petitioner.

Statutes Involved

Constitution of the United States—

14th Amendment.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

Title 18 U. S. C. § 243.

Exclusion of jurors on account of race or color,—No

citizen possessing all other qualifications which are oy may

be prescribed by law shall be disqnalified for service as

grand or petit juror in any court of the United States, or

of any State on account of race, color, or previous con-

dition of servitude; and whoever, being an officer or other

person charged with any duty in the selection or summon.

ing of jurors, excludes or fails to summon any citizen for

such cause, shall be fined not more than $5,000. (June 25,

1948, c. 645, § 1, 62 Stat. 696.)

Ala. Const. of 1901 § 169.

In all prosecutions for rape and assault with intent to

ravish, the court may, in its discretion, exclude from the

courtroom all persons, except such as may be necessary in

the conduct of the trial.

Title 15, Code of Ala. § 320 (1940).

Exclusion of public when evidence vulgar, ete.—In all

prosecutions for rape and assault with intent to ravish,

the court may, in its discretion, exclude from the courtroom

all persons, except such as may be necessary in the conduct

of the trial; and in all other cases where the evidence is

vulgar, obscene, or relates to the improper acts of the

sexes, and tends to debauch the morals of the young, the

presiding judge shall have the right, by and with the

consent and agreement of the defendant, in his discretion,

and on his own motion, or on the motion of the plaintiffs

or defendants, or their attorneys, to hear and try the said

cause after clearing the courtroom of all or any portion

of the audience whose presence is not necessary.

Statement

Petitioner has been sentenced to death following con-

viction for the crime of rape without recommendation of

merey (R, 184). The Supreme Court of Alabama has

affirmed (R. 194).

I. Events Which Preceded The Trial

During the summer of 1952, there were a number of

complaints of rape in Montgomery, Alabama (R. 44, 102,

104, 136). For a period of about six months the police

were unable to charge anyone, even though several sus-

pects were arrested (R. 66), including petitioner who was

later released (R. 44-45, 104, 141). Petitioner is a 17-year-

old Negro with an eighth grade education (R. 116), who

comes from a poor family (R. 106-107) and who is mentally

unstable (R. 105, 121-122, 124). Finally, on Monday,

November 10, 1952, he was arrested once more (R. 135)

and was taken out to Kilby prison (R. 137) near the City

of Montgomery where he was held under circumstances

to be detailed below until he ‘‘confessed’’. Wednesday

morning, after his ‘‘confession’’, he was taken to the

City Jail.

It appears that several women who had been raped

or robbed were there to identify him and that four women

other than prosecutrix herein failed to do so (R. 44, 139).

Prosecutrix was told that petitioner confessed and was

given a copy of a statement purportedly constituting such

confession (R. 58, 64); thereupon she saw him, the only

Negro in the room, through a window (R. 65), entered the

room, and apparently identified him (R. 59).

In the presence of police officers a conversation ensued

in which, according to prosecutrix, petitioner identified her

house and described his entry (R. 59-60), but was unable

to explain the reasons for his actions (R. 59). On Novem-

ber J4, petitioner was indicted for six erimes on six indict.

ments, three of them capital (R. 1, 44)' among them was

the indictment upon which the conviction herein is based,

Il. Preliminary Motions

A. Exclusion of the Public

Trial commenced November 26, 1952 in Montgomery,

At the outset, before motions were heard or the jury was

empanelled the judge ordered the courtroom cleared of

all persons except officials, jurors, and lawyers (R. 2, 10).

Petitioner objected and moved that the public be permitted

to attend (R. 2, 10, 19). He then moved that at least

newspapermen (R. 3, 11) and his relatives (R. 3, 14-15,

19) be admitted. The motion as to relatives was granted

(R. 3, 15); but that as to the press was at first denied

(R. 3, 11). Subsequently the press was admitted to hear

the actual taking of testimony (R. 22). Petitioner objected

to these exclusions on the ground that he was thereby

denied his right to a public trial as guaranteed by the

Fourteenth Amendment (R. 10-11, 14-15, 19-20). Follow-

ing these objections petitioner moved that if the public

were to be excluded, it should be excluded only during

prosecutrix’s testimony on the ground that permanent ex-

clusion from all phases of the trial denied due process of

law as guaranteed by the United States Constitution (R.

15, 20). This motion was denied (R. 15). Thus, the gen-

eral public was excluded prior to the empanelling of the

jury and during the trial proper. Petitioner appealed

this denial of a public trial to the Supreme Court of Ala-

1 At the time he went to trial he made a motion for continuance

on the ground that he did not know for which of the three capital

offenses he was going to be tried (R. 50). It was denied (R. 45).

bama, urging Federal Constitutional grounds. It ruled

against him but did not discuss the question in its opinion.?

B. Motion to Quash the Venire

Petitioner moved to quash the venire on the ground

that Negroes had been systematically excluded from the

jury box in violation of the Fourteenth Amendment (KR.

15,20). The judge was also one of the jury commissioners,

and therefore recused himself (R. 15-16). He was replaced

by a Special Judge who tried the case from that point on

(R. 21).

Evidence revealed that the jury box contained about

five thousand cards (R. 38) bearing the names of all per-

sons who had been called for jury service during at least

the past 18 years (R. 30), excepting those who had be-

come ineligible or died (R. 30). The commissioners did

not known how many Negroes’ names were in the box and

would not estimate (R. 29, 39). However, one com-

missioner testified that the largest number of Negroes

called at any term was three (R. 30). There have been

panels with a smaller number of Negroes (R. 30, 34-35)

and there have been terms with no Negroes at all (R. 35).

A panel consists of 50 persons although only 35 may

actually appear (R. 30). However, if there is a shortage

of jurors, additional ones may be called (R. 30).

* The Supreme Court of Alabama noted that the public had been

excluded, but merely mentioned this in connection with petitioner's

motion to have his private stenographer admitted to the courtroom,

which was apparently held to have been waived at a later time be-

cause the stenographer could not be located (R. 188-189). The

federal question was preserved in petitioner's brief in the Supreme

Court of Alabama (see n. 5, infra), as follows:

“PROPOSITION XV

ARBITRARY EXCLUSION OF ALL MEMBERS OF THE PUBLIC

WITHOUT CLASSIFICATION FROM ALL PHASES OF A RAPE TRIAL

IS A DENIAL OF DUE PROCESS OF LAW UNDER THE 14TH

AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES.”

(Brief of Appellant, In the Supreme Court of Alabama,

Reeves v. The State of Alabama, p. 9.)

The commissioners selected jurors entirely from their

personal acquaintance with individuals or organizations

(R. 28-29, 36-37). They had obtained lists of names from

almost every white club in the County (R. 33), but they

knew few Negroes (R. 29, 37) and did not know or go to

Negro clubs (R. 33, 36). Only one of them could recall a

Negro organization which he had contacted, long ago in

the past, and he was not sure of its name (R. 33-34). The

Commissioners testified that they did not discriminate (R.

34), that they sought “high class’’ or **good’’ Negroes

(R. 29, 36, 38) for jury service and never rejected a man

because of his race (R. 29). There is testimony that

several Negroes had been asked to submit names for the

box (R. 36-37, 40, 42), although it does not appear that

names ever were submitted by these persons (RK. 36, 37,

40, 42), except on one occasion two or three years ago

(R. 29), and that a public meeting was held at the start of

World War II, attended by “thigh class” Negroes, and

names were requested there (R. 38). Two Negrues testi-

fied that they had served on juries (R. 40, 41) and that

other Negroes had served with them, However, one com-

missioner testified that it is **particularly hard” for

Negroes to get on the jury without the commissioners

knowing them (R. 29).

Petitioners moved on two occasions to examine the

cards in the box to ascertain the number of Negroes who

had been selected and to test the Commissioners’ general

assertions by cross-examination (R. 27, 34). Petitioner

also sought to interrogate the commissioners concerning

the voting list to ascertain whether it had been employed,

as required by statute, in selecting jurors (R. 31, 39).

These requests were denied (R. 27, 51, 34, 39). The

trial court (R. 43) and the Supreme Court of Alabama

(R. 187) concluded that there was no evidence to sustain

petitioner’s motion, and that there was therefore no viola-

tion of the Federal Constitution.

“I I DT A COL AS SI pe POLES A SAU TLE CLE AROSE LF BRAS! TRIN Ts Fe. pet a

_—_— SELEDEE EIR A RDN TIE EAI MBE T EIS OATES OOS

Ill. Testimony At The Trial

A. Commission of the Offense and

Identification of Accused

Prosecutrix testified that her assailant entered her home

July 28, compelled her to have intercourse (R. 52) and beat

her unconscious (R. 62). She identified her assailant in

most general terms as a Negro, seventeen to twenty-five

years of age, five feet nine and a half to five feet ten inches

) in height, slightly taller than her husband, 130 to 150

pounds in weight (R. 62, 65), without a mustache (R. 65),

wearing a dark blue shirt with a yellow-gold design and a

straw hat (R. 52). Petitioner resembles even this general

description only in that he is a Negro. There is uncon-

tradicted testimony that he has always had a mustache

since he was fourteen (R. 150, 151, 154, 155), that he has

never owned the articles of clothing prosecutrix described

(R. 107, 150), that he is five feet seven inches tall (R. 150)

and that he was under seventeen at the time of the alleged

offense (R. 135). The State seized all of petitioner’s be-

longings (R. 102, 107) but produced no items of clothing

like those prosecutrix described.

B. Inculpatory Statements and Confession:

Testimony By Prosecutrix and Witness

Clark

Prosecutrix testified concerning the statements made

by petitioner to her at the City Jail (R. 59-60), and also

testified that the solicitor had told her that petitioner

confessed and that he showed her petitioner’s confession

(R. 58, 64-65). Petitioner objected to prosecutrix’s testi-

mony concerning the incriminating statements on the

ground that they had been obtained by coercion which denied

due process of law (R. 55-56, 58-59). A hearing was held

: without the presence of the jury in which petitioner sought

to show that he had been held incommunicado at Kilby

from 2:00 P. M. on Monday until Wednesday morning

when he confessed, at which time he was taken to the Cit

Jail to be identified by prosecutrix. He sought to show

that at Kilby he had been continuously questioned in the

presence of the electric chair, had been kept in the room

next to the electric chair, that he was offered the hope

and promise that if he confessed he would not be electro.

cuted, but that if he did not confess he would be electro-

cuted. Petitioner also sought to introduce testimony con-

cerning his age and education (R. 55-56, 58-59).

The judge held that the proffered testimony was inad-

missible because it related to events up to the time that

petitioner was taken to the City Jail to make the inerimi-

nating statements, but did not concern his treatment when

he gave the statements at the City Jail (R. 58-59). Prose.

eutrix then proceeded with her testimony before the jury

(R. 59-60, 64-65).

Witness Clark testified that not far from prosecutrix’s

home at the time of the offense he gave a ride to a person

who fit prosecutrix’s description of her assailant (R. 71-

73) and that this person was petitioner. He then testified

to an inculpatory statement petitioner made to him at the

City Jail on November 17 (R. 74-75), in whieh petitioner

purportedly recognized him and acknowledged that he bad ;

been Clark’s passenger. Petitioner objected to the intro-

duction of this statement on the ground that it was the

product of the coercion used against him at Kilby (R. 74).

