Appendix — Tollett v. Henderson
Supreme Court brief1973
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In the United States District Court
Middle District of Tennessee
Nashville Division
lie Lee Henderson, )
„
* .
1 Civil Action No. 5996
0 s S. Tollett, Warden,
hy Mountain State Prison
4
5 IN FEDERAL COURTS
a 12-29-70: Clerk to file Petition in
Orma pauperis; . Respondent to Show. Cause. ..
tion for Writ of Habeas Corpus 12-29-70....
pondent's Notice of Filing Documents;
locuments 1 through 7 — 1-18-71
i ndent's Motion to Dismiss 1-18-71
pr 2-3-71: Respondent's Motion to
ismiss, denied; Writ of Habeas Corpus
o lesue 3 ///
r 4-12-71: Indictment 2 all pro-
0 dings based thereupon are void and
E no legal effect; incarceration repugnant
v. 8. Constitution
© of Appeal 430711
10 n, United States Court of Appeals
the Sixth Circuit, Henderson v. Tollett,
OF. 2d 237: 4-20-72
United States Supreme Court, granting
etiorari, eta, 10-16-72 ............ peek
.
PROCEEDINGS IN STATE COURTS IN
EARLIER HABEAS CORPUS CASE
1. pere, e
County, January 5, 1948 (Grand and
Petit Jury venire) and February 13,
1948 (Indictment of Henderson)
Exhibit 1: Minute entry, Criminal
Court of Davidson County, March 12,
1948 (Guilty plea of Henderson)
Exhibit 3: Affidavit of Director of
Exhibit 4: Minute entry, Criminal
Court of Davidson County,
May 4, 193ù22338 „
Exhibit 5: kala ty Whom ic May
‘Concern, dated October 22, 1968
Opinion, Tennessee Court᷑ of Criminal
Appeals, State ex rel. Henderson v.
Russell, 459 S.W.2d 176 (Tenn. Cr.
8
*
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972
NO. 72-95
LEWIS S. TOLLETT, WARDEN,
Petitioner,
*
v.
WILLIE LEE HENDERSON,
Respondent.
5 ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
_ PETITION FOR CERTIORARI FILED JULY 17, 1972
2
.
n 5 1
CERTIORARI GRANTED OCTOBER 16, 1972
In The ;
UNITED STATES DISTRICT COURT
For the Middle District of Tennessee
Nashville Division
Civil Action No. 5096
WILLIE LEE HENDERSON
v.
LEWIS 8. Tol L Tr, Warden
Brushy Mountain State Prison
RELEVANT DOCKET ENTRIES
December 29, 1970 Order Entered: Clerk to file
petition of Willie Lee Henderson in forma pauperis; Re-
spondent to Show Cause.
December 29, 1970 * Filed: Petition for Writ of
Habeas Corpus, with Exhibits.
January 18, 1971 Filed: Respondent's Notice
of Filing Documents, with Documents #1 through 7.
January 18, 1971 Filed: Respondent's Motion
to Dismiss; Memorandum of Points and Authorities in
Support of Motion, c/s.
February 3, 1971 Order Entered: Respondent's
Motion to Dismiss is Denied; Writ of Habeas Corpus to
issue returnable March 2, 1971, 2:00 p. m. Attested
copy to R. Jackson Rose, Asst. Atty. Gen., State of
Tenn. and to Petitioner Henderson, 1 Mtn. State
Prison, Petros.
A. 2
A.3
Relevant Docket Entries
April 12, 1971 Order Entered: Indictment
and all proceedings based thereupon are void and of no
legal effect; incarceration repugnant to U. S. Constitu-
tion; Petitioner released from custody of respondent.
Two att. copies delivered to U. S. Marshal for service
upon Warden, Brushy Mountain Prison; att. copies mailed
to Petitioner and to R. Jackson Rose, Esquire.
April 30, 1971 Filed: Notice of Appeal filed
on behalf of Respondent, c/s.
A.4
IN THE UNITED STATES DISTRICT COURT .
FOR THE MIDDLE DISTRICT OF TENNESSEE
- NASHVILLE DIVISION
{fol. 1]
WILLIE LEE HENDERSON
VS. » Civil No. 5996
LEWIS S. TOLLETT, Warden,
Brushy Mountain State Prison
ORDER
(Received for Entry 3:00 P.M.,.December 29, 1970)
The clerk will file the petition of Willie Lee Henderson
for writ of habeas corpus in forma pauperis.
Petitioner alleges that he is presently incarcerated in
the Brushy Mountain Prison at Petros, Tennessee, where
he is serving a sentence of ninety-nine years, imposed
in 1948 following his plea of guilty to a charge of first
degree murder in Davidson County, Tennessee. He con-
tends that said confinement is illegal, and he bases his
___ contention upon several grounds.
(1) Petitioner asserts that, following his arrest on
Jamary 23, 1948, he was forced to sign a statement ad-
mitting his guilt by being whipped” by the police in the
absence of counsel. (2) He asserts that he was afforded
no counsel at his preliminary hearing. (3) He asserts
that on March 12, 1948—the date upon which his sentence
was imposed, but several days before his trial was sched-
uled — he was taken from the county jail in which he was
then confined to the office of the prosecuting attorney,
where, in the absence of his retained counsel, he was
A.5
U. 8. District Court Order, 12-9-70
{fol. 2] "induced" to enter a plea of guilty by being
threatened with the elctric chair. And (4) he
asserts that he was indicted by a grand jury from which
members of petitioner's race (Negro) were systematically
excluded.
With regard to the first three of the above-stated
grounds, petitioner does not assert, nor does his petition
otherwise indicate, that he has at any time raised them
in state court proceedings and pursued them to exhaustion
therein. Since, in the absence of circumstances not
present in the case at bar, an affirmative showing of such
exhaustion of state remedies is required by 28 U.S.C.
$2254 before federal habeas corpus relief will lie, this
Court cannot consider the first three of petitioner's grounds
for relief until such a showing is made, either by amend-
ment or in a new petition. Petitioner's fourth ground,
‘however —that of systematic exclusion of Negroes from
‘the grand jury which indicted him —presents a different
situation.
u appears that petitioner first raised this ground in
the courts of Tennessee by means of a petition for habeas
corpus.’ The trial court denied the petition without a
hearing, and petitioner appealed. Ultimately, the Su-
preme Court of Tennessee, in an unpublished opinion filed
November 3, 1967, in the case of Willie Lee Henderson
Fe. Murray Henderson, remanded the case and ordered
that an evidentiary hearing be held. A hearing was held,
dd, as stated by Judge Oliver, lu pon the evidence in-
foduced at that hearing there can be no doubt whatever
_ ‘als statement, as well as the following brief summary of the state pro-
‘@edings in which petitioner has been involved, is based upon Judge Oliver's
menting opinion in the case of Henderson v. Russell, filed July 6, 1970,
we Tennessee Court of Criminal Appeals,
ws
A. 6
U. S. District Court Order, 12-9-70
ffol. 3] chat Negroes were deliberately and systemati-
cally excluded from the Grand Jury which re-
turned the indictment against this petitioner." Neverthe-
less, in the face of such evidence, the trial court again
dismissed the petition. On appeal, the Tennessee Court
of Criminal Appeals, in an opinion by Judge Walker, af-
firmed the decision of the trial court on the ground that
petitioner had waived his right to challenge the composi-
tion of the grand jury which indicted him. State of Ten-
nessee, ex rel. Willie Lee Henderson v. Lake F. Russell
(july 6, 1970). The court was divided, however, with
Judge Oliver dissenting (as indicated above) and Judge
Galbreath concurring. Though Judge Galbreath stated
that he concurred completely with Judge Walker's opin-
ion," because t he law that failure to make an objec-
tion to the racial composition of a Grand Jury is waived
unless raised by an appropriate pretrial motion is too
well settled for this Court to disturb," he went on to
state that I recognize the irrationality of the law as it
applies to ancient cases of this type. No lawyer in this
State would have ever thought of objecting to the fact that
Negroes did not serve on the Grand Jury in Tennessee in
1948, just as scarcely anyone objected to the complete
segregation of all public and private facilities of any kind
in the State until the next decade. He concluded that
. . the law is as set forth in Judge Walker's opinion;
and it must be changed, if ever it is (and I personally be
lieve it will be soon or late), by an authority higher than
this Court."
Petitioner next sought a writ of certiorari from the Su-
preme Court of Tennessee. The Supreme Court denied
the petition on September 8, 1970, and, in effect, affirmed
the decision of the Tennessee Court of Criminal Appeals.
A.7
U. S. District Court Order, 12-9-70
{fol. 4] It is thus clear that petitioner has, indeed, com-
plied with the exhaustion requirement of 28
U.S.C. §2254.
This court is of the opinion that the allegations of the
instant petition raise constitutional issues of importance.
However, more information is of course required before
this court can grant or withhold relief. Accordingly, it
is hereby ORDERED that respondent, .within twenty (20)
days from the entry hereof, show cause why the writ
Should not issue. It is Suggested that a copy of the opin-
ton of the Supreme Court of Tennessee rendered in the
case of Willie Lee Henderson v. C. Murray Henderson
filed November 3, 1967) and a copy of the transcript of
the evidentiary hearing which was held as a result of that
opinion be submitted to this court along with the response.
/s/ Frank Gray, Jr.
UNITED STATES DISTRICT JUDGE
A. 8
[fol. 1]
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE, TENNESSEE
Willie Lee Henderson, )
Petitioner
V.
Lewis Tollett, Warden
Tennessee State Penitentiary
Petros, Tennessee,
Respondent . |
PETITION FOR A WRIT OF HABEAS CORPUS
(Filed December 29, 1970)
The Petitioner petitions this Court for the issuance of
a Writ of Habeas Corpus pursuant to Title 20, U. S. C.,
section 2241:
MAY IT PLEASE THE OOURT:
; “ ‘
Comes now the Petitioner, Willie Lee Henderson is
filing the Petition for a Writ of Habeas Corpus, seeking
his release from the Tennessee State Penitentiary, where
he is confined under a sentence of 99 years on a convic-
tion of the crime of First Degree Murder, he alleged that
his conviction and sentence are void because he was de-
prived of his right by the City Police Department. With-
out anyone to advise him of his right to remain silent.
It is in violation of both the Tennessee and United States
Constitution, that stands in direct conflict with Article
XIV, section 2, and Article VI of the United States Con-
stitution Amendment, placing the Petitioner in involuntary
, Civil No. 5996
A.9
7.
U. S. District Court Petition for Habeas Corpus
The Petitioner is ignorant of law, and denied access to
legal Books of Law, and is destitute, so he therefore begs
the Court tolerance to his ignorance, and conditions, and
prays it will not bar him the equal and just consideration
et this Court. He presents herein in the only and best
manner he knows, the issues that traverse democratic
principles, and he prays Judgment of these issues, and
that the insufficient culmination of a layman's knowledge
of law, or form, will not stay that Judgment.
Petitioner has exhausted state remidies by first going
through the Lower State Courts, appealing to the Court
of Appeals and last filed a Petition for a Writ of Certiorari
to the Tennessee State Supreme Court, which was denied
September 8, 1970. EXHIBITS ON BACK OF THIS PETI-
TION.
STATEMENT OF THE CASE
| The Petitioner avers that on or about January 23, 1948,
he was under arrest by City Detectives in the commission
al a robbery and he was forced to signed statement, that
he admitted the crime by being whipped by detectives and
members of the City Police Department without having any
“Counsel to advise him of his right to ermain silent at the
‘Police Department. How on the 26 day of January 1948,
‘Petitioner was bound over to the Davidson County Criminal
‘Court on a charge of assualt and battery with the intent to
‘Tob the said William H. Cotter, who was shot during the
Tr and was not taken to a hospital until about 3;45
“A.M. that Friday morning after being shot at a south Nash-
ile whiskey store at 6:30 P.M. on the Thursday night of
mary 22, 1948, and he died 21 days after being shot.
he death certificate clearly states that the cause of death
.
A. 10
U. S. District Court Petition for Habeas Corpus
The Petitioner further avers that he did not have any
counselor at his preliminary hearing.
The Petitioner avers that on or about February 12, 1948
he was indicted along with John.Thomas Shaw and Robert
James Dobson by the Davidson County Grand Jury for
murder in the first degree.
Lol. 2} be Petitioner further avers that he was
indicted by a Grand Jury that did not have any
Negroes onit. Also on March 12, 1948 Petitioner was
forced to go on trial, Division One of Davidson County
Criminal Court and placed before a Jury. Said Judge
Chester K. Hart, presiding, and was sentenced to said
confinement in the Tennessee State Penitentiary without
any negro serviceing on the jury at the time of his trial.
This were done without any Counsel being present to the
case the introduction of evidence to establish the violation
of Petitioner's right of counsel and not having negros on the
jury, will explain facts is not in the record of his criminal
court case no. 16323, it thus supplements, but does not
contradict said record, and the: introduction and considera-
tion of such evidence is, thetefore proper.
The record in Petitioner's murder case no. 16323, con-
sists of the Presentment returned February 12, 1948, and
the Minutes of Davidson County Criminal Court, Division
One, for March 12, 1948, there is no reference in the
record to indicate whether or not Petitioner was repre -
sented by counsel at any stage of the criminal proceedings,
nor is there any affirmation showing of a waiver by Peti-
tioner of his right to counsel.
1 ALLEGEMENT | ,
Petitioner were suppose to be tried separate from the
said two co-defendants, because he had not pleaded guilt
A. ll
U. S. District Court Petition for Habeas Corpus
to said charge of murder in the first degree, as the said
two co-defendants had. Therefore, his trial date was
set for March 16, 1948, but on March 12, 1948, the trial
date for the other two co-defendants, the Petitioner was
taken from the county jail with said defendants to the
prosecuting attorney's office by induced him to change
dis plea from not guilty to guilty by threatening to have
him sent to the Electric Chair if he did not do so, and
that this was in the absence of any attorney, representing
Petitioner.
Since the Petitioner was threatened and induced in to
pleading guilty in the absence of his paid attorney Tom Ed.
Murry he believes the Court should have, or allowed him
do contacted with a counsel before putting the Petitioner
on trial before his scheduled trial date, by the court doing
neither of the afore said this deprived the Petitioner of
dis constitutional right.
_ The legal principle is well settled that, the right to be
represented by counsel is a fundamental right, going to
_ the very basis of the administration of the criminal law,
and places on the trial Judge the onus to inform the defend -
ant of his rights amounts to a denial of the right. ---- The
failure of the court to so inform him or to appoint a counsel
for him, was fundamental error, stated in the Tennessee
State Supreme Court acknowledge this rule to be the law
in the case of Lynch vs. State, Ex rel.; Killebrew, 179
Tennessee 339, 166 8. W. 2d 397 (1941) in 39 C. T. S.
Habe as Corpus, section 18; it clearly states, that the
“Temedy of habeas corpus will lie to attack a conviction
based on an unconstitutional or invalid statute. Stated
in Com. vs. Smith, 11 A. 2d 656, 139 Pa. Super 357
(1940); Com. vs. Richards, 111 Pa. Super 124, quoted
by Keller, Jg.. On or about March 26, 1964, the New
ee
A. 12
U. S. District Court Petition for Habeas Corpus
York U.S. Court of Appeals, issued a 6-2 ruling that
widened the application of last years U. S. Supreme Court
ruling requiring that a lawyer be provided for indigent
persons charged with serious crime, even if they plead
guilty.
In the case of Marbury vs. Madison, 1 Cranch 137,
(1803) in the Supreme Court of the United States, Chief
Justice Marshall wrote the opinion of the court saying,
in part, -- "A law repugnant to the constitution is void
. , it is emphatically, to say what the law is.
Composed solely of white persons with the . bels
to further deprive the Petitioner of the equal protection
and due process of the law; the Petitioner offers the
following: Congress has expressly forbidden the exclusion
of a citizen from service as a Grand or Petit Juror in any
state court, on grounds of race or color."
In the case of Patton vs. Mississippi, 332 U.S. 463,
6A Sup. Ct. 92, L. Ed. 72 (1947), Mr. Justice Black,
writting for a unaminous court, wrote in part;
, % 7
Davidson County Criminal coutt held that wxclusion of
negros from Grand and Petit juries solely because of race
denied negro defendants in criminal cases the equal pro-
tection of the laws, required by the Fourteenth (14) Amend-
ment A long and unbroken line of our decisions since
then has reiterated that principles, regardless of whether
the discrimination was embodied in statute, or was ap- |
parant from the administrative practice of state jury selec-
tion officials; and-regardless or whether the
{fol. 3]. system for depriving defendants of their right
was ingenuous or ingenidus: Griffin Et Al, vs.
Ulinois, 351 U. 3. 95: The United States Supreme Court
in the case of Powell vs. Alabama, 287 U.S. 45 (1932) and
Py é
A. 13
U. S. District Court Petition for Habeas Corpus
Norris vs. Alabama, 294 U.S. 587 (1935), upset the con-
victions on the grounds that the county in which they were
tried had failed to summon qualified Negros for grand
jury service. For example, in the so-called Scotts -
_ boro case in which negros had been indicted and convicted
im the Alabama Courts for astatutory offense; the United
States Supreme Court upset a conviction on the grounds
that the lower courts had inadequate provision for counsel
for the accused and invalidated and indictment had been
returned had failed for more than a generation to summon
qualified negros for grand jury service."
The United States Supreme Court meanwhile, has again
_Temanded the case of Edgar Labat vs. Louisiana to the
Federal District Court for Eastern Louisiana. The con-
Stitutional issue currently involved is systematic exclusion
ot negros from Grand or Petit Juries."
Under the law Jury Commissioner are under the duty
‘Rot to pursue a course of conduct in the administration of
their office which would operate to discriminate in the
selection of Jurors on racial grounds: Lassell vs. Texas,
339U.S.___, Hill vs. Texas, 316 U.S. 400, 404."
