# Appendix — Tollett v. Henderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0127%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 411 U.S. 258 ## Text INDEX 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 - 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.“ THE COURT: “I think you will find that it is not. If you want to make an effort to get it, we will take a few minutes and let you do it. At this time, 3:40 P.M., until 3:50 P. M., the court was in recess. MR. WESTERMANN: I have no other proof. THE COURT: Does the state have further proof?" MR. BRANDT: No, Your Honor, except the court can take judicial notice of all law relative to how the jury is selected in Davidson County, both grand and petit juries." THE COURT: “Yes, we have gone into that very much in detail in other cases that are on appeal now, touching this question. Do you want to argue this case, or do you want to call my attention to anything by way of a brief? What is your pleasure, Mr. Westermann." MR. WESTERMANN: “Your Honor, I would like the opportunity to submit a brief on this, both relative to what we have established and what the law is that I think relates to it." 165 THE COURT: All right. Furnish General Brandt a copy of it.” THIS WAS ALL THE EVIDENCE ADDUCED IN THS CASE. At this time, 4:00 P. M., the above matter being under advisement, the court adjourned. The Petitioner tenders this Bill of Exceptions to the rulig of The Court on his Petition for Writ of Habeas Corpus. A. 125 State Criminal Court, Proceedings February 7th, 1969 Js, John L. Draper Judge /3/W. Westermann Attorney for the Petitioner /s/ Robert Brandt Attorney for the State FILED: Feb. 7, 1969 Earl Hawkins, Clerk. By: J. Shea, D. C. A. 126 3. EXHIBITS TO THE BILL OF EXCEPTIONS [Unnumbered Exhibits: Minute Entries for Crimi- nal Court of Davidson County, January 5, 1948 (Grand and Petit Jury venire) and February 13, 1948 (Indict- ment of Henderson) | MINUTES January TERM, 5 DAY OF January 1948 Monday, January Sth, 1948 Davidson County Criminal Court Division Two. State of Tennessee. Pleas at the Court House, in the city of Nashville, County of Davidson, State of Tennessee it being the first Monday in January and the fifth day thereof, 1948, of the one-hundredth seventy-second year of American Independence present and presiding the Honorable Charles Gilbert, Judge etc., of the Criminal Court of Davidson County Tennessee Division Two, when the following proceedings were had towit: The Criminal Court, Division Two was duly opened by J. W. Charlton, Deputy Sheriff of Davidson County, Tennesse Garner Robinson, Sheriff of Davidson County Tennessee re turned into the state writ of venire facias which is in the fol: lowing words and figures to wit: December 15, 1947 To the Sheriff of Davidson County, Tennessee, greetings: A. 127 State Criminal Court, Unnumbered Exhibits, Minute Entry for 1-5-48 You are hereby commanded to summons the fo jurors, drawn and selected according to law, from which to select the Grand and Petit jurors for the ensuing January Term 1948, to appear before the Honorable Charles Gilbert, Judge etc., Division Two of the Criminal Court of Davidson County, Tennessee, Division Two, Monday morning, Jan- uary Sth, 1948 at nine thirty o'clock, a.m. at the Criminal Court in Nashville, Tennessee. 1. James A. Gleaves, Sr. Overhill Drive 111 w and 33 Donelson 2. Morris Zager Fourth Avenue North 3. Dave Caldwell Court House 4. Charles A. Bowen 1206 8th Avenue South 5. Bratten Evans Tenn. Enamel Co. 8-8971 Ellendale 6. L. C. Sanders Post Office 7. A.S. McCord, Sr. 217 Rayon Drive- Old Hickory 4th Dist. 8. E. A. Wright 1406 Eastland Avenue 9. Thomas A. Williams Hill Road 6th District 10. win c. Murray 2308 Brick Church Pike 11. John Wilson Frazier 928 Broad Street or Oaldwell Lane 12. Will Core 114H District 13. Ed Potter Commerce Union Bank 20.-14. John T. Hester 4th District 1605 Elliston O. 21.