Patton v. Mississippi Brief for Petitioner

    S U P R E M E  CO URT OF TH E  U N I T E D  S T A T E S

OCTOBER TERM, 1947

n

No. 122

EDDIE (BUSTER) PATTON,

vs.

STATE OF MISSISSIPPI

Petitioner,

ON W RIT OF CERTIORARI TO TH E SUPREM E COURT OF T H E  STATE OF

M ISSISSIPPI

BRIEF FOR PETITIONER

T h u r g o o d  M a r s h a l l ,

New York, New York, 
Attorney for Petitioner.

L. J. B r o a d w a y ,

Meridian, Mississippi;
E d w a r d  R. D u d l e y ,

A n d r e w  W e i n b e r g e r ,

F r a n k l i n  H .  W i l l i a m s ,

New York, New York,
Of Cownsel.



TABLE OF CONTENTS
Page

Opinion of Court below.................................................  1
Jurisdiction ..................................................................  1
Statement of case ........................................................  2
Errors relied upon......................................................... 3
Argument:

I. The Supreme Court of Mississippi erred in 
denying petitioner the equal protection of 
the laws and due process of law guaran­
teed by the Fourteenth Amendment by 
affirming the conviction of a Negro by a 
jury of white persons upon an indictment 
found and returned by a grand jury of 
white persons, from both of which said 
juries all qualified Negroes have for a 
long period of Years been systematically 
excluded solely on account of race or color
pursuant to established practices.............  4

A. Petitioner was indicted and con­
victed by Grand and Petit Juries in 
the Circuit Court of Lauderdale 
County in which Court at the time 
of this trial and for a long period 
of years prior thereto Negroes have 
been systematically excluded from 
jury service solely because of race 
or color within the meaning of the 
decisions of this Court....................  5

(1) The record in this case clearly
establishes the systematic 
exclusion of qualified Ne­
groes from jury service in 
Lauderdale County, Mis­
sissippi, solely because of 
race and co lo r ...................

(2) In affirming the conviction of
petitioner herein the Su­
preme Court of Missis-

—2960



11 INDEX

Page
sippi erred in refusing to 
consider evidence of sys­
tematic exclusion of Ne­
groes from jury service in 
that county prior to the 
year of the instant case. . .

II. The conviction of petitioner upon confessions 
and statements extorted by force, duress 
and intimidation obtained by officers and 
agents of the State of Mississippi while 
acting in their official capacity is a denial 
of the equal protection and due process of 
the law guaranteed by the Fourteenth 
amendment to the Constitution of the
United States.............................................  18

Conclusion .................................................................... 20

T a b l e  o f  C a s e s

Brown v. Mississippi, 297 U. S. 278............................  19
Brain v. U. .S'., 168 U. S. 532.........................................  -19
Bush v. Kentucky, 107 U. S. 110.................................. 4
Carter v. Texas, 177 U. S. 442...................................... 5
Chambers v. State of Florida, 309 U. S. 227...............  19

(Creswill v. Knights of Pythias, 225 U. S. 246.............
■■Ex parte Virginia, 100 U. S. 313..................................
i Fisk v. Kansas, 274 IT. S. 380 .......................................
Hale v. Kentucky, 303 U. S. 613 ..................................
Hollins v. Oklahoma, 295 U. S. 394..............................
Lisenba v. California, 314 U. S. 219............................  19
Martin v. Texas, 200 U. S. 316......................................
Neal v. Delaware., 103 U. S. 370 .................................... 14
Norris v. Alabama, 294 U. S. 587........................ . 5
Patterson v. Alabama, 294 U. S. 600..........................  5
Pierre v. Louisiana, 306 U. S. 354................................
Rogers v. Alabama, 192 U. S. 226 ................................  5
Smith v. Texas, 311 U. S. 128.......................................  6
Strauder v. West Virginia, 100 U. S. 303..................... 4
Thiel v. Southern P. Co., 328 IT. S. 217........................  18
Ward v. Texas, 316 U. S. 547.......................................  19



INDEX 111

O t h e r  M a t e r i a l  C i t e d  Page

Mississippi Code, 1942, Sections 1762, 1766, 1768,
1772 ...........................................   5,11,15

Minutes of Special Committee to Investigate Sena­
torial Campaign Expenditures, 1946, Senate of the 
United States, 79th Congress; In the Matter of the 
Investigation of the Mississippi Democratic Pri­
mary Campaign of Senator Theodore Gr. Bilbo, Sen­
ator, State of Mississippi, pp. 22, 98, 137, 146-147,
267,134,139, 320, 619, 608, 365, 395, 731, 754, 813. . 15

General Laws of Mississippi, 1946, Chapter 441......  15



S U P R E M E  E D U R T  OF T H E  U N I T E D  S T A T E S

OCTOBER TERM, 1947

No. 122

EDDIE (BUSTER) PATTON,

vs.
Petitioner,

STATE OF MISSISSIPPI

ON W RIT OF CERTIORARI TO TH E  SUPREM E COURT OF TH E  STATE OF

M ISSISSIPPI

BRIEF FOR PETITIONER

Opinion of Court Below

The opinion has not been reported officially. It is 
reported in 29 So. (2d) 96 and appears at pages 227-235 of 
the record. Suggestion of Error (Petition for Rehearing) 
was overruled by the Supreme Court of Mississippi on the 
17th day of March, 1947 (R. 153), without opinion.

