Reeves, Jr. v. Alabama Brief for the Petitioner
Public Court Documents
October 4, 1954
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Brief Collection, LDF Court Filings. Reeves, Jr. v. Alabama Brief for the Petitioner, 1954. 42b0e3e2-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1639af32-da98-482a-95ed-d9e336198348/reeves-jr-v-alabama-brief-for-the-petitioner. Accessed April 29, 2025.
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IN TH E
Bnptmt tourt uf % llnxtvh States
October Term, 1954
No. 120
JEREMIAH REEVES, JR.,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
On W rit of Certiorari to the Supreme Court of A labama
BRIEF FOR THE PETITIONER
T hurgood Marshall,
R obert L. Carter,
Jack Greenberg,
Counsel for Petitioner.
E lwood H. Chisolm,
Peter A. Hall,
David E. P insky,
L ouis H. P ollak,
of Counsel.
S upreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BE ekm an 3-2320
49
TABLE OF CONTENTS
Opinion Below ................................................................... 1
Jurisdiction.......................................................................... 1
Questions Presented........................................................... 2
Statutes Involved ............................................................... 3
Constitution of the United States—-14th Amend
ment ........................................................................... 3
Title 18 U. S. C. § 243 ................................................. 4
Ala, Const, of 1901 § 1 6 9 ................................ 4
Title 15, Code of Ala. § 320- (1940) .......................... 4
Statement ............................................................................ 5
I. Events Which Preceded The T r ia l ...................... 5
II. Preliminary Motions ........................................... 6
A. Exclusion of the P u b lic ................................... 6
B. Motion to Quash the Venire .......................... 7
III. Testimony At The Trial ..................................... 9
A. Commission of the Offense and Identifica
tion of A ccused................................................. 9
B. Inculpatory Statements and Confession: Tes
timony By Prosecutrix and Witness Clark .. 9
C. Petitioner’s Defense ....................................... 10
1. Petitioner’s Attempt to Testify Concern
ing Exaction of Confession ...................... 11
D. Rebuttal: Confession to Dr. B a za r ................ 13
IV. Motion for Mistrial Because Juror Chief of
Reserve Police Force ............................. 14
PAGE
11
Summary of A rgum ent..................................................... 15
I— A. Due process of law guaranteed by the Four
teenth Amendment was denied to petitioner—a
little-educated, mentally unstable Negro youth—-
by introduction into evidence of his “ confessions”
and “ inculpatory statements” made following sus
tained interrogation, punctuated by threats of
electrocution, while he was held incommunicado at
the State Penitentiary from Monday afternoon
through Wednesday morning near and frequently
in the very presence of the electric ch a ir .............. 18
B. Even if the confessions were not coerced as
a matter of law, due process was denied in that the
confession issue was not “ fairly tried and re
viewed” : The jury which heard the confessions
was not permitted to hear the relevant and im
portant testimony offered by petitioner concern
ing their exaction ....................................................... 24
C. The Supreme Court of Alabama erred in hold
ing that even if the confessions were coerced, the
decision in Stein v. New York, 346 U. S. 156 per
mitted affirmance because there was sufficient evi
dence apart from the confessions upon which the
conviction could have been b a sed ........................... 29
II— There was systematic exclusion of Negroes from
the venire in that the commissioners employed a
selection method whereby it was “ particularly
hard” for Negroes to become jurors if the com
missioners did not personally know them; commis
sioners knew fewer Negroes than whites; and al
though the Negro population of Montgomery
County is 43.6%, panels contained only 0% to
8.5% Negroes ............................................................. 33
PAGE
I l l
III—Arbitrary exclusion of the general public from
all phases of petitioner’s trial denied due process
of law .......................................................................... 39
Conclusion............................................................................ 49
Cases Cited
Ashcraft v. Tennessee, 322 U. S. 143 ...................... 19,20
Avery v. Georgia, 345 U. S. 559 ....................35,37,38,39
Beauchamp v. Cahill, 297 Ky. 505, 180 S. W. 2d 423
(1944) .......................................................................... 42,43
Benedict v. People, 23 Colo. 126, 46 P. 637 (1896) .. 45, 46
Berger v. United States, 295 U. S. 7 8 ...................... 49
Brooks v. State, 178 Miss. 575, 173 So. 409 (1937) .. 26
Brown v. Allen, 344 U. S. 443 .................................. 32
Bryant v. State, 191 Ga. 686, 13 S. E. 2d 820 (1941) 25
Cassell v. Texas, 339 U. S. 282 ...................... 34,35,36,37
Catoe v. U. S., 131 F. 2d 16, 76 App. D. C. 292 (1942) 26
Cavazos v. State, 143 Tex. Cr. 564, 160 S. W. 2d 260
(1942) .......................................................................... 26
Chambers v. Florida, 309 U. S. 227, 241 .................. 19, 20
Clay v. State, 15 Wyo. 42, 86 Pac. 17 (1906) .......... 26
Collier v. Hicks [1831], 2 Be. Ad. 663 ...................... 45
Commonwealth v. Blondin, 324 Mass. 564, 87 N. E.
2d 455 (1949) ............................................................. 41
Commonwealth v. Principatti, 260 Pa. 587, 104 Atl.
53 (1918) ..................................................................... 43,44
Comm. v. Sheppard, 313 Mass. 590, 48 N. E. 2d 630
(1943) cert. den. 300 U. S. 213 .............................. 26
Comm. v. Van Horn, 188 Pa. 143, 41 A. 469 (1898) 26
Cramer v. State, 145 Neb. 88, 15 N. W. 2d 323 (1944) 26
Daubney v. Cooper, 10 B. & C. 237 (1829) ................ 45
Davis v. United States, 247 F. 2d 394 (C. A. 8th,
1917)
PAGE
43
IV
PAGE
Diaz v. People, 109 Colo. 482, 126 P. 2d 498 (1942).. 25
Doyle v. Commonwealth, 100 Va. 808, 40’ S. E. 925
(1902) ........................................................................... 42
Dutton v. State, 123 Md. 373, 91 A. 417 (1914)... .41, 45, 46
Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941)........ 25, 27
Gallegos v. Nebraska, 342 U. S. 5 5 .............................. 19, 32
Gordon v. United States, 344 U. S. 4 1 4 ..................... 29
Grimmett v. State, 22 Tex. Cr. 36, 2 S. W. 631
(1886) ........................................................................... 42,44
Haley v. Ohio, 332 IT. S. 596 ............................. 19, 20, 25, 32
Hampton v. Commonwealth, 190 Ya. 531, 58 S. E. 2d
288 (1950) ................................................................... 46
Harris v. South Carolina, 338 U. S. 68...................... 19,20
Hearts of Oak Assurance Co., Ltd. v. A. G. [1931]
2 Ch. 370 ..................................................................... 45
Hill v. Texas, 316 U. S. 400 ......................................... 34, 35
Hogan v. State, 191 Ark. 437, 86 S. W. 2d 931 ........ 42, 43
Ingram v. State, 34 Ala. App. 597, 42 So. 2d 30 . . . . 20
Jackson v. Commonwealth, 193 Va. 664, 70 S. E. 2d
322 (1952) ................................................................... 26
Johnson v. State, 242 Ala. 278, 5 So. 2d 632, cert, den.
316 U. S. 693, 713 ....................................................... 30
Jones v. State, 23 Ala. App. 493, 127 So. 6 8 1 ............ 49
Keddington v. State, 19 Ariz. 457,172 P. 273 (1918).. 45, 46
Leach v. State, 245 Ala. 539, 18 So. 2d 289 (1944) . . . 48
Leyra v. D enno,------U. S . --------, 98 L. Ed. (Adv.
631) ..................................................................... 21,23,28,32
Logan v. Commonwealth, 308 Ky. 259, 214 S. W.
2d 279 (1948) ............................................................. 26
Lyons v. Oklahoma, 322 IT. S. 596 ......................22, 23, 28, 32
McNahh v. U. S., 318 U. S. 332 ................................. 20
McPherson v. McPherson [1936] A. C. 177,1 D. L. R.
321 ............................................................................. 41,42,45
V
Mack v. State, 203 Ind. 355, 180 N. E. 279 ................ 26
Mahlikilili Dahlamini v. The King* [1942] A. C. 583
[P. C.] ........................................................................... 41, 45
Maliniski v. New York, 324 U. S. 401 ........20, 21, 22, 23, 32
Mooney v. Hollohan, 294 U. S. 103 .......................... 49
Moore v. State, 151 (la. 648, 108 S. E. 47 (1921) .. 46
Murphy v. United States, 285 F. 801 (C. A. 7th,
1923), cert. den. 261 U. S. 617 ............................... 26
Neal v. State, 86 Okla. Cr. 283,192 P. 2d 294 (1948) .. 44
Nelson v. State, 190 Ark. 1078, 83 S. W. 2d 539
(1935) ........................................................................... 25
Nicholson v. State, 38 Md. 140 (1873) ...................... 26
Re Oliver, 333 U. S. 257 ........................................... 40,42,47
Palko v. Connecticut, 302 U. S. 3 1 9 ........................... 41
People v. Dudgeon, 229 Mich. 26, 201 N. W. 355 (1924) 26
People v. Elmore, 277 N. Y. 397, 14 N. E. 2d 451, 124
A. L. R. 465 (1938) .................................................... 26
People v. Fox, 25 Cal. 2d 330, 153 P. 2d 729 (1944) . 25
People v. Hartman, 103 Cal. 242, 37 P. 153 (1894) 43
People v. Roach, 369 111. 95, 15 N. E. 2d 873 (1938) 26
People v. Yeager, 113 Mich. 228, 71 N. W. 2d 491
(1897) .......................................................................... 43,45
Pierson v. State, 99 Ala. 148, 13 So. 550! (1891) 47
Pollack v. State, 215 Wise. 200, 253 N. W. 560 (1934) 26
R v. Hamilton [1930], 30 S. R. N. S. W. 277; 47
N. S. W. W. N. 84 .................................................... 41,45
R v. Ladbrooke [1931], N. L. R. 475 ..................41,42,45
R v. Neff [1947], I. W. W. R. 640, 88 Can. C. C. 199 45
R v. Murray, 1 K. B. 391 (1951) ................................. 28
Rhoades v. State, 102 Neb. 750, 169 N. W. 433 (1918) 44
Robertson v. State, 64 Fla. 437, 60 So. 118 (1912) . . 45
Rochin v. California, 342 U. S. 165 .......................... 21
PAGE
VI
Scott v. Scott [1913], A. C. 417 ................................. 41,45
Shapiro v. City of Birmingham, 30 Ala. App. 563,
10 So. 2d 38 (1942) ................................................. 48
Smith v. State, 77 Okla. Crim. 142, 140 P. 2d 237
(1943) ..................................... ..................................... 26
Smith v. Texas, 311 U. S. 1 2 8 ..................................... 37
State v. Adam s,------R. I. ——, 121 Atl. 418 (1923) 26
State v. Adams, 100 S. C. 43, 84 S. E. 368 (1915) .. 44
State v. Auguste, 50 La. Ann. 488, 23 So. 612 (1898).. 21
State v. Bonza, 72 Utah 177, 269 P. 480 (1928)........ 44,45
State v. Brooks, 92 Mo. 542, 5 S. W. 257 (1 8 8 7 ).... 44, 47
State v. Callahan, 100 Minn. 63, 110 N. W. 342
(1910) .................................................................... . . . .4 2 ,4 4
State v. Cleveland, 6 N. J. 316, 78 A. 2d 560, 23
A. L. R. 2d 907 (1 9 5 1 )........... 26
State v. Collett (Ohio) 58 N. E. 2d 417 (1944)............ 26
State v. Crank, 105 Utah 332, 142 P. 2d 178, 170
A. L. R. 542 (1943) .................................................... 26
State v. Croak, 167 La. 92, 118 So. 703 (1928)............ 46
State v. Damm, 62 S. D. 123, 252 N. W. 7 (1 9 3 3 ).... 42, 44
State v. Genese, 102 N. J. L. 134, 130 Atl. 642 (1925). 42, 44
State v. Gibilterra, 342 Mo. 577, 116 S. W. 2d 88
(1938) ........................... 26
State v. Grover, 96 Me. 363, 52 A. 757 (1902)............ 26
State v. Hensley, 75 Ohio St. 255, 79 N. E. 462
(1906) ........................................................................... 42,44
State v. Hofer, 238 la. 820, 28 N. W. 2d 475 (1947)... 25
State v. Holm, 67 Wyo. 360, 224 P. 2d 500 (1 9 5 0 ).... 41, 46
State v. Johnson, 26 Idaho 609, 144 P. 784 (1 9 4 1 ).... 45
State v. Jordan, 146 Ore. 504, 30 P. 2d 751 (1934).. 26
State v. Keeler, 52 Mont. 205, 156 P. 1080 (1916)... 44
State v. Kerns, 50 N. D. 927, 198 N. W. 698 (1924).. 26
State v. Marsh, 126 Wash. 142, 217 P. 705 (1923) .. 44
State v. Miller, 204 Ala. 234, 85 So. 700 (1920) . . . . 39
State v. Nicholas, 62 S. D. 511, 253 N. W. 737 (1934) 26
State v. Nyhus, 19 N. D. 326, 124 N. W. 71 (1909) .. 46
PAGE
V l l
State v. Osborne, 54 Ore. 289, 103 P. 62 (1909) . . . . 42, 44
State v. Richards, 101 W. Va. 136, 132 S. E. 375
(1926) ................................... ....................................... 26
State v. Saale, 308 Mo. 573, 274 S. W. 393 (1925) .. 42
State v. Schabert, 222 Minn. 261, 24 1ST. W. 2d 846
(1946) ......................................................................... 26
State v. Scott, 209 S. C. 61, 38 S. E. 2d 902 (1946) .. 26
State v. Scruggs, 165 La. 842, 116 So. 206 (1928) .. 42
State v. Sherman, 35 Mont. 512, 90 Pac. 981 (1907) . . 26
State v. Smith, 62 Ariz. 145,155 P. 2d 622 (1944) . . . . 25
State v. Taylor, 119 Kan. 260, 237 Pac. 1053 (1925) . 26
State v. Vaisa, 28 N. M. 414, 213 Pac. 1038 (1923) .. 26
State y . Van Brunt, 22 Wash. 2d 103, 154 P. 2d 606
(1944) 26
State v. Van Vlack, 57 Id. 316, 65 P. 2d 736 (1937) .. 26
State v. Williams, 31 JSTev. 360, 102 P. 974 (1909) .. 26
State v. Willis, 71 Conn. 293, 41 Atl. 820 (1898) . . . . 25
State v. Wilson, 217 La. 470, 46 So. 2d 738 (1950)
aff’d. 341 U. S. 901 ............................................... 26
Stein y . New York, 346 U. S. 156 .............. 2,15,16, 201, 25,
29, 30, 31, 32, 49
Stroble v. California, 343 U. S. 181 ....................... . 23,32
Tanksley v. United States, 145 F. 2d 58 (C. A. 9th,
1944) ............................................................................ 43,47