-15. Pierce W. Crawford 4th District 1014 Elliston O. 22.-16. Geo. Bradley 4th Dist. 1108 Dodson O. H. 23.17. Murry Sharp Hermitage R. #1 24.-18. K. W. Brown 102 Orchard Rd. 25.-19. Geo. W. Russell 409 Hadley 26.-20. Ralph Rives Pitts 2.21. J. H. Bright Mt. juliet R 3. 28.-22. 29.-23. 30.24. 31 — 28. 84-26. 88.27. 56.-28. 57.-29. 58. -30. 59.-31. 60. -32. 61.33. 62-34. 63.-35. 64.-36. 65.-37. 66.38. 79.51. 80.—52. 81.83. 82 .-54. A. 128 State Criminal Court, Unnumbered Exhibits, Minute Entry for 1-5-48 Thos. M. Gatlan Donnie O. Cook W. R. Binkley O. N. McClung Everett M. Clayton John F. Eubanks Roy Brown Joseph H. Bandy W. W. Morehead E. H. Dickman John Dillow T. M. Harris 8. W. Berger, Jr. J. M. Ewing E. T. Proctor James Bolton McBryde H. G. Huddleston M. B. Frost Geo. Gaffney Tom Fuqua Geo. R. Gage A. F. Anderson 713 Elliston O.H. Pitts O.H. 807 Hadley Rt. #1 Old Hickory , 4th Dist. Ellendale Ave. 7th Dist. 4212 Kirkland Ave 186 Kenner Avenue Woodmont Blvd. Walnut Drive 3095 Kimberlong Rd. 1492 Woodmont Blvd. 3612 Saratoga Dr 1904 Woodmont Bellemead Blvd. Westview Avenue Lynwood Terrace Clarendon Avenue Tyne Blvd. 2600 Hillsboro Rd. 4204 Estes Ensworth Avenue 119 Woodmont Blvd. Leake Avenue 210 Walnut Drive 3714 Ashburn Page Road Signal Hill Drive Tyne Road Westover Drive 2808 28th Ave. So. Hampton Avenue Hampton Avenue 1885 Bellemeade Blvd. A. 129 State Criminal Court, Unnumbered Exhibits, Minute Entry for 1-5-48 83.-55. John N. Brown Lynwood Blvd. 84.-56. Monroe Brown Harding Rd. 85.-57. Mark C. Brown 105 Woodmont 87.58. J. R. Buchanan Marlin Avenue 7th Dist. 88.59. Raymond 8. Brooks Valley Vista Road 7th Dist. 89.-60. Wm. M. Lellyett _ 3505 Ruland Place 7th Dist. 90.-61. Maurice Lodenthal 3507 Woodmont Lane 7th Di 91.-62. W. P. Smith Howell Place 7th Dist. Thereupon from the jury list heretofore drawn and summoned the Court appointed James A. Gleaves, Morris Zager, D. P. Caldwell, Charles A. Bowen, Bratton Evans, L. C. Sanders, A. 8. McCord, Sr., E. A. Wright, Thomas A. Williams, Will C. Murray, John Wilson Frazier, Will Core, and Edward Potter as Grand Jurors for the ensuing January Term 1948. Thereupon the Court was pleased to appoint Edward Potter Forman of said Grand Jury and said Grand Jury being duly elected, impaneled and sworn according to law were this day charged by the Honorable Charles Gilbert, Judge etc., of Division Two of the Davidson County Criminal Court and retired to consider indictments and presentments. Thereupon the following Petit Jurors were selected by the Court to serve in Division 2 for the first three weeks of the ensuing January Term 1948 being from January 5th, 1948 to January 26th, 1948 to wit: John T. Hester John W. Thomas Ralph Rives G. L. Nix Frank Hager A. M. Spinning, Jr. H. M. Courtney K, W. Brown Carl W. Dunneback N. T. Kinsley Noah J. Nesbitt William Lellyett Perce W. Crawford H. E. Newland Robert L. Fox Paul E. Clay Max Friedman _ Harold J. Ashley A. 130 State Criminal Court, Unnumbered Exhibits, Minute Entry for 1-5-48 Thereupon the following Petit Jurors were selected by the Court to serve in Division 2 for the second three weeks of the ensuing January Term 1948 being from January 26th, 1948 to February 16th, 1948 to wit: Maxey Hewitt Alvin Lashlee Donnie O. Cook Richard L. Justice James E. Kersley Ivey Young O. M. Greenway Thomas M. Gatlin James B. Hodges William P. King Ernest Blythe Basil L. Johnson J. A. Senter A. C. Slaton C. A. Conquest C. E. Denny O. D. Manier Thereupon the following Petit Jurors were selected by the Court to serve in Division 2 for the third three weeks of the ensuing January Term 1948 being from February 16th, 1948 to March 8th, 1948 to wit: E. H. Dickson W. A. Myers J. F. Kemedy William P. Ballinger C. M. Locke W. R. Binkley Thereupon the following Petit Jurors were selected by the Court to serve in Division 2 for the fourth three weeks of the ensuing January Term 1948 being