Jurisdiction

The date of the judgment in the Circuit Court of Lauder­
dale County, Mississippi, is March 2, 1946. This judgment 
was affirmed by the Supreme Court of Mississippi on Feb-

1 d



2

ruary 10, 1947. Suggestion of Error was overruled on 
March 17, 1947.

Certiorari to review the judgment of the Supreme Court 
of the State of Mississippi affirming the conviction was 
granted by this Court on June 23,1947 (R. 153) upon a peti­
tion therefor filed on June 12, 1947, and based upon Sec­
tion 237(b) of the Judicial Code (28 U. S. C. 344(b)).

Statement of Case

Petitioner, a young ignorant Negro, was indicted on the 
18th day of February, 1946, by the grand jury of Lauderdale 
County, Mississippi, for the alleged murder of one Jim 
Meadows, a white man fifty-three years of age. His trial 
in the Circuit Court of Lauderdale County was begun on 
February 28, 1946, and concluded the same day. He was 
sentenced on March 2,1946, to suffer death by electrocution.

Prior to the trial on the merits, petitioner moved to 
quash the indictment upon the grounds that Negroes in 
Lauderdale County were systematically excluded from 
service, on the jury solely because of their race or color 
(R. 1). That motion was denied (R. 2). During the trial, 
objection was made by petitioner to the introduction into 
evidence of statements and confessions obtained from 
petitioner by officers through the use of force, threats and 
intimidation (R. 142). The court overruled the objections 
(R. 142). An appeal was taken to the Supreme Court 
of Mississippi. After affirmation by the court (R. 152), 
Suggestion of Error was filed (R. 144) and overruled 
(R, 153).

The material facts concerning the exclusion of Negroes 
from jury service and the method of obtaining the con­
fession are discussed in the argument herein.



3

Errors Relied Upon 

I

The Supreme Court of Mississippi erred in denying peti­
tioner the equal protection of the laws and due process of 
law guaranteed by the Fourteenth Amendment by affirming 
the conviction of a Negro by a jury of white persons upon 
an indictment found and returned by a grand jury of white 
persons, from both of which said juries all qualified Negroes 
have for a long period of years been systematically excluded 
solely on account of race or color pursuant to established 
practices.

A. PETITIONEE W AS INDICTED AND CONVICTED BY GRAND AND 

PE TIT  JURIES IN  TH E  CIRCUIT COURT OP LAUDERDALE COUNTY IN  

W H IC H  COURT AT TH E  TIM E OF TH IS TRIAL AND FOR A LONG PERIOD 

OF YEARS PRIOR THERETO NEGROES HAVE BEEN SYSTEM ATICALLY 

EXCLUDED FROM JU R Y  SERVICE SOLELY BECAUSE OF RACE OR COLOR 

W IT H IN  TH E M EANING OF T H E  DECISIONS OF TH IS COURT.

(1) The Record in this Case Clearly Establishes the Sys­
tematic Exclusion of Qualified Negroes from Jury Service 
in Lauderdale County, Mississippi, Solely Because of Race 
and Color.

(2) In Affirming the Conviction of Petitioner Herein 
The Supreme Court of Mississippi Erred in Refusing to 
Consider Evidence of Systematic Exclusion of Negroes 
from Jury Service in that County Prior to the Year of the 
Instant Case.

2d



4

II

The conviction of petitioner upon confessions and state­
ments extorted by force, duress and intimidation obtained 
by officers and agents of the State of Mississippi while act­
ing in their official capacity is a denial of the equal protec­
tion and due process of the law guaranteed by the Four­
teenth Amendment to the Constitution of the United States.

ARGUMENT

I

The Supreme Court of Mississippi erred in denying peti­
tioner the equal protection of the laws and due process of 
law guaranteed by the Fourteenth Amendment by affirming 
the conviction of a Negro by a jury of white persons upon 
an indictment found and returned by a grand jury of white 
persons, from both of which said juries all qualified Negroes 
have for a long period of years been systematically excluded 
solely on account of race or color pursuant to established 
practices.

