Moorer v. South Carolina Appellant's Appendix
Public Court Documents
August 18, 1965
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Brief Collection, LDF Court Filings. Moorer v. South Carolina Appellant's Appendix, 1965. 205198ae-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/95860da4-5e06-40d6-bd55-da3813371848/moorer-v-south-carolina-appellants-appendix. Accessed June 17, 2025.
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In t h e
Gkwrt of Appeals
F or the F ourth Circuit
No. 10,526
Louis Moorer,
■V.
Appellant,
State oe South Carolina and E llis C. MacDougall,
Appellees.
A P PE A L PROM T H E U N IT E D STATE S D ISTR IC T COURT FOR T H E
D ISTR IC T OF S O U T H CARO LIN A, C O LU M B IA DIVISION
APPELLANT’ S APPENDIX
Jack Greenberg
Norman C. A maker
James M. Nabrit, III
Michael Meltsner
10 Columbus Circle
New York, New York 10019
Matthew J. P erry
1107% Washington Street
Columbia, South Carolina
F. Henderson Moore
39 Spring Street
Charleston, South Carolina
Attorneys for Appellant
Conrad K. H arper
Of Counsel
INDEX
Page
Petition for Leave to Proceed in Forma Pauperis.... 1
Affidavit of Louis Moorer in Support of Petition... 2
Petition for a Writ of Habeas Corpus.............. 4
Motion for Leave To File Amended Petition for Writ
of Habeas Corpus........................... . 9
Amended Petition for Writ of Habeas Corpus........ 10
Decision and Order by Haynsworth,Jr. dated May 13,
1965, staying execution of death sentence...... 19
Decision and Order of U. S. Court of Appeals for
the '4-th Circuit dated June 23, 1965 Vacating
Order Dismissing Habeas Corpus Application......22
Order ■'of U.S.District Court, E.D. of South Carolina
dated July 6 , 1965 staying execution of death
sentence....................................... 25
Pre-Trial Order............................... 26
Motion to Withdraw Petitioner's Exhibit 1 To Make
Photostatic Copies Thereof..................... 30
Decision and Order of U.S. District Court, District
of South Carolina, Columbia Division dated
January 3, 1966 Denying Amended Petition for
Habeas Corpus...... 32
Motion for Rehearing................................51
Exhibit Annexed to Foregoing Motion - Preliminary
Analysis of Rape and Capital Punishment in
Louisiana - 194-5-1965...........................56
Exhibit Annexed to Foregoing Motion - Preliminary
Analysis. Louisiana Data. Tables I-XLIII....... 62
Exhibit Annexed to Foregoing Motion - Affidavit
of Dr. Marvin Wolfgang......................... . . 8 6
Certificate of Service of Motion for Rehearing///...90
Additional Affidavit of Dr.Marvin Wolfgang......... 91
Decision and Order of Hemphill, J., dated January
19,1966 Denying Motion for Rehearing............ 95
Notice of Appeal to U. S. Court of Appeals for 4th
Circuit.................... 95
Transcript of Record on Appeal in U. S. District
Court............................................ 97
Clerk's Gerti ficate 100
Transcript of Record in State of South Carolina
Supreme Court, Appeal from Dorchester County,
Griffith, J_............... 152
Verd let............ 152
Sentence...................................... 152
Except i on.................................... 1,55
Excerpts from Appendix - Charge to Jury..... J54
Verdict...................................... 1 .42
Transcript of Record in U. S.District Court for
Eastern District of South Carolina, Columbia
Division..................................... 145
Order Settling Record............................ 200
Transcript of Record in State of South Carolina
Supreme Court, Appeal from Richland County,
Grimball, J_.................. ................200
Testimony in South Carolina Supreme Court
Dorchester County
State's Witnesses:
Mrs. Catherin D. Johnston
Direct - 102
Mrs. Ethel Sharpe
Direct - 110
James M. Sharpe
Direct - 114
Dr. A. R. Johnston
Direct 117
Cross - 120
Wilson Wimberly
Direct - 121
Cross - 126
Sheriff Carl A. Knight
Direct - 126
Cross - 150
Ill
Testimony in United States District Court,
Eastern District of South Carolina, Columbia
Division
Petitioner's Witnesses: Page
John T. Major
Direct - 217
Testimony in South Carolina Supreme
Court,Richland County
Petitioner's Witnesses:
Cecil Merchant
Direct - 262
Cross -- 266
H. H. Walters,Jr.
Direct - 267
Cross - 274
Redirect- 275,277
Recross - 276
EXHIBITS
Petitioner's Exhibits in Tri&l in United States
District Court, Eastern District of South Carolina
1 For Identification - Box of Schedules.........214
2 For Identification - Schedule................. 226
w tm w i t w i m u u a n i o r m m t
mm imi s&srmm mwmict or momm ouhdliha
ootuMUA nsvxflxoci
LOUIS MOORER,
Petitioner,
-va-
STATE OF SOUTH CAROLINA and
ELLIS C. M&cBOUGALL, Director,
South Carolina State Board of
Corrections,
)
)
)
)
)
)
Respondents. }
„_______________)
CIVIL ACTION
NO.
PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Petitioner, Louis Moorer, who is now held
in the South Carolina State Penitentiary, at Columoia,
South Carolina, ask leave to file the attached Petition
for a Writ of Habeas Corpus to the United States District
Court for the Eastsrn District of South Caroline,Colombia
Division without prepayment of costs and to proceed in
forma pauperis. The petitioner's affidavit in support of
this petition is attachsd hereto.
F. HENDERSON MOORE
39 Spring Street
Charleston, South Carolina
BENJAMIN L. COOK, JR.
43 Morris Strest
Charleston, South Carolina
MATTHEW J. PERRY
1107% Washington Street
Columbia, South Carolina
November 30, 1964. Attorneys for Petitioner. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LOUIS MOORER,
Petitioner,
-vs-
STATE OF SOUTH CAROLINA and
ELLIS C. MacDOUGALL, Director,
South Carolina State Board of
Corrections,
Respondents.
)
)
)
)
)
5
)
)
CIVIL ACTION
NO.
AFFIDAVIT IN SUPPORT OF PETITION FOR LEAVE
TO PROCEED IN FORMA PAUPERIS
STATE OF SOOTH CAROLINA )
: SS .
OOUNTY OF RICHLAND )
I, LOUIS MOORER, being first duly sworn
according to law, deposes and say that I am the peti
tioner in the above entitled cause, and, in support of
my application for leave to proceed without being re
quired to prepay costs or fees, state:
1. I aa a citiaen of the United States.
2. Because of my provety I ass unable to
pay the costs of said cause.
3. I am unable to give security for same.
4. I believe I am entitled to the redress
I seek in said cause. 2
5. The nature of said cauaa is briefly
stated as follows:
I have bean convicted of the offense of
rape and sentenced to death. X an filing herewith a
Petition for a Writ of Habeas Corpus in which I contend
that my conviction violated the Fourteenth Amendment to
the United States Constitution.
SWORN to before me this
_____ day of November, 1964.
LOUIS MOORBR
_____________________ ___________ (SEAL.)
Notary Public for South Carolina
3- 3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LOUIS MOORER,
Petitioner,
-va-
STATE OF SOUTH CAROLINA end
ELLIS C. MecDOUGALL, Director,
South Caroline State Board of
Corrections,
)
)
)
)
)
)
Respondents. )
_________________)
CIVIL ACTION
NO.
PETITION FOR A WRIT OF HABEAS OORPUS
TO THE HONORABLE JUDGES OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF SOUTH CAROLINA;
The petition of Louis Moorer respectfully
shows to thi# Honorable Courts
1.
Petitioner is now unlawfully restrained of
his liberty at present in custody of Ellis C. MacDougall,
Director of the South Carolina State Board of Corrections
at the South Carolina State Penitentiary at 1515 Gist Street,
Columbia, South Carolina, in violation of the Constitution of
the United States of America, awaiting the infliction of
death (sentence electrocution against his will for the alleged
crime of rape.
4
2.
The fact* in connection with the aforesaid
detention and pending infliction of the death sentence
will be presented to this Court, including proceedings
originating out of the Court of General Sessions for Dor
chester County in the State of South Carolina, the Court
of Common Pleas for Richland County, South Carolina and
all proceedings before the Supreme Court of the State of
South Carolina and its decisions thereon.
3.
Upon the trial of petitioner in said Court
of General Session® for Dorchester County, State of South
Carolina, petitioner was convicted of the crime of rape
which judgment of conviction was, upon appeal to the
Supreme Court of the State of South Carolina, affirmed.
St*te v. Louis Moorer. 129 S.E.(2d) 330. Thereafter, a
petition was filed in the Court of Common Pleas for Richland
County, South Carolina for a Writ of Habeas Corpus which
petition was denied. The Supreme Court of South Carolina
affirmed the Order denying the Petition for Writ of Habeas
Corpus. Louis floorer v . State of South Carolina, etc., at
al., 135 S.B.(2d) 713. Thereafter, a petition was filed in
the Super®® Court of the United States for a Writ of Cer
tiorari which petition was denied October 12, 1964.
U.S._________ _ .
4,
Petitioner complained and complains that he
was not accorded a fair trial and begs leave to submit upon 5
-a-
th* hearing herein the records in the course of the pro
ceedings heretofore had in connection with the indictment
and conviction and the appeals therefrom wherein and where
from this Court nay be apprised of the contentions of
petitioner and petitioner prays that such records be deemed
to have been made a part of this petition by reference.
Petitioner further desires to present additional evidence
in support of his contention that his conviction in the
State Court violated the Constitution of the United States.
5.
Petitioner complained in his State Court
Habeas Corpus proceedings and complains here that th® indict
ment returned against him in Dorchester County, South Carolina,
was returned by a grand jury from which members of the Negro
race of which petitioner is a member, were and are systema
tically excluded or limited in number in violation of
petitioner's right to due process of law under the Fourteenth
Amendment to the Constitution of the United States.
6.
Petitioner complained in his State Court Habeas
Corpus hearing and contends here that the petit jury which
convicted him was drawn and convened in such a manner as to
exclude members of the Negro race, of which race petitioner
is a member, or to systematically limit in number their service
upon the petit juries of Dorchester County in violation of
petitioner'® right to process of law under the Fourteenth
Amendment to the Constitution of the United States.
-3-
6
7.
Petitioner was convicted and sentenced to
daath for having allegedly viol*tad Section 16-71, Coda
of Law* of South Carolina for 1962, which statute is so
vague upon its face and by application to petitioner as
to offend the due process clause of the Fourteenth Amend
ment to the United States Constitution,
8.
Petitioner's sentence of death was imposed
pursuant to Section 16-72, Code of Laws of South Carolina
which statute is upon its face and aa applied to petitioner
under the circumstances of this case in violation of the
Constitution of the United States, in that!
(a) Said statute requires imposition of a
cruel, inhuman and unusual punishment in violation of the
Eight and Fourteenth Amendments to the United States Con
stitution.
(b) Said statute denies petitioner the
equal protection of the laws guaranteed by the Fourteenth
Amendment to the United States Constitution.
9.
Petitioner has now exhausted all remedies
before the Courts of the State of South Carolina.
10.
No previously application for the relief
sought herein has been made to this Court or any Judge r,
thereof.
-a-
Habeas Carpus, directed to Ellis C. MacDougall, Director
of South Carolina State Board of Corrections, by whoa
petitioner is detained and by whoa execution of petitioner's
sentence of death is ordered to be carried out, issue for
the purpose of inquiring into the cause of said imprisonment
and restraint and of delivering hia therefrom pursuant to
the statute in such cases made and provided.
WHEREFORE, petition** pray* that a Writ of
November 30, 1964. ________________________________
t. HENDERSON MOORE
39 Spring Street
Charleston, South Carolina
BENJAMIN L. COOK, JR.
43 Morris Street
Charleston, South Carolina
MATTHEW J. PERRY
1107% Washington Street
Columbia, South Carolina
Attorneys for Petitioner.
8
-5-
pern
ooummih m n m m
w w m memrn,
Pmtlti
>
)
)
)
st a t s or .s o u t h a m l i ma and
ELLIS C. NttcODCCALL. director, )
South Csrslla* &tmtm sk»*.rd a£
Corrections, )
CIVIL ACTION
NO.
JSttSpwMiMit*. }
1
NOTION PC'S L&AVB TO FILS. AMRMOK0 W I T M l
FOR WRIT OF liAIBAS 03RPW8
,»*t it loner Louis M M M t , respectfully *.v«»
the Court for lesvs to file th« «m c l >4 Attended Petit ia«*
far W i t of fishes# Carpus per asset to Title 31 U. S. C.
Section 5343.
'ley 13, IfPS.
M O M W J. r̂iSKV
1107% Washington Street
Colwnhi*, Couth Caro i ».«*
F. W * ® a » Q « Moose
Spring Street
Cheriest®*, South Caroline
amjutrut l . a x * , j«.
43. Norris Street
Charleston, South Caroline
Attorseye for .^titi otter
9
IN THE UNITED STATES DISTRICT ODUET
FOR THE SASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LOUIS MOCKER,
Petitioner,
-vs-
STATE OF SOUTH CAROLINA and
ELLIS C. MacDOUGALL, Director,
South Caroline State Board of
Correction*,
Respondenta.
CIVIL ACTION
NO.
AMENDED_PETITION.FOR WRIT OF HABEAS OORPUS
IT- THE HONORABLE ROBERT W. HEMPHILL, UNITED
STATES DISTRICT JUDGE;
The amended petition of Louis Moorer reapect-
fully shows to this Honorable Court;
l.
Petitioner ia now unlawfully restrained of his
liberty at present in custody of Ellis C. MacDougall,
Director of the South Carolina State Board of Corrections
at the South Carolina State Penitentiary at 1515 Gist
Street, Columbia, South Carolina, in violation of the
Constitution of the United States at Aeerica, awaiting the
Infliction of death sentence by electrocution against his
will for the alleged crime of rape.
10
TIM facts in commotion with the aforesaid
detention and pending infliction of thm dnnth eentence
will be presented to this Court, including proceedings
originating out of the Court of General Sessions for
Dorchester County in the State of South Carolina, the
Court of Common Pleas for Richland County, South Carolina
and all proceedings before the Supreme Court of the State
of South Carolina and its decisions thereon.
3.
Upon the trial of petitioner in said Court of
General Sessions for Dorchester County, State of South
Carolina, petitioner mi convicted of the crime of rape
which judgment of conviction was, upon appeal to the
Supreme Court of the State of South Carolina, affirmed.
State v. Louis Moorer, 129 S.E.(2d) 330. Thereafter, a
petition was filed in the Court of Common Pleas for Rich
land County, South Carolina for a Writ of Habeas Corpus
which petition was denied. The Supreme Court of South
Carolina affirmed the Order denying the Petition for Writ
of Habeas Corpus. Louis Moorer v. State of South Carolina,
®! *1•» 133 S.B.(2d) 713. Thereafter, a petition was filed
in the Supreme Court of the United States for a Writ of
Certiorari which petition was denied October 12, 1964.
U.S. ,13 L.Ed. 3d 63.
4 .
Petitioner complained and complains that he was
not accorded a fair trial and begs leave to submit upon the
2.
-2 11
hearing heroin tit* record* in th# course of tit# proceeding*
haret©fore bad in connection with tit# indictront and con
viction and tbs appeal* tb#r#from wheraia and wh#r#fro« this
Coart nay to# apprised of tit# cont«ntion* of petitioner and
petitioner px*ym that aach records to# deemed to have been
nad* a part of thia petition by reference. Petitioner
further deairaa to pr#a#nt additional evidence In support
of his contention that his conviction in th* Stat# Court
violated th* Constitution of the United States.
S.
Petitioner's restraint and detention violate
th* due process and equal protection clause* of th* Four
teenth Anendnent to the Constitution of th* United State*
in that he was indicted by a grand jury and convicted by a
petit jury from which members of the Negro race, of which
petitioner is a member, war# systematically and arbitrarily
excluded or limited in number:
a) Negro*# constitute in excess of 40 par
cent af the adult population of
Dorchester County.
b) Negroes constitute in excess of 10 per
cent of the registered voters in South
Carolina.
c) Negros# constituted only 6.7% of the
persons on grand juries in Dorchester
County between 1950 and 1963.
d) On 4 of the 9 petit jury venires drawn in
Dorchestar County between 1958 and 1963,
12
• ) On the § petit Jury v m i m drawn in
Dorchester County between 1*56 and
1*62, only 2.1* of the peracme drawn
wire Negro**, and no mare than 2
Megroea were placed on any petit jury
venire.
t) Between 1*48 and 1*62, no Negroee
actually aat on petit jariea in Dor-
cheater County.
g) The token mother of Negroee placed on
petit jury veairee are conaiatently
challenged or etricken, ao that Negroea
are prevented fro* earvice on petit
jttriea.
h) All jury c o m ! aaionera in Dor cheater
County are whit*.
i) Prospective juror* are choaan fron
voting regiatratlon liata which dealgnat*
the race of each voter.
6 .
Petitioner’a raatraint and detention violate* the
du* proceaa clause of the Fourteenth Amendment to the
Constitution of the united States in that he waa taken into
Court, at tha coananceneat of the tern of Court in which he
wee tried, end was subjactad to an arraignment proceeding on
m Negroes war* om the pttit Jury
15
April 3, 1962 without an attorney and was not advised by the
Court nor by any other official of the right to be represented by
an attorney during said arraignment proceeding or of the
right to consult with an attorney prior thereto. The arraign
ment of April 2, 1962 was a critical stage of the proceedings
in that it was a prerequisite to the validity of a waiver of
defendant's rights under Section 17-408, Code of Laws of
South Carolina for 1962, which allows a defendant to have a
copy of the indictment for three daye before being brought
to trial. Petitioner was tried on April 4, 1962, over
objection of counsel, less than three days after being pre
sented with a copy of the indictment. The Honorable John
Gri. inball, Judge of the Fifth Judicial Circuit, who denied
petitioner's petition for habeas corpus, erred in finding
that petitioner had counsel at his arraignment of April 2,
1962.
7.
Petitioner’s restraint and detention violates the
Fourteenth Amendment to the United States Constitution in
that petitioner was not given an accurate, unequivocal and
complete record of all proceedings in the Court of General
Sessions for Dorchester County preceding this conviction and
sentence of death.
8.
Petitioner's restraint and detention violates
the due process clause of the Fourteenth Amendment to the
Constitution of the United States in that he was subjected
to a preliminary hearing or some other pre-trial proceeding
14
-5-
without an attorney and without being advised of the right
to have an attorney present or of the right to consult with
an attorney prior to the commencement of said proceeding.
9.
Petitioner's restraining and detention violates
the due process clause of the Fourteenth Amendment to the
Constitution of the United States in that he was tried and
convicted of a capital offense, to wit: rape, and was at
no time given a true copy of the whole indictment against
him as is required by Section 17-408, Code of Laws of South
Carolina for 1962.
10.
Petitioner's restraint and detention violates the
due process clause of the Fourteenth Amendment to the
Constitution of the United States in that he was tried,
convicted and sentenced to death for having allegedly
violated Section 16-71, Code of Laws of South Carolina for
1962 which statute is upon its face and as construed and
applied to petitioner, vague, indefinite and uncertain.
11.
Petitioner has been deprived of due process of
law and the equal protection of the laws in violation of the
Fourteenth Amendment to the United States Constitution, in
that he was convicted without evidence of every essential
element of the crime, and in particular there was no evidence
of penetration.
12.
Petitioner wse deprived of due process of law and
the equal protection of the laws in violation of the
-6-
Fourteenth Amendment to the United State* Conatitution in that
the trial court allowed several witnesses to testify in the
presence of the jury that a voluntary statement had been taken
from the defendant soon after his arrest. This testimony was
highly prejudicial to defendant since it strongly suggested
that defendant had voluntarily confessed, and the issues of
admissibility of a confession must be decided before trial by
the court and out o . the presence of the jury.
13.
Petitioner's sentence of death was imposed pursuant
to Section 16-72, Code of Laws of South Carolina for 1963,
which statute is upon its face and as applied to petitioner
under the circumstances of this case, in violation of the
Fourteenth Amendment to the Constitution of the United States,
in that:
a) Said statute authorises imposition of a
cruel, inhuman and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the Constitution of the
United States.
b) Said statute denies petitioner equal protection
of the law and due process of law under the Fourteenth Amend
ment to the Constitution of the United States in that there
has been an unequal application of said statute and in that
there is and has been a long standing practice, policy and
custom of sentencing Negro men to death for rape upon white
momen while not inflicting that punishment upon any other
per son.
-7- 16
14.
The constitutional claim raiaad in Paragraph 9
abova was raisad at petitioner's trial and passad upon adversely
to petitioner by tha Supr ema Court of South Carolina, affirm
ing the conviction. State v. Moore?. 241 S.C. 487, 129 S.E.
(2d) 330 (1963). The constitutional claims made in Paragraph
5, 6, 7 and 8 war® raised on petitioner's petition for habeas
corpus in the Fifth Judicial Circuit of South Carolina and
decided adversely to petitioner by that Court and by the
Supreme Court of South Carolina affirming the denial of habeas
corpus. Moorer v. State, S.C. ___ , 133 S.E.(2d) 713
(1964). The remaining constitutional claims herein set forth
were decided adversely to petitioner in an Order of the South
Carolina Supreme Court dated May 11, 1965.
15.
No previous application for the relief sought
herein has been made to this Court or any judge thereof.
WHEREFORE, petitioner prays that a Writ of Habeas
Corpus, directed to Ellis C. MscOougall, Director of South
Carolina State Board of Corrections, by whom petitioner is
detained and by whom execution of petitioner's sentence of
death is ordered to be carried out, issue for the purpose
of inquiring into the cause of said imprisonment and res
traint and of delivering him therefrom pursuant to *>e statute
in such cases made and provided.
May 12, 1965.
MATTHEW J . ‘PERRY
1107% Washington Street
Columbia, South Carolina
F. HENDERSON MOORE ^
39 Spring Street
Charleston, South Carolina
-8-
BENJAMIN L. COOK, JR.
43 Morris Street
Charleston, South Carolina
Attorneys for Petitioner
STATS OF SOUTH CAROLINA )
ss.
COUNTY OF RICHLAND )
PERSONALLY appeared before me Louis Moorer
who, on oath, deposes and says- That he is the petitioner
herein; that he has read the faregoing Amended Petition
for writ of Habeas Corpus and knows the contents thereof,
and that the sane ia true of his awn knowledge, except as to
the matters therein stated to be alleged upon information
and belief, and as to those matters he believes it to be
true.
LOUIS MOORER
SWORN to Da fore a*s this
day of .'say, 1965.
...... ....................... ..... . (SEAL)
Notary Public for South Carolina
18
-9-
‘U-.-V
F I LZ e nBHITED STATES COURT OF U m i l *“ ^
t o r r m fourth circuit MAY 1 31965
S o . 1 0 ,0 4 3 MAURICE S. DEAN
CLERK
Louis Mooiw,
varous
State of South Carolina and Bills C.
HacDougall, Director, South Carolina
State Board of Corrections,
Appellant,
Appellees.
Appeal fro® the United States District Court for the Eastern
District of South Carolina, at Charleston.
The appellant has applied to me for a stay of execution
of a sentence of death now scheduled to be executed tomorrow.
May 14, 1963.
The appellant has filed a proper notice of appeal frcm
an order entered in the United States District Court for the
Eastern District of South Carolina on May 12, 1963, denying
an amended petition for habeas corpus. The motion for stay
is for the purpose of protecting the jurisdiction of the
United States Court of Appeals during the pendency of the
appeal.
The record on appeal discloses several proceedings in
the state courts, in Which there are a number of asserted
claims of denial of rights protected by the Constitution of
tha United States. The amended petition for corpus in
r. r
the District Court and tha earlier petition in that Court
sought relief upon those grounds. It further appears that
the District Court has not considered the constitutional
claims upon their merits. There has heea no evidentiary
hearing in the District court and. so far as now appears In
tha xeeord on appsal. no raviev in the District Court of the
state court proceedings to consider whether or not in the
state proceedings the federal claims have Dean fairly heard
and determined.
On their face. X cannot say that the federal constitutional
claims are frivolous or that the appeal is not without probable
merit. Indeed, the District drudge certified, for the purpose
of protecting the rights of the appellant, the existence of
probable cause to appeal.
Xn these circumstances, execution of the sentence would
effectively deny the right of appeal, and a stay of the
execution is essential for the protection of the jurisdiction
of the United States Court of Appeals to hear and determine
the appellant's rights in the premises.
There is also before me a petition of the appellant for
leave to proceed in forma pauperis, for the reasons stated
above. X have determined to grant the petition for leave to
proceed without prepayment of fees, to certify the existence
of probable cause to appeal, and to order a stay of the
execution pending the determination of the appeal is the
- 2 -
so
v. X.
United State® Court of Appeals fox the fourth Circuit.
It 28 n m p , therefore, that the appellant bo, and
ho io hereby permitted to prosecute his appeal la this
Court in the above entitled case in forma pauperis in
accordance with Title 2d, V.S.C., g 1915, without the pro-
payment of costs or the giving of security therefor*
FURTHER ORDERED that the Clerk of this Court file the
preliminary record on appeal and docket the appeal as of
May 13, 1965.
FOWHEft ORDERED, upon consideration of the petition
and pursuant to the authority under Title 23, U.S.C., f
2251, that the execution of the sentence of death imposed
by the Court of General Sessions of Dorchester County, State
of South Carolina, be, and the same is hereby, stayed pending
the termination of the appeal herein or the further order of
tha Court.
Clement 7. Haynsworth, Jr.
Chief Judge, Pourth Circuit
May 13, 1965
A. true copy,
T e s t e :
JlQUuUuu^ ̂
U. C^urt of Appeals for the
Fourth Circuit
^ Clerk,
- J -
21
versus
f ■
State of South Carolina
| and Ellis C. MacDougall,
j.V; Director, South Carolina
I State Board of Corrections,
■i- ' ' ' ■„ . ■'t ■
JUN gs 1965
MAURICE S. DEAN
CUKK
Appellees.
; ;;
Appeal from the United States District Court for the Eastern
District of South Carolina, at Charleston. Robert W. Hemphill,
District Judge. j
■ '• . ' i' - . ■ ' • : • . I
Submitted
(Beeided ^ 3 1965.- Decided June 23, 1965)
• ' . i •
Before HAYNSWORTH, Chief Judge, and SOBELOPF and J. SPENCER
BELL, Circuit Judges.
Matthew J. Perry, F. Henderson Moore and Benjamin L. Cook,
Jr., on brief for Appellant, -.Daniel:'Ri McL&od* Att6rneyf)~..
General of South Carolina, counsbl fbr . Appellee.-,
\aigiJ
PER CURIAMJ
At issue before us on this appeal, which by agreement of the
parties has been submitted on brief, is the correctness of the
district judge's action on May 12, 1965, in dismissing an amended
petition for a writ of habeas corpus filed by Louis Moorer, a
Negro male who is currently awaiting death by electrocution pur
suant to a sentence imposed upon him by the Court of General
Sessions for Dorchester County, South Carolina, after his con
viction for rape on April 4, 1962. Moorer's conviction was
affirmed on appeal, State v. Moorer, 241 S.C. 487, 129 S.E.2d
330 (1963), and subsequently South Carolina's highest court
upheld the denial of a writ of habeas corpus to him by the state
court to which his petition had been addressed. Moorer v. State,
244 S.C. 102, 135 S.E.2d 713, cert, denied, 379 U.S. 860 (1964).
Although it alleged several nonfrivolous deprivations of
his constitutional rights, Moorer's habeas corpus petition was
dismissed without either an evidential hearing or a consideration
of the record and transcripts of the state court proceedings. In
so doing, we think the district judge was in error.
It appears to us from the record that on .all the constitutional
claims he has asserted, the petitioner has exhausted his available
state remedies, and that consideration and review of them by a
federal tribunal is now •appjepriat®. Despite the fact that this
petitioner has made several journeys through the South Carolina
judicial system and presumably has had a full and fair day in
court on each occasion, we emphasize that in situations like the
present one, it is the responsibility of the federal courts to
make the final resolution of federal. g?r>PwltUtlgnaj lfiflUfiS.*
-2-
2.3
State courts, no less than federal courts, have a duty to respect
and diligently give effect to the safeguards of personal liberty
written into the United States Constitution; but where a citizen
charges that his fundamental rights have been infringed, the federal
courts have an obligation to review independently the state court
proceedings to determine whether the findings of fact are fairly
-suggested by evidence of record and the conclusions of law are
correct. Townsend v. Sain, 372 U.S. 293 (1963).
The judgment of the court below dismissing the habeas corpus
application is vacated, and the case is remanded in order that the
district court may hold a plenary hearing in due course on factual
issues raised in the petition and undertake an independent review
of the state court legal conclusions on Constitutional points.
The district court will of course desire to enter an order staying
Moorer's execution until all issues pertaining to the abridgment
of his Constitutional rights have been finally resolved.
Vacated and remanded with instructions.
