Watts v. Indiana Brief for Petitioner

    S U P R E M E  COURT DF THE UNITEU S T A T E S

OCTOBER TERM, 1948

No. 610

ROBERT AUSTIN WATTS,

VS.

STATE OF INDIANA,

BRIEF FOR PETITIONER

Petitioner,

Respondent

R obert L. Carter,
F ranklin  H . W illiams, 
T hurgood M arshall,

Counsel for Petitioner.

W arren M. B rown,
E merson J. B runner,
W illard B. R ansom ,
H enry J. R ichardson,

Of Counsel.



SUPREME COURT OF THE UNITED STATES

No. 610.— October T erm , 1948.

Robert A. Watts, Petitioner,
v.

State of Indiana.

On Writ of Certiorari to 
the Supreme Court of the 
State of Indiana.

[June 27, 1949.]

M r. Justice Frankfurter announced the judgment 
of the Court and an opinion in which M r. Justice M ur­
p h y  and M r. Justice R utledge join.

Although the Constitution puts protection against 
crime predominantly in the keeping of the States, the 
Fourteenth Amendment severely restricted the States in 
their administration of criminal justice. Thus, while the 
State courts have the responsibility for securing the rudi­
mentary requirements of a civilized order, in discharging 
that responsibility there hangs over them the review­
ing power of this Court.1 Power of such delicacy and 
import must, of course, be exercised with the great­
est forbearance. When, however, appeal is made to 
it, there is no escape. And so this Court once again 
must meet the uncongenial duty of testing the validity of 
a conviction by a State court for a State crime by what 
is to be found in the Due Process Clause of the Fourteenth 
Amendment. This case is here because the Supreme 
Court of Indiana rejected petitioner’s claim that confes­
sions elicited from him were procured under circum­
stances rendering their admission as evidence against him

1 Of course this Court does not have the corrective power over 
State courts that it has over the lower federal courts. See, e. g., 
McNabb v. United States, 318 U. S. 332. In the main, the proper 
administration of the criminal law of the States rests with the State 
courts. The nature of the Due Process Clause, however, potentially 
gives wide range to the reviewing power of this Court over State- 
court convictions.



2 WATTS v. INDIANA.

a denial of due process of law.2 ---- In d .------, 82 N. E.
2d 846. The grounds on which our review was sought 
seemed sufficiently weighty to grant the petition for 
certiorari. 336 U. S. 917.

On review here of State convictions, all those matters 
which are usually termed issues of fact are for conclusive 
determination by the State courts and are not open for 
reconsideration by this Court. Observance of this re­
striction in our review of State courts calls for the utmost 
scruple. But “ issue of fact” is a coat of many colors. 
It does not cover a conclusion drawn from uncontro­
verted happenings, when that conclusion incorporates 
standards of conduct or criteria for judgment which 
in themselves are decisive of constitutional rights. Such 
standards and criteria, measured against the requirements 
drawn from constitutional provisions, and their proper 
applications, are issues for this Court’s adjudication. 
Hooven & Allison Co. v. Evatt, 324 U. S. 652, 659, and 
cases cited. Especially in cases arising under the Due 
Process Clause is it important to distinguish between is­
sues of fact that are here foreclosed and issues which, 
though cast in the form of determinations of fact, are 
the very issues to review which this Court sits. See 
Norris v. Alabama, 294 U. S. 587, 589-90; Marsh v. Ala­
bama, 326 U. S. 501, 510.

In the application of so embracing a constitutional con­
cept as “due process,” it would be idle to expect at all 
times unanimity of views. Nevertheless, in all the cases 
that have come here during the last decade from the 
courts of the various States in which it was claimed that

2 In the petitioner’s statements there was acknowledgment of the 
possession of an incriminating gun, the existence of which the police 
independently established. But a coerced confession is inadmissible 
under the Due Process Clause even though statements in it may be 
independently established as true. See Lisenba v. California, 314 
U. S .219, 236-237.



WATTS v. INDIANA. 3

the admission of coerced confessions vitiated convictions 
for murder,3 there has been complete agreement that any 
conflict in testimony as to what actually led to a con­
tested confession is not this Court’s concern. Such con­
flict comes here authoritatively resolved by the State’s 
adjudication. Therefore only those elements of the 
events and circumstances in which a confession was 
involved that are unquestioned in the State’s version of 
what happened are relevant to the constitutional issue 
here. But if force has been applied, this Court does 
not leave to local determination whether or not the con­
fession was voluntary. There is torture of mind as well 
as body; the will is as much affected by fear as by force. 
And there comes a point where this Court should not 
be ignorant as judges of what we know as men. See 
Taft, C. J., in the Child Labor Tax Case, 259 U. S. 20, 37.

This brings us to the undisputed circumstances which 
must determine the issue of due process in this case. 
Thanks to the forthrightness of counsel for Indiana, these 
circumstances may be briefly stated.

On November 12, 1947, a Wednesday, petitioner was 
arrested and held as the suspected perpetrator of an 
alleged criminal assault earlier in the day. Later the

3 The validity of a conviction because an allegedly coerced con­
fession was used has been called into question in the following cases:

(A) Confession was found to be procured under circumstances 
violative of the Due Process Clause in Haley v. Ohio, 332 U. S. 596; 
Malinski v. New York, 324 U. S. 401; Ashcraft v. Tennessee, 322 
U. S. 143; Ward v. Texas, 316 U. S. 547; Lomax v. Texas, 313 U. S. 
544; Vernon v. Alabama, 313 U. S. 547; White v. Texas, 310 U. S. 
530; Canty v. Alabama, 309 U. S. 629; White v. Texas, 309 U. S. 
631; Chambers v. Florida, 309 U. S. 227; Brown Mississippi, 297 
U. S. 278; and see Ashcraft v. Tennessee, 327 U. S. 274.