Buy the above dictums of the Unitde States Supreme
Court, the Grand Jury which returned the indictments
against the Petitioner was illegally constituted thus render
ing the indictments and the convictions unconstitutional
‘full and void. Even if it be deemed that the only way the
Petitioner could make an attack on the systematic exclusion
‘pf negros from serving as grand jurors would be to do so
in a direct appeal which the Petitioner do not concede.
“The cases are legion which holds that he can make an
attack on the systematic exclusion of negros from serving
0 grand jurors, in a habeas corpus proceedings. see
parruthers vs. Reed, (C. C. A. B., Cir.) 102 F. 2d 933. .
A. 14
U. 8. District Court Petition for Habeas Corpus
".-Exclusion of negros from serving as grand jurors in
criminal prosecutions, constitutes a denial of the equal
protection of the law and are grounds for relief by habeas
corpus proceedings". The Petitioner is also a meritorious
challenge to Davidson County Criminal Court of Tennessee's
jury selection system, a system that not only systematically
excludes negros from its services, but also a system that
is in open defiance to the laws of the State of Tennessee
Governing Jury selections; and further in open violation
to the Fourteenth (14) Amendment to the United States
Constitution. of the America:“
Grand Jury are to be selected in the following manner,
under Tennessee Law: 10021 5B 27 (4015) formed by
lots. To form.
Tpbe six amendment provides in part that in all crimi-
nal prosecations, the accused shall enjoy the right ----
to be confronted with the witnesses against him --- and
to have assistance of counsel for his defence." Gideon
vs. Wainwright, 372 U.S. 325 in violation of Texas penal
code art. 1408 at this hearing, 375, S.W.2d 293, we
granted certiorari to considet the important constitutional
question the involves, 379 U.S. 815, White vs.. Maryland,
373 U.S. 59; Hamilton vs. Alabama, 368 U.S. 52; 372,
U.S. at 342; Malloy vs. Hogan, 378U.S. 1, 378 U.S. at
6; Murphy vs. Waterfront Comm'n, 378 U.S. 52. see
E.G. 5 Wigmore; evidence (1367) 3d Ed. (1940); Kirby
vs. United States, 174 U.S. 47, 55, 56.; Alford vs. U.S.,
282 U.S. 687, 692; Greene vs. McElroy, 360 U.S. 474,
360 U.S. at 496-497; In Re Oliver, 333 U.S. 257 by counsel
333 U.S. at 273; Turner vs. Louisiana, 379 U.S. 446,
472-473; Willner vs. Committee, 373 U.S. 96, 103-104;
West vs. Louisiana, 194 U.S. 258, 264; Stein vs. New
York, 346 U.S. 156, 195-196; Dowdéll vs. United States,
A. 15
U. S. District Court Petition for Habeas Corpus
221 U.S. 325, 330; Motes vs. United States, 178 U.S.
458, 474; Mattox vs. United States, 156 U.S. 237, 242
243; Cf. Hopt vs. Utah, 110 U.S. 574, 581; Queen vs.
Hepburn, 7 Cranch 290, 295; Cohens vs. Virginia, 6
Wheat, 264, 387 (1821); Chambers vs. Florida, 309 U.S.
22, 235, 238, (1940): Lumber co. vs. United States,
251 U.S. 385, 392 (1920).
_ Upon the foregoing statements and facts, the Petitioner
4s duly entitled to the redress sought in this petition, be-
eause the Petitioner's Constitutional Rights, as a citizen
‘of the state of Tennessee, and also as a citizen of the
United States of America, has been violated and as such
chat he is now being held in the Tennessee State Penitentiary,
under a sentence of 99 years that is unconstitutional null
and void.
“Tol. 4] Wherefore the Petitioner, Willie Lee
ae: Henderson, respectfully moves the court to
issue a writ of habeas corpus to the Respondent, Mr.
Lewis Tollett, Warden of the Tennessee State Penitentiary
at Petros, Tennessee, commanding him to appear with _
“the body of the Petitioner, on a date certained to be named
and to show cause why the Petitioner should not be released
_from this unconstitutional and illegal confinement.
Respectfully Submitted
7s Willie Lee Henderson
Petitioner
[Affidavit of Mr. Henderson and Motion for Leave
to Proceed in Forma Pauperis Omitted in Printing]
A. 16
(fol. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
_ NASHVILLE DIVISION |
[Title Omitted in Printing]
NOTICE OF FILING SE CMENTS
(Filed January 18, 1971)
Please take notice that certified copies of the following
documents have this day been filed with the U. S. District
Court Clerk at Nashville for use as evidence in connection
with the above styled case. These documents are the
records in the case of State of Tennessee, ex rel, Willie
Lee Henderson vs. Lake Russell, Warden, Criminal
Court of Davidson County, Case No. 4662 in that court.
1. Technical record in Criminal Court of Davidson County.
2. ‘Bill of Exceptions, Criminal Court of Davidson County.
3. Exhibits to the Bill of Exceptions.
‘Brief on behalf of petitioner in the Court of Criminal
Appeals.
Reply brief for the State of Tennessee in the Court of
Criminal Appeals.
Petition for Writ of Certiorari to the Tennessee Su-
preme Court. ö
Reply of State to the petition for Writ of Certiorari.
[fol. 2] Respectfully submitted,
/s/ R. Jackson Rose
R. JACKSON ROSE
A. 17
Assistant Attorney General
Supreme Court Building
Nashville, Tennessee 37219
741-2865
(Certificate of Service Omitted]
‘tol. 1)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
i NASHVILLE DIVISION
(Title Omitted in Printing]
MOTION TO DISMISS
(Filed January 18, 1971)
_ Comes the respondent, Lewis S. Tollett, by and
through the Attorney General, and moves the Court as
follows:
1. To dismiss the action because the petitioner has
heretofore applied for a writ of habeas corpus in
Federal Court.
/s/ R. Jackson Rose
R. JACKSON ROSE
Assistant Attorney General
Supreme Court Building
Nashville, Tennessee 37219
SSR ee
SPUR St
A. 18
{fol. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIE LEE HENDERSON ;
Bs. 35, : Civil No. 5996
LEWIS S. TOLLETT, Warden,
Brushy Mountain State Prison
(Received for Entry 3:45 P. M., February 3, 1971]
This proceeding involves a petition for the writ of
habeas corpus. Of the four grounds originally asserted
for such relief, only one is herein at issue—i.e., whether
the indictment pursuant to which petitioner was convicted
and sentenced was, in fact, void for the reason that the
indicting grand jury was one from which members of pe-
titioner's race had been systematically excluded. In an
order of this court filed December 29, 1970, it was noted
that this matter raises Constitutional issues of consider-
able importance, but that... more information is of
course required before this court can grant or withhold
relief." Accordingly, it was ordered that respondent
show cause why the writ should not issue. It was sug-
gested that a copy of the opinion rendered by the Supreme
Court of Tennessee in the case of Willie Lee Henderson
v. C. Murray Henderson (filed November 3, 1967) and
a copy of the transcript of the evidentiary hearing which
was held as a result of that opinion be submitted to this
court along with the ordered respongé. Such response
has now been forthcoming, and it was accompanied by
A.19
U. S. District Court Order, 2-3-71
[fol. 2] certain documents comprising the record of
petitioner's habeas corpus proceeding in State
court, which was initiated following the November 3, 1967,
opinion, supra, and which was based upon the same con-
tention as the instant petition. The Tennessee Supreme
Court opinion of November 3, 1967, supra, was not, how-
ever, included, Nevertheless, this court is of the opin -
ion that sufficient information has been furnished, and it
is of the opinion that the writ must iss ue.
I: appears from the record in its pres ent state that pe-
titioner first raised the racial exclusion issue in a State
‘habeas corpus proceeding, Henderson v. Henderson,
supra, wherein his petition was denied at the trial level
‘without a hearing. Ultimately, however, the Tennessee
‘Supreme Court reversed this denial and ordered that an
@videntiary hearing be held. Apparently, petitioner was
‘Provided with court · appointed counsel who, in effect,
elected to start the proceeding de novo by filing a second
petition on January 12, 1968, in the Criminal Court of
Davidson County, Tennessee (No. 4662). A hearing was
held on the new petition, and a copy of the transcript of
this hearing, as noted supra, has now been made a part
the record in the instant case. The evidence adduced
it this hearing established without contradiction (a) that
Negro served on a Davidson County grand jury until
tome years after petitioner was indicted, despite the fact
it roughly one quarter of the Population of that county,
me time of petitioner's indictment, were members of
fiat race and G) that the names of black persons on the
its from which members of each grand jury were chosen
that time marked with the designations "c" or "col."
9 for "colored." The trial judge held as a mat-
A. 3] ter of fact that no showing of systematic ex-
-_ clusion qt. blacks from the indicting grand jury
i
A. 20
v. s. District Court Order, 2-3-71 *
had been made. On appeal, a divided Court of Criminal
Appeals, with apparent reluctance, affirmed the decision
of the trial judge on the ground, simply stated, that re-
gardless of whether or not a showing of systematic ex-
clusion had been made at the hearing, petitioner had long
since waived his right to complain thereof, (a) because he
had failed to raise the issue by the procedures available
to him at the time of his indictment and conviction, and
(b) because his guilty plea had abrogated any defects in
the indictment. Henderson v. Russell, No. 5996 (Tenn.
Ct. Crim. App., filed July 6, 1970). This decision of
the Tennessee Court of Criminal Appeals became the final
ruling in the case, upon the Temnessee Supreme Court's
denial of certiorari.
Before determining whether the writ should issue, the
court must consider respondent's motion to dismiss this
action on the ground that petitioner has heretofore
applied for a writ of habeas corpus in Federal Court."
There being nothing in the record to show that the ques-
tot now presented has been either raised or adjudicated
in any prior proceedings in this court, and there being
nothing to indicate that petitioner has, in earlier proceed-
ings, deliberately withheld the newly-asserted ground or
otherwise abused the writ as provided for in 28 U.S.C.
122440), the motion to dismiss ts DENIED.
From a consideration of the whole record, it appears
to the court that the writ must issue. Johnson u. Zerbst.
304 U.S. 458 (1938); Labat v. Bennett, 365 F. 2d 698 (Sth
Cir. 1966), certiorari denied 386 U.S. 991 (1967).
Accordingly, the writ will issue, returnable before me
March 2, 1971, at 2:00 p. m. It is so ORDERED.
7
/e/ Frank Gray, K.
UNITED ST. ATES DISTRICT JUDGE
A. 21
fol. 1)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
1 NASHVILLE DIVISION
s
‘WILLIE LEE HENDERSON
x Petitioner -Appellee
: | F Civil No. 5996
LEWIS S. TOLLETT, WARDEN,
BRUSHY MOUNTAIN STATE
FARM, 0
_ Respondent - Appellant
: ORDER
1 (Received for Entry 10:50 A. M., April 12, 1971)
: This proceeding involves a petition for the writ of
habeas corpus. Petitioner is presently confined, in the
fustody of rc , at the Brushy Mountain Prison,
Fetros, Tennessee, where he is serving a sentence of
t ~nine years which was imposed by the Criminal
of Davidson County, Tennessee, following his plea
f guilty, in 1948, to a charge of murder in the first de-
fee. In his pro se petition, petitioner sets forth four
founds upon which he bases his claim that his present
barceration is illegal. With regard to the first three
asserted grounds, petitioner makes no affirmative
Wing, nor does he otherwise indicate, that he has ever
fesented them for adjudication to the courts of Tennessee.
e a showing of exhaustion of available state remedies
required by 28 U.S.C. §2254 before federal habeas
pus relief can issue, this court, by order entered
ember 29, 1970, refused to take cognizance of peti-
.
A. 22
u. s. District Court Order, 4-12-71
tioner's first three grounds for relief. As his fourth
ground for relief, petitioner asserts that his
[fol. 2] present confinement is illegal, because he was
indicted by a grand jury from which members
of his race (Negro) had been systematically excluded.
With regard to this fourth ground, the petition contains
the required showing of exhaustion of available state rem-
edies. Additionally, as was noted by this court in its
order of December 29, 1970, this ground raises constitu-
tional issues of considerable magnitude. Accordingly ,
the aforesaid order directed respondent to show cause
why the writ should not issue. The directed response
was subsequently forthcoming, and, no satisfactory cause
to the contrary appearing therein, it was ordered that the
writ issue and that petitioner be brought before this court
at an appointed time for a hearing. The hearing was held
as ordered, and, as a result thereof, the following have
been established as the basic facts of the case.
Petitioner, a black youth, was indicted by the Davidson
County Grand jury in 1948 pn a charge of murder in the
first degree. Although roughly one fourth of the popula-
tion of Davidson County in 1948 was composed of members
of petitioner's race, no black people served on the grand
jury which indicted him; no black people had ever served
on a Davidson County Grand Jury prior to the time of his
indictment; and no black people served on the Davidson
County Grand Jury until well into the next decade following
his indictment. What is more, whenever the name of a
black citizen appeared on the venire lists from which
members of the Davidson County Grand Jury were chosen
at the time of petitioner's indictment, it was marked with
either the designation c or the designation “col” to
: signify that the bearer of the name was “colored.” Peti-
A. 23
| U. S. District Court Order, 4-21-71
lol. 3] tioner was represented by counsel who failed
5 3 to object to the composition of the indicting
grand jury, quite simply, because the possibility never
oecurred to him. For the same reason, he never ap-
pris ed petitioner of the possibility of attacking his indict-
ment on that ground, and petitioner himself, a twenty -
‘year-old with less than a sixth grade education, never
‘thought of the possibility on his own. Ultimately, peti -
toner pleaded guilty (he now claims as the result of
eoercion and trickery, but that is irrelevant in the pres -
ent context) and was sentenced to serve a term of niney -
nine years in prison.
x
WwW
—
8 After serving some two decades in prison, petitioner
collaterally attacked his Sentence in a state habeas corpus
however,
the Supreme Court of Tennessee reversed this denial and
Hurt appointed counsel who, in effect, elected to begin
the proceeding de novo by filing a second and somewhat
‘Mo: based upon the same ground,
the Criminal Court of Davidson County (No. 4662) on
Jmary 12, 1968. A hearing was held on the new peti -
Gon, and at that hearing all of the facts recited above
Wre adduced. Nevertheless, the trial judge found as a
Mer of fact that there had been no systematic exclusion
@ Negroes from the grand jury which had indicted petition -
and, accordingly, the petition was denied.
@ Petitioner appealed, and a divided Court of Criminal
Meals of Tennessee, with apparent reluctance, affirmed
decision of the trial judge. The appellate court did
*
A. 24
u. 8. District Court Order, 4-21-71
not, however, affirm the trial judge's finding of fact that
there had been no systematic exclusion of Negroes from
the Davidson County Grand Jury in 1948. Rather, it based
its decision on the ground that, regardless of
[fol. 4] whether petitioner was correct or not in contend-
ing that members of his race had been syste-
matically excluded from the grand jury which had indicted
him] he had waived all right to complain of the grand
jury's composition, (a) because he had failed to raise that
issue by means of the procedural devices available to him
at the time of his indictment and conviction, and (b) be-
cause his plea of guilty had abrogated any defects which
the indictment might have contained. Henderson v..
Russell, No. 5996 (Ct. Crim. App. Tenn., filed July 6,
1970). This decision by the Court of Criminal Appeals
of Tennessee became the final state court ruling in the
case upon denial of certiorari by the Supreme Court of
Temessee. Finally, having thus exhausted his available
state remedies, petitioner sought federal habeas corpus
relief. It remains, then, to consider whether such re-
lief shall be granted. 9
q) The constitutional issue: indictment of a black
man by a grand jury from which members of his race
have been systematically excluded.
The unconstitutionality of racially-exclusive grand
juries, insofar as their actions affect members of the
excluded race, has been firmly established since at least
as early as 1880, Strauder v. West Virginia, 100 U.S.
303 (1880). Neither an in-depth analysis of the facts of
the instant case nor a lengthy citation of authorities is
1 The clear implication of the three opinions rendered in the case is that
the members of the Court of Criminal Appeals of Tennessee felt that pe-
toner 's contention was et. A
A. 25
U. 8. District Court Order, 4-21-71
required to support the proposition that petitioner's show -
< ing of the total absence of members of his race
ffol. 5] from the Davidson County Grand Jury in 1948
5 and prior years constitutes proof of a prima
facie case of systematic exclusion of such persons, there -
by casting the burden on respondent to prove to the con-
‘trary. Whitus u. Georgia, 385 U.S. 545 (1967). This
burden respondent clearly has failed to sustain. More-
“over, and rebuttal proof which respondent might have of-
‘fered would have been essentially ineffective in the face
of petitioner's showing that the names of black people
‘were given distinguishing marks whenever they appeared
in the venire lists from which Davidson County Grand
jurors were chosen at the time of his indictment, for it
is obvious that such marking of the jury ... [lists]
With the letter C“ [or with the abbreviation "col"] to
‘indicate persons of the Negro race constituted a purpose -
ful discrimination which is unlawful under the Federal
Constitution. Bonds v. State, 421 S. W. 24 87. 90 6.
a. Tenn. 1967). It is thus ineluctable that petitioner _
Was indicted by an unconstitutionally-composed grand
jury, and it is also ineluctable that such a body is legally
Rot a grand jury at all.
4 ) The waiver issue: effect of petitioner's failure
o object, at the time of his indictment or shortly there-
after, to the racial composition of the grand jury which
ted him.
~ Respondent concedes —as it is apparent he must —
that petitioner has proved everything necessary fully to
port his contention that members of his race were
Systematically excluded from the grand jury which in-
Gcted him. -.. that the only [remain-
issue is whether or not the petitioner has waived his
5 —
A. 2%
u. s. District Court Order, 4-21-71
rights to question the composition of the [indicting] grand
jury. and he strenuously ins ists that peti-
Lol. 6] tioner has indeed waived such rights. This
court does not agree.