-3-
IN THE DISTRICT COURT OP THE UNITED STATES
FOR THE EASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION '
CIVIL ACTION NOy AC-1583
LOUIS MQORERijl
Petitioner/
)
vs. )
)
STATE OF SOUTH CAROLINA and ELLIS Cjjj )
. MacDOUGALL/j Director’/ South Carolina )
State Board of Corrections, )
)
Respondents. )
f i l e d
JUt. 6
HELIN BAEEUUND
: v...
O R D E R
In accordance with the PER CURIAM decision of the
Fourth Circuit Court of Appeals, vacating the decision of
this Court, and directing that "a plenary hearing" be held
“on factual issues raised in the petition" and that
"independent review of the state court legal conclusions on
Constitutional points" be had,
IT IS ORDERED, upon this direction, and pursuant
to the authority given this Court under Title 28 U.S.C. § 2251,
that the execution of the sentence of death imposed by the Court
of General Sessions of Dorchester County, South Carolina^ be,
and the same is hereby stayed pending the termination of further
consideration by this Court, or the further Order of this Court.
.AND IT IS SO ORDERED;.1
Columbia/ South Carolina
July 6/1965.
ROBERT WJij HEMPHILL
United States District Judge
A TRUE COPY, ATTES't.
or n.». Disnuo* oovrw
w.Afi* 0T8T. 04EOU10
25
f
»
Xar x b s d is tr i ct c o o e t o f Fas o r x s o s ta t e s
*0* SHE EASTERN DISTRICT OF SOCHI O W W
CaZXMBIA DIVISION
Civil. ACTIOS NO. AC-1383 f i l e d
£00X8 HOOKER,
Petitioner, )
)
)
>
AUG 4 1965
-HELEN BREELAND
cd .c.u.s,e.d.&c.
>
j gM^TRIAL ORDER
STATS OF scans CAROLINA and ELLIS C. )
KacEOUGALL, Director. South Carolina )
State Board of Correction*, )>
)
)Respondent*.
F o m e n t to and in accordance with the direction in
the opinion of the United state* Circuit Court of Appeal* for
the Fourth United State# Circuit, dated dun* 23, 1965, thi* Court
proceed* to determine from a rehearing and « reconsideration of the
record and the transcript*, the various issues raised in the —
petition of Hay 12, 1963, in the above styled matter. Hoorer
having charged that his constitutional rights have bean infringed,
this Court ha* an obligation to review independently the State
Court proceedings to determine whether the findings of fact are
fairly supported by evidence of record and the conclusions of lav
ar* correct, a* discussed in Townsend v. Sain. 372 0.8. 293 (1963).
States District Court for the Eastern District of South Carolina,
Columbia Division, on July 14, 1963. Counsel were asked if there
was any objection to the exclusion of the press, if the press
appeared, and counsel assured the Court that nor* progress at pre
trial could be expected in the absence of the press. Fortunately,
the problem did not arise.
Pre-trial conference was had in Chambers of the united
26
r; Paragraph five of the amended petition alleges violation
of the du* process and equal protection c U n u t , Noorer claiming
W o indictment by Grand Jury and his ooavictioe^, by in
«hich mesfeers of the Begro xoeo, of n M d t ho is a member, m o o
systematically and arbitrarily excluded or limited in number.
Shis issue w h s presented to tho South Carolina Supreme Court aftor
being presented to South Carolina Circuit dodge Grlafeall in a
corpus proceeding twhich subsequently was given a rehearing by
Jttdge GrimballJ but was not presented at the original trial.
Petitioner, in this Court, seeks to base his prayer for relief upon
statistical calculations, which do not appear appropo to thia
particular case. The Court presently is of tho opinion that there
was sufficient evidence developed and aired to sake a determination
in accordance with the mandate of Townsend v. Sain. supra. Counsel
for petitioner will be afforded an opportunity to argue the alleged
inadequacy of this evidence, if he feels so advised, to protect
petitioner's rights.
Paragraph six of the petition e— yTwlps of tho arraignment
of defendant in tho absence of counsel, it appears from the record
of trial that defendant was rearraigned in tho presence of counsel
and it further appears that in the habeas corpus basing before
South Carolina Fifth Circuit Judge John Grlstball that witnesses
were heard and that a full evidentiary hearing was had on this
issue. Zt searns patent that no further evidence is necessary for
a constitutional consideration of this issue. Accordingly, no
evidence thereabout will be necessary in the hearing before »*»«e
Court. Petitioner will, of course, have the right to present
argument to the Court as to why more evidence is necessary, if
he is so advised.
- a -
27
Paragraph saves alleges that ^petitioner was not given
an accurate, unequivocal and complete record of proceedings
in the Court of General Sessions . . . preceding this conviction
and sentence of death." Counsel for petitioner has «r.n/-yi1r* that
there is no need for an evidentiary hearing on this issue.
Accordingly, there will be none.
She thurst of paragraph eight was that the Sheriff had
that petitioner had made a "statement” or "confession"
at a preliminary hearing. Share was no request for an evidentiary
hearing on this issue; determination can be made from the record.
Paragraph nine alleges that petitioner was never given a
true copy of the whole indictment against him as required by j 17-408,
8. C. Code, 1862. There was and is no question but that petitioner
was not given a copy of the indictment at the time of his arraign
ment. Counsel will have the opportunity to argue the legal impact
of this denial.
She issue raised in paragraph tea, which alleges that
S 16-71, 8. C. Code, 1962, (the statute which defines rape), is
upon its face and as construed and applied to petitioner, vague,
indefinite and uncertain. Counsel agreed that no evidentiary
hearing is necessary thereabout and that the matter would be
presented to the Court by way of legal argument.,
As to paragraph eleven of the May 12 petition, counsel
agreed at the hearing that no evidentiary hearing was necessary
but that the sufficiency of the evidence to sustain the conviction
would be fully explored by counsel in legal argument at the bearing
hereinafter discussed. Counsel are free to make reference to any
and all transcripts and shall be prepared to cite to the Court
relevant portions and pages thereof.
•* 3 «*
28
Counsel agreed that the natters set forth in paragraph
tveive of the petition were first raised is this petition. MO
evidentiary hearing was requested, after discussion, and the issue
to be discussed and argued before the Court is whether or not the
alleged confession was voluntary, which includes the question of
whether the jury should have been excused during the m s e ssion,
thereabout in the Court of General Sessions for Dorchester County
on trial of the cause.
Paragraph thirteen alleges that f 16-72, S. C. Code, 1962,
(which prescribes the death penalty for conviction of rape) upon
its face and applied to petitioner under the drcuastanoee here
violates the fourteenth Amendment in that*
a) it imposes a cruel and unusual punishment* and
b) there has been unequal application of this
statute and a long standing practice, policy, and
custom of “sentencing Negro men to death for rape
upon white women while not inflicting this punish
ment upon any other person."
fart “a" clearly presents a natter of law for the Court and counsel
agreed that no evidentiary hearing was necessary or warranted.
As to subparagraph “b*, this Court must determine, and
counsel are directed to advise, as to (1) the constitutional
dimunition claimed; (2) the basis or competency of any statistical
evidence sought to be introduced; (3) whether the parties can
stipulate satisfactorily to the end that the Court can rule on
this contention as a matter of law; and (4) whether the "logical
extreme* of the "evidence" possible in this case will have a
salutory effect on the proper administration of justice. Of
course, the question of unconstitutional application, if such
exists, of the statute with reference to RAPE may be fully argued
in this hearing.
nothing herein shall limit the right of petitioner to .
present fall argument on any of the issues, or to •eke a notion
that the plenary hearing hereinafter directed be snore ■exhaustive"
SJ.?
than the foregoing euggeats.
Counsel agreed that it would not be necessary for petitioner
to be present at the bearing, that hie absence therefrom would in
no wise deny him any constitutional right as neither counsel nor
the Court find it necessary to take his testimony on eny issue
considered*
Counsel will confer in advance of hearing to ascertain
if stipulations can be agreed upon and will advise the Court
thereabout in the briefs mentioned below*
A plenary hearing will be held la the courtroom of the
United States District Court at Columbia, South Carolina, at
10*00 A. K., August 18, 1965, and continue thereafter until
consansaated* five days in advance of said bearing, counsel trill
present the Court with a brief expressing fully upon the legal
and factual issues set by this Order and by agreement, and shall
present agreed stipulations. In said brief shall be noted all
appearances expected at the hearing and a statement as to the
approximate time desired for presentation and argument.
Other hearings will be had upon justification shown.
a d d It IS SO ORDERED.
ROBERT W. -iiEMFEXIiI<
~ ~ ROBERT W . BEMJPHHJ,...................
United states District judge
ColumbiSf South Carolina
A TRUE CUPi. m 'ibbi.
or O. 8. niSTBIOT ĈTTST
29
\
IN THE
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LOUIS MQOREft,
j Petitioner,
-v*-
STATE OF SOUTH CAROLINA and ELLIS C. tecDOUGALL, Director, South Carolina State Board of Correction*,
Respondent*.
MOTION
Petitioner, Loui* Atoorer, by hi* attorney*, respectfully
moves the Court for leave to withdraw Petitioner** Exhibit 1 for
the purpose of making photostatic copies thereof.
At the hearing on the amended petition for writ of habeas
corpus held on August IS, 1965, petitioner presented a cardboard
carton containing 355 forms, or schedules, entitled •Capital
Punishment Survey,* each schedule consisting of 28 printed pages
and containing information gathered by researchers on cases re
sulting in conviction of rape in several South Carolina counties.
The Court ordered that the carton be sealed and marked Petitioner's
Exhibit 1, with permission to withdraw the exhibit or make photo
static copies to be granted only upon submission of a motion show
ing good cause.
Petitioner requires the schedules comprising Petitioner's
If
)
}
)
) CIVIL ACTION No.
)
)
)
30
i f
Exhibit Mo. 1, or a photoatatic copy thereof, to that’scientific
analysis and computation can ba conducted on the basis of the in
formation contained in the schedules. Such analysis and computa
tion are necessary for purposes of scientific research and for
further use of the materials in this litigation.
The gathering of data contained in Exhibit No. 1 was conduct
ed at great expense,over a period of savaral months,and with
considerable care end preparation. Petitioner does not have a
copy of the schedules comprising Exhibit No. 1. The gathering of
data had not been completed in time for duplication of the sched
ules by August 18, 1965.
if this motion is granted, counsel for petitioner will
supervise the process of duplication, insure that the exhibit
is in no way altered, and promptly return the exhibit to the Court.
Petitioner will pay the cost of copying the materials.
jMTHE# y. PEAKY y
lljO?̂ Washington Street Columbia, South Carolina
F. HENDERSON MOORE 39 Spring Street Charleston, South Carolina
BENJAMIN t. COOK, JR.42 Morris Street
Charleston, South Carolina
JACK GREENBERG FRANK HcFFAON
10 Columbus Circle Suite 2030New York, N. Y. 10019
Attorneys for Petitioner
2
I-
ts THE DISTRICT COURT OF THE SUITED STATES
FQK THE DISTRICT OF SOUTH C&SOIdHS
COLUKB2A DIVXSXOS
CtVXD ACTIOS HO. AC-1583 V
LOUIS MOOSES,
' \ %
Petitioner,
vs.
STATE OF SOUTH ORHQLISA and ELLIS C.
KacDOUG&LL, D irector, South Carolina
S tate Board of C orrection s,
Respondents.
Before the United States D is t r ic t Court f o r th e D is t r ic t o f South
Carolina, a t Columbia, South C arolina. Robert W. Hemphill
D is t r ic t Judge.
Heard August 13, 1965 Decided January 3, 1966
Matthew J . Perry, Esquire, Columbia, S . C ., and Frank H. Hefrron,
iisquire, o f Hew York C ity , fo r p e t it io n e r . Honorable Daniel R,
McLeod, Attorney General o f South C arolina, Columbia, S. C .,
Edward B. Latimer, Esquire, A ssistant Attorney General, Columbia,
S. C ., E. H. Brandon, Esquire, A ssistant Attorney General, Columbia,.
S. C ., and Julian S . N olle , S o l ic it o r , F irs t C ir cu it , Orangeburg,
32
Pursuant to d ir e c t io n of tb s United States Court of Appeals
fox the fourth Judicial C ir c u it 1 this Court undertook further proceed
ings herein. This2 p resen ts to this Court again questions which have
been previously d ecid ed o r new q u e stio n s obviously pursued for delay.
As noted by United S ta tes C ir c u it Judge3 Jean S. Breitenatein in a
recent presentation t o a Seminar o f United States Judges at Denver.
Colorado*
A fte r in ca rce ra t io n th e p r iso n e r s t a r t s t o b rood
o v e r every th in g th a t has happened between a r re s t and
sen ten ce . B is d is s a t i s fa c t i o n i s encouraged by th e
ja i l -h o u s e law yers who are t o be found in c o s t penal
in s t i t u t io n s . Soon he i s bombarding th e ju dge w ith
req u ests f o r r e l i e f which range from o b je c t io n s on
th e s e v e r ity o f the sentence t o cla im s th a t th e
p roceed in gs are i l l e g a l f o r v io la t io n o f b a s ic
c o n s t itu t io n a l r ig h t s .
In tlie p a st f i f t e e n years th e a p p lica t io n s t o th e
fe d e r a l c o u r ts f o r p o s t c o n v ic t io n r e l i e f have s te a d ily
in cre a se d . Perhaps t h is r e s u lt s from an in cre a s in g
awareness o f , and emphasis on , the c i v i l r ig h ts o f the
in d iv id u a l . C e rta in ly th e d e c is io n s o f th e Supreme
Court ind icate- a growing concern over the c o n s t itu t io n a l
r ig h t s o f accused person s and th is con cern has mani
fe s te d i t s e l f in more com prehensive treatm ent o f con
s t i t u t io n a l p r o v is io n s designed t o p r o t e c t such p erson s .
The amended p e t i t i o n 4 seeking r e l i e f h ere in was f i l e d May 12,
1355, and reads as fo llo w s*
The amended p e t i t i o n o f L ou is Moorer r e s p e c t fu l ly
shows t o t l i is H onorable Court*
1.
P e t it io n e r i s now u n law fu lly re s tra in e d o f h is
l ib e r t y a t p resen t in cu stod y o f E l l i s C . K acD ougall,
D ire c to r o f th e South C aro lin a S ta te Board o f
C o rre ctio n s a t th e South C aro lin a S ta te P e n ite n tia ry
a t 1515 G ist S tr e e t , Columbia, South C a ro lin a , in
v io la t io n o f the C o n stitu tio n o f the United S ta tes o f
Am erica, aw aiting the i n f l i c t i o n o f death sen ten ce by
e le c t r o c u t io n a ga in st h is w i l l f o r th e a lle g e d crim e
o f ra p e .
1 See P oorer v. Str. to o f Couth C a ro lin a , c t a l . 347 F .2d 502.
2 see Moorer v . State o f South Car o l in a , c t a l , 239 F.Supp. ISO*
Moorer v . S ta te o f Couth C a ro lin a , e-t a l , 240 F.Supp. 529; and
p o o re r v . S ta te o f Couth Car o l in a , efc a l , 240 F.Supp. 531 (th e
la s t o f which chronologuea th e h is to r y o f t h is p o s t -c o n v ic t io n
d e la y p a t te r n ) .
3 Tenth C ir c u it . 33
4 F ile d Hay 12, 1955.
2.
The fa c t s in co n n ection w ith th e a fo r e s a id
d e te n tio n and pending i n f l i c t i o n o f th e death,
sen ten ce w i l l he p resen ted to t h i s C ou rt, in
c lu d in g p roceed in gs o r ig in a t in g , ou t o f th e Court
o f G eneral S ess ion s f o r D orch ester Comity in th e
S ta te o f South C a ro lin a , th e Court o f Common Flc-as
f o r R ichland County, South C a ro lin a and a l l p roceed
in g s b e fo r e th e Supreme C ourt o f th e S ta te o f South
C aro lin a and i t s d e c is io n s th ereon ,
3. /
• /
Upon th e t id a l o f p e t it io n e r in s a id C ourt o f
G eneral S e ss io n s f o r D orch ester County, S ta te o f
South C a ro lin a , p e t i t io n e r was co n v ic te d o f th e
crim e o f rape which judgment o f c o n v ic t io n was,
upon appeal t o th e Su.prer.ie Court o f th e S ta te o f
South C a ro lin a , a ff ir m e d . ' S ta te v . lo r d s P oorer ,
129 S .E .(2d) 330 . T h e re a fte r , a p e t i t i o n was f i l e d
•in th e Court o f Coarsen f le a s f o r R ichland County,
South C aro lin a f o r a W rit o f Habeas Corpus which
p e t i t i o n was d e n ie d . The Supreme Court o f South
C aro lin a a ffirm ed th e Order denying th e P e t it io n
f o r W rit o f Habeas C orpus, f o u ls P oorer v . S tate
o f South f c o h i u . c t n T .. 135 S .E .(2d) 713. There
a f t e r , a p e t i t i o n was f i l e d in th e Supreme Court of
th e U nited s ta t e s f o r a W rit o f C e r t io r a r i which
p e t i t i o n was denied O ctober 12, 1964. G.S . .
13 L.Ed. 2d 63 .
4 .
P e t it io n e r com plained and com plains th a t he was
n o t accorded a f a i r t r i a l and begs lea ve t o submit
upon th e hearing h ere in th e re co rd s in th e cou rse
o f th e p roceed in gs h e r e to fo r e had in con n ection
w ith th e ind ictm en t and c o n v ic t io n and th e appeals
th erefrom wherein and wherefrom t h is Court may be
a p p rised o f th e co n te n tio n s o f p e t it io n e r and
p e t i t io n e r p reys th a t such re co rd s b e deemed t o have
been made a p a r t o f t h is p e t i t i o n b y r e fe r e n c e .
P e t it io n e r fu r th e r d e s ir e s t o p resen t a d d it io n a l
ev iden ce in support o f M s co n te n tio n th a t h is
c o n v ic t io n in th e S ta te C ourt v io la te d th e C on stitu
t io n o f th e U nited S ta te s .
5 .
P e t i t io n e r 's r e s t r a in t and d e te n tio n v i o la t e th e
due p rocess and eq u a l p r o t e c t io n c la u s e s o f th e
Fourteenth fctaondffient t o the C o n stitu tio n o f th e
United S ta tes in th a t he was in d ic te d by a grand
ju ry and co n v ic te d by a p e t i t ju r y from which
members o f th e negro ra ce , o f which p e t it io n e r i s
a member, were sy s te m a tica lly and a r b i t r a r i ly ex
clu ded o r l im ite d in cumber*
a ) Hegroes c o n s t itu te in e x ce ss o f 40 p er
c e n t o f th e a d u lt p op u la tion o f D orchester
County. 34
2 -
b) Hegroes c o n s t it u t e in excess of 20 per
ce n t o f th e r e g is te r e d voter® l a South
C a ro lin a .
c ) n egroes c o n s t itu te d o n ly 6.755 o f th e
p erson s on grand ju r ie s in Dorchester
County between 1953 and 1962.
dj On 4 of th e 9 p e t i t ju r y venires drawn in
D orch ester County between 1958 and 1962,
so K egrocs w ere on th e p e t i t jury venire.
e ) On th e 9 p e t i t ju r y v e n ire s drawn in
D orch ester County between 1953 and
1962, o n ly 2.155 o f th e p erson s drawn
w ere K cgroes, and no box® than 2
D egrees were p la ce d on any p e t i t ju r y
v e n ir e .
£ ) Between 1943 and 1932, no Segxoes
a c t u a lly sa t cn p e t i t ju r ie s in Dor
c h e s te r County.
g) *Ehe token masher o f H egroes p la ce d on
petit jury v e n ire s are c o n s is t e n t ly
challenged o r stricken, so that Scgroea
a re prevented fresa s e r v ic e on petit
ju r ie s .
h ) A i l ju r y con ssisa loaers in D orch ester
County a re w h ite .
1 ) P ro sp e c tiv e ju r o r s a re chosen from
voting registration lists which d esig n a te
th e race of each voter.
S.
P e t i t io n e r ’ s restraint and d e te n tio n v io la t e s th e due
p ro ce ss clause of th e Fourteenth Arsentteenfc t o th e
C o n stitu tio n of th e United States in th a t he was taken
in t o C ourt, a t the conmcr.cosicat o f th e te n s o f Court
in w hich ho was tried, and was subjected t o an a rra ig n *
sent proceeding on April 2, IS62 w ith ou t an A ttorney
and was n ot advised by th e Court nor b y any o th e r
o f f i c i a l o f the right to be- represented by an a tto rn e y
during s a id arraignment proceeding o r o f th e r ig h t t o
co n s u lt w ith an attorney prior th e re to .. She arraignm ent
o f A p r il 2 , 1932 was a critical stage o f th e p roceed in gs
in th a t i t was a prerequisite t o th e v a l i d i t y o f a w a iver
o f defendant*a rights under faction 17-4-38, Coda o f lew s
o f South Carolina for 1962,. which a llo w s a defendant t o
have a cop y o f the indictment f o r th re e days b e fo r e b e in g
brou gh t t o t r i a l . Petitioner was t r ie d on A p r il 4 , ISS2,
o v e r o b je c t io n o f co u n se l, l o s s than th ro e days a f t e r being
p resen ted w ith a copy o f th e ia d lc t a e a t « She H onorable
John c r install. Judge o f th e Fifth J u d ic ia l C ir c u it , who
den ied petitioner’s petition f o r habeas corpus,, e rre d in
f in d in g th a t petitioner tea co u n se l a t his arraignm ent
o f A p r il 2 , 1552.. 35
Petitioner's restraint and detention violate*
the Podrtdentli .feSnaiteiife ̂tS tfee Waited States
Constitution in .t t ia t p e t i t io n e r was not given an
accurate, traebuivSeal arid msfjiete rmooid of all
proceedings in the Court .of G eneral Sessions for
Eorchoster County preceding tfids conviction and
sentence of death.
a.
P e t i t i o n e r 's r e s t r a in t and d e te n tio n v i o l a t e !
th e due p ro ce ss c la u se o f th e Fourteenth amendment
t o th e C o n st itu t io n o f th e United S ta te s in th a t
h e was su b je c te d t o a p re lim in ary h earin g o r boss®
o th e r p r e - t r i a l proceeding w ith ou t an a ttorn ey and
w ith ou t b e in g adv ised off th e rjtghfc ttf have ait..,,
a tto rn e y p resen t o r o f th e r ig h t Jgfinsujt w ith an
a tto rn e y p r io r t o th e ccsasenceaiisrlfe ■&£ s a id $±88§$i!iM§
9.
P e t i t i o n e r 's r e s tr a in in g and d e te n tio n v io la t e s
th e duo p ro c e s s d a n c e o f th e Fourteenth Miettfb-fertt
t o tli© C o n stitu tio n o£ th e United s ta t e s in that he
was t r ie d and co n v ic te d o f n c a p it a l o f fe n s e ; t o
w it* ra p e , and was a t no i r r ib . boj>y, b£
th e w hole in d i c t .v i t s g i i r ^ t him 1 5 i s req u ired bySection 17-4CQ, cdai 8'i b£ s8liS cafaiini fEt1962.
10.
P e t i t i o n e r 's r e s t r a in t and d e te n tio n <b io ia t| S j th e
due p ro ce ss c la u s e o f th e F o u r te e n ^ J a ^ ^ § j| iL fcS
th e C o n st itu t io n o f the United StatSiS. iri,|fiS| l i f ¥ l i
t r i e d , c o n v ic te d and sentenced tb < e a t» £ d f having
a l le g e d ly v io la te d S e c tio n 15-71 , Coda Of haws.Of
South C aro lin a f o r 1962 w hich c ta tu te ip upon i t s
fa c e end as con stru ed and a p p lie d fb p E titib r ib t;
vague; iH d b fin itS fend M a s fft i i i i ;
f 1i t :
§SB| i8 fe ll m ,:
eSgcfitlit.iilir
thip EoSviSfeii IJiSjSufe ̂ i&SSfibu ..
.._,.8f ei§ SffeSj iaS il ilmSlii?MS IIS Ivi&glteS of fltiiSsiMtsSii:
1 0 12:
. P e t it io n e r tun® d e p r iv e d Off bus p ro ce ss o f law .and
th e equal p r o te c t io n o f the le.ro in v io la t io n o f the
Fourteenth do.'oo d t o th o United S ta tes C o n stitu tio n
in th a t th e t S I a l c o u r t .S s f& ^ I^ w ifr ib g sis tb
t e s t i f y in thS prbSsnbb 8 f tlie ju ry th a t h bbtriiitsr^
statem ent had fceea taken from th e defendant
soon a f t e r h is a r r e s t . T h is testim ony was-
h ig h ly p r e ju d ic ia l t o d efen dan t s in ce i t
s t r o n g ly suggested th a t defendant had v o lu n ta r ily
co n fe s se d , and t e e Issu e s o f a d m is s ib i l i t y o f a
c o n fe s s io n m ist ba d ecid ed b e fo r e t r i a l b y th e
co u r t and. o u t o f th e p resen ce o f th e ju r y .
13.
P e t it io n e r ’ s- sentence of death was imposed
pursuant to Section 1 6 -72 , Code o f law s o f South
C aro lin a f o r 1062, which statute i s upon i t s fa c e
and as applied to petitioner under th e circu m stan ces
o f t l i i s ca s e , in violation of the Fourteenth amend
ment t o th e Constitution of the B aited S ta te s , in
th at*
a ) Said statute authorizes im p o s itio n o f a
cruel, inhuman and unusual punishment in
violation ox the Eighth and Fourteenth
Amendments t o th e C o n st itu t io n o f th e
United States.
b ) Said s ta tu te denies p e t i t io n e r equal
protection of the law and due p ro ce ss o f
law under the Fourteenth Amendment t o th e
Constitution of the United S ta te s in th a t
there has been an unequal a p p lic a t io n o f
sa id statute and in that th e re i s and has
been a long standing p r a c t i c e , p o l i c y and
custom of sentencing ilegro men t o death f o r
rap© upon which women while n ot i n f l i c t i n g
th a t punishment upon any o th e r p erson .
14.
Hie constitutional claim raised in Paragraph 9 above was
ra ise d a t petitioner's trial and passed upon a d v e rse ly t o
p e t i t io n e r by tea supremo Court o f South C a ro lin a , a ff ir m
in g th e conviction. Ct-.ta v. i-sorer. 241 S .C . 467, 129
S. E. (2d) 330 (1963). 2ho c o n s t it u t io n a l cla im s made in
Paragraph 5, 6, 7 end 8 ware raised on p e t i t i o n e r ’ s p e t it io n
f o r habeas corpus in the Fifth J u d ic ia l C ir c u it o f South
C aro lin a and decided adversely t o p e t i t io n e r by th a t Court
and b y th e Supreme Court o f Couth C arolin a a ff in n in g th e
d e n ia l o f habeas corpus, bgcrer v . s t a t e . s.c ._____ ,
135 S.E.(2i) 713 {1904). *„ie rem aining c o n s t itu t io n a l
claims heroin set forth were d ecid ed a d v e rse ly t o p e t i t io n e r
in an Order o f th e Couth Carolina Supreme C ourt dated Kay I I ,
1355.
15.
S o p re v io u s a p p lic a t io n f o r th a r e l i e f sought h erein bas
been made t o t i l l s Court c r any ju d ge th e r e o f .
KBESBFOE2, petitioner prays t e a t a W rit o f Habeas Corpus,
d ir e c te d t o Ellis C. K acE ougall, b i r e c t o r o f South C aro lin a
37
5
S ta te Board o f C o rr e c t io n s , b y wham p e t i t i o n e r i s
d eta in ed and by whom e x e cu tio n o f p e t i t i o n e r 's
sen ten ce o f death i s ord ered t o be ca r r ie d o u t ,
is s u e f o r th e purpose o f in q u ir in g into the cause
o f s a id im prisonm ent and re s tra in t , and of d e liv e r in g
him therefrom pursuant t o th e s ta t u t e in such ca se s
saade and p ro v id e d .
On May 12, 1SS5, t h i s C ourt issu e d i t s Order*
By p e t i t i o n o f Kay 11, 1SS5, p e t i t i o n e r seeks
s ta y o f e x e cu tio n and fu r th e r d e la y o f th e p ro ce sse s
o f th e C ourts o f o r ig in a l and a p p e lla te ju r is d i c t io n s ,
t o w it , th e C ourts o f th e sov ere ig n S ta te o f South
C a ro lin a . P rev iou s o rd e rs o f t h is C ourt d e t a i l n ot
o n ly th e in d u lgen ce o f t h i s C ourt t o p e t i t io n e r upon
M s. p le a o f r ig h t t o a d ju d ic a t io n o f th e v a r io u s issue®
p u rp o rte d ly p re d ica te d upon a d e n ia l o f th e r ig h t s o f
p e t i t io n e r in co n n e ctio n w ith h is t r i a l , judgment and
sen ten ce f o r th e crim e o f B spe.
