Marshall, Thurgood, 1956, undated - 7 of 8

    UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

IN THE

No. 21976

United States of A merica, Ex Rel 
Edward Davis,

v.
Appellant,

The Honorable James H. Davis, 
Governor of the State of Louisiana,
A nd V ictor G. Walker, W arden of 
The Louisiana State Penitentiary,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana

ORIGINAL BRIEF ON BEHALF OF 
RESPONDENT, VICTOR G. WALKER, 

WARDEN, LOUISIANA STATE PENITENTIARY

JACK P. F. GREMILLION, 
Attorney General,
State of Louisiana.

TEDDY W. AIRHART, JR., 
Assistant Attorney General, 
State of Louisiana.

BERTRAND DeBLANC, 
District Attorney,
Fifteenth Judicial District, 
State of Louisiana.



1

CASES CITED
Page

Akins v. State of Texas, 65 S. Ct. 1276, rehearing 
denied 66 S. Ct. 86 ............................ ................ 11

Application of James D. Russo, 19 F.R.D. 278 .... 6
Bailey v. Henslee, 287 F. 2d 936. certiorari denied 

82 S. Ct. 12 .................... .................................... 12
Collins v. Walker, 329 F. 2d 100 ...... ..................... 12
Crooker v. California, 357 U. S. 433, 78 S. Ct. 1287 10
Gideon v. Wainwright, 372 U. S. 382, 84 S. Ct.

1765 ..................       9
Hernandez v. State of Texas, 74 S. Ct. 667, 347 

U. S. 475 .............      11
Linkletter v. Walker, 323 F. 2d 11 .... ................... 11
People v. Donovan, 13 N. Y. 2d 148, 243 N. Y. S.

2d 841, 193 N. E. 2d 628 ______ ____ _____ 10
Powers v. United States, 223 U. S. 303, 32 S. Ct.

281 .......................................................................  7
Speller v. Crawford, 99 F. Supp. 92, affirmed 73 

S. Ct. 397, rehearing denied 73 S. Ct. 827.... 12
State v. Conradi, 130 La. 701, 58 So. 515 __   8
State v. Howard, 238 La. 595, 116 So. 2d 43____  8
State v. LeBlanc, 116 La. 822, 41 So. 105........  8
U. S. ex rel Jackson v. Brady, 47 F. Supp. 362,

affirmed 133 F. 2d 476, certiorari denied 
319 U. S. 746, 63 S. Ct. 1629, rehearing 
denied 63 S. Ct. 1315, 319 U. S. 784 ......... 11

United States v. Carignan, 342 U. S. 36, 72 S. Ct.
97 5



11

Page
United States v. Crawford, 15 USCMA 31 (Vol.

15 No. 3 Advance Opinions, October 5, 1964) 13
United States v. Evans, 320 F. 2d 482 ----- ----------- 5
United States v. Papsworth, 156 F. Supp. 842, 

affirmed 256 F. 2d 125 __________________ — 6
Virginia v. Rives, 100 U.S. 322 __________________ 11

STATE STATUTES CITED 
Louisiana Revised Statutes Title 15 section 77 .... 7
Louisiana Revised Statutes Title 15 section 80 .... 8
Louisiana Revised Statutes Title 15 section 142 .. 7
Louisiana Revised Statutes Title 15 section 143 .. 8
Louisiana Revised Statutes Title 15 section 154 .. 8



IN THE

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 21976

United States of A merica, Ex Rel 
Edward Davis,

Appellant,
v.