With all deference to what respondent refers to as a
“Long line of cases" in Tennessee which appear to hold
otherwise, this court feels it is illogical to contend that
either petitioner's failure timely to object to the composi-
tion of the indicting grand jury or his subsequent entry of
a guilty plea constitutes a waiver, by operation of law,
of his right to object to the composition of that grand jury
at the present time. Such a contention, as pointed out
by Judge Oliver in his well-reasoned and convincing dis-
sent in Henderson u. Russell, supra, rests upon a con-
fusion between an indictment which is merely technically
defective and one — such as petitioner's —which is a com-
plete nullity.? In the latter case, stated in the simplest
of terms, there is no "defect" in the indictment to waive,
for there is in fact no “indictment” to contain such a de-
fect: instead, there is merely a sheet of paper, meeting,
to be sure, the facial requisites of a valid indictment,
but having in actuality no tegal effect whatsoever. lt is
clear that any criminal prosecution brought incident to
such an “indictment” is illegal and that a plea of guilty
to such an “indictment” is of no binding effect, for such
an “indictment” confers no subject-matter jurisdiction
on the sentencing court. State v. Hughes, 371S.W.2d
445 (S. Ct. Tem. 1963); Robinson v. City of Memphis,
277 S.W.2d 341 G. &. Tenn. 1955); and cases cited in
Henderson v. Russell, supra, (Oliver, J., dissenting).
2 Thus, for example, in the case of Bonds v. State, supra, an indictment
rendered by a racially-exclusive grand jury in Williamson County
dismissed 8 void" by the Supreme Court of T (and this despite
the fact that, strictly speaking, defendant's to the racial com-
Se ee )
A. 27
U. S. District Court Order, 4-21-71
ol. 71 Respondent places great store in the fact
a that a defendant in federal court may, under
Rule 12(b)(2) of the Federal Rules of Criminal Procedure,
waive the right to complain of the racial composition of
the grand jury which indicted him if he fails to raise that
issue at a specified stage in the proceeding. Indeed, the
crux of his entire position with regard to waiver seems
to be the proposition that if unconstitutionality of grand
juries may be waived in federal court, then the same rule
should apply to state court proceedings. His basic as-
sumption is that, if petitioner had been indicted by a fed-
eral grand jury and sentenced by a federal judge, then he
would now be precluded from objecting to the racial com-
5 position of the indicting grand jury. From this premise,
respondent infers that the same result should be effected
in the case at bar.
This court is not persuaded by respondent's argument
and is of the opinion that it fails for at least three reasons:
(1) his basic assumption is factually incorrect; (2) even
if his basic assumption were true, a waiver under Rule 12
is not analogous, in terms of what is actually waived, to
the waiver assertedly made by the instant petitioner; and
) ignoring completely (1) and (2), supra, the case law
is clear as to the test for waiver which this court must
‘apply in the case at bar, and, applying that test, it is in-
escapable that petitioner has waived nothing. A brief
‘amplification of the foregoing considerations is here in
‘order.
ch Rule 1200 ), Federal Rules of Criminal Procedure,
provides that “[dJefenses and objections based on defects
‘in the institution of the prosecution or in the indictment
must be raised before trial, otherwise they are
| paired. In his brief, respondent sets forth pertinent
| A. 28
U. 8. District Court Order, 4-21-71
Lol. 8] portions of the Notes of Advisory Committee on
Rules to point out that [illegal selection or
organization of the grand jury” is one of the defenses or
objections thus subject to waiver, and he cites several
federal cases which refuse, on grounds of waiver under
Rule 12, to permit the challenge of indictment by racially-
exclusive grand juries to be raised.
Nevertheless, respondent's brief omits an important
consideration, namely, the fact that Rule 12(b)(2) ex-
pressly provides that the defense of lack of jurisdiction
is not waived by failure to raise it before trial. It is
indeed difficult, if not impossible, to conceive how the
rule could provide otherwise, for it is axiomatic in Anglo-
American jurisprudence that one cannot waive lack of
jurisdiction, even if one so wishes. And, as noted above,
a void indictment, under the law of Tennessee, confers
no subject-matter jurisdiction on the sentencing court.
Hence, Rule 12, by its very language, would not necesi-
tate a finding of waiver in the case at bar, even if it were
applicable herein.
Further, Rule 12(b)(2) 40 provides that, in the case
of those defenses and objections which are waived if not
raised before trial, .. the court for cause shown may
grant relief from the waiver." Respondent has not ap-
prised this court of any reason why a court before which
an individual's conviction is attacked collaterally may not
likewise grant relief from such waiver, upon a showing
of good cause. In the instant case, any number of factors
have been established which suffice to constitute such a
showing. Thus, if petitioner were held, by operation of
law, at some point to have waived his right to challenge
the racial composition of the grand jury which indicted
him, it is readily apparent that thié court could appro-
A. 29
U. S. District Court Order, 4-21-71
(fol. 9] priately grant relief from such waiver, even if
Rule 12(b)(2) actually applied to the case at bar.
It is clear from the foregoing considerations that respond -
ent's basic premise is incorrect.
(2) Assuming, arguendo, that a waiver under Rule 12
were categorical and would admit of no exceptions, it
would still avail respondent nothing to point to the situa-
tion in federal court and argue that the same considera-
tions should apply in the case of the instant petitioner,
for a waiver under Rule 12 is not analogous to the waiver
assertedly made by this petitioner: what this petitioner
has assertedly waived cannot be waived under Rule 12.
More specifically, this petitioner is attacking the racial
composition of the grand jury which indicted him on the
ground that that composition resulted from a selection
process which denied him equal protection of the laws.
Thus the part of the Constitution upon which the instant
petition is based is the Equal Protection Clause of the
Fourteenth Amendment, and the right which respondent —
contends petitioner is now precluded from asserting is
the right to equal protection of the laws. The Equal Pro-
_ tection Clause is worded as follows: In lo State shall.
deny to any person within its jurisdiction the equal pro-
tection of the laws," (emphasis added) and it follows
from this wording that, whatever may be the standard
Wich which federal grand jury selection must comply, it
is not the one set forth in the Equal Protection Clause of
* the Fourteenth Amendnient? for that clause
- (fol. 10) . effects a prohibition only on the states,"
# in actual effect, of course, the federal and the state standards are the
same. Nevertheless, the rights which give rise to the respective standards
are different: if a federal defendant complains of the racial composition
ol the grand jury which indicted him, he is in fact complaining that his
ee (Continued on following page)
A.30
V. s. District Court Order, 4-21-71
Washington v. United States, 401 F. 2d 915, 922 (D.C.
‘Cir. 1968), and is thus inapplicable to the Federal Gov -
ernment, the Federal Judiciary, and the Federal Rules
of Criminal Procedure. The sole point which this court
wishes to stress in the present contenxt, however, is that,
whatever it may be that a federal defendant waives under
Rule 12(b)(2), it is clearly not the right to complain of a
denial of equal protection of the laws by virtue of racially-
exclusive grand jury selection. It follows that the waiver
provision of Rule 12 is necessarily not analogous to the
waiver which respondent asserts was made by this peti -
tioner: the practice in federal court has no bearing what -
ever on the issue presently before this court, and the
cases cited by respondent are inapposite in the present
conte xt .
(3) Finally, ignoring the foregoing considerations
completely, it is readily apparent from the cases that
respondent's argument with respect to waiver is not well
taken. “The ‘waiver’ asserted in this case is simply a
diaphanous euphemism for forfeiture of rights resulting
from a procedural default, Labat u, Bennett, 365 F. 2d
9558, 707 (Sth Cir: 1966), certiorari denied 386
(fol. 11] U.S. 991 (1967), and the law is clear that La!
procedural default, such as the one here in
question, may not be regarded as a waiver unless it ap-
pears from the evidence that the default resulted from a
(Continued from preceding page)
Fifth Amendment rights have been violated, while when a state defendant
makes the same charge, he is in fact complaining (as is this petitioner) of
an abridgement of his Fourteenth Amendment rights. See e. g., Washing-
ton v. United States, infra. Thus, violation of the Equal Protection Clause
of the Fourteenth Amendment is not a defense to a federal prosecution, at
least insofar as is relevant here, and hence is not one of the matters that
can be waived under Rule 12. y,
/
7
A. 31
U. 8. District Court Order, 4-21-71
deliberate choice made by counsel and participated in by
his client." Wade v, Yeager, 377 F.2d 841, 846 3rd
Cir. 1967), certiorari denied 393 U.S. 893 (1968). More
specifically, as stated by the United States Supreme Court,
It he classic definition of waiver enunciated in Johnson
v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58
8. Ct. 1019, 146 ALR 357 ... furnishes the controlling
standard. . [And] a state court's finding of waiver [does
not] bar independent determination of the question by the
federal courts on habeas [corpus], for waiver affecting
federal rights is a federal question [citation omitted.
Fay v. Noia, 372 U.S. 391, 439 (1963). In short, re-
gardless of whatever may be the procedural rule with re-
Spect to waiver in the criminal courts of Tennessee and
regardless of whatever may be the federal practice in that
regard, it is clear that the test for waiver which must be
applied by this court in this case is the one expounded by
the Supreme Court in the case of Johnson v. Zerbst, supra.
It remains to examine that test in the light of the facts of
the case at bar.
Under the holding in Johnson u. Zerbst, the"...
‘courts indulge every reasonable presumption against
waiver’ of fundamental constitutional rights and. do
not presume acquiescence in the loss of fundamental rights. '
A waiver is ordinarily an intentional relinquishment or
_ abandonment of a known right or privilege. The determi -
nation of whether there has been an intelligent waiver ...
must depend, in each case, upon the particular facts and
circumstances surrounding that case, including the back -
ground, conduct, and experience of the accused. John-
on, supra, at 464 (citations omitted).
ol. 12 Viewing this petitioner in the light of his ex-
„ perience and background at the time of his in-
Ea
A. 32
U. S. District Court Order, 4-21-71
dictment and conviction, it is readily apparent that the
presumption against waiver set forth in Johnson v. Zerbst
works conclusively to preclude a finding of waiver in his
case, for there is nothing in the record which rebuts such
presumption in any manner. However, petitioner need
not place his reliance upon the effect of the presumption
alone, for the uncontroverted evidence adduced in this
case obviates the need for such reliance: this evidence
establishes as a matter of fact that petitioner was unaware
of so much as the remotest possibility of attacking his in-
dictment on the ground herein at issue at the time the in-
dictment was returned, at the time of his guilty plea and
sentence, or at any other time until shortly before he
actually raised the matter in his state habeas corpus pe-
tition, Clearly, under the Johnson v. Zerbst standard,
petitioner cannot be held to have waived something of
which he was not even aware.
It might be contended that, since the possibility of at-
tacking an indictment on the ground that it was rendered
by a racially-exclusive grand jury has long been available,
Strauder, supra, petitioner's ‘counsel should be charged
with knowledge of such possibility and that such knowledge
should, in turn, be imputed to petitioner. Such an argu-
ment is clearly not well taken in light of the fact that
uo lawyer in this State would have ever thought of ob-
jecting to the fact that Negroes did not serve on the Grand
jury in Tennessee in 1948 ...." Henderson v. Russell,
supra, (Galbreath, Jr., concurring). What is more, pe-
titioner's attorney stated in an affidavit executed in con-
junction with petitioner's state court proceeding
[fol. 13] that, indeed, the possibility of raising the equal
; protection objection wen e Fe to him and
that, in consequence, he never ned such possibility
to petitioner. Given this latter fact, even if petitioner's
A. 33
U. 8. District Court Order, 4-21-71
counsel had been well aware of the possibility of attacking
petitioner's indictment on equal protection grounds, but
had, through either choice or negligence, failed to assert
such grounds in his client's defense, his failure could not,
on the facts of this case, be imputed to petitioner, because
a] choice made by counsel not participated in by the pe-
titioner does not automatically bar relief. Fay v. Noia,
supra, 439.
In substance, shorn of the extraneous trappings of legal
fiction, the outcome of this case turns upon the answer to
the following ‘simple question: Can a twenty-year · old black
defendant, who had less than a sixth grade education when
he was charged with murder in 1948, be held intentionally
to have relinquished or abandoned a known right or priv-
ilege by virtue of his failure, without contrary advice of
counsel, to assert in his own defense the proposition that
his indictment was constitutionally void in the light of the
Equal Protection Clause of the Fourteenth Amendment,
when, in fact, In lawyer in this State" would have
_ thought of asserting such a defense? This court holds
that he cannot. Labat v. Bennett, supra; Elizey u.
Breazeale, 277 F. Supp. 948 (S.D. Miss. 1967); Gordon
v. Breazeale, 246 F. Supp. 2 N. D. Miss. 1966).
It follows that petitioner's indictment and all proceed -
ings based thereupon are void and of no legal effect. In
consequence, his present incarceration is repugnant to
the Constitution of the United States. It is, accordingly,
ORDERED that he be released forthwith from the custody
of the respondent.
/8/ Frank Gray, jr.
UNITED STATES DISTRICT JUDGE
A. 34
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
[Title Omitted in Printing]
NOTICE OF APPEAL
(Filed April 30, 1971)
_. Notice is hereby given that Lewis 8. Tollett, Warden,
Brushy Mountain State Prison, defendant above named,
hereby appeals to the United States Court of Appeals for
the Sixth Circuit from the order granting the release of
Willie Lee Henderson, petitioner, entered in this action
on the 12th day of April, 1971.
/s/ R. Jackson Rose
R. JACKSON ROSE
Assistant Attorney General
Supreme Court Building
Nashville, Tennessee 37219
741-2868
Attorney för Respondent,
Lewis S. Tollett
(Certificate of Service Omitted in Printing]
A. 35
. NO. 71-1451
UNITED STATES COURT OF APPEALS
For the Sixth Circuit
WILLIE LEE HENDERSON, i es
Petitioner-Appellee, APPEAL from the United
States District Court for
N the Middle District of
Tennessee, Nashville
Division.
V.
LEWIS S. TOLLETT, Warden,
Respondent-Appellant.
Decided and Filed April 20, 1972.
Before: PHILLIPS, Chief Judge, and CELEBREZZE
and MILLER, Circuit Judges .
{Opinion of Sixth Circuit Omitted because printed
in Petition for Certiorari at pages la-12a]
A. 36
SUPREME COURT OF THE UNITED STATES
October 16, 1972
TOLLETT v. HENDERSON
No. 72-95
"The motion of respondent for leave to proceed
in forma pauperis is granted. The petition for a
writ of certiorari is granted."
A. 37
PROCEEDINGS IN STATE COURTS
IN EARLIER HABEAS CORPUS CASE
The proceeding in an earlier Tennessee State court
habeas corpus proceeding are attached to the "Notice of
Filing Documents" filed in the U. S. District Court in
this case Jamary 18, 1971 (A. 16).
The pleadings filed from the case of State of Tennes-
see, ex rel. Willie Lee Henderson v. Lake Russell,
Warden, No. 4662, in the Criminal Court of Davidson
County are reprinted as follows:
* The exhibits, certified according to the Acts of Congress, have been
sent by the Sixth Circuit Clerk to the Clerk of this Court.
_* The only State Court proceedings not printed are the briefs in the Ten-
~ Ressee Court of Criminal Appeals, the petition for certiorari to the Ten-
_ Messee Supreme Court and the brief in Opposition to that petition.
[TECHNICAL RECORD]
‘ In The
COURT OF CRIMINAL APPEALS,
STATE OF TENNESSEE
At Nashville, Tenn.
APPEALED FROM
Davidson County Criminal Court Division Two
The Honorable John L. Draper, Judge, presiding
(DEFENDANT IN PENITENTIARY)
Certified STATE OF TENNESSEE, EX REL
Transcript WILLIE LEE HENDERSON
vs.
LAKE RUSSELL, WARDEN
TENNESSEE STATE PENITENTIARY
JUDGEMENT LOWER COURT | :
PETITION FOR WRIT OF HABEAS CORPUS
ATTORNEYS
Mr. Robert S. Brandt, Assistant Attorney General
6th Floor, Metropolitan Courthouse
For State
Appointed: Robert F. Hedgepath, Nastwille
A. 38
A. 39
*
IN THE COURT OF CRIMINAL APPEALS,
NASHVILLE, TENNESSEE
0
STATE OF TENNESSEE, ex rel.,
WILLIE LEE HENDERSON Davidson County
VS. (No. 4662 Below)
LAKE RUSSELL, WARDEN, ETC. |
ORDER APPOINTING COUNSEL
In this cause it appearing to the Court that appointed
counsel in the trial court was relieved for good cause
“shown, and that the plaintiff in error is not represented
out means for employing counsel.
It is, therefore, Ordered that the Honorable Robert F.
Hedgepath be, and he is hereby, appointed as counsel for
‘the said Willie Lee Henderson to take whatever action he
deems necessary and proper in the best interests of the
Said Willie Lee Henderson on the appeal. 3/19/69,
A. 40
Technical Record, State Criminal Court
STATE OF TENNESSEE, EX REL
WILLIE LEE HENDERSON :
vs.
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY
PETITION FOR HABEAS CORPUS
Received of Earl Hawkins, Criminal Court Clerk, the fal-
lowing exhibits in connection with the above styled cause:
Exhibit #1 to petitioner’ s case - Copy of minute entry.
Exhibit #2 to Petitioner's case - Affidavit of Tom Ed
Murray.
Exhibit #3 to Petitioner's case - U. 8. Department of
Commerce Bureau of the Census Washington.
Exhibit #4 to Petitioner's case - Minites
Exhibit #5 - Certificate
This the day of March, 1165.
A. 41
Technical Record, State Criminal Court
foes, . ee See Sear. «
Amended Answer
_ Amended answer filed
Answer i
Answer filed
“Attorney relieved
on of Cost
‘Bill of Exceptions filed
‘Cartion January Term, 1968, Div. II
em May Term, 1968, Div. II
4 September Term, 1968, Div. II
January Term, 1969, Div. II
Certificate and seal 7
Demarrer
Motion to dispose of demurrer of respondent's
2 on · Petition for writ of habeas corpus
A. 42
Technical Record, State Criminal Court
Order allowing state to amend answer 11
Order denying prayer for dis miss al of petition 15
Order granting petitioner's motion to place into
evidence certified copies of records 22
Pauper's Oath 27
Pauper's Oath filed 26
Petition for writ of habeas corpus 3-5
Petition for writ of habeas corpus filed 2
Petition for writ of habeas corpus under
advisement 17
BILL OF EXCEPTIONS AND EXHIBITS FILED UNDER
SEPARATE COVER.