The Supreme C ourt o f South C a ro lin a , having under
i t s a u th o r ity th e e x e cu tio n o f p e t i t io n e r , and having
heard, on Hay IB, 1955, a m otion f o r s ta y o f ex ecu tion
ponding the a p p lic a t io n o f p e t i t io n e r f o r a W rit o f
Habeas Corpus t o th e Court o f Common P lea 3 , R ichland
County, South C a ro lin a , upon grounds con s id ered and
rep orted in th e subsequent o rd e r o f South C a r o lin a 's
h ig h e s t Court e s o f Kay 11, 1553, ru led
"A fte r a c a r e fu l c o n s id e r a t io n o f a l l o f
th e co n te n tio n s o f th e d efen dan t, th e n o t io n
i s hereby d e n ie d .*
T h is Court f in d s n oth in g b e fo r e i t a t t h is tim e
upon w hich any determ in ation o f t h i s C ourt co u ld be
had to t lie effect th a t p e t i t i o n e r has n ot had h is day
in C ou rt, o r th a t th e v a riou s is s u e s p resen ted have
n ot been con s id ered by a C ourt o f a ccep ted and recogn ized
ju r is d i c t io n t o hear and determ ine each and every o f such
is s u e s .
In stead o f a d e n ia l o f due p r o c e s s , t h is Court f in d s
a p a tte rn o f design ed d e la y . la a re ce n t o rd e r o f t h is
C ourt, va ca tin g t h is C o u r t 's p re v io u s s ta y o f ex e cu tio n ,
d is c u s s io n and r e c i t a t i o n was had o f th e v a riou s
o p p o r tu n it ie s and p r iv i le g e s o f appearance and p resen ta
t io n w hich p e t i t io n e r has had. The South C aro lin a Courts
having g iven th e p e t i t io n e r a h earing and f u l l co n s id e ra
t io n , t h is Court finds n e ith e r p ro p r ie ty nor ju s t i f i c a t i o n
in in je c t in g o r p r o je c t in g th e ju r is d i c t io n o f t h i s Court
fu r th e r in t o th e m a tter. T h is Court was n e ith e r cre a te d ,
nor d esign ed , to sit in a p p e lla te judgment on S ta te Court
a c t io n s , nor have d e c is io n s p re v io u s ly r e fe r r e d t o , and
p o p u la r ly accla im ed , changed e it h e r th e co n fin e s o f t h i s
C o u r t 's ju r is d i c t io n o r th e n e c e s s ity th a t t h is C ourt,
w ith in th e l im ite d d u t ie s and r e s p o n s ib i l i t i e s , d es ign a ted ,
seek t o p re d ic a te a f i n a l i t y in o rd er th a t th e w hole o f
th e p e o p le as a s o c ie t y m ight have ju s t i c e dona in b e h a lf
o f th a t s o c ie t y .
6 -
A sid e from th e tremendous (d a re we say a t tim es
u n ju s t i f ie d ) expense in v o lv e d in th e numerous
h earin gs upon th e va riou s p e t i t i o n s , whether d e c la re d
f r iv o lo u s o r n o t , th e re i s th e r e c o g n it io n th a t the
h ig h e st c o u r t o f th e lan d , th e Supreme C ourt o f th e
United s t a t e s , re fu se d c e r t i o r a r i on p rev iou s m atters
now sought t o he again en te rta in e d b e fo r e t h i s C ourtf
t h i s C ourt cannot and w i l l n o t , u n less d ir e c te d by
h ig h er a u th o r ity , go beyond th e c ircu m s cr ip t io n o f
d ir e c t io n o r in d ir e c t io n o f th a t h ig h e st co u r t h e re to
f o r e rendered in con n ection w ith th e cla im s o f p e t i t i o n e r .
t h i s Court f in d s no b a s is f o r fu r th e r ju r is d i c t io n ,
th e re b e in g no determ in ation by t i l l s Court th a t the
C o n s t itu t io n a l E ights o f th e p e t i t io n e r have been
d en ied , o r d eprived him, b y , o r in , th e C ourts t o which
he has re s o r te d , o r which have a sse rte d ju r is d i c t io n o r
d e c is io n p r e v io u s ly , th e Amended P e t it io n f o r W rit o f
Habeas Corpus i s re fu sed because o f in s u f f i c ie n c y th e r e o f
as ex p la in e d .
Further s ta y o f ex ecu tion by t h is Court i s d en ied .
Further ju r is d i c t io n o f t h i s Court i s d iv e s te d .
ASD IX IS SO OSDEEE0.
On Kay 13, 1965 th e C h ie f Judge o f th e U nited S ta te s Fourth
C ir c u it C ourt o f Appeals o rd e re d »
th e a p p e lla n t has a p p lied t o mo f o r a s ta y o f
e x e cu tio n o f a sen ten ce o f death now scheduled t o
b e executed tomorrow, bay 14, 1965.
The a p p e lla n t has f i l e d a p rop er n o t ic e o f appeal
from an ord er en tered in th e United S ta tes D is t r i c t
Court f o r th e Eastern D is t r i c t o f South C arolin a on
Kay 12, 1955, denying an amended p e t i t i o n f o r habeas
co rp u s . Hie m otion f o r stay i s f o r th e purpose o f
p r o te c t in g th e ju r is d i c t io n o f th e U nited S ta tes Court
o f Appeals durin g the pendency o f th e ap p ea l.
The record on appeal d is c lo s e s se v e ra l p roceed in gs
in th e s ta te c o u r ts , in which th e re a re a number o f
a sserted cla im s o f d e n ia l o f r ig h ts p ro te c te d by th e
C o n stitu tio n o f th e United S ta te s . The amended p e t i t i o n
f o r habeas corpus in th e D is t r i c t C ourt and th e e a r l i e r
p e t i t i o n in th a t Court sought r e l i e f upon th ose grounds.
I t fu r th e r appears th a t th e D is t r i c t Court has not con
s id e re d th e c o n s t itu t io n a l c la im s upon t h e ir m e r its .
There has b e ta no e v id e n tia ry hearing in th e D is t r i c t
Court and, co fa r as now appears in th e record on appeal,
no rev iew in th e D is t r i c t Court o f th e s ta te co u r t p ro
ceed in g s to co n s id e r whether o r n o t in th e s ta te p roceed in gs
th e fe d e r a l cla im s have been f a i r l y heard and determ ined.
On t h e ir fa c e , I cannot say th a t the fe d e r a l c o n s t it u t io n a l
cla im s are f r iv o lo u s o r th a t th e appeal i s n ot w ithout
p rob a b le m e r it . Indeed, the D is t r i c t Judge c e r t i f i e d ,
f o r the purpose o f p r o te c t in g th e r ig h ts o f th e a p p e lla n t,
tlie e x is te n ce o f p rob ab le cause to app ea l.
- 7 -
l a th e se circu m stan ces , e x e cu tio n o f th e sen ten ce
would e f f e c t i v e l y deny th e r ig h t o f a p p ea l, and a
s ta y o f th e e x e cu tio n i s e s s e n t ia l f o r th e p r o te c t io n
o f th e ju r is d i c t io n o f th e U nited S ta te s Court o f
a p p ea ls t o hear end determ ine th e a p p e lla n t ’ s r ig h ts
in th e p r e c is e s .
There i s a ls o b e fo r e tee a p e t i t i o n o f th e a p p e lla n t
f o r le a v e t o p roceed in forraa p a u p e r is . For th e reason s
s ta te d above, X have determ ined t o gran t th e p e t i t i o n
f o r le a v e t o p roceed w ith ou t prepayment o f f e e s , t o
c e r t i f y th e e x is te n ce o f p rob a b le cau se t o ap p ea l, and
t o o rd e r a s ta y o f th e e x e cu tio n pending th e d eterm in ation
o f th e appeal in th e U nited S ta te s C ourt o f A ppeals f o r
th e Fourth C ir c u i t .
IT XS ORDERED, t h e r e fo r e , th a t th e a p p e lla n t b e , and
he i s h ereby , p erm itted t o p ro se cu te h is appeal in t h is
C ourt in th e above e n t i t le d ca s e in forraa p au p eris in
accord an ce w ith T i t l e 28, t f .S .C ., § 1915, w ith ou t the
prepayment o f c o s t s o r th e g iv in g o f s e c u r ity th e r e fo r .
Fosrnsa ORDERED th a t th e C lerk o f t h i s C ourt f i l e th e
p re lim in ary re c o rd on appeal and d o ck e t th e appeal a s o f
Kay 13, 1SSS.
FURTHER ORDERED, upon co n s id e r a t io n o f th e p e t i t i o n
and pursuant t o th e authority under T i t l e 28, 0 .3 .C .,
§ 2251, th a t tiis e x e cu tio n of th e sen ten ce o f death
im posed by th e Court o f General S ession s o f D orch ester
County, S ta te of South Carolina, b e , and th e same i s
h ereby , stayed pending th e term in ation o f th e appeal
h ere in o r th e fu r th e r o rd e r o f th e C ou rt.
May 13, 1955
/ s / Clement F . Eayaaworth, J r .
C h ie f Judge, Fourth C ir c u it
Subsequent t o th e a p p e lla te o p in io n th e C ou rt, t o e x p e d ite
had a p r e - t r i a l co n fe re n ce which re s u lte d in an Order o f August 4 ,
1965*
Pursuant to and in accordance w ith th e direction in
the opinion of the United States C ir c u it Court o f
Appeals for the Fourth United States Circuit, dated
June 23, 1335, this Court proceeds t o determine from
a rehearing and a reconsideration o f the record and
the transcripts, the v a riou s issues raised in the
amended petition of May 12, 1935, in the above styled
matter. Moorer having charged that h is constitutional
rights have been infringed, this Court has an obligation
to review independently the State Court proceedings t o
determine whether the findings o f f a c t are fairly
supported by evidence of record and the conclusions o f
law are correct, as discussed in Townsend v. Cain,
372 0.3. 293 (1963). ” 40
s -*
Paragraph f i v e o f th e amended p e t i t i o n a l le g e s
v io la t io n o f th e due p ro ce ss and equal p r o te c t io n
c la u s e s , floo rer c la im in g h is ind ictm en t by Grand
Jury and h is c o n v ic t io n by P e t i t Jury in w hich
members o f th e S egro r a c e , o f w hich he i s a member,
were s y s te m a t ic a lly and a r b i t r a r i l y excluded o r
l im ite d in number* T h is issu® was p resen ted t o th e
South C aro lin a Supreme Court a f t e r b e in g p resen ted
t o South C a ro lin a C ir c u it Judge G rin-ball in a habeas
corpus p roceed in g {which su bsequ en tly was g iven a
reh ea rin g by Judge G rim ball) b u t was n o t p resen ted
a t th e o r ig in a l t r ia l* P e t it io n e r , in t h is C ourt,
seeks t o base h is p rayer f o r r e l i e f upon s t a t i s t i c a l
c a lc u la t io n s , which do n ot appear apropos t o th is
p a r t ic u la r c a s e . The Court p r e s e n t ly i s o f th e
o p in io n th a t th e re was s u f f i c i e n t ev id en ce developed
and a ire d t o make a determ in ation in accordan ce w ith
th e mandate o f Townsend v* Sain , su pra . Counsel f o r
p e t i t io n e r w i l l be- a ffo rd e d an op p o rtu n ity t o argue
th e a lle g e d inadequacy o f t h i s e v id e n ce , i f he f e e l s
s o a d v ised , t o p r o t e c t p e t i t i o n e r ’ s r ig h t s .
Paragraph s i x o f th e p e t i t i o n com plains o f the
arraignm ent o f defen dan t in th e absence o f c o u n s e l.
I t appears from th e re co rd o f t r i a l th a t defen dan t
was rea rra ign ed in th e p resen ce o f co u n se l end i t
fa r th e r appears th a t in th e habeas corpus h earing
b e fo r e South C aro lin a F i f t h C ir c u it Judge John c r im b a ll
th a t w itn e sse s were heard and th a t a f u l l e v id e n t ia ry
h earin g was had on t h is is s u e . I t seems p aten t th a t no
fa r th e r ev iden ce i s n ecessary fa r a c o n s t it u t io n a l
co n s id e ra t io n o f t h is i s s u e . A cco rd in g ly , no ev iden ce
th ereabou t w i l l b e n ecessary in th e h earin g b e fo r e t h is
C ou rt. P e t it io n e r w i l l , o f co u rse , have th e r ig h t t o
p re se n t argument t o -the C ourt as t o why more ev id en ce
i s n e ce ssa ry , i f he i s so a d v ise d .
Paragraph seven a l le g e s th a t "p e t it io n e r was not
g iven an a ccu ra te , u n equ ivoca l and com plete re co rd
o f a l l p roceed in gs in th e C ourt o f General S ession s
. . . p reced in g t h is c o n v ic t io n end sen ten ce o f d e a th ."
Counsel f o r p e t i t i o n e r has conceded th a t th ere i s no
need f o r an e v id e n t ia ry h earin g on t h is is s u e .
A cco rd in g ly , th ere w i l l b o none.
The th ru s t o f paragraph e ig h t was th a t th e S h e r i f f
had t e s t i f i e d th a t p e t i t io n e r had made a "statem ent"
o r "c o n fe s s io n " e t a p re lim in a ry h ea r in g . Shore was
no req u est f o r an e v id e n t ia ry h earin g on t h is is s u e ;
determ in ation can b e made from th e re c o rd .
Paragraph n in e a l le g e s th a t p e t i t io n e r was never
given a t ru e copy o f th e w hole in d ictm en t a g a in st
him as req u ired by § 17 -403 , S . C. Cocks, 19-32.
There was mid i s no q u estion bu t th a t p e t i t io n e r was
n ot g iv en a copy o f th e ind ictm en t a t th e tim e o f
h is arraignm ent. Counsel w i l l have the op p ortu n ity
t o argue th e le g a l im pact o f t h is d e n ia l . 41
is s u e ra ise d in paragraph t e a , w hich a l le g e s
th a t $ 16 -71 , S . C . Code, 1952, ( th e s ta tu te which
d e fin e * ra p e ) , l a upon I t s fa c e and as con stru ed
and a p p lie d t o p e t i t i o n e r , vague, in d e f in i t e and
U n certa in . Counsel agreed th a t no e v id e n t ia ry
h ear in g i « n ecessary th ereabou t and that the m atter
would be p resen ted to th e C ourt by way of legal
argument.
As t o paragraph e lev en o f th e May 12 p e t i t i o n ,
cou n se l agreed a t th e h ear in g th a t no e v id e n t ia ry
h ear in g was n ecessary but th a t th e s u f f i c ie n c y o f
th e ev id en ce t o su sta in th e c o n v ic t io n would be
f u l l y exp lored by co u n se l in le g a l argument a t th e
h earin g h e r e in a fte r d is cu s s e d . C ounsel a re f r e e to
ttaJse re fe r e n c e t o any and a l l t r a n s c r ip t s and s h a l l
he prepared t o c i t e t o th e C ourt re le v a n t p o r t io n s
and pages th e r e o f .
Counsel agreed th a t th e m atters s e t fo r th in
paragraph tw elve o f th e p e t i t i o n were f i r s t ra ise d
in t h is p e t i t i o n . iJo e v id e n t ia ry h earin g was re
qu ested , a f t e r d is c u s s io n , and th e is s u e t o be
d is cu sse d and argued b e fo r e th e C ourt i s whether o r
n o t th e a lle g e d c o n fe s s io n was v o lu n ta ry , which
in c lu d e s th e q u e s tio n o f whether th e ju r y should have
been excused during th e d is cu s s io n th ereabou t in th e
C ourt o f General S ess ion s f o r D orch ester County on
t r i a l o f th e ca u se .
Paragraph th ir te e n a l le g e s th a t § 1 5 -72 , S . C. Code,
1952, (which p r e s c r ib e s th e death p en a lty f o r c o n v ic t io n
o f rape) upon i t s fa c e and a p p lie d t o p e t i t i o n e r under
th e circu m stan ces h ere v io la t e s th e Fourteenth Amendment
in th at*
a ) i t im poses a c r u e l and unusual punishment? and
b ) th ere has been unequal a p p lic a t io n o f t h i s
s ta tu te and a lon g standing p r a c t i c e , p o l i c y , and
custom o f "sen ten cin g Eegro men t o death f o r rape
upon w h ite women w h ile n ot i n f l i c t i n g t h is punish
ment upon any o th e r p e rs o n ."
Fart “a " c le a r ly p re se n ts a r a t t e r o f law f o r th e Court and
cou n se l agreed th a t no e v id e n t ia ry h earin g was n ecessary o r
w arranted.
As t o subparagraph "fa", t h is Court must determ ine, and
cou n se l a re d ir e c te d t o a d v is e , as t o ( 1 ) th e c o n s t itu t io n a l
d im unition claim ed? (2 ) the b a s is o r com petency of any
s t a t i s t i c a l ev iden ce sought t o b e in trodu ced? ( 3 ) whether
th e p a r t ie s can s t ip u la te s a t i s f a c t o r i l y t o th e end th a t th e
Court can ru le on t h is co n te n tio n as a m atter o f law? and
(4 ) whether th e " l o g i c a l extrem e* o f th e "ev id en ce" p o s s ib le
in t h is ca se w i l l have a sa lu ta ry e f f e c t on th e p rop er adm inis
t r a t io n o f ju s t ic e * O f c o u rse , th e q u e stio n o f u n co n s t itu t io n a l
a p p lic a t io n , i f such e x i s t s , o f th e s ta tu te w ith re fe r e n c e
t o EAFB may b e f u l l y argued in t h i s h ea r in g .
- 10 -
42
Slothing h e re in © hall limit th e right of petitioner
to present f a l l argument on any of the issues, or to
make a motion th a t the p len a ry hearing hereinafter
directed he more "exhaustive" than the foregoing
suggests.
Counsel agreed th a t i t would n ot b e n ecessary
f o r p e t i t i o n e r t o b e p resen t a t th e h ea r in g , th a t
h is absence th erefrom would in no w ise deny him any
c o n s t it u t io n a l r ig h t as n e ith e r cou n se l nor th e Court
f in d i t n ecessa ry t o ta k e h is testim on y on any is s u e
co n s id e re d .
Counsel w i l l c o n fe r in advance o f h earin g t o as
c e r t a in i f s t ip u la t io n s can b e agreed upon and w i l l
a d v ise th e C ourt th ereabou t in th e b r i e f s m entioned
be low .
A p len a ry h earin g w i l l b e h e ld in th e courtroom o f
th e U nited S ta te s D is t r i c t Court a t Colum bia, South
C a ro lin a , a t 10*00 A. M ., August IS , 1955, and con tin u e
th e r e a fte r u n t i l consummated. f i v e days in advance o f
sa id h ea r in g , cou n se l w i l l p re se n t th e Court w ith a
b r i e f exp ress in g f u l l y upon th e le g a l and fa c tu a l
is s u e s s e t by th is Order and by agreem ent, and s h a l l
p resen t agreed s t ip u la t io n s . In sa id b r i e f s h a l l b e
n oted a l l appearances exp ected a t th e h earin g and a
statem ent as t o th e approxim ate tim e d e s ire d f o r
p re se n ta tio n and argument*
Other h earin gs w i l l b e had upon ju s t i f i c a t i o n shown.
AHD IT IS SO ORDERED.
/s/ Robert W. Hemphill
United S ta tes D is t r i c t Judge
August 4, 1965.
A t th e h earin g o f August IS , 1965, end s in c e , a l l co rarete-nt
ev id en ce was and has been rev iew ed . Although cou n se l had agreed a t
p r e - t r i a l p e t i t i o n e r 's p resen ce was n ot needed, upon m otion th e h earin g
was delayed and p e t i t io n e r sen t f o r . Be s a t through th e e n t i r e p roceed
in g , b u t n e ith e r gave ev id en ce nor co n fe rre d w ith co u n se l in th e co u r t
room.
The fo llo w in g c o l lo q u y took p la ce s
COURT* l e t th e re co rd show th a t under d ir e c t io n
o f th e C ir c u it Court o f Appeals I convened t h is
h earin g making available t o cou n se l th e op p ortu n ity
t o p resen t such fa c t s as wore com petent, such argument
as sh ou ld , co u ld , o r would b e made on th e q u e stio n s in
th e P e t it io n and as agreed upon in th e p r e - t r i a l and
as reduced t o w r it in g in the p r e - t r i a l o r d e r . Upon
11 43
ca&mmctment o f the h earin g t h i s morning counsel
having a d v iced th a t th ey had changed their
previous p o s i t io n a3 to the presentee of the
Petitioner, the C ourt was re ce sse d for the purpose
of b r in g in g th e P e t it io n e r to this Courtroom, which
was done. The P e t it io n e r i s here. The Court s i t s
waiting to hear th e arguments and/or the competent
facts on th o se m atters for w hich this Court was
convened and o f w hich due n o t i c e was given to
C ou n se l. Under th o se circu m stan ce* the Court
s i t s now to h ear th o se arguments*
If Counsel invokes a p a tte rn of delay for the
purpose of a vo id in g i t s r e s p o n s ib i l i t y as officers
of the Court t o p re s e n t , i f th ey can or if they
have proper argum ents, then t h is Court would ta k e
such under co n s id e r a t io n a t t h is t im e . X would l ik e
to hear from you a t t h i s tim e why you are not arguing.
JSt. PEEKS'* Your Honor, did you direct an inquiry
of us?
COURT* Yea, X d id .
148* PERRY* Was i t th a t
COURT * You asked for the Petitioner to be here
and he is h e re .
MS, PERKY* Y es, s i r . Your Honor.
COURT* You ashed f o r him t o b e h ere and your
a s s o c ia t e went in t o some m atters about which he
had n e ith e r in form ation n o r , so fa r as X can see,
any co n s u lta t io n o r a d v ice during th e e n t ir e
p ro ce e d in g . I am h e re t o hear what ev id en ce he
has i f he has e v id e n ce . 1 have review ed th is re cord
no l e s s than, th re e t im e s . I f th e arguments o r any
o f th e th in g s and m atters s e t fo r th in th e P e t it io n
o r as s o l i d i f i e d in the p r o - t r i a l o rd e r o r o th e r
arguments, th e Court i a w it t in g and a v a i la b le .
HR. EEPl'KJXJ* Your Honor, re se rv in g a l l o b je c t io n s
t o th e C o u rt 's ru lin g s g o to b e fo r e , tod ay , we have
no more p r o o f t o o f f e r in su pp ort of paragraph 13b
o f th e amended P e t it io n f o r w r it o f Habeas Corpus
f i l e d on Kay 12, 1965.
COURT* What d o you say ns t o th e rest of it?
ISt. PERKY* Sow, may i t p le a se th e C ou rt, th e
P e t it io n e r o f f e r s as e x h ib it s in t h i s ca se th e
fo llo w in g th in g s* The t r a n s c r ip t o f re co rd in th e
Supreme Court o f South C aro lin a in th e f i r s t p la c e ,
which, o f co u rse , i s a t r a n s c r ip t o f th e t r i a l o f
th e ca se w hich occu rred i a h p r i l , 1962.
COURT* I s n 't th a t a lread y in th e r e co rd ?
HR* PESKY* Your Honor, I do n o t r e c a l l th a t it
i s ia th e re c o rd , i t ra y b o . Mr. Brandon?
12 44
« U BRAUSCU* I don't believe that it is
COURT* W ell, th e re i s no o b je c t io n to it and
i f th e re i s th e o b je c t io n i s o v e r r u le d . The
ev id en ce ia a ccep ted and has been review ed by
this Court p r e v io u s ly and w i l l b e review ed a ga in .
!€R. PERRY* Kow, you r Honor, I have th e same th in g
t o say w ith re fe r e n c e — about th e Habeas Corpus
p roceed in gs which w ere h e ld b e fo r e th e H onorable John
G riiab a ll, Judge o f th e F i f th J u d ic ia l C ir c u it o f South
C a ro lin a . And t h i s was th e t r a n s c r ip t , of co u rse ,
p roceed in g th e second d e c is io n by the Supreme C ourt
o f South C a ro lin a .
COOTS* I th in k t h a t 's p ro p e r .
MR. BRAHDOa* We w i l l j o in in ia moving th a t th e
Court ta k e ju d i c ia l n o t ic e o f a l l th a t .
COWS* X th in k t h a t 's p ro p e r . X have a lrea d y read
them two o r th ree tim.es and 1 w i l l b e happy t o have
them a ga in .
HR. FERRY* Then, th e re i s no n e c e s s ity o f our
a c tu a lly handing in ou r cop y , X b e l ie v e th e Court
has c o p ie s .
COURT* W ell, i f th e Court d o e s n 't have c o p ie s ,
u n less th e Counsel d is a g re e , th e Court w i l l c a l l on
Counsel t o fu rn is h such c o p ie s and then re tu rn them
a t such tim e as th e d is p o s i t io n o f th e Court i s f i n a l .
A l l r ig h t , s i r .
MR. PERSY* The P e t it io n e r r e s t s , your Honor.
COURT* You mean t o t e l l me, fir . F erry , th a t you
have no argument t o p resen t tod ay a f t e r ask ing the
C ir c u it Court o f A ppeals t o come back her®?
HR. PERSY* Oh, y e s , your Honor, wo have arguments
b u t X have r e fe r e n c e t o , o f c o u rse , th e e v id e n tia ry
p re s e n ta t io n s .
COURT* T h a t 's a l l tile ev id en ce?
HR. PERKY* E la t 's r ig h t , your Honor.
COURT* Does th e S ta te o f South C aro lin a have any
ev id en ce?
MR. BR&KDOHs Ho, your Honor, we have none.
COURT* A l l r ig h t . You may pursue.
MR. WOXiFE* I f your Honor w i l l perm it me, X have
endeavored t o cooperate with the A ttorn ey G eneral and
h is s t a f f who have been so kind. And as X understood
i t no ev iden ce was t o b s submitted, under th e p r e - t r i a l
o rd e r , and, o f co u rse , we d id n 't attem pt t o b r in g anybody
h e re .
13 45
COURTs W e ll, s o l i c i t o r , fcho purpose o f tb e p re
t r i a l was t o in q u ire o f Counsel a s t o what we Blight
e x p e ct today and b e ga in ed th ereby in a l lo c a t in g th e
tim e and purposes o f the C ou rt, had i f he had had
s a m com petent ev id en ce t o o f f e r X would n ot have
k ep t him from i t . had then i f you had made a m otion
Upon showing, you would b e a llow ed t o rebu t and b r in g
in o th e r ev id en ce and, o f c o u rse , he would have been
a b le t o r e p ly t o you r3 . That would have been th e
form a t.
The purpose o f th e p r e - t r i a l was n o t t o keep anybody
f r o a produ cing ev id en ce bu t ju s t t o s e e what th e p ro
ced u re would b e . There i s no n e c e s s ity f o r ev id en ce
on th e p a r t of th e S ta te o r on you r p a r t , a s an o f f i c e r
o f t h i s s ta t e and an o f f i c e r o f t h is C ou rt, t o p resen t
e v id e n c e . X d o n 't th in k th a t th e re i s any disagreem ent
b u t th a t any o f th e o f f i c i a l re cord s would b e p ro p e r ly
co n s id e re d . 1 th in k t h a t 's what th e C ir c u it Court meant
and t h a t 's what 1 have been t r y in g t o do u n less th e re i s
som ething unusual, o u ts id e o f th e re c o rd , w hich X h a v e n 't
seen h e re . X d o n 't know o f an y th in g . A l l r ig h t , s i r ,
p ro ce e d .
T h is C ourt has review ed th e t r a n s c r ip t o f p roceed in gs b e fo r e
th e Court o f G eneral S ession s f o r D orch ester County, p roceed in g s and
b r i e f s b e fo r e th e Supreme Court o f South C a ro lin a , Habeas Corpus
p roceed in gs b e fo r e th e Court o f G eneral S ess ion s f o r R ichland County,
and v a r io u s b r i e f s o f co u n s e l, o rd e rs o f c o u r ts , e t c . I t has screened
again th e "C a p ita l Punishment Survey”5 w hich sought t o p e rp e tra te
incom petent in form ation b e fo r e th e Court in l i e u o f com petent e v id e n ce .
There i s a la ck o f s u f f i c i e n t ev id en ce t o g iv e m erit to
P e t i t i o n e r 's c la im s . They must be den ied because o f th e la ck o f
e v id e n ce .
The a tta ck on th e com position o f the Grand Jury and P e t it
Jury o f th e D orch ester County Court f a i l s , as a m atter o f law in the
l ig h t o f Swaiji.y,, Alabama.6 T h is Court n otes an in t e r e s t in g argument
b y defendants h ere where th e State Habeas Corpus was appealed t o the
South C aro lin a Supreme C ourt by p e t i t io n e r (then a p p e lla n t )t
5 F ile d w ith t i l l s Order and made E x h ib it "A" h e r e o f .
6 380 U .S. 302,
14 - 46
‘Thera i s testim on y in th e re co rd as t o th e number
o f D ale e le c t o r s q u a l i f ie d f o r ju r y s e r v ic e f o r the
y e a r 1S62 o n ly . The Chairman o f th e R e g is tra t io n
Board was n ot a b le t o g iv e even an approxim ation f o r
p r io r y e a rs , and a p p e lla n t has made no attem pt t o
determ ine th e number from the r e g is t r a t io n hooks,
w hich w ere in e v id e n ce . The number o f q u a l i f ie d
male e le c t o r s in 1962 was p la ce d a t 3 ,00 0 , o f whom
250 t o 300 w ere estim ated t o he K egroes.