The King v. Governor of Lewes Prison, ex parte
Boyle, 2 K. B. 254 (1917) ........................................ 43,45
Turney v. Ohio, 273 U. S. 5 1 0 ..................................... 48
Turner v. Pennsylvania, 338 U. S. 62 . . . ................ 20
U. S. ex. rel. Almeida v. Baldi, 195 F. 2d 815 (C. A.
3d, 1952) .................................................................... 28
United States v. Bayer, 331 U. S. 532 ...................... 22
United States v. Kobli, 172 F. 2d 919 (C. A. 3d,
1944) ............................................................................ 42,43
United States v. Sorrentino, 175 F. 2d 721 (C. A. 3d,
1949)
PAGE
47
V l l l
Vernon v. State, 239 Ala. 593, 196 So. 96 (1940) .. 27
Ward v. Texas, 316 U. S. 547 ..................................... 19, 20
Weaver v. State, 33 Ala. App. 207, 31 So. 2d 593
(1947) .......................................................................... 46
Williams v. State, 156 Fla. 300, 22 So. 2d 821 (1945) 25
Wilson v. Louisiana, 341 U. S. 901, a ff’g. 217 La. 470 21
Wilson v. U. S., 162 IT. S. 613 (1896) ...................... 26
Witt v. United States, 196 F. 2d 285 (C. A. 9th,
1952), cert. den. 344 U. S. 827 ............................. 26
Wynn v. State, 181 Tenn. 325, 181 S. W. 2d 332
(1943) .......................................................................... 26
Constitutions
United States Constitution, Sixth Amendment . . . . 41
United States Constitution, Fourteenth Amend
ment ...................................................................2, 3,18, 33, 48
Alabama Const. Art. I, § 6 ........................................... 41
Alabama Const. § 169 ................................................... 4, 45
Arizona Const. A rt: II, Section 2 4 ............................. 41
Arkansas Const. Art. II, Section 1 0 ......................... 41
California Const. Art. I, Section 13 ......................... 41
Colorado Const. Art. II, Section 1 6 ............................. 41
Connecticut Const. Art. I, § 9 ..................................... 41
Delaware Const. Art. I, § 7 ......................................... 41
Florida Const., Declaration of Eights, Section 11 . . 41
Georgia Const. Art. I, § 2-105 ..................................... 41
Idaho Const. Art. I, § 1 3 ................................................. 41
Illinois Const. Art. II, § 9 ............................................... 41
Indiana Const. Art. I, § 1 3 ............................................. 41
Iowa Const. Art. I, Section 1 0 ................................... 41
Kansas Const. Bill of Rights § 10 ............................. 41
Kentucky Const. Section 11 ......................................... 41
Louisiana Const. Article I, § 9 ............................... .. 41
Maine Const. Art. I, Section 6 .................................... 41
Michigan Const. Art. II, § 1 9 ....................................... 41
PAGE
IX
Minnesota Const. Art. I, § 6 ........................... ............. 41
Mississippi Const. Art. 3, § 2 6 ..................................... 41, 45
Missouri Const. Art. I, § 18(a) ................................... 41
Montana Const. Art. I ll , § 1 6 ............................... . 41
Nebraska Const. Art. I, § 1 1 ....................................... 41
New Jersey Const. Art. I, Par. 10 .............. ................ 41
New Mexico Const. Art. II, § 1 4 ........................... 41
North Carolina Const. Article I, § 1 3 .......................... 41
North Dakota Const. Art. I, § 1 3 ............................... 41
Ohio Const. Art. I, § 1 0 ....................................... .. 41
Oklahoma Const. Art. II, § 2 0 ....................................... 41
Oregon Const. Art. I, § 1 1 ........................................... 41
Pennsylvania Const. Art. I, § 11.................................... 41
Rhode Island Const. Art. I, § 1 0 ................................. 41
South Carolina Const. Art. I, § 18 ............................ 41
South Dakota Const. Art. VI, § 7 ................................. 41
Tennessee Const. Art. I, § 9 ................................. .... 41
Texas Const. Art. I, § 1 0 ............................................. 41
Utah Const. Art. 1, § 12 ............................................. 41
Vermont Const. Ch, I, Art. 1 0 ....................................... 41
Washington Const. Art. I, § 22 ................................. 41
West Virginia Const. Art. I ll, § 1 4 ........................... 41
Wisconsin Const. Art. I, § 7 ......................................... 41
Statutes
18 U. S. C. § 243 ............................................................. 4, 33
15 Code of Ala. § 1 6 0 ..................................................... 20
15 Code of Ala. §320 .................................................... 4, 45
15 Code of Ala. § 389 ..................................................... 14
30 Code of Ala. § 2 4 ....................................................... 33
Ga. Code of 1933 Sec. 81-1006 ..................................... 45
Ky. Rev. States. § 455.130 (Baldwin’s 1943 Rev. Ed.) 42, 43
Mass. G-. L. (Ter. Ed.) c. 278 § 16A ...................... 45
Mich. Stat. Ann. (1935) Sec. 27.465 .......................... 43,44
Minn. Stat. Ann. (1947) §631.04 ............................... 42,44
PAGE
X
Nev. Comp. Laws Ann. Sec. 10654 (1929) ................ 41,42
Nevada Comp. Laws 1929 § 8404 ............................... 41
29 McKinney’s Cons. Laws of New York, Sec. 4 . . . 41, 45
Gen. Stats. No. Car. (Recompiled 1953) Sec. 15.166.. 42, 44
North Dak. Rev. Code of 1943 27-0102 ...................... 45
Code of Ya. 1950, Sec. 19-219 ..................................... 45
Wise. Stats. 1951 § 256.14 ........................................... 42,44
England: Children and Yonng Persons Act (1933)
(23 Geo. 5, C. 12) § 3 6 ............................................... 42
Other Authorities
170 A. L. R. 567 ............................................................... 27
Archbold’s Criminal Pleadings, Evidence & Prac
tice (31st Edn. 1943) 174 ......................................... 42, 45
8 Halsbury’s Laws of England (2d edn.) 526-527 . . 45
1950 Census of Population, Vol. II, Characteristics
of Population, Part 2, p. 2-87 ................................. 35
Note, 49 Col. L. Rev. 110 (1949) ................................. 40
Note 35 Cornell L. Q. 395, 399 (1949) ......................... 47
Note, The Supreme Court, 1952 Term, 67 Harv. L.
Rev. 91, 120 (1953) ................................................... 31
III Wigmore § 855 ......................................................... 23
III Wigmore § 866 ......................................................... 25
PAGE.
IN THE
§>iiprem? (Emtrt nf tty Inft^ Btntm
October Term, 1954
No. 120
------ ---------- o----- ------------
Jeremiah R eeves, J r .,
v.
Petitioner,
State of A labama,
Respondent.
O n W rit of Certiorari to the Supreme Court of A labama
------------------------o----------------------
BRIEF FOR THE PETITIONER
Opinion Below
The opinion of the Supreme Court of Alabama (R. 184)
is reported at 68 So. 2d 14.
Jurisdiction
The judgment of the Superior Court of Montgomery
County was affirmed by the Supreme Court of Alabama on
August 6, 1953. Rehearing was denied November 27, 1953.
Time for filing petition for writ of certiorari was extended
to and including March 12, 1954 by order of the Chief Jus
tice dated February 17, 1954. Petition for writ of certiorari
and motion for leave to proceed in forma pauperis were
granted on June 7,1954. The printed record was received by
2
petitioner’s counsel on August 17,1954. The jurisdiction of
this Court is invoked under 28 U. S. C. § 1257(3), petitioner
having asserted in the courts below rights, privileges and
immunities conferred by the Constitution of the United
States.
Questions Presented
I
A.
Whether due process of law guaranteed by the Four
teenth Amendment was denied petitioner—a little-
educated, mentally unstable Negro youth—by introduction
into evidence of his “ confessions” and “ inculpatory state
ments” made following sustained interrogation—punctu
ated by threats of electrocution—while he was held in
communicado at the State Penitentiary from Monday
afternoon through Wednesday morning, near and fre
quently in the very presence of the electric chair.
B.
Whether, even if, arguendo, the confessions were not
coerced as a matter of law, due process was denied in that
the confession issue was not “ fairly tried and reviewed” ,
for the jury which heard the confessions was not permitted
to hear the relevant and important testimony offered by
petitioner concerning their exaction.
C.
Whether the Supreme Court of Alabama erred in pro
ceeding on the premise that even if the confessions were
coerced, it might properly, on the basis of Stein v. New
York, 346 U. S. 156, affirm the judgment of the trial court
because there was sufficient evidence apart from the con
fessions upon which the conviction could have been based.
3
I I
Whether there was systematic exclusion of Negroes
from the venire where there was a system of jury selection
based entirely upon the jury eommissoners’ personal
acquaintanceship; where they knew very few Negroes and
it was “ particularly hard” for Negroes to become jurors
if the commissioners did not know them; and where jury
panels contained only 0% to 8.5% Negroes in a county
where the Negro population is 43.6%.
I I I
Whether due process was denied in that the general
public was arbitrarily excluded from all phases of peti
tioner’s trial—especially when this ban included a time
when, as subsequent events proved, the public’s presence
was most necessary: during the voir dire when the Chief
of Police of the Montgomery Reserve Police Force became;
a juror, after having concealed his police affiliation which
was known to the State but unknown to petitioner.
Statutes Involved
Constitution of the United States—
14th Amendment.
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside.. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
4
Title 18 U. S. C. § 243.
Exclusion of jurors on account of race or color.—No
citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as
grand or petit juror in any court of the United States, or
of any State on account of race, color, or previous con
dition of servitude; and whoever, being an officer or other
person charged with any duty in the selection or summon
ing of jurors, excludes or fails to summon any citizen for
such cause, shall be fined not more than $5,000. (June 25,
1948, c. 645, §1, 62 Stat. 696.)
Ala. Const, of 1901 § 169.
In all prosecutions for rape and assault with intent to
ravish, the court may, in its discretion, exclude from the
courtroom all persons, except such as may be necessary in
the conduct of the trial.
Title 15, Code of Ala. § 320 (1940).
Exclusion of public when evidence vulgar, etc.—In all
prosecutions for rape and assault with intent to ravish,
the court may, in its discretion, exclude from the courtroom
all persons, except such as may be necessary in the conduct
of the trial; and in all other cases where the evidence is
vulgar, obscene, or relates to the improper acts of the
sexes, and tends to debauch the morals of the young, the
presiding judge shall have the right, by and with the
consent and agreement of the defendant, in his discretion,
and on his own motion, or on the motion of the plaintiff's
or defendants, or their attorneys, to hear and try the said
cause after clearing the courtroom of all or any portion
of the audience whose presence is not necessary.
5
Statement
Petitioner has been sentenced to death following con
viction for the crime of rape without recommendation of
mercy (R. 184). The Supreme Court of Alabama has
affirmed (R. 194).
I. Events Which Preceded The Trial
During the summer of 1952, there were a number of
complaints of rape in Montgomery, Alabama (R. 44, 102,
104, 136). For a period of about six months the police
were unable to charge anyone, even though several sus
pects were arrested (R. 66), including petitioner who was
later released (R. 44-45, 104, 141). Petitioner is a 17-year-
old Negro with an eighth grade education (R. 116), who
comes from a poor family (R. 106-107) and who is mentally
unstable (R. 105, 121-122, 124). Finally, on Monday,
November 10, 1952, he was arrested once more (R. 135)
and was taken out to Kilby prison (R, 137) near the City
of Montgomery where he was held under circumstances
to be detailed below until he “ confessed” . Wednesday
morning, after his “ confession” , he was taken to the
City Jail.
It appears that several women who had been raped
or robbed were there to identify him and that four women
other than prosecutrix herein failed to do so (R. 44, 139).
Prosecutrix was told that petitioner confessed and was
given a copy of a statement purportedly constituting such
confession (R. 58, 64); thereupon she saw him, the only
Negro in the room, through a window (R. 65), entered the
room, and apparently identified him (R. 59).
In the presence of police officers a conversation ensued
in which, according to prosecutrix, petitioner identified her
house and described his entry (R. 59-60'), but was unable
to explain the reasons for his actions (R. 59). On Novem
6
ber 14, petitioner was indicted for six crimes on six indict
ments, three of them capital (E. 1, 44)1 * * among them was
the indictment upon which the conviction herein is based.
II. Preliminary Motions
A. Exclusion of the Public
Trial commenced November 26, 1952 in Montgomery.
At the outset, before motions were heard or the jury was
empanelled the judge ordered the courtroom cleared of
all persons except officials, jurors, and lawyers (E. 2, 10).