from March 8th, 1948 to March 29th, 1948 to wit: E. M. Cox Bob Briley, L. S. Castleman Jr. and Dewey Norman, Deputy Sheriffs of Davidson County, Tennessee were this day ap- pointed by the Court to wait upon the Court during the ‘ensuing January Term 1948. A. 131 State Criminal Court, Unnumbered Exhibits, Minute Entry for 2-13-48 Charles Smith, Fred Toney and W. Y. Draper, Deputy Sheriffs of Davidson County, Tennessee were this day ap- pointed by the Sheriff as Court officers to wait upon the Court during the ensuing January Term 1948. Thereupon it appearing to the Court that the jury is incomplete the Court will issue an alias venire facias athis convenience. State of Tennessee County of Davidson „ I, Virginia F. Fryer , Deputy Criminal Court Clerk of Davidson-County, State of Tennessee, hereby certify that the foregoing is a true and perfect copy ofthe Selecting of jury For January Term, 1948, as the same appears of record on Minute Book #40, page 86-89, at office in Nashville, Tennessee. Witness my hand and official seal of court this 11th day of December , 1968. Ordered that Court stand adjourned until tomorrow morning at 9:30 o'clock. /s/ Virginia F. Fryer, Deputy Criminal Court Clerk, Davidson County, Tennessee Js, Charles Gilbert, Judge. MINUTES January TERM, 13 DAY OF February 1948 Friday, February 13th, 1948 | Court met pursuant to adjournment, present and presiding the Hon. Charles Gilbert, Judge etc., Division 2 of the Criminal Court of Dawson County, Tennessee, when the A. 132 State Criminal Court, Unnumbered Exhibits Minute Entry for 2-13-48 One Against: John Thomas Shaw, Jr. Murder Willie Lee Henderson and Robert James Dodson State of Tennessee, Davidson County January Term of the Criniinal Court, 1948 The Grand Jurors for the State of Tennessee, duly elected, impaneled, sworn and charged to inquire for the body of the County of Davidson, and State aforesaid, upon their oath aforesaid, present: that John Thomas Shaw, Jr., Robert James Dodson and Willie Lee Henderson, Col., of said county yeoman, heretofore, towit; on the 22nd day of January 1948, with force and arms, in the county aforesaid, unlawfully, feloniously, willfully, deliberately, premeditated) and maliciously did make an assault upon the body of one William H. Cotter, inflicting grevious and mortal wounds and injuries, from which said grevious and mortal wounds and injuries the said William H. Cotter did linger, languish and die on February 12, 1948, and him the said William H. Cotter the said John Thomas Shaw, Jr., Robert James Dodo and Willie Lee Henderson, Col,, then and there did unlawful feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought kill and murder, against the peace and dignity of the State. And the Grand Jurors aforesaid, upon their oath aforesaid, do further present that the said John Thomas Shaw, Jr., Robert James Dodson, and Willie Lee Henderson, Col,, heretofore to wit, on the 22nd day of January 1948, unlawfully feloniously and violently did make an assault and battery upon the body of one, William H. Cotter, with the unlawful and feloniously intent then and there him, the said William f. Cotter, to rob, and to unlawfully, feloniously and violently steal, take and carry away from the person and from the | A. 133 State Criminal Court, Unnumbered Exhibits Minute Entry for 2-13-48 immediate presence of the [illegible] William H. Cotter the moneys goods and chattels to be found upon the person and in the immediate presence of the said William H. Cotter; and while in the perpetration of said robbery the said John Thomas Shaw, Jr., Robert James Dodson and Willie Lee Henderson (Col) did unlawfully, feloniously, violently, wilfully, intentionally, maliciously, premeditatedly did make an assault and battery upon the body of the said wil - “liam H. Cotter, with a certain pistol, inflicting grevious and mortal wounds and injuries upon the body of the said William