Payne v. Arkansas Brief for the Petitioner

    IK THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1957

No. 99

FRANK ANDREW PAYNE,
Petitioner,

vs.

STATE OF ARKANSAS,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OF ARKANSAS

\

BRIEF FOR THE PETITIONER

W iley  A. B ra n ton ,
Counsel for Petitioner 
119 E. Barraque Street 
Pine Bluff, Arkansas



TABLE OF CONTENTS

Page
B biep  poe t h e  P e titio n e e

Opinion Below ............................................................ -  1
Jurisdiction .......................................................................  1
Statutes Involved .............................. ..........................  2

Constitution of the United States—Fourteenth 
Amendment .................................................   2

Title 18 U.S.C. Sec. 243 ......................................... ~ 2
Ark. Stat. (1947) Sec. 39-201 ...................................  2
Ark. Stat. (1947) Sec. 39-206 ...................................  3
Ark. Stat. (1947) Sec. 39-208 ...................   4
Ark. Stat. (1947) Sec. 39-209 ...................................  4
Ark. Stat. (1947) Sec. 39-210..............   5
Ark. Stat. (1947) Sec. 39-212....................................... 5
Ark. Stat. (1947) Sec. 39-301.1 .............................. . 5
Ark. Stat. (1947) Sec. 43-601 .................................... 6
Ark. Stat. (1947) Sec. 43-605 .................................... 7

Questions Presented for Review ................................  7
Statement of the Case ........................................... .....  8

1. Events which preceded the tr ia l......................  8
2. Preliminary Motion to Quash Jury Panel.......  8
3. Testimony relating to confession...............    10
4. Petitioner’s defense .............................................  13

Summary of Argument ................................   13
I Confession ............................................................  13

II Jury Discrimination .........   14
Argument ........................................................................  15

I Confession—Due Process of Law Guaranteed 
by the Fourteenth Amendment Was Denied 
to Petitioner by Introduction Into Evidence 
After Same Had Been Coerced ........................  15



Page

II Jury Discrimination—There Was Systematic 
Exclusion of Negroes From the Jury Com­
mission and From the Jury Panel Where 
Negroes Represent Only 4.3% of the Persons 
Called for Jury Service for the Past 17 Terms 
of Court, Although Negroes Comprise 50% of 
the Total Population and 30% of the Elec­

i i  TABLE OF CONTENTS

torate of the County .......................................... 21
Conclusion ................................................. ..................... 31

CASES CITED

Akins V. Texas, 325 U.S. 398, 89 L.ed. 1692 ............... 27
Ashcraft v. Tenn., 322 U.S. 143 ..................................  16
Avery v. Georgia, 345 U.S. 559 ..................................29, 30
Brown v. Allen (1953), 344 U.S. 443, 73 S.Ct. 397 .....  29
Brown v. State, 198 Ark. 920, 132 S.W. 2d 1 5 ........... 18
Cassell v. Texas (1950), 339 U.S. 282, 70 S.Ct. 629....27, 28
Chambers v. Fla., 309 U.S. 227 .................. ...............15,16
Commonwealth of Va. v. Bives, 100 U.S. 313, 25

L.ed. 512.......................................... ............ ...............  27
Dewein v. State, 114 Ark. 472, 170 S.W. 582 ...............  18
Fikes v. Ala., 352 U .S .------ , 1 L.ed, 2d 246 ..... ....16, 20, 21
Gallegos v. Nebraska, 342 U.S. 5 5 ..............................  16
Green v. State, 258 S.W. 2d 56 .......................... ,....... 27
Haley v. Ohio, 332 U.S. 596 ...................    16
Harris v. S. C., 338 U.S. 68 .......  15-16
Hernandez v. Texas (1954), 347 U.S. 475, 74 S.Ct. 667 29
Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159 ................27, 28
Johnson v. Penn., 340 U.S. 881......................... ..........  21
Leyra v. Denno, 347 U.S. 556 ................................... 16, 20
Lyons v. Okla,, 322 U.S. 596 ........................................20, 21
Malinski v. N. Y., 324 U.S. 401 ................................. 16, 20
McNabb v. V. S., 318 U.S. 332 .................................... 16
Maxwell v. State, 232 S.W. 2d 982 ..............................  27
Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579 .......27, 29
Patton v. Miss., 332 U.S. 463, 68 S.Ct. 184 ..............27, 29
Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167............... 30
Smith v. State (1951), 218 Ark. 725, 238 S.W. 2d 649 27 
Stein v. N. Y., 346 U.S. 156........................................16, 21



Page

Strauder v. W. Va., 100 TT.S. 303, 25 L.ed. 664 .......  26
Thomas v. Texas, 212 U.S. 278, 53 L.ed. 512............... 27
Turner v. Penn., 338 U.S. 62 ......................................16, 21
U. 8. v. Bayer, 331 U.S. 532 ....................................... 19, 20
Ward v. Texas, 316 U.S. 547 ......................................15,16
Washington v. State (1948), 213 Ark. 218, 210 S.W.

2d 307 ..........................................................................  27
Watts v. Ind., 338 U.S. 4 9 .................... ..... ................... 21

CONSTITUTION

14th Amendment, Constitution of United States —.2, 9,13,
15, 20, 22, 27,31

STATUTES

18 U.S.C. Sec. 243 ......................................... ........... ... 2, 26
Ark. Stat. (1947) 3-227 ......................................... .......9, 29
Ark. Stat. (1947) 39-201 ........................................... 2, 9, 22
Ark. Stat. (1947) 39-206 ............................................... 3, 22
Ark. Stat. (1947) 39-208 ........................................... 4, 9, 22
Ark. Stat. (1947) 39-209 ....... ........................................4, 22
Ark. Stat. (1947) 39-210 .................. ............................ 5, 22
Ark. Stat. (1947) 39-212 ... ........................................... 5,30
Ark. Stat. (1947) 39-301.1 ............................................. 5, 30
Ark. Stat. (1947) 43-403 ...............................................  18
Ark. Stat. (1947) 43-601 .................. ............................ 6,18
Ark. Stat. (1947) 43-605 ..........................................7,16,18

OTHER AUTHORITIES

20 Am. Jur., Evidence, Sec. 482 .................................. 17
III Wigmore, Sec. 855 ...............................................  20

TABLE OF CON TENTS 111



IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1957

No. 99

FRANK ANDREW PAYNE,
Petitioner,

vs.

STATE OF ARKANSAS,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 
STATE OE ARKANSAS

BRIEF FOR THE PETITIONER

Opinion Below

The opinion of the Supreme Court of Arkansas (R. 131) 
is reported at 295 S. W. (2d) 312.