Petitioner objected and moved that the public be permitted
to attend (B. 2, 10, 19). He then moved that at least
newspapermen (B. 3, 11) and his relatives (B. 3, 14-15,
19) be admitted. The motion as to relatives was granted
(B. 3, 15); but that as to the press was at first denied
(B. 3, 11). Subsequently the press was admitted to hear
the actual taking of testimony (B. 22). Petitioner objected
to these exclusions on the ground that he was thereby
denied his right to a public trial as guaranteed by the
Fourteenth Amendment (B. 10-11, 14-15, 19-20). Follow
ing these objections petitioner moved that if the public
were to be excluded, it should be excluded only during
prosecutrix’s testimony on the ground that permanent ex
clusion from all phases of the trial denied due process of
law as guaranteed by the United States Constitution (B.
15, 20). This motion was denied (B. 15). Thus, the gen
eral public was excluded prior to the empanelling of the
jury and during the trial proper. Petitioner appealed
this denial of a public trial to the Supreme Court of Ala
1 A t the time he went to trial he made a motion for continuance
on the ground that he did not know for which of the three capital
offenses he was going to be tried (R . 50). It was denied (R . 45).
7
bama, urging Federal Constitutional grounds. It ruled
against trim but did not discuss the question in its opinion.2
E. M otion to Q uash the V enire
Petitioner moved to quash the venire on the ground
that Negroes had been systematically excluded from the
jury box in violation of the Fourteenth Amendment (R.
15, 20). The judge was also one of the jury commissioners,
and therefore recused himself (R. 15-16). He was replaced
by a Special Judge who tried the case from that point on
(R. 21).
Evidence revealed that the jury box contained about
five thousand cards (R. 38) bearing the names of all per-,
sons who had been called for jury service during at least
the past 18 years (R. 30), excepting those who had be
come ineligible or died (R. 30). The commissioners did
not known how many Negroes’ names were in the box and
would not estimate (R. 29, 39). However, one com
missioner testified that the largest number of Negroes
called at any term was three (R. 30). There have been
panels with a smaller number of Negroes (R. 30, 34-35)
and there have been terms with no Negroes at all (R. 35).
A panel consists of 50 persons although only 35 may
actually appear (R. 30). However, if there is a shortage
of jurors, additional ones may be called (R. 30). * IS
2 The Supreme Court of Alabama noted that the public had been
excluded, but merely mentioned this in connection with petitioner’s
motion to have his private stenographer admitted to the courtroom,
which was apparently held to have been waived at a later time be
cause the stenographer could not be located (R. 188-189). The
federal question was preserved in petitioner’s brief in the Supreme
Court of Alabama (see n. 5, infra), as follows:
“ P r o p o s i t i o n X V
A r b i t r a r y e x c l u s i o n o f a l l m e m b e r s o f t h e p u b l i c
W IT H O U T C LA SSIFIC A TIO N FROM A L L PH A SE S OF A RAPE TR IA L
IS A D E N IA L OF DUE PROCESS OF L A W U N DER T H E 1 4 t h
A M E N D M E N T OF T H E C O N S T IT U T IO N OF T H E U N IT E D S T A T E S .”
(Brief of Appellant, In the Supreme Court of Alabama,
Reeves v. The State of Alabama, p. 9.)
8
The commissioners selected jurors entirely from their
personal acquaintance with individuals or organizations
(R. 28-29, 36-37). They had obtained lists of names from
almost every white club in the County (R. 33), but they
knew few Negroes (R. 29, 37) and did not know or go to
Negro clubs (R. 33, 36). Only one of them could recall a
Negro organization which he had contacted, long ago in
the past, and he was not sure of its name (R. 33-34). The
Commissioners testified that they did not discriminate (R.
34), that they sought “ high class” or “ good” Negroes
(R. 29, 36, 38) for jury service and never rejected a man
because of his race (R. 29). There is testimony that
several Negroes had been asked to submit names for the
box (R. 36-37, 40, 42), although it does not appear that
names ever were submitted by these persons (R. 36, 37,
40, 42), except on one occasion two or three years ago
(R. 29), and that a public meeting was held at the start of
World War II, attended by “ high class” Negroes, and
names were requested there (R. 38). Two Negroes testi
fied that they had served on juries (R. 40, 41) and that
other Negroes had served with them. However, one com
missioner testified that it is “ particularly hard” for
Negroes to get on the jury without the commissioners
knowing them (R. 29).
Petitioners moved on two occasions to examine the
cards in the box to ascertain the number of Negroes who
had been selected and to test the Commissioners’ general
assertions by cross-examination (R. 27, 34). Petitioner
also sought to interrogate the commissioners concerning
the voting list to ascertain whether it had been employed,
as required by statute, in selecting jurors (R. 31, 39).
These requests were denied (R. 27, 31, 34, 39). The
trial court (R. 43) and the Supreme Court of Alabama
(R. 187) concluded that there was no evidence to sustain
petitioner’s motion, and that there was therefore no viola
tion of the Federal Constitution.
9
III. Testim ony At The Trial
A . Com m ission o f the O ffense and
Identification o f A ccu sed
Prosecutrix testified that her assailant entered her home
July 28, compelled her to have intercourse (R. 52) and beat
her unconscious (R. 62). She identified her assailant in
most general terms as a Negro, seventeen to twenty-five
years of age, five feet nine and a half to five feet ten inches
in height, slightly taller than her husband, 130 to 150
pounds in weight (R. 62, 65), without a mustache (R. 65),
wearing a dark blue shirt with a yellow-gold design and a
straw hat (R, 52). Petitioner resembles even this general
description only in that he is a Negro. There is uncon-
tradicted testimony that he has always had a mustache
since he was fourteen (R. 150, 151, 154, 155), that he.has
never owned the articles of clothing prosecutrix described
(R. 107, 150), that he is five feet seven inches tall (R. 150)
and that he was under seventeen at the time of the alleged
offense (R. 135). The State seized all of petitioner’s be
longings (R. 102, 107) but produced no items of clothing
like those prosecutrix described.
B. Inculpatory Statements and Confession:
Testimony By Prosecutrix and Witness
Clark
Prosecutrix testified concerning the statements made
by petitioner to her at the City Jail (R. 59-60), and also
testified that the solicitor had told her that petitioner
confessed and that he showed her petitioner’s confession
(R. 58, 64-65). Petitioner objected to prosecutrix’s testi
mony concerning the incriminating statements on the
ground that they had been obtained by coercion which denied
due process of law (R. 55-56, 58-59). A hearing was held
without the presence of the jury in which petitioner sought
to show that he had been held incommunicado at Kilby
from 2:00 P. M. on Monday until Wednesday morning
10
when he confessed, at which time he was taken to the City
Jail to be identified by prosecutrix. He sought to show
that at Kilby he had been continuously questioned in the
presence of the electric chair, had been kept in the room
next to the electric chair, that he was offered the hope
and promise that if he confessed he would not be electro
cuted, hut that if he did not confess he would be electro
cuted. Petitioner also sought to introduce testimony con
cerning his age and education (R. 55-56, 58-59).
The judge held that the proffered testimony was inad
missible because it related to events up to the time that
petitioner was taken to the City Jail to make the incrimi
nating statements, but did not concern his treatment when
he gave the statements at the City Jail (R. 58-59). Prose
cutrix then proceeded with her testimony before the jury
(R. 59-60, 64-65).
Witness Clark testified that not far from prosecutrix’s
home at the time of the offense he gave a ride to a person
who fit prosecutrix’s description of her assailant (R. 71-
73) and that this person was petitioner. He then testified
to an inculpatory statement petitioner made to him at the
City Jail on November 17 (R. 74-75), in which petitioner
purportedly recognized him and acknowledged that he had
been Clark’s passenger. Petitioner objected to the intro
duction of this statement on the ground that it was the
product of the coercion used against him at Kilby (R. 74).
The Court overruled the objection on the same ground
that it overruled the earlier objection to the prosecutrix’s
testimony (R. 74), and refused to hear testimony on it.
C. Petitioner’s Defense
Petitioner took the stand to deny that he committed the
crime and to testify that he was playing dominoes at the
time the offense was committed (R. 142-143). Another
witness who participated in the domino game corroborated
the alibi (R. 126-127). There was testimony that peti
11
tioner did not fit the description given by prosecutrix
(Compare R. 52, 62-65 with R. 106, 134, 150, 151, 154, 155).
In the alternative there was a defense of insanity concern
ing which a series of lay witnesses testified that petitioner
was mentally unstable and in their opinion insane (R. 105,
121-122,124). There was also testimony of his good reputa
tion (R. 152, R. Orig. 175, 200, 201, 202).3
1. Petitioner’s Attempt to Testify Concern
ing Exaction of Confession.
Petitioner sought to testify during his own case con
cerning the treatment he received at Kilby before he con
fessed and made the incriminating statements in the
presence of prosecutrix, witness Clark and the police (R.
138, 139-141).
After petitioner had testified briefly concerning occur
rences at Kilby on Monday, the Court stopped him on the
ground that the testimony was irrelevant (R. 138-139, 140-
141). Petitioner, thereupon made the following proffer
(R. 140):
“ Mr. McGee: To show the defendant, a seven
teen year old negro boy, who quit school in the 8th
grade, was arrested at approximately 2:10 P.M. on
November 10th, 1952, and was carried within a period
of about fifteen minutes from then to the State
Penitentiary, Kilby Prison, Montgomery County,
Alabama, where he was held incommunicado by State
and City officers and questioned continuously the
rest of the afternoon, and then permitted to sleep
only a short while, some fifteen or twenty minutes;
he was then carried into the next room where the
electric chair was and questioned some more by the
Deputy Warden O. R. Dees and accused of having
3 R. Orig. indicates pages of the original record which were not
printed.
12
made various kinds of attacks on some six white
women of Montgomery County, Alabama. 0. R.
Dees further told him that if he didn’t confess to
these crimes that all the women would identify him
and he was going to the electric chair. And that if
he would confess that he would keep him out of the
chair. After questioning him all night he was finally
permitted to go to bed until the following morning,
Tuesday. Tuesday morning early the officers again
began a series of constant questioning all day Tues
day and part of Tuesday night. Then he was per
mitted to go to bed. That on Wednesday morning
he was again questioned. And all the time the
officers were telling him if he didn’t confess to
these crimes he would go to the electric chair, and
if he did he would keep him out of the chair, until
sometime finally Wednesday morning he agreed to
confess to all of these crimes they had been accus
ing him. That he was then carried by the State
Officers of Montgomery County to Police Head
quarters and there held by the Montgomery County
Police and City Police officers until the prosecutrix
in this case was permitted to view him.
“ And I move the Court to permit me to prove
these allegations, and in order to go to the credibility
of the statement which is alleged he made in her
presence while he was held.
“ And I move the Court to permit me to do so on
the ground that a failure by the Court to permit me
to do that is a denial to the defendant of his con
stitutional rights as guaranteed under the Fourteenth
Amendment to the Constitution of the United
States.”
The motion was denied (R. 141).
13
Thus, the jury was denied substantial and crucial testi
mony concerning the entire pattern of coercion, and knew
nothing about what happened at Kilby Tuesday and Wed
nesday.
D. Rebuttal: Confession to Dr. Bazar
In rebuttal the state presented the testimony of Dr.
Bazar, a psychiatrist, whom they had caused to examine
petitioner. Dr. Bazar concluded that petitioner was not
legally insane, and testified that while examining petitioner
on November 13, petitioner confessed to him (R. 165).4
Petitioner objected to testimony of the confession as hav
ing been obtained in violation of the Constitution and
exacted by the same coercion which produced the earlier
confession. He made an offer of proof which was refused
(R. 164-165). The Court overruled him.
Thus attempts to introduce testimony concerning the
coercion of inculpatory statements and confessions were
rebuffed on four occasions, each time over a Federal Con
stitutional objection. Neither the Court nor the jury heard
the testimony. The Supreme Court of Alabama sustained
the trial court’s actions as to the confessions and held that
defendant’s rights under the Federal Constitution were
not infringed (R. 191, 192, 193). It wrote that there was
“ nothing to show that the trial court’s action in admitting
them was manifestly wrong or that defendant’s rights
under the Federal Constitution were infringed’ ’ (R. 193).
4 Dr. Bazar states that he saw petitioner twice; on November
13th at Kilby and on November 20th at the County Jail (R. 161).
He does not specify on which occasion the confession was made.
Petitioner, however, admits confessing at Kilby and denies making
any confession at the County Jail (R. 144).
14
IV. Motion for M istrial B ecause Juror C h ief o f
R eserve P olice F orce
Shortly before the trial ended petitioner informed the
court that he had just discovered that one of the jurors,
Jack Page, was Chief of Police of the Reserve Police Force
of Montgomery and had been active in this case. Peti
tioner thereupon moved for a mistrial on the ground that
this juror had answered falsely on voir dire. Petitioner
further averred that the juror was Chief of the Montgom
ery Reserve Police Force organized for the purpose of
tracking down “ alleged Negro rapists” and night burglars,
and that he had been active in this case (R. 172-173), and
asked to call Page as a witness in support of this motion.
The state admitted that Page was a member of the Police
Force and had been working on cases, but denied that he
had worked on this case. The Solicitor stated:
“ There was no question asked whether any mem
ber of the panel was a member of the Reserve
Police Force. I am a member of the Naval Reserve
and that doesn’t enter into my qualifications. He
has been working on cases, but has not worked on or
had any connection with this case, and didn’t have
any opinion or bias in this case” (R. 172).
The trial court denied a hearing on the matter and over
ruled the objection on the ground that the jury had already
been qualified (R. 173). The Supreme Court of Alabama
sustained the trial court (R. 193).
The opinion of the Supreme Court of Alabama appears
at page 185 of the Record.5
5 It should be noted that pursuant to Title 15, Code of Alabama,
§389 (1940), this Record contains no assignments of error. The
matters which petitioner raised in the Supreme Court of Alabama
were presented in his brief according to State practice.