It is well settled that whenever by an action of a State 
all persons of a particular race are excluded solely because 
of their race or color from service as jurors in a criminal 
prosecution of a person of that race the equal protection of 
the laws is denied to him, and he is deprived of due process 
of law contrary to the Fourteenth Amendment of the United 
States Constitution. This principle applies whether the 
action is by virtue of a statute 1 or by the action of adminis­

1 Bush v. Kentucky, 107 U. S. 110, 122; Strauder v. West Virginia, 100 
U. S. 303, 309.



5

trative officers 2 and whether the exclusion is from service 
on petit juries 3 or grand juries.4 5

The Mississippi Supreme Court, while admitting that this 
principle is well settled,® refused to apply it to the facts of 
this case, and by reason of such failure denied petitioner his 
constitutional rights.

A .  PETITIONER. WAS INDICTED AND CONVICTED BY GRAND AND 

PETIT JU R IE S IN  T H E  CIRCUIT COURT OF LAUDERDALE COUNTY, 

M ISSISSIPPI, IN  W H IC H  COURT AT TH E TIM E OF TH IS TRIAL AND 

FOR A LONG PERIOD OF YEARS PRIOR THERETO NEGROES HAVE 

BEEN SYSTEM ATICALLY EXCLUDED FROM JU R Y  SERVICE SOLELY 

BECAUSE OF RACE OR COLOR W IT H IN  TH E M EANING OF THE 

DECISIONS OF T H IS  COURT.

While the Mississippi statutes relative to juries and 
jurors 6 do not in terms provide for the exclusion of Negroes,

the evidence discloses an exclusion and resultant discrimina­
tion by administrative officers as uniform and effective as 
if required by statute.

(1) The Record in This Case Clearly Establishes the 
Systematic Exclusion of Qualified Negroes from Jury 
Service in Lauderdale County Solely Because of Race and 
Color.

2 Rogers v. Alabama, 192 U. S. 226, 229; Carter v. Texas, 177 U. S. 
442.

3 Norris v. Alabama, 294 U. S. 587; Strauder v. West Virginia, supra.
4 Carter v. Texas, supra, at page 444; Patterson v. Alabama, 294 U. S. 

600.
5 “ It has long been settled in this country that an intentional and arbi­

trarily systematic exclusion of Negroes from grand and petit jury lists 
solely because of their race and color denies the equal protection of the 
laws to a Negro charged with crime, so that at this time no parade o f the 
authorities is necessary on that point”  (R. 146).

6 Mississippi Code (1942), sections 1762-1772.



6

The Mississippi Supreme Court in affirming the judg­
ment of the trial court held that the evidence was sufficient 
to sustain the action of the trial judge in overruling peti­
tioner’s motion to quash the indictment and his objection to 
the special venire on the grounds that Negroes were 
excluded from such juries. In a recent case involving this 
identical question this Court in a unanimous opinion by Mr. 
Justice Black recognized the responsibility of this Court 
to make an independent appraisal of the evidence as it 
relates to the petitioner’s constitutional rights.7

In an opinion by Mr. Chief Justice Hughes, after stating 
the general principle set out above, it was pointed out 
that:

“ The question is of the application of this established 
principle to the facts disclosed by the record. That 
the question is one of fact does not relieve us of the 
duty to determine whether in truth a federal right has 
been denied. When a federal right has been specially 
set up and claimed in a state court, it is our province to 
inquire not merely whether it was denied in express 
terms but also whether it was denied in substance and 
effect. If this requires an examination of evidence, 
that examination must be made. Otherwise, review by 
this Court would fail of its purpose in safeguarding 
constitutional rights.8

Such an independent appraisal of the evidence herein 
will reveal that qualified Negroes were systematically 
excluded from jury service in Lauderdale County, Mis­
sissippi, because of race or color within the meaning of 
prior decisions of this Court. The testimony of fourteen 
witnesses, not sympathetic to either petitioner or members 
of his race, reveals that Negroes were systematically

7 Smith v. Texas, 311 U. S. 128 at p. 130.
8 Norris v. Alabama, supra, at p. 589.



7

excluded from, jury service in that county solely because 
of race or color.

B. M. Stephens, a former member of the Board of Super­
visors of the county from 1924 through 1931, and Sheriff 
of the county from 1931 through 1935, testified that as 
supervisor it was his duty to help fill the jury boxes and i 
during these years he had never known a Negro to “ be on
the jury, coming out of the jury box or going into it”  and 1 ^ 
that during that time it was a matter of common knowledge \ 
that there were some Negroes qualified_£or jury service in 
the gountv (B. 3-6).