* A. 43
f Technical Record, State Criminal Court
111
NTHE CRIMINAL COURT OF DAVIDSON COUNTY,
_ TENNESSEE, DIVISION TWO MINUTES, JANUARY TERM,
* 8TH DAY OF JANUARY, 1968
_ MINUTE BOOK 64, PAGE 774
_ CAPTION
2 AR
* MONDAY, JANUARY 8, 1968
.
Pleas at the Courthouse in the City of Nashville, County
ol Davidson; State of Tennessee it being the January Term,
the second Monday of January, 1968, and the eighth day of
January thereof, and one hundred ninety second year of
the American independence, present and presiding, the
‘Honorable John I.. Draper, Judge of Division Two of the
‘Criminal Court of Davidson County, Tennessee, when
| the following proceedings were had, towit:
Division Two of the Criminal Court of Davidson County,
Tennessee, was duly opened by James Jones and Charles
A. Hill, officers of this Court, and prayer was offered
by Reverend Larry Sharp, Pastor of the Southern Methodist
| huren at Goodlettsville. a
ordered that Court stand adjourned until tomorrow morn-
i at nine o clock. ä 5
* /S/ JOHN L. DRAPER, JUDGE
; A. 44
Technical Record, State Criminal Court
{2]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY, TEN-
NESSEE, DIV. II
MINUTES, JANUARY TERM, 12TH DAY OF JANUARY, 1900
MINUTE BOOK 65, PAGE 18
FRIDAY, JANUARY 12, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL.
PETITION WILLIE LEE HENDERSON,
FOR PETITIONER
WRIT
OF VS.
HABEAS C. MURRAY HENDERSON, WARDEN,
CORPUS TENNESSEE STATE PENITENTIARY,
FILED RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
A petition for a writ of habeas corpus was received by the
Court in this cause and marked filed this date.
Mr. William S. Westerman, Attorney for Petitioner.
(A copy of the Petition follows)
Ordered that Court stand adjourned until Monday morning
at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
J
A. 45
IN THE CRIMINAL COURT OF DAVIDSON COUNTY
| TENNESSEE, DIVISION TWO
_ STATE OF TENNESSEE ex rel.
_ WILLIE LEE HENDERSON
PETITIONER
vs. » No. 4662
. MURRAY HENDERSON, WARDEN,
TENNESSEE STATE PENITENTIARY
RESPONDENT ]
PETITION FOR A WRIT OF HABEAS CORPUS
5 (Filed January 12, 1968)
~ Petitioner would show to the Court that he is a citizen
‘of the State of Tennessee and is illegally restrained of his
liberty, as hereinafter set out, by Respondent at the Ten-
Ressee State Penitentiary at Nashville in compliance with
an order of the Davidson County Criminal Court, Division
1 which convicted petitioner of first degree marder and
8 ed him to confinement for ninety-nine years. Said
tder dated March 12, 1948, is of record in the Davidson
County Criminal Court Clerk's Office and is not annexed
hereto because same is not in issue.
| Heretofore, petitioner has filed two petitions for writs
f habeas corpus, one of the 8th day of June, 1964, which
Was dismissed, and one on September 3, 1964 which was
denied after a full evidentiary hearing on the meritorious
gations, which denial was affirmed by the Supreme
Hurt on September 9, 1966. Since those proceedings
@ not raise the issue of systematic exclusion of members
[petitioner's rac¢.from the grand or petit juries, and no
* A. 46 ,
Technical Record, State Criminal Court
Petition for Habeas Corpus
issue relevant to said petitions or proceedings is raised
herein, copies of said petitions and proceedings are not
annexed hereto.
14
Petitioner would show to the court that on and for many
years prior to the date he was indicted by the Davids on
County Grand jury, February 12, 1948, none or very few
members of petitioner's race, Negro, served on said
Grand Jury; and that on and for many years prior to the
date he was sentenced by a Davidson County petit jury,
March 12, 1948, none or very few members of petitioner's
race served on said petit juries. Petitioner alleges fur-
ther that at and for an extended period of time prior to the
time petitioner was indicted and sentenced, members of
his race were systematically excluded from the grand and
petit juries of Davidson County, Tennessee; and that said
juries were improperly and unlawfully constituted as to
petitioner in violation of the rights guaranteed petitioner
by the Tennessee and United States Constitutions .
Petitioner would further sbow the Court that at the time
of said indictment and trial he was not infor med and had
no knowledge of his right to properly constituted grand and
petit juries, nor was he questioned or advised about said
rights or about attacking said indictment or sentence on
the grounds of deprivation of said rights. Petitioner would
further allege on information and belief that the lawyer who
represented him at the trial which resulted in the said con-
viction and sentence had no knowledge of systematic ex-
clusion of members of the Negro race from the grand and
petit juries connected with said trial and that his lawyer
did not advise him with reference to said rights, nor did
nis lawyer attack said indictment or sentence on grounds
al deprivation of said rights. Petitioner would further
A. 47
Technical Record, State Criminal Court
Petition for Habeas Corpus
z show that he never expressly waived his right to challenge
the constitution of Said grand or petit juries and that none
of his actions or failures to act constituted an
a [s]
intelligent waiver of said constitutional right that members
of his race not be Systematically excluded from said grand
or petit juries.
Premises considered petitioner prays:
1. That this matter be set for early hearing.
2. That the indictment on which the conviction and
sentence are based and the sentence petitioner is presently
serving be declared void and of no effect.
3. That a writ of habeas corpus issue to the defendant
ordering that the body of petitioner be delivered to the
Court.
f That all necessary and proper proceedings be had
5. That petitioner have such other, further and gen-
eral relief as the nature of the case may require.
4 /s/ william S. Westerman
Court Appointed Attorney for Petitioner
© Willie Lee Henderson, who being duly sworn makes
‘Path that the statements and allegations in the foregoing
Petition are true, and that those matters alleged on in-
mation and belief, he verily believes to be true.
om /s8/ Willie Lee Henderson
A. 48
“Technical Record, State Criminal Court
Sworn to and subscribed before me this 5 day of January,
1968.
/s8/ Jimmy W. Rose
Notary Public
My Commission expires: 24 Jan. 1970
16
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIVISION II
MINUTES, JANUARY TERM, 16TH DAY OF JANUARY, 196i
MINUTE BOOK 65, PAGE 24
TUESDAY, JANUARY 16, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL.
ANSWER WILLIE LEE HENDERSON,
FILED PETITIONER
VS.
C. MURRAY HENDERSON, WARDEN,
TENNESSEE STATE PENITENTIARY, .
RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
An answer to the petition for writ/of habeas corpus filed
tn this couse wan received by the Gurt and a
) this date.
A. 49
Technical Record, State Criminal Court
_Mr. Robert S. Brandt, Assistant Attorney General for
the State.
(Copy of Answer follows)
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
[7]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY
3 TENNESSEE, DIVISION TWO
1
STATE OF TENNESSEE, ex rel
WILLIE LEE HENDERSON
Petitioner
VS. NO. 4662
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY
NASHVILLE, TENNESSEE
Respondent :
ANSWER
(Filed January 16, 1968)
. Respondent, C. Murray Henderson, for answer to the
_ writ of habeas corpus filed against him in this cause Says:
% That he admits he is in official custody of the petitioner
ut denies that said custody is illegal or unlawful.
A. 50
Technical Record, State Criminal Court
Answer to Petition for Habeas Corpus
Respondent would show to the Court that the allegations
of the petitioner that none or very few members of peti -
tioners race served on the grand and petit jury which in-
dicted and tried him are insufficient as a matter of law.
Petitioner cites no statistics or other pertinent data which
would show to the Court that members of his race were
systematically excluded from the grand and petit jury.
A mere naked allegation of systematic exclusion is insuf-
ficient to raise a question: See Whitus v. Georgia, 385
U.S. 545 (1967), Swain v. Alabama, 380 U.S. 202 (1965),
Brown v. Allen, 344 U.S. 443 (1952), and Patton v.
Mississippi, 332 U.S. 463 (1947). All of these cases
hold that there must be a statistical showing of imbalance
of certain proportion before a prima facie case of sys-
tematic exclusion will be made. Also important is this
Court's decision in the case of State of Tennessee v. James
Walden and Norris Givens in which this Court
[8]
held that Negroes were not systematic ally excluded from
grand juries in Davidson County, Tennessee.
II.
The Respondent would show to this honorable Court that
the petitioner failed to raise the question of systematic ex-
clusion of Negroes from the grand jury which indicted him
at the proper time. That question must be raised prior
to the entering of a plea to an indictment. Petitioner's
attorney at his trial and conviction was on notice that it
was illegal to systematically exclude Negroes from the
grand juries, The case of Strauderv. West Virginia,
100 U. 8. 303 (1879) was decided in 1879 and has been the
t Re W
Ret
A. 51
Technical Record, State Criminal Court
Answer to Petition for Habeas Corpus
law since that date. It was held in that case that Negroes
could not be excluded by law from serving on a grand jury.
There appears to be no explanation advanced for the failure
of the defendant to raise the question at the proper time.
j III.
Respondent urges this Court that the defendant is seek -
ing to make a collateral attack on a valid conviction and
judgment of the Criminal Court of Davidson County, Ten-
nessee. lt is a well settled proposition of law that a
_ habeas corpus cannot be used to make a collateral attack
upon a valid Court judgment.
Now, having fully answered, the Respondent prays that
the petition for writ of habeas corpus filed against him in
this cause be dismissed and that the petitioner be returned
to him for further custody.
Respectfully submitted,
/s/ Robert S. Brandt
Robert S. Brandt
Assistant District Attorney
(Certificate of Service Omitted in Printing]
A. 52
Technical Record, State Criminal Court
191
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. II
MINUTES, JANUARY TERM, 18TH DAY OF JANUARY, 1968
MINUTE BOOK 65, PAGE 31
THURSDAY, JANUARY 18, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL
DEMURRER WILLIE LEE HENDERSON, PETITIONER
VS.
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY,
RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
s
*
petitioner demurs to Respondent's answer on the grounds
that it fails to address itself to the factual allegations in
the petition and therefore is insufficient as a matter of law.
/s/ William Westermann
Court Appointed Counsel for Petitioner .
(Certificate of Service Omitted in Printing]
Filed Jan. 18, 1968
Earl Hawkins, Clerk
*
Sr he
} 7
A. 53
Technical Record, State Criminal Court
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
[10]
_ IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
- TENNESSEE, DIV. 0
MINUTES, JANUARY TERM 21ST DAY OF FEBRUARY,
1968
MINUTE BOOK 65, PAGE 182
WEDNESDAY,, FEBRUARY 21, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L.. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL.
MOTION WILLIE LEE HENDERSON, PETITIONER
ö vs.
C. MURRAY HENDERSON, WARDEN,
TENNESSEE STATE PENITENTIARY,
RESPONDENT .
PETITION FOR WRIT OF HABEAS CORPUS
| MOTION
8 Comes the petitioner and moves the Honorable Court:
‘
P* alte \
Pom
we + *
A. 84
Technical Record, State Criminal Court
Motion
1. To dispose of his demurrer to respondent's an-
swer;
2. To dispose of the issue of legal sufficiency of pe-
titioner’s amended petition, which issue is raised by re-
spondent’s answer; and
3. To allow an early separate hearing on the issue
of whether petitioner waived his right to challenge the
constitution of the grand and petit juries.
/s/ William Westermann
Attorney for Petitioner
(Certificate of Service Omitted in Printing]
Filed Feb. 21, 1968
Earl Hawkins, Clerk
By J. Shea, D. C.
ORDERED THAT COURT STAND ADJOURNED UNTIL
TOMORROW MORNING AT NINE O'CLOCK. :
/S/ JOHN L. DRAPER, JUDGE
A. 55
Technical Record, State Criminal Court
Order
(11)
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. 11
MINUTES, JANUARY TERM 2ND DAY OF APRIL, 1968
MINUTE BOOK 65, PAGE 341
TUESDAY, APRIL 2, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following Proceedings were had, to wit:
4662 STATE OF TENNESSEE, Ex REL
ORDER WILLIE LEE HENDERSON, PETITIONER
ALLOWING vs
STATE :
TO C. MURRAY HENDERSON, WARDEN
AMEND TENNESSEE STATE PENITENTIARY,
ANSWER —s RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
ORDER
It appearing to this Court that the State should be allowed
to amend its answer in the above Styled cause, IT IS
' ORDERED, ADJUDGED, AND DECREED by this Court
that the respondent be allowed to file an amended answer.
/s/ John L. Draper
JOHN L. DRAPER, JUDGE
Approved for entry:
0 William Westerman
A. 56
Technical Record, State Criminal Court
/s/ Robert 8. Brandt
Attorney for Respondent,
ROBERT S. BRANDT
Filed: April 2, 1968
Earl Hawkins, Clerk
By J. Shea, D. C.
1121
MINUTES, JANUARY TERM, 2ND DAY OF APRIL, 1968
4662 STATE OF TENNESSEE, EX REL
AMENDED WILLIE LEE HENDERSON, PETITIONER
<i VS
FILED 5
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY,
RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
An amended answer was received by the Court in this
cause and marked filed this date.
Mr. Robert S. Brandt, Assistant Attorney General for the
State.
(Copy of Amended Answer follows)
Ordered thet Court stand sijourned stil tomorrow morn-
den, if
gd 88 ‘er JOHN L. DRAPER, UDGE
A. 57
Technical Record, State Criminal Court
1130
IN THE CRIMINAL COURT OF DAVIDSON COUNT
TENNESSEE, DIVISION TWO
STATE OF TENNESSEE, ex rel
WILLIE LEE HENDERSON
Petitioner
VS. » NO. 4662
_C. MURRAY HENDERSON, WARDEN
_ TENNESSEE STATE PENITENTIARY
NASHVILLE, TENNESSEE
Respondent J
AMENDED ANSWER
(Filed April 2, 1968)
“- Respondent, C. Murray Henderson, for amended an-
swer to the writ of habeas corpus filed against him in the
A. 58
Technical Record, State Criminal Court
/s/ Robert 8. Brandt
Robert S. Brandt
Assistant District Attorney
(Certificate of Service Omitted in Printing]
1141
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
“TENNESSEE, DIV. u
MINUTES, MAY TERM, 6TH DAY OF MAY, 1968
MINUTE BOOK 65, PAGE 435 |
MONDAY, MAY 6, 1968
CAPTION Pleas at the Court House in the City of Nash-
ville. County of Davidson, State of Tennes-
see, e May Term, 1968, the first
Monday, in May, 1968, and the 7th day of
May, thereof, and one hundred ninety second
year of American independence present and
presiding the Honorable John I. Draper,
Judge of Division Two of the Criminal Court of Davidson
County, e when the See proceedings v were
had to wit:
Division Two of the Criminal Court of Davidson County,
‘Temessee, was duly opened by Walter M. Parrish and
Frank M. Bess, Jr., officers of this Court, and prayer
was offered by the Reverend Giles E., Lewis, Jr., Rector
ee «een Oye.
K
A. 59
Technical Record, State Criminal Court
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
115]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. II
MINUTES, MAY TERM, 6TH DAY OF MAY, 1968
MINUTE BOOK 65, PAGE 449
TUESDAY, MAY 7, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL
ORDER WILLIE LEE HENDERSON, PETITIONER
DENYING ö
PRAYER *.
FOR C. MURRAY HENDERSON, WARDEN,
DISMISSAL TENNESSEE STATE PENITENTIARY,
o RESPONDENT
PET.
PETITION FOR WRIT OF HABEAS CORPUS
a ORDER
os In this cause it is the opinion of the Court that the prayer
x District Attorney representing the respondent for a
3 *
dismissal of the petition for a writ of Habeas Corpus shoul
be and is denied.
The cause will be set for hearing at an appropriate time.
This, the 7th day of May, 1968.
/s/ John L. Draper
JUDGE
Filed: May 7, 1968
Earl Hawkins, Clerk
By J. Shea, D. C.
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
. [16]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. 1
MINUTES, SPETEMBER TERM, 9TH DAY OF SEPTEMBER,
1968
MINUTE BOOK 65, PAGE 754
MONDAY, SEPTEMBER 9, 1968
CAPTION Pleas at the Courthouse in the City of Nash-
SEPTEMBER _ ville, County of Davidson, State of Tennes-
TERM see, it being the September Term, 1968,
1968 the second Monday in September, 1968 and
DIV. the dh day of September. thereof, and on
TO hundred ninety third year of American
5 independence, present and presiding, the
Technical Record, State Criminal Court
Honorable John L. Draper, Judge of Division Two of the
Criminal Court of Davidson County, Tennessee when the
following proceedings were had, to wit:
Division Two of the Criminal Court of Davidson County,
Tennessee, was duly opened by Mr. H. L. Demonbreun
and Mr. N. L. Luther, officers of this Court.
Ordered that Court. stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
[17]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. II
MINUTES, SEPTEMBER TERM, 24TH OF OCTOBER, 1968
MINUTE BOOK 66, PAGE 152
THURSDAY, OCTOBER 24, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee, when
the following proceedings were had, to wit:
STATE OF TENNESSEE, EX REL
WILLIE LEE HENDERSON
VS.
LAKE F. RUSSELL, WARDEN
TENNESSEE STATE PENITENTIARY
A. 62
Technical Record, State Criminal Court
PETITION FOR WRIT OF HABEAS CORPUS
Came the Attorney General who prosecutes for the State
and the petitioner in person.
Thereupon, this cause was heard by the Court upon the
petition for writ of habeas corpus and after having heard
the proof and argument of counsel said petition was taken
under advisement until a later date.