A p p e lla n t, w h ile adm itting th a t he i s n ot e n t i t le d
t o any s p e c i f i c number o r p ercen tage o f n eg roes on
M b ju r ie s , and c i t i n g a u th o r ity th e r e fo r e (C a s s e ll
v . Texas, 10 O .C t. 620, 339 tf.S . 2 S 2 ), n ev erth e less
argues th a t p r o p o r t io n a lly th e re should be from 1054
t o 1554 N egroes s e le c t e d . Ee bases t h i s on th e
r e la t io n s h ip o f 200 t o 250 n egroes on a t o t a l ju ry
l i s t o f approx im ately 2 ,0 0 0 . I t i s n o t respondents*
in te n t io n t o q u ib b le over p ercen ta g es , but i t i s
e a s i ly seen th a t even the most l i b e r a l estim ate o f
250 N egroes i s o n ly 12 1/2% o f th e t o t a l o f 2 ,0 0 0 .
K ith two N egroes o u t o f IS on th e grand ju ry which
in d ic te d a p p e lla n t , t h is means th a t o v e r 11% were
N egroes. Bo testim on y i s in th e re co rd as t o whether
any N egroes were holdovers, hut i f b o th were drawn in
1952, t l i i s moans th a t two o u t o f tw elve were E egrocs ,
o r 16 2/3% .
A p p e lla n t had o n ly two Negroes ou t o f 46 on h is
p e t i t ju r y p an e l, o r .04356. T h is i s l e s s than h is
minimum o f 10%, o f c o u rse .
Respondents have used th ese f ig u r e s t o i l l u s t r a t e
th e a b su rd ity o f a ttem pting t o s e t p e rce n ta g e s . We
th ink th e record amply shows th a t N egroes a re p la ced
on th e ju r y l i s t s in th e same o r h ig h er p ro p o rtio n as
o th e r ra ce s in r e la t io n to the number r e g is te r e d , and
th a t t h e ir s e le c t io n on th e grand ju r y o r p e t i t ju ry
pan el i s p u re ly a m atter o f ch an ce . I t i s u n con trad icted
th a t th e ju r y l i s t s in D orch ester County have no r a c ia l
d e s ig n a tio n on them, n or i s any such d e s ig n a tio n made
on th e ca p su les in t o which th e in d iv id u a l names are
p la ce d .
A p p e lla n t o b v io u s ly cannot p rove any e x c lu s io n ,
system a tic c r o th erw ise , s in c e i t i s undisputed th a t
Negroes w ere on th e grand ju ry and th e p e t i t ju ry
panel in 1962. H is co n te n tio n th a t th ere was a
l im it a t io n on th e number o f N egroes f a l l s fa r sh ort
in fell® m atter o r p r o o f .
Paragraph 13 (a ) o f the Amended P e t it io n a tta ck s § 16-72 ,
S . C. Code o f tew s, 1S52J as amended, because " i t im poses a c r u e l
and unusual punishm ent?" and t h i s Court f in d s th e q u estion was
^ K'hieh reads j jpuMslraaiit fo r " rape o r a ssa u lt w itii in te n t t o ra v is h .
Any person co n v ic te d o f rape o r a ssa u lt w ith in te n t t o ra v ish s h a l l
s u f f e r death sinless th e ju ry s h a l l recommend him t o th e mercy o f the
co u r t in which event he s h a l l bo co n fin e d a t hard la b o r in th e S ta te
P e n ite n tia ry f o r a tors?, not exceed in g f o r t y yea rs n or le s s than f i v e
y e a rs , a t th e d is c r e t io n o f th e p re s id in g ju d g e .
- k - 47
before* the Supreme Court o f th e W aited States in Rudolph v. s t a t e
o f Alabama. 8 Shat Co-art den ied c e r t i o r a r i , ter. Justice Douglas
and Mr. Justice Brennan jo in e d , d is se n t in g *
I would gran t c e r t i o r a r i in this case and in
Snider v. Cunningham, 375 US 889, 11 t ed 2d 119,
64 s Ct 154, t o co n s id e r w hether th e E ighth and
Fourteenth amendments t o th e U nited S ta tes Con
s t i t u t io n perm it th e im p o s it io n o f th e death
p e n a lty on a c o n v ic te d r a p is t who has n e ith e r
taken n or endangered human l i f e .
The fo llo w in g q u e s t io n s , in t e r a l i a , seeia
re le v a n t and worthy o f argument and co n s id e ra t io n s
( 1 ) la l ig h t o f th e tren d b oth in t h i s cou n try
and throughout th e w orld a g a in st pun ish in g rape,
by d eath , d ocs th e im p os ition o f the death p en a lty
b y th o se S ta tes w hich r e t a in i t f o r rape v io la t e
"e v o lv in g standards o f decency th a t mark the p ro
g re ss o f Jour] m aturing s o c i e t y , “ o r "standards o f
decency more o r l e s s u n iv e rs a lly a cce p te d ? ”
(2 ) I s th e tak in g o f human l i f e t o p r o t e c t a
va lu e o th e r than human l i f e c o n s is te n t w ith th e
c o n s t itu t io n a l p r o s c r ip t io n a g a in st "punishments
which b y t h e ir e x c e s s iv e . . . s e v e r ity a re g r e a t ly
d i^ p rop ortion ed t o th e o f fe n s e s ch arged?"
(3 ) Can tlie p e rm iss ib le aims o f punishment ( e . g . ,
d e te rre n ce , i s o la t i o n , r e h a b i l i t a t io n ) be ach ieved
as e f f e c t i v e l y by pun ish in g rape le a s s e v e re ly than
by death e . g » , by l i f e im prisonm ent)i i f s o , does
tile im p os ition o f th e death p e n a lty f o r rape con
s t i t u t e "unnecessary c r u e lt y ? ”
2n a subsequent Habeas Corpus® p roceed in g Rudolph was freed
because h is c o n fe s s io n , b u t we n ote th e rev iew of th e f a c t s 10 in the
Alabama D is t r i c t Court op in ion s
The p ro s e cu tr ix in t h i s ca se was & young w hite
woman. At th e tim e o f h is a r re s t and c o n v ic t io n ,
th e p e t it io n e r Rudolph was a 2 0 -y e a r -o ld SSegro man.
The t r a n s c r ip t o f th e t r i a l r e f l e c t s th a t on August 1,
1981, and sometime during tbs- e a r ly morning hours o f
th a t d a te , tins p r o s e cu tr ix who was s le e p in g in her
apartment in Birmingham, Alabama, awakened t o f in d
someone stan d in g over h e r . Tha p ro s e cu tr ix t e s t i f i e d
th a t she was s e x u a lly a ssau lted tw ice , w ith th e o n ly
p h y s ica l v io le n c e o ccu rr in g whoa th e p ro s e cu tr ix ran
in t o th e k itch en a f t e r i l ls com pletion o f th e second
sexual a c t and t r ie d t o u n lock th e d o o r , a t which
tim e she was shoved a g a in st the w a ll by th e man
” Wo. 308, M iac. ISomortndua C nocs, C ot. Term 1954. See 11 i . id 2d 119.
9 Eudolph v . Holman, c t e l , 235 F .Supo. 62.
Se® a ls o v - 275 A la . 115, 152 So 2d 262.
1G - 48
a ssa u lt in g h e r . $he p ro s e cu tr ix t e s t i f i e d that
se v e ra l tim es during th e o cc a s io n in q u e stio n
tiie accused rep ea ted , "You can look at me, bu t
you w o n 't l i v e t o t e l l i t . " th e accused was
a rre s te d th e sam® n ig h t by th e Birmingham p o l i c e
o f f i c e r s and th e se o f f i c e r s t e s t i f i e d as to a
c o n fe s s io n made b y Rudolph a t approx im ately 2*50
p . at. on August 1, 1961, in th e hom icide room of
th e C ity H a ll, Birmingham, Alabama. u
T h is Court n otes th a t th e extrem e v io le n c e p resen t in
floorer d id n ot e x is t in Rudolph. T h is Court f in d s th a t th e s ta tu te
(16 -7 2 ) d oes n o t p ro v id e c r u e l and unusual punishment in v io la t io n
o f t lie c o n s t i t u t io n a l ban . In making t h is d e c is io n t h is C ourt has
review ed Trap v . Sullen.3-* toulsinna v. p^rweber.*3 Keens v . Pnited
States,13 and o th e r lea d in g treatm ents by ou r Court o f b a s t R e so r t .
Paragraph 1 3 (b ) o f th e Amended P e t it io n a lle g e s *
b ) th e re has been unequal a p p lic a t io n o f t h is s ta tu te
and a lon g standing p r a c t i c e , p o l i c y , and custom o f
"sen ten cin g Kegro men t o death for rape upon w h ite
women w h ile n o t i n f l i c t i n g t i l l s punishment upon any
o th e r p e r s o n .*
The ev id en ce p r o f fe r e d was refu sed* i t was h earsay . I t
was n o t p rop er t o the ca u se . Racism had i t s day in C ourt, b u t the
red h err in g o f racism was i n s u f f i c i e n t b a i t t o draw th e fo cu s o f
tru th away from th e r u le s o f e v id e n ce . Ho m e r ito r io u s f a c t s o r
arguments w ere p resen ted on t h i s is s u e .
P e t it io n e r a tta ck s S ection 15—71, South C arolin a Cods
f o r 196214, as vague and u n ce rta in . In South C aro lin a the r u le o f
reason in th e ru le o f law as to s ta tu te o r in d ictm en t*13
I t i s w e ll s e t t le d th a t an ind ictm ent should
a l le g e th e o f fe n s e w ith s u f f i c i e n t c e r ta in ty and
p a r t ic u la r ly t o en ab le th e co u r t t o know what
judgment t o pronounce, th e defendant to know what
he i s c a l le d upon t o answer, and an a c q u it ta l o r
c o n v ic t io n aay b e p leaded in bar to any subsequent
p ro s e cu t io n . * 12 13 * 15
JJ ’gg" \01 ~
12 329 0 .3 . 459, 469.
13 217 U .S. 349, 373.
b* Which reads* Rape. -Slhosoevor s h a l l ra v ish a woman, m arried , maid o r
o th e r , when she d id not con sen t, e ith e r b e fo r e o r a f t e r , o r ra v ish eth
a woman w ith f o r c e , a lthough she con sen t a f t e r , s h a l l ba deemed
g u i lt y o f raise.
15 g fe b e y . Jtontgaau-y-, 144 S .E . 797, _____S . C.
1 / 49
The statute falls within these requirements
As th e U nited S ta tes Supreme C ourt noted in W inters v ,
Hew York, 333 0.S. 507, 509-510, 515 (1948)*
*A s ta tu te so vague and in d e f in i t e , in fo r a and
as in te rp re te d , * * * [as t o f a i l ) go g iv e f a i r
n o t ic e o f what a cta w i l l b e punished, • * *
v io la t e s an a c cu s e d 's r ig h ts under p roced u ra l due
p ro c e s s * * * . [A p ena l s ta tu te must s e t up]
a s ce r ta in a b le standards o f g u i l t . (So th a t ] men
o f common in t e l l ig e n c e * * * [are n o t] req u ired
t o guess a t * * * [ i t s ] m ean ing,• e i t h e r as t o
person s w ith in th e scop e o f the a c t o r a s t o
a p p lic a b le t e s t s t o a s c e r ta in g u i l t .
P e t it io n e r th e r e fo r e f a i l s on t h i s i s s u e .
T h is Court d oes c o t h ere p ass o s th e Stay o f E xecution ,
o r th e l i f t i n g of same, as i t was issu ed by a h igh er c o u r t .
Counsel may a pp ly t o th a t c o u r t f o r fu r th e r rev iew o f th a t a c t io n .
The Amended P e t it io n i s d en ied in t o t o .
P e t it io n e r i s adv ised o f h is r ig h t t o appeal as p rov id ed
by Buie 3 7 (a ) (b ) . Rules o f C rim inal Procedure, which reads t
An appeal t o to o Supreme Court when a u th orized by
s ta tu te s h a l l b e taken in th e manner and w ith in th e
tim e p re s cr ib e d by i t s r u le s .
A copy o f t h i s Order s h a l l b e served on P e t it io n e r b y th e
U nited S ta tes Marshal f o r th e (E astern ) D i s t r i c t o f South C a ro lin a .
Ai® XT IS SO ORDERED.,
ROBERT JY,. HEMPHILL
ROBERT W. HEKPHXU,
U nited S ta tes D is t r i c t Judge
Columbia,. South C aro lin a
January 3 , 1966..
XHUE COPT
T e s t ;
miller C. FCC. FOSTER, JR- clERK
50
XM M UNIT*© «TAXM SXSTXICT OOOTT
ton t m d i s t r i c t or s o u t h c a b o l i n a
COLUMBIA DIVISION
tLOUIS MOOSB8,
Petitioner,
t
V*.
t
STATS or SOUTH CAROLINA and
ELLIS C. MacDOUGALL, Director,:
South Carolina State Board of
Corrections, j
Respondents. s
MOTION rOS REHEARING
Petitioner moves the Court for a rehearing on his Amended
Petition for Writ of Habeas Corpus filed May 12, 1965, restricted
to the issue of deprivation of constitutional right alleged
under paragraph 13(b) of the Amended Petition. As grounds for
the motion, petitioner shows:
1. In the Amended Petition, several claims of deprivation of
constitutional rights were urged among them the claim that
Section 16-72, Code of Laws of South Carolina for 1962 denied
him equal protection of the laws and due process of law in
violation of the 14th Amendment to the Constitution of the
United States in that his sentence of death was imposed pur
suant to a long standing practice and custom of sentencing
Negro men charged with raping white women to death in a manner
not done when a white man was charged with rape of a Negro or
CIVIL ACTION
MO. AC-15*3
51
Whit* woman or * Megro man charged with rap# of a 8 * 9 7 0 woman.
After remand by the o.a. Court of Appeal* for tha Powrth Circuit
pursuant to an appeal taken from tho original denial of
petitioner's Awesdad Petition, this court scheduled a hearing
on the leanest raised in the intended Petition including the
aforesaid issue of the unequal application of tha death penalty
to negroes charged with rape of white women.
2. At the hearing of August 18. 1965. petitioner informed the
court that he did not desire to take additional evidence on the
other constitutional issues raised in his Amended Petition but
did attempt to make an evidentiary showing in support of the
allegation of paragraph 13(b). Petitioner, through his counsel,
inferred the court that son# 355 schedules entitled “Capital
Punishment Survey** (a blank copy of which was appended to this
court's order of January 3, 1966 denying the Amended Petition)
had been completed for various counties in the State of South
Carolina And that the data contained in these schedules had
been compiled by student researchers fro® various source* in
the counties concerned and reflected facts, surrounding circum
stances and disposition of rape cases in the subject counties
over a 2 0 year period. The court was informed that the
completed schedules were the basis for further scientific
analysis which, when completed, would likely be of probative
value in sustaining the contention mad* in paragraph 13(b).
the court was also informed that the research reflected by the
schedules had just been completed end hence there had not been
time, prior to the hearing, to submit them to the detailed
analysis contemplated. Petitloiter nevertheless offered to go
forward with proof in support of the allegation of paragraph
13(b) by subpoenaing the clerks of the courts in the counties
from which the data was gathered for the purpose of proving
- 2 - 52
th* facts noted is th# schedules
the ©f farad
indicated in this court's opinion of Ossuary 3, 1966 denying
tlw *»st»d#d Petition) but ordered fchs 355 schedules »nl«i by
tho Clark of th* court thus preventing petitioner from having
tbs benefit of tbs scientific analysis of those schedule* and
could b* used la support of tbs allegation. th* schedules,
sine* th* hugoat IS, 1965 hearing, have been retained by th*
court and petitioner has been denied access to then.
3. Subsequent to th* August IS, 1965 hearing, petitioner
wooed this court fear leave to withdraw these schedules which
th# court had ordered touched as petitioner** Exhibit 1, for
the purpose of tasking photostatic copies of then so that th#
analysis could proceed. A hearing was held on that notion
on October 4, 1965 but to data and notwithstanding this court's
decision of January 3, 1966 denying the Amended Petition, the
court has not ruled on th# action and has net released the
schedule* to petitioner's counsel* hence, in view of the
court's rulings at the August 18th hearing, petitioner's
evidentiary posture with respect to proving this very crucial
allegation has regained unchanged.
4. Petitioner avers that with these schedule# in hand he would
be able to submit thee to the requisite analysis and subsequently
rak* the kind of evidentiary demonstration contemplated which
could possibly alter th* court's view respecting th* competency
of proof on this very important issue, bet at th* very least,
would give the court th* benefit of a full presentation on this
issue. Attached to this motion as an exhibit is th* affidavit
of Professor Marvin 6. Wolfgang of the University of Pennsylvania,
who will direct th* analysis to be perforated on this data, which
aurearire# th# aaethod# used in conducting th# research, and
of a report, of that analysis which
- 3 - 53
state* hi* opinion that £h* data contained la th* schedules
can provide reliable conclusion* regarding the influence of
the factor of race in imposing the death sentence in South
Carolina provided sufficient time is percdtted for completion
Of the analysis. In addition, there la already on file with
the court, an affidavit of Attorney Frank HefCron which was
appended to th* sotion to withdraw the schedules, which con
tains a comprehensive statement regarding th* research project
pursuant to which petitioner hopes to substantiate his dat a
under paragraph 13(h) and which succinctly states th* dimensions
of that elate. Petitioner asks the court to consider that
affidavit as another exhibit to this action for rehearing.
«Mtr* is attached to this motion as a third exhibit, a document
styled 'fr*lie,inary Analysis of Sap* and Capital Puniataenfc
in the State ©f Louisiana, 1945-65* which analyses, in a pre
liminary way, the survey results from the State of Louisiana.
This exhibit was prepared under the direction of Dr. Wolfgang
whose affidavit is appended hereto. It informs the court of
the method of analysing the data and is an example of the
technique that will probably be applied to the South Carolina
schedules if they are released to petitioner's counsel in accord
ance with hi* previous notion repeated h*r*tn.
S. At th* August 18, I M S bearing, non* of the esterials Which
have been appended to this notion as exhibits war* available
and th* court understandably, was not informed as completely
as this motion and it* exhibit* attempts to inform it, of th*
relationship between the impounded schedules and the elate of
discriminatory sentencing contained in paragraph 13(b). As is
readily apparent from the preliminary analysis of the Louisiana
survey, a definite relationship can be shown and it is highly
probable that proof will he developed to support petitioner's
elate. A full presentation on this issue, after analysis of
- 4 - 54
*© cake m informed decision on this claim and to protect
petitioner's constitutional rights. Indeed, the demode
Of the dee process clause of tho 14th Aanadaemt require
ttost this opportunity ho afforded.
4» fttitiawr, of course, ia presenting tho svidmcc, recognises
tlsat there m y ho objection* of various hinds going to its
admissibility sad petitioner fully intends - if given tbo
opportunity - to car* say valid objections by clearly competent
proof. Objections to adsissibility can be cared and whan cured,
this court will have the opportunity to oonaider what might
should be accorded the evidence* in any event, it is clear that
the desiancs of justice require that where a Ban’s life hangs
in the balance, this important constitutional issue be fully
ventilated of record.
mMOWtORM, petitioner praysi
1. that this court immediately grant his previous sot ion
to withdraw the 3^schedules entitled -Capital Punishment Survey.*
2. That sufficient time be accorded hie to have this data
analyzed and a report completed.
3. That after such analysis and report, petitioner be
accorded an opportunity for a full and complete rehearing of
this issue of deprivation of constitutional right raised under
paragraph 13(b) of the Amended Petition for Writ of Habeas Corpus.
aespectfnlly submitted,
itotthew 'ji. Perry
1107^ Washington Street
Columbia. South Carolina
T. Henderson Moore
3£ Spring Street
Charleston, South Carolina
Benjamin {,. cook, Jr.42 Morris stmt
Charleston, south Carolina
Anthony Amsterdac Jack Greenberg
school of haw Harm® C. Beaker
University of Pennsylvania 1® Columbus Circle 55
PRELIMINARY ANALYSIS OF RAPE AND CAPITAL PUNISHMENT
IN THE STATE OF LOUISIANA
19^5-1965
A. Nature of this report.
This report contains a preliminary analysis of data obtained in a
study designed to determine the effect of racial factors upon capital sen
tencing for rape in the State of Louisiana. The preliminary analysis is
neither exhaustive nor conclusive. Its findings, presented below r-are ten----
tative and are based upon an exploratory rather than an intensive investi
gation of the available data. Any attempt to interpret the results must
therefore be executed with caution. Subject to this qualification, the pre
liminary analysis very strongly suggests that racial discrimination is oper
ative in the imposition of the death penalty for rape in Louisiana.
B. The Data.
The data upon which this analysis is based were obtained frcm sched
ules completed for 125 cases of conviction for rape. These 125 cases con
stitute every case of conviction for rape which appears in the state court
records of 21 Louisiana parishes from January 1, 19̂ -5 through August, 1965.
The included parishes are a stratified random sample of Louisiana parishes,
geographically dispersed throughout the State and representative of the State
in urban-rural and white-Negro population ratios. By i960 census figures,
they contained more than 65% of the total population of Louisiana. It may
therefore be said that the 125 cases available for statistical analysis are
validly representative of the larger total pool of all cases of conviction
for rape that occurred in the State during the twenty-year period.
C. Method of analysis.
The null hypothesis to be tested is: Among Negro and white offend
ers convicted for rape by the State of Louisiana there are no significant
differences in the proportions sentenced to death as compared with life im
prisonment.* In order to determine whether the frequencies that have been
* Of the 125 sample cases, 116 resulted in sentences of life imprisonment
or death. In two cases, one involving a white defendant and victim, the
other a Negro defendant and victim, the sentence was unknown. Seven
cases resulted in sentences of imprisonment for a term of years (ranging
from 1-1/2 to 7 years): In three of these the defendant was Negro and
the victim's race unknown; in one, the defendant was white and the vic
tim's race unknown; in one the races of both defendant and victim were
unknown; one involved a white defendant and victim; one, a Negro defend
ant and victim. Because of the paucity of cases where sentence was less
than life imprisonment, all such cases were excluded from analyses in
volving sentence disposition as a variable or constant factor.
56
2
empirically obtained in the 125 sample cases differ significantly from those
which would be expected under the theoretical assumption of the null hypo
thesis, the data from the 125 cases have been exposed to chi-square analysis.
On the assumption that there are no differential sentencing practices for
Negroes and whites, the proportions of Negro and white rape defendants re
ceiving similar sentences should be equal. Thus, employing the marginal totals
for each empirically obtained table, a set of frequencies may be obtained
that would be expected, given these totals, in the absence of racial differ
ences in sentencing. In other words, the number of convicted defendants sen
tenced to death (or to life imprisonment) who would be expected to be Negroes
(or whites) may be determined, and this figure may be compared with the num
ber actually observed. The null hypothesis will be rejected whenever the
difference is quite large between the expected and the actual number of Ne
groes sentenced to death, and whenever the differences are also large between
the expected and actual numbers in each other cell (i.e., Negroes sentenced
to life, whites sentenced to death, whites sentenced to life). By this
method, spurious associations among the variables -- race and sentencing
disposition -- due to chance operation are eliminated. Pursuant to accepted
statistical procedure, the probability level (P value) of less than .05 has
been selected as the test of significant association: that is, an association
among variables (race and sentence) is accepted as real (significant) only
if it could have occurred by chance fewer than five times out of one hundred.
If the association of the characteristic "Negro" with the disposition "death"
is statistically significant at a level of probability less than .05, it may
be concluded that race is operating as a selective factor to differentiate
those defendants who were sentenced to death rather than life imprisonment.
If the association is not statistically significant at the level of P <(_ .05,
it may be concluded that any observed racial differential in sentencing dis
position is not so substantially greater than might occur by chance as to
enable the ascription of a selective influence to the racial factor.
Inspection of Table I reveals that although 22 Negroes were sen
tenced to death for rape, not one white defendant convicted for rape re
ceived this disposition. Inspection of Table II discloses that of the 22
cases in which Negroes were sentenced to death, 21 involved a white victim
and the race of the victim was unknown in one case. No case involving a
white defendant, irrespective of the race of the victim, and no case of a
Negro defendant whose victim was also Negro, resulted in the sentence of
death. Both of these tables are significant at the P .05 level. Indeed,
both are significant at the level P .001. This means that the associa
tion between being a Negro and receiving the death sentence, and the asso- •
ciation between being a Negro convicted for rape of a white victim and re
ceiving the death sentence, as observed in the Louisiana data, could have
occurred merely by chance in fewer than one time out of one thousand. The
null hypothesis is therefore rejected and the conclusion sustained that
Negroes, in comparison with whites, are disproportionately sentenced to death
for rape in the State of Louisiana.
5?
This conclusion alone, of course, does not imply racial discrimina
tion in capital sentencing. It may he contended that, although Negro de
fendants are disproportionately sentenced to death for rape, ths disproportion
is not the result of race itself, but is the result of one or more other
factors, which characterize the Negro defendant but which are systematically
absent among white defendants. These factors, not race, may be determining
sentencing disposition; and Negroes may be receiving death sentences with
disproportionate frequency only because these factors are disproportionately
frequent in the case of Negro defendants. For example, Negro rape defend
ants as a group may employ greater violence or do greater physical harm to
their victims than do white rape defendants; they may more frequently rape
previously chaste victims; they may more frequently be represented at their
trials by appointed rather than retained counsel.
In order to determine whether these or any other variables likely
to influence the choice of a capital sentence for rape do in fact account for
the racial disproportion in imposition of the death penalty observed in
Louisiana, statistical analysis was undertaken of the association between
such variables and race, and in some cases between such variables and sen
tencing disposition. The analysis was performed with respect to all var
iables concerning which the Louisiana data provided sufficient information to
support computation. The chi-square technique described above was employed
to test the significance of observed associations.
A standard method of proceeding was used for all variables. First,
the association between the variable and race was tested. If this was not
significant at the P ■'C .05 level -- that is, if the particular variable did
not appear disproportionately frequently to characterize the group of Negro
defendants as contrasted with the group of white defendants -- it was con
cluded that the variable could not therefore account for the observed racial
disproportion in capital sentencing, and no further statistical analyses of
the variable were required. In such cases, the finding that the variable
was not concomitant with race ruled it out as a possible nonracial explana
tion of Louisiana's disproportionately frequent imposition of the death pen
alty on Negroes.
If the association between the variable and race proved significant
at the P .05 level, three further computations were performed. The total
population of convicts was split into two groups, one comprising all those
cases characterized by the presence of the variable, the other comprising
all those cases characterized by its absence. Within each group independ
ently the association between race and the death penalty was tested in order
to determine whether racially disproportionate capital sentencing persisted
despite control (i.e., holding constant) of the variable in question. In
addition, for the total population of defendants, the association between
the variable and the death penalty was exposed to the chi-square test. If
racially disproportionate sentencing survived control of the variable, or
if the variable was not significantly associated with capital sentencing for
58
the total population, it was concluded that the variable could not account for
the observed disproportion of capital sentencing on racial lines for the
total population. In such cases, either the variable was not exerting a se
lective influence on sentencing disposition (i.e., where there was no sig
nificant association between the variable and death) or such selective in
fluence as it was exerting failed to explain Louisiana's racially dispro
portionate imposition of the death penalty (i.e., where the variable was sig
nificantly associated with death but where racially disproportionate capital
sentencing survived its control).
Where these three statistical operations failed to exclude the
possibility that the influence of a particular variable might explain
Louisiana's disproportionate sentencing of Negroes to death, but where sig
nificant associations existed between race and the variable, or the variable
and sentence, more refined examination was pursued. If the variable were
exerting an effect which accounted for the racial disproportion, one would
expect that that effect would appear in cases of Negroes convicted of raping
white victims, as well as in other sorts of cases. Unless the variable ap
peared to affect sentencing disposition in cases of Negroes raping whites,
it could not be said to account for the observed disproportion of capital
sentences imposed on these Negroes. The association between the variable
and death was therefore subjected to chi-square analysis for the subpopula
tion comprised of all cases of Negroes who were convicted of raping white
victims. If that association proved significant, it was tested also for the
subpopulation of all cases of white rape defendants, in order to determine
whether the variable was exerting the same influence among white as well as
among Negro defendants. As it happened, this last analysis could never be
statistically performed, because no white rape convict had ever been sen
tenced to death in Louisiana during the twenty-year study period. Thus the
question was asked whether the variable could account for the observed dif
ferential frequency of capital sentencing in cases of intra-racial rape con
victions (i.e., rape of whites by whites, rape of Negroes by Negroes) and
inter-racial rape convictions (i.e., rape of whites by Negroes).** The ques
tion was answered by subjecting to chi-square analysis the subpopulation
comprised of all cases characterized by the presence of the variable, in
order to determine whether the association between inter-racial rape and the
death penalty remained significant. Where this association proved signifi
cant, it was necessary to conclude that notwithstanding the influence of the
variable upon sentencing disposition, racial factors emerged as the over
riding determinant tending to a disposition of death. In other words, although
the variable affected sentencing, in the sense that capital punishment was
not decreed in its absence, racial considerations were dispositive of the
decision whether on not bo impose the death penalty when the variable was
present.
** Of the 125 cases examined, none were known to involve rape of a Negro
victim by a white defendant. There were several in which the defendant
was white and race of the victim was unknown.