Mrs. Addie Bivers, a deputy circuit clerk for four (4) 
years and a clerical worker in the office of the Circuit Clerk 
for two (2) years prior thereto, testified that to her knowl­
edge no Negro had served, been called on to serve or drawn 
on a jury, grand or petit, during that time; that in 1945, the 
Clerk did list eight (8) Negro qualified jurors for service 
in the local Federal District Court (B. 8). She further 
testified that no Negro was called or served on the grand 
jury for the term at which petitioner was indicted (B. 6-12).

C. C. Ferrill, Circuit Clerk, with over thirteen (13) years . 
service in the Chancery Clerk’s office, testified that he never 
knew of a Negro serving on the jury at any term of the 
Circuit Court or being drawn or summoned for such service.
He further testified that it was his judgment that there were * 
about twenty-five (25) qualified Negro jurors in Beat One, 
city of Meridian, which city is in Lauderdale County (B. 
12-23).

Howard Cameron, Chancery Clerk since January, 1936, 
and deputy for such office since March, 1933, testified that 
in his judgment, there were eight thousand to ten thousand 
qualified electors in the county and that there were several 
hundred Negro registrants on the books of Lauderdale 
County (B. 25). He further testified that to his knowledge 
since 1933 there had never been any Negro empanelled for



8

nor any to serve on the grand or petit jury in the criminal 
courts of the county, and that there were no Negroes on the 
grand jury that indicted petitioner (R. 23-31).

W. Y. Brame, Sheriff since 1944 and tax assessor for the 
county for twelve years prior thereto, testified that there 
were no Negroes on the jury summoned for the February, 
1946 term of court; that he knew of only one Negro having 
been summoned for jury duty during his connection with 
the county government, which individual did not report, 
and that he had found from time to time some forty (40) to 
fifty (50) Negro registrants on the books (R. 31-38).

Tom Johnson, member of the Board of Supervisors, 
testified that during his twenty-five (25) to thirty (30) years’ 
service in such county, he had never listed any Negro jurors 
and had never tried to determine whether there were any 
qualified for such in his jurisdiction (R. 42-48). He testi­
fied: “ Q. Mr. Johnson, in making up your jury list since 
you have been supervisor have you made any effort at any 
time to determine whether in the registration books for 
your beat there were registered Negroes with a view of 
listing them for jury service! A. I have never had that 
in mind, because we did not have any darkies of conse­
quence in the beat, have not yet. I have enough troubles 
without going into all those details.”

J. A. Riddell, Judge, Lauderdale County Court, and a 
practicing attorney in the county since 1916, and a resident 
in the county since 1911, testified that since 1916 no Negro 
had served upon the grand jury in the county and that no 
Negro had been called or qualified for such service during 
those years; that in his judgment there were about one 
hundred (100) Negro qualified electors (R. 48-54).

George Beeman, Superintendent of Education of the 
county for ten (10) years, testified that during those years 
no Negro had been impanelled or called to the jury box 
for the grand jury (R. 54-57).



9

Donovan Ready, a CPA, testified that a check of the 
number of qualified electors of the county in the years 1941 
and 1942 showed that there were at least thirty (30) to sixty 
(60) Negro qualified electors, and that there might have 
been others whom he did not know (R. 57-60).

E. C. Gunn, a member of the Board of Supervisors for 
about six (6) years, testified that though there were four 
(4) or five (5) Negroes on the registration books of his Dis­
trict, he had not listed a Negro for jury duty during his 
term in office, and that to his knowledge not a single Negro 
had been called to the jury box with the view of being 
qualified for grand jury service, nor had any served on 
the grand jury during his term of office (R. 60-63).

L. D. Walker, member of the Board of Supervisors for 
seventeen (17) years, testified that to his knowledge no 
Negro had served on the grand jury or had been called to 
qualify for such during his period of service. He stated 
further that he did not know of an instance in the history 
of the county where a colored person had served upon the 
grand jury (R. 63-69).

0. L. King, member of the Board of Supervisors for 
seven years, stated that he did not know of having ever 
seen a Negro impanelled or called to the jury box during 
his period of service (R. 69-74).

William Wright, member of the Board of Supervisors for 
about nine (9) or ten (10) months, testified that no Negroes 
served on the February, 1946 grand jury, and that he 
knew that for fifteen (15) years no Negroes had served on 
the grand jury in that county, though there were some 
qualified Negro electors on the books (R. 74-80).

Frank Kennedy, former member of the Board of Super­
visors from 1928 to 1932, testified that during his term of 
office he did not list the name of any Negro on the jury 
list though there were one or two that he knew of who were 
in every respect qualified, and that there might have been



10

more so qualified that lie did not know. He stated further 
that to his knowledge no Negro had ever served on the 
grand jury (E. 80-84).

There was testimony to show that the ratio of Negroes to 
whites in the population of Lauderdale County was approxi­
mately sixty-five (65) to thirty-five (35) (R. 85) or fifty- 
fifty (R. 83).