Mr. William S. Westerman, Attorney for Petitioner
Mr. Robert S. Brandt, Assistant Attorney General for
the State. 0
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
; un
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. U
MINUTES, SEPTEMBER TERM, 6TH DAY OF DECEMBER,
1968 :
MINUTE BOOK 66, PAGE 304
FRIDAY, DECEMBER 6, 1968
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of the
Criminal Court of Davidson County, Tennessee when the
following proceedings were had, to wit:
/
Technical Record, State Criminal Court
STATE OF TENNESSEE, EX REL,
WILLIE LEE HENDERSON
VS.
C. MURRAY HENDERSON, WARDEN
TENNESSEE PENITENTIARY
PETITION FOR WRIT OF HABEAS CORPUS
OPINION
This petitioner has filed two previous petitions for
habeas corpus since his imprisonment in the penitentiary
but in neither uf those two petitions did he see fit to raise
ithe question included in this petition. The record dis-
closes that he first obtained the idea of relying on the
question of exclusion of Negroes from the jury from a
newspaper article which showed that this question had
been raised by another defendant and his lawyer in this
In this petition he raises the single question that there
was a systematic exclusion of Negroes from grand and
petit juries in Davidson County at the time he was con-
victed. The answer of respondent challenges the suf-
ficiency of the petition, first on the ground that if there
Was such systematic exclusion it must be raised in a plea
in. abatement before trial and, secondly, it challenges the
factual statements alleged in the petition.
This defendant was convicted on March 12, 1948 in this
county of murder in the first degree and sentenced to serve
ninety-nine (99) years in the penitentiary. He was at that
‘Hime twenty (20) years of age. He entered a plea of guilty
A. 64
State Criminal Court Opinion
{19}
the petit jury was only sworn to assess the punishment.
The question of his innocence was foreclosed by the guilty
plea. He was represented by The Honorable Tom Ed.
Murray, a reputable and learned member of the Nashville
Bar, who was employed by. the defendant's mother. He
found no objection to his lawyer's conduct of his case.
While the legal question of waiver raised by the answer
of the respondent could well be a valid one, the issue was
not resolved on that question but an evidentiary hearing
was had and the decision rests on the result of that hear-
ing. The question is was there a systematic exclusion
of Negroes from both grand and petit juries which violated
his constitutional rights. This cannot be assumed but
must be proven by the petitioner. The petitioner did not
recall whether or not any Negro sat on the petit jury that
assessed his punishment and, of course, he had no knowi -
edge of the makeup of the grand jury that indicted him.
Certain census figures were made a part of the record
but they are silent as to the number of eligible jurors by
reason of age, either Negrq er white. Petitioner Hender-
son called Judge Hart, a retired jurist of this county and
the judge before whom the conviction was had, as a wit-
ness. We believe that the testimony of Judge Hart al-
though it does show that relatively few Negroes served on
the petit juries during the 1940's, that his testimony taken
as a whole certainly negatives the idea of purposeful ex-
clusion of members of the Negro race. The law under
which this defendant was indicted and tried provided the
Same method of jury selection as is used currently in
Davidson County and we have held there is no such ex-
clusion resulting from the present system.
A. 65
State Criminal Court Opinion
{20] .
we conclude that there is absolutely no showing in the
record before us that any segment of the community has
been systematically or deliberately excluded by reason
‘of race Or color and we, therefore, conclude that there is
20 proot to establish the allegations of the petition and it
must necessarily be.dismissed.
nis Sth day of December, 1968.
5 /s/ John L. Draper
John L. Draper, Judge
Filed Dec: 6. 1968
Earl Hawkins, Clerk
By: J. Shea, D. C.
ordered that Court stand adjourned until Monday morning
at nine 2 Clock.
/S/ JOHN L. DRAPER, JUDGE
A. 66
Technical Record, State Criminal Court
: Motion
{21]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. n
MINUTES, SEPTEMBER TERM, 11TH DAY OF DECEM-
BER ANGE nie Nec:
WEDNESDAY, DECEMBER 11, 1968
Court met pursuant to adjournment, presiding, the Honor-
able John L. Draper, judge of Division Two of the Crimi-
nal Court of Dayidson County, Tennessee when the follow-
ing proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL
MOTION ~ WILLIE LEE HENDERSON
vs.
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY
PETITION FOR WRIT OF HABEAS CORPUS
Comes the petitioner and moves the Court to allow peti-
tioner to place into evidence and make of record in this
cause the following facts which are of record in the David-
son County Criminal Court Clerk's Office:
1. That petitioner was indicted on February 12, 1948
2. That the Grand Jury which indicted petitioner was
| selected and impaneled by Judge Gilbert (Min. Book
40, Page 89).
A. 67
& State Criminal Court, Motion
" Petitioner will file duly certified copies of said records
when they are made available.
s, W. S. Westermann
W. S. Westermam
Attorney for Petitioner
(Certificate of Service Omitted in Printing]
Filed: Dec. 11, 1968
Bari Hawkins, Clerk .
By: J. Shea, D. C.
‘Ordered that Court Stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
A. 68
State Criminal Court, Order
122
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. 1
MINUTES, SEPTEMBER TERM, 18TH DAY OF DECEM-
BER, 19868
MINUTE BOOK 66, PAGE 335
"WEDNESDAY, DECEMBER 18, 1968
Court met pursuant to adjournment, presiding, the Honor-
able John L. Draper, Judge of Division Two of the Crimi-
nal Court of Davidson County, Tennessee when the follow-
ing proceedings were had, to wit:
4662 STATE EX REL WILLIE LEE HENDERSON
ORDER vs
C. MURRAY HENDERSON, WARDEN
TENNESSEE ST ATE PENITENTIARY
PETITION FOR WRIT OF HABEAS CORPUS
ORDER
The parties 8 hereto and it appearing
satisfactory to the Court, it is hereby ORDERED that pe-
titioner s motion filed on December 11, 1968, moving the
Court to plaes into evidence and make of record in this
cause the following stated facts which are of record in the
Davidson, County Criminal Court Clerk's Office be sustained
and granted and that duly certified copies of said records
of same be made a part of the record in this cause:
1, That petitioner was indicted on February 12, 1948
(Min. Book 40, Page 282), and
A. 69
State Criminal Court, Order
2. That the Grand Jury which indicted petitioner was
selected and impaneled by Judge Gilbert (Min. Book
40, Page 89).
Js John L. Draper
JUDGE, DIVISION TWO
Approved For Entry:
/s/ W. S. Westermann
W. 8. Westermann
Attorney for Petitioner
. /8/ Robert Brandt
Robert Brandt
Asst. District Attorney General
Filed: Dec. 18, 1968
Earl Hawkins, Clerk
By: J. Shea, D. C.
Ordered that Court stand adjourned until tomorrow morning
at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
*
A.70
State Criminal Court, Motion for New Trial
[23]:
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
ENNESSBE, DIV. II
MINUTES, SEPTEMBER TERM 6TH DAY OF JANUARY,
1969 |
MINUTE BOOK 66, PAGE 348
MONDAY, JANUARY 6, 1969
met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
he Criminal Court of Davidson County, Tennessee when
he following proceedings were had, to wit:
56 STATE EX REL, WILLIE LEE HENDERSON
OTION
FOR VS.
EV C. MURRAY HENDERSON, WARDEN
RIAL TENNESSEE STATE PENITENTIARY
PETITION FOR ‘= OF HABEAS CORPUS
MOTION FOR NEW TRIAL
Comes the petitioner and meek: the Court for a new ,
trial of this cause on the grounds that new evidence has
m admitted by order of the Court on December 18, 1968.
/s, W. S. Westermann
W. S. Westermann
Attorney for Petitioner
(Certificate of Service Omitted in Printing]
Filed Jan. 6, 1969
: Hawkins, Clerk
By: J. Shea, D. C.
A.71
Technical Record, State Criminal Court
Ordered that Court stand adjourned until Thursday morning
at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
[24]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
‘TENNESSEE, DIV. II
MINUTES, SEPTEMBER TERM 10TH DAY OF JANUARY,
1969
MINUTE BOOK 66, PAGE 354
FRIDAY, JANUARY 10, 1969
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL
MOTION WILLIE LEE HENDERSON, PETITIONER
ea vs
NEW |
TRIAL LAKE F. RUSSELL, WARDEN
OVERRULED TENNESSEE STATE PENITENTIARY,
RESPONDENT -
PETITION FOR WRIT OF HABEAS CORPUS
Came the Attorney General who prosecutes for the State.
_ Thereupon, this cause was heard by the Court upon motion
<a
A. 72
Technical Record, State Criminal Court
of the Defendant to be granted a new trial on the hearing
of the petition for writ of habeas corpus which motion was
by the Court overruled,
To the action of the Court in overruling petitioner's motion
for a new trial, petitioner excepts and prays an appeal in
the nature of a writ of error to the next Term of the Court
of Criminal Appeals of Tennessee sitting in Nashville,
which was by the Court granted and the petitioner is al -
lowed thirty days from this within which time to prepare
and file his Bill of Exceptions.
Mr. W. 8. Westerman, Attorney for Petitioner.
Ordered that Court stand adjourned until Monday morning
at nine o clock.
/S/ JOHN. L. DRAPER, JUDGE
*
a
| it RRB
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. n
MINUTES, JANUARY TERM, 13TH DAY OF JANUARY,
1969 ote dee
MINUTE BOOK 66, PAGE 357
MONDAY, JANUARY 13, 1969
John L. Draper, Judge of Division Two of the Criminal
_ Court of Davidson County, Tennessee when the following
proceedings were had, to wit:
Mr. Frank M. Bess, Jr., Mr. Charles R. Hill, Mr.
Walter M. Parrish, Mr. H. L. Demonbreun, Mr. James
Jones and Mr. N. L. Luther, Deputies Sheriff of Davidson
County, Tennessee were appointed by the Court to wait
upon the Court as court officers for the January Term,
1969, Division Two, Criminal Court.
Prayer was offered by Mr. Steve North of the Harding
Place Church of Christ.
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock, n
.
Technical Record, State Criminal Court
A. 73
Pleas at the Courthouse in the City of Nash-
ville, County of Davidson, State of Tennes-
see, it being the January Term, 1969, the
second Monday of Jamary, 1969, and the
13th day of January thereof, and one hundred
ninety third year of our American independ -
encé, present and presiding, the Honorable
/S/ JOHN L. DRAPER, JUDGE
A. 74
Technical Record, State Criminal Court
[26]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. Il
MINUTES, JANUARY TERM, 14TH DAY OF JANUARY,
1969 .
MINUTE BOOK 66, PAGE 361
TUESDAY ,. JANUARY 14, 1969
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE EX REL, WILLIE LEE HENDERSON
PAUPER'S |. 3 ta
OATH
C. MURRAY HENDERSON, WARDEN
_. TENNESSEE STATE PENITENTIARY
PETITION FOR WRIT OF HABEAS CORPUS
A motion to appeal in forma pauperis was received by the
Court in this cause and marked filed this date.
Mr. W. S. Westermann, Attorney for Petitioner.
(A copy of Pauper's Oath follows)
Ordered that Court stand adjourned until tomorrow morn-
ing at nine o'clock.
/S/ JOHN L. DRAPER, JUDGE
A. 75
1276
IN THE CRIMINAL COURT OF DAVIDSON COUNTY
TENNESSEE, DIVISION TwO
.
STATE ex rel, WILLIE
LEE HENDERSON
vs.
OC. MURRAY HENDERSON,
WARDEN, ETC. 0
PAUPER'S OATH
(Filed January 14, 1969)
I, Willie Lee Henderson, do solemnly swear that owing
to my poverty, I am unable to bear the expense of the ap-
peal which I am about to commence in this cause and that
Lam justly entitied to the relief sought, to the best of my
belief.
7s, Willie Lee Henderson
Willie Lee Henderson
‘Sworn to and subscribed before me this 27 day of Dec.
1968.
/8/ Jimmy H. Rose
Notary Public
My Commission Expires: 24 Jan. 1970
sath
Technical Record, State Criminal Court
(28]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. II
MINUTES, JANUARY TERM, 7TH DAY OF FEBRUARY,
1969
MINUTE BOOK 66, PAGE 448
FRIDAY, FEBRUARY 7, 1969
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE OF TENNESSEE, EX REL
BILL WILLIE LEE HENDERSON
OF vs
EXCEPTIONS .
FILED LAKE RUSSELL, WARDEN
. . TENNESSEE STATE PENITENTIARY
PET. WRIT OF HABEAS CORPUS
came the Attorney General who. prosecutes for the State
and the Petitioner in person, who by his attorney tenders
this his Bill of Exceptions to the judgment of the Court in
dismissing the petition for writ of habeas corpus, which
was by the Court signed, sealed, and ordered made a part
of the record.
Mr. William S. Westermann, Attorney for Petitioner.
Mr. Robert S. Brandt, Assistant Attorney General for
the State.
Ordered that Court stand adjourned until 9 1 88 morning
at nine o clock.
/S/ JOHN L. DRAPER, JUDGE
A. 77
Technical Record, State Criminal Court
1291
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIV. 1
MINUTES, JANUARY TERM, 12TH DAY OF FEBRUARY,
1969 .
MINUTE BOOK 66, PAGE 467
WEDNESDAY, FEBRUARY 12, 1969
Court met pursuant to adjournment, present and presiding,
the Honorable John L. Draper, Judge of Division Two of
the Criminal Court of Davidson County, Tennessee when
the following proceedings were had, to wit:
4662 STATE EX REL WILLIE LEE HENDERSON
MOTION vs
10 .
BE C. MURRAY HENDERSON, WARDEN
RELIEVED TENNESSEE STATE PENITENTIARY
as
3 PETITION FOR WRIT OF HABEAS COR PUS
MOTION
Comes now the Court appointed counsel for petitioner
and moves the Court to allow his withdrawal as counsel
on the grounds that his partner, the Honorable Robert H.
Dedman, acts as Special Counsel for the State of Tennes-
See iu habeas corpus matters in the Federal Courts, and
therefore a conflict of interest on the part of said Court
appointed counsel appears to exist.
Js, W. S. Westermann,
Court Appointed Counsel
For Petitioner
A. 78
Technica) Record, State Criminal Court
I have today delivered a copy of this motion to the Hon-
orable Robert Brandt, Assistant Attorney General,
/s/ W. S. Westermann
Filed: Feb. 12, 1969
Earl Hawkins, Clerk
By: J. Shea, D. C.
[30]
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE; DIV. II
MINUTES, JANUARY TERM, 12TH DAY OF FEBRUARY,
1969
MINUTE BOOK 66, PAGE 467
4662 STATE EX REI.
ATTORNEY WILLIE LEE HENDERSON
RELIEVED „5
C. MURRAY HENDERSON, WARDEN
PETITION FOR WRIT OF HABEAS CORPUS
Thereupon, this cause was heard by the Court upon motion
of Mr. William S. Westermann to be relieved as counsel
for the petitioner which motion was by the Court granted.
_ Ordered that Court stand AIOE until tomorrow morn-
mes at nine o' el R. |
/s/ JOHN L. 8 JUDGE
A. 79
Technical Record, State Criminal Court
[31]
BILL OF COST
32 pages at 60¢ per page $19.20
BILL Appeal 75
OF Bill of Cost .50
COST Certificate and Seal .75
TOTAL $21.20
1321
2 OF TENNESSEE
STATE
TY OF DAVIDSON
COUN) .
FICATE I, Earl Hawkins, Criminal Court Clerk
CERTI of Davidson County, State aforesaid,
AND hereby certify that the foregoing is a true
SEAL and perfect transcript of the record in the
t Willie Lee Henderson v. State of Tennessee on a
case of, for Writ of Habeas Corpus, as the same appears
Grd at office in Nashville, Tennessee.
of reco
my hand and seal of Court this 12 day of March,
t f
1969,
/s/ Earl Hawkins
CRIMINAL COURT CLERK
DAVIDSON COUNTY, TENNESSEE
A. 80
State Criminal Court, Bill of Exceptions
IN THE CRIMINAL COURTS OF NASHVILLE
AND DAVIDSON COUNTY, TENNESSEE
DIVISION TWO
(Filed February 7, 1969)
STATE OF TENNESSEE, EX REL
WILLIE LEE HENDERSON PETITIONER
VS NUMBER 4662
LAKE RUSSELL, WARDEN
TENNESSEE STATE PENITENTIARY RESPONDENT
PETITION FOR WRIT OF HABEAS CORPUS
For the Petitioner: Mr. William Westermann
For the Respondent: Mr. Robert 8. Brandt
Asst. Dist. Attorney General
BEFORE THE HONORABLE JOHN L. DRAPER, JUDGE
PETITIONER'S BILL OF EXCEPTIONS |
f
A. 81
State Criminal Court, Direct Examination of Willie Lee Henderson
[3] In the Criminal Courts of Nashville and Davidson
County, Tennessee, before The Honorable John L.
Draper, Judge, October 24, 1968, the following proceedings
were had, to wit:
The Court: "I don't think it's necessary for you to read
into the record the Petition, nor is it necessary for you,
Mr. Brandt, to read the Amended Answer. That brings
us down to the proof, gentlemen."
Mr. Westermann: If Your Honor please, I would like
to introduce this certified copy of the minute record from
the Criminal Court Clerk's office, which is the minute
record of Petitioner's conviction on March 12, 1948."
The Court: I take it there will be no objection to that.
Mark it filed, Mr. Clerk, as Exhibit Number One to the
Petitioner's case.
WILLIE LEE HENDERSON, the petitioner, took the
witness stand and testified as follows, after being first
duly sworn:
DIRECT EXAMINATION
Questions by Mr. Westermann:
Q Would you state your name, please?
4 wille Lee Henderson.
140 And your present age?
A Forty-one.
Mat is your race?
4A Colored.
2 bo you recall the date of your conviction?
A Yes, sir.
And that was March 12, 19487
March 12. ves, sir.
Have you been confined in the state penitentiary in
A. 82
State Criminal Court, Direct Examination of Willie Lee Henderson
Nashville since that time?