15
Summary of Argument
The introduction into evidence of petitioner’s “ con
fessions” and “ inculpatory statements” denied due process
of law guaranteed by the Fourteenth Amendment because
they were obtained following sustained interrogation and
threats of electrocution while petitioner-—a little-educated
mentally unstable Negro youth—was held incommunicado
at Kilby State Penitentiary from Monday afternoon
through Wednesday morning, near and frequently in the
very presence of the electric chair. The fact that the in
culpatory statements to the prosecutrix, witness Clark and
Dr. Bazar were made at the nearby City Jail shortly fol
lowing the coercion at Kilby does not absolve the State
of the consequences of the coercion at Kilby. There is a
presumption that petitioner remained under the influence
of the coercion; and this presumption was not dispelled
by the evidence which, indeed, indicates no significant
change in his situation.
Even if the confessions and inculpatory statements
made at the City Jail were not coerced as a matter of
law, petitioner was denied due process in that the con
fession issue was not “ fairly tried and reviewed.” Peti
tioner was not permitted to testify before the jury con
cerning the pattern of coercion which exacted the confession
at Kilby State Penitentiary, and concerning the confessions
made at the City Jail which followed the confession at
Kilby. Thus, the jury heard the confessions and the
State’s side of the story that they were voluntary, but
was denied relevant and important defense testimony con
cerning how the confessions were coerced.
The Supreme Court of Alabama erred in holding that
even if the confessions were coerced this Court’s opinion
in Stein v. New York, 346 U. S. 156 made reversal unneces
sary, because there was evidence apart from confessions
16
upon which the conviction could be sustained. But this
Court’s opinion in the Stein case was concerned with a
quite different problem: (1) In the Stein case the con
fession was held not to have been coerced. (2) This Court
then went on to say that where a confession is not coerced
as a matter of law, an appellate court need not reverse
even though it is possible that the jury might have found
it coerced as a matter of fact and convicted defendant
nevertheless. (3) In the Stein case defendant had been
permitted to put on evidence relevant to the issue of
coercion. Here petitioner was not permitted to do so.
(4) In the Stein case petitioner requested an instruction
for acquittal if the jury found the confession coerced.
That issue is not involved here. This Court would not
have upset its long standing rule that where a conviction
is tainted by a coerced confession the conviction must
fall, without saying so explicitly.
There was systematic exclusion of Negroes from juries
in Montgomery County, caused by a system, of jury selec
tion which relied wholly upon the jury commissioners’ per
sonal acquaintanceship, when the commissioners knew few
Negroes. Thus, as one commissioner testified, it was “ par
ticularly hard ” for Negroes to become jurors. As a result,
although the Negro population of Montgomery County is
43.6%, no more than 3 Negroes or (a range of 0% to 8.5%
of any panel) ever appeared on any jury panel.
Arbitrary exclusion of all portions of the general public
from the entire trial denied petitioner’s right to a public
trial as guaranteed by the due process clause of the United
States Constitution. The right to a public trial is recog
nized uniformly throughout the English speaking world.
The only limitations upon it which are generally admitted
are those which contribute to the fair and orderly admin
istration of justice. Thus, children and unruly persons
may be excluded, or the general public may be excluded for
17
a limited time during, for example, the testimony of a
prosecutrix who cannot express herself before a large
audience. Cases upholding the exclusion of the entire pub
lic from all phases of a criminal case, over a defendant’s
objection, have been found in but a few states. Such arbi
trary exclusion is unrelated to the orderly and fair admin
istration of justice, and even to the State’s avowed purpose
of protecting the morals of the public. If petitioner’s mo
tion to limit the exclusion of the public only to the time of
prosecutrix’s testimony had been granted, petitioner’s
rights would have been protected. Certainly, the exclusion
of the public during the empanelling of the jury had no
reasonable relation to any permissible purpose and may
have seriously prejudiced petitioner, for without petition
er’s knowledge—although the State knew of it—the Chief
of the Reserve Police Force of Montgomery County became
a member of the jury after having failed to disclose his
police affiliation on voir dire.. Thus petitioner was tried
by a juror with an interest in his conviction. One of the
principal reasons for the public trial right is that it is
designed to prevent miscarriages of justice abetted by con
cealment of this sort.
These were not merely individual fatal flaws in peti
tioner’s trial, but considered cumulatively these errors
robbed petitioner’s trial of any semblance of the open
quality which characterizes judicial proceedings in the
United States and, indeed throughout the English speak
ing world.
18
ARGUMENT
I
A .
Due process of law guaranteed by the Fourteenth
Amendment was denied to petitioner— a little-edu
cated, mentally unstable Negro youth— by introduction
into evidence of his “ confessions” and “ inculpatory
statements” made following sustained interrogation,
punctuated by threats of electrocution, while he was
held incommunicado at the State Penitentiary from
Monday afternoon through Wednesday morning near
and frequently in the very presence of the electric
chair.
The confessions 6 which were introduced into evidence
were coerced as a matter of law. There is no controversy
as to the facts because the issue arises upon proffers
(R, 55-56, 58-59, 74, 164-165, 139-141), which were rejected
as irrelevant by the trial court and as irrelevant and in
sufficient in law by the Alabama Supreme Court. Nowhere
are the allegations denied by the State.7 Indeed, although
6 There are involved inculpatory statements which amounted to
confessions (R . 59-60, 75, 190-191), a confession (R . 165-166) and
testimony that there had been a confession (R . 58, 64-65). For
brevity, petitioner refers to them as the confessions, except where
it is necessary to distinguish among them.
7 There is some testimony of a general nature apparently intro
duced to exculpate the State from a charge of coercion, but it does
not amount to denying any of petitioner’s allegations: There is testi
mony by prosecutrix that she knew nothing of what occurred prior
to petitioner’s statements at the City Jail (R . 57), that she saw no
one threaten petitioner there (R. 55, 57) ; by the Director of the
State Department of Toxicology and Criminal Investigation that no
one coerced petitioner between 2 :30 and 3 :00 P. M. on November
11th (R . 92-93) ; by petitioner that the Solicitor told petitioner he
would help him (R . 143) ; by the Prison Classification Officer that
the Solicitor told petitoiner he could make him no promises and
would get him a lawyer if he didn’t hire one (R . 159) ; by Captain
J. Lewis Miller of the detective force of Montgomery that in his
presence no one coerced petitioner at the City Jail (R . 156).
19
testimony in support of the proffers was forbidden, there
is incidental corroboratory testimony in the record.8
Prior to the introduction of the confessions petitioner
in these proffers offered to prove the existence of many
facts each of which this Court frequently has held to be
relevant on the issue of coercion:
That he was a Negro,9 seventeen years of age,10 had an
eighth grade education,11 that he was held incommunicado
8 On cross-examination, S. E. Sellers, City Detective, testified
that he was at Kilby on November 10th and was with defendant for
twenty to forty minutes, that during this time Warden Dees was
present, that petitioner was in the room next to the electric chair, but
that he (Sellers) did not hear what was said (R . 99-100). Petition
er’s mother testified that she had not been permitted to see him until
Wednesday afternoon (R . 102-103). Petitioner’s father testified
he had not been permitted to see him until Thursday (R. 116-117).
There was testimony by the Prison Classification Officer that peti
tioner was held without a charge lodged against him (R. 160).
Before petitioner’s testimony was interrupted, he testified as to his
age (R . 135) ; that he had been threatened in a number of ways by
the officers who picked him up, including with the electric chair
(R. 137-138) ; that he was held incommunicado (R . 137) ; that on
Monday he was questioned till dark, went to sleep and was then
awakened and taken into the room with the electric chair (R . 138) ;
that Warden Dees threatened him with the chair if he did not con
fess (R . 138). That he did not see his parents until 5:00 P. M.
Wednesday (R . 141) ; that he was frightened (R . 142).
9 In ascertaining whether a confession is coerced, this Court gives
weight to the fact that defendant is a member of an unpopular racial
group. Chambers v. Florida, 309 U. S. 227, 237, 241; Ward v.
Texas, 316 U. S. 547, 555; Harris v. South Carolina, 338 U. S. 68,
70, as part of considering his “ condition in life” Gallegos v. Nebraska,
342 U. S. 55, 67. See, Mr. Justice Jackson’s dissenting opinion in
Ashcraft v. Tennessee, 322 U. S. 143, 156, 173.
10 Whether defendant is mature or immature is important in
evaluating whether a confession has been coerced. Haley v. Ohio,
332 U. S. 596.
11 The degree of education which a defendant has had is an
important factor in evaluating whether a confession has been coerced.
Ward v. Texas, 316 U. S. 547, 555; Harris v. South Carolina, 338
U. S. 68, 70.
20
at Kilby from about 2:00 P. M. on Monday the 10th,
through 5:00 P. M. on Wednesday the 12th, that he was
denied permission to talk to or phone anyone, that friends
and relatives had been forbidden to see him or speak to
him,12 that he was continuously questioned and abused,13
was kept next to the room with the electric chair, that he
12 Holding petitioner incommunicado was not only in probable
violation of Alabama law, 15 Code of Ala. § 160 (1940), Ingram v.
State, 34 Ala. App. 597, 601, 42 So. 2d 30 (1949), but contrary to
the almost universal rule. See statutes collected in McNabb v. U. S.,
318 U. S. 332, 342, fn. 7. Although there has been some controversy
over whether this alone should vitiate a confession it is at least a
serious factor to be weighed, because, “ [t]o delay arraignment,
meanwhile holding the suspect incommunicado, facilitates and usually
accompanies use of ‘third degree’ methods. Therefore [this Court]
regard[s] such occurrences as relevant circumstantial evidence in the
inquiry as to physical or psychological coercion.” Stein v. New
York, 346 U. S. 156, 187. See also Harris v. South Carolina, 338
U. S. 68, 71; Turner v. Pennsylvania, 338 U. S. 62, 64; Ward v.
Texas, 316 U. S. 547, 555; Ashcraft v. Tennessee, 322 U. S. 143,
152; Malinski v. New York, 324 U. S. 401, 412, 417; Turner v.
Pennsylvania, 338 U. S. 62, 66, 67.
13 If petitioner had been able to develop this line of inquiry he
would have been able to show the nature and extent of the interroga
tion. Questioning began after 2 :00 P. M. on the afternoon of Mon
day the 10th (R. 140) and continued until dark (R . 138) ; petitioner
then slept for fifteen or twenty minutes and was awakened and taken
into the room with the electric chair (R . 140) ; he was questioned
there all night (R. 140) ; early Tuesday morning he was awakened
and he was then questioned all day Tuesday and part of Tuesday
night (R . 140). Later Tuesday night he slept. Wednesday morning
he was questioned again, until he confessed (R . 140). Questioning
was of long duration, and was conducted and threats were made by a
series of officers (R. 74, 140, 164).
Continuous interrogation has been deemed an important factor in
evaluating whether a confession has been coerced, Chambers v.
Florida, 309 U. S. 227, 231; Ward v. Texas, 316 U. S. 547, 555;
Ashcraft v. Tennessee, 322 U. S. 143, 154; Haley v. Ohio, 332 U. S.
596, 600; Turner v. Pennsylvania, 338 U. S. 62, 64.
21
was taken into the electric chair room and threatened
with death in the electric chair14 and was offered the
hope and promise that if he confessed he would save his
life from the chair ;15 that while held there he was stripped
naked and photographed, and had his spine tapped and
blood taken from his arm against his will.16 Further in
quiry would have developed that petitioner was mentally
unstable (R. 105, 121-122, 124), and came from a poverty
stricken home (R. 107), and was therefore even more likely
to capitulate than the ordinary otherwise disadvantaged
seventeen year old Negro youth in his plight.
Almost every aspect of the treatment which petitioner
received at Kilby is found in the leading cases in this Court
condemning exaction of involuntary confessions. Virtually
each form of the pressure employed has been condemned
by this Court.17 In combination, petitioner submits, they
formed an irresistible pattern.
Mute testimony that petitioner was subjected to illegal
coercion at Kilby is given by the State’s unwillingness
14 In Wilson v. Louisiana, 341 U. S. 901, aff’g 217 La. 470, 46
So. 2d 738, petitioner had been brought into the electric chair room
in the course of obtaining a confession from him. However, the
Louisiana Court noted that the electric chair was not visible and
that there was no evidence that it had the effect of intimidating peti
tioner there. Cf. State v. Auguste, 50 La. Ann. 488, 23 So. 612 (1898)
(prisoner interrogated in presence of gallows, confession held
coerced).
15 A lighter penalty is one of the inducements which was offered
in Leyra v. Denno, ------ U. S . --------, 98 L. ed. (Adv. 631, 633). As
Mr. Justice Minton wrote, at p. 645 (concerning the first confession
in Leyra) : such “threats, cajoling, and promises of leniency * * * to
induce petitioner to confess were soundly condemned * * * ”
16 The effect of similar treatment was noted in Malinski v. New
York, 324 U. S. 401, 403, 407. Also see Rochin v. California, 342
U. S.' 165, 173, 174, 179.
17 Footnotes 9 through 16 cite only some of the cases in this
Court in which it has been held that confessions were coerced because
of practices such as those used here.
2 2
even to attempt to introduce a “ confession” (R. 58, 64-65)
which was apparently made before he was removed to the
City Jail.
Transfer of petitioner from one jail to another on
Wednesday morning so that he might be identified by
prosecutrix clearly did not alleviate his condition. No
appreciable time had elapsed.18 He was still in police
custody. He was still incommunicado.19 He labored under
the crushing burden of having already confessed.20 He
was confronted by prosecutrix accusing him of a frightful
crime. His age, education and mental condition were no
different. It does not appear that any significant change
in circumstances occurred. Neither did any significant
change in circumstances occur prior to his confessing to
the psychiatrist,21 or to witness Clark.22 But even apart
from the factual showing that his situation was the same,
such a confession remains coerced as a matter of law
18 The time gap cannot be ascertained with precision, but it was
no more than a few hours. W e know petitioner was questioned on
Wednesday morning at Kilby (R . 140), that the ride from Mont
gomery to Kilby is about 15 minutes (R. 140) ; that prosecutrix went
out to the City Jail at 11:00 (R . 57).