H. Cotter, said injuries being inflicted with the intent to kill the said William H. Cotter, and upon him to commit the crime and felony of murder in the first degree from which said grevious and mortal wounds and injuries the said William H. Cotter did linger, languish and die on the 12th day of February, 1948: Wherefore, the Grand Jurors aforesaid, upon their oath aforesaid, do present and say that the said John Thomas ‘Shaw, Jr., Robert James Dodson, and Willie Lee Henderson, Col., of said County, heretofore to wit, on the 22nd day of January 1948, with force and arms, in the manner aforesaid, and by the means aforesaid, unlawfully, feloniously, wilfully, deliberately, premeditatedly and maliciously did kill and _ Slay the said William H. Cotter, and did do and commit the crime and felony of murder in the first degree upon the person of the said William H. Cotter, in violation of Section 10768 of the Code of Tennessee, against the peace and dignity of the State of Tennessee. J. Carlton Loser, Attorney General. ö 0: se d: State of Tennessee vs. John Thomas Shaw, jr., = Lee Henderson and Robert James Dodson. A. 134 State Criminal Court, Unnumbered Exhibits Minute Entry for 2-13-48 Mrs. H. L. Argo, Prosecutor. Summon witnesses for the State: Mrs. H. L. Argo, 207 8th Ave. So. 6-9136; Gene Hooper 307 1/2 8th Ave. So. Fannie De Moss, 424 Sth Ave. No. Wks. Squirrel Lodge, Joe C. Hill 119 Joyner Ave., Wks. Soldier's Club, Cedar St., Charlie Layne, 718 Jo Johnson, Wks Clements Paper Co. Harry W. Tyler, 720 27th Ave. No. Wks Soldier's Club, James Murray and Rex White, P. Cole and Richardson, Dr. Lester, St. Thomas Hospital, Luther, e Sat Burgess, P. Turner and West, P. Witnesses sworn in open court and sent before the Grand Jury to testify in the above cause this 12th day of February 1948. Edward Potter jr., Foreman J. Carlton Loser, Attorney General. A True Bill: Edward Potter jr., Foreman Ordered that court stand adjourned until tomorrow morning at 9:30 o'clock. /s/ Charles Gilbert, Judge A. 135 {Exhibit 1: Minute entry, Criminal Court of Davidson County, March 12, 1948 (Guilty plea of Henderson) | MINUTES January TERM, 12 DAY OF March, 1948 av Friday, March 12th., 1948 Court met pursuant to adjournment present and presiding the Hon. Chester K. Hart Judge etc., of Division One of the Criminal-Court of Davidson County when the following proceedings were had to wit: 16399 State of Tennessee C. W. Assault Intent 16401 i we Reset Paul Vernon Richardson (Came the Attorney General who prosecutes for the State and the defendant in person thereupon on motion of the defendant this case is reset for 8 March 19th. 16323 State of Tennessee Murder P. G. vs Ist John Thomas Shaw, Jr. ‘Degree Willie Lee Henderson : yrs. Robert James Dobson Came the Attorney General who prosecutes for the State and the defendants in person who being arraigned upon said indictment plead guilty to murder in the first degree and for their trial put themselves upon the Country and the Attorney General doth the like. ‘The to well and truly assess the defendants punish - t there came a jury of good and lawful men of Davidson gree. A. 136 State Criminal Court, Exhibit No. 1, Minute Entry for 3-12-48 County to wit: J. B. Dozier, R. A. Perryman, W. T. Walker, Jim Henderson, O. 8. Lashlee, N. M. Hughes, Porter Frey, J. C. Evans, John Brummitt, R. H. Under - wood, A. J. Lawson, E. J. Glasgow, who being duly elected, impaneled, tried and sworn to well and truly assess the de- fendants punishment and a true verdict render according to the law and evidence aforesaid, upon their oath aforesaid; upon their oath aforesaid; do say: That they find the de- fendants guilty of murder in the first degree and assess their punishment at confinement in the State Penitentiary for a period of nintynine years. Thereupon the jury was discharged. It is therefore considered by the Court that the defendants for their said offense shall be confined in the State Penitentiay for a period of nintynine years commencing on the date of their delivery to the keeper thereof subject to the rules and regulations of said institution. That they pay the cost of this prosecution for which let execution issue. 