A have.
Q What was your age, Mr. Henderson, at the time of
your trial’?
A I Was twenty years old.
Q_ What was the name of the lawyer who represented
you at that time?
A Mr. Tom Ed Murray.
Was he employed by you, or appointed to represent
you by The Court?
A He was employed by my mother.
Q What was your educational background at the time,
Mr. Henderson?
Al was stopped in the sixth grade.
151 Q How old were you at the time you quit school!
A I quit school at fifteen.
Were you ever gainfully employed?
Yes, sir, I worked at a brick yard. Bush's brick
What year did you work at Bush's brick yard.
When I was around about sixteen or seventeen.
Did you work there up, Until the time you were con-
victed of this crime?
A No, sir.
Q What did you do after you left Bush's brick yard?
A I worked around a funeral home, after I left Bush's
brick yard.
Did you reside with your mother at that time? Did
you live with your mother? Bes
Yes, sir.
Where was your father?
My father was dead.
Who else was in the family?
- Aunties and half sisters.
Q
A
yard.
Q
A
Q
FOP OY
A. 8
State Criminal Court, Direct Examination of Willie Lee Henderson
Q They all lived in the same house?
Yes, sir.
Who lived in the house with you and your mother?
A Nobody but me and my mother and stepfather .
Wo is your stepfather?
A That's Ephram Hall.
What's his occupation? Where did he work?
He worked at the brick yard.
Do you know in what capacity?
Yes, sit.
What was his job?
He made bricks.
Immediately prior to and at the time of your trial
and your conviction, were you informed by Mr. Tom Ed
Murray concerning your rights as they related to the
constitution of grand and petit jurors?
r
He didn't tell you anything about it?
A No, sir.
Did you have any independent knowledge of the means
of selection, and your rights relative to grand and petit
jurors?
A No, sir.
D Did your lawyer ever ask you whether or not you
wished to challenge the constitution of the grand jury on
the basis that Negroes were excluded from it?
A No, sir.
7 Did he ever advise you that anything you did
or did not do would effect your right to raise this
issue? Did he ever talk to you about this at all?
No, sir.
5 9 I think you stated you had no knowledge of this
‘That's right.
A. 84
State Criminal Court, Direct Examination of Willie Lee Henderson
Did you have any knowledge that Negroes did not
serve on the grand juries or r petit juries of Davidson County?
A No, sir.
At the time you were convicted?
A No, sir.
Aud your lawyer never mentioned anything to you
about this right to properly constitute the grand or petit
juries?’
A No, sir.
Q How old are you now, Mr. Henderson?
A Forty-one.
THE COURT: Did you go to trial on a plea of guilty,
or not guilty?"
A I didn't plead guilty at all.
THE COURT: “You plead not guilty, then?”
A Yes, sir.
THE COURT: “And the jury convicted you on
Is] a plea of not guilty?" |
MR. WESTERMANN: “Your Honor, I am not
sure that is true. I think the record shows that he did
plead guilty. Does the record indicate that he plead guilty?”
THE COURT: “Why did you'tell me that you did not
plead guilty, when the record shows that you did plead
guilty?”
A My lawyer entered that.
THE COURT: “You know whether you went to trial on
a plea of guilty, or not, don't you?"
A I didn't plead guilty. He pleaded me, and entered
THE COURT: “What you are saying, then, is that your
e ere eS pals Pe yon *
A Must have. .
"Don't say ‘must have. Is that what
A. 85
State Criminal Court, Cross-Examination of Willie Lee Henderson
A Yes, sir, lam saying Mr. Tom Ed Murray.
THE COURT: "I understand who it was, but did your
lawyer enter your plea of guilty for you?"
A Yes, sir.
THE COURT: "But he did it with your consent?"
A No, sir.
191 THE COURT: "Mr. Westermann, my only purpose
in asking those questions is touching his credibility
here. If he doesn't know anything, I wonder what faith I
can give to what he says."
(Mr. Westermann continuing)
Were there any Negroes on the jury which convicted
you? |
A No, sir.
CROSS -EXAMINATION
Q Mr. Henderson, you plead guilty, is that right?
A Sir?
Q You plead guilty?
A Plead guilty.
Mas it in this courtroom here?
Al was tried in Division One.
Did you sit down at the table and stand up and say
ut and they said
8 all I know, and
That's all I know, and |
I didn't plead at all.
Q Did you file a previous Writ of Habeas Corpus
on this question?
.
A. 86
State Criminal Court, Cross-Examination of Willie Lee Henderson
A Ihave hada habeas corpus on it.
Q Has that been granted for the fact that you were
inadequately represented, or tricked into going to the
penitentiary?
A Well, they denied it.
Q Who were you charged with killing in this case we
are talking about now?
A Mr. William H. Cotton.
Q Wat is his relationship to you?
MR. WESTERMANN: “Your Honor, I am going to object
to this type of questioning."
A He wasn't any relationship to me.
Q Stranger?
MR. WESTERMANN: I don't think this has any relevany
to the issues in this proceeding."
MR. BRANDT: I was trying to find out a little some-
thing about the case."
THE COURT: Well, 1 don't believe that would help.“
Q What sentence did you get?
A Ninety-nine years.
{11] Q do you know of your own knowledge whether
there were any Negroes du the grand jury which
indicted you?
A Do I know?
Les, sir.
A As far as I know, there wasn't any. In fact, I chech
and I found out there wasn't any.
As far as you know, there were not?
Yes, sir. ;
As far as you know, there could have been, too?
Well, according to the list I got, there wasn't any.
According to the list you got?
. According to the people that told me about it, there
3 / |
|
at
A. 87
State Criminal Court, Cross-Examination of Willie Lee Henderson
Did people out at the penitentiary talk to you about
it?
A People that came out there talked to me about it.
Wo was that?
MR. WESTERMANN: "If Your Honor please, I object
to this,"
THE COURT: “Gentlemen, I want to know. He has
filed two. petitions here before, and he has never raised
this question, and The Court is interested to know how
he got this information, that now he files a petition. I
think it is proper for him to ask him that."
1121 Aside from your lawyer, who are you telling
The Court has told you that there were no Negroes
on the grand jury?
A I got it from a list in the paper once, ina case that
was out here in court, and 1 had a lawyer check on it.
Q_ Which lawyer?
A Mr. Barrett. He was on my other petition in federal
court, and he raised the issue, and another one told me that
he would put it in my petition for me, later on, then, I filed
this other petition myself, in prison.
THE COURT: "Now are you saying that this question
has been raised in a petition to the federal court, and your
lawyer put it in?" .
A No, sir. I said 1 had a petition in federal court,
and the lawyer I had in federal court told me about the
issues of systematic exclusion.
THE COURT: Did you put it in your petition?"
A l put it in that petition this time.
IHE COURT: “Lam talking about the petition you had
| in federal court?"
HE COURT: | “Why didn't you put that in there?
* Because petition came through the first circuit
*
A. 88
State Criminal Court, Cross-Examination of Willie Lee Henderson
{13] court, and they denied it to the court, and it never
was put in there.
THE COURT: “I am talking about the case now filed
in the federal court. Not filed in the circuit court. In
the federal court.
A The same case was in the federal court and in the
circuit court. It went to the federal court, and they denied
it in the State Supreme Court, and I appealed it to the
District Court, and the Sixth Circuit Court of Appeals.
THE COURT: On, then you appealed that case?"
A On my petition.
Q The question of systematic exclusion of Negroes
from grand and petit juries was not raised before? Is
that right?
A lt was not raised in my other petition?
THE COURT: in your other two petitions?”
A That's right.
Q You are saying that the reason you know there were
no Negroes on the grand jury which indicted you is because
‘you read it in the new: paper?
A Well, they had a case in the newspaper, that was
before I flled this petition, and I got it from there, and I
started getting the laws, and different things, to put in
my petition and filed it.
SOD Ty “Have you been going to school at the penite i
[14]. 4A No, sir, T haven't.
Q. The sixth grade is as far as you have gone?
A ‘That'sright. —
Q In your research, did you come across the case
called Strouder versus West Virginia?
A I don't recall it.
‘MR. WESTERMANN: “If Your Honor please, I can't
under sta: evance of this kind of questioning to the
" eee eee fm
A. 89
State Criminal Court, Cross-Examination of Willie Lee Henderson
the grand jury, or how it is related at all to the outcome."
MR. BRANDT: “If Your Honor please, I am trying to
determine wher 1 found all of this out.
MR. WESTERMANN: "What relevance does that have,
Your Honor?"
THE COURT: I think that is relevant. [am interested
in that inquiry.”
Did you come across that case? Does the name
mean anything to you?
A I don't recall it. I come across many of them, and
I don't remember that one.
Q Mr. Henderson, you testified in the jury box
115] what members of the jury sat in your case. There
were no Negroes at all?
A On the petit jury?
Right.
A l had an indictment. The indictment showed that.
Q The indictment showed there were no Negroes on
the petit jury?
A The minutes of the pages in the court. I checked
that. I had my mother to check that.
do the minutes of the court have people listed as
~ white and colored?
A Sir?
2 do the minutes of the court have that on their list,
like opposite a man's name, do they have black man or
white man?
A No, but they had all the names on there, and she
checked the names. = :
2 > Your mother checked all the names on there, and
found out they were all white people?
A Yes, sir. She had all of that checked.
“THE COURT: "Did you have the same lawyer in both
your other two petitions for writs of habeas corpus?"
ni: ae re
A. 90
State Criminal Court, Cross-Examination of Willie Lee Henderson
(16) . 4 No, sir.
THE COURT: "What was the name of your lawyer
in your first two petitions?"
A he first one was denied. |
THE COURT: “I know, but what was your lawyer's name?"
A My lawyer was Mr. Ellis, the first lawyer I had.
THE COURT: "Mr. who?"
A. Ellis. Mr. Leroy Ellis, and when I went to federal
court, it was a lawyer named Mr. Bass, or something like
that. They appointed him in federal court.
THE COURT: But you filed a second petition in the
circuit court.”
A Yes, sir.
THE COURT: “Who represented you in that one?
A In the second petition I filed, the first petition I filed
was denied. [didn't have no counsel. The second petition
was Mr. Leroy Ellis.“
THE COURT: “In the first . no lawyer?“
A That's right. In the second petition it was Mr.
Leroy Ellis, and I appealed it to the federal court and they
appointed me another counsel."
QQ Did you know, Mc’ Fendéraon,: that your
1171 lawyer, Mr. Lee Ellis, was a leader in the American
Civil Liberties Union?
MR. WESTERMANN: "Your Honor, I again object that
this line of questioning has no relation to the issues in this
case."
MR. BRANDT: "If Your Honor please, I am trying to
show the seriousness of this case. I think it can be shown
that this man had at one time a lawyer who Your Honor
knows is a champion in these causes, and that lawyer
didn't even see fit to raise this question."
MR..WESTERMANN:. "How is that relevant?"
THE COURT: I am going to let him answer that, Mr.
Westermann."
A. 91
State Criminal Court, Cross-Examination of Willie Lee Henderson
MR. WESTERMANN: please note an exception."
(Mr. Brandt continuing)
Did you know that Mr. Ellis was active in American
Civil Liberties Union?
A After that, I did. After they appointed him to represent
me.
Did you know that the American Civil Liberties Union
is pursuing another case out of this court right here involving
the same question? :
A No, sir, I didn't know that.
Q_ Were you charged with killing a white man,
[18] or a black man?
A I was charged with killing a white man.
MR. WESTERMANN: "I object to that, Your Honor.
It is not the question of whether he really killed anybody,
but the question that it was worded that way."
MR. BRANDT: I Your Honor please, this man is not
innocent until proven guilty. He is guilty at this stage of
the proceedings."
THE COURT: "Oh, yes, there isn't any question about
MR. WESTERMANN: “That has no relevance in this
hearing. :
MR. BRANDT: "I am trying to establish if there was
some prejudice involved here. I don't like to see a man
convicted on account of racial prejudice any more than
anyone else does. It goes against my entire moral fiber."
THE COURT: "I think it is competent. The whole
contention is racial prejudice, and that's all it is."
MR. WESTERMANN: “That's true, it is a question of
Systematic exclusion of Negroes from juries which eventually
gets down to prejudice, but how did this petitioner have
knowledge of prejudice back in 19487 I don't see that his
. knowledge of it or lack of knowledge of it is relevant."
N
A. 92
State Criminal Court, Cross-Examination of Willie Lee Henderson
[19] THE COURT: "I will have to determine that
when I get the facts."
(Mr. Brandt continuing)
Q Do you think that you were prejudiced by not having
Negroes sit in the jury box?
MR. WESTERMANN: I object to that, too, and I object
to this whole line of questioning, and please note my exceptions.‘
THE COURT: “Your exceptions are noted. (To the
witness) What is your answer?“
A Well, at this time, I will say that I was. At that
time, I didn't know, because I didn't know anything about
that. At that time, I was in court, and I didn't know
anything about it. ee
MR. WESTERMANN: If Your Honor please, I would
like to note an objection to this matter on another ground.
It gets to the issue of whether or not he feels that he was
done nome weong hy the action of that grand end petit jury,
and that’s not in issue, either.
THE COURT: I am not so sure about that, now, Mr.
Westermann.
MR. WESTERMANN: “When it gets to the question of
whether or not he was innocent or guilty of that act,
{20} that testimony is not competent.
‘THE COURT: “There is no question about his
guilt or innocence. He is asking him now if he thinks,
and I think it is competent, whether or not at that time he
was in any way prejudiced by the fact that there were no
Negroes that sat on that jury."
MR. WESTERMANN: Is Your Honor overruling my
objection?"
THE COURT: "Yes, sir. [think we are now down
to the heart of it.
(Mr. Brandt continuing)
Mr. Henderson, I just want your truthful answer.
. ae
State Criminal Court, Cross-Examination of Willie Lee Henderson
You will not offend me or anybody else by it.
A Well, it's like I said. I said at that time, I didn't
know, but now, since I have found out these things, I feel
that I was.
Looking back on it, you think you were?
A Yes, sir.
And if it developed that there were no Negroes on
the grand jury, you would think the same thing about that,
looking back on it, you think that hurt you, too?
A Yes.
Of course, if there were Negroes on the
121] petit jury, you would know that, because they sat
right here in the box?
A At that time, I didn't know anything about it.
Q_ But I mean you could tell’ by looking at them whether
they were white men or black men, couldn't you? Is that
right? /
A Yes, that's right.
Q But as far as the grand jury is concerned, you never
saw anybody on that grand jury, and couldn't identify them
or testify who they were, could you?
A No, I couldn't.
Q The lawyer who represented you was paid by your
mother. Is that right? ;
A Yes, sir. That's right. Hired by my mother.
Did you ever talk with your mother about the fact
that you were not satisfied with your lawyer, or were not
satisfied with the representation he was giving you?
MR. WESTERMANN: "I object to that, Your Honor.
I would like to limit the state to the issue of systematic
exclusion of Negroes from the jury, the grand jury and
the petit jury, and the answer to that question has no
relevance whatsoever ."
. BRANDT: “That question has relevance, if Your
eres 32
A. 94
State Criminal Court, Direct Examination of Willie Lee Henderson
(22] Honor please." 7 ,
THE COURT: (interposing) I would like to
know that. I think it is proper for him to make that inquiry."
MR. WESTERMANN: Are you talking about the time
he was convicted, or what time?"
THE COURT: “The day of the conviction."
MR. WESTERMANN: I still object to that line of
questioning."
THE COURT: "Well, Iam going to overrule it."
MR. WESTERMANN: Please note my exceptions."
(Mr. Brandt continuing)
Q Did you express to your mother your desire to
have a lawyer other then Mr. Murray?
A No, I never did express to her.
Q Il other words, you were satisfied with the represent:
tion Mr. Murray gaye you?
A Well, my mother hired Him. All I know, he was
supposed to have been representing me, and as far as knowing
anything about the law, at that time I didn't know anything
about the law. |
THE COURT: “He is not asking you about the law.
He is asking you about one thing. Were you satisfied with
the representation Mr. Murray gave you, or were you dis-
satisfied with it?"
1231 A Il had to be satisfied, it was my mother that
hired him.
THE COURT: No, sir, you didn't have to be satisfied.
We are trying to determine that. Were you satisfied, or
were you dissatisfied?" ;
A It’s all I could be, was satisfied.
THE COURT: “All right. Can it be said that you raised
no objection to your mother about it? Is that right?"
A That's right.
_ At this time, — tevin the wines
stand.
A. 9
State Criminal Court, Affidavit of Tom Ed Murray
MR. WESTERMANN: "If Your Honor please, at this
time I would like to introduce the affidavit of Mr. Tom Ed
Murray, who represented the petitioner ."
THE COURT: All right. vou may read it."
At this time, the affidavit was read by Mr. Westermann
as follows: .
IN THE CRIMINAL COURT OF DAVIDSON COUNTY,
TENNESSEE, DIVISION TWO
STATE OF TENNESSEE, ex rel
WILLIE LEE HENDERSON
Petitioner
vs. No. 4662
C. MURRAY HENDERSON, WARDEN
TENNESSEE STATE PENITENTIARY
NASHVILLE, TENNESSEE
Respondent
124 AFFIDAVIT
Tom Ed Murray, who after being duly sworn according
to law, deposes and Says that:
as
I represented petitioner herein when he pleaded guilty
to the crime of first degree murder which plea resulted
in a conviction and sentence now being served. I had been
employed by petitioner's now deceased mother.
11.
Thad no knowledge at the time the plea of guilty was
entered, nor have I any present knowledge, that members
el petitioner's race had been systematically excluded from
on the Davidson County Grand Jury, either from
A. %
State Criminal Court, Affidavit of Tom Ed Murray
the grand jury which indicted petitioner or from grand juries
prior to that grand jury.
111.
I had no knowledge at the time the plea of guilty was
entered, nor have I any present knowledge, that members
of petitioner's race had been systematically excluded from
service on Davidson County petit juries, either from the
panel from which the jury which sentenced petitioner was
selected or any earlier panels.