The Honorable James H. Davis, 
Governor of the State of Louisiana,
A nd V ictor G. Walker, Warden of 
The Louisiana State Penitentiary,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana

ORIGINAL BRIEF ON BEHALF OF 
RESPONDENT, VICTOR G. WALKER, 

WARDEN, LOUISIANA STATE PENITENTIARY

STATEMENT OF FACTS
May it please the Court:

On the night of May 3, 1959, Relator-Appellant, 
while on a drinking party, became involved in an 
argument with his mother-in-law. He left the party 
and went to his house in search of his shotgun. His 
wife, fearing that he might bring harm to someone, 
went to police headquarters and requested the police



2

to go to appellant’s house and, if possible, take the shot­
gun away from him. She advised the police that appel­
lant had been drinking, and that he was looking for 
his shotgun, which she had hidden in the house. Pur­
suant to this request, two police officers were dis­
patched to appellant’s house. Upon arrival of the of­
ficers at the house of appellant, appellant opened the 
door and shot one of the officers with both barrels 
of the shotgun. He fled from the house and was cap­
tured at about 5:45 A. M. the following morning, May 
4, 1959. He was taken into custody whereupon he gave 
a complete confession which was taken orally, in ques­
tion and answer form, which was thereafter written 
down and was signed by appellant. He was thereafter 
indicted, tried and convicted of murder under Louisi­
ana Revised Statutes, Title 14, Section 30, of 1950 as 
amended and was sentenced to be executed by the Fif­
teenth Judicial District Court for the Parish of Acadia, 
State of Louisiana.

An application for a writ of Habeas Corpus and a 
stay of execution was filed in the United States Dis­
trict Court wherein a hearing was granted. The appel­
lant abandoned all claims urged in the application for 
writ of Habeas Corpus except the following, to-wit: 
First, appellant alleges that the confession given by 
him was not freely and voluntarily given and thus was 
inadmissable in evidence. Second, he claims that his 
confession was obtained in violation of the Due Process 
Clause of the Fourteenth Amendment to the United 
States Constitution because of the fact that the con­
fession was given by him to the police after his arrest,



3

but before his indictment, and at a time when he was 
not represented by counsel. Third, he alleges that his 
conviction was obtained in violation of the Due Proc­
ess Clause of the Fourteenth Amendment to the United 
States Constitution in that there was either a system­
atic inclusion or a systematic exclusion of Negroes from 
the grand jury which indicted him, and from the petit 
jury which tried and convicted him. The Court after 
hearing denied the application for a writ of habeas 
corpus; thereafter, this Court granted a certificate of 
probable cause.

ARGUMENT
I. Was the Confession of appellant freely and volun­
tarily given and was it admissable if given without 

Benefit of Counsel?
Appellant contends that the confession was not 

free and voluntary and that it was defective in that 
the Assistant District Attorney did not warn him that 
his statement could be used against him and that he 
was not given benefit of independent legal counsel at 
the time of the confession.

On the trial of this matter there was no showing 
by testimony or otherwise that there was any threat 
made to relator by anyone, but to the contrary, there 
was testimony from each of the witnesses called that 
there was no unusual activity about the jail from the 
time relator was picked up and while he was in the 
jail. Relator was arrested at the scene of the crime 
at 5:45 A. M. and that he gave his confession to the 
Assistant District Attorney between the hours of 9 :00 
A. M. and 11:00 A .M. the same morning after having



4

accompanied the Assistant District Attorney and 
several officers to the scene of the crime. The appel­
lant first answered questions relative to the crime 
and the questions and answers were tape recorded. 
The tape recording was later reduced to writing and 
relator signed it after having it read to him. Some of 
the questions and answers were as follows:

Q. Do you know why you were arrested?
A. Yes, sir.
Q. Why?
A. Because I shot one of the policemen, 

and then later:
Q. Did the police promise you anything?
A. No, sir.
Q. Did they place you in fear in any way?
A. No, sir.
Q. Did they make any promises to you or threat­

en you in any way to come here to this office 
and make a statement?

A. No, Sir.
Q. Are you willing to make a statement now?
A. I am willing to say what I know.
*  *  *

Q. You understand what’s been going on here 
this morning?

A. Yes, Sir.
Q. You understand that we are taking this state­

ment from you?



5

A. I understand.
Q. You understand that this statement can be 

used against you in Court? Do you under­
stand that?

A. No, Sir.
Q. You don’t understand that?
A. No, Sir.
Q. What you have told us here today is the truth 

is it not?
A. Yes, Sir.
Q. Knowing that this statement can be used 

against you you still willing to make the 
statement and telling everything is the truth?