The Court overruled the objection on the same ground

that it overruled the earlier objection to the prosecutrix’s

testimony (R. 74), and refused to hear testimony on it. ,

C. Petitioner’s Defense

Petitioner took the stand to deny that he committed the

crime and to testify that he wae playing dominoes at the |

time the offense was committed (R. 142-143). Another ’

witness who participated in the domino game corroborated

the alibi (R. 126-127). There was testimony that peti-

tioner did not fit the description given by prosecutrix

(Compare R, 52, 62-65 with R. 106, 134, 150, 151, 154, 155).

In the alternative there was a defense of insanity conecern-

ing which a series of lay witnesses testified that petitioner

was mentally unstable and in their opinion insane (R. 105,

121-122, 124). There was also testimony of his good reputa-

tion (R. 152, R. Orig. 175, 200, 201, 202).*

1. Petitioner’s Attempt to Testify Concern-

ing Exaction of Confession.

Petitioner sought to testify during his own case con-

cerning the treatment he reeeived at Kilby before he con-

fessed and made the incriminating statements in the

presence of prosecutrix, witness Clark and the police (R.

138, 139-141).

After petitioner had testified briefly concerning ocecur-

rences at Kilby on Monday, the Court stopped him on the

ground that the testimony was irrelevant (R. 138-139, 140-

141). Petitioner, thereupon made the following proffer

(R. 140):

‘*Mr. MeGee: To show the defendant, a seven-

teen year old negro boy, who quit school in the 8th

grade, was arrested at approximately 2:10 P.M. on

November 10th, 1952, and was carried within a period

of about fifteen minutes from then to the State

Penitentiary, Kilby Prison, Montgomery County,

Alabama, where he was held incommunieado by State

and City officers and questioned continuously the

rest of the afternoon, and then permitted to sleep

only a short while, some fifteen or twenty minutes;

he was then carried into the next room where the

electric chair was and questioned some more by the

Deputy Warden O. R. Dees and aceused of having

___

* RK. Orig. indicates pages of the original record which were not

printed.

—7

made various kinds of attacks on some six white

women of Montgomery County, Alabama. 0, R.

Dees further told him that if he didn’t confess to

these crimes that all the women would identify him

and he was going to the electric chair. And that if

he would confess that he would keep him out of the

chair. After questioning him all night he was finally

permitted to go to bed until the following morning,

Tuesday. Tuesday morning early the officers again

began a series of constant questioning all day Tues-

day and part of Tuesday night. Then he was per-

mitted to go to bed. That on Wednesday morning

he was again questioned. And all the time the

officers were telling him if he didn’t confess to

these crimes he would go to the electric chair, and

if he did he would keep him out of the chair, until

sometime finally Wednesday morning he agreed to

confess to all of these crimes they had been aceus-

ing him. That he was then carried by the State

Officers of Montgomery County to Police Head-

quarters and there held by the Montgomery County

Police and City Police officers until the prosecutrix

in this case was permitted to view him.

‘*And I move the Court to permit me to prove

these allegations, and in order to go to the credibility

of the statement which is alleged he made in her

presence while he was held.

Co open oes

‘And I move the Court to permit me to do so on

the ground that a failure by the Court to permit me

to do that is a denial to the defendant of his con-

stitutional rights as euaranteed under the Fourteenth

Amendment to the Constitution of the United

States.”’

The motion was denied (R. 141).

CIEE SNORE AORTA AER SAR N ALOE DOE AS SR ot Oe nee” ees eeemeenme,

Thus, the jury was denied substantial and crucial testi-

mony concerning the entire pattern of coercion, and knew

nothing about what happened at Kilby Tuesday and Wed-

nesday.

D. Rebuttal: Confession to Dr. Bazar

In rebuttal the state presented the testimony of Dr.

Bazar, a psychiatrist, whoiu they had caused to examine

petitioner. Dr. Bazar concluded that petitioner was not

legally insane, and testified that while examining petitioner

on November 13, petitioner confessed to him (R. 165).*

Petitioner objected to testimony of the confession as hav-

ing been obtained in violation of the Constitution and

exacted by the same coercion which produced the earlier

confession. He made an offer of proof which was refused

(R. 164-165). The Court overruled him.

Thus attempts to introduce testimony concerning the

coercion of inculpatory statements and confessions were

rebuffed on four occasions, each time over a Federal Con-

stitutional objection. Neither the Court nor the jury heard

the testimony. The Supreme Court of Alabama sustained

the trial court’s actions as to the confessions and held that

defendant’s rights under the Federal Constitution were

not infringed (R. 191, 192, 193). It wrote that there was

‘‘nothing to show that the trial court’s action in admitting

them was manifestly wrong or that defendant’s rights

under the Federal Constitution were infringed’’ (R. 193).

‘Dr. Bazar states that he saw petitioner twice; on November

I3th at Kilby and on November 20th at the County Jail (R. 161).

He does not specify on which occasion the confession was made.

Petitioner, however, admits confessing at Kilby and denies making

any confession at the County Jail (R. 144).

IV. Motion for Mistrial Because Juror Chief of

Reserve Police Force

Shortly before the trial ended petitioner informed the

court that he had just discovered that one of the jurors,

Jack Page, was Chief of Police of the Reserve Police Foree

of Montgomery and had been active in this case. Peti.

tioner thereupon moved for a mistrial on the ground that

this juror had answered falsely on voir dire. Petitioner

further averred that the juror was Chief of the Montgom-

ery Reserve Police Force organized for the purpose of

tracking down ‘‘alleged Negro rapists’’ and night burglars,

and that he had been active in this ease (IR. 172-173), and

asked to call Page as a witness in support of this motion.

The state admitted that Page was a member of the Police

Force and had been working on cases, but denied that he

had worked on this case. The Selicitor stated:

**There was no question asked whether any mem-

ber of the panel was a member of the Reserve

Police Force. I am a member of the Naval Reserve

and that doesn’t enter into my qualifications. He

has been working on cases, but has not worked on or

had any connection with this case, and didn’t have

any opinion or bias in this ease’’ (R. 172),

The trial court denied a hearing on the matter and over-

ruled the objection on the ground that the jury had already

been qualified (R. 173). The Supreme Court of Alabama

sustained the trial court (R. 193).

The opinion of the Supreme Court of Alabama appears

at page 185 of the Record.®

* It should be noted that pursuant to Title 15, Code of Alabama,

§ 389 (1940), this Record contains no assignments of error, The

matters which petitioner raised in the Supreme Court of Alabama

were presented in his brief according to State practice.

tl ee

Summary of Argument

The introduction into evidence of petitioner’s ‘‘con-

fessions’’ and ‘‘inculpatory statements’’ denied due process

of law guaranteed by the Fourteenth Amendment because

they were obtained following sustained interrogation and

threats of electrocution while petitioner—a little-educated

mentally unstable Negro youth—was held incommunicado

at Kilby State Penitentiary from Monday afternoon

through Wednesday morning, near and frequently in the

very presence of the electric chair. The fact that the in-

culpatory statements to the prosecutrix, witness Clark and

Dr. Bazar were made at the nearby City Jail shortly fol-

lowing the coercion at Kilby does not absolve the State

of the consequences of the coercion at Kilby. There is a

presumption that petitioner remained under the influence

of the coercion; and this presumption was not dispelled

by the evidence which, indeed, indicates no significant

change in his situation,

Even if the confessions and inculpatory statements

made at the City Jail were not coerced as a matter of

law, petitioner was denied due process in that the con-

fession issue was not ‘‘fairly tried and reviewed.’’ Peti-

tioner was not permitted to testify before the jury con-

cerning the pattern of coercion which exacted the confession

at Kilby State Penitentiary, and concerning the confessions

made at the City Jail which followed the confession at

Kilby. Thus, the jury heard the confessions and the

State’s side of the story that they were voluntary, but

was denied relevant and important defense testimony con-

cerning how the confessions were coerced.

The Supreme Court of Alabama erred in holding that

even if the confessions were coerced this Court's opinion

in Stein v. New York, 346 U. S. 156 made reversal unneces-

sary, because there was evidence apart from confessions

ROSATO RE A ee

upon which the conviction could be sustained. But this

Court’s opinion in the Stein case was concerned with a

quite different problem: (1) In the Stein case the con.

fession was held not to have been coerced. (2) This Court

then went on to say that where a confession is not coerced

as a matter of law, an appellate court need not reverse

even though it is possible that the jury might have found

it coerced as a matter of fact and convicted defendant

nevertheless. (3) In the Stein ease defendant had been

permitted to put on evidence relevant to the issue of

coercion. Here petitioner was not permitted to do so.

(4) In the Stein case petitioner requested an instruction

for acquittal if the jury found the confession coerced.

That issue is not involved here. This Court would not

have upset its long standing rule that where a conviction

is tainted by a coerced confession the conviction must

fall, without saying so explicitly.

There was systematic exclusion of Negroes from juries

in Montgomery County, caused by a system of jury selee-

tion which relied wholly upon the jury commissioners’ per-

sonal acquaintanceship, when the commissioners knew few

Negroes. Thus, as one commissioner testified, it was “ par-

ticularly hard’’ for Negroes to become jurors. As a result,

although the Negro population of Montgomery County is

43.6%, no more than 3 Negroes or (a range of 0% to 8.5%

of any panel) ever appeared on any jury panel.

Arbitrary exclusion of all portions of the eeneral public

from the entire trial denied petitioner’s right to a public

trial as guaranteed by the due process clause of the United

States Constitution. The right to a public trial is recog-

nized uniformly throughout the English speaking world.

The only limitations upon it which are generally admitted

are those which contribute to the fair and orderly admin-

istration of justice. Thus, children and unruly persons

may be excluded, or the general public may be exeluded for

—

wv fie

nih

PERI EM EET LIE OE I Re MOR ee el yee RP a APD RE, SM ‘ . ‘ v

a limited time during, for example, the testimony of a

prosecutrix who cannot express herself before a large

audience. Cases upholding the exclusion of the entire pub-

lie from all phases of a criminal case, over a defendant’s

objection, have been found in but a few states. Such arbi-

trary exclusion is unrelated to the orderly and fair admin-

istration of justice, and even to the State’s avowed purpose

of protecting the morals of the public. If petitioner’s mo-

tion to limit the exclusion of the public only to the time of

prosecutrix’s testimony had been granted, petitioner’s

rights would have been protected. Certainly, the exclusion

of the public during the empanelling of the jury had no

reasonable relation to any permissible purpose and may

have seriously prejudiced petitioner, for without petition-

er’s knowledge—although the State knew of it—the Chief

of the Reserve Police Force of Montgomery County became

a member of the jury after having failed to disclose his

police affiliation on voir dire. Thus petitioner was tried

by a juror with an interest in his conviction. One of the

principal reasons for the public trial right is that it is

designed to prevent miscarriages of justice abetted by con-

cealment of this sort.

These were not merely individual fatal flaws in peti-

tioner’s trial, but considered cumulatively these errors

robbed petitioner’s trial of any semblance of the open

quality which characterizes judicial proceedings in the

United States and, indeed throughout the English speak-

ing world.