Jurisdiction

The judgment of the Circuit Court of Jefferson County, 
Arkansas, was affirmed by the Supreme Court of Arkansas, 
on November 5, 1956. Rehearing was denied December 3,
1956. Petition for Writ of Certiorari and Motion for Leave 
to Proceed in Forma Pauperis were granted on April 8,
1957. The printed record was received by petitioner’s coun­
sel on October 19, 1957. The clerk of this court, pursuant



2

to a request from petitioner under Rule 34 (5), entered an 
Order on November 12, 1957, extending the time for peti­
tioner to file his Brief to November 25, 1957.

Statutes Involved

C o n stitu tio n  of t h e  U n it e d  S tates—
14th A m e n d m e n t .

All persons bom 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.

T it l e  18 U.S.C. Sec. 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 condition 
of servitude; and whoever, being an officer or other person 
charged with any duty in the selection or summoning 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, Sec. 1, 62 Stat. 696.)

A r k an sa s  S ta tu tes  (1947) Sec. 39-201.

Jury Commissioners—Selection— Oath.—Jurors in both 
civil and criminal cases shall hereafter be selected as fol­
lows : The circuit courts, at their several terms, shall select



3

three (3) jury commissioners, who shall not be related to 
one another by blood or marriage within the 4th degree, 
who possess the qualifications prescribed for petit jurymen 
and who have no suits in court requiring the intervention 
of a jury. The judge shall administer to the Commissioners 
the following oath: “ You do swear faithfully to discharge 
the duties required of you as commissioners; that you will 
not, knowingly, select any person as a juror whom you 
believe unfit and not qualified; that you will not make known 
to anyone the name of the jurors selected by you, and re­
ported on your list to the court, until after the commence­
ment of the next term of this court; that you will not, 
directly or indirectly, converse with any one selected by 
you as a juror concerning the merits of any suit to be tried 
at the next term of this court until after said cause is tried 
or the jury is discharged.” Jury commissioners shall re­
ceive $5.00 per day for their services.

A bk an sas  S tatu tes  (1947) Sec. 39-206.

Preparation of Lists of Grand Jurors and Alternates— 
Qualifications.—They shall select from the electors of the 
county sixteen (16) persons of good character, of approved 
integrity, sound judgment and reasonable information, to 
serve at the next term of the court as grand jurors, and 
when ordered by the court, shall select such other number as 
the court may direct, not to exceed nine (9) electors, having 
the same qualifications, for alternate grand jurors, and 
make separate lists of the same, specifying in one list the 
names of the sixteen (16) persons selected as grand jurors, 
and certify the same as the list of grand jurors; and spe­
cifying in the other list the names of the alternate grand 
jurors, and certifying the same as the list of alternates; 
said grand and alternate grand jurors shall be selected 
from all parts of the county.



4

Preparation of Lists of Petit Jurors and Alternates— 
Indorsement of Lists.—The Commissioners shall also select 
from the electors of said county, or from the area con­
stituting a division thereof where a county has two or 
more districts for the conduct of circuit courts, not less 
than twenty-four (24) nor more than thirty-six (36) quali­
fied electors, as the Court may direct, having the qualifica­
tions prescribed in Section 39-206 Arkansas Statutes 1947 
Annotated to serve as petit jurors at the next term of 
court; and when ordered by the court, shall select such 
other number as the court may direct, not to exceed twelve 
(12) electors, having the same qualifications, for alternate 
petit jurors, and make separate lists of same, specifying 
in the first list the names of petit jurors so selected, and 
certify the same as the list of petit jurors; and specifying 
in the other list the names of the alternate petit jurors so 
selected, and certifying the same as such; and the two (2) 
lists so drawn and certified, shall be inclosed, sealed and 
endorsed “ list of petit jurors” and delivered to the Court 
as specified in Section 39-207, Arkansas Statutes 1947, 
Annotated for the list of grand jurors.

A r k a n sa s  S ta tu tes  (1947) Sec. 39-209.

Delivery of Lists to Clerk—Oath of Clerk and Depu­
ties— Oath of Subsequently Appointed Deputy.—The judge 
shall deliver the lists to the clerk, in open court, and admin­
ister to the clerk and his deputies the following oath: “ You 
do swear that you will not open the jury lists now delivered 
to you until the time prescribed by law; that you will not, 
directly or indirectly, converse with any one selected as a 
petit juror concerning any suit pending and for trial in 
this (court) at the next term, unless by leave of the court.”

Should the clerk subsequently appoint a deputy in vaca­
tion, he shall administer to him the like oath.

A rkansas Statutes (1947) Sec. 39-208.



5

Clerk to Deliver List to Sheriff—Summons by Sheriff— 
Return—Day of Appearance.—Within thirty (30) days be­
fore the next term, and not before, the clerk shall open 
the envelopes and make out a fair copy of the list of 
grand jurors, and a fair copy of the list of alternate grand 
jurors; also a fair copy of the list of petit jurors, and a fair 
copy of the list of alternate petit jurors, and give the same 
to the sheriff or his deputy, who shall, at least three (3) 
days prior to the first day of the next term, summon the 
persons named as grand jurors, and the persons named as 
petit jurors and alternate petit jurors, to attend said term 
on such day as the court shall have designated by order, 
as petit jurors, by giving personal notice to each, or by 
leaving a written notice at the juror’s place of residence 
with some person over ten (10) years of age. The sheriff 
shall return said list, with a statement in writing of the 
date and manner in which each juror was summoned: 
Provided, That if no day for the appearance of the petit 
jurors shall have been fixed by order of court, they shall 
be summoned to attend on the second day of the term.

A rk an sa s  S tatu tes  (1947) Sec. 39-212.

Nonattendance of Juror or Alternate—Fine.—If a juror 
or alternate, legally summoned, shall fail to attend, he may 
be fined any sum not less than one ($1.00) nor more than 
thirty dollars ($30.00).

A rk an sas  S tatu tes  (1947) Sec. 39-301.1.
Fees of Jurors.—Persons whose names appear on any 

legal and authorized Grand Jury or Petit Jury List of the 
respective counties of Arkansas, shall receive in addition 
to any other fees allowable now by law, other than under 
authority of said Act, No. 48 of 1947 (Section 39-301, Ark.

A rkansas Statutes (1947) Sec. 39-210.



6

Statutes, 1947 Official Edition), the following per diem 
fees:

a. When such person or persons fail for any reason to 
attend court; None.

b. When such person or persons attend court and are 
excused by the Court for any reason from serving as 
a juror or jurors; Five Dollars ($5.00).

c. When such person or persons have been sworn touch­
ing their qualifications to serve as a juror or jurors 
and have been accepted by the Court as qualified: 
Seven Dollars and Fifty Cents ($7.50).

A rk an sa s  S ta tu tes  (1947) S ec . 43-601.