In the face of this testimony, the Supreme Court of the 
State of Mississippi, in its opinion, concluded that the 
trial judge was justified “ in finding that there were not 
over fifty qualified Negro electors in the county, of whom 
. . . one-half were women, which would leave twenty-five 
qualified Negro male electors. He was justified also in 
accepting the testimony . . . that at least half the Negro 
electors . . . were teachers or ministers or physicians, 
or otherwise exempt from jury service. Of the twenty-five 
qualified Negro male electors, there would be left . . .
twelve or thirteen available male Negro electors . . .
or about one-fourth of one per cent Negro jurors,—four 
hundred to one’ ’ (R. 148).

Continuing to apply the rule of an alleged percentage 
as to the special venire the Court held: “ For the reasons 
already heretofore stated there was only a chance of 1 in 
400 that a Negro would appear on such a venire and as this 
venire was of one hundred jurors, the sheriff, had he 
brought in a Negro, would have had to discriminate against 
white jurors, not against Negroes,—he could not be ex­
pected to bring in one-fourth of one Negro”  (R. 149).

The opinion of the Supreme Court of Mississippi ignores 
most of the material testimony on the jury question and 
based its decision upon testimony of three of the fourteen 
witnesses called to the effect that there were an estimated 
eleven thousand qualified electors in the county and that 
there were less than one hundred, or as one witness testified



11

fifty qualified Negro electors in the county9 half of whom 
were estimated to be ineligible because of sex or occupation 
(R. 147-149).

In examining Mrs. Addie Rivers, a Deputy Clerk, as to 
the contents of two poll tax books representing two divisions 
of one precinct there were found the names of at least eleven 
Negroes, which names indicated that they were men in every 
respect qualified to be listed on the jury rolls (R. 38-41). 
Howard Cameron, Chancery Clerk testified that:

“ Q. Mr. Cameron, could you and would you give 
the court the benefit of your very best judgment as to 
the number of names of members of the Negro race that 
now appear upon the registration books of Lauderdale 
County ?

9 Code 1942, Section 1762, 1766, 1768, 1772.
Section 1762 provides who are competent jurors in the following lan­

guage: “ Every male citizen not under the age of twenty-one years, who 
is a qualified elector and able to read and write, has not been convicted of 
an infamous crime, or the unlawful sale o f  intoxicating liquors within a 
period of five years and who is not a common gambler or habitual drunkard, 
is a competent juror (both grand and petit); but no person who is or has 
been within twelve months the overseer o f a public road or road contractor 
shall be competent to serve as a grand juror. . . .”

Section 1766, Code of Mississippi, 1942:
“ The board of supervisors at the April meeting in each year or at a 

subsequent meeting is not done at the April meeting, shall select and make 
a list o f persons to service as jurors in the circuit.court for the twelve 
months beginning more than thirty days afterwards, and as a guide in 
making the list they shall use the registration book of voters, and shall 
select and list the names of qualified persons of good intelligence, sound 
judgment, and fair character, and shall take them as nearly as they con­
veniently can, from the several supervisor’s districts in proportion to the 
number of qualified persons in each. . . . The clerk of the circuit court
shall put the names from each supervisor’s district in a separate box or 
compartment, kept for the purpose, -which shall be locked and kept closed 
and sealed, except when juries are drawn, when the names shall be drawn 
from each box in regular order until a sufficient number is drawn. The 
board of supervisors shall cause the jury box to be emptied of all names 
therein, and the same to be refilled from the jury list as made by them at 
said meeting. I f  the jury box shall at any time be so exhausted of names 
as that a jury cannnot be drawn as provided by law, then the board of



12

“ A. Frankly I have never given it any considera­
tion, but I am under the opinion that there are several 
htmdred of them”  (R. 25).

A County Court Judge, J. A. Riddell, testified that in 
his judgment there were about one hundred Negro qualified 

• electors in the county (R. 75-82) while, Donovan Ready, 
another witness, found as a result of a personal check of the 

' rolls in 1941 and 1942 from thirty to sixty Negro qualified 
electors whom he personally kneiv.

An independent examination of the evidence in this case 
will reveal:

(1) That for at least thirty years prior to the trial of 
petitioner, no Negro had been drawn, summoned or served 
on a Grand or Petit Jury in Lauderdale County.

(2) That at various times during these years there had 
been from twenty-five to several hundred qualified Negro 
electors who could have been properly listed, drawn or 
summoned for such service, and that the existence of such 
qualified Negro electors was common knowledge through­
out the county.