16321 State of Tennessee G.. Nolle vs NS Willie Lee Henderson Came the Attorney General who prosecutes for the State and the defendant in person thereupon the Attorney General with the assent of the Court entered a straight nolle herein. 1 Ordered that court stand adjourned until tomorrow — at nine-thirty o‘clock. /s/ Chester K. Hart, Judge A. 137 State Criminal Court, Exhibit No. 1, Minute Entry for 3-12-48 State of Tennessee County of Davidson I, Robert N. Bogus , Deputy Criminal Court Clerk of Davidson County, State of Tennessee, hereby certify that the foregoing is a true and perfect copy of the Minute Book Entry , in the case of State of Tennessee vs. Willie Lee Henderson , ona charge of Murder as the same appears of record on Div. 1-61 Book, page 629 at office in Nashville, Tennessee. Witness my hand and official seal of court this 21 day of October ., 19 68. /s/ Robert N. Bogus, Deputy Criminal Court Clerk, Davidson County, Tennessee 3 A. 138 {Exhibit 3: Affidavit of Director of Bureau of the Census, dated September 9, 1968] U. S. DEPARTMENT OF COMMERCE Bureau of the Census Washington September 9, 1968 I HEREBY CERTIFY, That according to the official count of the returns of the SIXTEENTH AND SEVENTEENTH CENSUSES OF THE UNITED STATES, on file in the Bureau of the Census, the total population and the population 21 years old and over, by color, for the County of Davidson, State of Tennessee, was as shown below, as of April 1, 1940 and 1950, respectively: Total Population 21 Years Population Old and Over 1940 1950 1940 1950 Total Population.. 257,267 » 321, 758 168, 337 211, 930 ( bcsce ne 200,454 287, 289 129, 868 168, 706 Non white 56, 813 64, 469 38, 469 43, 224 /s/ A. Ross Eckler A. Ross Eckler Director Bureau of the Census A. 139 [Exhibit 4: Minute entry, Criminal Court of Davidson County, May 4, 1953 (Grand Jurors) | MINUTES May TERM 4 DAY OF March, 1953 Monday, May 4th, 1953 Davidson County Criminal Court Division Iwo Pleas at the Court House in the city of Nashville, County of Davidson, State of Tennessee it being the first Monday in May the fourth day thereof 1953, of the One Hundredth Seventy -Seventh year of American Independence present and presiding the Hon. Charles Gilbert, Judge etc., of the Criminal Court of Davidson County, Tennessee, Division Two, when the following proceedings were had to wit: The Criminal Court, Division Two was duly opened by L. S. Castleman, Deputy Sheriff of Davidson County, Ten- nessee , Tom Y. Cartwright, Sheriff of Davidson County, Ten- nessee returned into the State writ of venire facias which is in the following words and figures to wit: State of Tennessee Jo the Clerk: Subpoena all County of Davidson of the written named persons for jury service. Charles Gilbert, Judge 4/16/53 To the Sheriff of Davidson County, greetings: You are commanded to summons the following jurors for the Criminal Court of Davidson County, Tennessee, A. 140 State Criminal Court, Exhibit No. 4, Minute Entry for 5-4-53 Division Two, at its May Term, 1953, to appear May 4th, 1953 at the Court House in Nashville, Tennessee. (Filed March 12, 1969) Of the above jurors summoned the Court appointed the fol- lowing as Grand Jurors for the May Term 1953 to wit: Milton Jones C. F. Brew Kelly Hill Gill Reece Charles Burke E. M. Buchanan Milton Randolph Sol Hyman H. C. Holderfield, Sr. Dr. H. H. Walker Thomas J. Carroll, Sr. Said Grand jury being duly elected and impane led accordiy to law of whom the Court was pleased to appoint Tom Delbri as Foreman of said Grand Jury. Thereupon the Judge prow to charge said Grand Jury and after receiving the charge of the Court the Grand