19 His parents were not permitted to see him until late Wednes
day afternoon (R . 102-103, 116,117, 141).
20 As Mr. Justice Jackson wrote in United States v. Bayer, 331
U. S. 532, 540, once an accused has confessed, “ no matter what the
inducement, he is never thereafter free of the psychological and prac
tical disadvantages of having confessed.” In U. S. v. Bayer, the
Court weighed a time lapse of six months and concluded that this
length of time in conjunction with only a modicum of restraint vitiated
a previous inducement to confess. See Mr. Justice Rutledge’s con
curring opinion in Malinski v. New York, 324 U. S. 401, 420, 428;
Mr. Justice Murphy’s dissenting opinion in Lyons v. Oklahoma, 322
U. S. 596, 605, 606.
21 A day had elapsed and he had seen his mother (R . 144, 102-
103).
22 Clark thinks he saw petitioner on the 17th (R . 75).
23
unless the State comes forward to overcome the presump
tion created by the undisputed facts. Mr. Justice Minton
stated the general rule when he wrote:
“ As in the case of other forms of coercion and
inducement, once a promise of leniency is made a
presumption arises that it continues to operate on
the mind of the accused. But a showing of a variety
of circumstances can overcome that presumption.
The length of time elapsing between the promise
and the confession, the apparent authority of the
person making- the promise, whether the confession
is made to the same person who offered leniency,
and the explicitness and persuasiveness of the in
ducement are among the many factors to be
weighed. ’ ’ Leyra v. Denno,------U. S .------- , 98 L. ed.
(Adv. 631, 645, 647).23
The State produced nothing. The record shows that there
was no change in conditions that makes any legal differ
ence.
Because of the introduction into evidence of these
coerced confessions, or any of them,24 the judgment below
must fall.
23 III Wigmore § 855, states: “ * * * the general principle is
universally conceded that the subsequent ending of an improper in
ducement must be shown ; i. e. it is assumed to have continued until
the contrary is shown.” (Italics in original). See also Mr. Justice
Rutledge’s concurence in Malinski v. New York, 324 U. S; 401, 420,
428; Mr. Justice Murphy’s dissenting opinion in Lyons v. Oklahoma,
322 U. S. 596, 605, 606.
24 Stroble v. California, 343 U. S. 181, 190; Malinski v. New
York, 324 U. S. 401, 402, 404; Lyons v. Oklahoma, 322 U. S. 596,
597 note 1.
24
B.
Even if the confessions were not coerced as a
matter of law, due process was denied in that the con
fession issue was not “ fairly tried and reviewed” : The
jury which heard the confessions was not permitted to
hear the relevant and important testimony offered by
petitioner concerning their exaction.
In Point A, supra, petitioner demonstrated by undis
puted facts that this conviction rests upon confessions
obtained contrary to due process of law. Petitioner sub
mits in this section that error was compounded by the
trial court’s refusal to permit the jury to hear evidence of
how the confessions were exacted.
Following the State’s case, petitioner began to testify
concerning the pattern of coercion which commenced at
Kilby on Monday and continued through Wednesday morn
ing when he confessed, just prior to being brought before
prosecutrix. The court stopped him before he completed
testifying about Monday. Thereupon petitioner made the
proffer which appears on page 11, supra.
The trial court refused to permit the jury to hear this
testimony on the ground that it did not concern events
in the City Jail (E. 138, 140,141). On review the Supreme
Court of Alabama upheld the trial court.25 Therefore,
neither the trial court nor the jury nor the Supreme Court
fairly considered the pattern of coercion preceding the
confessions. Petitioner submits that by this procedure he
25 The Alabama Supreme Court considered State testimony con
cerning events at Kilby on Tuesday the 11th (R. 192). It deemed
the events of the 11th relevant at least for purposes of the State’s
case, although defense testimony concerning the 11th had been ex
cluded as irrelevant.
25
was denied his fundamental, constitutional right to have
the confession issue “ fairly tried and reviewed.” 26
The law has long recognized that prisoners may con
fess for any one of or a combination of many complex
reasons. In some cases the psychology of the problem
may be clear; in others obscure. But, in any case, it is
fundamental “ * # * that confessions vary in value accord
ing to the circumstances in which they are made. ’ ’ 27
The fundamental importance of the right to present evi
dence to the jury on the issue of voluntariness is demon
strated by the fact that in every American jurisdiction,
once the jury hears a confession the defendant is permitted
to put on testimony of circumstances surrounding its exac
tion.28 Most jurisdictions instruct the jury to reject a
28 Stein v. New York, 346 U. S. 1S6, 182. See also Mr. Justice
Burton’s dissent in Haley v. Ohio, 332 U. S. 596, 607, 615: “ Due
process of law under the Fourteenth Amendment requires that the
States use some fair means to determine the voluntary character of
a confession * * * ”
The issue of the right to testify concerning the exaction of a con
fession was raised in the Stein case, at pp. 173-175, but this Court
held that it was not properly presented. Petitioners alleged that as
a practical matter they had been prevented from presenting evidence
of coercion, because if they had testified on the confession issue they
would have opened themselves up to general cross-examination. The
State denied this. At any rate petitioners there did not take the
stand and then object to cross-examination when, in their opinion,
it exceeded the bounds of due process, and therefore the issue was
not before this Court.
In the case now at bar there was a flat refusal to permit petitioner
to testify concerning relevant and weighty facts bearing on the con
fession.
27 III Wigmore § 866.
28 Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941) ; State V.
Smith, 62 Ariz. 145, 155, 155 P. 2d 622 (1944) ; Nelson v. State,
190 Ark. 1078, 1082, 83 S. W . 2d 539 (1935); People v. Fox, 25
Cal. 2d 330, 340, 153 P. 2d 729 (1944) ; Diaz v. People, 109 Colo.
482, 485-486, 126 P. 2d 498 (1942) ; State v. Willis, 71 Conn. 293,
314, 41 Atl. 820 (1898); Williams v. State, 156 Fla. 300, 303, 22 So.
2d 821 (1945) ; Bryant v. State, 191 Ga. 686, 711, 13 S. E. 2d 820
(1941 ); State v. Hofer, 238 la. 820, 829, 28 N. W . 2d 475 (1947);
26
confession which it finds to be coerced; some instruct it
to consider coercion in determining what weight to give
28 (Continued)
State v. Van Vlack, 57 Id. 316, 342-343, 65 P. 2d 736 (1937);
People v. Roach, 369 111. 95, 96, 15 N. E. 2d 873 (1938); Mack v.
State, 203 Ind. 355, 373, 180 N. E. 279 (1932); State v. Taylor,
119 Kan. 260, 262, 237 Pac. 1053 (1925); Logan v. Common
wealth, 308 Ky. 259, 262-263, 214 S. W . 2d 279 (1948 ); State
v. Wilson, 217 La. 470, 486, 46 So. 2d 738 (1950) affd. 341
U. S. 901; Nicholson v. State, 38 Md. 140, 155 (1873) ; Comm. v.
Sheppard, 313 Mass. 590, 604, 48 N. E. 2d 630 (1943) cert. den.
300 U. S. 213; State v. Grover, 96 Me. 363, 366, 52 A. 757
(1902) ; People v. Dudgeon, 229 Mich, 26, 30, 201 N. W . 355
(1924) ; State v. Schabert, 222 Minn. 261, 263, 24 N. W . 2d 846
(1946) ; Brooks v. State, 178 Miss. 575, 582, 173 So. 409 (1937) ;
State v. Gibilterra, 342 Mo. 577, 585, 116 S. W. 2d 88 (1938);.
State v. Sherman, 35 Mont. 512, 519, 90 Pac. 981 (1907) ; Cramer
v. State, 145 Neb. 88, 97-98, 15 N. W . 2d 323 (1944); State v.
Cleveland, 6 N. J. 316, 326, 78 A. 2d 560, 23 A. L. R. 2d 907
(1 9 5 1 ) ; State v. Vaisa, 28 N. M. 414, 417, 213 Pac. 1038 (1923);
People v. Elmore, 277 N. Y. 397, 404, 14 N. E. 2d 451, 124 A. L. R.
465 (1938 ); State v. Kerns, 50 N. D. 927, 940, 198 N. W . 698
(1924); State v. Collett, 58 N. E. 2d 417, 424 (Ohio) (1944) ; Smith
v. State, 77 Okla. Crim. 142, 146-147, 140 P. 2d 237 (1943);
State v. Jordan, 146 Ore. 504, 511, 30 P. 2d 751 (1934) ; Comm.
v. Van Horn, 188 Pa. 143, 168, 41 A. 469 (1898); State v. Wil
liams, 31 Nev. 360, 371, 102 P. 974 (1909); State v. Adams,
------ - R. I. -------, 121 Atl. 418, 419 (1923); State v. Scott, 209
S. C. 61, 64-65, 67, 38 S. E. 2d 902 (1946); State v. Nicholas,
62 S. D. 511, 515, 253 N. W . 737 (1934); Wynn v. State, 181
Tenn. 325, 329, 181 S. W . 2d 332 (1943); Cavazos v. State,
143 Tex. Cr. 564, 566, 160 S. W . 2d 260 (1942 ); State v. Crank,
105 Utah 332, 355, 364, 142 P. 2d 178, 170 A. L. R; 542 (1943) ;
Jackson v. Commonwealth, 193 Va. 664, 674, 70 S. E. 2d 322
(1 9 5 2 ) ; State v. Van Brunt, 22 Wash. 2d 103, 108, 154 P. 2d
606 (1944) ; State v. Richards, 101 W . Va. 136, 141, 132 S. E.
375 (1926 ); Pollack v. State, 215 Wise. 200, 217, 253 N. W . 560
(1934); Clay v. State, 15 W yo. 42, 59, 86 Pac. 17 (1906); Wilson
v. U. S., 162 U. S. 613, 624 (1896); Witt v. United States, 196
F. 2d 285, 286 (C. A. 9th, 1952), cert. den. 344 U. S. 827; Murphy
v. United States, 285 F. 801, 808 (C. A. 7th, 1923), cert den.
261 U. S. 617; Catoe v. U. S., 131 F. 2d 16, 19, 76 App. D. C.
292 (1942).
27
the confession.28 29 But no jurisdiction has been found which
keeps from the jury the circumstances surrounding the
exaction of a confession which it has heard. Indeed, in
Alabama the rule is that if a confession is held not to have
been coerced as a matter of law, the trial court permits the
jury to hear evidence concerning its exaction so that it
may determine its credibility.30 This is the English rule
too.31 But by tightly drawing the circle of relevancy the
28 The states are classified in 170 A. L. R. 567.
30 Dyer v. State, 241 Ala. 679, 4 So. 2d 311 (1941) ; Vernon V.
State, 239 Ala. 593, 196 So. 96 (1940). The jury was so charged in
this case (R . 175), but, of course, it had been denied petitioner’s
proffered evidence and so the instruction was meaningless.
31A recent case in the King’s Bench decided by Lord Chief
Justice Goddard, contains a particularly clear discussion of the im
portance of the right to present evidence of involuntariness to the
ju ry :
“ The recorder was wrong in the course which he took.
It was quite right for him to hear evidence in the absence of
the jury and to decide on the admissibility of the confession;
and, since he could find nothing in the evidence to cause him
to think that the confession had been improperly obtained, to
admit it. But its weight and value were matters for the
jury, and in considering such matters they were entitled to
take into account the opinion which they had formed on the
way in which it had been obtained. Mr. Hooper was per
fectly entitled to cross-examine the police again in the pres
ence of the jury as to the circumstances in which the confes
sion was obtained, and to try again to show that it had been
obtained by means of a promise or favour. If he could have
persuaded the jury that, he was entitled to say to them;
‘You ought to disregard the confession because its weight is
a matter for you.’
“ The point, if there is any doubt about it, ought to be
finally settled. * * * It has always, as far as this court is
aware, been the right of counsel for the defence to cross-
examine again the witnesses who have already given evidence
in the absence of the jury; for if he can induce the jury to
think that the confession was obtained through some threat
2 8
trial court in this case barred the proffered testimony from
the jury.
This ruling was patently erroneous insofar as it denied
petitioner the right to testify concerning the confession—
about which prosecutrix had testified— (ft. 58, 64-65) which
was made immediately following the coercion at Kilby.
And certainly reasonable men knowing all the facts,
could have concluded that the subsequent confessions were
coerced, even if arguendo, by moving petitioner to the
City Jail the State escaped the consequences of coercion
at Kilby as a matter of law.92 But the jury here was
prevented from knowing all the facts, and could not fairly
try the issue.
Depriving the jury of this testimony may not have only
influenced the issue of guilt, it may have meant the dif
ference between the death penalty and a term of years
which the jury was free to impose.38 31 32 33
31 (Continued)
or promise, its value will be enormously weakened. The
weight and value of the evidence are always for the jury.”
R ex v. Murray, 1 K. B. 391 (1951).
In R ex v. Murray the recorder also charged the jury that they
were not to consider the circumstances under which the confession
was obtained. But that does not make it unlike this case, for here,
although the jury received a charge on credibility it was not permit
ted to hear the evidence.
32 See, the opinion of Mr. Justice Minton dissenting in Leyra V.
D en no,-------U. S. •——— , 98 L. Ed. (Adv. 631, 645, 646 ): It is
“ * * * the very essence of due process to submit to a jury the ques
tion of whether these later confessions were tainted by the prior
coercion and promises. * * * ”
See also, Lyons v. Oklahoma, 322 U. S. 596, 603: Evidence of
coercion, such as that offered by petitioner here must “ [O jf course
* * * be considered in appraising the character of the later con
fession.”
33 Cf. U. S. ex rel. Almeida v. Baldi, 195 F. 2d 815, 819-820
(C. A . 3d, 1952).