59
D. Findings.
1. As indicated previously, Negro rape defendants are disporpor-
tionately more often sentenced to death in Louisiana as compared -with white
rape defendants. (Table l) Negroes convicted of raping white victims are
disproportionately sentenced to death as compared with all other rape de
fendants. (Table II) No sentence of death was imposed in Louisiana during
twenty years except upon a Negro convicted of raping a white victim. (Table
II)
2. The following variables are not significantly associated with
the race of the defendant, hence cannot account for the racial dispropor
tion in capital sentencing: previous record of the defendant (Table VIl),
seriousness of injury to the victim (Table XXVI), victim's prior reputation
for chastity (Table XVI), place of the offense (indoors-outdoors)(Table VIII),
type of entry by the defendant into the place of the offense (unauthorized-
authorized) (Table IX), type of plea (Table XV) , duration of trial (Table XXl).
Only six variables are significantly associated with race of the defendant:
age of the defendant (Table XXII), marital status of the defendant (Table
III), type of counsel at trial (appointed-retained) (Table XVII), display of
a weapon by the defendant (Table X), commission of a contemporaneous offense
by the defendant (Table XXXV), type of prior relations between the defend
ant and the victim (strangers-not strangers)(Table XXVII).
3. As there is no significant relationship between sentence dis
position and age of the defendant (Table XXV), marital status of the defend
ant (Table Vi) or type of counsel at trial (Table XX), these factors cannot
account for the racial differential in sentencing.
U. Among Negro defendants convicted of raping white victims, dis
play of a weapon is not significantly associated with capital sentencing.
(Table XIV) Nor, in the same group, is commission of a contemporaneous of
fense by the defendant significantly associated with capital sentencing.
(Table XXXIX) *** Therefore, neither display of a weapon nor commission of
contemporaneous offenses appears to account for the observed disproportion
ate capital sentencing of Negro defendants convicted of raping white victims.
5. Convicted rape defendants who committed other offenses con
temporaneously with the rape, and who were strangers to their victims at the
time of the rape, were disproportionately sentenced to death. (Tables XXX,
XXXVIII) More Negro defendants than whites committed contemporaneous of
fenses (Table XXXV) and were strangers to their victims (Table XXVII). But
among all defendants who committed contemporaneous offenses, Negro defendants
who raped white victims were significantly more frequently sentenced to death
* * * Because this association, although not significant at the P <_ .05
level, approached significance, the further statistical analyses reported
in para. 5 infra were undertaken with the variable contemporaneous of-
fenses.
60
than were other defendants (Table XLl); and among defendants who were strangers
to their victims, the same racial disproportion in capital sentencing appears
(Table XXXIII). Thus, although defendants are relatively infrequently sen
tenced to death unless they commit contemporaneous offenses, and although they
are never sentenced to death unless they are strangers to their victims, not
all defendants who commit contemporaneous offenses or who are strangers to
their victims are sentenced to death. In such cases* as in others, only Negro
defendants who rape white victims are sentenced to death. (Tables XXXIV,
6. On the basis of the foregoing findings, it appears that Negro
defendants who rape white—victims have been disproportionately sentenced to
death, by reason of their race, during the years 1945-1965 in the State of
Louisiana, No available factor other than race satisfactorily accounts for
the disproportion. Indeed, the death penalty was never observed except when
the rape victim was white and the defendant was Negro.
61
PRE L I M I N A R Y ANALYSIS, L O U I S I A N A DA T A
TABLES I-XLII
Note:
Because information concerning sane of
the variables examined in the following tables
was unknown in one or more of the 125 cases ex
amined, the total number of cases considered
(N) varies frcm table to table.
In several tables, the number of cases
available is too small for proper analysis by
means of the chi-square technique. Time limita
tions to date have prevented further and more
refined techniques of analysis, but at a later
date Fisher's exact test will be employed where
the total number in any table is small and where
the expected frequency in any cell of a table is
less than five. The chi-squares for these tables
have been used only as an approximation of the
direction of probable association. In each such
case, the chi-square reported for the table has
been marked with an asterisk.
Statistical analysis was not applied to
Tables XXIX and XL because of the zero frequen
cies in marginal totals. These tables have been
marked with a double asterisk following the
symbol.
62
T A B L E I; RACE B Y T Y P E OF SENTENCE
Death Life Total
1
Negro 22 65 87
»
j White
I 0 29 29
Total 22 94 116
X2= 27.5
P /L . 0 0 1
TABLE II: COMBINATIONS OF RACE OF VICTIM AND
OFFENDER BY TYPE OF SENTENCE
Death Life Total
jiNegro Of
fender &
White Victim
21 30 51
White Off. &
White Victim
Negro Off. &
Negro Victim
0
.
48 48
Total 21 . | 78 99
X 2 = 25.2
P L .001
63
T A B L E III; R A C E B Y MARITAL STATUS OF D E F E N D A N T
Married Not
Married
Total
i
Negro 22 37 59
.White 11 6 17
Total 33 43 76
X 2 - 4.0
P 4. .05
TABLE IV: RACE BY SENTENCE FOR ALL MARRIED
DEFENDANTS
Death Life Total
Negro 6 18 24
White 0 10 10
Total 6 28 34
X 2 = 5.5
P £ .02
64
TABLE V: RACE BY SENTENCE FOR ALL UNMARRIED
DEFENDANTS
Death Life Total |
1
Negro 9 27 36
White 0 6 6
Total 9 33 42
X2= 1.9
P C -20
TABLE VI: MARITAL STATUS BY TYPE OF SENTENCE
Death Life Total
Married 6 27 33
Not
Married 9 33
j
Total 15 60 75
X2= .1
P ^. 8 0
65
T A B L E VII: RACE B Y PREVIOUS RECORD
Record No
Record
Total
11
! Negro 51 15 66
1
White> 17 4 21
Total 68 19 87
x2: .130
p C -80
TABLE VIII: RACE BY PLACE OF OFFENSE
Indoors Outdoors Total
Negro
___ ___ -.- -
46 45 91
White
;
14 11 25
Total 60 56 116
X2= .20
P £ .70
6 6
T A B L E IX: R A C E B Y TYPE OF E N T R Y
u n a u t h o r iz e d
E n try
A u t h o r i z e d
E n try
j Total
i
Negro
.....
34 55 j 89
f
• White
\
6 21
i
| 27
Total 40 76 116
TABLE X: RACE BY DISPLAY 3F WEAPON
Weapon No
Weapon
Total
Negro /T 47 25 72
.
White 4
........ - .
19 23
Total 51
1 ' 1
44 95
X 2- 2.3
P t .20
X 2- 15.9
P L .001
6 ?
T A B L E X I : RA C E B Y SENTE N C E A M O N G D E F E N D A N T S
W I T H WEAPONS
D eath Life Total
i
i
tI Negro 17 27 44
!
White 0 4 4
Total 17 31 48
TABLE XII: RACE BY SENTENCE AMONG DEFENDANTS
WITHOUT WEAPONS
Death Life Total
Negroes 2 23 25
White 0 15 15
Total 2 38 40
X2= 2.3
P C .20
*
2 * X2= 1.1
.50
6 8
T A B L E XIII: D I S P L A Y OF WEAPON* B Y SENTENCE
Death Life Total
j Weapon 18 33 51
No Weapon[ ' 2 38 40
Total 20 71 91
X2- 12.0
P £ .01
TABLE XIV: DISPLAY OF WEAPON BY SENTENCE AMONG
NEGRO DEFENDANTS WITH WHITE VICTIMS
Death Life
... ._ . ......
Total
"Weapon 17 17 34
j No Weapon 2 7 9
Total 19 24 43
X 2 = 2 . 3 ^
P 4 - 2 5
69
T A B L E XV: RACE B Y T Y P E OF PL E A
Guilty Not Guilty
"
Total
ii
!Negro 44 48
......
"
92
i
;
White 15 16 31
Total 59 64 123
X2= 0
P £1.00
TABLE XVI: RACE BY VICTIM'S REPUTATION FOR
CHASTITY
Yes No Total
Negro 13 4 17
White 11
1 12
Total
(.
24 5 29
X 2 = 1.2
P £ .30
it
70
T A B L E XVII: RAC E B Y T Y P E OF COUNSEL
Appointee} Retained Total
1
Negro 33 6 39
i
White 4 8 12
Total 37 14 51
X2= 12.1*
P L .001
TABLE XVIII: RACE BY SENTENCE AMONG DEFENDANTS
WITH APPOINTED COUNSEL
Death Life Total
Negro 15 17 32
White
«*
0 4
..
4
i'Total
L_ _ _ _ _ _ _ _
15 21 36
T
-X2 “ 3.3
P £ .10
A
71
T A B L E XIX: RACE B Y SENTENCE A M O N G D E F E N D A N T S
W I T H RETAINED C O UNSEL
! ..
—
Death Life Total
i
Negro
...... ..... 3
2 5
i
White 0 7 7
Total 3 9 12
X2= 5.4*
P £ .025
TABLE XX: TYPE OF COUNSEL BY TYPE OF SENTENCE
Death Life Total
Retained
Counsel
3 9 12
(Appointed
|Counsel
15 21 36
Total 18 30 48
X 2 - 1.1
P L .50
72
T A B L E XXI: RACE BY T R I A L TIM E
Two days
or less
More than
two days
Total
Negro 26 17
-....- —
43
White 9 5 14
Total 35 22 57
X2= .10
P L .90
TABLE XXII.: RACE BY AGE OF DEFENDANT
13 - 25 26 and
above
Total
Negro 56 30 86
•White 12 17 29
T o t a l 68 47 115
X 2 = 5.0
P 4, .05
73
T A B L E XXIII: R A C E BY SENTENCE A M O N G DEFEN D A N T S
13-25 YEARS
j
Death Life Total
i
i
1 Negro
} .......................
12 41
........- .....
53
1
White1 0 11 11
Total 12 52 64
X - 3.1
P £ .10
*
TABLE XXIV: RACE BY SENTENCE AMONG DEFENDANTS
26 YEARS AND ABOVE
Death Life Total
Negro 5 23 28
White 0 15
'
15
Total 5 38 43
X2= 2.9*
p 4. .10
7 4
T A B L E XXV: A G E BY T Y P E OF SENTENCE
II
Death Life 1 Total
i1
i1
1 3 - 2 5
............
12 51 j 63
26 and
above
5 38
1
| 43
Total 17 89 106
x2- 1.0*
P £ .50
TABLE XXVI: RACE BY SERIOUSNESS SCORE*
0
1 - 4
7 - 2 6
... 1
Total
Negro 10
* .
24
.....
12 46
j
White
5 i 4 j 4
..
13
Total 15
1
28 16 59
X2= 2 . 2 *
P 4.50
# The method of rating seriousness of injury to the victim described in SELLIN &
WOLFGANG, THE MEASUREMENT OF DELINQUENCY (1964) was employed.
75
T A B L E XXVII: RACE B Y TYPE OF P R I O R RELATIONS
B E TWEEN D E F E N D A N T A N D V I C T I M
Strangers Not
Strangers
—
Total
11
j Negro1i
46 20 66
White 9
18
27
Total 55 38
_________________
93
X2= 10.6
P .01
TABLE XXVIII: RACE BY SENTENCE AMONG STRANGERS
Death Life Total
i
Negro 17 29 46
White
1
0
..
7 7
Total 17 36 53
o ‘Sr X2= 3.7
P £ .10
76
T A B L E XXIX: RAC E B Y SENTENCE A M O N G D E F E N D A N T S
N O T STRANGERS
! .
D eath Life Total
i
i
1 Negro'
j .
0 20 20
1
White
.... ........
0 17 17
Total 0 37 37
X2
TABLE XXX: TYPE OF PRIOR RELATIONS BETWEEN DEFENDANT
AND VICTIM BY TYPE OF SENTENCE
Death Life | Total
Stranger 17 37 54
"Not
Stranger
0 47 47
Total 17 84 101
X2- 17.7
P- ^ .01
77
T A B L E XXXI: T Y P E OF P RIOR R E L ATIONS B Y SENT E N C E
A M O N G N E G R O D E F E N D A N T S W I T H W H I T E VICTIMS
Death Life Total
i
j Stranger
|
17 18 35
' Not
Stranger
0 6 6
Total 17 24 41
X2= 5.1
P £ .05
TABLE XXXII: TYPE OF PRIOR RELATIONS BY SENTENCE
AMONG WHITE DEFENDANTS
Death Life- Total
Stranger 0 7 7
Not
Stranger
0 17 17
Total 0 24 24
y^2 **
78
TABLE XXXIII: RACE OF
AMONG Sr
DEFENDANT AND
:RANGERS
VICTIM BY SENTENCE
;i
i
Deatn
ji
J
1;
s Total|
11)
f;
1
|?i
1
iSame Race •'
! i
0 j 16
' i
«!
1 16
1
1
■j
Different j
Race \
i
17 ] 18
‘j
t
J 35
\,
is
l
I•i
i
T o t a l 17
l
\
| 3 4 j 51
i
i1 i i s1' ... a
X2- 11.6
P ^ .001
TABLE XXXIV: RACE C? DEFENDANT AND VICTIM BY SENTENCE
AMONG STRANGERS AND DEFENDANTS NOT STRANGERS
i
S
STRANGER i no t
| STRANGER
1 TOTAL| •
( Death!Life Death
i , 1 Life ! • «
jWhite Of
fender &
White Victim
0
11| 6
'
!o
! 12
1 !
! 18 ■ j
1 1
fNegro Of-
jjfender &
jNegro Victim
0 :io 0 ii i i
21 is! ij
?Negro Of-
. -fender &
Victim
j
17 u 0 6 41 1
.
Total 17
.
34 0 29 80
79
T A B L E XXXV: RACE B Y C O N T E M P O R A N E O U S O F FENSE
Offense No Offense Total
11
! Negroj 33 4? 80
White 4 22 26
Total 37 69 106
X2= 5.8
P 4 . 0 2
TABLE XXXVI: RACE BY SENTENCE AMONG DEFENDANTS WHO
COMMITTED A CONTEMPORANEOUS OFFENSE
Death Life i Total
Negro 14 19 33
White
. ........
, 0
\ 4
Total 14 23 37
I I
X 2 - 2 . 7 *
P / .10
80
T A B L E X X X V I I : RACE B Y S E N T E N C E A M O N G D E F E N D A N T S W H O
COMMITTED N O C O NTEMPORANEOUS OFFENSE
1 i
| ]
J | D eath L i f e
\ 1 i
J1
T o t a l !
s
I I I ) ; 1 J ! j
] Negro ij 5 37 j 42 |
f " i ■: ' l
5 •'
1 :
1 White ! 0 ’ 19
l l
1
19
| Total
1 .
1 1
| 5 \ 56 1
6 ! j
_ _ _ _ _ _ _ _ 1
TABLE XXXVII I: CONTEMPORANEOUS OFFENSE BY TYPE
OF SENTENCE
f
1
i|. . . . . . . . . . . . . . . . . .
; i s
1Death { LifeS
;
Total
|
!
1 '
8 Offense
il
i
1 4 ! 2 3
I1
fft
37 !
i
\<
s
| No Offense
!
i ( j
l i6 j 56 | 62 I
I | I
1 ! Total |
)li - . . . - _ _ '
j i
20 79 99
X2 = 1 1 .3
P .0 1
T ABLE XXXIX: C O N T E M PORANEOUS O FFENSE BY S E N T E N C E A M O N G
N E G R O DEFEN D A N T S W I T H W H I T E VI C T I M S
I 5 \
I i| Death { Life
!i '•r *
!
1
Total
1
S
|OffenseS
; I
14 | 12i;
1
i26
|No Offense
._______
I
6 j 15
jl
!
- i5
|Total
|
20 27 47
X2= 3T0
P / .10
TABLE XL: CONTEMPORANEOUS OFFENSE BY SENTENCE AMONG
WHITE DEFENDANTS
I j(i ■!;j }•5 ji Death
s
Life
.
i
i
Total
j Offense 0
4
;
4 1I ‘ 1 " .... .
No Offense
°
19
.... . !
19 j}
Total 0
... .
23
.
23
X2 **
82
TABLE XLI: RACE OF DEFENDANT AND VICTIM BY SENTENCE AMONG
DEFENDANTS WHO COMMITTED A CONTEMPORANEOUS OFFENSE
l I
1 !■1 f
| i Death jj Life
1 . » 11 . . . . . . . _ -
i
Total |
!
J < i jj l i
l ' P,
5 Same Race 5 0 s 12
■ i. . . . . . ' . . i
1 1 t] Different j 14 ■, 12
fRace ?
1 ! ?
i26
1
Total | 14 \ 24
I i i
i
38
X2= 10.1
P / .01
TABLE XLII: RACE OF DEFENDANT AND VICTIM BY SENTENCE
AMONG DEFENDANTS WHO DID AND DID NOT
COMMIT A CONTEMPORANEOUS OFFENSE
I OFFENSE NO OFFENSE TOTAL
...1
ii 5 ? j
1 . ’iDeathfLife ‘/DeathS i t Life
|White Of
fender &
, White Victiii»
■
■ i4 { 0
j
19 !23 |
|, I' 1̂1 ■' 1 II 1
■■Negro Of
fender &
iNegro Victir.
0
'
)
8 ! 0
j
19 27
|Negro Of
fender &
jWhite Victir
•14 12
’
6 15 46
T o t a l 14 24 6 53 97
83
The 21 Sample Parishes'- in Louisiana used for this Study
Caddo
Calcasieu
Concordia
East Baton Rouge
Evangeline
Franklin
• Iberia
Jefferson
Lafourche
Lincoln
Orleans
Ouachita
Rapides
Red River
Richland —
St. John the Baptist
St. Landry
St. Martin
Tangipahoa
Webster
West Feliciana
S3 a
00
\ 10 11 12
t̂rinnhiU
p,ain Dea"n£Yoc0.«̂f
,
IrtHigWandsol Bossier Gty
A North ® X® prevepcr̂^
Shreveport
A R E . ----
O ScKitfa I I f
r/Oak O'ovehjke jkf
~ / Providenc
J ' J
u ,c c r / Providence WEST / . * ■ *
iCARROLL' • *
e a s t , j D
CARROLL ^ *
fY MADISON c v >
Tallulah-^-
y-O' >J
t e n s a s ^ J L , . ^
N ewe I! ton0
I A Leesv"
• VERNON 5 3
Boyce cr~ > ';;y-;; /ier.anfaiL'Vexindr:»tw° *- ■ ' ? a‘
t! RAPIpES
W ater- *
CATAHOULA | proof o / 0A ■2-'5' A -*-*SHarrisonburg r
ftUtfti -
. - / V° C''/ y i d a o h s i
N a m r> *> AV V
V ^ Y .CONCOPplA %
AO AAVOYELLES Altoksvillci/ A,-;'*
13
.LEGEND.
11 15 1G 17 18
© Stale Capitol
A Counfy Sco/j
LINCOLN_Cour>fy Names
PO P U LA T IO N KEY
^ Over 100.000
50,000 to 100,000
© 25,000 to 50,000
€> 20,000 to 25,000
© 10,000 to 20,000
® 5,000 fo 10,000
° 1,000 fo 5,000
o Under 1,000
CLEARTYPE
TR*OC»»*Rk RCC U iC A f .o f f .
COUNTY. TOWN
LOUISIANA
Scale of Miles
0 10 20 30 40 50
MAP NO. 6516
A M E R IC A N M A R C O M P A N Y , IN C .
ORIGINATORS 'V r C P \ * r SOU ru3i.<SME*S
E MAPS % ^ .t W W t » W T MAPS
-=—«== Mw VOR K ^
SHADED COUNTIES
USED IN SAMPLE
o Mansura P \' .Hereyvii:eoK«mMH „ A H A M I S S .
° SimmesPf /Wr.ST TtUClc
n
.EVANGELINE p s T" fA N P R Y T L St F ra t iW ill^ -i j■■■*».- J? | ■"•'S’ •’ . y
••Vale.WaneA > ’•[j - McIvUIq ^ f{ew Roads
•5‘ .6 do ! \r,c 'J
EAST
FELICIANA
r^ j” • oKentwood WASHINGTON/
1 HELENA ^f,ANG!-\ ^Franklinton I
3$ a T ahoaA . . . » /
Green ib u fg «<> R o M la n 'A B o g d u S a O -
.pAmita City ■— _______f
Sun0 ^.U; 3?-.
) . . , . . ;
^ K I N G S T O N f&enttyY A »
JtfAll A«*«4 : ° W S T . TAMMANY \. . i . O p e lo u sa s f Spjs:/-^------ b CJ\vT b a T O n IV /C Y ' 1 / p̂rS‘ ^ .
Elton V ^ D I A Grand <*teau0 .< ~ ~
D E S C R I P T I O N OF A SAMPLE OF TWEL V E S O U T H E R N STATES
The design of this sample is described as a stratified random sample
design. The universe is comprised of twelve states in the South Atlantic, East
South Central, and West South Central Census regions of the United States. The
states excluded in the three regions are Delaware, the District of Columbia and
West Virginia in the South Atlantic, Kentucky in the East South Central, and
Oklahoma in the West South Central regions.
Determination of the size of the sample was based on two criteria: 1)
the estimated amount of coverage by the field staff in the prescribed period of
time, and 2) the need for independent estimates for individual states in the
universe. It was estimated that 300 counties might be visited by the field staff.
It was recognized, however, that the larger counties would require more time and
this might be in proportion to the Negro population in the counties. For this
reason, a total of 300 sample "draws" xjere allocated to the twelve states, approx
imately proportional to the ratio of Negro population in each state to the 12 - state
total with some regard to the number of counties in each state. The four states'
having a Negro population of more than one million were allocated 30 draws per
state; five states with eight to nine hundred thousand population were allocated
25 draws; Arkansas and Tennessee were allocated 20 draws; Maryland, with only 24
counties, was allocated 15 draws.
With this allocation, a sampling rate on the Negro population in each ■
state was calculated and applied to a list of the counties' populations. The
counties were ordered geographically such that a systematic sample would insure
that each section of the state would be sampled in proportion to the Negro popula
tion. With this scheme, geographical sub-strata were created. In addition, the
larger counties would be in the draw more than once; for example, Baltimore City was
drawn nine times. As a result, the 237.counties selected for the sample represent ,<
300 work-load units.
Table 1 shows the characteristics of the universe which were used in the
sample allocation and the same characteristics for the sample counties. Table 2
contains results of the sample draw and a comparison of the universe and sample
standard deviations.
TABLE 1
COMPARISON OF UNIVERSE AND SAMPLE CHARACTERISTICS
STATE
Negro Population
1960 Census
Percent Negro
Population
Number
of Counties
Percent
in Sampl e
UNIVERSE SAMPLE UNIVERSE SAMPLE UNIVERSE SAMPLE POPULATION COUNTIE
Alabama 980,287 612,623 9 9 67 17 63 25
Arkansas 388,887 276,267 4 4 75 19 71 25
Florida 894,832 695,873 8 11 67 19 78 28 '
Georgia 1,124,834 508,252 11 8 159 25 45 16
'M.ouisiana 1,045,070 ' 693,561 10 11 64 21 66 33
Maryland 526',870 422,751 5 7 24 7 80 29
Mississippi 920,740 482,774 9 7 82 24 52 29
North Carolina 1,156,320 685,956 11 11 100 29 59 29
South Carolina ' 831,962 536,016 8' 8 46 21 64 46
Tennessee 588,936 428,641 6 7 95 11 73 12
Texas 1,178,300 726,429 11 11 254 22 62 9
Virginia 822,283 406,752 8 6 130 22 88 17
TOTAL 10.459,321 6,475,895 100 100 1,163 237 62 20
RESULTS CE THE SAMPLE D R A W
!
STATE
Lumoer
of Samples
Drawn:
Sampling
Rate.
1/
Standard Deviations of
Nesro Population
Universe Sample Difference
Aia oama 25 39,211 117,450 112,650 + 4,800
Arkansas . 20 19,444 92,480 111,860 - 19,380
Florida 25 35,793 162,300 140,700 + 21,600
Georgia . 30 37,494 220,200 437,400 -217,200
Louisiana 30 34,336 96,330 106,860 - 10,530
^ Maryland 15 35,125 80,080 71,600 + 8,480
Mississippi 25 36,830 95,370 124,270 - 28,900
North Carolina 30 38,544 151,740 170,460 - 18,720
South Carolina 25 33,278 46,600 56,500 - 9,900
Tennessee 20 29,447 191,360 236,210 - 44,850
Texas 30 35,277 411,840 743,040 -331,200
Virginia 25 32,891 174,690 299,700 -125,010
TOTAL 300 l 619,600 959,140 -379,540
In summary, the number of counties in the sample is 20% of the total number
of counties in the 12 states, and the sample counties contain 62% of the Negro popu
lation in the universe.
The total sample standard deviation, less than 107. of the total Negro
population in the twelve states, is well within acceptable limits on a variable which
has a 6% universe- standard deviation. It is reasonable to assume that the data
collected from the sample is correlated with the Negro population measure and
therefore statistical evaluations of the sample data will result in reliability of
the same magnitude.:
I
85
AFFIDAVIT OF DR. MARVIN WOLFGANG
Dr, Marvin Wolfgang, of lawful age, first being duly sworn upon oath,
deposes and saysj
1. I am a Professor of Sociology at the University of Pennsylvania and
Graduate Chairman of the Department of Sociology at that University, Among
other professional positions, I am presently President of the Pennsylvania
Prison Society and Vice-President of the American Society of Criminologists.
2. I have directed numerous scientific studies concerned with the nature,
measurement etiology, and treatment of criminal and anti-social behavior,
including those leading to the publication of Patterns in Criminal Homicide
(1958) and The Measurement of Delinquency (196!+) (with Dr. Thorsten Sellin),
I am presently co-director of the Center for Criminological Research at the
University of Pennsylvania, of the Age-Cohort Study of Delinquency, sponsored
by the National Institute of Mental Health, and of Socio-psychology Research
on Violence at the Social Science Research Center, University of Puerto Rico,
3. I have held grants from the Social Science Research Council and the
Fulbright Research program and a fellowship from the Guggenheim Foundation,
I have been a contributor to numerous professional journals, such as the
Annals of the American Academy of Political and Social Science, of which I
was until recently an Associate Editor, and the Journal of Criminal Law,
Criminology and Police Science of which I am Criminology Editor, I also served
as the official delegate of the American Sociological Association to the Sixth
International Conference on Social Defence of the United Nations (1961), and
presently serve as United States Representative to the Scientific Committee
of the International Society of Criminology,
U. I am the author of the monograph Crime and Race: Conceptions and
Misconceptions (1961+), In connection with its" preparation’and with my other
studies, I have had occasion to investigate in numerous aspects the relationship
between race, crime and punishment,
5, (On information and belief.) In the Spring of 1965, the NAACP Legal
Defense and Educational Fund, Inc,, 10 Columbus Circle, New York, N.Y.
represented a considerable number of Negroes sentenced to death upon conviction
of the crime of rape. The claim was and is being asserted by these persons that
in their respective states the death penalty Is applied in rape cases on a
racially discriminatory basis in violation of the equal protection and due
process clauses of the Fourteenth Amendment, Although the defendants were
paupers, the Fund — a corporation supported by private financial contributions —
had some limited resources available and determined to initiate an investigation
of the racial factor effecting imposition of the death penalty for rape in the
south. Professor Anthony Amsterdam of the University of Pennsylvania Law School,
a general consultant of the Fund, was one of the originators of the idea,
6, Late in March, 1965 Professor Amsterdam asked my assistance in the
investigation. In consultation with Fund attorneys, Professor Amsterdam and
I designed the study described below,
8 6
2
7. The hypothesis of the study is that Negroes convicted of rape of
whites are more frequently sentenced to death and more frequently executed, by
reason of race, than are other persons convicted of rape. To test this
hypothesis, means were devised to record, for each defendant convicted of rape
during a period of time and within a court system, the following data: race
of the defendant and race of the victim (independent variables); sentence imposed
and sentence executed (dependent varieties); and all other circumstances relating
to the offender, victim, offense and legal proceedings which were available
for analysis and might likely affect the choice of sentence imposed or executed
(control factors).
8. The instrument for recording these data was the schedule, titled
"Capital Punishment Survey," which is appended as Appendix I to this affidavit.
Its 28 pages are exhaustive of the available and known factors which, in my
opinion, and in the opinion of consultant attorneys experienced in criminal
litigation, are likely to affect the discretion of jurors and executive officials
in sentencing, or modifying a sentence imposed upon, a person convicted of rape.