Jury retired to their room to consider of indictments and presentments. ee e ee bed weil tomorrow morsix at nine - thirty o clock. /s/ Charles Gilbert, Judge A. 141 State Criminal Court, Exhibit No. 4, Minute Entry for 5-4-53 State of Tennessee County of Davidson I, Robert N. Bogus , Deputy Criminal Court Clerk of Davidson County, State of Tennessee, hereby certify that the foregoing is a true and perfect copy of the Minute Entry , in the case of State of Tennessee vs. Grand Jurors , on a charge of as the same appears of record on Div. 11-46 Book, Page 430 , at office in Nashville, Tennessee. Witness my hand and official seal of Court this 21 day of October , 19 68. Js, Robert N. Bogus, Deputy Criminal Court Clerk, Davidson County, Tennessee Be A. 142 {Exhibit 5: "Letter to Whom it May Concern," dated October 22, 1968] DAVIDSON COUNTY Earl Hawkins, Clerk >-Criminal Court Nashville 3, Tennessee Tenth Judicial Circuit October 22nd, 1968 TO WHOM IT MAY CONCERN: THIS SB TOSTATE:THAT-MINUTER BOOK RECORDS OF GRAND JURORS HAVE BEEN SEARCHED IN THE CRIMINAL COURT CLERK'S OFFICE FROM 1943 TO 1953 AND NO OTHER SERVICE OF H. H. WALKER IS FOUND. THIS THE 22ND. DAY OF OCTOBER, 1968. /s/ Earl Hawkins , EARL HAWKINS CRIMINAL COURT CLERK (Filed March 12, 1969) A. 143 COURT OF CRIMINAL APPEALS OF TENNESSEE [459 S.W.2d 176] STATE of Tennessee ex rel. Willie Lee HENDERSON, Petitioner, * ifs v. Lake F. RUSSELL, Warden, Respondent. July 6, 1970 Certiorari Denied by Tennessee Supreme Court Sept. 8, 1970. OPINION WALKER, Presiding Judge. The petitioner below, Willie Lee Henderson, appeals from the dismissal of his petition for habeas corpus after an evidentiary hearing. The petitioner, a Negro, has previously filed petitions in state and federal courts but he says that this is the first one raising the question that there had been systematic exclusion of his race from the grand jury which indicted him and the petit jury which convicted him. m 1948 the petitioner, represented by retained counsel, catered a plea of guilty to murder in the first degree and sentenced to 99 years in the penitentiary. He did not the composition of the juries in the trial court, er oo Opinion, Tennessee Court of Criminal Appeals either by motion or plea in abatement. lie raises it now for the first time in this proceeding. The petitioner was not convicted by a jury. He entered a plea of guilty voluntarily and with full understanding of its consequences. His plea of guilty was itself a conviction, Like the verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Brooks v. State, 187 Tenn. 67, 213 S. W. 20 After a voluntary plea of guilty, the right to have evidene presented to a jury to fix the punishment is a statutory one and does not rise to constitutional stature. State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635; State ex rel. Barnes v. Henderson, 220 Tenn. 719, 423 S.W.2d 497. Likewise, the composition of a jury fixing the punishment on a plea of guilty raises no constitutional question. Since the composition of the petit jury on a plea of guilty raises no constitutional question, the real issue is whether or not the defendant waived the right to challenge the grand jury which indicted him 8 2 In State ex rel. Barnes v. Henderson, supra, the court said: “On the subject of waiver it has been noted that: As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such waiver is not against public policy. In fact, the trend of modern authority is in favor of the doc- trine that a party in a criminal case may waive ir- regularities and rights, whether constitutional or statutary, very much the same gs in a civil case. Some jurisdictions, however, anna certain righ A. 145 Opinion, Tennessee Court of Criminal Appeals as nonwaivable in capital cases, or even in felony cases generally. * * Where a constitutional right accorded the accused is treated as waivable, it may be waived