1251 IV.
Ihave never been aware of any irregularity in the method
of selection of grand or petit juries, particularly in regard
to systematic exclusion of members of any race, so there
was never occasion to advise the petitioner of any rights
that he may have had in the composition or method of
selection of the membership of grand and petit juries, nor
did I advise petitioner that any action by me for failure to
act would waive or affect his right in regard to the composi-
tion or method of selection of grand or petit juries.
‘ : { * * 5
V.
lam not now aware and was not aware at the time of
petitioner's trial that petitioner had knowledge of any of
the matters referred to in the previous parts of this affidavit.
If petitioner had any knowledge of any irregularities
in the composition or method of selection of grand or petit
juries, either at the time of trial or subsequent thereto,
he never made this knowledge available to me.
Further deponent saith not.
(s. Tom Ed Murray)
A. 97
State Criminal Court, Proceedings
[26] STATE OF TENNESSEE
COUNTY OF DAVIDSON
Subscribed and sworn to before me this the 23rd day
of February, 1968.
„(s. Mary L. Brackman)
; Notary Public
My commission expires 8-17-68
THE COURT: Let it be marked filed, and it will
become a part of the record." 4
MR. WESTERMANN: “Your Honor, I would like to
bring to The Court's attention, although you are probably
aware of the fact, that the grand jury selection in 1948
was controlled by Tennessee Private Acts of 1947, chap-
ter 53, and also petit jury selection was controlled by
that. I would like for that to be made a part of the record,
and also the qualifications required for jury service, which
is controlled by TCA 22, Section 101 lt requires that
they be citizens of the United States and residents of Ten-
nesse e, and in the county for twelve months prior to service."
THE COURT: "I think you are exactly right about those
things. 5
MR. WESTERMANN: And at this time, I would
like to introduce information from the Board of
es Census in Washington relating to the population of
Davidson County, the Negro population of the county for
1940 and 1950, and the population of the persons twenty -
one years and older for 1940 and 1950, with information
relative to how many were white and how many were not
White, and the total population. This is certified by the
Director of the Census."
.= THECOURT: “All right, sir."
A. 98
State Court, Direct Examination of Judge Hart
MR. WESTERMANN: “The total population in 1940
and 1950 for Davidson County, Tennessee, 1940 was
257,267. The total white population for that year was
200, 454. The total non-white population was 56, 813.
In 1950 the total population was 321,758, of which the
white population was 257,289, and the non-white was
64,465. The population twenty-one years and over for
1940 and 1950, the total population was 168, 337, of which
129, 868 were white and 38,469 were Negro. In 1950 the
total population twenty-one years old and over was 211, 930,
of which the white population was 168,706, non-white
43,224." 3 |
THE COURT: Mark it filed, Mr. Clerk, and let it
become a part of the record.”
At this time, Judge Chester K. Hart was called by the
_.~ petitioner, took the witness stand, and his oath
1281 ee. testified as follows:
DIRECT EXAMINATION
Questions by Mr. Westermann:
Would you state your mame, please, sir?
Chester K. Hart.
And your age?
Eighty -five.
And your address, sir?
2509 Oakland Avenue.
Would you state to The Court information concerning
your years of service as Criminal Court Judge of one of
the criminal courts of Davidson County? In what year did
you begin service?
A n 1922.
Wen did you retire?
A In 1958.
SO =
A.99
State Criminal Court, Direct Examination of Judge Hart
Was there another Davidson County Criminal Court
at that time, sir?
A Yes. When I went on the bench, there were two
criminal courts.
Q Who was judge of the other criminal court?
A Judge M. DeBow.
[29] Q_ This was in 19227
A Yes. Now, the court was created in 1920.
Judge Gerrard was appointed. I ran against him, and he
was on the bench for two years, and Iwenton. There
_ Was just one criminal court up to that time, and from then
an, two, up until right recently.
Q Who was the judge of the other court from the years
1943 through 19537
A judge Gilbert was on for twenty-six years, I believe.
Judge Blackart was on
l understand Judge Gilbert retired in 1958. Is that
correct?
A Yes.
And he was judge prior to 1943?
A Ithink so. I believe he was, twenty-six years, |
believe.
Q Judge Hart, would you tell The Court, please, the
method of selection of grand jurors which you employed
after 19477
A After 1947, the legislature changed the law, and
the judges were not limited to the list furnished by the
jury commission and the judges could select whomever
they thought would make good grand jurors, and we were
not in any way, as | recall, limited in our judgment on
the matter. We could use our best judgment. That's
the way I recollect it.
3 5 Q Would you state to The Court, please, the
method of selection which you employed during the
22
A. 100
State Criminal Court, Direct Examination of Judge Hart
years from 1947 until 19537 The grand jury.
A The way I did, from 1947, I started out when it was
the responsibility of wholly mine, and I was acquainted with
people all over the county, and I tried to seléct people that
I thought would give everybody a fair hearing and people
chat felt the responsibility of doing things right, and I
selected men that way, that I thought were best. Sometimes,
when I would get the jury list, if I found people on there tht
ithought would make good grand jurors, I selected some
from there. I used my own judgment as to what I thought
would be the best panel of jurors that I could get. I did
do this. I tried to get on various occupations, and things
of that kind, so there would be a general knowledge in the
jury of most anything that might come up. The court, of
course, couldn't do much toward saying what the grand
jury did. We had no control over them, and they could
do whatever they thought was proper, so far as whether
they indicted or not. We tried to get men we thought
would be fair to everybody .
ls it a correct statement that you generally selected
those persons whom you knew?
[31] A Well, I knew them, or knew of them. I
i wouldn't say that I knew everybody on the grand
jury before I put them on, but I had information about them,
what kind of people they were, before they went on the
grand jury. I didn't select anybody at random for the
grand jury.
And this was the method of selection that you mr
from 1947 up through 19537
A 1958.
Q . Until 19587
A Yes.
Do you recall ever selecting a Negro to serve?
Let me ask you this. Was there only one grand jury in
A. 101
State Criminal Court, Direct Examination of Judge Hart
Davidson County at any one time?
A There.was only one grand jury at any time in Da vid
on County.
Ho was the responsibility for selecting the grand
15 divided up among the two criminal court judges?
ae For some time, and I don't know just how long it
was, the two judges selected them. One would select
part of them and the other would select part of them. They
1 Q This was probably 1947, then?
[32] A Ves. From the time I started in down at
2 the old court house, for a while, and I don't know
when they changed it from the time when the judge selected
the foreman, they changed it so he selected the whole
grand jury. I don't know what date that was.
THE COURT: “The Acts of 1947 make it the duty of
Division One and Division Two to alternate in the selection
of the grand jury."
A Before that time, each one selected some off of the
list.
Q So after 1943, you selected half of the grand jury
“and Judge Gilbert selected half?
A No, after 1947 he would have one term, and we
2 Given a particular grand jury, one judge selected
all the members of that particular jury?
A mn alternate terms, yes.
2 One grand jury was selected wholly by one judge,
and the next grand jury would be selected wholly by the
other judge?
*
A. 102
State Criminal Court, Direct Examination of Judge Hart
A In 1947.
Do you recall having selected a Negro to serve on
any of the grand juries?
133 A No, I don't think I did. I will make an
explanation of that. It wasn't a question of whether
he was black or white. As I said a while ago, I selected
grand juries that I thought would give everybody a fair deal
all the way through and a grand jury that if I was charged,
I would have wanted to pass on mine. I felt when they pu
that obligation on me, saying it was up to me to select the
grand jury, that I had the obligation of selecting one that
would be fair to everybody, and that's what I tried to do.
If I remember correctly, I don't think I put any Negroes
on the grand jury, because you asked me a question a while
ago, did I know everybody on the juries. I grant you, |
didn't know everybody on the grand jury before putting them
on, but I knew their reputation and the kind of people they
were, and I selected—well, I was after the good people
for the grand jury, and I didn't put anything on there but
the best.
Io the best of your knowledge, who was the first
Negro grand juror selected n Davidson County after 1940?
A The first I remember was H. H. Walker,
QI say after 1940. Do you recall any serving on the
grand jury prior to 1940?
A No. Ican explain that to you to some extent.
(34] Not about on the grand jury, but for a long time wha
colored people were
Q (interposing) Excuse me a moment, but I am gettin
to che petit jury in a moment.
A Iwas getting back to that myself. The judges had
nothing to do with who was on the list. The jury commissia
had their responsibility to select people, and they made out
the jury list. It was, at one time, at first the jury list,
A. 108
State Criminal Court, Direct Examination of Judge Hart
after being gotten out, that was for the same jury commission
selected the circuit court jurors as well as the jurors that
were to be used in the criminal court. The court officers,
at that time, were given the lists. They had six court of -
ficers, and they were put in different localities. One
would have one section and another would have another,
that way, and they then returned to the court the list to
show those that had been found, or had not been found, or
who were dead, or had moved, and things of that kind, and
then the list would be turned over to us, and as I understood
my duty at that time in the selection of jurors, was to try
to select jurors from every section of the county and from
10 particular industry, or things of that kind. ‘Then we
took the list and looked them over, or I did. I don't know
whether Judge Gilbert did, or not. But if I found
{35} on that list anybody that I knew was not fit for jury
service, and if I knew that if he was summoned to
come in that I wouldn't let him serve, I struck his name
off the list.
What criteria did you use to make that conclusion,
that they were unfit?
A Well, mostly criminal, and the reputation that they
had. Probably I didn't know what some of them were, but
if they had a reputation of being bootleggers, or working
in che numbers game, or gamblers, or things of that kind,
I struck them off, because I wouldn't let them serve if they
ame in. One reason for that, as 1 understood it, when
the list had been made out, before it became permanent,
it was supposed to be turned over to the judges to do the
very thing that I did at that time, that I didn't have the
‘Opportunity to do before, because the jury lists were made
_ Sut such a short time before they had to draw the jury that
they over to the judges on some occasions
and so when they were summoned I took them
2
A. 104
State Criminal Court, Direct Examination of Judge Hart
off, and I didn't summon them again.
Do you remember the year when Dr. H. H. Walker
first served?
A No, I don't.
136 Q Can you remember within three or four year
Can you say approximately what year it was?
A No, I don't know. I would have to guess, and my
guess wouldn't be any good.
Do you think it was after 19477
A Yes, I know it was after 1947. [am pretty certain
of that. | :
Dr. H. H. Walker is a Negro, and he is the first
Negro you recall serving?
A I believe I am right about it, but you can look up
the records and get the absolute facts.
Q Youscovered a question in answering a previous
question. The method of the selection of petit jurors which
you employed, and without repeating that, I would like to
try to get the point in. When you finally got a group of
people from which you selected a panel of actual jurors
to be selected, how many people would it take to get the
panel? 1 5
A I told you twenty-four, I thought, but it was twenty-
one.
Q_ So you eventually select a group of twenty-one people!
A Oh, yes. Along at the last there, we had jurors
for three weeks. First, we selected for a whole term.
We would send the list out to the officers, and we would
then select four panels of twenty-one, each one of
1371 us
Q You selected four panels, and this would
cover the whole term?
A Les, we would select four panels, some for the
three weeks, and then another, and then another.
A. 105
State Criminal Court, Direct Examination of Judge Hart
mis was for the whole term?
A Yes. That would take up the whole criminal court.
The jurors, after being brought in court, served in both
divisions. They were not limited to this court, or over
there.
Back in 1922, in the beginning of your service as
criminal judge, were any Negroes on any of the four groups?
A There wasn't any four groups back there. Just one.
Q Out of the groups from which you did select the
twenty one
A I don't know.
Wen did you start selecting four groups of twenty -
one?
A When the jury was limited to three weeks. At one
time, you would select them for the whole term.
Do you remember when this change took place?
A No. The law changed it. we didn't.
Q Presuming it was changed in 1947, back in 1922
and up until 1947, were Negroes present among these panels
from which the actual trial jurors were selected?
1381 A Negroes were on the lists, if that's what
you mean.
How did you know that?
A Well, I think, if I remember correctly, back earlier
they were marked colored. I believe they were. Iam
not certain. I think at one time, the jurors were marked
as colored or white. There was no harm to that, but it
was John Jones, colored," or “John Jones, C." That's
the way I remember it. Back in those early days, I don't
remember whether they were on the jury list or not. I
dad nothing to do, at that time, with the selection of the
jury. They were already selected, as far as I remember,
and that went on for a number of years.
Do you recall seeing Negroes in these groups of
e
A. 106
nn en Direct Examination of Judge Hart
twenty-one from which the actual trial jurors were selected’
A they came in. A lot of them wanted off, and some
of them would serve.
Q Back in 19227
A Oh, no. a
lam talking about 1922 until approximately 1947.
A ‘That's what 1 bad in mind. That's what I was trying
to tell. We didn’t have four juries. —
lam talking about the panels selected from 1922
until 1947. Were Negroes represented?
1391 A Ves. There were Negroes on them.
Q In 19227
A No, I don't remember that. My opinion is there
weren't any. I don't know.
What about 19477
There were Negroes on there before 1947.
In the panels from which the jurors were selected?
Yes.
The actual jury trial jurors?
Yes.
Do you remember how many?
Are you talking abouf that were selected, or that
were on the
Q That were actually on the panel. I am talking about
the actual panels from which the twelve people were selected
to try cases. Were there Negroes in that group, prior
to 19477.
A l don't know when the Negroes started to serve.
For a long time, you couldn't get one to serve, and if
an officer tried to serve a subpoena on them, they were
all afraid he was trying to arrest them, or something,
and they would say they didn't live there. I was told that
by the officers when they would go out to get a witness,
RS eet or aa apa kind, the people would:
* : e
FOF OD PD PO
A. 107
State Criminal Court, Direct Examination of Judge Hart
[40] tell them. They would ask, Does John jones live
here?" They would say, No, sir, I don't know
him, ",and they couldn't get any information. We had no
control of that.
From the panels from which the active twelve were
selected, were there Negroes on those panels?
A Yes. We selected them. yes.
Q Prior to 19477
A No, I don't remember when they first began to be
put on. I don't know whether they were in the jury box
or not. a
2 Do you recall whether it was about the time that
H. H. Walker first ser ved as grand juror?
Al am of the opinion it was some time before that.
Do you recall when Negroes started to appear on
the jury panel from which the actual twelve were selected?
A Well, no.
Can you recall the actual number of Negroes that
you saw on one of those panels?
A No, I didn't try to count that.
Do you think it was more than four?
A Do you mean on the panel that was furnished me?
Q From the panel that was furnished you from which
twelve people would be selected to try a case.
141 A The five hundred?
No, Iam not talking about the five hundred,
Judge Hart. Iam talking about the actual group of people
from which twelve were selected to try a particular case.
There were a group of jurors, and from that group an
actual trial jury of twelve would be selected to try a case.
This is the group I am talking about. I have been calling
at the jury panel, I don't know whether accurately so,
but I am talking about the actual jury of twelve that would
do selected to try a case. In that final group from which
vr.
A. 108
State Criminal Court, Direct Examination of Judge Hart
the twelve were selected, were Negroes present?
A Yes. Let me explain this to you. judge Gilbert,
after selecting the twenty-one jurors for the term, had
what he called jury number one. When he opened court
they would bring in jury number one. In my division, I
would tell the officer, Get me a jury." I didn't know who
was coming or who didn't come. There were colored
people on the jury, usually. Not too many of them, because
sometimes in selecting these four we would have colored
people on the second, third, or fourth jury and they never
did come back.
Q How many Negroes were on these panels? Let's
start in 1958.
A Lou know the question of whether they were white
or colored didn't impress me one way or the other
{42] until the proposition started here about the Negroes
weren't being treated fairly.
QI did not mean to imply that at all.
A That's the first time that I paid any attention to whette
they were white or black in the selection of them.
What I am trying to get to, though, is do you have
a recollection of the maximum ‘number: of jurors which
served on a panel from which the actual twelve were selected.
A Well, the panel was twenty-one.
Q Were Negroes on the panel of twenty-one?
A Yes, they were on those panels.
What is the most number of Negroes you ever saw
on a panel of twenty-one?
A la my court, two or three.
Were there panels of twenty-one where there were
no Negroes?
A Yes.
Q Were there more instances of no Negroes on the
panel of twenty-one than there were of some Negroes on
A. 109
State Criminal Court, Direct Examination of Judge Hart
the panel of twenty-one?
A I think so. Back early in my time on the court,
there were very, very few Negroes, if any. I don't know.
At that time, there wasn't any question raised about white
or black or anything of the kind, and I don't remember.
Starting back in 1922, were there very few,
143] if any? '
A Yes. Few, if any.
And then in 1958, at about the time you retired,
were there any then?
A Yes, it picked up after the question of Negroes
being on the jury — I think the jury commission, you know
they laid out new panels, new boxes, and I think they put
them in more. We had a trial here in court, in judge
Gilbert's court, and I sat here with him, and the jury
commission was called in. They wanted to see the jury
box. They wanted to open it and look at it. Well, we
wouldn't let them do that, because it's against the law
for anybody to do that, but we told them they could summon
in any of the jury commission to testify, and they summoned
them and they testified that there were many Negroes in the
box. A lot of these things you asked me before, I have
been thinking about it all together, and that's exactly correct.
I didn't know how many were on the panel myself. I asked
Miss Alma and she said it was twenty-one. I thought it
was twenty-four .
Q Seon the panels of twenty-one as late as 1958,
there were never more than three Negroes?
A That's just my recollection of it. There were more
than that supposed to be on there that didn't come back.
After they were put on the jury, they didn't come
[44] back, and we had to fill them out with other people.
„ And you say there were panels of twenty -
one which were all white? ö
A. 110
State Criminal Court, Direct Examination of Judge Hart
A Yes.
Did the panels of twenty-one which were all white
outnumber the panels with Negroes?
A I think so.
Q Is it an accurate statement that eighty percent of the
panels of twenty-one that were selected were all white?