ARGUMENT

Due process of law guaranteed by the F ourteenth

Amendment was denied to petitioner—a little-edu-

cated, mentally unstable Negro youth—by introduction

into evidence of his “confessions” and “incul

statements” made following sustained interrogation,

punctuated by threats of electrocution, while he was

held incommunicado at the State Penitentiary from

Monday afternoon through Wednesday morning near

“ frequently in the very presence of the electric

chair.

The confessions * which were introduced into evidence

were coerced as a matter of law. There is no controversy

as to the facts because the issue arises upon proffers

(R. 55-56, 58-59, 74, 164-165, 139-141), which were rejected

as irrelevant by the trial court and as irrelevant and in-

sufficient in law by the Alabama Supreme Court. Nowhere

are the allegations denied by the State.’ Indeed, although

® There are involved inculpatory statements which amounted to

confessions (R. 59-60, 75, 190-191), a confession (R. 165-166) and

testimony that there had been a confession (R. 58, 64-65). For

brevity, petitioner refers to them as the confessions, except where

it is necessary to distinguish among them.

* There is some testimony of a general nature apparently intro-

duced to exculpate the State from a charge of coercion, but it does }

not amount to denying any of petitioner's allegations: There is testi-

mony by prosecutrix that she knew nothing of what occurred prior

to petitioner's statements at the City Jail (R. 57), that she saw no

one threaten petitioner there (R. 55, 57): by the Director of the

State Department of Toxicology and Criminal Investigation that no

one coerced petitioner between 2:30 and 3:00 P. M. on November

Iith (R. 92-93); by petitioner that the Solicitor told petitioner he

would help him (R. 143); by the Prison Classification Officer that

the Solicitor told petitoiner he could make him no promises and

would get him a lawyer if he didn’t hire one (R. 159) ; by Captain

J. Lewis Miller of the detective force of Montgomery that in his

presence no one coerced petitioner at the City Jail (R. 156).

. — pag "SR

SPREAD DORI PRION FNC TRUS HNO URERRRNCE O E

BLEED THROUGH ———*

testimony in support of the proffers was forbidden, there

is incidental corroboratory testimony in the record.*

Prior to the introduction of the confessions petitioner

in these proffers offered to prove the existence of many

facts each of which this Court frequently has held to be

relevant on the issue of coercion:

That he was a Negro,” seventeen years of age,'’ had an

eighth grade education,’ that he was held incommunicado

8 On cross-examination, S. E. Sellers, City Detective, testified

that he was at Kilby on November 10th and was with defendant for

twenty to forty minutes, that during this time Warden Dees was

present, that petitioner was in the room next to the electric chair, but

that he (Sellers) did not hear what was said (R. 99-100). Petition-

er's mother testified that she had not been permitted to see him until

Wednesday afternoon (R. 102-103). Petitioner's father testified

he had not been permitted to see him until Thursday (R. 116-117).

There was testimony by the Prison Classification Officer that peti-

tioner was held without a charge lodged against him (R. 160).

Before petitioner’s testimony was interrupted, he testified as to his

age (R. 135); that he had been threatened in a number of ways by

the officers who picked him up, including with the electric chair

(R. 137-138) ; that he was held incommunicado (R. 137); that on

Monday he was questioned till dark, went to sleep and was then

awakered and taken into the room with the electric chair (R. 138) ;

that Warden Dees threatened him with the chair if he did not con-

fess (R. 138). That he did not see his parents until 5:00 P. M.

Wednesday (R. 141); that he was frightened (R. 142).

* In ascertaining whether a confession is coerced, this Court gives

weight to the fact that defendant is a member of an unpopular racial

group. Chambers v. Florida, 309 U. S. 227, 237, 241; Ward v.

Texas, 316 U. S. 547, 555; Harris v. South Carolina, 338 U. S. 68,

70, as part of considering his “condition in life” Gallegos v. Nebraska,

342 U. S. 55, 67. See, Mr. Justice Jackson’s dissenting opinion in

Ashcraft v. Tennessee, 322 U. S. 143, 156, 173.

1” Whether defendant is mature or immature is important in

evaluating whether a confession has been coerced. Haley v. Ohio,

332 U. S. 596.

™ The degree of education which a defendant has had is an

important factor in evaluating whether a confession has been coerced.

Ward v. Texas, 316 U. S. 547, 555; Harris v. South Carolina, 338

U. S. 68, 70.

Ne ee ee

at Kilby from about 2:00 P. M. on Monday the

through 5:00 P. M. on Wednesday the 12th, that he was

denied permission to talk to or phone anyone, that friends

and relatives had been forbidden to see him or speak to

him,"? that he was continuously questioned and abused,"

was kept next to the room with the electric chair, that he

*® Holding petitioner incommunicado was not only in probable

violation of Alabama law, 15 Code of Ala. § 160 (1940), Ingram y.

State, 34 Ala. App. 597, 601, 42 So. 2d 30 (1949), but contrary to

the almost universal rule. See statutes collected in McNabb v. U. §,

318 U. S. 332, 342, fn. 7. Although there has been some controversy

over whether this alone should vitiate a confession it is at least a

serious factor to be weighed, because, “|tjo delay arraignment,

meanwhile holding the suspect incommunicado, facilitates and usually

accompanies use of ‘third degree’ methods. Therefore |this Court}

regard|s] suck occurrences as relevant circumstantial evidence in the

inquiry as to physical or psychological coercion.” Stein y. New

York, 346 U. S. 156, 187. See also Harris vy. South Carolina, 338

U. S. 68, 71; Turner v. Pennsylvania, 338 U. S. 62, 64; Ward v.

Texas, 316 U. S. 547, 555; Ashcraft v. Tennessee, 322 U. S. 143,

152; Malinski v. New York, 324 U. S. 401, 412, 417; Turner y.

Pennsylvania, 338 U. S. 62, 66, 67.

‘8 If petitioner had been able to develop this line of inquiry he

would have been able to show the nature and extent of the interroga-

tion. Questioning began after 2:00 P. M. on the afternoon of Mon-

day the 10th (R. 140) and continued until dark (R. 138) : petitioner

then slept for fifteen or twenty minutes and was awakened and taken

into the room with the electric chair (R. 140): he was questioned

there all night (R. 140) ; early Tuesday morning he was awakened

and he was then questioned all day Tuesday and part of Tuesday

night (R. 140). Later Tuesday night he slept. Wednesday morning

he was questioned again, until he confessed (R. 140). (Questioning

was of long duration, and was conducted and threats were made by a

series of officers (R. 74, 140, 164).

Continuous interrogation has been deemed an important factor in

evaluating whether a confession has been coerced, Chambers vy.

Florida, 309 U. S. 227, 231; Ward v. Texas, 316 U. S. 547, 555;

Ashcraft v. Tennessee, 322 U. S. 143, 154: Haley v. Ohio, 332 U. S.

596, 600; Turner v. Pennsylvania, 338 U. S. 62, 64.

Pig 1 LES ay

PRI LS

was taken into the electric chair room and threatened

with death in the electric chair" and was offered the

hope and promise that if he confessed he would save his

life from the chair ;'* that while held there he was stripped

naked and photographed, and had his spine tapped and

blood taken from his arm against his will." Further in-

quiry would have developed that petitioner was mentally

unstable (R. 105, 121-122, 124), and came from a poverty

stricken home (R. 107), and was therefore even more likely

to capitulate than the ordinary otherwise disadvantaged

seventeen year old Negro youth in his plight.

Almost every aspect of the treatment which petitioner

received at Kilby is found in the leading cases in this Court

condemning exaction of involuntary confessions. Virtually

each form of the pressure employed has been condemned

by this Court.'’ In combination, petitioner submits, they

formed an irresistible pattern.

Mute testimony that petitioner was subjected to illegal

coercion at Kilby is given by the State’s unwillingness

4 In Wilson v. Louisiana, 341 U. S. 901, aff'g 217 La. 470, 46

So. 2d 738, petitioner had been brought into the electric chair room

in the course of obtaining a confession from him. However, the

Louisiana Court noted that the electric chair was not visible and

that there was no evidence that it had the effect of intimidating peti-

tioner there. Cf. State v. Auguste, 50 La. Ann. 488, 23 So. 612 (1898)

(prisoner interrogated in presence of gallows, confession held

coerced ).

5 A lighter penalty is one of the inducements which was offered

in Leyra v Denno, —— U.S. ——, 98 L. ed. (Adv. 631, 633). As

Mr. Justice Minton wrote, at p. 645 (concerning the first confession

in Leyra): such “threats, cajoling, and promises of leniency * * * to

induce petitioner to confess were soundly condemned * * *”

16 The effect of similar treatment was noted in Malinski v. New

York, 324 U. S. 401, 403, 407. Also see Rochin v. California, 342

U.S, 165, 173, 174, 179.

1? Footnotes 9 through 16 cite only some of the cases in this

Court in which it has been held that confessions were coerced because

of practices such as those used here.

even to attempt to introduce a ‘‘confession’’ (R. 58, 64-65)

which was apparently made before he was removed to the

City Jail.

Transfer of petitioner from one jail to another on

Wednesday morning so that he might be identified by

prosecutrix clearly did not alleviate his condition. No

appreciable time had elapsed."* He was still in police

custody. He was still incommunicado.’” He labored under

the crushing burden of having already confessed.” He

was confronted by prosecutrix accusing him of a frightful

crime. His age, education and mental condition were no

different. It does not appear that any significant change

in circumstances occurred. Neither did any significant

change in circumstances occur prior to his confessing to

the psychiatrist,’ or to witness Clark? But even apart

from the factual showing that his situation was the same,

such a confession remains coerced as a matter of law

1® The time gap cannot be ascertained with precision, but it was

no more than a few hours. We know petitioner was questioned on

Wednesday morning at Kilby (R. 140), that the ride from Mont-

gomery to Kilby is about 15 minutes ( R. 140) : that prosecutrix went

out to the City Jail at 11:00 (R. 57).

* His parents were not permitted to see him until late Wednes-

day afternoon (R. 102-103, 116, 117, 141).

20 As Mr. Justice Jackson wrote in United States vy. Bayer, 331

U. S. 532, 540, once an accused has confessed, “no matter what the

inducement, he is never thereafter free of the psychological and prac-

tical disadvantages of having confessed.” In U. S. vy. Bayer, the

Court weighed a time lapse of six months and concluded that this

length of time in conjunction with only a modicum of restraint vitiated

a previous inducement to confess. See Mr. Justice Rutledge’s con-

curring opinion in Malinski v. New York, 324 U. S. 401, 420, 428;

Mr. Justice Murphy's dissenting opinion in L yons v. Oklahoma, 322

U. S. 596, 605, 606.

#1 A day had elapsed and he had seen his mother (R. 144, 102-

103).

*? Clark thinks he saw petitioner on the 17th (R. 75).

——————SS ae —

——EEO aaa

unless the State comes forward to overcome the presump-

tion created by the undisputed facts. Mr. Justice Minton

stated the general rule when he wrote:

**As in the case of other forms of coercion and

inducement, once a promise of leniency is made a

presumption arises that it continues to operate on

the mind of the accused. But a showing of a variety

of circumstances can overcome that presumption.