(3) That the Clerk of the Circuit Court, at the request 
of the Federal Jury Commissioner, had, with little effort,

supervisors may at any regular meeting make a new list of jurors in the 
manner herein provided. In order that the board of supervisors may 
properly perform the duties required of it hy this section, it is hereby 
made the duty of the circuit clerk of the county and the registrar of the 
voters (also the clerk) to certify to the board of supervisors during the 
month o f March of each year under the seal of his office the number of 
qualified electors in each o f  the several supervisor’s districts in the 
county.”

Section 1768, Mississippi Code 1942, provides that the list o f names thus 
selected and made up be certified to the clerk o f the circuit court, and 
carefully filed and preserved by him as a record of his office.

Section 1772 of the same code provides how grand and petit juries are 
drawn for terms of court.



13

furnished him with a list of at least eight such Negroes who 
were in every respect so qualified.

(4) That no Negroes served on the Grand Jury which 
found the indictment in the instant case, and that no 
Negroes served on the Petit Jury which convicted the 
petitioner.

The testimony establishing these facts was sufficient in 
itself to make out a prima facie case of the denial of the 
equal protection of the laws to petitioner. In Norris v. 
Alabama, supra, where similar evidence was introduced, 
the Court said:

“ We are of the opinion that the evidence required 
a different result from that reached in the state court. 
We think that the evidence that for a generation or 
longer no Negro had been called for service on any 
jury in Jackson County, that there were Negroes quali­
fied for jury service, that according to the practice of 
the jury commission their names would normally 
appear on the preliminary list of male citizens of the 
requisite age but that no names of Negroes were placed 
on the jury roll, and the testimony with respect to the 
lack of appropriate consideration of the qualifications 
of Negroes, established the discrimination which the 
Constitution forbids.” 10

Once this prima facie case had been established by peti­
tioner, it then became incumbent upon the State to prove 
by competent testimony that Negroes were not unconstitu­
tionally excluded from jury service. This burden the State 
failed to sustain.11

10 294 U. S. 587, 596.
11 “ 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 Negroes quali­
fied for that service, could not be met by mere generalities. If, in the 
presence of such, testimony as defendant adduced, the mere general asser-



14

2) In Affirming the Conviction of Petitioner Herein The 
Supreme Court of Mississippi Erred in Refusing to Con­
sider Evidence of Systematic Exclusion of Negroes from 
Jury Service in That County Prior to the Year of the 
Instant Case.

The Supreme Court of Mississippi refused to consider 
the evidence of the systematic exclusion of Negroes from 
jury service over a long period of years prior to the year 
immediately preceding the trial:

“ We have not gone back of the year of and immedi­
ately preceding this trial, as to the jury lists, for the 
evident reason that in that respect we are concerned 
with that which bears real relation to the instant case 
and therefore with the present and that which was in 
the immediate parts,—not with what may have hap­
pened in remote days. And in following out the mathe­
matical calculations per capita among the nonexempt 
qualified persons, we are not to be considered as having 
resorted to it as an exclusion method for the solution 
of the question with which we have above dealt. Upon 
such a broad issue other considerations are to have 
their proper bearing. We have proceeded as we have 
here, because that method is sufficient for the present 
case”  (R. 149).

Prior decisions of this Court have clearly established 
the principle that testimony of the exclusion of Negroes 
from jury service in former years is competent evidence of 
unconstitutional discrimination in the selection of jurors 
and is entitled to great weight.12

tions by officials of their performance o f duty were to be accepted as an 
adequate justification for the complete exclusion of Negroes from iurv 
service, the constitutional provision— adopted with special reference to 
their protection— would be but a vain and illusory requirement.”— Norris 
v. Alabama, supra, at p. 598.

12 Norris v. Alabama, supra; Neal v. Delaware, 103 U. S. 370. See 
also: 82 L. Ed. 1070, 1072.



15

Under the laws of the State of Mississippi, in addition 
to requiring as a prerequisite for being eligible for jury 
service, that one be “ a qualified elector,” 13 it is also re­
quired that the registration book of voters shall be used 
“ as a guide in making the list”  of potential jurors. The 
code further provides that the list of prospective jurors 
shall be certified to the Clerk of the Circuit Court, filed and 
preserved by him.14 15

Testimony presented before the Special Committee to 
Investigate Senatorial Campaign Expenditures, 1946-79th 
Congress at hearings held in Jackson, Mississippi on the 
2d, 3d, 4th and 5th days of December, 1946, showed a 
state-wide condition of intimidation by State officers of 
large blocks of Negroes who attempted to register and to 
vote in a recent primary held in that State.ir'

In 1946, Mississippi passed a law exempting veterans 
from payment of poll taxes under certain conditions.16 A 
great movement of Negro veterans took place all over the 
State to register to vote. There were 66,972 discharged 
Negro veterans in Mississippi and practically 100% of them 
could read and write.17