by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it. 21 Am.Jur.2d Criminal Law, § 219." Under the criminal procedure in this State, objection to the venire or the indictment is deemed waived unless raised in apt time by motion or plea in abatement. In State ex rel. Lawrence v. Henderson, Tenn.Cr -App., 433 8. W. 2d 96, 101, this court said: “If the defendant does not object by motion or plea in abatement, to the venire or to the jurors summoned under it, before he pleads to the indictment, an objection thereafter is too late." See also Parker v. State, 2 N. C. App. 27, 162 8. K. 2d 526 (1969), and Hamilton v. State of Alabama, 283 Ala. 660, 220 80. 2d 267 (1969). In those cases, the Court of Appeals of North Carolina and the Supreme Court of Alabama held too late a claim in postconviction proceedings that members of petitioner's race had been systematically excluded from the juries when no such question was pre - sented at his trial. The petitioner here participated as an actor in the order which he now seeks to set aside. After due and thoughtful 5 + consideration and after being properly advised by his retained ~ Counsel, he entered a plea of guilty to murder in the first ‘degree and took the known sentence of 99 years rather than das calculated risk of receiving a more severe penalty he ofa jury. See Ray v. State, Tenn., 451 S. W. 2d 7 . A. 146 Opinion, Tennessee Court of Criminal Appeals We hold that petitioner, acting through his employed attorney, waived any objection to the composition of the grand jury or the petit jury, by his failure to proceed in apt time to question them in the trial court. Federal courts hold that objection to the racial composition of a grand jury must be raised before trial and may not be presented for the first time on a motion to vacate or by writ of error coram nobis. This rule offends no constitution! right. In Bustillo v. United States, 421 F. 2d 131, 132, (5th Cir.), the petitioner filed a 28 U.S.C.A. Sec. 2255 motion to vacate his sentence, claiming that the grand jury which indicted him was defectively constituted. Two years before this proceeding, he had entered a plea of guilty to bank rob- bery. Affirming denial of the motion without a hearing, the court said: "“Qbjections to the composition of a grand jury are governed by Rule 12(b) (2) of the Federal Rules of Crimim Procedure. Shotwell Manufacturing Company v. United States, 1963, 371 U.S. 341, 83 8. Ct. 448, 9 L. Ed. 2d 357. Rule 1200) (2) provides that a defect in the indict- ment must be objected to by motion before trial and that failure to object at that time waives such a defense. _ Bustillo did not object before trial, or at any other time during the proceeding on the merits, to the composition of the grand jury which indicted him. His failure to do so constituted a waiver so that he may not now for the first time assert such an objection. Scales v. United States, 1961, 367 U.S. 203, 81S. Ct. 1469, 6 L. Ed. 20 782; Jackson V. United States, 5 Cir. 1968, 394 F.2d . AMS; Perez v. United States, 5 ce: 1962, 303 F.2d N. 441." 4 y Be / vee N A. 147 Opinion, Tennessee Court of Criminal Appeals In Jackson v. United States, 394 F. 2d 114, the Court of Appeals (Sth Cir., 1968) considered an objection to the racial composition of the grand jury presented by writ of error coram nobis. It held: “He is likewise barred from raising the question of the composition of the grand jury on the allegation of racial exclusion, being required by Rule 1200) (2) of the Federal Rules of Criminal Procedure to allege such a _ defect by motion before trial, which he did not do then or at any other time during the proceeding on the merits. His failure-to do so constitutes a waiver thereof so that he may not now, for the first time, more than two years after his trial, question the composition of the grand jury which indicted him, the Trial Judge having correctly held that he was in no way