The length of time elapsing between the promise

and the confession, the apparent authority of the

person making the promise, whether the confession

is made to the same person who offered leniency,

and the explicitness and persuasiveness of the in-

ducement are among the many factors to be

weighed.’ Leyra v. Denno, U.S. , 98 L. ed.

(Adv. 631, 645, 647).**

The State produced nothing. The record shows that there

was no change in conditions that makes any legal differ-

ence.

Bezause of the introduction into evidence of these

coerced confessions, or any of them,** the judgment below

must fall.

23111 Wigmore $855, states: “* * * the general principle is

universally conceded that the subsequent ending of an improper in-

ducement must be shown; i. e. it is assumed to have continued until

the contrary is shown.” (Italics in original). See also Mr. Justice

Rutledge’s concurence in Malinski v. New York, 324 U. S. 401, 420,

428; Mr. Justice Murphy's dissenting opinion in Lyons v. Oklahoma,

322 U. S. 596, 605, 606.

*4 Stroble v. California, 343 U. S. 181, 190; Malinski v. New

York, 324 U. S. 401, 402, 404; Lyons v. Oklahoma, 322 U. S. 596,

597 note 1.

8 oe suiideh teerperianteleaaddene ae ee

ORL MO OB ON AEG BL OCEAN et a“ a

Even if the confessions were not coerced as a

matter of law, due process was denied in that the con.

fession issue was not “fairly tried and reviewed”: The

jury which heard the confessions was not Permitted to

hear the relevant and important testimony offered by

petitioner concerning their exaction.

In Point A, supra, petitioner demonstrated by undis-

puted facts that this conviction rests upon confessions

obtained contrary to due process of law. Petitioner sub-

mits in this section that error was compounded by the

trial court’s refusal to permit the jury to hear evidence of

how the confessions were exacted.

Following the State’s case, petitioner began to testify

concerning the pattern of coercion which commenced at

Kilby on Monday and continued through Wednesday morn-

ing when he confessed, just prior to being brought before

prosecutrix. The court stopped him before he completed

testifying about Monday. Thereupon petitioner made the

proffer which appears on page 11, supra,

The trial court refused to permit the jury to hear this

testimony on the ground that it did not concern events

in the City Jail (R. 138, 140, 141). On review the Supreme

Court of Alabama upheld the trial court. Therefore,

neither the trial court nor the jury nor the Supreme Court

fairly considered the pattern of coercion preceding the

confessions. Petitioner submits that by this procedure he

7° The Alabama Supreme Court considered State testimony con-

cerning events at Kilby on Tuesday the 11th (R. 192). It deemed

the events of the 11th relevant at least for purposes of the State’s

case, although defense testimony concerning the 11th had been ex-

cluded as irrelevant.

was denied his fundamental, constitutional right to have

the confession issue ‘‘fairly tried and reviewed.’’ **

The law has long recognized that prisoners may con-

fess for any one of or a combination of many complex

reasons. In some cases the psychology of the problem

may be clear; in others obscure. But, in any case, it is

fundamental ** * * * that confessions vary in value accord-

ing to the circumstances in which they are made.’ #7

The fundamental importance of the right to present evi-

dence to the jury on the issue of voluntariness is demon-

strated by the fact that in every American jurisdiction,

once the jury hears a confession the defendant is permitted

to put on testimony of circumstances surrounding its exae-

tion.” Most jurisdictions instruct the jury to reject a

26 Stein v. New York, 346 U.S. 156, 182. See also Mr. Justice

Burton’s dissent in Haley v. Ohio, 332 U. S. 596, 607, 615: “Due

process of law under the Four:centh Amendment requires that the

States use some fair means to determine the voluntary character of

a confession * * *”

The issue of the right to testify concerning the exaction of a con-

fession was raised in the Stein case, at pp. 173-175, but this Court

held that it was not properly presented. Petitioners alleged that as

a practical matter they had been prevented from presenting evidence

of coercion, because if they had testified on the confession issue they

would have opened themselves up to general cross-examination. The

State denied this. At any rate petitioners there did not take the

stand and then object to cross-examination when, in their opinion,

it exceeded the bounds of due process, and therefore the issue was

not before this Court.

In the case now at bar there was a flat refusal to permit petitioner

to testify concerning relevant and weighty facts bearing on the con-

fession.

27 11] Wigmore § 866.

*8 Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941); State v.

Smith, 62 Ariz. 145, 155, 155 BP. 2d 622 (1944); Nelson vy. State,

190 Ark. 1078, 1082, 83 S. W. 2d 539 (1935); People v. Fox, 25

Cal. 2d 330, 340, 153 P. 2d 729 (1944); Diaz v. People, 109 Colo.

482, 485-486, 126 P. 2d 498 (1942); State v. Willis, 71 Conn. 293,

314, 41 Atl. 820 (1898) ; Williams v. State, 156 Fla. 300, 303, 22 So.

2d 821 (1945); Bryant v. State, 191 Ga. 686, 711, 13 S. E. 2d 820

(1941) ; State v. Hofer, 238 la. 820, 829, 28 N. W. 2d 475 (1947);

confession which it finds to be coerced; some instruct it

to consider coercion in determining what weight to give

28 (Continued )

State v. Van Vilack, 57 Id. 316, 342-343, 65 P. 2d 736 (1937);

People v. Roach, 369 Il. 95, 96, 15 N. E. 2d 873 (1938); Mack y,

State, 203 Ind. 355, 373, 180 N. E. 279 (1932); State v. Taylor,

119 Kan. 260, 262, 237 Pac. 1053 (1925); Logan v. Common.

wealth, 308 Ky. 259, 262-263, 214 S. W. 2d 279 (1948); State

v. Wilson, 217 La. 470, 486, 46 So. 2d 738 (1950) affd. 34]

U. S. 901; Nicholson vy. State, 38 Md. 140, 155 (1873); Comm. y.

Sheppard, 313 Mass. 590, 604, 48 N. E. 2d 630 (1943) cert. den.

300 U. S. 213; State v. Grover, 96 Me. 363, 366, 52 A. 757

(1902); People v. Dudgeon, 229 Mich, 26, 30, 201 N. W. 355

(1924) ; State v. Schabert, 222 Minn. 261, 263, 24 N. W. 2d 846

(1946) ; Brooks v. State, 178 Miss. 575, 582, 173 So. 409 (1937) ;

State v. Gibilterra, 342 Mo. 577, 585, 116 S. W. 2d 8&8 (1938) ;

State v. Sherman, 35 Mont. 512, 519, 90 Pac. 981 (1907) ; Cramer

v. State, 145 Neb. 88, 97-98, 15 N. W. 2d 323 (1944); State y.

Cleveland, 6 N. J. 316, 326, 78 A. 2d 560, 23 A. L. R. 2d 907

(1951) ; State v. Vaise, 28 N. M. 414, 417, 213 Pac. 1038 (1923) ;

People v. Elmore, 277 N. Y. 397, 404, 14 N. E. 2d 451,124 A. LR.

465 (1938); State v. Kerns, 50 N. D. 927, 940, 198 N. W. 698

(1924) ; State v. Collett, 58 N. E. 2d 417, 424 (Ohio) (1944) : Smith

v. State, 77 Okla. Crim. 142, 146-147, 140 P. 2d 237 (1943) ;

State v. Jordan, 146 Ore. 504, 511, 30 P. 2d 751 (1934) ; Comm.

v. Van Horn, 188 Pa. 143, 168, 41 A. 469 (1898); State v. Wil-

liams, 31 Nev. 360, 371, 102 P. 974 (1909): State v. Adams,

— RI. , 121 Atl 418, 419 (1923); State v. Scott, 209

S. C. 61, 64-65, 67, 38 S. E. 2d 902 (1946): State v. Nicholas,

62 S. D. 511, 515, 253 N. W. 737 (1934): Wynn v. State, 181

Tenn. 325, 329, 181 S. W. 2d 332 (1943): Cavazos v. State,

143 Tex. Cr. 564, 566, 160 S. W. 2d 260 (1942); State v. Crank,

105 Utah 332, 355, 364, 142 P. 2d 178, 170 A. L. R. 542 (1943);

Jackson v. Commonwealth, 193 Va. 664, 674, 70 S. E. 2d 322

(1952); State v. Van Brunt, 22 Wash. 2d 103, 108. 154 P. 2d

606 (1944); State v. Richards, 101 W. Va. 136, 141, 132 S. F.

375 (1926) ; Pollack v. State, 215 Wisc. 200, 217, 253 N. W. 560

(1934) ; Clay v. State, 15 Wyo. 42, 59, 86 Pac. 17 (1906): Wilson

v. U. S., 162 U. S. 613, 624 (1896): Witt v. United States, 1%

F. 2d 285, 286 (C. A. 9th, 1952), cert. den. 344 U. S. 827: Murphy

v. United States, 285 F. 801, 808 (C. A. 7th, 1923), cert den.

261 U. S. 617; Catoe v. U. S., 131 F. 2d 16, 19, 76 App. D. C.

292 (1942).

the confession.*® But no jurisdiction has been found which

keeps from the jury the circumstances surrounding the

exaction of a confession which it has heard. Indeed, in

Alabama the rule is that if a confession is held not to have

been coerced as a matter of law, the trial court permits the

jury to hear evidence concerning its exaction so that it

may determine its eredibility.“”) This is the English rule

too." But by tightly drawing the circle of relevancy the

2% The states are classified in 170 A. L. R. 567.

8 Dyer v. State, 241 Ala. 679, 4 So, 2d 311 (1941); Vernon v.

State, 239 Ala. 593, 196 So. 96 (1940). The jury was so charged in

this case (R. 175), but, of course, it had been denied petitioner's

proffered evidence and so the instruction was meaningless.

31A recent case in the King’s Bench decided by Lord Chief

Justice Goddard, contains a particularly clear discussion of the im-

portance of the right to present evidence of involuntariness to the

jury:

“The recorder was wrong in the course which he took.

It was quite right for him to hear evidence in the absence of

the jury and to decide on the admissibility of the confession ;

and, since he could find nothing in the evidence to cause him

to think that the confession had been improperly obtained, to

admit it. But its weight and value were matters for the

jury, and in considering such matters they were entitled to

take into account the opinion which they had formed on the

way in which it had been obtained. Mr. Hooper was per-

fectly entitled to cross-examine the police again in the pres-

ence of the jury as to the circumstances in which the confes-

sion was obtained, and to try again to show that it had been

obtained by means of a promise or favour. If he could have

persuaded the jury that, he was entitled to say to them:

‘You ought to disregard the confession because its weight is

a matter for you.’

“The point, if there is any doubt about it, ought to be

finally settled. * * * It has always. as far as this court is

aware, been the right of counsel for the defence to cross-

examine again the witnesses who have already given evidence

in the absence of the jury; for if he can induce the jury to

think that the confession was obtained through some threat

trial court in this case barred the proffered testimony from

the jury.

This ruling was patently erroneous insofar as it denied

petitioner the right to testify concerning the confession—

about which prosecutrix had testified—(R. 58, 64-65) which

was made immediately following the coercion at Kilby,

And certainly reasonable men knowing all the facts,

could have concluded that the subsequent confessions were

coerced, even if arguendo, by moving petitioner to the

City Jail the State eseaped the consequences of coercion

at Kilby as a matter of law.* But the jury here was

prevented from knowing all the facts, and could not fairly

try the issue.