Among the items of information requested are: race, age, family status,
occupation and criminal record of the offender and the victim; number of offenders
and victims involved in the offense; circumstances of the offense, including
extent of resistance by the victim, extent of violence used by the offender,
nature of the sexual relations practiced, nature of any incidental criminal
offenses committed by the offender, extent of preplanning of the offense by
the offender; relationship if any between the offender and the victim prior
to the offense; consequences of the offense, including pregnancy, venereal
disease and physical or psychic trauma suffered by the victim; circumstances of
the trial, including the number and nature of the charges, the number of
defendants jointly tried, the nature of defense representation, the defenses
raised, the method and nature of the disposition of all charges; and the nature
and consequences of any post-verdict judicial proceedings and proceedings
for executive clemency. With respect to each item of information requested,
standardization of responses was assured by inquiries framed in multiple-choice
or check-list form; and the attempt was made, as far as practicable, to restrict
the exercise of judgment in filling out the schedule by couching inquiries in
terms of simple and objective phenomena. For example, the extent of violence
used in the rape was to be recorded by checking the appropriate answer items
among the following: Defendant used weapon on victim/held victim, restraining
movement/pushed or shoved victim/knocked victim down/choked victim/slapped
victim/beat or kicked victim/cut victim/shot victim/otherwise abused victim
(specify), (The nature of any weapon used, the manner in which it was used,
the use, nature and extent of any threats, etc., were the subject of other
similarly designed questions.)
9. Eleven States (all those in which there had been any significant
number of executions for rape in recent years) were studied: Alabama, Arkansas
Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina,
Tennessee, Texas and Virginia, In each State, I arranged to have a random sample
of counties drawn, by approved sampling techniques, representative of the State
in vhite-Negro population ratio and urban-rural population ratio, and comprising
more than 35 per cent of the total population of each State. In each sample
county — 230 counties in the eleven States, comprising more than 50/5 of the
total population of those States — schedules were to be completed for every
87
3.
rape conviction in the state criminal court or courts of the county between
January 1, 19^5, and the date during the Summer of 1965 when field research
in that county was completed,
10, (On information and belief.) During the Spring of 19&5, Fund attorneys
and volunteer law students in several of the target States made preliminary
investigations of court and prison records in those States, for the purposes
of determining what sorts of information were likely to be accessible concerning
rape cases and in what sources.
11. The reports described in paragraph 10, supra were used by Professor
Amsterdam and myself both in designing the schedule described in paragraph 8
supra and in determining the method of data-gathering to be employed in the
study. On consideration of the leads developed and problems encountered by
these preliminary investigators, we determined that the sources of information
to be used in filling out the schedules would be court records (including
dockets, file jackets, files, entry books and transcripts in trial and appellate
courts), prison records, pardon or parole agency records, newspaper files and
attorney interviews. Priorities were established among the sources: schedules
were to be completed, if possible, on the basis of court, prison and agency
records; newspaper files and interviews were to be utilized only to the extent
that schedules could not he completed on the basis of those records. Sources
of information were to be indicated for each item on each schedule; in the event
of conflicting information from several sources, the conflict and the sources
were to be noted,
12, (On information and belief.) The researchers responsible for filling
out the schedules were law students who volunteered for the project through
the Law Students Civil Rights Research Council, a nationwise law student
organization. Twenty-eight students were used as researchers.
13. June 21, 1965, the students described in paragraph 12 supra attended
a conference at the University of Pennsylvania Law School with myself and
Professor Amsterdam, Frank Heffron, Esq.., a Fund attorney having administrative
responsibility for the project, and Mr. Steven Antler, Director of the Law
Students Civil Rights Research Council. Professor Amsterdam and I briefed the
researchers as a group on the legal and methodological aspects of the study,
instructed them extensively on the methods of gathering and recording data,
and examined with them the schedule which they were to use. A detailed
instruction sheet was distributed to them, a copy of which is appended as
Appendix II to this affidavit. After the students had been given an opportunity
to read the schedule and instruction sheet, all conference participants
including Professor Amsterdam and myself met in a session at which the students
raised such questions of unclarity in instructions or the schedule as then
occurred to them. These questions were resolved and definitive answers given
in the group session, so that the understanding of all researchers would be uniform.
lU. (On information and belief.) The researchers were then assigned to
teams responsible for specific States, and each team discussed with Messrs.
Heffron and Antler the sources of information which preliminary investigation
had indicated might be accessible in that State.
8 8
It
15. (On information and belief.) The twenty-eight researchers spent ten,
and in some cases twelve, weeks following June 21, 1965, conducting field research
in the target States. They functioned in teams of four or five, each assigned
to a State for a month or longer, under the direct supervision of a team chair
man who was in constant contact with fir. Heffron in the Fund’s New York office,
and with Mr, Antler at the New York office of the Council. All questions or
problems arising were thus resolved centrally, and wherever questions related
to general matters of methodology or to the construction of the schedule, supple
mental instruction sheets were distributed to all researchers, in order to
maintain uniformity of approach. There were relatively few such general questions
and problems: the detailed initial instructions and the June 21 conference were
in large part successful in anticipating difficulties. The researchers found
state officials, custodians of documents and attorneys cooperative; in some
areas they were assisted in making contacts by local attorneys related to the
Fund. The researchers completed their assigned work in all but a few Virginia counties.
16. In total, 2,672 schedules were returned. On the larger part of these,
most of the items were answered. The data thus supplied, in my opinion, should
provide an adequate basis, if analyzed by approved statistical methods, for
valid and reliable conclusions about the effect of race as a factor in determining
the imposition and execution of capital punishment for rape in the States studied,
17. Because of the voluminous and complex nature of the data whose exami
nation is required in order to arrive at such valid end reliable conclusions,
considerable time is needed for analysis before even preliminary opinions can
be formed concerning the effect of race on capital sentencing and executions
in the State of South Carolina. Three hundred and fifty-five schedules returned
from the following twenty-one randomly selected South Carolina counties must be
analyzed: Anderson, Greenville, Spartanburg, Union, Chester, Chesterfield,
Horry, Florence, Lee, Newberry, Abbeville, Aiken, Richland, Sumter, Clarendon,
Williamsburg, Berkeley, Orangeburg, Bamberg, Jasper, and Charleston.
18. As of January 1, 1966, preliminary analysis and evaluation of the
data from the study has been completed for the state of Louisiana. The results
solidly establish that the one factor which makes the difference between life
and death for convicted rapists in that state is their race and that of their
victim. Other available factors — degree of violence, victim's reputation
for chastity, defendant's prior record, plea, etc., — fail to account for the
racial disproportion in capital sentencing. The statistical methods employed
for the Louisiana data can be applied to ttfce South Carolina data, and should give a
similarly solid foundation for evaluation if adequate time for processing is
allowed.
Dr. Marvin Wolfgang
Sworn to and subscribed to before me
89Notary Public
■fctery Piihir,.
XU THE UNITE© STATES DISTRICT CDUST
SOS THE DISTSXCr OF SOUTH GASOLXHA
COLUMBIA DIVISION
LOUIS MOOSES,
•VS*
I
t
Petitioner,
!
STATE OS SOUTH CASOLIKA and
ELLIS C. MaGDOUGALL, Director,
South Cuaiiaa State Board of
Corrections,
:
CIVIL ACTION
$ NO. AC-1583
3
Xtapoadaits.
3
CESflFICATE OF SESVICE
I hereby certify that on this 13th day of January,
1*88, I served a copy of the Motion for Sohoarlay in tho abovo
ontitlod caao by depositing sane in tho Unitod Statoo Mall,
postage prepaid, addrocood to Honorable Daniel S. McLeod,
Attorney General of South Carolina, Wade Hanpton Office Sullding,
Golunbia, South Carolina.
MATTHEW J. PERSY
Attorney for Petitioner
January IS, 1*88.
90
AFFIDAVIT OF DR. MARVIN WOLFGANG
Dr. Marvin Wolfgang, of lawful age, first being duly swc .* upon oath,
deposes and says:
1. I am a Professor of Sociology at the University of Pennsylvania and
Graduate Chairman of the Department of Sociology at that University. Among
other professional positions, I am presently President of the Pennsylvania
Prison Society and Vice-President of the American Society of Criminologists.
2. I have directed numerous scientific studies concerned with the nature,
measurement etiology, and treatment of criminal and anti-social behavior,
including those leading to the publication of Patterns in Criminal Homicide
(1958) and The Measurement of Delinquency (196L) (with Dr. Thorsten Sellin),
I am presently co-director of the Center for Criminological Research at the
University of Pennsylvania, of thc Age-Cohort Study of Delinquency, sponsored
by the National Institute of Mental Health, and of Socio-psychology Research
on Violence at the Social Science Research Center, University of Puerto Rico.
3. I have held grants from the Social Science Research Council and the
Fulbright Research program and a fellowship from the Guggenheim Foundation.
I have been a contributor to numerous professional journals, such as the
Annals of the American Academy of Political and Social Science, of which I
was ’until recently an Associate Editor, and the Journal of Criminal Law,
Criminology and Police Science of which I am Criminology Editor. I also served
as the official delegate of the American Sociological Association to the Sixth
International Conference on Social Defence of the United Nations (1961), and
presently serve as United States Representative to the Scientific Committee
of the International Society of Criminology.
k. I am the author of the monograph Crime and Race: Conceptions and
Misconceptions (196U), In connection with its preparation and with ay other
studies, I have had occasion to investigate in numerous aspects the relationship
between race, crime and punishment.
5, (On information and belief.) In the Spring of 1965, the NAACP Legal
Defense and Educational Fund, Inc., 10 Columbus Circle, New York, N.Y.
represented a considerable number of Negroes sentenced to death upon conviction
of the crime of rape. The claim was and is being asserted by these persons that
in their respective states the death penalty is applied in rape cases on a
racially discriminatory basis in violation of the equal protection and due
process clauses of the Fourteenth Amendment. Although the defendants were
paupers, the Fund — a corporation supported by private financial contributions —
had some limited resources available and determined to initiate an investigation
of the racial factor effecting imposition of the death penalty for rape in the
south. Professor Anthony Amsterdam of the University of Pennsylvania Law School,
a general consultant of the Fund, was one of the originators of the idea.
6, Late in March, 1965 Professor Amsterdam asked my assistance in the
investigation. In consultation with Fund attorneys, Professor Amsterdam and
I designed the study described below.
91
2.
7. The hypothesis of the study is that Negroes convicted of rape of
whites are more frequently sentenced to death and more frequently executed, by
reason of race, than are other persons convicted of rape. To test this
hypothesis, means were devised to record, for each defendant convicted of rape
during a period of time and within a court system, the following data: race
of the defendant and race of the victim (independent variables); sentence imposed
and sentence executed (dependent variables); and all other circumstances relating
to the offender, victim, offense and legal proceedings which were available
for analysis and might likely affect the choice of sentence imposed or executed
(control factors).
Q, The instrument for recording these data was the schedule, titled
'Capital Punishment Survey," which is appended as Appendix I to this affidavit.
Its 28 pages are exhaustive of the available and known factors which, in my
opinion, and in the opinion of consultant attorneys experienced in criminal
litigation, are likely to affect the discretion of jurors and executive officials
in sentencing, or modifying a sentence imposed upon, a person convicted of rape.
Among the items of information requested are: race, age, family status,
occupation and criminal record of the offender and the victim; number of offenders
and victims involved in the offense; circumstances of the offense, including
extent of resistance by the victim, extent of violence used by the offender,
nature of the sexual relations practiced, nature of any incidental criminal
offenses committed by the offender, extent of preplanning of the offense by
the offender; relationship if any between the offender and the victim prior
to the offense; consequences of the offense, including pregnancy, venereal
disease and physical or psychic trauma suffered by the victim; circumstances of
the trial, including the number and nature of the charges, the number of
defendants jointly tried, the nature of defense representation, the defenses
raised, the method and nature of the disposition of all charges; and the nature
and consequences of any post-verdict judicial proceedings and proceedings
for executive clemency. With respect to each item of information requested,
standardisation of responses was assured by inquiries framed in multiple-choice
or check-list form; and the attempt was made, as far as practicable, to restrict
the exercise of judgment in filling out the schedule by couching inquiries in
terms of simple and objective phenomena. For example, the extent of violence
used in the rape was to be recorded by checking the appropriate answer items
among the following: Defendant used weapon on victim/held victim, restraining
movement/pushed or shoved victim/knocked victim down/chcked victim/slapped
vietim/beat or kicked victim/cut victim/shot victim/otherwise abused victim
(specify). (The nature of any weapon used, the manner in which it was used,
the use, nature and extent of any threats, etc., were the subject of other
similarly designed questions.)
9. Eleven States (all those in which there had been any significant
number of executions for rape in recent years) were studied: Alabama, Arkansas
Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina,
Tennessee, Texas and Virginia. In each State, 1 arranged to have a random sample
of counties drawn, by approved sampling techniques, representative of the State
in vhite-Negro population ratio and urban-rural population ratio, and comprising
more than 35 per cent of the total population of each State. In each sample
county — 230 counties in the eleven States, comprising more than 50# of the
total population of those States — schedules were to be completed for every
92
3.
rape conviction in the state criminal court or courts of the county between
January 1, 19^5, and the date during the Summer of 1965 when field research
in that county was conpleted,
10. (On information and belief.) During the Spring of 1965, Fund attorneys
and volunteer law students in several of the target States made preliminaiy
Investigations of court and prison records in those States, for the purposes
of determining what sorts of information were likely to be accessible concerning
rape cases and in what sources.
11. The reports described in paragraph 10, supra were used by Professor
Amsterdam and myself both in designing the schedule described in paragraph 8
-̂n determining the method of data-gathering to be employed in the
study. On consideration of the leads developed and problems encountered by
these preliminary investigators, we determined that the sources of information
to be used in filling out the schedules would be court records (including
dockets, file Jackets, files, entry books and transcripts in trial and appellate
courts), prison records, pardon or parole agency records, newspaper files and
attorney interviews. Priorities were established among the sources: schedules
were to be completed, if possible, on the basis of court, prison and agency
records; newspaper files and interviews were to be utilized only to the extent
that schedules could not he completed on the basis of those records. Sources
of information were to be indicated for each item on each schedule; in the event
of conflicting information from several sources, the conflict and the sources
were to he noted.
12. (On information and belief.) The researchers responsible for filling
out the schedules were law students who volunteered for the project through
the Law Students Civil Rights Research Council, a nationwise law student
organization. Twenty-eight students were used as researchers.
13. June 21, 1965, the students described in paragraph 12 supra attended
a conference at the University of Pennsylvania Law School with myself and
Professor Amsterdam, Frank Heffron, Esq., a Fund attorney having administrative
responsibility for the project, and Mr. Steven Antler, Director of the Law
Students Civil Rights Research Council. Professor Amsterdam and I briefed the
researchers as a group on the legal and methodological aspects of the study,
instructed them extensively on the methods of gathering and recording data,’
and examined with them the schedule which they were to use. A detailed
instruction sheet was distributed to them, a copy of which is appended as
Appendix II to this affidavit. After the students had been given an opportunity
to read the schedule and instruction sheet, all conference participants
including Professor Amsterdam and myself met in a session at which the students
raised such questions of unclarity in instructions or the schedule as then
occurred to them._ These questions were resolved and definitive answers given
in the group session, so that the understanding of all researchers would be
ll+. (On information and belief.) The researchers were then assigned to
teams responsible for specific States, and each team discussed with Messrs
Heffron and Antler the sources of information which preliminary investigation
had indicated might be accessible in that State.
93
15. (On information and belief.) The twenty-eight researchers spent ten,
and in some cases twelve, weeks following June 21, 1965, conducting field research
in the target States. They functioned in teams of four or five, each assigned
to a State for a month or longer, under the direct supervision of a team chair
man who was in constant contact with Mr. Heffron in the Fund's New York office,
and with Mr. Antler at the New York office of the Council. All questions or
problems arising were thus resolved centrally, and wherever questions related
to general matters of methodology or to the construction of the schedule, supple
mental instruction sheets were distributed to all researchers, in order to
maintain uniformity of approach. There were relatively few such general questions
and problems: the detailed initial instructions and the June 21 conference were
in large part successful in anticipating difficulties. The researchers found
state officials, custodians of documents and attorneys cooperative; in some
areas they were assisted in making contacts by local attorneys related to the
Fund. The researchers completed their assigned work in all but a few Virginia
counties.
16. In total, 2,672 schedules were returned. On the larger part of these,
most of the items were answered. The data thus supplied, in my opinion, should
provide an adequate basis, if analyzed by approved statistical methods, for
valid and reliable conclusions about the effect of race as a factor in determining
the imposition and execution of capital punishment for rape in the States studied.
17. Because of the voluminous and complex nature of the data whose exami
nation is required in order to arrive at such valid end reliable conclusions,
considerable time is needed for analysis before even preliminary opinions can
be formed concerning the effect of race on capital sentencing and executions
in the State of South Carolina. Three hundred and fifty-five schedules returned
from the following twenty-one randomly selected South Carolina counties must be
analyzed: Anderson, Greenville, Spartanburg, Union, Chester, Chesterfield,
Horry, Florence, Lee, Newberry, Abbeville, Aiken, Richland, Sumter, Clarendon,
Williamsburg, Berkeley, Orangeburg, Bamberg, Jasper, and Charleston.
18. As of January 1, 1966, preliminary analysis and evaluation of the
data from the study has been completed for the state of Louisiana. The results
solidly establish that the one factor which makes the difference between life
and death for convicted rapists in that state is their race and that of their
victim. Other available factors — degree of violence, victim's reputation
for chastity, defendant's prior record, plea, etc., — fail to account for the
racial disproportion in capital sentencing. The statistical methods employed
for the Louisiana data can be applied to ttfiae South Carolina data, and should give a
similarly solid foundation for evaluation if adequate time for processing is
allowed.
Dr. Marvin Wolfgang
Sworn to and subscribed to before me
this ___day o f _____________ , 1965.
Notary Public 94
‘ ZB THE DISTRICT COURT OF THE UNITED STATES
FOE THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Civil. ACTION BO. AC-1583
LOUIS MOORES, )
)
Petitioner, )
)
)
>
STATE OF SOUTH CAROLINA and
ELLIS C. MacDOUGALL, Director,
South Carolina state Board of
Corrections,
LINA and }
i. Director, J
a Board of )
>
)
Respondents. }
Upon reading the matters set forth in Motion for
j
Rehearing, filed January 13, 1966, upon considering the annexed
exhibits (not competent in this case) and having heretofore
noted the effort to obstruct justice and delay justice in this
case; there being no request for a hearing on the motion, the
Motion for Rehearing is DENIED.
AND ZT IS SO ORDERED
ROBERT W. HEMPHILL
ROBERT W. HEMPHILL
United States District Judge
Rock Hill, South Carolina
January 19, 1966
95
1
i» t h e u n i t e d s t a t u d i s t r i c t oourr
W t THE DISTRICT OP SOUTH CAROLINA
COLOMBIA DIVISION
)
LOUIS MOCRBR, )
P e t i t i o n e r , )
-VS- ) CIVIL ACTION
NO.
STATE OP SOUTH CAROLINA )
and ELLIS C. MacDOUGALL,
Diract o r , South Carolina )
State Board of Correction#,
)
Respondents. * 39
NOTICE OP APPEAL TO THE UNITED STATES COURT CP
' ___APPEAL POR THE FOURTH CIRCUIT________
NOTICE is hereby given that the petitioner
above naaed, hereby appeals to the United States Court
of Appeals for the Fourth Circuit fare* the Order of
Honorable Robert w. Hemphill, United States District
Judge, entered and filed herein on January 19, 1966.
January 25, 1966. ha rnraw-jr p e r r y --------
1107% Washington Street
Columbia, South Carolina
P. HENDERSON MOORE
39 Spring Straet
Charleston, South Carolina
JACK GREENBERG
NORMAN C. AMAKER
10 Columbus Circle
New York, Nee York 10019
Attorneys for Petitioner.
96
■ , -n
x a a a a
j
Caption I..... ...... .... ..i - - ■■■..»„ ■■ ■■
Socket Entries ..... . — — — ■...
Petition for frit of Habeas Corpus, Petition tor Leave
to proceed in F o m a Pauperis and Affidavit la Support
of Petition to Proceed in Foraa Pauperis .. ..» ■».. ..
Petition for Stay of Execution .................... .. . .<
Order Staying Execution ... ... . .............. ........ ...... .
Return of Sespondents .............. ............... ..... ..
Motion for Leave to file Amended Petition for Writ of Habeas Corpus ............... .. ... ...... ...
Aaended Petition for Writ of Babeas Corpun .-... .
Petition that this Court retain jurisdiction for Writ of
Babeas Corpus and Stay of Execution .... ..........
Order continuing stay of Execution and to Sbov Cause
Order Remanding Case to State Court and vacating Stay of
Execution and Relinquishing Jurisdiction .... — — — - ......— .. -
Petition for Stay of Execution, Petition for Writ of
Habeas Corpus with copy Order of The Supreme court of
South Carolina attached thereto <■-" ■■ -.. — ........... ......
Reporter’s Transcript of Hearing an Aaended Petition for
Writ of Habeas Corpus «. See Volume XX.
Certificate of Probable Cause ............. .......... ......
notice of Appeal---------- ---— — ■■■■ ... -
Order of Honorable Clement F. Baynsvorth, U. S. C. A.,
granting Stay of Execution and peraissioa to appeal in
Forma Pauperis .........................<
Order and Mandate froa 0. S. C. A. reaanding case to this
Court for further proceedings .
Order that the execution of the sentence of death imposed by
the Court of General Sessions of Dorchester County, S. C. be
stayed pending the termination of further consideration of
this Court .... -..
Reporter’s transcript of Pretrial Hearing on July id, 1985,
See voluae XXX.
Pretrial order — — — — — — ...
- i -
SSSSL Eo,
1
l(o)
a
10
14
18
20
21
28
22
37
57
7 1
7 2
7 3
7 8
80
9 1
97
IKttlX
Page Wo«
Order for ft Writ of Habeas Corpus for the purpose of
having said Petitioner brought before this Court on
August 1*# 1966, at Columblat South Carolina .......... ...... 06
Reporter's Transcript of Hearing on August 16. 1996 -
See Volume XT*
Motion for Petitioner to Withdraw Exhibit Ho. 1 for
Copying----------- - - ■ --------------------- , 87
Order of Judge Basphill denying Relief Sought by
Petitioner — — — • - — — — — — 89
Motion for Rehearing (with attachments) — — 108
Order denying Motion for Rehearing .... ..- 160
notice of Appeal to 9. 9. C. A. ..— ■ — — — — — — - 181
Clerk's Certificate ------- - - ..... ... ...183
Notei Petitioner's Exhibits Noe. 1 and 2 are enclosed
in a separate envelope. Also enclosed are six
copies of booklet entitled "Capital Punishment
Survey*"
98
:ir\
CAvrios
XX tax UNITED STATES DI8TRICT COURT TDK TEX
DISTRICT OT SOOTH C4203UXM
Civil
At * United States District Court ter the
lastsra District of South Carolina
begun and hold at the Baited States
Courthouse In Coltstbia, South Carolina,
April 1, 1868.
presents Honorable Robert V* Henphlll, Jr.,
Halted States District Judge for the District of
South Carolina.
proceedings sere as follows!
99
C U K ' S OtETIMCATS
xv m i m rsm states district court id* tbs
DISTRICT Of SOUTH CAROUVA
Civil
I, Miller C. foetar, Jr., Clark of the
United States District Court for tbs District
of South Carolina, do hereby certify that tha
foregoing is tha original record la tha ease of
Louis Moorer versus State of South Carolina and
Sills C, HacDougall, Director, South Carolina
State Board of Corrections, Civil Aetioa AC-1583,
together with Order of Honorable Robert V. Besphill
entered and filed January 18, 1988 and all papers
relating to the saae«
Given under ay band and seal of said
Court,, at Charleston* South Carolina,, this 4th 'day
of Uarch, 1968*
(Seal)
KXUUER C. POSTS®, JR.
C, D* I, S. C, D, 8. C.
By| Deputy Clerk
The State of South Carolina
IN THE SUPREME COURT
APPEAL FROM DORCHESTER COUNTY
H onorable Steve C. Griffith, J udge
THE STATE, Respondent,
against
LOUIS MOORER, Appellant
TRANSCRIPT OF RECORD
W. Newton P ough,
125 Boulevard, N. E.,
Orangeburg, S. C.,
Attorney for Appellant.
H on. Julian S. W olfe,
Solicitor,
Orangeburg, S. C.,
and
Sidney B. Jones,
Summerville, S. C.,
Attorneys for Respondent.
101
8 SUPREME COURT
The State v. Moorer
STATE’S EVIDENCE
29
Mr. Wolfe: Shall I proceed, Your Honor?
The Court: Yes.
Mr. Wolfe: Mrs. Catherine D. Johnston, will you
please come around and be sworn?
Mrs. Catherine D. J ohnston, a witness on behalf of
the State, being duly sworn, testifies:
Direct Examination
By Mr. W olfe:
80 Q. I believe your name is Mrs. Catherine D. John
ston?
A. Yes, sir.
Q. Mrs. Johnston, where do you live?
A. On Johnston Street.
Q. Is that in the town of St. George, Dorchester
County ?
A. Yes, sir.
Q. Mrs. Johnston, were you living there on De
cember 14th, 1961?
81 A. Yes, sir.
Q. That is in Dorchester County?
A. Yes, sir.
Q. Mrs. Johnston, did you know the defendant,
Louis Moorer, who sits in court?
A. Yes, sir.
Q. How long have you known him approximately?
A. Six or seven years.
Q. Mrs. Johnston, state whether or not he worked
around your house or yard from time to time?
A. He worked more in the yard. He raked the yard,
fertilized, shake the pecan trees, and occasionally he
1 0 2
SUPREME COURT
Appeal from Dorchester County
9
Mbs. Catherine D. J ohnston
would come in the house and clean the brass. On one
occasion, two occasions I took him to the beach, one
time after a storm—a group of us went down to clean
up. Another time two years ago for several days, I
thought maybe I might make a house party but it didn’t
work out.
Q. You and Dr. Johnston paid him as a worker!
A. Sir!
Q. I say. You all paid him as a worker!
A. Yes, sir.
Q. You paid him for his services!
A. Yes, sir.
Q. Now, Mrs. Johnston, on December 14th, 1961, in
the town of St. George, in Dorchester County, were
you at home on that date!
A. Yes, I was at home.
Q. Who was at your house on that occasion or on
that day, that is December 14th, 1961!
A. Well, that morning, two ladies were there from
the florist. Two ladies from Byrd’s Florist were there,
at my house, Christmas decorating. Several people
dropped in. Then about twelve-fifteen there were no- 36
body there, up until about one-thirty-five my sister-
in-law came by.
Q. Was Louis Moorer there working around the yard
that day!
A. Louis came to my house about eight o ’clock.
About twelve o’clock he left to go to dinner. He said
he would come back after dinner and finish the work.
He came back to my house approximately around one-
forty-five.
Q. At the time he came to your house approximately
one-forty-five on this date in question, that is, Decem
ber 14th, 1961, where were you at then!
103
The State v. Moorer
M rs. Catherine D. Johnston
8, A. When he first got there, I was in the kitchen talk
ing to my sister-in-law, Mrs. Sharpe. Then she left and
I was there alone until my children came from school.
Q. What size house do you and Dr. Johnston own,
Mrs. Johnston?
A. Well, it is a story and a half, seven or eight
rooms.
Q. How many children do you and Dr. Johnston
have!
A. I have four sons.
3g Q. How long have you been rfiarried?
A. Twenty-five years.
Q. Now, Mrs. Johnston, I believe you stated that
your sister, Mrs. Sharpe—
A. My sister-in-law.
Q. Left the house about one-thirty-five?
A. She came at one-thirty-five and left approxi
mately at one-forty-five.
Q. Did she leave by the front door or the back door,
if you remember?
39 By the back door and I walked on to the back
door with her.
Q. At that time do you remember where Louis
Moorer was?
A. Well, when I was walking from the kitchen on
through the dining room, in the living room, I heard
Louis either sweeping or raking at the front, either the
front yard or the front porch.
Q. Do you know whether Mrs. Sharpe left by car?
A. She left by car.
Q. Was anyone else in the house or nearby when
40 Mrs. Sharpe left?
A. No, sir.
10______________ SUPREME COURT________________
104-
SUPREME COURT
Appeal from Dorchester County
11
Mrs. Catherine D. J ohnston
Q. Then, Mrs. Johnston, after she left, would you
tell this Court and Jury when you saw Louis Moorer
again and under what circumstances!
A. You want me to tell it!
Q. Yes, ma’am, just tell exactly what happened.
A. My sister-indaw, Mrs. Sharpe left about one-
forty-five. I walked on through the living room and
dining room. I heard Louis out front working. We had
been Christmas decorating. I walked to the door to
tell him to sweep up all of the trash off the porch. Well,
I have a heavy wooden door and a louvered door. I
left the wooden door open and stood there talking to 42
Louis. I realized that he would need a dust pan to
get the trash up. I told Louis that I would get him the
dust pan. I closed the louvered door and left the
wooden door open, and walked on in the house. As I
started in the house, Louis stepped through the door.
I thought he had misunderstood and I said, “ No, Louis,
you wait on the front porch and I will bring the dust
pan.” I went through my living room and dining room
and got the dust pan out of the broom closet. I got
the dust pan and started through the dining room and 43
saw Louis running towards me, and he grabbed me
with both arms, just like this. (Demonstrating.) I said,
“Louis, here is the dust pan.” He said, “Dust pan! Dust
pan! We don’t need no dust pan for what I am going
to do to you.” Well, we started struggling and fighting.