Proceeding When No Warrant Issued.—Where an arrest 
is made without a warrant, whether by a peace officer or 
private person, the defendant shall be forthwith carried 
before the most convenient magistrate of the county in 
which the arrest is made, and the grounds on which the 
arrest was made shall be stated to the magistrate, and 
if the offense for which the arrest was made is charged 
to have been committed in a different county from that 
in which the arrest was made, and the magistrate be­
lieves, from the statements made to him on oath, that 
there are sufficient grounds for an examination, he shall, 
by his written order, commit the defendant to a peace 
officer, to be conveyed by him before a magistrate of 
the county in which the offense is charged to have been 
committed; or, if the offense is a misdemeanor only, 
the defendant may give bail before the magistrate for 
appearing before a court or magistrate having jurisdiction 
to try the offense, on a day to be fixed by the magistrate 
and named in the bail-bond.



7

Procedure.— When a person, who has been arrested, 
shall be brought, or in pursuance of a bail-bond shall come, 
before a magistrate of the county in which the offense is 
charged to have been committed, the charge shall be forth­
with examined; reasonable time, however, being allowed 
for procuring counsel and the attendance of witnesses. 
The magistrate before commencing the examination, shall 

"state the charge and inquire of the defendant whether 
he desires the aid of counsel, and shall allow a reasonable 
opportunity for procuring it.

Questions Presented for Review

I

Whether due process of Jaw guaranteed by the Four­
teenth Amendment was denied petitioner—a mentally re­
tarded 19 year old Negro youth with little education— 
by introduction into evidence of his “ confession” made 
following an arrest without a warrant and without arraign­
ment before a magistrate and following sustained interro­
gation with deprivation of food—punctuated by threats 
of mob violence—while he was held incommunicado from 
Wednesday morning until Friday afternoon and where 
several members of his family were arrested without a 
warrant and petitioner was threatened with the arrest of 
his mother.

II

Whether members of the Negro race were systematically 
excluded or their number limited in the selection of the 
jury panel and of the jury commission where no Negroes 
had been appointed to jury commission for over fifty 
years; where Negroes have represented only 4.3% of the 
persons called for jury service for the past 17 consecutive

A bkansas Statutes (1947) Sec. 43-605.



8

terms in a county where Negroes comprise 50% of the 
total population and 30% of the qualified electors and 
where names were selected from Poll Tax lists on which 
the race of the electors is designated.

Statement of the Case

Petitioner has been sentenced to death following con­
viction for the crime of Murder In The First Degree (R. 
48). The Supreme Court of Arkansas has affirmed this 
judgment (R. 131).

1. E ve n ts  W h ic h  P receded t h e  T rial

J. N. Robertson, an elderly white lumber man, was found 
dead in his place of business in the City of Pine Bluff, 
Arkansas, on Tuesday, October 4, 1955. The petitioner 
is a 19 year old1 Negro (R. 98) who actually went to the 
fifth grade in school (R. 102) but was promoted to the 
seventh grade on an age basis because he was slow learning 
(R. 119). The petitioner was arrested on Wednesday 
morning, October 5, 1955, by the city police of Pine Bluff 
who had no warrant of arrest (R. 63, 112) and held in­
communicado under circumstances to be detailed below 
until he “ confessed” on Friday afternoon.

2. P r e l im in a r y  M otion  to Q u a sh  t h e  J u r y  P a n e l

The petitioner filed in proper time, his Motion to Quash 
the Panel of petit jurors for the October Term, 1955, of 
the Jefferson Circuit Court, alleging that he was a Negro 
and that no member of the Negro race had ever been 
selected as a jury commissioner in over fifty years in 
Jefferson County; and, that although some members of 
the Negro race had been called for jury duty since 1947,

1 Petitioner was 19 at the time of the alleged crime.



9

that Negroes have been discriminated against by an arbi­
trary and inapportionate limiting of their number by the 
jury commissioners in violation of the Fourteenth Amend­
ment to the Constitution of the United States.

The Arkansas Statutes provide for the appointment of 
a three man jury commission by the Circuit Judge prior 
to the beginning of each term of court2 and the com­
missioners are required to select the panel from the elec­
tors of the county.3 The County Clerk keeps the official 
record of qualified voters (E. 17) and the record reflects 
the race of the elector (E. 18) as is required by law4 and 
the total number of voters in the county at the time of 
the trial was 19,452 of which, 5,774 were colored and 
13,678 were white (E. 18) and this same approximate 
ratio has existed for the past three years (E. 18).

According to petitioner’s exhibit No. 1, which was a 
certified copy of a population report of Jefferson County 
for the year 1950 as prepared by the Census Bureau, 
Jefferson County had a total population of 76,075 of which 
37,792 were white persons and 37,835 were Negroes (E. 18).

Jury Commissioner Trulock could not recall a Negro 
serving as a Jury Commissioner (E. 8), that they were 
told to get some Negroes on the panel (E. 9), that he 
could not take anybody that he didn’t know and that 
he was limited by his knowledge of the people whom he 
was trying to select (E. 10), and that he was not per­
sonally familiar with very many Negroes who might be 
qualified as jurors (E. 11). Neither of the other two 
Commissioners could recall a Negro ever having served

2 Ark. Stat., 39-201, Page 2 herein.
3 Ark. Stat., 39-208, Page 4 herein.
4 Ark. Stat., (1947) 3-227 requires that the color of the taxpayer 

be shown on the poll tax receipt record.



10

on the Jury Commission (R. 13, 16), and one admitted 
that he had race in mind when the panel was selected 
(R. 16).

The Circuit Clerk had never known of a Negro serving 
on the Jury Commission in Jefferson County (R. 19), 
and that he kept a record of the names of persons who 
have actually served on jury panels during the past ten 
years (R. 19). The Court invited the petitioner’s attorney 
to take the stand to show the actual number of Negroes 
who have served on jury panels during the past ten 
years (R. 22), and his testimony revealed that the number 
of Negroes on each panel for the past 17 consecutive terms 
of Court has ranged from 0 to 6, the 6 having been reached 
at only one term and the average being less than 2 Negroes 
per term (R. 24, 25).

Nine Negroes who had formerly served as jurors tes­
tified that they had never heard of a Negro serving on 
the Jury Commission in Jefferson County and a study 
of their testimony reveals that at the time of trial their 
average age was 68 years and they had lived in the county 
an average of 41 years and most had never served on a 
jury until within the past three or four years (R. 28-38).

The Motion to Quash the Jury Panel was denied (R. 43), 
and the defendant was tried by an all White Jury (R. 129).5

3. T e st im o n y  R el a t in g  to C oneession

The State sought to introduce an alleged confession into 
evidence and on objection by the petitioner, the Court 
and counsel retired to chambers out of the hearing of 
the jury where testimony relating to the confession was

5 There were two Negroes on the panel from which petitioner’s 
jury was selected but one had died prior to the trial and the other 
was excused because he was opposed to capital punishment (R. 
129-130).

%



11

had (R. 51). All of the witnesses for the state stated 
on direct examination that the defendant was not threat­
ened or abused in any manner or promised any reward 
in consideration of his confession (R. 51, 63, 72, 76, 79, 84).