29
The jury heard the confessions and heard of them. It
heard some State’s evidence that they had been fari'ly
obtained. But it was denied defendant’s proffered testi
mony of an entire pattern of coercion bearing heavily on
their credibility. Those opinions in this Court, both
majority or dissenting, which have approved the admission
of confessions in particular eases have frequently stressed
that the matter was fairly tried and reviewed below be
cause the triers had seen the witnesses and had heard
all of the evidence of both sides concerning exaction of the
confession. This record is bare of any semblance of such
fair procedure.
In another context Mr. Justice Jackson condemned “ a
curtailment which keeps from the jury relevant and im
portant facts bearing on the truthworthiness of crucial
testimony,” Gordon v. United States, 344 U. S. 414, 423.
The curtailment here of testimony bearing on a constitu
tional claim was of even greater gravity. For these reasons,
petitioner submits that the confession issue was not fairly
tried and reviewed, and that therefore the judgment below
must fall.
C .
The Supreme Court of Alabama erred in holding
that even if the confessions were coerced, the deci
sion in Stein v. N ew York , 346 U. S. 156 permitted
affirmance because there was sufficient evidence apart
from the confessions upon which the conviction could
have been based.
The Alabama Supreme Court concluded that even if the
confessions were coerced, there was no error because there
was enough evidence to convict without the confessions.
In this it relied upon Stein v. New York, 346 U. S. 156.
It wrote:
30
“ In considering all the evidence, * * * and the
finding of the Court, * * * that the statements were
voluntary, we cannot say that the admission of
these statements was reversible error. Moreover,
the admissions to the prosecutrix and the confession
to Dr. Bazar did not form the basis of a conviction.
The State had established the identity of this de
fendant as the perpetrator of the crime by very con
vincing proof ‘ and the matter of confession was but
cumulative and approached what might properly be
termed supererogation * * * ’ Johnson v. State, 242
Ala. 278, 5 So. 2d 632, cert. den. 316 U. S. 693, 713,
or as stated in Stein v. New York, supra. ‘ Here the
evidence of guilt * * * is enough apart from the
confessions so that it could not be held constitution
ally or legally insufficient to warrant the jury
verdict’ ” (R. 192).
In this, petitioner submits, the Alabama Supreme Court
misinterpreted Stein v. New York.si
In the Stein case the opinion for the court held that
the confessions were not coerced as a matter of law.So It
then proceeded to consider the possibility that despite
this legal conclusion, the jury, nevertheless, found the con
fessions coerced as a matter of fact. This, of course, could
only be an assumption, for no one could know what the
jury, in finding a general verdict, thought of the confession
issue; or indeed, whether there was unanimity among the
jurors on this particular point. Proceeding on the assump- 34 35
34 Even if it were correct in its interpretation of the Stein case,
the judgment below must fall, for the case against petitioner consists
wholly of the confessions and prosecutrix’s identification of peti
tioner which was the fruit of the confession. See p. 5, supra,
Compare Stein v. New York, 346 U. S. 156, 163, n. 6 where the iden
tification was held to be fair.
35 Stein v. New York, 346 U. S. 156, especially pp. 179-188.
31
lion that the jury found the confession coerced, the Court
held that this assumed finding- was not subject to review.
However this does not mean that the trial court’s and
the State Supreme Court’s ruling is not subject to review,
or that their error may be disregarded because other
evidence sufficient to convict is in the record.86 Therefore,
the Stein case did not hold that the State may introduce
confessions coerced as a matter of law and sustain a con
viction upon other evidence.
This case differs from the Stein, case in fundamental
respects. (1) Here, unlike in the Stein case, the con
fessions were coerced as a matter of law. (2) In the Stein
case, where the jury heard evidence concerning the method
by which the confessions were obtained, the confession
issue was held to have been fairly tried and reviewed.
Petitioner there, despite his claim to the contrary, had
not been prevented from testifying concerning exaction
of the confessions. Here petitioner was so prevented and
the jury was denied such evidence. Thus, the confession
issue in the instant case was not fairly tried or reviewed.
Petitioner submits that the language in the Stein
opinion which contributed to the erroneous inference of
the Alabama Supreme Court was generated by the issues
raised in the Stein case relating to a requested instruction
for acquittal if the jury found that the confessions were
coerced. Petitioner respectfully suggests that close analy
sis of the issues raised by the requested instruction will
indicate that the Court, in disposing of those issues, had
no intention of departing from the long-established rule
that a conviction tainted by a coerced confession must be
set aside.
A request for an instruction of acquittal automatically
called for an appraisal of all the evidence, for such an 36 *
36 See, Note, The Supreme Court, 1952 Term, 67 Harv. L. Rev.
91, 120 (1953).
32
instruction could be complied with only if the evidence
apart from the confession was inadequate to sustain a con
viction. The requested instruction therefore involved a
two-step operation: (1) an appraisal of the voluntariness
of the confession; (2) if it was found involuntary, an
appraisal of the rest of the evidence. When such other
evidence was weighed in the Stein case it appeared that
petitioners there could have suffered no prejudice by the
denial of their requested instruction, because there was
sufficient other evidence. That issue is not involved here.
Petitioner here does not demand a mandatory acquittal.
Petitioner here requests a new, fair trial.
Petitioner recognizes that the dissenting opinions in the
Stem case expressed serious doubts as to whether the
majority opinion effectively erased the rule that a coerced
confession requires a new trial. Petitioner suggests that
no such drastic intention can be attributed to the majority
where the opinion discloses no express overruling of the
unwavering line of cases whose rule has been reiterated
as recently as Brown v. Allen, 344 U. S. 443, 475.37 If
there were any doubt on this score, it must have been set
at rest by this Court’s application of the conventional rule
—since Stein—in Leyra v. Denno,------ II. S. -------, 98 L. ed.
(Adv. 631) where this court, having found a confession to
have been coerced, summarily reversed the judgment below
without appraising the evidence other than the tainted
confession.
The rule which the Alabama Court employed would
wipe out an accused’s protection against the introduction
of coerced confessions and has never been adopted by this
Court.
37 e.g. Malinski v. New York, 324 U. S. 401, 404; Stroble v. Cali
fornia, 343 U. S. 181, 190, 191; Lyons v. Oklahoma, 322 U. S. 596,
597; Haley v. Ohio, 332 U. S. 596, 599; Gallegos v. Nebraska, 342
U. S. 55, 63.
33
II
There was systematic exclusion of Negroes from
the venire in that the commissioners employed a selec
tion method whereby it was “particularly hard” for
Negroes to become jurors if the commissioners did not
personally know them; commissioners knew fewer
Negroes than whites; and although the Negro popu
lation of Montgomery County is 43.6%, panels con
tained only 0% to 8.5% Negroes.
The state used a system of jury selection which had to
result in systematic exclusion of Negroes from juries, and
which, in fact, resulted in such exclusion contrary to the
Fourteenth Amendment of the United States Constitution
and Title 18 U. S. C. § 243.
The Alabama statute which sets the qualifications of
jurors requires, with a few exceptions, that jurors shall be
“ male citizens of the county who are generally reputed to
be honest and intelligent men and are esteemed in the
community for their integrity, good character and sound
judgment * * * ” (R. 33). It further directs that the com
mission clerk who “ is charged with the duty of seeing” that
the names of all qualified persons are placed in the jury
box, “ scan the registration lists,38 the lists returned to the
tax assessor, any city directories, telephone directories,
and any and every other source of information from which
he may obtain information * * * ” (30 Code of Ala. §24
(1940)). However, the jury commissioners limited the
names in the box to persons whom they knew personally
(R. 28-29, 37) or to persons whose names they had obtained
from individuals or organizations with whom they were
personally acquainted (R. 28-29, 33, 37).
38 Petitioner made several efforts to ascertain whether the voting
list was employed, but this was ruled out as irrelevant (R. 31).
34
As Mr. Justice Reed pointed out in Cassell v. Texas,
339 U. 8. 282, 288, one might expect that in a community
like Montgomery the opportunity for white jury commis
sioners to have personal acquaintanceship with Negroes is
limited. This was the case here and the commissioners so
testified. They knew few Negroes (R. 29, 37) and with
one vague exception did not know any Negro clubs or go
to them for names (R. 33, 36), although they obtained
names from almost every white club in the county (R. 33).
Although they testified that they made efforts to obtain
names of “ high class” or “ good” Negroes (R. 29, 36, 38)
their success does not appear to be much better (R. 29, 36,
37, 40, 42) than that discussed in Hill v. Texas, 316 U. S.
400, 402, or Cassell v. Texas, 339 U. 8. 282, 288, fn. 23,
where avowedly diligent, but unsuccessful efforts to obtain
Negroes on a personal basis did not avoid condemnation by
this Court. Among the Negroes from whom they testified
they requested names (R. 29, 36, 37, 40, 42), the record
reveals only one clear instance of names having been fur
nished (R. 29).
A commissioner testified that it was “ particularly hard”
to place Negroes’ names in the box “ without knowing
them” (R. 29), and the composition of the panels reflects
this difficulty. No more than 8%'% of the members of any
panel were ever Negroes,89 and this is an optimum, not a 39
39 This figure is derived by assuming a panel of thirty-five per
sons (R . 30), including three Negroes (R . 30). Since there are
panels with no Negroes (R . 35) and panels with fewer than three
(R . 30, 34-35), and since fifty jurors are called for each panel
(R . 30), although as few as thirty-five may show up, the figure of
8y2% is an optimum one. (Jury Commissioner Carter’s explicit
testimony that he had never seen more than three Negroes on a
panel (R . 30) seems to rob of statistical significance his later casual
remark that there have sometimes been as many as 3 or 4 at one
time (R . 35). However, even assuming for purposes of argument
that there have ever been as many as four Negroes on a panel, this
can make but a negligible difference in the resultant arithmetic and
can make no difference whatsoever in the legal conclusions to be
drawn therefrom.)
35
typical situation, which, construes ambiguities in favor of
the State. There have been panels with no Negroes (R. 35)
and panels with fewer than three (R. 30, 34-35). In this
case, a commissioner testified, there was one Negro on the
jury panel (R. 34-35). Compared with a Negro population
of 43.6% 40 in the County, which presumably was as quali
fied as the white population for jury service, Hill v. Texas,
316 U. S. 400, 404, the disparity is shocking. Rut given the
system of selection, it was inevitable.
Thus, the case falls under the ban of Cassell v. Texas,
supra, and Avery v. Georgia, 345 U. S. 559.
There were several opinions in the Cassell case and each
discusses factors relevant to this case and condemns the
practice or result which exists in this case. Mr. Justice
Reed’s opinion noted petitioner’s charge there “ that dis
crimination must have been practiced because the Negro
proportion of grand jurors (6.7%) is less than the Negro
proportion of the county’s population,” which was about
15.5%, Cassell v. Texas, supra at pages 284-285. However,
the disparity was perhaps explainable by the fact that a
grand juror in Texas must possess certain statutory quali
fications: eligibility to vote (which requires poll tax pay
ment); he must be a freeholder or householder; he must
be of sound mind and good character; he must be literate.
The poll tax requirement alone reduced the number of
eligible Negroes to 6.5%, “ a percentage approximately the
ratio of Negroes actually sitting on the 21 grand jury
panels.” Id. at pages 285-286. Therefore, Mr. Justice Reed
concluded that “ [wjithout more it cannot be said that
Negroes had been left off grand jury panels to such a
degree as to establish a prima facie case of discrimination.”
Id. at page 286.
40 Montgomery County has a total population of 138,965 of which
60,592, or 43.6% is Negro. 1950 Census of Population, Vol. II,
Characteristics of Population, Part 2, p. 2-87.
36
In this case the disparity is more glaring (0%-8.5% on
panels compared to 43.6% in population) and is not ex
plainable in terms of other factors. There is no voting
requirement; there is no property requirement; there is
not even a literacy requirement (R. 46). The only require
ment which explains the disparity is one imposed by the
commissioners themselves: a juror must be an acquaintance
of a commissioner or must be recommended by a person
or organization that the commissioner knows, where these
sources are almost exclusively white.
However, Mr. Justice Reed did condemn the Cassell
grand jury on grounds that are pertinent here. The system
of selection in the Cassell case was based on personal ac
quaintanceship. The commissioners testified that they
knew no available qualified Negroes, which was substan
tially the case here. Mr. Justice Reed therefore held:
“ The statements of the jury commissioners that
they chose only whom they knew, and that they
knew no eligible Negroes in an area where Negroes
made up so large a proportion of the population,
prove the intentional exclusion that is discrimina
tion in violation of petitioner’s constitutional
rights.” Id. at page 290.
Mr. Justice Frankfurter condemned the jury discrimi
nation in the Cassell case on grounds equally pertinent
here. He did not disapprove of the method of selection
although he pointed out that “ [a] different situation
would be presented by an unquestioned showing that jury
commissioners had such a limited personal knowledge of
potentially qualified Negro jurors that their purposeful
limitation of choice to the negligibly few Negroes known to
them would inevitably imply designed exclusion of eligible
Negroes.” Id. at pages 292-293.
However, he held where “ one factor is uniform in a
continuing series of events that are brought to pass
37
through human intervention, the law would have to have
the blindness of indifference rather than the blindness of
impartiality not to attribute the uniform factor to man’s
purpose” , Id. at page 293. In the Cassell ease, no more
than a single Negro on twenty-one consecutive panels was
such a uniform factor. Therefore, Mr. Justice Frank
furter concluded, the decision below should be reversed.
Here, there is such a persistent limitation also. In fact,
the exclusion is more than twice as severe as that practiced
in the Cassell case 41 with none of the possible justifications
which Mr. Justice Reed found there. Therefore, under Mr.
Justice Frankfurter’s opinion in the Cassell case, the judg
ment here must also fall.
Mr. Justice Clark, in a concurring opinion in the Cassell
case condemned the method of selection in terms equally
applicable to this case:
“ The record indicates clearly that there were
Negroes qualified and available whom the commis
sioners did not know but whom upon inquiry they
should have considered. Their responsibility was
to learn whether there were persons among the
Negroes they did not know who were qualified and
available for service. Hill v. Texas, 316 U. S. 400;
Smith v. Texas, 311 IT. S. 128. The elimination of
this larg'e group in the community from the commis
sioners’ consideration deprived petitioner of consti
tutional safeguards as defined in the decisions of this
Court.” Id. at page 298.