(B) Confession was found to have been procured under circum­
stances not violative of the Due Process Clause in Lyons v. Okla­
homa, 322 U. S. 596, and Lisenba v. California, 314 U. S. 219.



4 WATTS v. INDIANA.

same day, in the vicinity of this occurrence, a woman was 
found dead under conditions suggesting murder in the 
course of an attempted criminal assault. Suspicion of 
murder quickly turned towards petitioner and the police 
began to question him. They took him from the county 
jail to State Police Headquarters, where he was ques­
tioned by officers in relays from about eleven thirty 
that night until sometime between 2:30 and 3 o’clock 
the following morning. The same procedure of persist­
ent interrogation from about 5:30 in the afternoon until 
about 3 o’clock the following morning, by a relay of six 
to eight officers, was pursued on Thursday the 13th, 
Friday the 14th, Saturday the 15th, Monday the 17th. 
Sunday was a day of rest from interrogation. About 
3 o’clock on Tuesday morning, November 18, the peti­
tioner made an incriminating statement after continuous 
questioning since 6 o’clock of the preceding evening. 
The statement did not satisfy the prosecutor who had 
been called in and he then took petitioner in hand. Peti­
tioner, questioned by an interrogator of twenty years’ 
experience as lawyer, judge and prosecutor, yielded a 
more incriminating document.

Until his inculpatory statements were secured, the pe­
titioner was a prisoner in the exclusive control of the prose­
cuting authorities. He was kept for the first two days in 
solitary confinement in a cell aptly enough called “ the 
hole” in view of its physical conditions as described by 
the State’s witnesses. Apart from the five night sessions, 
the police intermittently interrogated Watts during the 
day and on three days drove him around town, hours 
at a time, with a view to eliciting identifications and 
other disclosures. Although the law of Indiana required 
that petitioner be given a prompt preliminary hearing 
before a magistrate, with all the protection a hearing was 
intended to give him, the petitioner was not only given 
no hearing during the entire period of interrogation but



WATTS v. INDIANA. 5

was without friendly or professional aid and without 
advice as to his constitutional rights. Disregard of rudi­
mentary needs of life—opportunities for sleep and a 
decent allowance of food—are also relevant, not as ag­
gravating elements of petitioner’s treatment, but as part 
of the total situation out of which his confessions came 
and which stamped their character.

A confession by which life becomes forfeit must be 
the expression of free choice. A statement to be vol­
untary of course need not be volunteered. But if it is the 
product of sustained pressure by the police it does not 
issue from a free choice. When a suspect speaks because 
he is overborne, it is immaterial whether he has been 
subjected to a physical or a mental ordeal. Eventual 
yielding to questioning under such circumstances is 
plainly the product of the suction process of interro­
gation and therefore the reverse of voluntary. We would 
have to shut our minds to the plain significance of what 
here transpired to deny that this was a calculated en­
deavor to secure a confession through the pressure of 
unrelenting interrogation. The very relentlessness of 
such interrogation implies that it is better for the pris­
oner to answer than to persist in the refusal of disclosure 
which is his constitutional right. To turn the detention 
of an accused into a process of wrenching from him evi­
dence which could not be extorted in open court with all 
its safeguards, is so grave an abuse of the power of arrest 
as to offend the procedural standards of due process.

This is so because it violates the underlying principle 
in our enforcement of the criminal law. Ours is the 
accusatorial as opposed to the inquisitorial system. Such 
has been the characteristic of Anglo-American criminal 
justice since it freed itself from practices borrowed by 
the Star Chamber from the Continent whereby an ac­
cused was interrogated in secret for hours on end. See 
Ploscowe, The Development of Present-Day Criminal



6 WATTS v. INDIANA.

Procedures in Europe and America, 48 Harv. L. Rev., 
433, 457-58, 467-473 (1935). Under our system society 
carries the burden of proving its charge against the ac­
cused not out of his own mouth. It must establish its 
case, not by interrogation of the accused even under judi­
cial safeguards, but by evidence independently secured 
through skillful investigation. “The law will not suffer 
a prisoner to be made the deluded instrument of his own 
conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 
(8th ed., 1824). The requirement of specific charges, 
their proof beyond a reasonable doubt, the protection of 
the accused from confessions extorted through whatever 
form of police pressures, the right to a prompt hearing be­
fore a magistrate, the right to assistance of counsel, to be 
supplied by government when circumstances make it 
necessary, the duty to advise an accused of his consti­
tutional rights—these are all characteristics of the ac­
cusatorial system and manifestations of its demands. 
Protracted, systematic and uncontrolled subjection of an 
accused to interrogation by the police for the purpose 
of eliciting disclosures or confessions is subversive of the 
accusatorial system. It is the inquisitorial system with­
out its safeguards. For while under that system the 
accused is subjected to judicial interrogation, he is pro­
tected by the disinterestedness of the judge in the presence 
of counsel. See Keedy, The Preliminary Investigation 
of Crime in France, 88 U. of Pa. L. Rev., 692, 708-712 
(1940).

In holding that the Due Process Clause bars police 
procedure which violates the basic notions of our accusa­
torial mode of prosecuting crime and vitiates a conviction 
based on the fruits of such procedure, we apply the Due 
Process Clause to its historic function of assuring appro­
priate procedure before liberty is curtailed or life is taken. 
We are deeply mindful of the anguishing problems which 
the incidence of crime presents to the States. But the



WATTS v. INDIANA. 7

history of the criminal law proves overwhelmingly that 
brutal methods of law enforcement are essentially self- 
defeating, whatever may be their effect in a particular 
case. See, e. g., Radzinowicz, A History of English 
Criminal Law and its Administration from 1750, passim 
(1948). Law triumphs when the natural impulses 
aroused by a shocking crime yield to the safeguards 
which our civilization has evolved for an administration 
of criminal justice at once rational and effective.