The petitioner took the stand in his own behalf (R. 88) 
and testified that he was 19 years of age and that he was 
arrested about eleven o’clock in the morning on Wednes­
day, October 5, 1955, while he was at work at the Bluff 
City Lumber Company and that he normally went home 
for dinner at twelve o’clock and missed his dinner because 
he was in jail and that he was not given any dinner or 
supper at the jail on the day of his arrest (R. 88), that 
he was awakened about six o’clock the following morning 
(Thursday) in order to remove his clothing and shoes 
and was then taken by car to Little Rock without break­
fast by the Chief of Police and Sgt. Halsell of the State 
Police (R. 89); that he was taken to State Police Head­
quarters in Little Rock where he was given a lie detector 
test and that he was finally given some shoes about 4:30 
(R. 89) but the record is silent as to when he was given 
clothing and the only food that he was given that day 
was a sandwich at one o’clock (R. 89); that he was re­
turned to Pine Bluff about six or six-thirty in the after­
noon and some time Thursday night was taken to Dumas, 
Arkansas,6 by Sgt. Halsell where he was locked up in 
jail and kept awake most of the night by the jailer who 
questioned him and made threats that petitioner would 
be hung (R. 90); that he was given breakfast on Friday 
morning about ten-thirty and that other than the sandwich 
which he had on Thursday, this was the only food which 
he had been given since his arrest on Wednesday morning 
(R. 92); that two of his brothers and two of a brother’s

6 Dumas is approximately 45 miles southeast of Pine Bluff in 
Desha County.



12

children, ages ten and thirteen were arrested and brought 
to the City Jail at Pine Bluff and that the Chief of Police 
told Petitioner that he might as well confess or else his 
whole family would be arrested including his mother 
(R. 93); that later on Friday, Chief Young came to his 
cell and told him that there were thirty or forty people 
outside who wanted to get the petitioner and that if 
he would tell the truth that he (the Chief) would prob­
ably keep them from coming in; and that he then went 
to the Chief’s office and made a confession (R. 94).

The petitioner’s brother, a 43 year old preacher (R. 86), 
testified that he tried to see the petitioner at the City Jail 
before Friday but was not permitted to see him (R. 87). 
The petitioner’s last teacher testified that he only went 
to the fifth grade but that he was promoted to the seventh 
grade because he was then fifteen years old and that he 
soon dropped out of school (R. 119), and that his grades 
were mostly D’s and F ’s (R. 120).

Much of the petitioner’s testimony was corroborated 
by the testimony of the State’s witnesses on cross-exami­
nation. Sgt. Halsell admitted that the petitioner was 
taken to Little Rock without shoes (R. 56), and Chief 
Young admitted that petitioner was arrested without a 
Warrant (R. 63), that it was possible that petitioner had 
no supper on the day of his arrest (R. 64); that he did 
not know whether petitioner had breakfast the next morn­
ing before being taken to Little Rock (R. 65); that pe­
titioner was never taken before a Magistrate or Judge 
(R. 65); that petitioner’s relatives would not have been 
permitted to see him within 72 hours after his arrest (R. 
66-67); that petitioner’s brother and two of his brother’s 
children were brought to jail for questioning as well 
as another brother and that he told petitioner that there 
might be thirty or forty people there in the next few 
minutes, just prior to the confession (R. 69).



13

Most of the witnesses for the State were people who 
had been brought in merely to witness the signing of the 
confession. After the hearing in chambers, the Court 
overruled the petitioner’s objection to the admission of 
the confession into evidence, and substantially the same 
testimony was taken again in the presence of the jury 
(B. 102-130). The confession itself begins on page 97 of 
the record. The petitioner also took the stand in open 
court and stated that profanity was directed at him on 
Thursday while in Little Bock and that in returning the 
officer told him that if he would tell the truth, that “ the 
most you will get out of it is five or six years” on account 
of “your age” (B. 124), and that he requested permission 
to make a telephone call following his arrest and was told 
that he could not call anyone within 72 hours (B. 125).

4. P e t itio n e e ’s D efense

Petitioner took the stand and admitted that he struck 
the decedent, his white employer, with an iron bar, which 
apparently resulted in his death but that this was done 
only after the deceased had struck him following an argu­
ment, and that petitioner’s action was done in the sudden 
heat of passion.

SUMMARY OF ARGUMENT 

I

Confession

The introduction into evidence of petitioner’s confession 
denied due process of law guaranteed by the Fourteenth 
Amendment because it was obtained after the petitioner 
had been arrested without a Warrant and held incommuni­
cado from Wednesday morning until Friday afternoon, 
during which time he was deprived of food for long periods



14

of time and was taken ont of the county to Little Rock 
for a lie detector test and was then taken to another city 
for safekeeping where he was threatened by the jailer 
who told petitioner that “he would be hung.” The pe­
titioner was denied the right to consult with a lawyer 
or members of his family, and two of his brothers and 
three of his nephews were arrested while petitioner was 
in the City Jail and the latter was threatened with the 
arrest of his whole family including his mother if he 
“ didn’t tell the truth.” He was told by the Chief of Police 
approximately 30 minutes before his “ formal confession” 
that there were 30 or 40 people outside the jail who 
wanted to get him and that if petitioner would tell the 
truth that he, the Chief, could probably keep them from 
getting in. At this point, the petitioner made his incul­
patory statement. The totality of the circumstances that 
preceded this confession by the nineteen year old mentally 
retarded petitioner was a denial of due process.

II

Jury Discrimination

There was systematic exclusion of Negroes from the 
jury commission and from the jury panel in Jefferson 
County caused by a system of jury selection which relied 
wholly upon the jury commissioners’ personal acquaintance, 
where commissioners knew few Negroes qualified to serve 
in a county where Negroes comprise 50% of the total 
population and 30% of the qualified electors and where 
the panel is selected from the poll tax record on which 
the race of the elector is designated. This system has re­
sulted in no Negro serving on the jury commission in 
Jefferson County for at least 50 years and where Negroes 
have represented only 4.3% of the persons called for jury 
service for the past 17 consecutive terms of court and



15

where the petitioner was tried before an all white male 
jury and sentenced to death in the electric chair, in vio­
lation of the Constitution and laws of the United States.

ARGUMENT

I

Confession

Due process of law guaranteed by the Fourteenth Amend­
ment was denied to petitioner, a mentally retarded 19 year 
old Negro youth, by introduction into evidence of his “ con­
fession” made following an arrest without a Warrant and 
prior to any arraignment following sustained interrogation 
with deprivation of food—punctuated by threats of mob 
violence—while being held incommunicado in jail from 
Wednesday morning until Friday afternoon, and where 
several members of his family were also arrested without 
a Warrant and petitioner was threatened with the arrest 
of his mother.