The Supreme Court of Mississippi in a futile effort to 
distinguish this case from Smith v. Texas, supra, pointed 
out that in the Smith case ten percent of the qualified 
jurors were Negroes and that in the instant case the ratio 
was less than one percent. In doing this the Court not only 
ignored the evidence of witnesses that there were “ hun-

13 Mississippi Code, 1942, Section 1762.
14 Mississsippi Code, 1942, Section 1768.
15 See Minutes of Special Committee to investigate Senatorial Campaign 

Expenditures, 1946, Senate of the United States, 79th Congress; In the 
Matter of the Investigation of the Mississippi Democratic Primary Cam­
paign of Senator Theodore Or. Bilbo, Senator, State of Mississippi, pp. 
22, 98, 137, 146-147, 267, 134, 139, 619, 608, 365, 395, 731, 754, 813.

16 General Laws of Mississippi— 1946, Chap. 441, App. April 10, 1946.
17 See Minutes, footnote 15, pages 491-493.



16

dreds”  of Negroes qualified for jury service but also 
ignored the reasons for there being only “ hundreds”  of 
Negro registered voters. The State of Mississippi acting 
through its officers not only excluded Negroes from jury 
service by refusing to call qualified Negroes, but also 
effectively excluded Negroes by preventing them from quali­
fying under the laws of Mississippi by means of force, 
intimidation and duress in violation of the United States 
Constitution.

Accordingly, many hundreds of Negroes whose names 
should legitimately appear upon the registration rolls in 
the custody of the Circuit Clerk of Lauderdale County, 
which rolls by law were to be used as a guide in selecting 
and making a list of potential jurors 18 were unlawfully 
denied the opportunity to have their names entered thereon.

There can be no clearer indication of the atmosphere 
in which the juries of Lauderdale County are selected and in 
which petitioner was tried than the testimony of Tom John­
son, a member of the Board of Supervisors off and on since 
1904 and in continuous service since 1928, that:

“ Q. Mr. Johnson, in making up your jury list since 
you have been supervisor have you made any effort at 
any time to determine whether in the registration books 
for your beat there were registered Negroes with a 
view of listing them for jury service!

A. I have never had that in mind, because we did not 
have any darkies of consequence in the beat, have not 
yet. I have enough troubles without going into all 
those details”  (R. 46).

Mr. Johnson, on the other hand, testified:
“ Q. As a general thing, the vast majority of whites 

meet those requirements of good intelligence, sound 
judgment and fair character?

A. Not all.

18 Mississippi Code, 1942, Section 1766.



17

Q. I would hate to say all. The vast majority of 
them do though, don’t they?

A. The vast majority do; yes, sir.
Q. Therefore you list whites insofar as that qualifica­

tion is concerned generally, don’t pay so much attention 
to it, is concerned generally, don’t pay so much atten­
tion to it, as you do regard them of good intelligence, 
sound judgment and fair character?

A. There are some exceptions. In other words, sup­
pose a man is in trouble all the time, been convicted of 
selling whiskey, any other violations of the law, I don’t 
consider him worthy of a juryman.

Q. When you have that knowledge certainly you 
don’t, and you are right, but where you don’t have 
knowledge personally and should not have any, you go 
on the assumption he will meet that qualification?

A. Yes, sir; as far as I know I try to put him in 
there if (fol. 74) he is qualified in that request”  (R. 48).

The extent of this discrimination becomes more apparent 
when we compare the fact that there are 10,435 white per­
sons over the age of twenty-one in Lauderdale County and 
5,548 Negroes over the age of twenty-one in that county and 
witness after witness testified that no Negro had ever 
been called for jury service in that county.18a

This type of law enforcement is in direct opposition to 
our Constitution as interpreted by this Court and is m 
flagrant disregard of the principle as set forth in a recent 
decision.

“ The American tradition of trial by jury, considered 
in connection with either criminal or civil proceedings, 
necessarily contemplates an impartial jury drawn from 
a cross-section of the community. This does not mean, 
of course, that every jury must contain representatives 
of all the economic, social, religious, racial, political and 
geographical groups of the community; frequently

180 16th United States Population Census— 1940.



18

such complete representation would be impossible. 
But it does mean that prospective jurors shall be 
selected by court officials without systematic and inten­
tional exclusion of any of these groups. Recognition 
must be given to the fact that those eligible for jury 
service are to be found in every stratum of society. 
Jury competence is an individual rather than a group 
or class matter. That fact lies at the very heart of the 
jury system. To disregard it is to open the door to class 
distinctions and discriminations which are abhorrent to 
the democratic ideals of trial by jury.”  19

II

The conviction of petitioner upon confessions and state­
ments extorted by force, duress and intimidation obtained 
by officers and agents of the State of Mississippi while acting 
in their official capacity is a denial of the equal protection 
and due process of the law guaranteed by the Fourteenth 
Amendment to the Constitution of the United States.