We have examined petitioner’s other contentions and 
do not sustain them.

Reversed.
M r. Justice B lack concurs in the judgment of the 

Court on the authority of Chambers v. Florida, 309 U. S. 
227; Ashcraft v. Tennessee, 322 U. S. 143.



SUPREME COURT OF THE UNITED STATES

No. 610.—October T erm , 1948.

Robert A. Watts, Petitioner,
v.

State of Indiana.

On Writ of Certiorari to 
the Supreme Court of the 
State of Indiana.

[June 27, 1949.]

M r. Justice D ouglas, concurring.

The following are the undisputed facts:
Petitioner was taken into custody early in the after­

noon on Wednesday, November 12, 1947. He was first 
detained on suspicion of having committed a criminal 
assault, and it was not until later in the day of his arrest 
that he was suspected of having committed the murder 
for which he was later tried and convicted. He was held 
without being arraigned, until the following Tuesday 
when he gave a confession that satisfied the police. At 
no time was he advised of his right to remain silent, nor 
did he have the advice of family, friends or counsel during 
his confinement. He was not promptly arraigned as In­
diana law requires.

During this confinement, petitioner was held in the 
county jail. The first two days he was placed in solitary 
confinement in a cell known among the prisoners as “ the 
hole.” There was no place on which to sit or sleep except 
the floor. Throughout this six-day confinement peti­
tioner was subjected each day, except Sunday, to long 
periods of interrogation. He was moved to the State 
Police Headquarters for these questionings. The ques­
tion period would usually begin about six o’clock in the 
evening, except for the first night when it began about 
eleven thirty. Each question period would extend to 
two or three o’clock the following morning. These inter­
rogations were conducted by relays of small groups of



2 WATTS v. INDIANA.

officers. On several occasions petitioner was given lie- 
detector tests. Following the evening’s interrogation, he 
would be returned to the county jail. Even then he 
was not always given respite until the next evening’s 
ordeal commenced. He was subjected to intermittent 
questioning during the day, and on three afternoons he 
was driven about the town for several hours by the police 
in an attempt to elicit further information and to recon­
struct petitioner’s activities the day of the crime.

It was about two or three o’clock Tuesday morning 
after about seven hours’ interrogation that petitioner 
gave the confession used against him over objection at 
his trial. This was after six days of confinement.

It would be naive to think that this protective custody 
was less than the inquisition. The man was held until 
he broke. Then and only then was he arraigned and 
given the protection which the law provides all accused. 
Detention without arraignment is a time-honored method 
for keeping an accused under the exclusive control of 
the police. They can then operate at their leisure. The 
accused is wholly at their mercy. He is without the 
aid of counsel or friends; and he is denied the protection 
of the magistrate. We should unequivocally condemn 
the procedure and stand ready to outlaw, as we did in 
Malinski v. New York, 324 U. S. 401, and Haley v. Ohio, 
332 U. S. 596, any confession obtained during the period 
of the unlawful detention. The procedure breeds coerced 
confessions. It is the root of the evil. It is the proce­
dure without which the inquisition could not flourish in 
the country.



INDEX
Page

Opinion of court below....................................................  1
Jurisdiction .................................................................... 1
Statement of case............................................................  2
Errors relied upon..........................................................  3
Summary of argument....................................................  3

Argument:
I. This Court will independently examine evi­

dence in support of claim of violation of 
rights protected by United States Consti­
tution where such claim is properly raised
and denied by State Court...........................  4

II. The Supreme Court of Indiana erred in de­
nying petitioner the equal protection of 
the laws guaranteed by the Fourteenth 
Amendment to the Constitution of the 
United States by affirming his conviction 
based upon an indictment returned by a 
grand jury from which all qualified Ne­
groes were systematically excluded solely
because of race or color............................... 5

III. The lower court erred in affirming con­
viction based upon confession obtained by 
State officers through use of force, duress
and intimidation..........................................  11

Conclusion........................................................................ 18

T able of Cases

Ashcraft v. Tennessee, 322 U. S. 143............................. 3
Brown v. Mississippi, 297 U. S. 278............................... 4
Bush v. Texas, 107 U. S. 110..........................................  4
Carter v. Texas, 177 U. S. 442........................................  4
Chambers v. Florida, 309 U. S. 227............................... 4
Hale v. Kentucky, 303 U. S. 613..................................... 11
Haley v. Ohio, 322 U. S. 596................................................ 3
Hollins v. Oklahoma, 295 U. S. 394............................... 11
Lisenba v. California, 314 U. S. 219............................... 3

—1852



11 INDEX
Page

Malinski v. New York, 324 U. S. 401............................. 3
Martin v. Texas, 200 U. S. 316....................................... 11
Neal v. Delaware, 103 U. S. 370.
Norris v. Alabama, 294 U. S. 587
Patterson v. Alabama, 294 U. S. 600. .
Patton v. Mississippi, 332 U. S. 463. .
Pierre v. Louisiana, 306 U. S. 3 5 4 ....
Rogers v. Alabama, 192 U. S. 226........
Smith v. Texas, 311 U. S. 128.............
Strauder v. W. Fa., 100 U. S. 303. . . .
Ward v. Texas, 316 U. S. 547...............