Depriving the jury of this testimony may not have only

influenced the issue of guilt, it may have meant the dif.

ference between the death penalty and a term of years

which the jury was free to impose.*4

31 (Continued )

or promise, its value will be enormously weakened. The

weight and value of the evidence are always for the jury.”

Rex v. Murray, 1 K. B. 391 (1951).

In Rex v. Murray the recorder also charged the jury that they

were not to consider the circumstances under which the confession

was obtained. But that does not make it unlike this case, for here,

although the jury received a charge on credibility it was not permit-

ted to hear the evidence.

82 See, the opinion of Mr. Justice Minton dissenting in Leyra y.

Denno, —— U. S. , 98 L. Ed. (Adv. 631, 645, 646): It is

“* * * the very essence of due process to submit to a jury the ques-

tion of whether these later confessions were tainted by the prior

coercion and promises, * * *”

See also, Lyons v. Oklahoma, 322 U. S. 596, 603: Evidence of

coercion, such as that offered by petitioner here must “{O]f course

* * * be considered in appraising the character of the later con-

fession.”

83Cf. U. S. ex rel. Almeida v. Baldi, 195 F. 2d 815, 819-820

(C. A. 3d, 1952).

Later SW EME

RpDHOR CORY

The jury heard the confessions and heard of them. It

heard some State’s evidence that they had been farily

obtained. But it was denied defendant’s proffered testi-

mony of an entire pattern of coercion bearing heavily on

their credibility. Those opinions in this Court, both

majority or dissenting, which have approved the admission

of confessions in particular eases have frequently stressed

that the matter was fairly tried and reviewed below be-

cause the triers had seen the witnesses and had heard

all of the evidence of both sides concerning exaction of the

confession. This record is bare of any semblance of such

fair procedure.

In another context Mr. Justice Jackson condemned ‘‘a

curtailment which keeps from the jury relevant and im-

portant facts bearing on the truthworthiness of crucial

testimony,’’ Gordon v. United States, 344 U. 8. 414, 423.

The curtailment here of testimony bearing on a constitu-

tional claim was of even greater gravity. For these reasons,

petitioner submits that the confession issue was not fairly

tried and reviewed, and that therefore the judgment below

must fall.

The Supreme Court of Alabama erred in holding

that even if the confessions were coerced, the deci-

sion in Stein v. New York, 346 U. S. 156 permitted

afirmance because there was sufficient evidence apart

from the confessions upon which the conviction could

have been based.

The Alabama Supreme Court concluded that even if the

confessions were coerced, there was no error because there

was cnough evidence to convict without the confessions.

In this it relied upon Stein v. New York, 346 U. S. 156.

It wrote:

——

‘*In considering all the evidence, * * * and the

finding of the Court, * * * that the statements were

voluntary, we cannot say that the admission of

these statements was reversible error. Moreover,

the admissions to the prosecutrix and the confession

to Dr. Bazar did not form the basis of a conviction,

The State had established the identity of this de.

fendant as the perpetrator of the crime by very con-

vincing proof ‘and the matter of confession was but

cumulative and approached what might properly be

termed supererogation * * *’ Johnson y. State, 242

Ala. 278, 5 So. 2d 632, cert. den. 316 U. S. 693, 713,

or as stated in Stein v. New York, supra. ‘Here the

evidence of guilt * * * is enough apart from the

confessions so that it could not be held constitution.

ally or legally insufficient to warrant the jury

verdict’ ’’ (R. 192).

In this, petitioner submits, the Alabama Supreme Court

misinterpreted Stein v. New York.**

In the Stein case the opinion for the court held that

the confessions were not coerced as a matter of law.” It

then proceeded to consider the possibility that despite

this legal conclusion, the jury, nevertheless, found the con-

fessions coerced as a matter of fact. This, of course, could

only be an assumption, for no one could know what the

jury, in finding a general verdict, thought of the confession

issue; or indeed, whether there was unanimity among the

jurors on this particular point. Proceeding on the asswmp-

34 Even if it were correct in its interpretation of the Stein case,

the judgment below must fall, for the case against petitioner consists

wholly of the confessions and prosecutrix’s identification of peti-

tioner which was the fruit of the confession. See p. 5, supra,

Compare Stein v. New York, 346 U. S. 156, 163, n. 6 where the iden-

tification was held to be fair.

8° Stein v. New York, 346 U. S. 156, especially pp. 179-188.

PHOR COPY

tion that the jury found the confession coerced, the Court

held that this assumed finding was not subject to review.

However this does not mean that the trial court’s and

the State Supreme Court’s ruling is not subject to review,

or that their error may be disregarded because other

evidence sufficient to convict is in the record.** Therefore,

the Stein case did not hold that the State may introduce

confessions coerced as a matter of law and sustain a con-

vietion upon other evidence.

This case differs from the Stein case in fundamental

respects. (1) Here, unlike in the Stein case, the con-

fessions were coerced as a matter of law. (2) In the Stein

ease, Where the jury heard evidence concerning the method

by which the confessions were obtained, the confession

issue was held to have been fairly tried and reviewed.

Petitioner there, despite his claim to the contrary, had

not been prevented from testifying concerning exaction

of the confessions. Here petitioner was so prevented and

the jury was denied such evidence. Thus, the confession

issue in the instant case was not fairly tried or reviewed.

Petitioner submits that the language in the Stein

opinion which contributed to the erroneous inference of

the Alabama Supreme Court was generated by the issues

raised in the Stein case relating to a requested instruction

for acquittal if the jury found that the confessions were

coerced. Petitioner respectfully suggests that close analy-

sis of the issues raised by the requested instruction will

indicate that the Court, in disposing of those issues, had

no intention of departing from the long-established rule

that a conviction tainted by a coerced confession must be

set aside.

A request for an instruction of acquittal automatically

called for an appraisal of all the evidence, for such an

% See, Note, The Supreme Court, 1952 Term, 67 Harv. L. Rev.

91, 120 (1953).

ES AOC ANTE TOE BOO NERA CT NEE ON ie IS EGAN NE Ak WR ean crams . oe i.

instruction could be complied with only if the evidence

apart from the confession was inadequate to sustain a con.

viction. The requested instruction therefore involved a

two-step operation: (1) an appraisal of the voluntariness

of the confession; (2) if it was found involuntary, an

appraisal of the rest of the evidence. When such other

evidence was weighed in the Stein case it appeared that

petitioners there could have suffered no prejudice by the

denial of their requested instruction, because there was

sufficient other evidence. That issue is not involved here,

Petitioner here does not demand a mandatory acquittal.

Petitioner here requests a new, fair trial.

Petitioner recognizes that the dissenting opinions in the

Stein case expressed serious doubts as to whether the

majority opinion effectively erased the rule that a coerced

confession requires a new trial. Petitioner suggests that

no such drastic intention can be attributed to the majority

where the opinion discloses no express overruling of the

unwavering line of cases whose rule has been reiterated

as recently as Brown y. Allen, 344 U. S. 443, 475." If

there were any doubt on this score, it must have been set

at rest by this Court’s application of the conventional rule

—since Stein—in Leyra vy. Denno, U.S. ——, 98 L. ed.

(Adv. 631) where this court, having found a confession to

have been coerced, summarily reversed the judgment below

without appraising the evidence other than the tainted

confession.

The rule which the Alabama Court employed would

wipe out an aceused’s protection against the introduction

of coerced confessions and has never been adopted by this

Court.

97 e.g. Malinski v. New York, 324 U. S. 401, 404: Stroble v. Cali-

fornia, 343 U. S. 181, 190, 191; Lyons v. Oklahoma, 322 U. S. 5%,

597 ; Haley v. Olio, 332 U. S. 5%, 599; Gallegos v. Nebraska, 342

U. S. 55, 63.

. . ee ae

PITT ALLL ILE IER LILIES ON ne ee SURO I PS wy

There was systematic exclusion of Negroes from

the venire in that the commissioners employed a selec-

tion method whereby it was “particularly hard” for

Negroes to become jurors if the commissioners did not

personally know them; commissioners knew fewer

Negroes than whites; and although the Negro popu-

lation of Montgomery County is 43.6%, panels con-

tained only 0% to 8.5% Negroes.

The state used a system of jury selection which had to

result in systematic exclusion of Negroes from juries, and

which, in fact, resulted in such exclusion contrary to the

Fourteenth Amendment of the United States Constitution

and Title 18 U. S. C. § 243.

The Alabama statute which sets the qualifications of

jurors requires, with a few exceptions, that jurors shall be

‘male citizens of the county who are generally reputed to

be honest and intelligent men and are esteemed in the

community for their integrity, good character and sound

judgment * * * ’’ (R. 33). It further directs that the com-

mission clerk who ‘‘is charged with the duty of seeing’’ that

the names of all qualified persons are placed in the jury

box, ‘‘scan the registration lists,** the lists returned to the

tax assessor, any city directories, telephone directories,

and any and every other source of information from which

he may obtain information * * * ’’ (30 Code of Ala. § 24

(1940)). However, the jury commissioners limited the

names in the box to persons whom they knew personally

(R, 28-29, 37) or to persons whose names they had obtained

from individuals or organizations with whom they were

personally acquainted (R. 28-29, 33, 37).

38 Petitioner made several efforts to ascertain whether the voting

list was employed, but this was ruled out as irrelevant (R. 31).

alee LEA EE AR COE EDL SIR OR i am ett

As Mr. Justice Reed pointed out in Cassell y. Texas,

339 U. 8. 282, 288, one might expect that in a community

like Montgomery the opportunity for white jury commis.

sioners to have personal acquaintanceship with Negroes js

limited. This was the case here and the commissioners so

testified. They knew few Negroes (R. 29, 37) and with

one vague exception did not know any Negro clubs or go

to them for names (R. 33, 36), although they obtained

names from almost every white ciub in the county (R, 33).

Although they testified that they made efforts to obtain

names of ‘‘high class’’ or ‘‘good’’ Negroes (R. 29, 36, 38)

their success does not appear to be much better (R. 29, 36,

37, 40, 42) than that discussed in Hill y. Texas, 316 U. §,

400, 402, or Cassell v. Texas, 339 U. S. 282, 288, fn. 23,

where avowedly diligent, but unsuccessful efforts to obtain

Negroes on a personal basis did not avoid condemnation by

this Court. Among the Negroes from whom they testified

they requested names (R. 29, 36, 37, 40, 42), the record

reveals only one clear instance of names having been fur-

nished (R. 29).