Avery v. Georgia, 345 IJ. S. 559 is further authority for
petitioner’s position. There, although there was no direct
41 Although the ratio of Negroes to whites in Montgomery is
almost three times as great as that in Cassell (43.6% : 15.5%), the
proportion of Negroes on jury panels is almost the same (8.5% maxi
mum: 6 .7% ).
38
evidence that Negroes had not been selected for jury serv
ice because of race, the system made exclusion possible by
employing different colored cards for white and colored
jurors. The late Chief Justice Yinson held the system un
constitutional because it facilitated discrimination and
because the commissioners did not follow a non-discrimina-
tory course of conduct:
The jury commissioners, and the other officials
responsible for the selection of this panel, were un
der a constitutional duty to follow a procedure—“ a
course of conduct” —which would not “ operate to
discriminate in the selection of jurors on racial
grounds.” Hill v. Texas, 316 U. S. 400', 404. I f
they failed in that duty, then this conviction must
be reversed—no matter how strong the evidence of
petitioner’s guilt. That is the law established by
decisions of this Court spanning more than seventy
years of interpretation of the meaning of “ equal
protection. ’ ’
Petitioner’s charge of discrimination in the jury
selection in this case springs from the Jury Com
missioners’ use of white and yellow tickets. Obvi
ously that practice makes it easier for those to dis
criminate who are of a mind to discriminate. Fur
ther, the practice has no authorization in the Georgia
statutes—which simply enjoin the Commissioners to
select “ upright and intelligent men to serve as
jurors * * * ”
The characteristics which condemned the system in the
Avery case also doom the system here. They make dis
crimination easier. They require following a course of
conduct which operates to discriminate. They have no
authorization in the Alabama statutes. They cause exclu
sion in fact.
39
When all this is coupled with the trial judge’s ruling
that petitioner could not examine the jury box to ascertain
the number of colored jurors and to test the general asser
tions of non-discrimination by the commissioners,42 (R. 27-
28, 34) the conclusion that this is an illegal method is re
enforced. Such a combination—jurors chosen on the basis
of personal acquaintanceship, and denial of opportunity to
examine the jury box—provides the means sought by those
who would discriminate. In combination they would per
mit circumvention of more than seventy years ’ holdings in
this Court. Avery v. Georgia made clear that this Court
would countenance no subterfuge or form of evasion where
this constitutional right is involved.
Therefore for the systematic exclusion of Negroes from
the jury the judgment below must also fall.
I 1 I
Arbitrary exclusion of the general public from all
phases of petitioner’s trial denied due process of law.
Petitioner submits that he was denied due process of
law in that the general public was excluded from his trial.
Petitioner further submits that the ban included a time,
when, as subsequent events proved, the presence of the
public was most necessary: during the voir dire when the
Chief of Police of the Montgomery Reserve Police Force
became a juror, after failing to disclose this aspect of his
occupation, when the State knew of his police affiliation and
defendant did not (R. 173-177).
42 The trial court was authorized to permit the jury rolls to De
used in evidence. State v. Miller, 204 Ala. 234, 236, 85 So. 700
(1920) and cases cited therein.
40
At the very outset of the proceedings below, over peti
tioner’s constitutional objection, the court excluded the
public from the courtroom (R, 2, 10). Originally his rela
tives (R. 14-15, 19), and the press (R. 3, 11) were excluded
along with the rest of the public; however, in response to
further objections (R. 15, 22) they were later admitted.
Losing on his objection to the exclusion of the general pub
lic, petitioner moved that it be limited to the time when
prosecutrix testified (R. 15, 20). This too was denied
(R. 15). He appealed the permanent exclusion from all
phases of the trial to the State Supreme Court on Federal
Constitutional grounds, but the appellate court upheld the
trial court without discussing the matter.43
The right to a public trial, explicitly set forth in the
Sixth Amendment and in corresponding provisions of
almost every state constitution 44 is one of the most ancient
and deep rooted rights of an accused in our legal tradi
tion.45 * It has variously been attributed to immemorial
common law usage, historical accident, aversion to Star
Chamber proceedings, and reaction to the procedures of
the Inquisition,48 but whatever its origin, the right is so
widely and uniformly recognized that it may fairly be
described as fundamental. Throughout the English speak
43 See note 2, supra.
44 See note 47, infra.
45 Re Oliver, 333 U. S. 257, 266-270.
48 Note, 49 Col. L. Rev. 110, 111, 115 (1949). See also
Re Oliver, op. cit. supra n. 45 at pages 266-271.
41
ing world it is not disputed that a trial must be public.47
It is thus apparent that the right to a public trial is “ im
plicit in the concept of ordered liberty” which is due
process of law, Palko v. Connecticut, 302 U. S. 319, 325.
Indeed, this Court expressed its own concurrence in the
47 The United States, forty-six states, and at least four mem
bers of the British Commonwealth recognize the right.
The United States, and forty-one states recognize it by constitu
tion :
United States Constitution, Sixth Amendment.
Alabama Const. Art. I, §6; Arizona Const. Art. II, Section 24;
Arkansas Const. Art. II, Section 10; California Const. Art. I, Sec
tion 13; Colorado Const. Art. II, Section 16; Connecticut Const.
Art. I, § 9 ; Delaware Const. Art. I, § 7; Florida Const., Declaration
of Rights, Section 11; Georgia Const. Art. I, §2-105; Idaho Const.
Art. I, § 13; Illinois Const. Art. II, § 9 ; Indiana Const. Art. I, § 13;
Iowa Const. Art. I, Section 10; Kansas Const., Bill of Rights, § 10;
Kentucky Const. Section 11; Louisiana Const. Article I, § 9 ; Maine
Const. Art. I, Section 6, Michigan Const. Art. II, §19; Minnesota
Const. Art. I, §6; Mississippi Const. Art. 3, §26; Missouri Const.
Art. I, §18(a) ; Montana Const. Art. I l l , §16; Nebraska Const.
Art. I, §11; New Jersey Const. Art. I, Par. 10; New Mexico Const.
Art. II, §14; North Carolina Const. Article I, §13; North Dakota
Const. Art. I, §13; Ohio Const. A rt: I, §10; Oklahoma Const. Art.
II, §20; Oregon Const. Art. I, §11; Pennsylvania Const. Art. I,
§11; Rhode Island Const. Art. I, §10; South Carolina Const. Art. I,
§18; South Dakota Const. Art. V I, §7; Tennessee Const. Art. I, §9;
Texas Const. Art. I, §10; Utah Const. Art. I, §12; Vermont Const.,
Ch. I, Art. 10; Washington Const. Art. I, §22; West Virginia Const.
Art. I l l , §14; Wisconsin Const. Art. I, §7.
2 States recognize it by statute: Nev. Comp. Laws Ann. §10654
(1929) ; 29 McKinney’s Cons. Laws of New York, §4.
3 States recognize it inferentially by judicial decision. Dutton V.
State, 123 Md. 373, 386-388, 91 A. 417 (1914) ; Commonwealth V.
Blondin, 324 Mass. 564, 569, 87 N. E. 2d 455 (1949); State v.
Holm, 67 Wyo. 360, 394, 224 F. 2d 500 (1950).
England:
Scott v. Scott, [1913] A. C. 417, 435, 439; Mahlikilili Dahlamini
v. The King [1942] A. C. [P. C.] 583, 590.
Canada:
McPherson v. McPherson [1936] A. C. 177, 1 D. L. R. 321.
A.ustr3.1i3, *
R v. Hamilton, [1930] 30 S. R. N. S. W . 277, 278; 47 N. S.
W . W . N. 84.
South A frica :
R v. Ladbrooke [1931] N. L. R. 475.
42
sanctity of the public trial as an aspect of due process in
Re Oliver, 333 U. S. 257, 273, where this Court noted “ this
nation’s historic distrust of secret proceedings, their inher
ent dangers to freedom, and the universal requirement of
our federal and state governments that criminal trials be
public * * *”
But petitioner does not rest merely on this broad asser
tion, for the metes and bounds of the public trial guarantee
have been defined more precisely by long and almost uni
versal usage. Thus, there are judicial decisions which
recognize that the court may be cleared of unruly persons,48 49
and that when the courtroom is filled no additional persons
need be admitted.48 Minors may occasionally be ex
cluded.50 There are jurisdictions which provide that the
court may be cleared during the testimony of a witness
such as a minor prosecutrix, who may be unable to testify
before a large audience 51 or during* the testimony of a
48 State v. Scruggs, 165 La. 842, 870, 116 So. 206 (1928) ; State
v. Genese, 102 NJL 134, 142, 130 Atl. 642 (1925); Grimmett v.
State, 22 Tex. Cr. 36, 40-41, 2 S. W . 631 (1886) ; Doyle v. Com
monwealth, 100 Va. 808, 40 S. E. 925 (1902) ; Archbold’s Criminal
Pleading,-Evidence & Practice 173-174 (31st Edn. 1943).
49 State v. Saale, 308 Mo. 573, 580, 274 S. W . 393 (1925).
But there may be a duty to provide reasonable accommodations, see
State v. Hensley, 75 Ohio St. 255, 263, 79 N. E. 462 (1906). In
Canada it has been held that there is a duty to hold even civil pro
ceedings in a place from which the public will not be deterred, albeit
it is not the intention of the court to exclude the public. McPherson
v. McPherson, [1936] A. C. 177, 1 D. L. R. 321.
50 See U. S. v. Kobli, 172 F. 2d 919, 923 (C. A. 3d, 1949);
State v. Osborne, 54 Ore. 289, 292, 103 P. 62 (1909); Ky. Rev.
Stats. §455.130 (Baldwin’s 1943 Rev. Ed.) ; Nevada Comp. Laws
1929, §8404; Wise. Stats. §256.14 (1951) ; Minn. Stat. Ann. §631.04
(1947) ; Children and Young Persons Act (1933) (23 Geo. 5,
C. 12) §36.
51 Hogan v. State, 191 Ark. 437, 86 S. W . 2d 931; Beauchamp
v. Cahill, 297 Ky. 505, 508, 180 S. W . 2d 423 (1944) ; State v. Calla
han, 100 Minn. 63, 67, 110 N. W . 342 (1910) ; Gen. Stats. No. Car.
(Recompiled 1953) §15.166; State v. Damm, 62 S. D. 123, 130,
252 N. W . 7 (1933) ; Grimmett v. State, 2 S. W . 631. Archbold,
Criminal Pleading, Evidence & Practice 174, 991-992 ( 31st Ed.
1943); R v. Ladbrooke, [1931] N. L. R. 475, 476 (South Africa).
43
witness who fears he may be harmed.62 Probably, even
those jurisdictions which have been most outspoken in
defense of the right to a public trial would permit its limi
tation in at least some of these circumstances.63 But ex
cept in the case of such limited reasonable instances we
find that in the preponderant number of jurisdictions there
are no examples of courts sanctioning exclusion of the pub
lic from criminal proceedings.
In thirty-four states and three Federal Circuits (the
only Circuits to pass on the question) petitioner has found
no instances of exclusion of the public from criminal trials
except for a limited time and for ends related to the orderly
and fair administration of justice,52 * 54 examples of which
52 Commonwealth v. Principatti, 260 Pa. 587, 598, 104 Atl. 53
(1918). Cf. The King v. Governor of Lewes Prison, ex parte Doyle
2 K. B. 254, 272 (1917).
68 E. g., United States v. Kobli, supra, at pages 922-923.
54 The cases and statutes cited in this footnote indicate, so far as
petitioner has been able to find, the outer limits to which each of
these thirty-four jurisdictions has permitted or will permit exclusion
of the public from criminal trials:
United States v. Kobli, 172 F. 2d 919 (C. A. 3d, 1944) (Mann
Act, court cleared of all persons except jurors, witnesses, lawyers,
press, reversed) ; Tanksley v. United States, 145 F. 2d 58 (C. A.
9th, 1944) (rape, court cleared except for parties, counsel, officers
of the law, press, relatives of defendant, reversed) ; Davis v. United
States, 247 F. 394 (C. A. 8th, 1917) (train robbery, court crowded,
tension; court cleared except for defendants’ relatives, lawyers, press;
reversed).
Twenty-one of these states have decided cases or statutes bearing
on this point:
Ark.: Hogan v. State, 191 Ark. 437, 86 S. W. 2d 931 (1935)
(court cleared during testimony of embarrassed minor prosecutrix,
proper) ; Cal.: People v. Hartman, 103 Cal. 242, 37 P. 153 (1894)
(rape, all persons excluded during entire trial, reversed) ; K y .: Beau
champ v. Cahill, 297 Ky. 505, 180 S. W. 2d 423 (1944) (contributing
to delinquency of minor female, lawyer had right to be present at trial
of case related to one in which he is involved; court says it can
exclude public during testimony of child witness), Ky. Rev. Stat.
Baldwin 1943 Rev. Ed.) §455.130 (children can be excluded dur
ing rape tria l); Mich.: People v. Yeager, 113 Mich. 228, 71 N. W.
491 (1897) (assault with intent to rape, all persons excluded except
friends and relatives of defendant, reversed; statute permitting ex-
44
54 (Continued)
elusion unconstitutional under State Constitution) ; Mich. Stat. Ann.