S tatutes Cited 

Burns, Ind. Stats. 1942, Repl. sec. 9-704.......................  14



S UPREME COURT OF THE UNITEO S TATES

OCTOBER TERM, 1948

No. 610

ROBERT AUSTIN WATTS,

vs.
Petitioner,

STATE OF INDIANA,
Respondent

BRIEF FOR PETITIONER

Opinion of Court Below

The opinion of the Supreme Court of Indiana has not 
been reported officially but appears at Pages 37 to 43 of 
the printed record.1 Petition for rehearing was denied on 
the lltli day of January, 1949, without opinion. (R. 42)

Jurisdiction

Judgment of the Circuit Court of Shelby County, Indiana, 
was entered on the 28th day of January, 1948 (R. 30-31); 
affirmed by the Supreme Court of Indiana on the 20th day of 
December, 1948 (R. 42) and petition for rehearing was over­

1 Page references “ R. —”  are to pages in the printed record. Page ref­
erences “ 0. R. —”  are to pages in the original record.



2

ruled on the 11th day of January, 1949. (R. 42) Petition for 
certiorari to review the judgment of the Supreme Court of 
the State of Indiana affirming the conviction was filed on 
the 14th day of February, 1949, based upon 28 United 
States Code, section 1257 and was granted by this Court 
on the 28th day of February, 1949. (R. 42)

Statement of the Case

Petitioner, a young Negro, was arrested by law-enforce­
ment officers of Marion County, Indiana, on the 12th day of 
November, 1947, upon suspicion of crime. (0 . R. 360, 
728) Subsequently, without prior hearing, he was indicted 
by a grand jury of Marion County for the alleged murder 
of Mary Lois Burney, a white woman. (R. 1) After 
arraignment on the 22d day of November, 1947 (R. 1), a 
motion for change of venue was granted (0. R. 15) to Shelby 
County, Indiana.

Prior to trial, petitioner moved to quash the indictment 
returned against him upon the ground that Negroes were 
systematically excluded from grand jury service in Marion 
County solely because of their race or color. (R. 2-3) 
Petitioner further moved to suppress certain alleged con­
fessions obtained from him by state officers through the use 
of force, duress and intimidation, (0. R. 32-35) and sub­
sequently objected to the admission into evidence of such 
alleged confessions. (R. 33-34) The trial court overruled 
these motions (R. 4, 57) and denied petitioner’s motion for 
a new trial in which these errors were specifically preserved. 
(R. 31-34) Upon appeal to the Supreme Court of Indiana, 
these two substantial constitutional questions were raised 
(R. 34-36) and decided adversely to petitioner by the said 
Court through affirmance of the conviction (R. 37-42) and 
denial of a petition for rehearing (R. 42).



3

The material facts concerning the exclusion of Negroes 
from jury service and the method of obtaining the alleged 
confession are set forth and discussed in the argument 
herein.

Errors Relied Upon

A
THE COURT ERRED IN AFFIRMING THE CONVICTION OF 

PETITIONER, A  NEGRO, BASED UPON AN INDICTMENT RE­
TURNED BY A GRAND JURY FROM WHICH NEGROES HAD 
BEEN SYSTEMATICALLY EXCLUDED SOLELY BECAUSE OF 
RACE AND COLOR IN VIOLATION OF THE EQUAL PROTECTION 
CLAUSE OF THE FOURTEENTH AMENDMENT.

B
THE COURT ERRED IN AFFIRMING THE CONVICTION OF 

PETITIONER BASED UPON CONFESSIONS OBTAINED BY STATE 
OFFICERS THROUGH THE USE OF FORCE, DURESS AND IN­
TIMIDATION IN VIOLATION OF THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT.

Summary of Argument

I
Where substantial federal questions have been raised 

and passed upon in a state court, this Court will make an 
independent examination of the evidence: Haley v. Ohio, 
332 U. S. 596; Patton v. Mississippi, 332 U. S. 463; Malin- 
ski v. New York, 324 U. S. 401; Ashcraft v. Tennessee, 322 
U. S. 154; Ward v. Texas, 316 U. S. 547; Lisenba v. Cali­
fornia, 314 U. S. 219.

II
The lower court erred in affirming the conviction of 

petitioner based upon an indictment returned by a grand 
jury from which Negroes were systematically excluded 
solely because of race or color.

A. Evidence adduced at hearing upon motion to quash 
clearly established systematic exclusion of Negroes:



4

Patton v. Mississippi, supra; Smith v. Texas, 311 U. S. 
128; Patterson v. Alabama, 294 U. S. 600; Norris v. 
Alabama, 294 U. S. 587; Rogers v. Alabama, 192 U. S. 
226; Carter v. Texas, 177 U. S. 442; Bush v. Kentucky, 
107 U. S. 110, 122; Neal v. Delaware, 103 U. S. 370; 
Strauder v. West Virginia, 100 U. S. 303.

B. General statements of good faitli by state officials 
were wholly insufficient to overcome evidence of long- 
continued exclusion of Negroes from jury service: 
Patton v. Mississippi, supra, Smith v. Texas, supra.

I l l

The lower court erred in affirming the conviction of peti­
tioner based upon confessions obtained by state officers 
through use of force, duress and intimidation.

A. Circumstances surrounding the obtaining of the 
alleged confessions herein clearly establish their invol­
untary nature.

B. Use of such confession and affirmance of convic­
tion based thereon violate the Fourteenth Amendment: 
Haley v. Ohio, supra; Malinshi v. New York, supra; 
Ashcraft v. Tennessee, supra; Lisenba v. California, 
supra; Chambers v. Florida, 309 U. S. 227; Brown v. 
Mississippi, 297 U. S. 278.

ARGUMENT

I

This Court will independently examine evidence in sup­
port of claim of violation of rights protected by United 
States Constitution where such claim is properly raised 
and denied by State Court.