A. Yes, Sir.
*  *  *

From a reading of the confession, it can be seen that 
it was freely and voluntarily given. There is no doubt 
that he understood what he was doing and that it 
could be used against him at a trial. It was testified 
to that he could either sign the confession or not sign 
it.

It has been long established that the rule as to 
the admissibility of a confession is that it shall have 
been made freely, voluntarily, and without compul­
sion or inducement of any sort. (See United States 
v. Carignan, 342 U.S. 36, 41, 72 S.Ct. 97; United 
States v. Evans, 6th Circuit (1963) 320 F. 2d 482).

The United States District Court for the Eastern 
District of New York, in the matter of the Application



6

of James D. Russo, 19 F.R.D. 278, with Justice Ray- 
fiel as organ of the court that (Page 280) as follows:

“ In Wilson v. United States, 162 U. S. 613, 
16 S. Ct. 895, 40 L. Ed. 1090, Wilson was charged 
with murder. Before a United States Commis­
sioner upon a preliminary hearing, he made a 
statement which was admitted at the trial. He 
had no counsel, was not warned or told of his 
right to refuse to testify, but there was testimony 
tending to show that the statement was volun­
tary. At page(s) 623 (624 of 162 U. S., at pages 
900 of 16 S. Ct.), this court said: ‘And it is laid 
down that it is not essential to the admissibility 
of a confession that it should appear that the 
person was warned that what he said would be 
used against him, but, on the contrary, if the 
confession was voluntary, it is sufficient, though 
it appear that he was not so warned. Joy, Con­
fessions, * 45, * 48, and cases cited.’ ”
“ Voluntary admissions, or indeed, voluntary 
confessions, may be received in evidence against 
the giver without proof of warnings.”  Himmel- 
farb v. U. S., 9 Circ., 175 F. 2d 924, at page 
938. “ The relevant inquiry ought always to be 
whether the testimony was freely given, all things 
considered.” United States v. Block, 2 Cir., 88 
F.2d 618, at page 621. To the same effect, 4 Bar­
ron Federal Practice & Procedure § 2175 at p. 
204; 22 C.J.S. Criminal Law § 730.
In the case of United States v. Papsworth, 156 

F. Supp. 842, which was affirmed in U. S. v. Paps­
worth, 256 F. 2d 125, the court denied a motion to 
suppress evidence based on the contention that the 
statements complained of were made without warning



7

the defendant of his privilege against self-incrimina­
tion, that it, that any statement might be used against 
him, and that he was not advised of his right to coun­
sel where in the court quoted from, Powers v. U. S., 
223 U. S. 303 at page 313, 32 S. Ct. 281, 283, 56 
L. Ed. 448, as follows:

“ It has been expressly held time and again 
in tax evasion and other criminal cases that it 
is not essential to the admissibility of statements 
secured by officers of the law from a defendant 
that he should be first warned that the informa­
tion might be used against him in a criminal 
case, provided that it was voluntarily and under- 
standingly given. United States v. Burdick, 3 
Cir., 214 F. 2d 768, 773; Montgomery v. United 
States, 5 Cir., 203 F. 2d 887, 892; Lisansky v. 
United States, 4 Cir., 31 F. 2d 846, 851, 67 A.L.R. 
67; Hanson v. United States, 8 Cir., 186 F. 2d 
61, 64; Powers v. United States, 223 U. S. 303, 
32 S. Ct. 281, 56 L. Ed. 448; Wilson v. United 
States, 162 U. S. 613, 16 S. Ct. 895, 40 L. Ed. 
1090.” (emphasis added)
Section 77 of the Louisiana Code of Criminal 

Procedure provides that “ . . .  all persons arrested shall, 
from the moment of their arrest, be entitled to confer 
with counsel. . ”  . The obvious intent of this section is 
that upon request, a person arrested is entitled to 
counsel; for it is specifically stated that such person 
“ . . shall not be placed in solitary confinement in any 
jail or precinct station, and denied the right to confer 
with counsel.