A commissioner testified that it was ‘ particularly hard”

to place Negroes’ names in the box ‘without knowing

them’’ (R. 29), and the composition of the panels reflects

this difficulty. No more than 842% of the members of any

panel were ever Negroes,*’ and this is an optimum, not a

** This figure is derived by assuming a panel of thirty-five per-

sons (R. 30), including three Negroes (R. 30). Since there are

panels with no Negroes (R. 35) and panels with fewer than three

(R. 30, 34-35), and since fifty jurors are called for each panel

(R. 30), although as few as thirty-five may show up, the figure of

8%% is an optimum one. (Jury Commissioner Carter’s explicit

testimony that he had never seen more than three Negroes on a

panel (R. 30) seems to rob of statistical significance his later casual

remark that there have sometimes been as many as 3 or 4 at one

time (R. 35). However, even assuming for purposes of argument

that there have ever been as many as four Negroes on a panel, this

can make but a negligible difference in the resultant arithmetic and

can make no difference whatsoever in the legal conclusions to be

drawn therefrom. )

typical situation, which construes ambiguities in favor of

the State. There have been panels with no Negroes (R. 35)

and panels with fewer than three (R. 30, 34-35). In this

case, a commissioner testified, there was one Negro on the

jury panel (R. 34-35). Compared with a Negro population

of 43.6% *° in the County, which presumably was as quali-

fed as the white population for jury service, Hill v. Texas,

316 U. S. 400, 404, the disparity is shocking. But given the

system of selection, it was inevitable.

Thus, the case falls under the ban of Cassell v. Texas,

supra, and Avery v. Georgia, 345 U.S. 559.

There were several opinions in the Cassell case and each

discusses factors relevant to this case and condemns the

practice or result which exists in this case. Mr. Justice

Reed’s opinion noted petitioner’s charge there ‘‘that dis-

crimination must have been practiced because the Negro

proportion of grand jurors (6.79%) is less than the Negro

proportion of the county’s population,’’ which was about

15.5%, Cassell v. Texas, supra at pages 284-285. However,

the disparity was perhaps explainable by the fact that a

grand juror in Texas must possess certain statutory quali-

fications: eligibility to vote (which requires poll tax pay-

ment); he must be a freeholder or householder; he must

be of sound mind and good character; he must be literate.

The poll tax requirement alone reduced the number of

eligible Negroes to 6.5%, ‘‘a percentage approximately the

ratio of Negroes actually sitting on the 21 grand jury

panels.’’ Id. at pages 285-286. Therefore, Mr. Justice Reed

concluded that ‘‘[w]ithout more it cannot be said that

Negroes had been left off grand jury panels to such a

degree as to establish a prima facie case of discrimination.’’

Id. at page 286.

*” Montgomery County has a total population of 138,965 of which

60,592, or 43.6% is Negro. 1950 Census of Population, Vol. II,

Characteristics of Population, Part 2, p. 2-87.

PES RN RRA PR AN PA NO asiiiondiendestenienenidimendins . ne a

In this case the disparity is more glaring (0%-8.5% on |

panels compared to 43.6% in population) and is not 0

plainable in terms of other factors. There is no Voting —

requirement; there is no property requirement; there jg

not even a literacy requirement (R. 46). The only require.

ment which explains the disparity is one imposed by the

commissioners themselves: a juror must be an acquaintance

of a commissioner or must be recommended by a person

or organization that the commissioner knows, where these

sources are almost exclusively white.

However, Mr. Justice Reed did condemn the Cassell

grand jury on grounds that are pertinent here. The system

of selection in the Cassell case was based on personal ae.

quaintanceship. The commissioners testified that they

knew no available qualified Negroes, which was substan-

tially the case here. Mr. Justice Reed therefore held:

“The statements of the jury commissioners that

they chose only whom they knew, and that they

knew no eligible Negroes in an area where Negroes

made up so large a proportion of the population,

prove the intentional exclusion that is discrimina-

tion in violation of petitioner’s constitutional

rights.’’ Id. at page 290.

Mr. Justice Frankfurter condemned the jury diserimi-

nation in the Cassell case on grounds equally pertinent

here. He did not disapprove of the method of selection

although he pointed out that ‘‘{a] different. situation

would be presented by an unquestioned showing that jury

commissioners had such a limited personal knowledge of

potentially qualified Negro jurors that their purposeful

limitation of choice to the negligibly few Negroes known to

them would inevitably imply designed exclusion of eligible

Negroes.”’ Jd. at pages 292-293.

However, he held where ‘‘one factor is uniform in a

continuing series of events that are brought to pass

FARES See EEE POC OES Ey CHEW) ne UT) eet ewe Ge bar

oa .

through human intervention, the law would have to have

the blindness of indifference rather than the blindness of

impartiality not to attribute the uniform factor to man’s

purpose’’, Id, at page 293. In the Cassell case, no more

than a single Negro on twenty-one consecutive panels was

such a uniform factor. Therefore, Mr. Justice Frank-

furter concluded, the decision below should be reversed.

Here, there is such a persistent limitation also. In fact,

the exclusion is more than twice as severe as that practiced

in the Cassell case *' with none of the possible justifications

which Mr. Justice Reed found there. Therefore, under Mr.

Justice Frankfurter’s opinion in the Cassell case, the judg-

ment here must also fall.

Mr. Justice Clark, in a concurring opinion in the Cassell

case condemned the method of selection in terms equally

applicable to this case:

‘The record indicates clearly that there were

Negroes qualified and available whom the commis-

sioners did not know but whom upon inquiry they

should have considered. Their responsibility was

to learn whether there were persons among the

Negroes they did not know who were qualified and

available for service. Hill v. Texas, 316 U. 8. 400;

Smith v. Texas, 311 U. 8. 128. The elimination of

this large group in the community from the commis-

sioners’ consideration deprived petitioner of consti-

tutional safeguards as defined in the decisions of this

Court.’”’ Jd. at page 298.

Avery vy. Georgia, 345 U. 8, 559 is further authority for

petitioner’s position. There, although there was no direct

*! Although the ratio of Negroes to whites in Montgomery is

almost three times as great as that in Cassell (43.6% : 15.56% ), the

proportion of Negroes on jury panels is almost the same (8.5% maxi-

mum: 6.7% ).

a ee

evidence that Negroes had not been selected for jury sery.

ice because of race, the system made exclusion possible by

employing different colored cards for white and colored

jurors. The late Chief Justice Vinson held the system yn.

constitutional because it facilitated discrimination and

because the commissioners did not follow a non-discrimina-

tory course of conduct:

The jury commissioners, and the other officials

responsible for the selection of this panel, were un.

der a constitutional duty to follow a procedure—a

course of conduct’’—which would not ‘‘eperete to

discriminate in the selection of jurors on racial

grounds.”’ Hill v. Texas, 316 U. S. 400, 404. If

they failed in that duty, then this conviction must

be reversed—no matter how strong the evidence of

petitioner’s guilt. That is the law established by

decisions of this Court spanning more than seventy

years of interpretation of the meaning of ‘equal

protection.’’

Petitioner's charge of discrimination in the jury

selection in this case springs from the Jury Com-

missioners’ use of white and yellow tickets. Obvi-

ously that practice makes it easier for those to dis-

criminate who are of a mind to discriminate. Fur-

ther, the practice has no authorization in the Georgia

statutes—which simply enjoin the Commissioners to

select ‘‘upright and intelligent men to serve as

pes © eo

The characteristies which condemned the system in the

Avery case also doom the system here. They make dis-

crimination easier. They require following a course of

conduct which operates to discriminate. They have no

authorization in the Alabama statutes. They cause exclu-

sion in fact.

When all this is coupled with the trial judge’s ruling

that petitioner could not examine the jury box to ascertain

the number of colored jurors and to test the general asser-

tions of non-discrimination by the commissioners,*? (R, 27-

28, 34) the conclusion that this is an illegal method is re-

enforeed. Such a combination—jurors chosen on the basis

of personal aequaintanceship, and denial of opportunity to

examine the jury box—provides the means sought by those

who would discriminate. In combination they would per-

mit cireumvention of more than seventy years’ holdings in

this Court. Avery v. Georgia made clear that this Court

would countenance no subterfuge or form of evasion where

this constitutional right is involved.

Therefore for the systematic exclusion of Negroes from

the jury the judgment below must also fall.

Arbitrary exclusion of the general public from all

phases of petitioner’s trial denied due process of law.

Petitioner submits that he was denied due process of

law in that the general publie was excluded from his trial.

Petitioner further submits that the ban included a time,

when, as subsequent events proved, the presence of the

public Was most necessary: during the voir dire when the

Chief of Police of the Montgomery Reserve Police Force

hecame a juror, after failing to disclose this aspect of his

oceupation, when the State knew of his police affiliation and

defendant did not (R. 173-177).

* The trial court was authorized to permit the jury rolls to be

used in evidence, State v. Miller, 204 Ala. 234, 236, 85 So. 700

(1920) and cases cited therein.

At the very outset of the proceedings below, over peti-

tioner’s constitutional objection, the court excluded the

public from the courtroom (R. 2, 10). Originally his rela.

tives (R. 14-15, 19), and the press (R. 3, 11) were excluded

along with the rest of the public; however, in response to

further objections (R. 15, 22) they were later admitted,

Losing on his objection to the exclusion of the general pub-

lie, petitioner moved that it be limited to the time when

prosecutrix testified (R. 15, 20). This too was denied

(R. 15). He appealed the permanent exe'sion from all

phases of the trial to the State Supreme Court on Federal

Con titutional grounds, but the appellate court upheld the

trial court without discussing the matter.**

The right to a public trial, explicitly set forth in the

Sixth Amendment and in corresponding provisions of

almost every state constitution ** is one of the most ancient

and deep rooted rights of an accused in our legal tradi-

tion.*® It has variously been attributed to immemorial

common law usage, historical accident, aversion to Star

Chamber proceedings, and reaction to the procedures of

the Inquisition,** but whatever its origin, the right is so

widely and uniformly recognized that it may fairly be

described as fundamental. Throughout the English speak-

#3 See note 2, supra.

#4 See note 47, infra.

*5 Re Oliver, 333 U. S. 257, 266-270.

** Note, 49 Col. L. Rev. 110, 111, 115 (1949). See also

Re Oliver, op. cit. supra n. 45 at pages 266-271.

PGR GRRE SPs BEE 2 RE WN IME 8 ND ER EEE Rie RE ODDEN . :

ing world it is not disputed that a trial must be public.*’

It is thus apparent that the right to a public trial is ‘‘im-

plicit in the concept of ordered liberty’? which is due

process of law, Palko v. Connecticut, 302 U. S. 319, 325.

Indeed, this Court expressed its own concurrence in the

47 The United States, forty-six states, and at least four mem-

bers of the British Coramonwealth recognize the right.

The United States, and forty-one states recognize it by constitu-

tion:

United States Constitution, Sixth Amendment.

Alabama Const. Art. I, §6; Arizona Const. Art. II, Section 24;

Arkansas Const. Art. II, Section 10; California Const. Art. I, Sec-

tion 13; Colorado Const. Art. Il, Section 16; Connecticut Const.

Art. I, §9; Delaware Const. Art. I, § 7; Florida Const., Declaration

of Rights, Section 11; Georgia Const. Art. I, § 2-105; Idaho Const.

Art. I, § 13; Illinois Const. Art. II, § 9; Indiana Const. Art. I, § 13;

lowa Const. Art. I, Section 10; Kansas Const., Bill of Rights, § 10;

Kentucky Const. Section 11; Louisiana Const. Article 1, §9; Maine

Const. Art. I, Section 6, Michigan Const. Art. II, §19; Minnesota

Const. Art. I, §6; Mississippi Const. Art. 3, §26; Missouri Const.