Throughout the proceedings in the courts of Indiana, 
petitioner claimed that rights protected by the United States 
Constitution had been denied him because of the systematic 
exclusion of members of his race from grand juries in the



5

county where the indictment returned against him was 
found. (R. 2-3, 31, 34) Petitioner further claimed through­
out the proceedings that the use of confessions obtained 
through the use of force, duress and intimidation by state 
officers violated rights guaranteed him by the Fourteenth 
Amendment. (R. 3, 31, 33-34, 35-36) At each stage, these 
rights were denied by the Indiana state courts. This Court 
will examine and appraise the evidence as it relates to peti­
tioner ’s constitutional rights, Smith v. Texas, supra, at 130, 
so as to determine the validity of the claim, Lisenba v. Cali­
fornia, supra, at 237, and whether such rights were denied 
either in express terms or in “ substance and effect.”  
Norris v. Alabama, supra, at 589; Ward v. Texas, supra, 
Malinski v. New York, supra; Ashcraft v. Tennessee, supra; 
Haley v. Ohio, supra; Patton v. Mississippi, supra.

II

The Supreme Court of Indiana erred in denying peti­
tioner the equal protection of the laws guaranteed by the 
Fourteenth Amendment to the Constitution of the United 
States by affirming his conviction based upon an indict­
ment returned by a grand jury from which all qualified 
Negroes were systematically excluded solely because of 
race or color.

An independent examination of all of the evidence ad­
duced at the hearing upon petitioner’s motion to quash will 
reveal the following uncontradicted facts:

1. That no Negro served on the grand jury that indicted 
petitioner. (R. 21)

2. That for at least twenty-five to thirty years prior to 
the indictment of petitioner, no Negro had served on a 
grand jury in Marion County. (R. 4, 7, 8, 10-11, 12, 17, 21, 
27, 30)



6

3. That Negroes constituted at least one-seventh of the 
general population of the county in which petitioner was 
indicted. (R. 4-5, 7, 12, 18)

4. That there were many Negroes in Marion County 
qualified for jury service. (R. 4, 6, 8, 10)

Petitioner called six witnesses in support of his motion, 
who testified as follows:

Scotty Scott, a newspaperman and resident of Marion 
County for seventeen years, testified that of a general 
population of approximately four hundred and eighty-six 
thousand (486,000), there are approximately sixty-five 
thousand (65,000) Negroes2 and that to his knowledge 
there are Negroes who are property owners and competent 
to serve on grand juries, though he does not know of any 
occasion when Negroes served on a grand jury of that 
county. (R. 4-6)

Thomas Erwin, a local newspaperman, resident of Mar­
ion County for twenty-one (21) years, testified that he had 
no knowledge of any Negro who had served on a grand 
jury in the county during that time and confirmed the above- 
quoted population figures. (R. 7)

William S. Henry, resident for forty-four (44) years, 
and a member of the Bar of Marion County for thirty-eight 
(38) years, stated that a total of twelve grand jurors serve 
each year; that he knows of no Negro who served in such a 
capacity during the last twenty-five (25) years, though he 
knows Negroes who are residents, citizens, and property 
owners of the county. (R. 8-10) Upon being examined by

2 16th Census Report on Population, 1940 shows Marion County, In­
diana’s general population figures to be: Total population, 460,926; 
White, 408,890; Negro, 51,949. Table 21, part 2, Vol, II.



7

the Court concerning Negro grand jurors, the following 
question and answer were made:

“ Q. Could there have been some called and you not 
know about it?

“ A. No, they couldn’t have been, Judge, I have 
been a lawyer there for thirty-eight years and I would 
have particularly known that had there been.”  (R. 9)

A1 Magenheimer, Sheriff of Marion County, resident 
thereof for twenty-five (25) years, testified that he had no 
knowledge of any Negro serving on a grand jury of the 
county for the last twenty-five (25) years, though he is 
well-acquainted with a large number of colored people 
who own real estate. (R. 10-2)

Glenn W. Parish, Deputy Clerk of Marion County, resi­
dent thereof for fifty (50) years, testified that during the last 
twenty-five (25) or thirty (30) years, he knew of no occasion 
where a colored person had served on a grand jury, though 
he knows that a number of colored persons vote and own 
property in the county. He further stated that the last 
survey of the Chamber of Commerce showed that of a 
population of about four hundred and sixty thousand 
(460,000) persons, sixty-five thousand (65,000) thereof were 
colored. He also testified that the jury commissioners write 
out the names of prospective jurors from the tax duplicates, 
which do not indicate the race of the taxpayer, place the 
names in a box and that thereafter the County Clerk actu­
ally draws the names out of the box and writes them down in 
the order of drawing. (R. 12-17)

On redirect examination, this witness stated that out 
of seventy-five (75) names drawn for the grand jury venire 
at the term of Court at which petitioner was indicted, six 
(6) jurors were chosen, none of whom was a Negro. (R. 14) 
He further stated that the Prosecutor of the county helped 
the judges select the jurors (R. 15) and advised the Court 
thereon,



8

Judson L. Stark, prosecuting attorney of Marion County, 
resident thereof for twenty-five (25) years, testified as to 
the population ratio of the county and that names of pro­
spective jurors are drawn from the jury box without regard 
to whether they are white or colored; that the names drawn 
are written down in order until seventy-five (75) have been 
so listed, this number then constituting the prospective 
grand jury list; that subpoenas are then issued to such 
persons and served by the Sheriff; that upon response to 
the subpoenas, the prospective jurors are questioned by the 
judge and that the prosecuting attorney “ . . . from time to 
time looked up the qualifications and run the records on 
names so as to be sure we don’t get anyone with any bad 
background in there.” ; that of three hundred (300) persons 
serving on grand juries in the county over the past twenty- 
five (25) years, he does not know of any Negro having so 
served and that there was no Negro on the grand jury that 
indicted petitioner. (R. 17-21)

This testimony was sufficient to make a prima facie 
showing of systematic exclusion of Negroes from grand 
jury service in Marion County solely because of race or 
color. Neal v. Delaware, supra; Norris v. Alabama, supra; 
Pierre v. Louisiana, 306 U. S. 354; Patton v. Mississippi, 
supra. As stated by this Court in the Patton case, supra:

“ When such a showing was made, it became a duty 
of the state to try to justify such exclusion as having- 
been brought about by some reason other than racial 
discrimination. ’ ’

The State of Indiana failed to sustain the burden. Two 
witnesses were called by the state in opposition to the 
motion to quash. One of these witnesses was the prosecut­
ing attorney of Marion County. The other witness was the 
chief deputy prosecutor of Marion County.