Petitioner contends that his confession was coerced as a 
matter of law. Prior to the introduction of the confession, 
the trial court properly heard testimony relating to the 
voluntary character of the confession out of the hearing of 
the jury and the petitioner proved the existence of many 
facts which this court frequently has held to be relevant 
on the issue of coercion:

That he was a Negro,7 nineteen years of age,8 had a fifth 
grade education,9 that he was held incommunicado from 
about eleven A. M. on Wednesday, October 5, 1955, until

7 In ascertaining whether a confession is coerced, this Court 
gives weight to the fact that defendant is a member of an un­
popular racial group. Chambers v. Florida, 309 U.S. 227, 237, 
241; Ward v. Texas, 316 U.S. 547, 555; Harris v. South Carolina,



16

about two P. M., on Friday, October 7th, that he was denied 
permission to talk to or phone anyone, that relatives were 
■denied the right to see him or speak to him and he was not 
arraigned,8 9 10 that he was continuously questioned and abused 
by officers,11 that he was taken to Little Eock where he was 
given a lie detector test and on being returned to Pine 
Bluff was offered the hope that if he confessed he would 
only get five or six years on account of his age.12 Peti­

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.

8 Whether the defendant is mature or immature is important in 
evaluating whether a confession has been coerced. Haleu v. Ohio, 
332 U.S. 596.

9 The degree of education which a defendant has had is an im­
portant 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.

10 Holding petitioner incommunicado was not only in violation
of Arkansas law, Sec. 43-605, Arkansas Statutes (1947), but con­
trary 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 is at least a serious factor to be weighed because, “ to 
delay arraignment, meanwhile holding the suspect incommunicado, 
facilitates and usually accompanies use of ‘third degree’ methods. 
Therefore (this Court) regards such occurrences as relevant cir­
cumstantial 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. Ten­
nessee, 332 U.S. 143, 152; Malinski v. New York, 324 U.S. 401, 412, 
417; Turner v. Pennsylvania, 338 U.S. 62, 66, 67; Pikes v. Ala­
bama, 352 U .S .------ , 1 L.ed. 2d 246.

11 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, 322 U.S. 
596, 600; Turner v. Pennsylvania, 338 U.S. 62, 64.

12 A  lighter penalty is one of the inducements which was of­
fered in Leyra v. Denno, 347 U.S. 556. Mr. Justice Minton wrote,



17

tioner also stated in his testimony that following his arrest 
at 11 A. M., on Wednesday, that he was not given any food 
until he was given a sandwich in Little Rock at 1 P. M., on 
Thursday and that the only other food which he had prior 
to the alleged confession on Friday afternoon was his 
breakfast about ten thirty Friday morning in Dumas (R. 
92).

It is universally recognized that “ a confession of a 
person accused of crime is admissible in evidence against 
the accused only if it was freely and voluntarily made, 
without duress, fear, or compulsion in its inducement and 
with full knowledge of the nature and consequences of the 
confession.” 20 Am. Jur. Evidence, Sec. 482. The peti­
tioner did not have the mentality or the maturity to under­
stand the nature and consequences of his confession.13

All of the surrounding circumstances should be studied 
in determining whether or not a confession has been 
coerced. “ It has been said that no general rule can be 
formulated for determining when a confession is voluntary, 
because the character of the inducements held out to a 
person must depend very much upon the circumstances of 
each case. Where threats of harm, promises of favor or 
benefits, infliction of pain, a show of violence, or inquisi­
torial methods are used to extort a confession, then the 
confession is attributed to such influences. It may be said

at page 585 (concerning the first confession in Leyra): such 
“ threats, cajoling, and promises of leniency . . .  to induce peti­
tioner to confess were soundly condemned by that Court.”

13 The petitioner testified that he was 19 years of age (R. 88) 
and that he went to the fifth grade in school (R. 102). Mrs. 
S. M. Wimberly, the petitioner’s last teacher, testified that “he 
dropped out of school before the term was out, in fact, Frank 
was of age and they had to skip him from the fifth grade to the 
seventh grade—he was fifteen years of age . . . ”  (R. 119) “ They 
promoted him on an age basis because he was slow learning— he 
was very slow and lazy” (R. 119).



18

also, that in determining whether a confession is voluntary 
or not, the Court should look to the whole situation and the 
surrounding of the accused.” Dewein v. State, 114 Ark. 
472, 170 S.W. 582.14

In reviewing the situation in the instant case, it should 
be remembered that the petitioner was arrested without a 
Warrant,15 and was never carried before a Magistrate as 
required by law,16 either before or after his confession (R. 
65), and this deprived the petitioner of the right to be 
informed that he could have counsel.17 It has already been 
explained, supra, how the petitioner was deprived of food 
and this was accompanied by prolonged questioning.18 The 
petitioner was taken to Little Rock the morning following 
his arrest,19 where he was given a lie detector test (R. 105). 
The suggestion of mob violence was raised twice, the first 
time by the jailer at Dumas,20 who allegedly told petitioner

14 See Brown v. State, 198 Ark. 920, 132 S.W. 2d 15.
15 This was probably in violation of See. 43-403 of the Ark. 

Statutes (1947) as a peace officer may only arrest without a Search 
Warrant when there are reasonable grounds for believing that the 
person arrested has committed a felony.

16 Ark. Statutes (1947) Sec. 43-601, p. 6 herein.
17 Ark. Statutes (1947) Sec. 43-605, p. 7 herein.
18 The petitioner was questioned on the night of the slaying 

(Tuesday) and on Wednesday morning prior to his arrest (R. 64) 
and was questioned again Wednesday afternoon and Wednesday 
night although the approximate length of time is not in the 
record. Petitioner was awakened about six o’clock Thursday morn­
ing and taken to Little Rock for questioning and a lie detector test 
and returned to Pine Bluff late in the afternoon about dark (R. 
124), and was then taken to Dumas (See fn. 20 infra) where 
he was kept awake most of the night by the jailer (R. 90, 126) 
who questioned him.

19 Little Rock is 45 miles north of Pine Bluff.
20 There is a dispute in the testimony as to when the petitioner 

was taken to Dumas. The petitioner contends that it was Thurs­
day night before the confession and the police officer contends 
that it was on Friday night after the confession.



19

that he, the jailer, would be there when the petitioner 
“would be hung” (R. 127), and where references were made 
about a colored kid in Mississippi.21 The most serious 
threat of mob violence was the one suggested by the Chief 
of Police (R. 128, 113, 93) and the petitioner testified that 
he was afraid.22

There is no dispute that prior to the defendant’s con­
fession that two of his brothers and two of his nephews, 
ages 10 and 13, were arrested and brought to the City Jail 
(R. 93, 114, 125) and the petitioner was threatened with 
the arrest of his mother and his entire family “ if I didn’t 
tell the truth” (R. 93, 125).