Art. I, §18(a); Montana Const. Art. III, §16; Nebraska Const.

Art. I, $11; New Jersey Const. Art. I, Par. 10; New Mexico Const.

Art. II, §14; North Carolina Const. Article I, §13; North Dakota

Const. Art. I, §13; Ohio Const. Art: I, $10; Oklahoma Const. Art.

II, §20; Oregon Const. Art. I, §11; Pennsylvania Const. Art. I,

§11; Rhode Island Const. Art. I, §10; South Carolina Const. Art. I,

§18; South Dakota Const. Art. VI, §7; Tennessee Const. Art. I, §9;

Texas Const. Art. I, $10; Utah Const. Art. I, $12; Vermont Const.,

Ch. I, Art. 10; Washington Const. Art. I, §22; West Virginia Const.

Art. III, §14; Wisconsin Const. Art. I, §7.

2 States recognize it by statute: Nev. Comp. Laws Ann. $10654

(1929) ; 29 McKinney’s Cons. Laws of New York, §4.

3 States recognize it inferentially by judicial decision. Dutton v.

State, 123 Md. 373, 386-388, 91 A. 417 (1914): Commonwealth v.

Blondin, 324 Mass. 564, 569, 87 N. E. 2d 455 (1949); State v.

Holm, 67 Wyo. 360, 394, 224 F. 2d 500 (1950).

England :

Scott v. Scott, [1913] A. C. 417, 435, 439; Mahlikilili Dahlamini

v. The King [1942] A. C. [P. C.] 583, 590.

nada :

McPherson v. McPherson |1936| A. C. 177, 1 D. L. R. 321.

Australia :

R v. Hamilton, [1930] 30 S. R. N. S. W. 277, 278; 47 N. S.

W. W. N. 84.

South Africa:

R v. Ladbrooke [1931] N. L. R. 475.

LC DALOLO A LL LEAL. AL BORG AIELLO SN AOE RII IE Ni el et Re ne hie oh ee

sanctity of the public trial as an aspect of due process jn

Re Oliver, 333 U. 8. 257, 273, where this Court noted “this

nation’s historic distrust of secret proceedings, their inher.

ent dangers to freedom, and the universal requirement of

our federal and state governments that criminal trials be

public * @ @)

But petitioner does not rest merely on this broad agser.

tion, for the metes and bounds of the public trial guarantee

have been defined more precisely by long and almost uni-

versal usage. Thus, there are judicial decisions which

recognize that the court may be cleared of unruly persons,"

and that when the courtroom is filled no additional persons

need be admitted.'" Minors may oceasionally be ex.

eluded.” There are jurisdictions which provide that the

court may be cleared during the testimony of a witness

such as a minor proseeutrix, who may be unable to testify

before a large audience *' or during the testimony of a

48 State v. Scruggs, 165 La. 842, 870, 116 So. 206 (1928) ; State

v. Genese, 102 NJL 134, 142, 130 Ath 642 (1925): Grimmett y.

State, 22 Tex. Cr. 36, 40-41, 2S. W. 631 (1886); Doyle v. Com-

monwealth, 100 Va. 808, 40 S. E. 925 (1902); Archbold’s Criminal

Pleading, Evidence & Practice 173-174 (31st Edn. 1943),

** State v. Saale, 308 Mo. 573, 580, 274 S. W. 393 (1923),

But there may be a duty to provide reasonable accommodations, see

State v. Hensley, 75 Ohio St. 255, 263, 79 N. E. 462 (1906). In

Canada it has been held that there is a duty to hold even civil pro-

ceedings in a place from which the public will not be deterred, albeit

it is not the intention of the court to exclude the public. McPherson

v. McPherson, |1936] A. C. 177, 1 D. L. R. 321.

5° See U. S. v. Kobli, 172 F. 2d 919, 923 (C. A. 3d, 1949);

State v. Osborne, 54 Ore. 289, 292, 103 BP. 62 (1909); Ky. Rev.

Stats. §455.130 (Baldwin's 1943 Rev. Ed.) ; Nevada Comp. Laws

1929, §8404; Wisc. Stats. $256.14 (1951); Minn. Stat. Ann. $631.04

(1947); Children and Young Persons Act (1933) (23 Geo. 5,

C. 12) $36.

5! Hogan v. State, 191 Ark. 437, 86S. W. 2d 931; Beauchamp

v. Cahill, 297 Ky. 505, 508, 180 S. W. 2d 423 (1944) ; State v. Calla-

han, 100 Minn. 63, 67, 110 N. W. 342 (1910); Gen. Stats. No. Car.

(Recompiled 1953) §15.166; State v. Damm, 62 S. D. 123, 130,

252 N. W. 7 (1933); Grimmett v. State, 2 S. W. 631. Archbold,

Criminal Pleading, Evidence & Practice 174, 991-992 (31st Ed.

1943) ; R v. Ladbrooke, [1931] N. L. R. 475, 476 (South Africa).

ee ey ee WAG ANE AAO ly SR BE

witness who fears he may be harmed.*? Probably, even

those jurisdictions which have been most outspoken in

defense of the right to a public trial would permit its limi-

tation in at least some of these circumstances.** But ex-

cept in the case of such limitea reasonable instances we

/ find that in the preponderant number of jurisdictions there

| are no examples of courts sanctioning exclusion of the pub-

jie from criminal proceedings.

In thirty-four states and three Federal Circuits (the

only Circuits to pass on the question) petitioner has found

no instances of exclusion of the public from criminal trials

except for a limited time and for ends related to the orderly

and far administration of justice,** examples of which

52 Commonwealth v. Principatti, 260 Pa. 587, 598, 104 Atl. 53

(1918). Cf. The King v. Governor of Lewes Prison, ex parte Doyle

| 2 K. B. 254, 272 (1917).

5% B. g., United States v. Kobli, supra, at pages 922-923.

54 The cases and statutes cited in this footnote indicate, so far as

petitioner has been able to find, the outer limits to which each of

these thirty-four jurisdictions has permitted or will permit exclusion

of the public from criminal trials :

United States v. Kobli, 172 F. 2d 919 (C. A. 3d, 1944) (Mann

Act, court cleared of all persons except jurors, witnesses, lawyers,

press, reversed); Tanksley v. United States, 145 F. 2d 58 (C. A.

Mh, 1944) (rape, court cleared except for parties, counsel, officers

of the law, press, relatives of defendant, reversed); Davis v. United

States, 247 F. 394 (C. A. 8th, 1917) (train robbery, court crowded,

tension ; court cleared except for defendants’ relatives, lawyers, press ;

reversed ).

Twenty-one of these states have decided cases or statutes bearing

on this point :

Ark.: Hogan v. State, 191 Ark. 437, 86 S. W. 2d 931 (1935)

(court cleared during testimony of embarrassed minor prosecutrix,

proper) ; Cal.: People v. Hartman, 103 Cal. 242, 37 P. 153 (1894)

(rape, all persons excluded during entire trial, reversed) ; Ky.: Beau-

champ v. Cahill, 297 Ky. 505, 180 S. W. 2d 423 (1944) (contributing

to delinquency of minor female, lawyer had right to be present at trial

of case related to one in which he is involved; court says it can

exclude public during testimony of chiid witness), Ky. Rev. Stat.

Baldwin 1943 Rev. Ed.) §455.130 (children can be excluded dur-

ing rape trial); Mich.: People v. Yeager, 113 Mich. 228, 71 N. W.

491 (1897) (assault with intent to rape, all persons excluded except

friends and relatives of defendant, reversed; statute permitting ex-

“nae a

54 (Continued )

clusion unconstitutional under State Constitution) ; Mich. Stat. Ann.

(1935) Sec. 27.465 (minors can be excluded during indecent testi-

mony); Minn.: State v. Callahan, 100 Minn. 63, 110 N. W. 342

(1910) (temporary exclusion during embarrassed prosecutrix's

testimony proper, but order clearing court throughout trial would

have been error); Minn. Stat. Ann. (1947) Sec. 631.04 (minors

may be excluded) ; Mo.: State v. Brooks, 92 Mo. 542, 5 S. W. 257

(1887) (unauthorized persons excluded public, trial judge ordered

public admitted; if he had refused to issue order, or refused te.

quest to reexamine jurors selected while public out, would have

been error); Mont.: State v. Keeler, 52 Mont. 205, 156 P. 1039

(1916) (rape, public excluded, except for court officers, lawyers,

doctors, reporters, during one day of trial, reversed) ; Neb.: Rhoades

v. State, 102 Neb. 750, 169 N. W. 433 (1918) (public excluded

during testimony of prosecutrix, reversed); Nev.: Nevada

Laws 1929 §8404 (minors may be excluded) ; N. J.: State v. Genese,

102 N. J. L. 134, 130 Atl. 642 (1925) (disorderly members of

public ejected, proper); N. C.: Gen. Stats. of North Carolina

(Recompiled 1953) Sec. 15.166 (in rape trials public may be ex-

cluded during testimony of prosecutrix); Ohio: State v. Hensley,

75 Ohio St. 255, 263, 79 N. E. 462 (1906) (rape, public excluded

during taking of “immoral” testimony, press remains, reversed);

Okla.: Neal v. State, 86 Okla. Cr. 283, 192 P. 2d 294 (1948)

(prostitution, public excluded, reversed); Ore.: State v. Osborne,

54 Ore. 289, 103 P. 62 (1909) (public excluded, reversed) ; Penna:

Commonwealth v. Principatti, 260 Pa. 587, 598, 104 Atl. 53 (1918)

(murder, exclusion during testimony of frightened witness would

have been proper) ; S. C.: State v. Adams, 100 S. C. 43, 84S. E.

368 (1915) (bastardy, exclusion of boys and Negroes (!) proper ) ;

S. D.: State v. Davim, 62 S. D. 123, 252 N. W. 7 (rape, public

excluded during testimony of embarrassed, frightened, minor prose-

cutrix, approved ) ; Tex.: Grimmett v. State, 22 Tex. Cr. 36,2 S. W.

631 (1886) (exclusion during testimony of embarrassed minor

prosecutrix, laughter in courtroom, proper); Utah: State v. Bonzo,

72 Utah 177, 269 P. 480 (1928) (rape, public excluded, statute

permitting this violates state constitution, reversed ) ; Wash. : State v.

Marsh, 126 Wash. 142, 217 P. 705 (1923) (contributing to delin-

quency of minor, public excluded, reversed); Wisc.: Wise. Stats.

§256.14 (1951) (minors may be excluded ).

Thirteen states—Conn., Del., Ill, Ind., Ia., Kan., Me., N. H,,

N. M., R. L, Tenn., Vt., W. Va.—have neither cases nor statutes

which substantially bear on the :neaning of the words “public trial”

in criminal cases. However, as to them one may properly assume

that absence of litigation indicates absence of exclusion in fact, for

all but one of these (New Hampshire) guarantee public trials, see

note 47, supra, and if exclusion were practiced it would present a

colorable issue which one might expect to be litigated at least once.

ror, cCnopry

ee ee. Se La epees en - aOR et —

were given above (see pp. 42-43, supra). Nor are these outer

limits on the power to exelude exceeded in England,”

Canada,” Australia ** and South Africa.**

Two states, included among the thirty-four above have

held that statutes which restrict the right to a public trial

are unconstitutional under their state constitutions.”