9

The first witness, Jndson L. Stark, prosecuting attorney, 
had a record of county public service from 1925 and claimed 
familiarity with the method of selection of grand juries in 
Marion County. He testified: ‘ ‘ There never has been any 
discrimination or effort to keep names out of the box or 
keep any colored person in Marion County from serving on 
either Grand or Petit Jury.”  (R. 23.) He further testified 
that: “ 1 believe that three were called,”  in response to a 
question as to whether any Negroes were called on the grand 
jury venire within the last three years. (R. 23.) (Italics 
ours.)

On cross-examination, he stated that at the time of draw­
ing the grand jury that indicted petitioner seventy-five (75) 
names were drawn from the jury box and of this number 
some were Negroes (R. 26). However, “ when it was finally 
finished the jury didn’t have—there was no colored person 
on the grand jury”  (R. 26-27). It should also be noted 
that this witness denied that he was present when the names 
were drawn. (R. 20, 25.)

Glenn W. Funk, chief deputy prosecutor of Marion County 
since March, 1947, testified that the names of two Negroes 
were drawn at the January, 1948, term. (R. 29.) This term 
followed the term of Court at which the grand jury indicting 
petitioner was drawn. The witness further stated that no 
Negro had served on a grand jury in Marion County during 
his residency there since 1927. (R. 30.)

In considering this evidence, the Supreme Court of the 
State of Indiana found: “ There was no proof of a sys­
tematic effort to exclude Negroes from jury service” , rely­
ing therefor on the testimony of Glenn W. Funk to the effect 
that the names of two Negroes were drawn at the January, 
1948, term of the grand jury. Apparently, the Court en­
tirely overlooked or discounted the fact recognized by the 
trial court that such term followed the court term at which



10

petitioner was indicted and accordingly such evidence had 
no bearing upon the motion to quash.

Further, the Supreme Court of Indiana relied in its 
opinion upon the general assertions of Judson L. Stark and 
Glenn W. Parish to the effect that there was no discrimina­
tion in the selection and drawing of names for service on 
grand juries. (R. 38.)

Such general assertions of nondiscrimination cannot be 
considered adequate justification for the complete exclusion 
of Negroes over a period of twenty-five to thirty years from 
grand jury service in Marion County. As stated by this 
Court in Neal v. Delaware, supra:

“ We think that this evidence failed to rebut the 
strong prima facie case which defendant had made. 
That showing as to the long continued exclusion of 
Negroes from jury service, and as to the many qualified 
for that service, could not be met by mere generalities. 
If, in the presence of such testimony as defendant ad­
duced, the mere general assertions by officials of their 
perf ormance of duty were to be accepted as an adequate 
justification for the complete exclusion of Negroes from 
jury service, the constitutional provision—adopted 
with special reference to their protection—would be but 
a vain and illusory requirement. ’ ’

Apparently, the Supreme Court of Indiana . . re­
garded as irrelevant the key fact that for thirty years or 
more no Negro had served on the grand . . . juries. This 
omission seriously detracts from the weight and respect 
that we would otherwise give to its conclusion in reviewing 
the facts, as we must in a constitutional question like this. ’ ’ 
Patton v. Mississippi, supra.

It is well settled that a Negro defendant is denied equal 
protection of the laws contrary to the Fourteenth Amend­
ment to the Constitution of the United States whenever 
through state action Negroes are systematically excluded



11

solely because of race or color from the grand jury which 
indicts, or the petit jury which convicts him.

In the Patton case, supra, the general rule having been 
reiterated, this Court stated that:

“ When a jury selection plan, whatever it is, operates 
in such way as always to result in the complete and long- 
continued exclusion of any representative at all from a 
large group of Negroes, or any other racial group, in­
dictments and verdicts returned against them by juries 
thus selected cannot stand.”  (92 L. Ed. (Adv. Sheets) 
164,167.)

The Indiana Supreme Court refused to apply this prin­
ciple to the facts of the instant case. Such refusal consti­
tuted a denial of petitioner’s claim of violation of rights 
guaranteed him by the Fourteenth Amendment to the United 
States Constitution within the meaning of decisions of this 
Court. Patton v. Mississippi, supra; Pierre v. Louisiana, 
supra; Hale v. Kentucky, 303 U. S. 613; Iiollin-s v. Okla­
homa, 295 U. S. 394; Martin v. Texas, 200 U. S. 316.

I l l

The lower court erred in affirming conviction based upon 
confessions obtained by State officers through use of force, 
duress and intimidation.

In the case of Chambers v. Florida, supra, where a con­
viction based upon confessions induced by fear and duress 
was reversed, this Court reemphasized the challenging role 
of our judiciary in such cases, stating:

“ Under our constitutional system, courts stand 
against any winds that blow as havens of refuge for 
those who might otherwise suffer because they are help­
less, weak, outnumbered, or because they are noncon­
forming victims of prejudice and public excitement.