(1935) Sec. 27.465 (minors can be excluded during indecent testi
mony) ; Minn.: State v. Callahan, 100 Minn. 63, 110 N. W . 342
(1910) (temporary exclusion during embarrassed prosecutrix’s
testimony proper, but order clearing court throughout trial would
have been error) ; Minn. Stat. Ann. (1947) Sec. 631.04 (minors
may be excluded); M o .: State v. Brooks, 92 Mo. 542, 5 S. W . 257
(1887) (unauthorized persons excluded public, trial judge ordered
public admitted; if he had refused to issue order, or refused re
quest to reexamine jurors selected while public out, would have
been error); Mont.: State v. Keeler, 52 Mont. 205, 156 P. 1080
(1916) (rape, public excluded, except for court officers, lawyers,
doctors, reporters, during one day of trial, reversed) ; N eb.: Rhoades
v. State, 102 Neb. 750, 169 N. W . 433 (1918) (public excluded
during testimony of prosecutrix, reversed) ; N ev.: Nevada Comp.
Laws 1929 §8404 (minors may be excluded) ; N. J . : State v. Genese,
102 N. J. L. 134, 130 Atl. 642 (1925) (disorderly members of
public ejected, proper) ; N. C .: Gen. Stats, of North Carolina
(Recompiled 1953) Sec. 15.166 (in rape trials public may be ex
cluded during testimony of prosecutrix); Ohio: State v. Hensley,
75 Ohio St. 255, 263, 79 N. E. 462 (1906) (rape, public excluded
during taking of “ immoral” testimony, press remains, reversed) ;
Okla.: Neal v. State, 86 Okla. Cr. 283, 192 P. 2d 294 (1948)
(prostitution, public excluded, reversed) ; O re.: State v. Osborne,
54 Ore. 289, 103 P. 62 (1909) (public excluded, reversed) ; Penna.:
Commonwealth v. Principatti, 260 Pa. 587, 598, 104 Atl. 53 (1918)
(murder, exclusion during testimony of frightened witness would
have been proper) ; S. C .: State v. Adams, 100 S. C. 43, 84 S. E.
368 (1915) (bastardy, exclusion of boys and Negroes ( !) proper) ;
S. D . : State v. Damm, 62 S. D. 123, 252 N. W . 7 (rape, public
excluded during testimony of embarrassed, frightened, minor prose
cutrix, approved) ; T e x .: Grimmett v. State, 22 Tex. Cr. 36, 2 S. W .
631 (1886) (exclusion during testimony of embarrassed minor
prosecutrix, laughter in courtroom, proper) ; Utah: State v. Bonza,
72 Utah 177, 269 P. 480 (1928) (rape, public excluded, statute
permitting this violates state constitution, reversed) ; W ash.: State V.
Marsh, 126 Wash. 142, 217 P. 705 (1923) (contributing to delin
quency of minor, public excluded, reversed) ; W ise.: Wise. Stats.
§256.14 (1951) (minors may be excluded).
Thirteen states— Conn., Del., 111., Ind., Ia., Kan., Me., N. H.,
N. M., R. I., Tenn., Vt., W . Va.— have neither cases nor statutes
which substantially bear on the meaning of the words “ public trial”
in criminal cases. However, as to them one may properly assume
that absence of litigation indicates absence of exclusion in fact, for
all but one of these (New Hampshire) guarantee public trials, see
note 47, supra, and if exclusion were practiced it would present a
colorable issue which one might expect to be litigated at least once.
45
were given above (see pp. 42-43, supra). Nor are these outer
limits on the power to exclude exceeded in England,55 *
Canada,66 Australia 57 and South Africa.58
Two states, included among the thirty-four above have
held that statutes which restrict the right to a public trial
are unconstitutional under their state constitutions.59 60
The situation in the remaining fourteen states is not
uniformly clear. However, in fact, only six states have
upheld an actual blanket exclusion of the public from all
phases of a trial over a defendant’s objection.80
55 Archbold’s Criminal Pleading, Evidence & Practice (31st Edn.
1943), pages 173-174. (Trial must be in open court but in certain
classes of cases court may exclude women and young persons or
eject persons who disturb proceedings; while child testifies in case
of offense against decency court may be cleared) ; 8 Halsbury’s
Laws of England (2d edn.) 526-527; Scott v. Scott, [1913] A. C.
417 (H . L .) ; Mahlikilili Dahlamini v. The King [1942] A. C. 583
[P. C.] ; Daubney v. Cooper, 10 B & C 237, 240 (1829) ; The King
v. Governor of Lewes Prison, ex parte Doyle 2 K. B. 254, 272
(1917); Collier v. Hicks, [1831] 2 B & Ad. 663, 668; Hearts of
Oak Assurance Co. Ltd. v. A. G. [1931] 2 Ch. 370, 385, 397.
58 McPherson v. McPherson, [1936] A. C. 177; R v. Neff,
[1947] 1 W . W. R. 640, 645, 88 Can. C. C. 199.
57 R v. Hamilton, [1929] 30 S. R. N. S. W . 277, 47 N. S. W.
W . N. 84.
58 R v. Ladbrooke, [1931] N. L. R. 475.
59 Michigan and Utah ( People v. Yeager, supra, People v. Bonza,
supra.)
60 Seven states have statutes permitting exclusion of the public
generally during all phases of some criminal trials: Code of Ala.
1940 Title 15 § 320, Ala. Const, of 1901 § 169; Georgia Code of 1933
§81-1006; Mass. G. L. (Ter. Ed.) c. 278, § 16A (but only where
prosecutrix is under 18) ; Miss. Const. Art. 3, §2 6 ; 29 McKinney’s
Cons. Laws of N. Y. § 4 ; N. Dak. Rev. Code of 1943 27-0102; Code
of Va. 1950, § 19-219; five states which have no statutes sanctioning
blanket exclusion have endorsed it by judicial decision; Keddington
V. State, 19 Ariz. 457, 172 P. 273 (1918); Benedict v. People, 23
Colo. 126, 46 P. 637 (1896) ; Robertson v. State, 64 Fla. 437, 60 So.
118 (1912); State v. Johnson, 26 Idaho 609, 144 P. 784 (1941);
Dutton v. State, 123 Md. 373, 91 Atl. 417 (1914).
46
Thus, courts in the English speaking world almost uni
formly refrain from excluding the public from the trials of
criminal cases in any manner not related to the fair and
orderly administration of justice. Indeed, petitioner pro
posed that the exclusion in this case be limited to the time
of prosecutrix’s testimony, an exclusion which might be
justified as reasonably necessary, but the courts below
ordered and upheld blanket exclusion of the general public
in a manner that had no reasonable relation to this end.
Exclusion like that practiced in petitioner’s trial has
been upheld in Alabama as necessary to “ restrict, in the
interest of public morality attendance at trials of a sala
cious nature” Weaver v. State, 33 Ala, App. 207, 210, 31
So. 2d 593 (1947). Respondents seek to justify the exclu
sion in this case on these grounds,61 although they suggest
that an additional reason may have been to spare prose
cutrix embarrassment. But even if one accepts the ques-
80 (Continued)
It should be noted that in these twelve states which appear to
have permitted blanket exclusion of the public, at least five have
upheld such exclusion only in cases where it was particularly
noted that defendants did not object to the exclusion. Dutton
v. State, supra; Keddington v. State, supra, at p. 462; Benedict
v. People, supra, at p. 129; State v. Nyhus, 19 N. D. 326, 329, 124
N. W . 71 (1909); Hampton v. Commonwealth, 190 Va. 531, 58
S. E. 2d 288 (1950) ; (in this case it does not appear that objection
was made, or that the exclusion order was assigned as error on ap
peal) ; in another of the twelve the challenged exclusion was in fact
temporary, during the testimony of a frightened prosecutrix, Moore
v. State, 151 Ga. 648, 651, 108 S. E. 47 (1921).
Two states have affirmed judgment following trials in which
there were exclusion orders, but have noted in these cases, that there
was no appreciable exclusion in fact. State v. Croak, 167 La. 92,
95, 118 So. 703 (1928) (those who asked to be admitted were ad
mitted) ; State v. Holm, 67 Wyo. 360, 394, 224 P. 2d 500 (1950)
(fair sized portion public present).
61 Brief of Respondents in Opposition to Petition for Writ of Cer
tiorari, p. 10.
47
tionable proposition 82 that courts may act as censors of
public morals during the conduct of criminal cases, there
was no need to exclude the public during all of the pro
ceedings below. Most assurredly, for whatever end, there
was no justification for excluding the public prior to the
taking of testimony and during the empanelling of the jury.
In fact, the record shows that depriving petitioner of
this valuable safeguard prior to the empanelling of the
jury 63 may have well contributed to the empanelling of
juror Page, the Chief of Police of the Montgomery Reserve
Police Force (R. 172-173).64 If the public had been present
during this time it may be doubted whether Page would
have failed to disclose his connection with the police force
when questioned on the voir dire.■ At any rate, some
member of the public might well have informed petitioner
that Page was Chief of the Reserve Police and had been
working on this case or—as even the State concedes— on
cases of “ alleged Negro rapists” . One classic justification
for the public trial guarantee is that it affords defendants
the opportunity to receive relevant information from mem
bers of the public present at the trial, Tanksley v. United
States, 145 F. 2d 58, 59' (C. A. 9th, 1944).65 62 63 64 65
62 See, Note 35 Cornell L. Q., 395, 399 (1949).
63 Of course, the right to have the public present during the
selection of the jury is subsumed under the right to a public trial.
United States v. Sorrentino, 175 F. 2d 721 (C. A. 3d, 1949) ; See
State v. Brooks, 92 Mo. 542, 573, 5 S. W . 257 (1887).
64 Page was under no duty to serve. As a police officer on active
duty, he could have requested and have been granted an excuse.
Pierson v. State, 99 Ala. 148, 150, 13 So. 550 (1891).
65 Other reasons for the presence of the public is that “ [t j he
knowledge that every criminal trial is subject to contemporaneous
review in the forum of public opinion is an effective restraint on pos
sible abuse of judicial power” ; and that (fn. 24) “ [t]he spectators
learn about their government and acquire confidence in their judicial
remedies” Re Oliver, supra, at p. 270.
48
Armed with accurate information concerning Page, it
appears that petitioner could have successfuly challenged
him for cause. Shapiro v. City of Birmingham, 30 Ala.
App. 563, 565, 10 So. 2d 38 (1942). Certainly, having the
information he would have and could have at least chal
lenged Page peremptorily (R. 172) Leach v. State, 245 Ala.
539, 540, 18 So. 2d 289 (1944). Instead, unchallenged,
Page sat in judgment on the same defendant whom, there
was an offer to prove, he had helped tracked down and
arrest (R. 172-173). He sat in judgment on the testimony
and conduct of a half dozen or more of his fellow police
officers, officials and detectives (R. 89, 96, 97, 99, 155, 157,
158). His commitment to the prosecution was that of the
Mayor/judge in Tumey v. Ohio, 273 II. S. 510, who was
barred by the Fourteenth Amendment from judging de
fendants for whose prosecution as a member of the Execu
tive he was ultimately responsible. As Mr. Chief Justice
Taft held in that case:
“ A situation in which an official perforce occupies
two practically and seriously inconsistent positions,
one partisan and the other judicial, involves a lack
of due process of law in the trial of defendants
charged with crimes before him.” Tumey v. Ohio,
273 U. S. 510, 534.
The State Supreme Court (R. 193) and the trial court
(R. 173) held that the motion for a mistrial on the ground
that Page was Chief of Police was properly denied because
it came too late. However, lack of diligence does not appear
to have been the cause of the delay: Petitioner made the
motion as soon as he obtained the information (R. 172).
Petitioner asked a question as to occupation on thevoir dire
(R. 172), and Page did not disclose his police affiliation
(R. 172). Moreover, the Solicitor knew that Page was on
active duty with the police (R. 172) and as a quasi-judicial
49
officer was bound to disclose it.68 But, the Solicitor who
believed that Page’s connection with the police reserve was
no more relevant than his own with the naval reserve,
said nothing. Thus Page was empanelled as a member of
the jury while the public was excluded from the courtroom.
It was not until almost the end of the trial that petitioner
learned the true facts at which time he brought them to
the attention of the court and unsuccessfully moved for
a mistrial (R. 172). Petitioner, therefore, was tried by
a juror who had an interest in his conviction which was
concealed by the juror and by the State and of which
petitioner, in the absence of the public, remained ignorant
until such time as he was effectively blocked from making
objection.
The fact that the public was arbitrarily barred from all
phases of petitioner’s trial requires reversal of the judg
ment below. The presence of the Chief of the Reserve
Police Force on the jury emphasizes that the denial of this
constitutional right may always be a grave matter. For
this reason too, petitioner submits the judgment below
must fall.
Conclusion
Petitioner has set forth in his argument a number of
reasons why the judgment below should be reversed by
this Court: The introduction into evidence of coerced con
fessions, denial of an opportunity to present to the jury
the method by which these confessions were exacted, erro
neous reliance upon Stein v. Neiv York-, systematic exclu
sion of Negroes from the jury; exclusion of the public from
all phases of the trial.
68 Cf. Mooney v. Hollohan, 294 U. S. 103, 114-115; Berger v.
United States, 295 U. S. 78, 88; Jones v. State, 23 Ala. App. 493,
127 So. 681, 682.
50
As in all cases where a number of errors occur these
could not but have a cumulative effect. However, the
nature of these errors was such that in combination they
acted powerfully to rob the proceedings below of the essen
tial open quality which characterizes criminal proceedings
in the United States, and indeed throughout the English
speaking world. Thus, the conviction was based upon
coerced statements obtained in camera-, the method whereby
the confessions were exacted was concealed from the ju ry ;
the jury itself which should have been drawn from a cross-
section of the community was restricted in membership
almost entirely to members of the dominant racial group
in the community—indeed on it sat the Chief of the Reserve
Police Force of Montgomery County; the general public
was barred from all phases of the trial. The proceedings
were closed, not open, in at least five vital respects.
Therefore, because of the denial of each of the consti
tutional rights complained of in this brief and because of
their cumulative effect petitioner submits that the judgment
below should be reversed.
Respectfully submitted,
T hurgood Marshall,
R obert L. Carter,
Jack Greenberg,
Counsel for Petitioner.
E lwood H. Chisolm,
P eter A. H all,
David E. P insky,
L ouis H. P ollak,
of Counsel,
V
.