The trial court and the Supreme Court of Arkansas 
concluded that because “ Several witnesses were present 
when the confession was made and they all testified that 
“ at no time, were there any threats . . . ” of petitioner 
(R. 133), that the confession was voluntarily given. Most 
of these witnesses, however, were people who were brought 
in for the sole purpose of witnessing the formal confession 
(R. 53) and none of them knew anything concerning the 
treatment accorded the petitioner prior to that time (R. 77, 
81, 85). The confession which was admitted into evidence 
was made by the petitioner within approximately thirty 
minutes following his inculpatory statements to the Chief 
of Police (R. 69, 77, 108) and was made at a time when he 
was laboring under the crushing burden of having already 
confessed.23 There had been no significant change in peti­

21 This was probably in reference to the atrocious slaying of 
Emmitt Till near Money, Mississippi, which was in the news.

22 The petitioner mentions the threat at Dumas and Chief Young’s 
threat about “ thirty or forty people outside” as the thing that 
made him afraid and caused him to confess (R. 128).

23 As Mr. Justice Jackson wrote in TJ. 8. v. Bayer, 331 U.S. 532, 
540, once an accused has confessed, “no matter what the induce­
ment, he is never thereafter free of the psychological and practical



20

tioner’s situation from the time of his inculpatory state­
ments until his formal confession and such a confession 
remains coerced as a matter of law unless the State comes 
forward to overcome the presumption created by the facts. 
Mr. Justice Minton stated the general rule when he wrote:

“As in the case of other forms of coercion and induce­
ment, once a promise of leniency is made a presump­
tion arises that it continues to operate on the mind of 
the accused. But a showing of a variety of circum­
stances can overcome that presumption. The length 
of time elapsing between the promise and the confes­
sion, 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 inducement are among the many 
factors to be weighed.” Leyra v. Denno, 347 U.S. 556, 
588.24

A  study of all the surrounding facts in this case should 
lead to the conclusion that not only was the alleged confes­
sion not voluntarily made but that the petitioner was 
denied due process of law in violation of the Fourteenth 
Amendment to our Federal Constitution.25 Even in cases

disadvantages of having confessed.” In V. 8. 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 Butledge’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.

24III Wigmore Sec. 855, states: “  . . . the general principle is 
universally conceded that the subsequent ending of an improper 
inducement must be shown-, i.e. it is assumed to have continued 
until the contrary is shown.” (Italics in original.)

25 The factual situation in Fikes v. Alabama, 352 U.S. -------,
1 L.ed. 2d 246 is very similar to the factual situation in the 
case at bar and there the Court stated that “the totality of the



21

where the Court has upheld the admission of the confes­
sion, they look to all the surrounding circumstances. In 
Stein v. New York, 346 U.S. 156 at page 185, the Court 
said:

“ The limits in any case depend upon a weighing of the 
circumstances of pressure against the power of resist­
ance of the person confessing. What would he over­
powering to the weak of will or mind, might be utterly 
ineffective against an experienced criminal.” 26

Because of the introduction into evidence of the peti­
tioner’s coerced confession, the judgment below should not 
be allowed to stand.

II
Jury Discrimination

The petitioner is a Negro and members of the Negro 
race were systematically excluded or their number limited 
in the selection of the jury panel and of the jury com­
mission where no Negro had ever been appointed to the 
jury commission and where Negroes have represented 
only 4.3% of the persons called for jury service for the 
past 17 consecutive terms in a County where Negroes 
comprise 50% of the total population and 30% of the 
qualified electors and where names were selected from 
poll tax lists on which the race of the elector is shown.

circumstances that preceded the confessions in this case goes be­
yond the allowable limits. The use of the confessions secured 
in this setting was a denial of due process.”  See also Turner v. 
Pennsylvania, 338 U.S. 62 and Johnson v. Pennsylvania, 340 U.S. 
881.

26 This same standard has been followed in other cases. Pikes
v. Alabama, 352 U .S .-------, 1 L.ed. 2d 246; Watts v. Indiana, 338
U.S. 49; Lyons v. Oklahoma, 322 U.S. 596.



22

The Arkansas Statutes provide for the appointment of 
a three man jury commission by the Circuit Judge at 
each term27 and this commission is charged with the re­
sponsibility of selecting from the electors of the County 
a list of grand jurors28 and petit jurors.29 The jurors are 
to be selected from the electors and should be persons 
“ of good character, of approved integrity, sound judgment 
and reasonable information.” The jury commission turns 
the list over to the Circuit Judge who delivers it to the 
Clerk30 and the latter delivers it to the sheriff within 30 
days before the next term of court whose duty it is to 
summons the persons named to attend Court for jury 
service.31

The petitioner filed in proper time his Motion to Quash 
the Panel of Petit Jurors for the October Term, 1955, of 
the Jefferson Circuit Court (R. 2) and alleged that he 
was a member of the Negro race and a resident of Jeffer­
son County, Arkansas and that no member of the Negro 
race had been selected as a jury commissioner in over 
fifty years in Jefferson County; and, that although some 
members of the Negro race had been called for jury duty 
in the County since 1947, “ that Negroes have been dis­
criminated against by an arbitrary and inapportionate 
limiting of their number by the jury commissioners who 
have not sufficiently acquainted themselves with the qualifi­
cations of all potential jurors, and that this was in vio­
lation of the Fourteenth Amendment to the Constitution 
of the United States.

27 Ark. Stat. 39-201, p. 2 herein.
28 Ark. Stat. 39-206, p. 3 herein.
29 Ark. Stat. 39-208, p. 4 herein.
30 Ark. Stat. 39-209, p. 4 herein.
31 Ark. Stat. 39-210, p. 5 herein.



23

The petitioner called several witnesses in support of his 
Motion to Quash the Panel of Petit Jurors. The three 
present jury commissioners either did not know or had 
never heard of a Negro serving as a jury commissioner; 
the County Clerk, Allen Sheppard, answered “ No” when 
asked if he had ever known of a Negro to serve on a 
jury commission (E. 17); the Circuit Clerk, M.. V. Mead, 
testified that he had lived in Jefferson County for 59 years, 
had been Circuit Clerk 12 or 13 years and was County 
Judge and served as a deputy in the Sheriff’s office for 
several years prior to that (R. 19), and that he could 
not remember a Negro having ever served on the Jury 
Commission in Jefferson County. Of nine Negro witnesses 
who had formerly served as jurors in Jefferson County, 
none could remember any Negro having ever served as 
a jury commissioner. This undisputed testimony showed 
conclusively that Negroes have been systematically ex­
cluded from serving as jury commissioners in Jefferson 
County and the Motion to Quash the Jury Panel should 
have been granted for that reason.