* No higher duty, no more solemn responsi-



12

bility rests upon this Court than that of translating into 
living law and maintaining these constitutional shields 
deliberately planned and inscribed for the benefit of 
every human being subject to our constitution of what­
ever race, creed, or persuasion”  (at p. 241).

In the instant case, the uncontradicted testimony shows 
that petitioner, a Negro, was arrested on Wednesday, No­
vember 12, 1947, some time between 12:30 (O.R. 360) and 
2:40 in the afternoon (O.R. 728-729). After questioning by 
police in the office of the Marion County jail (O.R. 361-362), 
he was placed in Cell No. 7 (O.R. 446), commonly known as 
“ the hole.”  (O.R. 363, 447, 581.) This cell, approximately 
six by four feet, with walls, ceiling and floor made of steel 
(O.R. 365) or iron (O.R. 448), had a small hole about six 
by four inches in the front door, which was kept locked 
(O.R. 365-366), no light (O.R. 448), bed (O.R. 448, 455), 
chair (O.R. 366), heat (O.R. 567), or water tap (O.R. 366), 
and its only fixture was a toilet (O.R. 448). After an alleged 
identification by one Miss Stout (O.R. 368-371), petitioner 
was kept in this cell until approximately 11:45 P. M. (O.R. 
372).

That night at 11:30 or twelve midnight (0. R. 744); he 
was removed from the cell, taken first to the ja il’s front 
office (O. R. 374), questioned and then taken to headquarters 
of the state police (0. R. 376), when he was again questioned 
by various officers until about 2 A. M. on the 13th (0. R. 
378-379, 744). From two o ’clock until three or four A. M., he 
was subjected to a lie detector test (0. R. 379, 685, 766) and 
following this was again questioned by officers until six the 
next morning (0. R. 381-383), at which time he was returned 
to “ the hole”  (0. R. 384).

At 9 :30 A. M. on the 13th, petitioner was again removed 
from his cell (0. R. 385), subjected to an identification 
proceeding (0. R. 386) then taken in a state police car to



13

visit various places throughout the city (0. R. 388) until 
some time in the afternoon (0. R. 395).

During the afternoon, at state police headquarters, until 
approximately 6:30 the following morning (0. R. 407), 
he was questioned by a large number of officers (0. R. 403) 
in at least five different places (0. R. 674-675) and then 
returned to jail. That morning, the 14th at approximately 
9 A. M., he was taken to the prosecutor’s office (0. R. 409) 
where he talked to a man by the name of Lynch (0. R. 410), 
then taken in an auto to search for various articles (0. R. 
411, 609), upon his return he was subjected to a lie detector 
test (0. R. 414) and again questioned until some time be­
tween two (0. R. 610) and eight o ’clock the next morning 
(0. R. 423) at which time he was returned to solitary 
confinement.

The following morning, the 15th, at 9:30 A. M., he was 
again taken on an auto trip with officers to various places 
throughout the city, returned to police headquarters and 
again questioned until approximately noon (0. R. 423-425). 
He was taken on another auto trip until approximately 3 
o ’clock (0. R. 428-429), returned to police headquarters 
and subjected to a lie detector test (0 . R. 429), then re­
turned to solitary (0. R. 436). At approximately six or 
seven P. M., he was again taken to state police headquarters 
and questioned until early in the morning some time be­
tween 2 (0. R. 431-436) or 8:30 A. M. (0. R. 421), when he 
was placed again in “ the hole,”  where he was left all day 
Sunday, the 16tli (0. R. 438).

At about 8 :30 Monday morning (0. R. 438), he was again 
taken on an auto trip by state officers (0. R. 613), returned 
to police headquarters (0. R. 613) and questioned concern­
ing numerous crimes (0. R. 426-437) and subjected to 
such questioning during the morning (0. R. 439), afternoon 
(0. R. 439, 1127) and again most of the night (0. R. 439). 
He finally broke and confessed to having committed the



14

crime for which he was later charged and sentenced some 
time between 3 and 4:30 A. M. on the morning of the 18th 
(0. R. 483).

During all of this period from the 12th through the 18th, 
petitioner was held without being arraigned or taken before 
a magistrate for hearing (0. R. 487) as required by the laws 
of Indiana,3 until after his confession (0. R. 19-20). The 
Supreme Court of the state, in its opinion, admitted that 
this irregularity had occurred (R. 39).

At no time was petitioner advised of his right to remain 
silent or to have assistance of counsel (0. R. 645-646) nor 
were friends or relatives allowed to visit him prior to the 
18th (0. R. 559, 562). During most of these periods, except 
while in solitary, and once or twice while in the auto, peti­
tioner was handcuffed (0. R. 374-377, 404).

By reference merely to this undisputed testimony, but 
one conclusion can be reached, namely, that petitioner’s 
conviction herein must be reversed because it was based 
upon a confession obtained through the use of force, duress 
and intimidation, rendering its character involuntary in 
violation of rights guaranteed him by the Fourteenth 
Amendment. The facts and circumstances which were un­
contradicted establish that the confession was not the result 
of the free choice of petitioner but rather flowed from the 
long gruelling questioning and physical exhaustion brought 
about by state officers while held incommunicado and with­
out due process.

Though the fact alone that a confession was obtained 
while in the custody of police and in response to examina­
tion by them will not necessarily affect its voluntary char­
acter, such circumstance will be considered. Also, the fact 
of an extended delay in arraignment or application to a 
magistrate for committal, the holding of defendant incom­

3 Burns Indiana Statutes, 1942 Repl., section 9-704.



15

municado without opportunity to see counsel or friends, 
Ward v. Texas, supra; Malinski v. New York, supra, and 
subjecting him to long and gruelling questioning by a large 
number of officers, Ward v. Texas, supra, must be con­
sidered. All of these facts are present in the instant case 
and though the conviction may have been based only in 
part upon the confession obtained in this manner, its use is 
sufficient to warrant reversal by this Court. Malinski v. 
New York, supra.