From the testimony of a deputy sheriff in the instant 
case, it was ascertained that petitioner, an ignorant Negro 
youth, was taken to the local jail and placed in the office at 
approximately 1 p. m. on the afternoon of his arrest (R.

He was kept in this secluded office and was denied 
any opportunity to contact an attorney, relatives or friends. 
He was forced to remain so confined in the presence of 
numerous policemen and other law enforcement officials 
whose powers in his mind undoubtedly were greatly magni­
fied, until about 8 or 8 :30 that night. During all of this time 
he was denied food and drink. He was being continually 
subjected to grilling, questioning and cross-examination by 
approximately seven or nine white officers. He was made

19 Thiel v. Southern P. Co., 328 U. S. 217, at p. 220.



19
f & t

to strip off his clothing and lie on the floor naked (R. •4#§). 
There was some testimony which wo.uld lead to an inference 
that he was actually beaten (R. m y  . While on the floor, 
he was continually told that he was lying; that he might 
as well tell the truth and that they were_gping to get it out 
of him anyhow (R. ^ i

As a result of this tortuous inquisition, petitioner 
allegedly confessed to having stolen and concealed certain 
articles belonging to the deceased, and made other state­
ments tending to connect him with the crime. He was then 
chained and manacled and carried to various remote places 
where he allegedly pointed out the hiding place of these 
articles and identified them.

After a brief* and cursory preliminary hearing as to the 
voluntary nature of parts of these confessions, at which 
time only^Se^?ftless testified, the court allowed numerous 
references to be made to them ^ erH ie objection ofneti- 
tioner (R. 4 $  ( f f ,  £ 2 , . # ^  204; H 0f. '

These rulings were error and the admission of such 
testimony was in violation of constitutional guarantees of 
equal protection and due process of the law.20

The State Supreme-Court in its opinion attempted to 
justify the admission of various portions of the appellant’s 
alleged confession on the ground that they “ had definite 
relations to the articles mentioned and to the pointing out of 
the place where appellant admitted he had concealed them 
. . . ’ ’ However, as stated by this Court:

“ The aim of the requirement of due process is not 
to exclude presumptively false evidence, but to prevent

20 Brain v. U. S., 168 U. S. 532; Brown v. Mississippi, 297 U. S. 278; 
Chambers v. Florida, 309 U. S. 227; Lisenba v. California, 314 tJ. S, 219; 
Ward v. Texas, 316 U. S. 547.



20
*  ' *  *

fundamental unfairness in the use of evidence whether 
true or false. The criteria for decision of that ques­
tion may differ from’ those appertaining to the state’s 
rule as to the admissibility of a confession. As applied 
to a criminal trial, denial of due process is the failure 
to observe that fundamental fairness essential to the 
very concept of justice . . . Such unfairness exists 
when a coerced confession is used as a means of obtain­
ing a verdict of guilt. We have so held in every in­
stance in which we have set aside for want of due 
process a conviction based on a confession”  (italics 
ours).21

The conviction of petitioner herein should be reversed. 
It was based solely upon a confession secured under cir­
cumstances constituting duress and intimidation, a situation 
which has been many times the basis for this Court’s re­
versal of such unlawful convictions.22 •*».

- * ’Conclusion •

Petitioner was indicted and tried by juries from which 
members of his race were systematically excluded simply 
because they were Negroes. This not only violates our 
Constitution and the laws enacted under it but is at war with 
our basic concepts of a democratic society and a representa­
tive government.

The record clearly shows further that petitioner’s con­
viction was based upon portions of a confession extorted 
from him through the use of force, duress, violence and 
intimidation.

The court’s refusal to quash the indictment herein, and 
its refusal to quash the special venire and the admission of

21 Lisenba v. California, supra, at 236.
22 See footnote 20, supra.



21

portions of an unlawfully obtained confession were viola­
tive of the Constitution and laws of the United States.

W h e r e f o r e , it is respectfully submitted that the judg­
ment of the Supreme Court of the State of Mississippi 
should be reversed.

T h t j r g o o d  M a r s h a l l ,

20 West 40 Street,
New York 18, Neiv York,

Attorney for Petitioner.

L. J. B r o a d w a y ,

P. 0. Box 969,
2nd Floor Rosenbaum Building,

Meridian, Mississippi;
A n d r e w  W e i n b e r g e r ,

67 West 44 Street,
New York 18, New York;

E d w a r d  R. D u d l e y , ,

F r a n k l i n  H. W i l l i a m s ,

20 West 40th Street,
Netv York 18, New York,

Of Counsel.

(2960)



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