The petitioner alleged in paragraph 23 of his Motion 
to Quash the Jury Panel (E. 5) that prior to the March, 
1947, term of the Jefferson Circuit Court, not a single 
Negro had been called for jury service in more than 50 
years. As proof of that fact, the petitioner introduced 
as Exhibit No. 3 to his Motion to Quash the Jury Panel, 
a Motion to Quash the Panel of Petit Jurors which was 
filed in the Jefferson Circuit Court on March 27, 1947, 
in a case then pending, styled, State of Arkansas v. Albert 
Wilkerson, et al. (E. 38). The essence of the motion was 
that no Negro had served on a jury for many years and 
that there was an unlawful discrimination against Negroes 
by excluding them from jury service. The docket entry 
in the Circuit Clerk’s office shows that the Motion was 
granted in the Wilkerson case and the panel quashed 
(E. 43).



24

Petitioner’s Exhibit Number 1 to this motion consisted 
of a certified c o p y  of the 1950 census report of Jefferson 
County, Arkansas, as prepared by the IT. S. Census Bureau 
and showed the total population of Jefferson County in 
1950 to be 76,075, classified as follows :

Native Born
White ................. 37,792 Negroes ................. 37,835

Foreign Born
White ................. 360 Other Races .........  88

Allen Sheppard, County Clerk, testified that he kept 
the official record of the qualified voters within Jefferson 
County and that the race of the taxpayer is reflected 
therein (R. 17). He testified further that he had made 
an actual count to determine the number of white and 
colored qualified electors in Jefferson County for the past 
three years which revealed the following information:

Year Total No. Electors No. White No. Colored
1953 ................ 18,315 12,674 5,641
1954 ................ 18,887 13,157 5,730
1955 ................ 19,452 13,678 5,774

M. Y. Mead, the Circuit Clerk, testified that he kept a 
record of the names of persons who had actually served 
on jury panels in Jefferson County and the said record 
was produced in the hearing on this motion (R. 19). The 
petitioner attempted to prove the total number of Negroes 
who had served on the jury panel in the County since 
1947 by Henry Albright, a deputy sheriff. Mr. Albright 
testified that he had been a deputy sheriff in Jefferson 
County for about 18 years and that he did not think that 
there had been a single Negro juror that he did not know 
personally (R. 21). The Court objected to the petitioner’s 
request that Mr. Albright look at the record of jurors 
from the Clerk’s office and pick out by name those persons



25

whom he knew to he Negroes (E. 22), on the grounds 
that it would unduly delay the trial. Upon the suggestion 
of the trial judge (E. 22), the proof sought by Mr. Al­
bright’s testimony was made by Counsel for the defendant, 
who had already examined the jury record in the Clerk’s 
office.

Wiley A. Branton, attorney for the petitioner, testified 
in the hearing on the Motion to Quash the Jury Panel 
that he had lived in Jefferson County for all of his 32 
years and had been active in political and civic matters, 
had visited the Courts frequently, and felt that he was 
qualified by knowledge to ascertain what persons were 
Negroes by looking at the names on the jury record in 
the Clerk’s office (E. 23). He testified further that he had 
examined the said jury record and found the following 
information:

Term of Court

October, 1947 
March, 1948 
October, 1948 
March, 1949 
October, 1949 
March, 1950 
October, 1950 
March, 1951 
October, 1951 
March, 1952 
October, 1952 
March, 1953 
October, 1953 
March, 1954 
October, 1954 
March, 1955 
October, 1955

Total No. Jurors

..... 31

..... 31

..... 38

..... 24

..... 32

..... 64

..... 29

..... 54

..... 35

..... 31
.....  50
.....  42
...... 46
...... 25
...... 39
...... 40
...... 58

...... 669

Total No. Negroes 

2 
0 
1 
2 
2 
1 
0 
2 
1 
2 
1 
2 
6 
1 
0 
4 
2

29T o t a l



26

Based on the figures just cited, although Negroes com­
prise 50% of the total population of Jefferson County 
and 30% of the qualified electors, Negroes have repre­
sented only 4.3% of the persons called for jury service 
for the past 17 consecutive terms of the Jefferson Circuit 
Court. The highest number of Negroes ever called for 
any term of Court was 6 in the October Term, 1953, and 
this number only represented 13% of the total number 
called. The petitioner contended in paragraph 22 of his 
Motion to Quash the Jury Panel that only 23 different 
Negroes had ever been called for jury service and that 
more than half of those were over the age of 65 years 
(R. 4). As proof of that fact, 9 Negroes who had formerly 
served as jurors testified in the hearing on the motion 
and the average age of the 9 jurors was 68 years and 
they had lived in the County an average of 41 years. Most 
testified that they had never served on a jury until within 
the past 3 or 4 years and 5 of the 9 have served during 
more than one term of Court (R. 26-36). Of the 2 Negroes 
on the present panel, one had died prior to the trial and 
the other was excused for cause. The defendant was tried 
by an all white male jury (R. 129).

Congress has expressly provided that no citizen pos­
sessing all other qualifications shall be disqualified for 
service as a juror in any court on account of race or 
color.32 The Supreme Court of the United States has held 
that “ the constitution of juries is a very essential part of 
the protection such a mode of trial is intended to secure. 
Strauder v. West Virginia (1880), 100 U.S. 303, 25 Law 
Ed. 664. If there is a denial of the right of Negroes to 
serve on juries because of their color, then there has been

32 See Title 18 U.S.C., See. 243.



27

a denial of equal protection of laws as guaranteed by the 
Fourteenth Amendment.33

Since the rulings relating to discrimination on account of 
race apply to grand juries as well as petit juries, the same 
ruling should, a fortiorari, apply to the jury commissioners 
who are charged with the selection of jurors.

The petitioner does not contend that he is entitled to 
proportional representation or that he is entitled to have a 
member of his race on the panel or even on the jury that' 
tries him.34 This court restated the principle that propor­
tional racial representation was not required in Cassell v. 
Texas (1950), 339 U.S. 282, 70 Supreme Court 629 in 
which it stated:

“ Discrimination can arise from the action of Commis­
sioners who exclude all Negroes whom they do not 
know to be qualified and who neither know nor seek 
to learn whether there are in fact any qualified to 
serve. In such a case discrimination necessarily re­
sults where there are qualified Negroes available for 
jury service. With the large number of colored male 
residents of the County who are literate, and in the 
absence of any countervailing testimony, there is no 
room for inference that there are not among them 
householders of good moral character, who can read

33 gee:—HiU v. Texas, 316 U.S. 400, 62 S.Ct. 1159; Patton v. 
Mississippi, 332 U.S. 463, 68 Supreme Court 184; Norris v. Ala­
bama, 294 U.S. 587, 55 Supreme Court 579. This same ruling has 
also been followed by the Supreme Court of Arkansas. Maxwell 
v. State, 232 S.W. 2d 982; Green v. State, 258 S.W. 2d 56.