We got all around my sofa until we got right in front
of the fireplace. I was pleading with Louis that he
was a young boy and that whatever he was going to do
would follow him all of his life and he would have to
pay for it. That if he would leave at that time that I
would not tell, just to go ; and with that he threw me
down on the floor, fell on top of me and took my head
105
12 SUPREME COURT
The State v. Moorer
Mrs. Catherine D. J ohnston
and beat it up and down on the floor just like this, and
said, “Hell, tell, tell, tell. Who is going to tell? I
ain’t going to leave you to tell.” Well, we struggled
and fought some more and I got right to the corner of
the stairsteps. He had my slip up and was trying to
get my pants down. I had managed to cross my legs
and get them together. He took my left arm and
started twisting it. He twisted my arm until I thought
it would break. He looked at me and he said, “ Uncross
your legs or open your legs and I won’t hurt you any
more.” I said, “ No, no.” He twisted my arm some
46 more. We continued to fight and struggle. We got right
in front of my door. As I told you my wooden door
was open, the louvered door was closed. I was pleading
with him again to please go and I told him that a man
from Sharpe-McMahon was going to come in just a
little while and bring a Christmas tree and that who
ever came would kill him if they caught him like that.
Just for a second, he paused like he was going to
listen to me. I screamed as loud as I could. When I
screamed, he took his hands and put them around my
47 throat and choked me until I reckon I could see spots
in front of my eyes. I thought I was going out, 1
thought he was killing me. I closed my eyes and he
relaxed his grip from me. Then we fought some more.
I felt like I could almost maybe get away and then he
would down me again. He started all the time pulling
at my clothes and trying to get to me and trying to get
my legs uncrossed. Then he started kissing me. He
took his tongue and tried to open my mouth. He had
his mouth and tongue all over my face. I slapped him
as hard as I could with all the strength I had. He hit
me right over my temple and took my fists and started
slapping me like that and said, “ Don’t you never do
106
Appeal from Dorchester County
Mrs. Catherine D. J ohnston
that again to me, Miss Kitty, when I kiss you. Don’t
you never. I came to get it and I will stay until I get
it.” Well, we fought on and, of course, I was getting
worn out. Finally he started hitting me right here.
Q. That is in the front of the breast!
A. Right here.
Q. In the stomach!
A. Right here in the front. Started pounding and
then he started kissing me some more. I turned my
face. He started pulling my clothes some more. He had
my pants down. I think my legs were still crossed. I
was still fighting. I tried to turn my face away from
his kisses. I could feel myself, I was coming and going
away from him and my arms went limp. I realized
that the fight was just about over. I could not light
any more. Of course, he was on top of me. He was
saying—it seems like I could hear him saying, “ Is it
in, is it in! Put it in. Hug me tight, hug me tight, Miss
Kitty.” I reckon I went on out. I could not tell you any
thing right then. The next thing I knew, it seem like
just for a minute he relaxed, just for a split second. I
jumped up and went through the louvered door and
just as I started through the door, he grabbed at my
skirt, but I got on through the door. As I got through
the door, I saw a car was stopping out front and my
fourteen year old son was getting out of the car. School
was out, it was two-fifteen. I did not want the school
children to see me. I felt disgraced and humiliated. I
sat down on the steps and did like this. (Indicating.)
Then I heard the front door open and close. I looked
up and there was Louis standing over me, and my
little eleven year old boy was standing behind. He
said, “ Don’t you tell, don’t you tell. You better not
tell. I mean it, don’t you tell.” I said, “ Louis, just
SUPREME COURT 13
14 SUPREME COURT
The State v. Moorer
Mbs. Catherine D. J ohnston
g3 leave this yard and never come back again.” I got up.
I reckon he left. I got up and went on in the house.
My two boys were in there asking me what in the
world was wrong with me. I was panting so for breath.
I realized that something had to be done. They kept
wanting to know what had happened. I could not let
them know what had happened. I asked the youngest
little boy to go and get my sister-in-law, Mrs. Sharpe.
I reckon that was about two-twenty.
Q. Mrs. Johnston, did he ravish you or commit
rape?
64 A. Yes, sir.
Q. Mrs. Johnston, I believe you have, in your tes
timony, told of going to the front to meet your young
boy who was out of school, what did you do next after
that, Mrs. Johnson?
A. After my little boy was coming up the walk?
Q. Yes, ma’am.
A, My one thought was to get in the house and not
the child know what had happened. I went on in and
sent for my sister-in-law.
£6 Q. I believe, at that time, Mrs. Johnston, your hus
band, Dr. Johnston, was out of town?
A. Yes, sir, he was hunting.
Q. He was hunting?
A. Yes, sir, he had gone for the day.
Q. So then, you immediately sent or called your
sister, Mrs. Sharpe?
A. I sent for her.
Q. You conferred with her?
A. As soon as I could talk, I tried to tell her what
had happened.
Q. Do you know where Dr. Johnston, your husband,
was hunting that day?
56
108
SUPREME COURT
Appeal from Dorchester County
15
Mbs. Catherine D. J ohnston
A. Yes, sir, he was hunting down at Lincoln Green,
which is about twelve miles from St. George. They
were out in the woods.
Q. Was Dr. Johnston there for dinner or that morn
ing!
A. No, sir, he left that morning to be hunting all
that day.
Q. I believe Lineolnville is the Southern Railroad
property?
A. Lincoln Green is the Southern Railway prop
erty.
58Q. And that is in Dorchester County also?
A. Y7es, sir.
Mr. Wolfe: YTour Honor, I have the clothes if you
would like to see them.
The Court: I don’t care about seeing them. Before
you disclose them, offer them to counsel and see if
there is any objection.
(Mr. Wolfe offers clothes to counsel for inspection.)
Mr. Pough: We object to them, Your Honor.
The Court: I sustain the objection at this time. I 69
see no necessity for them.
Mr. Wolfe: Nothing further from the State at this
time. You may examine the witness.
Mr. Pough: Nothing from the defense. No ques
tions.
Mr. Wolfe: You may come down, Mrs. Johnston.
(Mrs. Johnston leaves the witness stand.)
Mr. Wolfe: Mrs. Sharpe, will you come around,
please.
60
109
16 SUPREME COURT
The State v. Moorer
Mrs. E thel Sharpe
Mrs. E thel Sharpe, a witness on behalf of the State,
being duly sworn, testifies:
Direct Examination
By Mr. W olfe:
Q. I believe your name is Mrs. Ethel Sharpe?
A. Yes, sir.
Q. What is your full name?
A. Mrs. Ethel Johnston Sharpe.
Q. Where do you live?
A. St. George, on Horne Street.
Q. Is that in Dorchester County?
A. Yes, sir.
Q. I believe that Mrs. Catherine D. Johnston who
has just preceded you to the witness stand is a sister?
A. Sister-in-law.
Q. Sister-in-law?
A. Yes, sir.
Q. Mrs. Sharpe, on this occasion—I might ask you
this, are you married?
A. Yes, sir.
Q. Do you have a family?
A. Yes, sir, two girls.
Q. I believe your husband is in business in St.
George?
A. Yes, sir.
Q. Mrs. Sharpe, on this occasion, that is, Decem
ber 14th, 1961, did you have occasion to see your sis
ter-in-law, Mrs. Johnston, that morning?
A. I went by there and talked with her that morn
ing; earlier that morning, I talked with her and I
went by there about one-forty-five, I reckon it was,
to see her Christmas decorations because we were
going out of town together.
1 1 0
SUPREME COURT
Appeal from Dorchester County
17
Mrs. E thel Sharpe
Q. Approximately what time did you leave there
that day!
A. I left about one-forty-five, I would say. I did
not stay very long because I was going to school to
pick up my little girl, so I could take her home before
we left town.
Q. Did you see Louis Moorer there at that time?
A. I did not see him when I was leaving the house
but after I left her house, I parked on the corner,
facing her house, in the direction towards my house,
waiting on the school bell to ring. I looked up and
saw Louis out in the raking and my first thought was,
that her house looked so pretty she wanted the yard
to be raked. I saw him go up on the steps and on the
porch but I thought nothing about it because I re
membered there was a lot of trash on the porch to
be picked up.
Q. Now when you left the Johnston home at one-
forty-five, as you have testified to, was anyone else
at home at that time with Mrs. Johnston?
A. No, sir, there was no one else there.
Q. Does anyone live close by?
A. Yes, sir, she has neighbors on both sides.
Q. Did you happen to see any neighbors out in
front of either house as you drove to school?
A. No, sir, no one.
Q. So, then, Mrs. Sharpe, you left, as you have tes
tified, approximately one-forty-five?
A. Yes, sir.
Q. Approximately when did you hear further from
Mrs. Johnston?
A. Well, I would imagine it was about two-fifteen
or two-twenty. The bell rings at two. I thought that
day my little girl was a little slow in coming. Then
18
The State v. Moorer
SUPREME COURT
M bs. E thel Sharpe
as I passed her house, which was—I was parked only
about two hundred or two hundred and fifty feet from
her house. When I passed, her little boy ran out and
called me and asked me to come in, that she wanted
to see me.
Q. Well, you had conference with her. I don’t think
you can go into the conversation. Would you describe
her condition!
A. Well, when I saw her, when I went in, she met
me in the hall, right in the hall. Her hair was all
messed up. She had a terrible bruise over her left
70 cheek and I noticed her throat was so red, she just
looked awful, because I had just left her. She caught
me by my arm and carried me in the bathroom, be
cause her little eleven year old boy was right behind
me. I asked her what had happened.
The Court: Just a minute, don’t go into any con
versation you had with her.
Mr. Wolfe: You did have a conversation or con
ference with her!
A. I did.
71 Q. As a result of that conversation or that confer
ence what did you do next, please, ma’am!
A. Well, when I finally got out of her what had hap
pened—she was so upset—she finally told me what
had happened and—
Q. You can’t go into any detail of what she told you.
A. I gave her something to quiet her. Then I called
to my husband and told him to come around imme
diately.
Q. Now, approximately what time was that, if you
remember, Mrs. Sharpe!
A. Well, I imagine I called my husband about twen
ty minutes to three, I guess, somewhere along in there,
112
SUPREME COURT
Appeal from Dorchester County
19
Mbs. Ethel Sharpe
twenty minutes or a quarter to three. He came as soon
as he could. He could not come right away because
there was n o o n e i n the store. He got there just shortly
after three, as well as I remember.
Q. You conferred with him?
A. 1 told him then—
Q. You can’t tell him what you told him. You con
sulted with him?
A. Yes, sir.
Q. As a result of the information you imparted to
him, what happened next!
A. H e went for Dr. Johnston and I told him where u
Dr. Johnston was and to go for him.
Q. Approximately what time did Dr. Johnston ar
rive ?
A. I imagine it was about four o ’clock.
Q. Were you at the home when Dr. Johnston came?
A. Yes, sir.
Q. Do you know what took place next or did you
go with them anywhere?
A. Yes, sir.
Q. Where did you go?
A. 1 went down to the office. Dr. Johnston went
ahead of us and then [ carried Mrs. Johnston down.
Q. You carried Mrs. Johnston to Dr. Johnston’s of
fice?
A. Yes, sir.
Q. Approximately what time was that?
A. Well, I imagine that was about four-thirty or
twenty-five minutes to five, somewhere along in there.
Q. Was that in Dorchester County?
A. Yes, sir, right down town.
Q. Dr. Johnston is a general medical practitioner?
A. Yes, sir.
113
20 SUPREME COURT
The State v. Moorer
Mrs. E thel Sharpe
James M. Sharpe
T7
Q. Do you know what examination, if any, was made
or were you present when—
The Court: I would not go into that with her, not
this witness.
Mr. Wolfe: How long did you wait at Dr. John
ston’s office?
A. I imagine we were there about fifteen minutes,
probably because he went ahead of us and had every
thing ready.
Q. Then, did you take Mrs. Johnston home after
7s that?
A. Yes, sir.
Q. Is that substantially what you know about it,
Mrs. Sharpe?
A. Yes, sir.
Mr. Wolfe: You may examine the witness.
Mr. Pough: No questions.
Mr. W olfe: Thank you, Mrs. Sharpe, you may come
down.
(Mrs. Sharpe leaves the witness stand.)
Mr. James M. Sharpe, a witness on behalf of the
State, being duly sworn, testifies:
Direct Examination
By Mr. Jones:
Q. Will you state your name, please?
A. James McKissick Sharpe.
Q. Where do you reside?
A. Horne Street, in St. George.
Q. What type of business are you in?
A. Building supply, Sharpe-McMahon Building
Supply.
114
r x
SUPREME COURT
Appeal from Dorchester County
21
James M. Sharpe
Q. Where is your office located!
A. On Main Street in St. George, Highway 15.
Q. Approximately how far from the home of Mrs.
J ohnston f
A. I would say about three-quarters of a mile.
Q. Are you any relation to Mrs. Ethel Sharpe who
just testified?
A. That is my wife.
Q. Would you state whether or not on the afternoon
of December 14th, 1961 anything unusual occurred?
A. Nothing but the accident of Mrs. Johnston.
Q. Did you receive a telephone call that afternoon!
A. My wife called me to come to Mrs. Johnston’s
house about twenty minutes of three.
Q. As a result of that call, did you go to Mrs. John
ston’s house?
A. I couldn’t leave right then, my partner was out.
When he got back, I went right on around there. It
must have been about five or ten minutes after three,
something like that.
Q. About ten after three on the afternoon of De
cember 14, 1961, you arrived at the Johnston home in
St. George?
A. Yes, sir.
Q. At the time of your arrival, who was present?
A. Mrs. Johnston and my wife, Mrs. Sharpe.
Q. Would you describe to the gentlemen of the jury
Mrs. Johnston’s condition at the time that you arrived?
A. It was bad. Her hair was all tangled up. Of
course, my wife got it straightened up, got it combed.
Her face had a blue spot on it, her neck was red. She
was pretty shook up and nervous.
Q. Was Dr. Johnston there?
115
22 SUPREME COURT
The State v. Moorer
J ames M. Sharpe
A. No, sir, that is what I went to the house for,
to go and get Dr. Johnston.
Q. Did you go and get Dr. Johnston?
A. Yes, sir.
Q. Where was Dr. Johnston?
A. He was at Lincoln Green hunting.
Q. That is down near the town of Dorchester?
A. Yes, sir.
Q. Did Dr. Johnston return with you?
A. No, sir, he went in his car and I went in mine.
86 We came separately.
Q. Approximately what time did you get back?
A. I got back, I reckon, about ten minutes after four
when I got to his house.
Q. What time did Dr. Johnston arrive?
A. He beat me about ten minutes but it was raining
and I did not drive fast and I told him not to drive
fast.
Q. When you arrived he was there?
A. Yes, sir.
87 Q. What, if anything did you do after you got
there ?
A. Well, I went on back to work. There was nothing
I could do. The doctor was there. The main thing I
had to do was to get him. I carried Mrs. Johnston’s
little boy and my two girls to my house to get them
out of the way.
Q. You returned to your place of business?
A. Yes, sir.
Mr. Wolfe: You may examine the witness.
Mr. Pough: No questions.
(Mr. Sharpe leaves the witness stand.)
116
SUPREME COURT
Appeal from Dorchester County
23
Dr. A. R. J ohnston
Dr. A. R. J ohnston, a witness on behalf of the State, g#
being duly sworn, testifies:
Direct Examination
By Mr. W olfe:
Q. I believe your name is Dr. A. Richard Johnston?
A. Yes.
Q. Dr. Johnston, where do you live?
A. Johnston Street, St. George.
Q. Dorchester County?
A. Yes, sir.
Q. Dr. Johnston, how old are you?
A. Forty-eight.
Q. Are you married?
A. Yes, sir.
Q. I believe Mrs. Catherine D. Johnston is your
wife?
A. Yes, sir.
Q. Dr. Johnston, how many children do you have?
A. Four boys.
Q. Dr. Johnston, I believe you are a general medi
cal practitioner?
A. Correct. 91
Q. Dr. Johnston, on this date in question, that is,
December 14th, 1961, were you out of the city that
day?
A. I was.
Q. Where were you at, Doctor?
A. Hunting at the Southern Railway forest near
Dorchester.
Q. That is in the lower part of Dorchester County?
A. Yes, sir.
Q. Dr. Johnston, approximately what time that
morning did you leave home?
A. Seven o ’clock, just a little before seven, I guess.
11?
24 SUPREME COURT
The State v. Moorer
Dr. A. R. J ohnston
9s Q. Was Louis Moorer at your home when you left!
A. No, sir.
Q. How long have you known Louis Moorer, the
defendant who sits in court?
A. I reckon I have known him most of his life.
Q. Dr. Johnston, approximately what time did you
leave St. George that day to go hunting!
A. I left a little before seven o ’clock. We have
breakfast at the club house before we go out.
Q. Do you close that day in St. George or were you
just hunting?
A. Yes, wTe close Thursday afternoon and I took
that whole day off, that particular day.
Q. Dr. Johnston, during the afternoon of Decem
ber 14th, 1961, did you receive certain information in
regards to a happening here at your home in St.
George?
A. I did.
Q. What time approximately was that?
A. It was in the neighborhood of three-thirty or
quarter of four because I was home shortly after that.
96 Q. As a result of receiving the call, Doctor, you
came home immediately?
A. Yes, sir, I did.
Q. As a result of that, what did you do next, please,
sir?
A. Well, as soon as I got the information of what
had happened, I took care of my wife. She was in a
state of shock. After looking her, following that I
called Mr. WTlson Wimberly, the Deputy.
Q. Pardon me, before you get to that, state whether
** or not you went to your home first?
A. I went to my home first, yes, sir.
118
SUPREME COURT
Appeal from Dorchester County
25
Dr. A. R. J ohnston
Q. Was Mrs. Johnston there! m
A. She was.
Q. Who else was there, if you remember!
A. My sister, Mrs. Sharpe.
Q. As a result of information given to you, what
did you do next!
A. Well, as I have stated, she was in a state of
shock. I took care of that first and I told her I would
take her down to the Office and make an examination.
I would have called Dr. Appleby to do the examina
tion but he was out of town at the time. We had a
medical meeting that night. I think he had gone down »
to Ridgeville to his wife’s home and was going on from
there to the meeting. So, there was no other doctor
in town and it was left up to me to make the exami
nation, to see just what had happened.
A Q. Doctor, did you make that examination!
A. I did.
Q. Doctor, would you tell the Court and Jury what
findings there were!
A. When you make an examination for that, you
aspirate the contents of the vagina and you use that M
on a slide on the microscope. You may find dead or
live sperms. In this case I found live ones. That was
made at four-thirty.
Q. That was in your office!
A. In my office.
Mr. Wolfe: Your Honor, I know under the S u tter
case and other cases that the Supreme Court has held
that a party can be advised, particularly where a girl
gives facts to the mother in these cases. I was wonder
ing if I could ask the Doctor—I don’t want to tread
upon the rules in Court—I never had a case exactly
like this.
119
26 SUPREME COURT
The State v. Moorer
Dr. A. R. J ohnston
The Court: Just ask the question and I will see what
it is.
Mr. Wolfe: Dr. Johnston, did Mrs. Johnston tell
you what had taken place ?
The Court: No, 1 will exclude that question.
Mr. Wolfe: Would you describe her condition in
more detail, if you will?
A. When I arrived at the house, she was on the bed
at the time. She was in a state of shock. Can I tell
what I found on arrival?
The Court: Oh, yes, you can tell anything that you
saw.
The Witness: Of course, she was in a state of shock.
She was naturally somewhat better because my sister
had been looking after her and had given her some
ammonia and something as a nerve sedative before I
arrived. She still had a bruised area on her temple,
her throat was quite red wfhere she was choked. Then
they carried me in the living room and I could see
where the rug was all scuffed up and bobby pins, etc.,
were all over the rug where the scuffle had taken place.
So after she relaxed and quieted up enough, I took
off to the office to get things ready. As I say, Dr. Ap
pleby was away from town and it fell on me to make
the examination. She followed me on down, my sister
brought her on down. The examination was made and
I came on back home.
Mr. Wolfe: Thank you, Doctor. You may examine
the witness.
Cross Examination
By Mr. Pough:
Q. Doctor Johnston, I believe the defendant had
been working for you for several years, am I correct?
A. Part time.
SUPREME COURT
Appeal from Dorchester County
27
Dr. A. R. J ohnston
W ilson W imberly
Q. Part time, on and off?
A. Yes.
Q. Doctor, during that time did the defendant react
as a normal person in keeping with his age and ex
posure?
A. So far as I know he did.
Q. Was he courteous?
A. He was.
Q. He was never boisterous or anything of that kind
around the house?
A. No.
Mr. Pough: I have no further questions.
Mr. Wolfe: You may come down, Dr. Johnston.
(Dr. Johnston leaves the witness stand.)
Mr. W ilson W imberly, a witness on behalf of the
State, being duly sworn, testifies:
Direct Examination
By Mr. Wolfe:
Q. I believe your name is Wilson Wimberly?
A. Yes, sir.
Q. Mr. Wimberly, are you one of the Deputy Sher
iffs in Dorchester County?
A. Yes, sir, Deputy Sheriff and Jailer.
Q. Mr. Wimberly, how old are you, please, sir?
A. Forty-five.
Q. How long have you served as an officer in Dor
chester County?
A. June coming will be nine years.
Q. Mr. Wimberly, in pursuance of your duties as
an officer, state whether or not on December 14, 1961,
1 2 1
28 SUPREME COURT
The State v. Moorer
W ilson W imberly
you had occasion to be called in regards to the case
now in hearing ?
A. Yes, sir.
Q. Where were you at that time, please, sir?
A. At the jail house.
Q. Approximately what time were you called?
A. Around four-twenty or four-thirty.
Q. As a result of information received, what did
you do, please, sir?
A. Well, I immediately called the Sheriff.
Q. You called Sheriff Knight?
no A. Yes, sir.
Q. You called him?
A. Yes, sir.
Q. After you called Sheriff Knight, I believe he
lives near Summerville?
A. Yes, sir.
Q. What did you do next, please, sir?
A. Well, he asked that—
Q. You can’t tell what he told you. You conveyed
certain information to him?
A. Yes, sir.
Q. As a result of your conveying certain informa
tion to Sheriff Knight, what did you do next?
A. I called Deputy Sheriff Marchant and the Chief
of Police, Jack Robbins.
Q. Deputy Sheriff Marchant and the Chief of Po
lice Mr. Jack Robbins?
A. Yes, sir. We got in touch with the Magistrate
and had a warrant fixed. We knew Moorer. I knew
him before.
Q. How long have you known Louis Moorer, the de-
m fendant?
A. Oh, off and on, I imagine a year.
1 2 2
Appeal from Dorchester County
_____ SUPREME COURT 29
W ilson W imberly
Q. What did you do next, Mr. Wimberly!
A. Well, he came and we got a warrant from Mr.
Walters.
Q. That is Magistrate H. H. Walters, Jr.!
A. Yes, sir.
Q. He is the local Magistrate in St. George, Dor
chester County!
A. Yes, sir.
Q. Did you then locate Louis Moorer, the defendant!
A. Yes, sir.
Q. Where did you locate him at!
A. At his grandmother’s house. m
Q. Is that in the town of St. George, Dorchester
County!
A. Yes, sir.
Q. Following that, what did you do, Mr. Wimberly!
A. Well, the Sheriff talked with him.
Q. The Sheriff arrived!
A. No, he asked if we had him and I told him “ Yes” .
Q. What time did the Sheriff arrive!
A. He did not arrive. He asked if Ave had him in
jail and I told him we had him in jail. He came the
next morning.
Q. Did you arrest Louis Moorer after the warrant
as you have described was issued!
A. Yes, sir.
Q. You placed him in the Dorchester County jail?
A. Yes, sir.
Q. At the time you arrested him was he drinking?
A. No, sir.
Q. He was sober!
A. Yes, sir.
Q. State whether or not he remained in jail until
the next morning?
123
30 SUPREME COURT
The State v. Moorer
W ilson W imberly
A. Yes, sir.
Q. State whether or not the next morning, that is,
December 15th, 1961, Sheriff Carl Knight of Dorches
ter County arrived!
A. Yes, sir.
Q. Was a conference held with the defendant, Louis
Moorer?
A. Yes, sir.
Q. Were you there at that time?
A. Yes, sir.
Q. Did Louis Moorer make a statement to you and
the Sheriff and others?
A. Yes, sir.
Q. Was that statement made freely and voluntarily?
A. Yes, sir.
Q. Did you offer him any hope of reward?
A. No, sir.
Q. Did you try to force him to talk?
A. No, sir.
Q. Did he talk voluntarily?
A. Yes, sir.
Q. Did you tell him of his rights ?
A. Yes, sir.
Q. Was the Sheriff present?
A. Yes, sir.
Q. What time approximately did that take place?
A. I imagine around ten o ’clock, maybe, ten-thirty.
Q. As a result of talking with Louis Moorer was a
statement procured from him?
A. Yes, sir.
Mr. Wolfe: Here is the statement, Your Honor.
The Court: Don’t show it to me, show it to counsel.
(Mr. Wolfe shows statement to counsel for defend
ant.)
SUPREME COURT
Appeal from Dorchester County
31
W ilson W imberly
Mr. Pough: Your Honor, we object to the statement
on the grounds that the defendant has not—that the
State has not shown that he had been advised of his
right to counsel prior to issuing the statement and we
believe that the authority for that is, sir, the Supreme
Court of South Carolina and the United States Su
preme Court, which states that a defendant taken into
custody without being fully apprised of his rights,
may, in effect, give statements which is in violation
of his Constitutional rights in due process of the
United States Constitution and therefore, we object
to it being introduced in evidence.
The Court: Will you pass the statement up, please.
(Mr. Wolfe hands the statement up to the Court.)
The Court: For the present time, I am going to ex
clude the statement.
Mr. Wolfe: May I examine the witness further?
The Court: Yes, but not with respect to that, how
ever.
Mr. Wolfe: Was the defendant kept there that day
or do you know how long?
A. You mean—
Q. I think you stated the Sheriff arrived about ten
or ten-thirty that morning?
A. Yes, sir.
Q. Was he kept there that entire day?
A. Yes, sir.
Q. How long did he remain in the Dorchester Coun
ty jail, if you know, approximately
A. I don’t know.
The Court: Has that got any bearing on this case?
Mr. Wolfe: Well, I did not know whether it would
arise, Your Honor, or not.
32 SUPREME COURT
The State v. Moorer
W ilson W imberly
Sheriff Carl A. K night
The Court: Very well.
Mr. Wolfe: I have nothing further at this time.
You may examine the witness.
Cross Examination
By Mr. Pough:
Q. Mr. Wimberly, the time that the defendant spent
here in jail, what was the general decorum of the de
fendant? Did he act as a model prisoner or did he act
as though he was mentally off?
A. No, he acted as a model prisoner.
Q. You did not have any trouble with him?
A. No, sir.
Q. He was courteous?
A. Yes, he was.
Mr. Pough: I have no further questions.
Mr. Wolfe: Come down, please, Mr. Wimberly.
(Mr. Wimberly leaves the witness stand.)
Sheriff Carl A. K night, a witness on behalf of the
m State, being duly sworn, testifies:
D irect E xam ination
By Mr. W olfe:
Q. Mr. Knight, I believe you are the Sheriff of Dor
chester County?
A, Yes, sir.
Q. Mr. Knight, how long have you served as Sher
iff of this County?
A. Since November 21st, 1960.
Q. Mr. Knight, did you receive certain information
about the case in hearing, on, I believe, December 14th,
1961?
126
SUPREME COURT
Appeal from Dorchester County
33
Sheriff Carl A. K night
A. Yes, sir, I received a call over the two-way radio
system in my automobile at approximately five o ’clock
that afternoon. The information I received from that
call—
Q. You can’t tell what information you received.
You did receive certain information!
A. I did.
Q. As a result of that information, what did you do!
A. I further advised the officer, Mr. Wimberly, to
have a warrant prepared. Assign Mr. Cecil Marchant,
along with the Chief of Police, Mr. Jack Robbins, to
make the arrest.
Q. Following that did you come to St. George to
the courthouse the following morning!
A. No, sir, I did not. I had just left the courthouse
about an hour before that and I told them I would not
be up until the next morning.
Q. That is the following day!
A. The following day.
Q. The day following the day of the arrest!
A. Yes, sir.
Q. Now, Sheriff, when you came up that morning,
did you receive certain information then in your in
vestigation !
A. Yes, sir.
Q. What did you do, please, sir.
A. Well, I went over to the jail.
Q. Did you have occasion to see Mrs. Johnston or
Dr. Johnston!
A. I saw Mrs. Johnston that morning first; before
X came to the courthouse. I went to see Mrs. Johnston.
Q. Yes, sir.
A. Mrs. Johnston—
1 2 ?
34 SUPREME COURT
The State v. Moorer
Sheriff Carl A. K night
Q. You can’t tell what she told you.
A. Mrs. Johnston gave me certain information.
Q. Yes, sir.
A. I then returned to the jail. I questioned the sub
ject Louis Moorer, in the jail.
Q. Did he talk freely and voluntarily?
A. Yes, sir, I told him his rights. I told him that
he had the right to get counsel and I also told him
that any statement that he made, oral or written,
would be used against him as evidence in the court.