The situation in the remaining fourteen states is not

uniformly clear. However, in fact, only six states have

upheld an actual blanket exclusion of the public from all

phases of a trial over a defendant's objection.”

55 Archbold’s Criminal Pleading, Evidence & Practice (31st Edn.

1943), pages 173-174. (Trial must be in open court but in certain

classes of cases court may exclude women and young persons or

eject persons who disturb proceedings; while child testities in case

of offense against decency court may be cleared); & Halsbury's

Laws of England (2d edn.) 526-527; Scott vo Se a, [WIS] A. C.

417 (H. L.); Mahlikilili Dahlamini v. The King | 142) A. C. 583

[P. C.]; Daubney v. Cooper, 10 B & C 237, 240 (1829); The King

v. Governor of Lewes Prison, ex parte Doyle 2 K. WB. 254, 272

(1917); Collier v. Hicks, [1831] 2 B & Ad. 663, O68; Hearts of

Oak Assurance Co. Ltd. v. A. G. [1931] 2 Ch. 370, 385, 397.

8 McPherson v. McPherson, |1936] A. C. 177; R v. Neff,

[1947] 1 W. W. R. 640, 645, 88 Can. C. C. 199.

5t Rv. Hamilton, [1929] 30S. R. N.S. W. 277, 47 N.S. W.

W. N. 84.

* Rv. Ladbrooke, [1931] N. L. R. 475.

Michigan and Utah (People v. Yeager, supra, People v. Bonza,

supra.)

* Seven states have statutes permitting exclusion of the public

generally during all phases of some criminal trials: Code of Ala.

1940 Title 15 § 320, Ala. Const. of 1901 § 169; Georgia Code of 1933

§ 81-1006; Mass. G. L. (Ter. Ed.) ¢. 278, $16 (but only where

prosecutrix is under IN); Miss. Const. Art. 3, § 26; 29 McKinney's

Cons. Laws of N. Y. §4; N. Dak. Rev. Code of 1943 27-0102; Code

of Va. 1950, § 19-219; five states which have no statutes sanctioning

blanket exclusion have endorsed it by judicial decision; Keddington

v. State, 19 Ariz. 457, 172 1. 273 (1918); Benedict v. People, 23

Colo, 126, 46 P. 637 (1896); Robertson v. State, 64 Fla. 437, 60 So.

118 (1912); State v. Johnson, 26 Idaho 609, 144 P. 784 (1941);

Dutton v. State, 123 Md. 373, 91 Atl. 417 (1914).

AEE OAS ROCA AO EAT: I IE TN Ny Be . ——

Thus, courts in the English speaking world almost uni.

formly refrain from excluding the public from the trials of

criminal cases in any manner not related to the fair and |

orderly administration of justice. Indeed, petitioner pro-

posed that the exclusion in this case be limited to the time

of prosecutrix's testimony, an exclusion which might be

justified as reasonably necessary, but the courts below

ordered and upheld blanket exclusion of the general publie

in a manner that had no reasonable relation to this end,

Exclusion like that practiced in petitioner's trial has

been upheld in Alabama as necessary to ‘“‘restrict, in the

interest of public morality attendance at trials of a sala.

cious nature’’ Weaver vy, State, 33 Ala. App. 207, 210, 31

So. 2d 593 (1947). Respondents seek to justify the exclu.

sion in this case on these grounds,"' although they suggest

that an additional reason may have been to spare prose.

cutrix embarrassment. But even if one accepts the ques-

6° (Continued )

It should be noted that in these twelve states which appear to

have permitted blanket exclusion of the public, at least five have

upheld such exclusion only in cases where it was particularly

noted that defendants did not object to the exclusion. Dutton

Vv. State, supra; Keddington vy. State, supra, at p. 462; Benedict

v. People, supra, at p. 129; State v. Nyhus, 19 N. D. 326, 329, 124

N. W. 71 (1909); Hampton v. Commonwealth, 190 Va. 531, 58

S. E. 2d 288 (1950) ; (in this case it does not appear that objection

was made, or that the exclusion order was assigned as error on ap-

peal) ; in another of the twelve the challenged exclusion was in fact

temporary, during the testimony of a frightened prosecutrix, Moore

v. State, 151 Ga. 648, 651, 108 S. E. 47 (1921).

Two states have affirmed judgment following trials in which

there were exclusion orders, but have noted in these cases, that there

was no appreciable exclusion in fact. State v. Croak, 167 La. 92,

95, 118 So, 703 (1928) (those who asked to be admitted were ad-

mitted); State v. Holm, 67 Wyo. 360, 394, 224 P. 2d 500 (1950)

(fair sized portion public present ).

*! Brief of Respondents in Opposition to Petition for Writ of Cer-

tiorari, p. 10,

re ENG ONT PEP

tionable proposition ** that courts may act as censors of

public morals during the conduct of criminal cases, there

was no need to exelude the public during all of the pro-

ceedings below. Most assurredly, for whatever end, there

was no justification for excluding the public prior to the

taking of testimony and during the empanelling of the jury.

In fact, the record shows that depriving petitioner of

this valuable safeguard prior to the empanelling of the

jury may have well contributed to the empanelling o”

juror Page, the Chief of Police of the Montgomery Reserv

Police Force (R. 172-173). If the public had been present

during this time it may be doubted whether Page would

have failed to disclose his connection with the police force

when questioned on the voir dire. At any rate, some

member of the public might well have informed petitioner

that Page was Chief of the Reserve Police and had been

working on this case or—as even the State concedes—on

cases of ‘‘alleged Negro rapists’’, One classic justification

for the public trial guarantee is that it affords defendants

the opportunity to receive relevant information from mem-

bers of the public present at the trial, Tanksley v. United

States, 145 F. 2d 58, 59 (C. A. 9th, 1944).**

*2 See, Note 35 Cornell L. Q., 395, 399 (1949).

*§ Of course, the right to have the public present during the

selection of the jury is subsumed under the right to a public trial.

United States v. Sorrentino, 175 V. 2d 721 (C. A. 3d, 1949); See

State v. Brooks, 92 Mo. 542, 573, 5 S. W. 257 (1887).

“* Page was under no duty to serve. As a police officer on active

duty, he could have requested and have been granted an excuse.

Pierson Vv, State, 99 Ala. 148, 150, 13 So. 550 (1891).

* Other reasons for the presence of the public is that “[t]he

knowledge that every criminal trial is subject to contemporaneous

review in the forum of public opinion is an effective restraint on pos-

sible abuse of judicial power”; and that (fn. 24) “|t}he spectators

learn about their government and acquire confidence in their judicial

remedies” Ke Oliver, supra, at p. 270.

lesen

ERY TOM OTRAS ~. i a a ee et WSS rer ew lee

COLE MOP APE OE A Pathe a eee ee “ nw <- a

Armed with accurate information concerning Page, it

appears that petitioner could have successfuly challenged

him for cause. Shapiro v. City of Birmingham, 30 Ala.

App. 563, 565, 10 So. 2d 38 (1942). Certainly, having the

information he would have and could have at least chal.

lenged Page peremptorily (R. 172) Leach v. State, 245 Ala.

539, 540, 18 So. 2d 289 (1944). Instead, unchallenged,

Page sat in judgment on the same defendant whom, there

was an offer to prove, he had helped tracked down and

arrest (R. 172-173). He sat in judgment on the testimony

and conduct of a half dozen or more of his fellow police

officers, officials and detectives (R. 89, 96, 97, 99, 155, 157,

158). His commitment to the prosecution was that of the

Mayor judge in Tumey v. Ohio, 273 U. S. O10, who was

barred by the Fourteenth Amendment from judging de.

fendants for whose prosecution as a member of the Exeeu-

tive he was ultimately responsible. As Mr. Chief Justice

Taft held in that case:

**A situation in which an official perforce occupies

two practically and seriously inconsistent positions,

one partisan and the other judicial, involves a lack

of due process of law in the trial of defendants

charged with crimes before him.”’ Tumey v. Ohio,

273 U. S. 510, 534.

The State Supreme Court (R. 193) and the trial court

(R. 173) held that the motion for a mistrial on the ground

that Page was Chief of Police was properly denied because

it came too late. However, lack of diligence does not appear

to have been the cause of the delay: Petitioner made the

motion as soon as he obtained the information (R. 172).

Petitioner asked a question as to occupation on theroir dire

(R. 172), and Page did not disclose his police affiliation

(R. 172). Moreover, the Solicitor knew that Page was on

active duty with the police (R. 172) and as a (quasi-judicial

_—

officer was bound to disclose it.” But, the Solicitor who

believed that Page’s connection with the police reserve was

no more relevant than his own with the naval reserve,

said nothing. Thus Page was empanelled as a member of

the jury while the publie was excluded from the courtroom.

It was not until almost the end of the trial that petitioner

learned the true facts at which time he brought them to

the attention of the court and unsuceessfully moved for

a mistrial (R. 172). Petitioner, therefore, was tried by

a juror who had an interest in his conviction which was

concealed by the juror and by the State and of which

petitioner, in the absence of the public, remained ignorant

until such time as he was effeetively blocked from making

objection.

The fact that the publie was arbitrarily barred from all

phases of petitioner's trial requires reversal of the judg-

ment below. The presence of the Chief of the Reserve

Police Foree on the jury emphasizes that the denial of this

constitutional right may always be a grave matter. For

this reason too, petitioner submits the judgement below

must fall.

Conclusion

Petitioner has set forth in his argument a number of

reasons why the judgment below should be reversed by

this Court: The introduction into evidence of coerced con-

fessions, denial of an opportunity to present to the jury

the method by which these confessions were exacted, erro-

neous reliance upon Stein v. New York; systematic execlu-

sion of Negroes from the jyry; exclusion of the publie from

all phases of the trial.

“Cf. Mooney vy. Hollohan, 204 U.S. 103, 114-115; Berger v.

United States, 295 U. S. 78, 88; Jones v. State, 23 Ma. App. 493,

127 So, O81, GR2.

eer"

As in all cases where a number of errors oceur these

could not but have a cumulative effect. However, the

nature of these errors was such that in combination they

acted powerfully to rob the proceedings below of the essen-

tial open quality which characterizes criminal proceedj

in the United States, and indeed throughout the English

speaking world. Thus, the conviction was based upon

coerced statements obtained in camera; the method whereby

the confessions were exacted was concealed from the jury;

the jury itself which should have been drawn from a Cross-

section of the community was restricted in membership

almost entirely to members of the dominant racial group

in the community—indeed on it sat the Chief of the Reserve

Police Force of Montgomery County; the general public

was barred from all phases ot the trial. The proceedings

were closed, not open, in at least five vital respects.

Therefore, because of the denial of each of the consti-

tutional rights complained of in this brief and because of

their cumulative effect petitioner submits that the Judgment

below should be reversed.

Respectfully submitted,

Tuurcoop Marsuann,

Rosert L. Carrer,

Jack GREENBERG,

Counsel for Petitioner.

Etwoop H. Cutsoim,

Perer A. Hau,

Davin E. Prysxy,

Louis H. Potiak,

of Counsel.

_ i? >

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