34 This Court has held that proportional representation is not 
required. See: Commonwealth of Virginia v. Rives, 100 U.S. 313, 
322 25 Law Ed. 667, 670; Thomas v. Texas, 212 U.S. 278, 282, 53 
Law Ed. 512, 513; Akins v. Texas, 325 U.S. 398, 404, 89 Law Ed. 
1692 The Arkansas Supreme Court has followed this same view in 
Washington v. State (1948), 213 Ark. 218, 210 S.W. 2d 307 and in 
Smith v. State (1951), 218 Ark. 725, 238 S.W. 2d 649.



28

and write, qualified and available for grand jury ser­
vice.” 35

The effect of the testimony of jury commissioners Tru- 
lock,36 Bobo37 and Williams38 is to bring the case squarely 
within the holding in Cassell v. Texas, supra in which Mr. 
Justice Reed stated at page 289, “When the commissioners 
were appointed . . .  it was their duty to familiarize them­
selves fairly with the qualifications of the eligible jurors 
. . . without regard to race and color. They did not do so 
here, and the result has been racial discrimination.”

The petitioner contends that while the jury commission 
has gone about to systematically include a few Negroes on 
the panel, they have done so in such a manner as to fur­
ther discriminate against the Negro by restricting the num-

35 The Court was quoting from Hill v. Texas, 316 U.S. 400, 404, 
62 Supreme Court 1159, 1161.

36 (R. 9) “A. . . .  I felt that in the selection of a jury I could 
not take anybody that I didn’t know. He might be a better qualified 
man than the one I would call, but still I  wouldn’t know it, so I 
was limited again by my knowledge of the people whom I was 
trying to select . . .

Q. Mr. Truloek, state whether or not you are personally familiar 
with very many Negroes in this County who might be qualified as 
jurors? A. I don’t think I am sir.”

37 (R. 14) “ Q. Mr. Bobo, how broad is your knowledge of Negroes 
in this County who would be qualified for jury service in your 
opinion? A. That I couldn’t answer. I know quite a few colored 
people. I  have been doing business with them quite a while and 
I know quite a few. A ll of them wouldn’t be qualified, they don’t 
have poll tax receipts, therefore, wouldn’t be eligible for jurors. 
We had to go by the list, people who paid their poll tax.”

38 (R. 16) “ Q. Did you have race in mind when you selected the 
Negroes for the panel? A. Yes.

Q. Did you feel that there should be some on the panel? A. 
Yes.

Q. Did you think it should be on a proportional basis or any 
certain number? A. I didn’t give that any thought.

Q. Was anything said as to how many should be on there? A. 
Nothing in particular. We decided that we should have some on 
each panel. I think we put some on each panel.”



29

ber to such a few that it would be virtually impossible to 
actually get a Negro on a particular jury without the ap­
proval of the prosecutor, even though there may be Negroes 
on the panel.39 40 It should tax the credulity of this court 
to say that mere chance resulted in such few Negroes being 
called for jury service where 50% of this class make up 
the population of Jefferson County and 30% of the qualified 
electors."

The situation in Jefferson County, Arkansas, where but 
a few Negroes have been called for jury service during the 
past 17 terms of court shows a long continued exclusion 
and verdicts returned against Negroes by such juries should 
not be allowed to stand41 as, “ token summoning of Negroes 
for jury service does not comply with equal protection.” 42 
It should also be pointed out that it was easy for the jury 
com m ission to discriminate against Negroes because they 
were furnished with a record of the qualified electors and 
the County Clerk testified that such records show the race 
of the taxpayer (R. 57).43 “ Obviously that practice makes 
it easier for those to discriminate who are of a mind to 
discriminate.” 44

39 The state has ten peremptory challenges in a capital case in 
Arkansas.

40 In Hernandez v. Texas (1954), 347 U.S. 475, 74 Supreme Court 
667, the petitioner established that 14% of the population of 
Jackson County were persons with Mexican or Latin American sur­
names. The petitioner was of Mexican descent and offered evidence 
showing that for the last 25 years there is no record of a person 
with a Mexican or Latin American name having served on a jury 
commission, grand jury or petit jury in Jackson County. The Court 
adopted the “ rule of exclusion” as supplying proof of discrimina­
tion as established by Norris v. State of Alabama, 294 U.S. 587, 55 
Supreme Court 579.

41 Patton v. Mississippi, 332 U.S. 463, 68 Supreme Court 184.
42 Brown v. Allen (1953), 344 U.S. 443, 73 Supreme Court 397.
43 Ark. Stat. (1947) 3-227 Requires that the race of the tax 

payer be shown on the poll tax record.
44 In Avery v. Georgia (1953), 345 U.S. 559, 73 Supreme Court 

891, the jury commissioners printed the names of white persons



30

In Avery  v. Georgia, 345 U.S. 559, the late Chief Justice 
Vinson held the system used there unconstitutional because 
it facilitated discrimination and because the commissioners 
did not follow a nondiscriminatory course of conduct. The 
characteristics which condemned the system in the Avery 
case also doomed the system here. They make discrimina­
tion easier and require following a course of conduct which 
operates to discriminate.

The trial court implied that the jury commission has 
selected many colored people who at their request the 
court has excused and that their names do not show on the 
payroll record because they don’t draw pay (E. 25) and 
the Supreme Court of Arkansas, gave weight to this factor 
when it said “ On the other hand it was shown that many 
others, the numbers undisclosed, had been selected but had 
not served for different reasons” (E. 138). All jurors are 
required under the Arkansas law to attend Court in an­
swer to the summons by the Sheriff,45 under penalty of a 
fine and if they attend and are then excused from serving 
for any cause they are still entitled to a fee of $5.00 even 
though they do not serve.46 Therefore, the payroll record 
was probably an accurate record of all Negroes who had 
been called for jury service.

In any event, the whole of petitioner’s evidence in con­
nection with his Motion to Quash the Jury Panel went un­
contradicted by the State and therefore should have been 
granted.47

on white tickets and of Negroes on yellow tickets, and placed 
them in a box, however, no Negro names were ever drawn from 
the box.

43 Ark. Stat. 1947, 39-212 p. 5 herein.
^ Reece v. Georgia, 350 U.S. 85, 76 Supreme Court 167.
46 Ark. Stat. 1947, 39-301.1 p. 5 herein.



31

CONCLUSION

The petitioner has set forth in his argument a number of 
events which should show that his confession was coerced 
and that he was denied due process of law in violation of 
the Fourteenth Amendment to the Constitution by the in­
troduction of the confession into evidence against him and 
that his conviction which followed should not be allowed to 
stand. The petitioner has also made as strong a showing 
as he possibly could that members of his race were discrimi­
nated against in the selection of the jury commission and of 
the petit jury panel at the time of his trial and for many 
years prior thereto.

Therefore, because of the denial of each of the constitu­
tional rights complained of in this Brief, the petitioner sub- 

' mits that the judgment below should be reversed.

Respectfully submitted,

W il e y  A. B r a h t o n

119 E. Barraque Street 
Pine Bluff, Arkansas 
Counsel for Petitioner



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