A I don't know about this percentage proposition. I
wouldn't say eighty or ninety or what, but of course the
great majority were white. The jury commission was sup-
posed to select them from different all sections of the county,
and different districts according to the number of people
‘that lived in them, and things of that kind, and of course
that made it work out that way, because there were many
districts of the county where there were few Negroes, if
any, and so necessarily the jury box included more white
than it did colored. I have been thinking about this thing
since you talked to me about it, and I am cxying © make it
as positive as I can.
Q To the best of your recollection, what per-
[45] centage of these panels were all white? Eighty
percent? Ninety? Seventy -five?
A Well, for a long time, as I told you, there were
no Negroes.
lam talking about from 1945 to 1958, to be reasonably
accurate.
A I wouldn't want to make a guess on the percentage
of them. I had rather tell you the facts as | remember
them. I wouldn't want to make guesses.
Q Asa matter of fact, were the vast majority of the
panels of twenty-one all white?
A Some of them were, yes. You see, we would try
to select them from all over the county.
Q ho often, Judge Hart, were the names in the jury
boxes from which these lists were made changed?
A. 111
State Criminal Court, Direct Examination of Judge Hart
A Well, there was no time for it, and that was fixed
by statute for them to do it. We would have a box with
the jurors in it that would last for many years, sometimes,
and then another thing about that would be when the same
ones were in there, and we had to exclude the same ones
that had served in three years i think it's two years after
1947, isn't it, Judge?
THE COURT: it is still three."
Do you mean the names in the box were
{46} changed every three years, or were they not allowed
tc serve again under three years?
A They couldn't serve only one time in the three years.
That meant that we would send a ticket to the jury commis-
sion of those that had been selected, and they were then
Supposed to put them in the box after three years.
How often were the names changed in the first box?
A Well—
Q_ The box in which all the names were listed.
A Well, some of them were put back anyway. We
had to strike a lot of them that had been on, and the com-
mission made a mistake in putting some of them back,
but the law was that they were not to serve but once in
three years, and when they would come in, we would ask
them how long it had been since they had been on the jury
‘And if they had served on a jury within three years, we
would excuse them.
Q What I am trying to get at is how often new names
were put in the jury box?
A If I remember correctly, there was no particular
time for it. When the panel—when the jury box got down
to where it was hard for the court to get a jury of jurors,
‘then we, and Judge Lankford was chairman of the board of
judges, and we would have meetings and they would
: ask the jury commission to fill up the box. I don't
war.
2
A. 112
State Criminal Court, Direct Examination of Judge Hart
know how often that was.
THE COURT: "That's still the way it is done. You
have stated it right. When the jury box gets so low that
we can't get people who haven't served in the last three
years, then we ask the jury commission to replenish the
box. There used to be ten thousand, now it's twenty
thousand.
Q What I want to know is how often the new names
were put in.
A That depended on whether or not the lists were
Was it twenty-five years, two or three years?
A It was several years, I think, before we changed.
Just when the jury box got low and we would have a hard
time getting jurors and we asked the jury commission to
make us out a new one.
Was it more than two years?
Oh, yes.
Was it more than five years?
I guess sometimes.
I wondered if you had knowledge of it.
Thad knowledge of it at the time. When we needed
it, we would ask the jury commission to get us another.
Was it more than four years?
[48] A I think it was, and during the meantime,
a whole lot of them would be used.
O Of the actual juries of twelve which tried cases,
do you recall during your term of service whether there
were Negroes on those juries?
A Yes, there were Negroes on the juries.
Q. Do you remember the most you ever saw?
A No.
MR. BRANDT: H Your Honor please, I object to this.
Wie are getting into a matter of peremptory challenges
ae en mann ae thay ght Mt; end I dont,
POPD © O
A. 113
State Criminal Court, Direct Examination of Judge Hart
see how it shows anything.
MR. WESTERMANN: "I understand there's a case
before the Supreme Court, I think it has been disposed
of, that has in issue the rights of peremptory challenge
of Negro jurors on a discriminatory basis. This is state
action which has resulted in discrimination, and I want
to be prepared to raise that issue."
JUDGE HART: “Did I understand you to say that the
question has been raised whether a man could challenge
anybody he wanted to?"
MR. WESTERMANN: »I think, yes. I think so."
JUDGE HART: “Well, that never was raised
[49] when I was in the courthouse."
Do you recall that Negroes did serve?
A Oh, yes.
Do you recall that there were more than one on
any particular jury of twelve?
A I didn't pay any particular attention to that. [If
they were on the panel, as they came in the lawyers took
them, and that was all—1 didn't notice. I dont remember,
but a few, like I told you. For a long time the colored
people would come in and get excused. They didn't want
to serve. Then after the question of discrimination got
to be a big thing, then the Negroes began to serve without
asking to be off. Now, a lot of them, even after that,
that had regular jobs, and at that time the jury paid just
two dollars a day, and they wanted off and we let them off
because they weren't able to stand being off.
Wat I am getting at, what was the percentage of
all white juries? Can we get to that?
A There were a whole lot of all white juries.
Q Do you think the percentage of all white juries
relative to the total juries was over eighty percent?
A I don't think it is proper for me to guess. I would
Bey on.
A. 114
State Criminal Court, Direct Examination of Judge Hart
150] just be making a guess, if I do that. I don't keep
up with that. I didn't try.
Q Re SE NE Pte Hine Sem Larges On any
jury of twelve?
A ais be dak diet wae om tecte would be ail.
Can you recall what you observed in this regard
back in 1947 and 19487
A No,
Q. Do you 3 having Negroes on the petit juries
back in 1947 or 19487
A No. No. I don't know whether that was the time
that Negroes began to serve or not. It may have been
before that. There were Negroes in the jury box that
were summoned to come in. Some of them wouldn't
come, and some of them that did come didn't want to
serve, and some that came in, they had a job, and just
the two dollars a day was a hardship and they asked to be
let off, because they had families and things of that kind,
and I felt it was my duty to let blacks off if it was injurious
to their making a living.
on the panel from which you selected the panel of
twenty-one, were there as many as ten percent Negroes
on it?
A Sometimes more than that. Iwo ox three. At
that time, I never thought of this kind of question being
rasied, and I didn't keep up with it. There were not too
many colored people serving, no. Not until
[51] recently were they willing to serve.
l think it is a correct statement that there
were very few or practically no Negroes serving on the
petit juries in 1922. Toward the end of your term of
service in 1958, you found as many as three on these
final panels of twenty-one.
A. Iwill give you my recollection of it. For a numbe
4
A. 115
State Criminal Court, Direct Examination of Harry G. Nichol
of years, I don't remember when I first went on the bench
that there were Negroes on the jury at all, summoned, or
on the list or anything, way back there. The jury com-
mission was in service at that time.
Was this a kind of a general progression up to the
time when you left the court in 19587
A I think from 1950 to 1958 it picked up a little. That's
my recollection.
There being no further questions, the witness withdrew.
HARRY G. NICHOL was called by the petitioner, and
his oath being waived, testified as follows:
DIRECT EXAMINATION
Questions by Mr. Westermann:
Win you state your name, please, sir?
A Harry G. Nichol.
152 Q What is your age, please, sir?
A Seventy last month. I just had a birthday.
Q Mr. Nichol, you served as Attorney General and
Assistant Attorney General for Davidson County, Tennessee.
for a number of years?
A Yes, sir.
Would you state your years of service, and in what
capacity you served, particularly between 1940 and 1955.
A From 1940 to 1955, I was in the district attorney's
office during that entire period. I have been in three times
and out twice. The voting public sometimes don't see things
right.
Q But you were in the district attorney's office from
* 19557
A Yes, sir.
e During the year 1940 and up until 1948, were you
in the activity of presenting cases to the grand
Te
A. 116
State Criminal Court, Direct Examination of Harry G. Nichol K
juries of Davidson County, Tennessee?
A Yes, sir.
Q Was anybody else in your office involved in that
activity?
A Les. I spent the greater part of my time in the
grand jury division. I had had some courtroom experience.
For eleven years I did not. I had an assistant who
[53] worked in that division, and I had a secretary and
a few officers.
Q Do you think that you observed every grand jury,
personally observed members of the grand juries of
Davidson County, from 1940 to 1955?
A I would say I had very close contact. Yes.
Q Do you think you saw every grand juror?
A Oh, yes.
Q Do you recall during that period of years when the
first Negro served on a grand jury, between 1940 and 1955?
l remember individually. The year, I cannot give.
I remember the first one was a doctor, H. H. Walker,
who ha to be also commander of the colored American
Legion a very outstanding citizen, and he served on
the grand jury on two different occasions. Two different
terms. That's the first one I remember, Dr. H. H. Walke
Q Can you possibly give the year which, to the best
of your recollection, is the first year he served?
A It was in the years you state. I would say early
‘50's. I will say this. 1 have been subpoenaed several
times on a hearing like this, and somebody told me on one
of the hearings in Division One it was 53. That might be
right. It's about that.
[54] Q That's not inconsistent with your thinking?
A That's right. 1 have no independent recol-
lection. 7
Q During your term of service as attorney general 85
A. 117
State Criminal Court, Direct Examination of Harry G. Nichol
and assistant attorney general in 1940 until 1955, did you
try many cases before criminal court juries?
A In the thirties, I was the regular trial attorney,
and for a period of years I was continuously in court. 1
don't believe that the years you gave, I was in court very
much.
Q Between the years 1940 and 1948, did you have
occasion to observe petit juries in criminal courts?
A Some.
Do you recall whether or not Negroes served on
those petit juries between 1940 and 1948?
A I can't answer that for this reason. You give me
years, and that's twenty years ago, and I m not the best
one in the world on time. I have seen them, but now
frankly, you're talking about twenty years ago now. I
have seen them many times, but I can't place the years,
frankly. I do remember the grand jury, though. That
was outstanding to me, and I knew them individually .
I would like to talk about the years from 1940 to
1950 as to petit juries. If you can't remember exactly
tte years they served or didn't serve, if you could
1551 give me some kind of information as to the numbers
of actual petit jurors who were Negroes.
A That's a matter of guess and speculation. We used
to have in the clerk's office where they were listed, the
name, and he would put a little "c" by it. I don't know
whether those cards are still there or not. For the last
several years they aren't making that identification. That's
the best way I know to tell, that card system they had one
time. Mr. C. H. Smith kept it, and I understand Mr.
Hawkins kept it. would have to refer to that if it's still
stopped about four years ago putting
A. 118
State Criminal Court, Direct Examination of Harry G. Nichol
A. It was about two years before I left office, and I've
been gone over two years.
Do you think they kept all those cards?
A It was my understanding they kept them. I had no
occasion to inquire, but I was interested in elections and
I used to refer to them quite often, then when I was elected
the last time and didn't have any intention to run, I didn't
go to them.
hut these were back in the clerk's office you say
two years ago?
A Iwo years the first of September.
1561 Were many Negroes serving on grand juries
ſcdzdhen
A I noticed in recent years they were increasing in
numbers.
Q_ What is the highest number you ever saw, even in
recent years, serving on the jury?
A I was here in the courtroom here one day, this is
since I left, and I saw women and colored people constituting
the majority of the jury, which was unusual odds and that
just struck me when I walked in che courtroom. It was
more than I had been used to-
Q Would you say there were more than—
A (interposing) I would say ten percent was the
maximum.
Q Ten percent was the maximum?
A l would say that. Yes.
Q — And that includes up until two years ago?
A And I will say that's the maximum. Yes. That's
just more or less speculation and guess.
Wat percentage of the juries you observed were
all white?
A Ihave seen grand juries all white.
Wat percentage of the petit juries that you observed
A. 119
State Criminal Court, Cross-Examination of Harry G. Nichol
over this span of years between 1940 and 1953 were all white?
A Well, most times, those in the box trying cases
were white. What were in the room, and what got excused
by the court, or anything like that, I can't answer that.
I would like to, but all the juries I would see was
157] mostly in the box. I made ita rule to stay out
of the jury room. I did that, and I gave my officers
orders to do that, not go in the jury room.
CROSS -EXAMINA TION
Questions by Mr. Brandt: |
~ Q. General Nichol, do you remember shortly after you
left office you were retained to represent a man named
Findley and one named Schiveley, who were charged with
raping a Negro girl from Chicago when she got off the
train down here? ?
A Iwas employed in that case for a while and got out
of it.
lam not mistaken, I think there were five Negroes
on that jury of twelve.
A Yes, sir.
General Nichol, as a practical matter, though,
the law says that the grand jury can take cognizance of
crimes in Davidson County, as a practical matter, the
vast majority of the cases that the grand jury hears are
cases submitted by the district attorney's office?
About ninety -five percent, I would say.
And most of those are cases in which somebody
„ Somewhere along the line swore out a warrant
[58] against another person?
A That's right. |
__ Usually the party doing this is a police officer?
In most cases.
And it is also true, is it not, General Nichol, that
O
A, 120
State Criminal Court, Cross-Examination of Harry G. Nichol
under your administration in recent years, and I'm talking
about personalities, and Iam sure it was the same before
Mrs. Wehby came to your office in 19487
A Yes. Iwas an assistant when she came there.
Wen did she get there? In 1948? 19477
A I thought Miss Pauline told me she had been there
sixteen or seventeen years some months back. Maybe
it was twenty years ago.
Qs And she has been grand jury? That has been her
function, primarily?
A Yes.
Q_ She sets the schedule for the grand jury and deter-
mines which cases and what time they will go before the
grand jury?
A She does now. I had a little different arrangement.
I had a man who would do the subpoenaing work, and he
would set the dates. [had one man whose job was to sub-
poena witnesses, and he would set the dates, mark them
what day and hand them to Mrs. Wehby and the rest of the
staff.
[59] I believe now Mrs. Wehby sets all the dates!
A She sets them now.
before a case is submitted to the grand jury, a lot
of times a person will have another person arrested.
Sometimesa survivor will swear out a warrant, or some-
times @ police officer may swear out a warrant?
A That's right.
Q And a warrant would then come to the district at-
torney's office?
A Yes, as soon as it was bound over, it was delivered
by the clerk to the district attorney's office.
Aud then the case would be evaluated sometime
ee ee
office?
A. 121
State Criminal Court, Cross-Examination of Harry G. Nichol
A Yes.
By General Bumpus, or yourself, or somebody in
that office?
A Get statements from the witnesses first, and then
submit it.
MR. WESTERMANN: H Your Honor please, I would
like to object to this on the ground that it has nothing to do
with this case."
MR. BRANDT: Well, I didn't object to all those irrel-
evant questions of Judge Hart, and I request the same
privilege ." .
THE COURT: Well, what I don't need to know, I will
discard it."
General, at some time or other, some attorney
in the district attorney's office will evaluate the case, and
many times, if a man is charged with burglary, he might
change it to larceny, because the one who swore out the
warrant swore out the wrong thing?
A Oh, yes.
Many times you would dismiss a case when it.came
back there?
A hat is correct. in fact, I guess I put too much
time on that. I would screen at least ninety percent of the
cases,
Wen did you become district attorney?
A In 1956. January 1, 1956.
Q You say you personally ——
A The majority of them, I would do that. Unless 1
was sure they had the right evidence, I didn't want to
embarrass my men in court if they had a bad case.
Ii COURT: “The Court can hardly keep from making
some statements itself. Let the record show it bit its
Many times, you or other members of your staff
A. 122
State Criminal Court, Cross-Examination of Harry G. Nichol
would dismiss a case that you couldn't prove?
A I had a rule that whenever a case was dismiss
{61] either myself or Mr. Bumpus, I would require them
to write a full statement of the case and the facts
and file itaway. The reasons for it was because you could
produce it if anybody invited your attention to it. They had
to put the reasons and the detailed facts of the basis of
dismissal.
Q Ot course, this frequently occurs? ;
A Oh, yes. Many warrants are issued, probably
hastily, and some of the judges act in haste in night court,
and sometimes special judges.
When did you start in the district attorney's office?
A Right after the legislature was over in 1927. The
legislature was over in April, and I was appointed the
first of May. I was a member of that legislature.
Q Asal pon bave been in the district attorney's office,
off and on, since then, until
A (interposing) Off and on, yes, sir, but there have
been some interruptions there.
Q Do you ever recall submitting a case to the grand
jury as assistant district attorney l believe you said in
the thirties you were doing grand jury work?
A In the forties.
Q So the time this man was indicted, you were
1621 doing grand jury work?
A Yes, sir.
Do you ever recall in your time there submitting
a case to the grand jury in which you discriminated against
Negroes, or any member of any race?
A l am not conscious of it. In things that have develop
in recent years, I have had a lot of trouble locally, and
people have said that I was biased, byt I wasn't conscious
of it. In recent years I have been fold I was by a few in
A. 123
State Criminal Court, Cross-Examination of Harry G. Nichol
some of these riots and things.
Well, let's not talk about riots and things. I am
talking about a criminal case.
Al am not conscious of being biased.
id you ever witness, yourself, or any other member
l that had gone on during your tenure of office,
would you have tolerated it?
A I would not have.
Have you ever known of any grand jury which has
or has not acted upon a case, or refused to act upon a case
because either the victim was a white person or a Negro,
or the defendant was a white person or a Negro?
163] A The grand jury acts in secrecy, but nothing
has been brought to my attention like that.
At this time, the witness was dismissed and withdrew.
MR. WESTERMANN: “If your Honor please, I would
like to introduce into evidence this certified copy of the
minutes from the criminal court clerk's office of the service
of Dr. H. H. Walker. This indicates Dr. Walker was
appointed on April 16, 1953."
THE COURT: "Let it be marked filed."
the minute book record of grand jurors has been searched
in the criminal court clerk's office from 1943 until 1953
dul no other service of H. H. Walker is found
_ THE COURT: “Let it be marked filed."
_, MR. WESTERMANN: “Your Honor, concerning the
pect that Mr. Nichol thinks these cards and the race of
A. 124
State Criminal Court, Proceedings
[64] these petit jurors were listed and is still available
1 have no knowledge of that. Somehow, I thought
that this information was not available.“
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