prejudiced." In Atlas Roofing Manufacturing Company v. Parnell, 409 F. 2d 1191 (Sth Cir., 1969), the court said: "In the absence of actual bias or prejudice, an objection to the composition of the grand or petit jury panel comes too late after the verdict." By a state prisoner's habeas corpus proceeding in Hayes v. Wainwright, D.C., 302 F. Supp. 716 (1969), the petitioner claimed that Negroes were systematically excluded from serving on grand juries. Finding no merit in his contentions, the court said: 7 mn any event, petitioner having failed to raise an Attack upon the grand jury's composition at thé time of nis trial cannot now raise the issue." °° m Doyle v. state, Tenn. Cr. App., 458 S. W. 20 637 (cert. d April 20, 1970), by post-conviction > titioner objected to the racial composition of the grand ee A. 148 Opinion, Tennessee Court of Criminal Appeals and petit juries which indicted and tried him. Speaking for the court, Judge Russell held: “We hold, however, that his right to raise this question was waived when it was not waived upon the trial by motion or plea in abatement prior to his pleading to the indict- ment. Discrimination in the composition of venires has long been condemned in Tennessee. See Zanone v. State, 97 Tenn. 101, 36 S.W. 711. It has also been held in Tennessee, in a long line of cases, that unless a defendant objects by motion or plea in abatement to the venire before he pleads to the indictment he cannot thereafter avail himself of a claim that the venire was improperly composed. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Turner v. State, 89 Tenn. 547, 15 8. W. 838; Ellis v. State, 92 Tenn. 85, 20S. W. 500. See also State ex rel. Lawrence v. Henderson, Tenn. Cr. App., 433 S. W. 2d 96. We do not believe that one should be permitted to raise a question in a post conviction proceeding that was waived by failure upon the trial, by design or otherwise, to timely raise it when our proaeiural Jaw prescribes that it should be raised. To permit this type procedure = “would make a sham of the trial itself. A defendant ‘would not raise such questions upon the trial in the hope “that he would be acquitted, but with the assurance that he could avail himself of the complaint post conviction to obtain a new trial. We hold that this question was disposed of upon the trial adversely to Doyle when it was not chen raised. We are not dealing with a consti- tutional principle newly announced since his trial, but a right well recognized and protected at that time. : eee 22 e A. 149 Opinion, Tennessee Court of Criminal Appeals From these authorities, it results that the judgment of the lower court dismissing the petition is affirmed. GALBREATH, Judge (concurring). I concur completely with Judge Walker's opinion. The law that failure to make an objection to the racial composi - tion of a Grand Jury is waived unless raised by an appropriate pretrial motion is too well settled for this Court to disturb. 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. But the law is as set forth in Judge Walker's opinion; and it must be changed, if ever it is (and I personally believe it will be soon or late), by an authority higher than this Court. OLIVER, Judge (dissenting). . lam unable to concur in the result reached by the majority. Some further discussion of this case is appro - priate. mis is the same petitioner involved in the case of - Willie Lee Henderson v. C Murray Henderson, Warden, in which the Supreme Court of this State reversed the same trial court and remanded the.case for an evidentiary dearing in an unpublished opinion filed November 3, 1967. in that opinion, the Court said: mis is the second petition for the writ of habeas corpus led by petitioner to reach this Court. The only al- on contained in the present petition, other than 4 — a 2 2 ri [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0127%3A1. Public record. Not legal advice.