Section 142 of the Louisiana Code of Criminal



8

Procedure simply affirms the defendant’s general right 
to have assistance of counsel for his defense. Assign­
ment of court appointed counsel to indigent defendants 
is provided for in section 143, which limits state ap­
pointed counsel to felony cases, including so called 
“ relative felonies” ; however this section specifies no 
time as to when counsel must be appointed. The state 
jurisprudence only indicates that “ to make effective the 
constitutional right to assistance of counsel, counsel 
must be accorded a reasonable time for preparation 
of the case, which includes time to investigate facts 
and the law applicable, but what constitutes a reason­
able time depends on the facts and circumstances of 
each case. . . ” (State v. Howard, 238 La. 595, 116 
So. 2d 43, certiorari denied 80 S. Ct. 138, 361 US 875, 
4 L. Ed. 2d 113)

Also, the state law provides that “ either the state 
or the defendant shall have the right to demand a pre­
liminary examination.” (Sec. 154 of Louisiana Code of 
Criminal Procedure). Neither section 80 nor section 
154 of the Louisiana Code of Criminal Procedure 
indicate that an accused is entitled to a preliminary 
examination as a matter of right. It is a fundamental 
principle of statutory construction that criminal legis­
lation is to be strictly construed. In accord with this 
principle Louisiana courts have indicated that “no 
preliminary examination is required as a condition 
precedent to the finding of an indictment or the filing 
of an information (State v. Conradi 130 La. 701, 58 
So. 515 (1912)). Also in State v. LeBlanc 116 La. 822, 
41 So. 105 (1906) the Louisiana Supreme Court went



9

so far as to state that “when a person accused of 
murder pleads to the indictment, goes to trial, and is 
convicted, he cannot, on a motion for new trial, raise 
the question of his right to a preliminary examination. 
However, in the present action counsel for the defend­
ant is raising the question of right to a preliminary 
examination for the first time upon Habeus Corpus. 
This would involve an interpretation of state law that 
should be left to the state courts; and Habeus Corpus 
proceedings should be restricted to a consideration of 
Federal law.

Thus it is submitted that Louisiana’s present 
statute law does not specify the time for appointment 
of counsel nor does it entitle the defendant to a prelimi­
nary examination as a matter of right. However, with 
the right to counsel in felony cases raised to a “ due 
process” level (Gideon v. Wainwright 372 US 342, 
845 Ct. 1765), it is now necessary to consider the im­
pact of the recent federal jurisprudence upon Lou­
isiana Criminal law.

The Petitioner in the present action relies heavily 
upon the case of Escobedo v. Illinois. However, the 
opinion in that action purports to be limited to the 
particular facts involved.

“We hold, that where, as here, the investigation 
is no longer a general inquiry into an unsolved crime 
but has begun to focus on a particular suspect, the sus­
pect has been taken into police custody, the police 
carry out a process of interrogations that lends itself 
to eliciting incriminating statements, the suspect has 
requested and. been been denied an opportunity to con-



10

suit with his lawyer, and the police have not effectively 
warned him of his absolute constitutional right to re­
main silent, the accused has been denied “ the Assistance 
of Counsel” in violation of the Sixth Amendment to the 
Constitution. . .

Unlike the instant petitioner, Escobedo made re­
peated requests for counsel during interrogation and 
each request was denied. The officers in charge in­
tentionally kept the defendant and his attorney from 
conferring. Thus it is submitted that the fact that the 
petitioner failed to request counsel distinguishes the 
present action from that of the Escobedo case.

When considering the cases cited in the opinion of 
the Escobedo case, this point of distinction is made 
evident.

In People v. Donovan (18 N.Y.2d 148, 243 N.Y.S. 
2d 841, 193 N.E. 2d 628) the court held that a “ con­
fession taken from a defendant during a period of 
detention after his attorney had requested and been 
denied access to him” could not be used against him 
in a criminal trial.

In Crooker v. California (357 US 433, 78 S. Ct. 
1287) the following rule was announced:

“ State refusal of a request to engage counsel vio­
lates due process not only if the accused is deprived of 
counsel at trial on the merits . . . but also if he is 
deprived of counsel for any part of the pretrial pro­
ceedings . . . .”