Further testimony, which in some few parts was con­
flicting, was as follows: Petitioner claims that his clothes 
were taken away from him and he was kept naked wearing- 
only socks except when removed from the jail (0 . R. 367). 
He further testified that he was beaten by the police (0. R. 
399-402, 479) and this is denied by all of them, though 
petitioner’s wife stated that when she saw him after the 
18tli, his face was swollen and his eyes were red (0. R. 565). 
Petitioner claims that from arrest to the time he confessed 
seven days later, the only food he received was four sand­
wiches (0. R. 415, 489), two bottles of milk (0. R. 415, 489), 
two apples (0. R. 489), a coca cola (0. R. 364, 404) bread 
and water (0. R. 438). The only clear contradiction of this 
was from the sheriff who claims that petitioner was fed 
regularly, such claim lacking the probability of truth in 
view of the lengthy periods of time that petitioner ad­
mittedly was away from the jail and the custody of the 
sheriff.

Petitioner further claimed that just prior to signing 
the confession, he was informed that a mob of five hundred 
people had gathered to get him (0. R. 443, 481); that unless 
he signed his wife and baby might be harmed (0. R. 443, 
482) and that he did sign only after a telephone call was 
made to his wife and he was allowed to say “ hello”  after 
which the police hung up (0. R, 498). Though these state­
ments are denied by state’s witnesses, they are partially



16

supported by the w ife’s testimony to the effect that she did 
receive such a telephone call (0 . R. 563).

In reviewing the cumulative evidence, the Supreme Court 
of the State of Indiana stated:

“ This evidence on admissibility being conflicting, 
the court’s ruling adverse to appellant cannot be ques­
tioned in this appeal as we cannot weigh the evidence”  
(R. 39).

In such ruling, the Indiana Supreme Court entirely 
ignored the sufficiency of the uncontradicted evidence, giv­
ing undue weight to that which was contradicted and thus 
overruled petitioner’s claim of federal right as set forth in 
his Assignment of Error Number Eighteen presented to 
that Court, wherein petitioner specifically incorporated 
his objection “ that the said confessions and statements 
violate . . . the Fifth, Sixth and Fourteenth Amendments 
to the Federal Constitution”  (R. 34). At a minimum, the 
uncontradicted evidence shows that petitioner was ques­
tioned by numerous police officers in various places through­
out the city of Indianapolis at all times of the day and night 
over a period of approximately seven days, with little res­
pite ; that during such periods of respite, he was confined 
in a bare, cold cell with no chair or bed; that during this 
time he was held illegally and incommunicado without the 
advice of friends or counsel and constantly subjected to 
the fear of further and more severe intimidation and 
coercion.

A confession obtained under such circumstances clearly 
was not voluntary and its use violates provisions of the 
Fourteenth Amendment. As stated by this Court in the 
recent case of Haley v. Ohio, supra:

“ The Fourteenth Amendment prohibits police from 
using the private, secret custody of either man or child 
as a device for wringing confessions from them.”



17

Though most decisions concerning the use of coerced con­
fessions dealt with more violent forms of duress, as stated 
by Mr. Justice Frankfurter in his concurring opinion in the 
Haley case supra:, at page 246:

“ An impressive series of cases in this and other 
courts admonishes of the temptations to abuse of police 
endeavors to secure confessions from suspects, through 
protractive questioning, carried on in secrecy, with the 
inevitable disquietude and fears police interrogations 
naturally engender in individuals questioned while held 
incommunicado, without the aid of counsel and unpro­
tected by the safeguards of a judicial inquiry. . . .
It would disregard standards that we cherish as part 
of our faith in the strength and well-being of a rational, 
civilized society to hold that a confession is ‘ voluntary’ 
simply because the -confession is the product of a 
sentient choice. ‘ Conduct under duress involves a 
choice,’ (cases cited) and conduct devoid of physical 
pressure but not leaving a free exercise of choice is the 
product of duress as much so as choice reflecting phys­
ical constraint. ’ ’

The conviction, based as it is upon a coerced, involuntary 
confession, should be reversed pursuant to prior decisions 
of this Court:

“ This Court has set aside convictions based upon 
confessions extorted from ignorant persons who have 
been subjected to persistent and protractive question­
ing, or who have been threatened with mob violence, 
or who have been unlawfully held incommunicado with­
out advice of friends or counsel, or who have been 
taken at night to lonely and isolated places for question­
ing. Any one of these grounds would be sufficient cause 
for reversal.”  Ward v. Texas, 316 U. S. 547, 555.

In the instant case, it is not denied that at least two of 
these grounds are present, if not all.



18

Conclusion

Petitioner was indicted by a grand jury from which 
members of his race were systematically excluded simply 
because they were Negroes. The record clearly shows fur­
ther that petitioner’s conviction was based upon a confes­
sion extorted from him through the use of force, duress 
and intimidation. The refusal of the Supreme Court of 
Indiana to reverse the conviction upon the basis of these 
two federal claims properly presented to it constitutes a 
violation of rights guaranted petitioner by the Fourteenth 
Amendment to the United States Constitution.

W herefore, it is respectfully submitted that the judgment 
of the Supreme Court of the State of Indiana should be 
reversed.

R obert L. Carter,
F ranklin  H . W illiams, 
T hurgood M arshall,

Attorneys for Petitioner.
W arren M. B rown ,
E merson J. B runner,
W illard B. R ansom ,
H enry J. R ichardson,

Of Counsel.

(1852)



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