In the alternative, and in the event that the court 
should find that the Escobedo Case is controlling, we



11

submit that the Escobedo case which was decided 
June 22, 1964 should not be given retroactive effect 
for the reasoning set forth by this court in Linkletter 
v. Walker, 323 F. 2d 11 (1963).
II. Systematic Inclusion and Exclusion of Negroes 

from the Grand and the Petit Jury
There is no right to have the jury composed in 

part of Negro men, so long as in the selection of 
jurors who are to pass upon the life, liberty or prop­
erty of a Negro man, there has been no exclusion of 
his race, and no discrimination against them because 
of their color, Virginia v. Rives, 100 U. S. 322.

The Fourteenth Amendment to the .United States 
Constitution does not require proportional representa­
tion of all the component ethnic groups of the com­
munity on every jury. It does preclude systematic 
exclusion of a particular group shown to exist as a 
separate class in the community, when a member of 
that class is on trial for criminal offense. Hernandez 
v. State of Texas, 74 S. Ct. 667, 347 U. S. 475, Akins 
v. State of Texas, 65 S. Ct. 1276, rehearing denied 
66 S. Ct. 86.

In order for a person to obtain a release on 
Habeas Corpus on grounds of racial discrimination in 
selecting petit juries, he must bear the burden of 
clearly showing that he had been denied the equal 
protection of the laws by the intentional arbitrary 
and systematic exclusion of Negroes from jury panels. 
U. S. ex rel Jackson v. Brady, 47 F. Supp, 362, af­
firmed 133 F. 2d 476, Certiorari denied 319 U. S. 746,



12

63 S. Ct. 1629, rehearing denied 63 S. Ct. 1315, 319 
U. S. 784.

Where names of members of both white and col­
ored race had been placed in the jury box after taking 
the names from the tax books without discrimination 
because of race and where no Negro served on the 
jury, systematic exclusion of the colored race from 
service on the jury was not shown under the circum­
stances and in view that the proportion of whites qual­
ified for jury service is much higher than that of the 
colored race. Speller v. Crawford, 99 F. Supp. 92, af­
firmed 73 S. Ct. 397, rehearing denied 73 S. Ct. 827.

Discrimination in jury’s selection must be proved 
and is not to be presumed, Bailey v. Henslee, 287 
F. 2d 936, certiorari denied 82 S. Ct. 12.

An examination of the testimony of the members 
of the Jury Commission show that there was no plan 
or system of discrimination in the selection of a gen­
eral jury venire list but that each jury commission did 
their utmost not to systematically include a token 
number or to exclude negroes from possible service 
on juries.

Appellant urges that the rule set forth in Collins 
v. Walker, 329 F. 2d 100 (1964) is applicable to this 
case in that there was an intentional systematic in­
clusion of Negroes on the general venire list. Appellee 
respectfully urges that the facts of this case are not 
at all the same as those in the Collins case, as there 
the Court found that there was a special grand jury 
and that there was an intentional inclusion of Negroes



13

on the grand jury. In this case appellant was treated 
as in any other case coming before a legally consti­
tuted grand jury and the petit jury was chosen in the 
regular course of the Court’s business.

In the alternative and only in the event that the 
Court should find that there was a systematic inclu­
sion of Negroes on the general venire list, appellee 
urges that the Court follow the ruling in the case of 
United States v. Crawford, which was decided on 
September 18, 1964, in the U. S. Court of Military 
Appeals. The opinion of the Court is reported in 15 
USCMA at page 31. (Vol. 15 No. 3 Advance Opinions, 
October 5, 1964). One of the questions before the 
Court in Crawford was whether the deliberate in­
clusion of a Negro as a member of the Court convened 
to hear that particular case entitled the Negro de­
fendant to a new trial. In denying Crawford a new 
trial the Court refused to follow the majority opinion 
of the Fifth Circuit Court of Appeals in this case. In 
this respect Chief Justice Quinn as organ for the 
majority said at pages 40-41:

“ We turn to the intentional selection of a 
Negro to serve as a court member. Complaints 
about color or race in the selection of jurors nor­
mally deal with the exclusion of qualified persons 
solely on such irrelevant and prohibited bases. See 
Annotation, “ Violation of constitutional rights 
of defendant in criminal case by unfair practices 
in selection of grand or petit jury,” 82 L ed 1053. 
However, in Collins v. Walker, 329 F2d 100 
(1964), the Court of Appeals for the Fifth Cir­
cuit granted a writ of habeas corpus on the



14

ground the accused, a Negro, was unlawfully dis­
criminated against when the panel of twenty 
grand jurors which indicted him was so organ­
ized as deliberately to include six Negroes. The 
court reasoned that the intentional inclusion of 
Negroes constituted “ discrimination against . . . 
[the accused] because of his race or color.” Id., 
at page 105. With due respect to the learning and 
experience of the Court of Appeals, we think it 
misapprehended the fundamental difference be­
tween inclusion of a member of a particular group 
for the purpose of obtaining a fair representation 
of a substantial part of the community, and ex­
clusion of members of that group so as to reduce 
the representational character of the jury. In 
Avery v. Georgia, 345 US 559, 562, 97 L ed 1244, 
73 S Ct 891 (1953), which was relied upon by 
the Court of Appeals, the Supreme Court criti­
cized the practice of using a white ticket to desig­
nate a prospective white juror, and a yellow ticket 
to indicate a Negro juror. However, the criticism 
was related to the established fact that no Ne­
groes had been selected for service over an ex­
tended period of time, although they numbered 
five percent of the jury list. The flagging of the 
tickets, together with the long continued failure 
to select a single Negro for service, was held 
to establish a prima facie case of exclusion of 
Negroes from jury duty. It was exclusion, not 
inclusion, that vitiated the selection process. In 
Dow v. Carnegie-Illinois Steel Corporation, 224 
F2d 414 (CA 3d Cir) (1955), cert den 350 US 
971, 100 L ed 842, 76 S. Ct 442 (1956), the 
clerk deliberately tried to place more than one 
Negro juror on each panel. To achieve that pur­



15

pose, the cards of eligible jurors were marked to 
show those who were Negro. The court pointed 
out that, unlike Avery, which was a case of ex­
clusion, the inclusion of Negroes on the jury was 
designed “ to insure a fair representation” of 
that class, and was, therefore, proper. Dow v. 
Carnegie-Illinois Steel Corporation, 224 F2d 414, 
supra, at pages 425-426. Accord: United States 
v. Dennis, 183 F2d 201, supra, at page 223; 
United States v. Forest, 118 F Supp 504 (ED 
Mo) (1954). If deliberately to include qualified 

persons is discrimination, it is dis- 
Headnote 18 crimination in f a v o r  of, not 

against, an accused. Equal pro­
tection of the laws is not denied, but assured. 
We hold, therefore, there was no error in the 
deliberate selection of a Negro to serve on the 
accused’s court-martial.

The decision of the board of review is af­
firmed.”



16

CONCLUSION
Counsel for appellee urges this Honorable Court 

to affirm the decision of the United States District 
Court and that the order granting a stay of execution 
be recalled.

By Attorneys:
JACK P. F. GREMILLION, 

Attorney General,
State of Louisiana.

TEDDY W. AIRHART, JR., 
Assistant Attorney General, 
State of Louisiana.

BERTRAND DeBLANC, 
District Attorney,
Fifteenth Judicial District, 
State of Louisiana.



17

C E R T I F I C A T E
I certify that a copy of the above and foregoing- 

brief has this day been served on the appellant through 
his counsel of record, Bruce C. Waltzer, by sending a 
copy of same to his address at 1006 Baronne Building, 
New Orleans, Louisiana 70112, by U. S. mail, postage 
prepaid.

Baton Rouge, Louisiana this-------------------day of
February, 1965.

Teddy W. Airhart, Jr.

B-116, 2-65