Q. Did he talk normally?
134 A. Yes, sir, he did.
Q. Did you threaten him?
A. No, sir.
Q. Did you use any force of any kind?
A. No, sir, I did not.
Q. Did you coerce him in any way?
A. No, sir.
Q. Did you make him any promise or hope of re
ward?
A. I did not make him any promise at all.
Q. As a result of that, then, Sheriff, did he talk to
you freely and voluntarily?
A. Well, the first thing I asked him—
The Court: Answer the question first.
Mr. Wolfe: Did he talk freely and voluntarily?
A. Yes, sir, he did.
Q. How long have you known the subject or the de
fendant ?
A. That was the first time that I had ever seen him.
Q. He knew you were the Sheriff ?
A. I don’t know. I told him that I was the Sheriff
136 when I walked in and started talking to him.
Q. What other officers were there, if you remember?
128
35
Appeal from Dorchester County
S hkriff Carl A. K night
A. Chief of Police Jack Robbins, Deputy Sheriff Ce
cil Marchant and Deputy Sheriff Wilson Wimberly.
Q. Approximately how long did you talk to him,
Mr. Sheriff?
A. About ten minutes, that first time.
Q. Did you talk to him later?
A. Yes, sir, about an hour later.
Q. Did you have a further conference with him?
A. Yes, sir.
Q. Approximately how long was that?
A. .1 would say off and on for an hour.
Q. He made a statement to you?
A. Yes, sir, he did.
Q. Was that statement reduced to writing?
A. Yes, sir.
Q. Who reduced it to writing, Mr. Sheriff?
A. My clerk in the office, Miss Margaret Segrest,
copied the statement.
Q. Was he there when that was done?
A. Yes, sir.
Q. Was any effort made while that statement was
being prepared to threaten him or to do him any harm 139
of any kind?
A. No, sir.
Q. Sheriff, I hand you a statement, is that the state
ment that was prepared in your presence as well as
the other officers and in the presence of the defendant,
Louis Moorer?
A. Yes, sir.
Mr. Wolfe: Now, Your Honor, we would like to of
fer this statement.
Mr. Rough: Your Honor, we still object to the in
troduction of the statement on the ground as previous
ly stated to this Court.
_________ SUPREME COURT
129
36 SUPREME COURT
The State v. Moorer
Sheriff Carl A. K night
The Court: I think I will sustain the objection at
the persent time.
Mr. Wolfe: Mr. Sheriff, will you tell us in substance
what the defendant told you!
The Court: Oh, no, no, that would not be competent.
Mr. Wolfe: You may examine the witness.
Cross Examination
By Mr. Pough:
Q. Sheriff, during the time you were interrogating
the defendant, did he spontaneously reply to your in
terrogations! When I say spontaneously, did he an
swer you freely!
A. Yes, he did.
Q. Did he show any tendency of resentment or any
thing of that nature!
A. No, he showed no signs of anything of that kind.
Q. In other words, he was a very co-operative per
son!
A. Correct.
Mr. Pough: I have no further questions.
Mr. Wolfe: Come down, Sheriff.
(Sheriff Carl Knight leaves the witness stand.)
Mr. Wolfe: Your Honor, would you please excuse
the jury!
The Court: Gentlemen, you may retire.
(The jury retires to the jury room.)
Mr. Wolfe: Your Honor, we are almost ready to
close and we felt, Mr. Jones and myself, that we did
not know what reasons the Court had—of course, I
appreciate the Court’s ruling—
The Court: You mean my excluding the confession!
Mr. Wolfe: Yes, sir.
The Court: Well, there is no question, so far, no
body in the slightest has cast any question upon Mrs.
SUPREME COURT
Appeal from Dorchester County
37
Sheriff Carl A. K night
Johnston’s testimony. The defense counsel has not U6
asked her a question. There has been no denial of it
at the present time. Now I don’t see any sense in of
fering in something that is always available as to
whether a confession is made, when nobody, so far as
I know, has questioned the testimony of Mrs. John
ston.
Mr. Wolfe: I appreciate that, Your Honor, and I
felt also the same way but in studying the case and in
cooperation with the officers, I felt I should offer it.
I felt it my bounden duty in view of the conditions
instant. 146
The Court: It may become competent. If it is con
tradicted, or any attempt to contradict it—but I see
no necessity of injecting into this record something
that the Court might consider prejudicial.
Mr. Wolfe: Thank you, Your Honor.
The Court: Are you through?
Mr. Wolfe: Yes, Your Honor, I am through.
The Court: Well, that is what I want to know. Does
the State rest?
Mr. Wolfe: Just a minute, Your Honor. (Mr. Wolfe 147
and Mr. Jones have a conference.) The State rests.
The Court: Bring the jury in, please.
(The jury returns to the courtroom.)
Mr. Wolfe: If Your Honor please, the State rests.
The Court: I want to ask the defense counsel, do
you wish to offer evidence?
Mr. Pough: We will have one witness.
The Court: All right, you may proceed.
148
131
SUPREME COURT
Appeal from Dorchester County
51
The Clerk: Mr. Foreman, have you agreed on a
verdict ?
The Foreman : We have.
The Clerk: Shall I publish it, Your Honor?
The Court: Yes.
The Clerk: In the case of the State versus Louis
Moorer indicted for rape, verdict “ Guilty of rape.
George E. Gelzer, Jr., Foreman.” Gentlemen, is this
your verdict?
All jurors answer “ Yes.”
The Court: Gentlemen of the jury, that completes
your service in that case and you are excused until
tomorrow morning at ten o ’clock.
(The jury leaves the jury box.)
The Court: Does defense counsel have anything to
say before I pass sentence?
Mr. Pough: If the Court pleases, we would at this
time ask the Court for a directed verdict n. o. v. or in
the alternative for a new trial based on the facts as
presented and the verdict.
The Court: Based on what?
Mr. Pough: The facts as presented and the verdict.
The Court: I overrule the defense motions. I think
the case is amply supported by the evidence. As a
matter of fact, it is such a case that it would be ex
pected that the verdict returned would be returned by
any fair and impartial minded jury. Let the defendant
stand.
(The defendant stands.)
The Court: Do you have anything further to say be
fore I pronounce sentence?
The Defendant: Nof sir.
The Court: The sentence of the Court is that the
defendant, Louis Moorer, having been found guilty by
verdict of the jury herein and the said defendant,
52 SUPREME COURT
The State v. Moorer
Louis Moorer, being now duly arraigned before the bar
m of this Court and it being solemnly demanded of him
whether he now has anything to say why the sentence
of the law should not now be pronounced upon him, and
he thereupon saying nothing save as heretofore said,
therefore the sentence of the Court, as fixed by law, is
that you, the prisoner at the bar, Louis Moorer, be con
veyed hence to the County jail in the County of Dor
chester, in the State of South Carolina, there to be
kept in close and safe confinement until you shall
thence be conveyed to the State Penitentiary as pro
vided by law, there to be kept in close and safe confine-
,os ment until the first day of May, 1962, between the hour
of four o ’clock in the forenoon thereof and the hour
of seven o ’clock in the afternoon thereof, upon which
day and between which hours the prisoner at the bar,
Louis Moorer, shall suffer death by electrocution at the
hands of the officers of the law and in the manner pro
vided by the laws of the State of South Carolina and
may God have mercy upon your soul.
Mr. Pough: If the Court pleases, on behalf of the
ao7 defendant, we would like to herewith give notice of
intention to appeal upon grounds which will be later
served.
The Court: Under the law, of course, that notice will
have to be reduced to writing and served.
(Case ended.)
EXCEPTIONS
I. The trial judge erred in overruling the defend
ant’s motion for continuance and change of venue,
based upon the fact that the prosecuting witness and
her husband are very prominent citizens in the com
munity and that the husband being a practicing phy-
133
78 SUPREME COURT
The State v. Moorer
our Lord one thousand nine hundred and sixty-one,
m with force and arms, at Dorchester County Court
house, in the County and State aforesaid, in and upon
one Mrs. Catherine D. Johnston, in the peace of God
and of the said State, then and there being, did make
an assault and the said Louis Moorer then and there
did beat, bruise, wound and ill-treat, and other wrongs
to the said Mrs. Catherine D. Johnston, then and
there did commit an assault and battery of a high and
aggravated nature to the great damage of the said
Mrs. Catherine D. Johnston against the form of the
Statute in such case made and provided, and against
*w the peace and dignity of the State.
Mr. Foreman and Gentlemen of the Jury, upon this
indictment he has been arraigned and upon his ar
raignment he has pleaded not guilty and for trial has
placed himself upon God and his Country, whose
Country you are. So that your business is to inquire
whether the prisoner at the bar be guilty of the felony
wherein he stands indicted or not guilty. If you find
him guilty, say so. If you find him not guilty, say so,
and no more. So hearken unto the evidence:
811
STATE’S EVIDENCE
Mr. Wolfe: Shall I proceed, Your Honor?
The Court: Yes.
Mr. Wolfe: Mrs. Catherine D. Johnston, will you
please come around and be sworn?
CHARGE TO THE JURY
Mr. Foreman and Gentlemen of the Jury:
The State, by this indictment, charges the defend-
s]2 ant with three separate crimes. One is rape, and that
is the first alleged in the indictment; the second is
assault with intent to ravish; and the third and last
134
SUPREME COURT
Appeal from Dorchester County
79
is that of assault and battery of a high and aggra
vated nature.
313
I charge you that before the State is entitled to a
verdict of guilty of any offense, it is required to prove
the defendant’s guilt beyond a reasonable doubt, be
cause under the law of this State a man brought to
trial is presumed to be innocent and that presumption
of innocence follows him throughout the trial as a
shield until the jury is convinced of his guilt, beyond
a reasonable doubt. The burden is upon the State to
prove the defendant’s guilt before it is entitled to
a verdict of guilty, requires the State to prove every
element of the charge beyond a reasonable doubt. That 314
is to say that the burden is upon the State to prove
every material allegation of the respective charges
as contained in the indictment.
Now, by “ Reasonable doubt” , I do not mean a fan
ciful or imaginary doubt because you can have such
a doubt about anything. It means a substantial doubt
growing out of the evidence or the lack of evidence
and for which you can give a reason. It also means that
a jury must have an abiding conviction of the guilt
of the defendant to justify any verdict finding the de- m
fendant guilty of any offense.
I charge you, Mr. Foreman and Gentlemen of the
jury, the fact that the defendant did not take the
stand and testify in his defense cannot be considered
against him by you in determining his guilt or inno
cence. The State still must prove the charge without
any inference or help by the defendant’s failure to
take the stand. Under the law of this State, a person
on trial has the right to testify or not, as he prefers
at his trial, and no inference from his failure to do n<
so can be considered against him.
135
80 SUPREME COURT
The State v. Moorer
Now, in the trial of this case, Mr. Foreman and
an Gentlemen of the jury, the law places upon you the
responsibility of deciding all questions of fact. That
necessarily means that you are the sole judges of the
credibility of the witnesses who testify and the weight
to be given their testimony. It is for you to say who
shall be believed and who shall not be believed, if
anybody. It would be highly improper for me to try
to intimate in this charge how I might think you
should decide any question of fact or what weight I
might think you should give the testimony of any
witness. And if I have said anything during this trial
818 or should say anything during this charge, that you
might think is an intimation on my part as to how
you should decide the case, you dismiss that from your
minds. Those are your responsibilities and you must
assume them and discharge them manfully.
Now, coming to the charges embraced within this
indictment which I told you were three, the first is
rape.
Rape is defined as the carnal knowledge of a female
forcibly, unlawfully and against her will. Carnal
sib Knowledge means sexual intercourse. In rape there
must be actual penetration, but the slightest penetra
tion of the female organ by the male organ is suffi
cient. It is not necessary that the hymen should be
ruptured nor is emission necessary. So, the first ele
ment that the State must prove beyond reasonable
doubt to establish the charge of rape is that the de
fendant had sexual intercourse with the prosecuting
witness.
The second element that the State must prove be-
s20 yond reasonable doubt to make out the charge of
rape is that the female, the prosecuting witness, did
not consent and the sexual act was accomplished with
136
SUPREME COURT
Appeal from Dorchester County
81
force and against her will. Force and resistance,
either actual or constructive, is an essential element
to constitute the crime. No particular amount of force
is necessary if the will of the female is overcome. The
amount of force and of resistance depend on the rel
ative strength of the parties and the other circum
stances surrounding the case, if any. Resistance and
want of consent must be proved. While there must be
resistance, if the female ceases to resist him on the
fear of death, or great bodily harm, it would still be
by force and therefore rape.
The second offense charged in this indictment is as
sault with intent to ravish. Assault with intent to rav- 822
ish is an assault with the intent to commit rape. There
must not only be an assault but there must be an in
tent to commit rape, not some other crime. The State
must prove both elements beyond a reasonable doubt.
Stated in more detail, assault with intent to ravish
is an unlawful attempt accompanied with a present
ability to commit rape upon the person of a woman.
The charge means that a person has laid his hands
upon a woman, with intent to force her to have in
tercourse with him and has been unable to succeed sss
in his criminal purpose. To constitute the crime, there
must be some overt act in part execution of the de
sign for rape, for the mere demand or solicitation by
a man, either expressed or implied, that a woman shall
submit to sexual intercourse with him even where he
has the intention to force his demand by violence is
not sufficient. The law does not make such a demand
with such an intent a crime. The State must go far
ther and prove an assault, and mere solicitation even
with intent to force compliance, without any force or ^
threat of any kind, does not constitute an assault.
137
82 SUPREME COURT
The State v. Moorer
Now, the third and last charge is that of assault
<26 and battery of a high and aggravated nature. That
crime is defined as an unlawful touching of or injury
to the person of another accompanied by circumstances
of aggravation, such as, for example, the difference in
the sexes, indecent liberties or familiarities with a
female, the purposeful infliction of shame and disgrace,
the putting in fear and other circumstances of an
aggravated character. For a man to put his hands on
the person of a woman in a rude or licentious manner,
without her consent and against her will, is an assault
and battery of a high and aggravated nature. If at
the time his intentions were to force her to submit
to sexual intercourse, it would be assault with intent
to ravish. But in the absence of any intention to use
force to accomplish sexual intercourse, it would be
an assault of a high and aggravated nature.
Now, Mr. Foreman and Gentlemen, coming to in
sanity as a defense to a crime, I charge you that the
law presumes every man sane. Thus the burden of
establishing the insanity of the accused is never on
the State. Hence insanity, however caused, is an af-
327 firmative defense and must be established by the great
er weight of the evidence. That is to say, when you
come to consider insanity the burden is not upon the
State any longer to prove beyond a reasonable doubt.
The burden shifts to the defendant before he is en
titled to the plea of insanity. To prove that plea—
not beyond a reasonable doubt as the State is re
quired to prove its case but by what we call the great
er weight of the evidence and there is no way to weigh
evidence except by good judgment and common sense.
You don’t do it by counting witnesses. It is a mental
process. Evidence weighs which convinces you. So,
when I say that a party must prove a proposition by
1 3 8
SUPREME COURT 83
Appeal from Dorchester County
the greater weight of the evidence, I simply mean the
evidence on that proposition must be more convincing
to you than the evidence opposing it, if any.
I further charge you that the defense of insanity
does not impart any admission of the act charged
which must be proved by the State as alleged beyond
a reasonable doubt, because notwithstanding any af
firmative defense which the defendant may plead or
rely upon, the State must make out every material
element in the case beyond a reasonable doubt.
Now, what constitutes insanity? Since intent is an
essential ingredient of crime, one who is so insane or
mentally unsound as to be incapable in maintaining M°
a criminal intent cannot be guilty of a crime or held
responsible for his act. Hence, insanity is a complete
defense and entitles the defendant to a verdict of not
guilty. Under the law of this State the test is, did the
defendant have at the time of the alleged act mental
capacity sufficient to distinguish moral or legal right
from moral or legal wrong and recognize the particu
lar act charged as morally or legally wrong. Did he
know right from wrong? If so, he would be mentally
responsible. Otherwise he would not be and should m
be acquitted as insane.
Stated a little more fully, in order to relieve one
from responsibility of a criminal act by reason of
mental unsoundness, the defendant must show that,
because of mental disease or derangement or other
mental incapacities, at the time of the act, he did not
know that the act he committed was wrong or crimi
nally punishable, either one or the other, because not
withstanding his mind may be diseased or impaired
or lacking in mental capacity, if he was still capable sj2
of forming a correct judgment as to the nature of the
act, as to it being morally or legally wrong, he is still
139
84 SUPREME COURT
The State v. Moorer
responsible for his act and punishable as if no mental
disease or mental incapacity existed at all.
Now, Mr. Foreman and Gentlemen of the jury, you
will find one of six verdicts, depending upon how you
decide the facts.
If you find that the State has made out a case be
yond a reasonable doubt of the crime of rape, you
have the privilege of returning one of two verdicts.
One would be “ Guilty of rape” and stop there. In
the event you return such a verdict, it would be man
datory upon the Court to sentence the defendant to
death by electrocution. If you find the defendant guilty
334 of rape, you have the privilege of recommending him
to mercy in which event the form of your verdict
would be “ Guilty of rape with recommendation to
mercy” . Should you return such a verdict, the defend
ant would be sentenced to imprisonment for a period
of not less than five years nor more than forty years,
to he fixed in the discretion of the Court.
If you find the defendant guilty of assault with in
tent to ravish, you would likewise have the privilege
of returning either of two verdicts. One would be
aw “ Guilty of assault with intent to ravish” . If you
should stop there, it would be mandatory upon the
Court to sentence the defendant to death by electro
cution. But again, if you find the defendant guilty of
assault with intent to ravish, you have the right to
recommend him to mercy, in which event the form of
your verdict would be “ Guilty of assault with intent
to ravish, with recommendation to mercy” . Should
you return such a verdict, the defendant would be
sentenced to imprisonment for a period of not less
M# than five years nor more than forty years, to be fixed
in the discretion of the Court.
140
SUPREME COURT
Appeal from Dorchester County
85
If you should find the defendant guilty of the last
and third offense, which is assault and battery of a M7
high and aggravated nature, the form of your verdict
would be “ Guilty of assault and battery of a high and
aggravated nature.” In the event you return such a
verdict, the defendant would be sentenced in the dis
cretion of the Court at hard labor or by fine.
If you find that the State has not made out a case
of either charge or that the defendant was insane, the
form of your verdict would be “ Not guilty” . What
ever verdict you find, Mr. Foreman, must be written
on the back of the indictment under the word “ Ver
dict” and then you must sign it on the bottom line 338
under which the word “ Foreman” appears.
Now, Mr. Foreman and Gentlemen of the jury, I
charge you that the defendant is entitled to the ben
efit of the doubt, reasonable doubt on every stage of
the case and I charge you that even though the de
fendant is required to prove insanity before he can be
acquitted, if you have a reasonable doubt as to
whether or not the defense exists, you resolve that
doubt in his favor and acquit him. Likewise, if you
should conclude that he is guilty, and you have a rea- »w
sonable doubt as to whether or not he is guilty of
assault with intent to ravish or guilty of rape, or of
assault and battery of an aggravated nature, resolve
that doubt in his favor and convict him of the lesser
offense, which is assault and battery of an aggravated
nature.
I charge you, Mr. Foreman and Gentlemen of the
jury, that if you should find the defendant guilty of
either rape or assault with intent to ravish, you do
not have to—the law does not require a reasonable
doubt to justify a verdict recommending mercy. As
I have stated to you heretofore, those crimes as you
141
86 SUPREME COURT
The State v. Moorer
observe have the same punishment. Of course, the de
fendant can be guilty of only one, if he is guilty of
any. But if you find the defendant guilty of either
rape or assault with intent to ravish, whether or not
you recommend mercy is a matter resting solely with
in your discretion and you do not have to have any
reason for it at all.
You may retire, gentlemen, and if I decide to charge
you further, I will send for you promptly.
(The jury retires to the jury room to begin delib
erations.)
The Court: I want to know if there are any excep
tions or requests for additional instructions?
Mr. Wolfe: Nothing from the State, Your Honor.
Mr. Pough: Nothing from the Defendant, Your
Honor.
The Bailiff: The jury desires to return to the court
room.
The Court: Have they agreed on a verdict?
The Bailiff: I don’t know, your Honor.
The Court: Bring them in and we will see what
they want. I don’t want any demonstrations in the
courtroom regardless of what the report is.
(The Jury returns to the courtroom.)
The Clerk: Mr. Foreman, have you agreed on a
verdict?
The Foreman: We have.
The Clerk: Shall I publish it, Your Honor?
The Court: Yes.
The Clerk: In the case of the S ta te v. L ou is M oorer
indicted for rape, verdict “ guilty of rape. George E.
Gelzer, Jr., Foreman” . Gentlemen, is this your ver
dict?
142
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IN THE UNITED STATES DISTRICT COURT
'OR THE EASTERN DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LOUIS MOORER, )
)
P etition er, ) CIVIL ACTION NO.
)
-VS- ) AC-1583
)
STATE OF'SOUTH CAROLINA and )
ELLIS C. MacDOUOALL, D irector, )
South Carolina State Board o f )
C orrections, )
)
Respondents, )
In
Columbia, S. C.
18 August 1965
HON. ROBERT W. HEMPHILL Presiding
United States D istr ict Judge
APPEARANCES:
MATTHEW J . PERRY, Esq. , For P etitioner
FRANK H. HEFFRON, Esq.,
DANIEL R. McLEOD, Attorney For Respondents
General
EDWARD B. LATIMER, Asst.
Attorney General
E. N. BRANDON, Asst.
Attorney General
Julian W olfe, S o lic it o r
J. D. SMITH
O ff ic ia l Reporter
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H effron 's admission to the Bar o f th is Court fo r the purposes
o f th is case.
COURT: Admission is granted. Was he
privately retained? Is he privately retained?
MR. PERRf: He is — four Honor, I would
lik e to state that he Is one o f the assistant counsel in the
O ffice o f the NAACP Legal Defense and Educational Fund
Incorporated.
COURT: A ll r igh t. Qlad to have you with
us, admission granted. And since there is association there
is no question about i t and there is no o b je c tio n , I'm sure,
on the part o f the State.
Mr. Brandon, appearances fo r the S tate, p lease.
MR. BRANDON: Daniel R. McLeod, Attorney
General; E. N. Brandon and E. P, Latimer, Assistant Attorney
General; Julian S. Wolfe, S o l ic it o r , F irst Ju d icia l C ircu it, j
COURT: Thank you, very much. A ll r ig h t,
Gentlemen, we had in th is case a p re -t r ia l sometime ago and
which order was f i le d on August 4th, 1965; Counsel having
appeared before me on July 14th, 1965, and the Court, as
d irected and advised by the Fourth C ircuit Court o f Appeals
and as advised by Counsel, representing the p a rtie s , reduced
to w riting the resu lts o f that p r e -t r ia l in what is known as
a p r e -t r ia l order. Does the P etition er, at th is time, have
exceptions thereto or additions thereto that the Court's
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the P etition er to be s p e c i f ic that they be s p e c i f ic as to
the dates o f papers referred to and/or the tine o f f i l in g .
Does Counsel think now that would prejudice the P etition er
to be that sp e c if ic ?
MR. HEFFRON: No, your Honor, we don 't think
i t would prejudice our case.
COURT: I am mighty happy to hear you say that.
Now, what p e tition do you have reference to and what date?
MR. HEFPRON: Your Honor, I have reference to
the paper e n tit le d , Appellants — beg your pardon, your
Honor, "The Ammended P etition fo r Writ o f Habeas Corpus,”
f i le d on May 12th, 1965. Your Honor, I believe th is was
f i le d before the case went up to the Court o f Appeals and
so we are presenting our contentions on the same p etition
that was f i le d in the Court before the appeal went to the
Fourth C ircu it.
COURT: Give me Just a second,p lease.
I have here a paper f i le d May 12th, 1965,
e n tit le d , "Ammended P etition fo r Writ o f Habeas Corpus,"
dated May 12, 1965, to which is a ffixed the signature o f
Matthew J. Perry and to which is a ffixed the written designs
tion o f F. Henderson Moore and Benjamin L. Cook, J r . ,
Attorneys fo r P etition er, and which purports to have been s:.i
by Louis Moorer, who stands in Court today, before Matthew
Perry, Notary Public fo r the State o f South Carolina.
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Is that ths paper Counsel re fers to t
MR. HEFFRON: le a , a ir , your Honor, i t i s .
COURT: A ll r ig h t , a ir . What page and what
paragraph?
MR. HEFFRON: I re fe r to page 6 o f the paper
Just referred to , paragraph en tit le d 13 and then specifical|]
to part B o f paragraph 13.
COURT: A ll r ig h t, s i r .
MR. HEFFRON: I f the Court would not ob ject I
would lik e to preface my remarks —
COURT: The Court does not o b je c t . Counsel
o b je c ts , the Court only monitors the e f fo r t s o f Counsel,
I hope, to help obtain Justice in th is case. Oo right
ahead.
MR. HEFFRON: Yes, s i r , your Honor. I would
lik e to read paragraph 13b. I t begins:
"P e t it io n e r 's sentence o f death wa:
imposed pursuant to Section 16-72, Code o f Laws o f South
Carolina fo r 1962, which statute is upon i t s face and as
applied to p e tition er under the circumstances o f th is case,
in v io la tion o f the Fourteenth Amendment to the Constitu
tion o f the United States, in th a t:"
Now, the le t t e r b ;
"Said statute denies p e tition er
equal protection o f the law and due process o f law under thu
Fourteenth Amendment to the Constitution o f the United Statu
in that there has been an unequal app lication o f said status
and in that there is and has been a long standing p ra ctice ,
p o licy and custom o f sentencing Negro men to death fo r rape
upon White women while not in f l ic t in g that punishment upon
any other person,"
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First:, I want to male* c lea r that we are not
waiving our contentions in part A o f paragraph 13
COURT: You cannot waive a con stitu tion a l
infringem ent, I don 't allow that in th is Court.
MR. HEFFRON: As to part b. Part b could have
been drafted better there but i t does sum up the essence
o f our claim , but I would lik e to explain i t some further.
COURT: Yes, a ir .
MR. HEFFRON: The contention is that the crime
o f rape is treated in the Courts in the state o f South
Carolina on two d iffe ren t le v e ls . The f i r s t le v e l is the
case o f the negro man sentenced to — the negro man charged
with rape o f a white woman and here the penalties are often
harsh and often include the penalty o f death. And there is
a second category or le v e l in the cases in the state o f
South Carolina. Those in which a white man is charged with
the rape o f a white woman or a white man is charged with
the rape o f a negro woman or a negro man is charged with
the rape o f a negro woman. And in these cases almost never
is the penalty so harsh as to include the death sentence.
There are exceptions. I t is true that in South Carolina
a small number o f white men have been executed a fte r
sentence o f death fo r the rape o f a white woman although,
I b e liev e , that federa l reports w ill show that no man has
ever been sentenced to death. I withdraw that. That no
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man has aver bean executed in the state o f South Carolina,
so fa r as records show, fo r having raped, having been
convicted o f rape upon a negro woman.
This claim is not ea s ily proved and i t includes
a great many things. I t Includes reference to the fact
that in South Carolina the Jury determines the penalty in
each case and the Jury has unlimited d iscre tion to Impose
the penalty i f the Jury finds that the Defendant is gu ilty
o f the crime o f rape.
COURT: Would you destroy the Jury system?
MR. HEPPRON: We do claim , your Honor ~
COURT: I say, would you destroy the Jury
system?
MR. HEFFRQN: I don’ t think I would destroy
the Jury system, your Honor.
COURT: Thank you.
MR. HEFFRON: We do claim that the grant o f
unlimited d iscretion to the Jury to impose whatever penalty
i t desires Including the penalty o f death allows and resultn
in in f l ic t io n o f a rb itra r ily harsh discrim inatory penalties
against negroes who are charged with the crime o f rape on
white women.
There are occasions Involving particu larly
atrocious crimes in which a white man charged with rape
upon a white woman is sentenced to death and even executed.
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But i t is our claim that we can show by the records aval lab!
that there is a discrim inatory pattern o f sentencing those
persons who are charged with the crimes o f rape. The basis
o f d ifferen ce is race.
COURT: Let me stop you right there. Do you
understand the law o f South Carolina at a ll?
MR. HEFFRON: I understand some parts o f i t .
COURT: W ell, you are speaking as an o f f i c e r
o f th is Court now and I assume your erudition here was
enhanced by your study before you came here. The matter
o f sentencing in the South Carolina State Court is frequentL
not a matter o f d iscre tion because once the verd ict o f the
Jury has been Imposed the Court has no a lternative except
in certa in Instances and because o f certain leave except
to assess the penalty which the statute imposes, does it ?
MR. HEFFRON: That is co rrect , your Honor,
COURT: W ell, why do you say that the sentences
are discrim inatory when the statute affixes a sentence,
the Judge s it t in g on the bench has to be guided by the
le g is la t io n Just as I am guided by the National Congress.
In such sentences as I Impose under the United States Statuti
I have no a lternative but to assess sentences In keeping
with my authority nor do I . Can I go outside o f that?
I ’ m anxious to learn because perhaps you w ill explode a l l of
my theories o f my re s p o n s ib ilit ie s , or perhaps that would be
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your advocacy?
MR. HEFFRON: I don’ t want to do that, your
Honor. I would lik e to explain my p os it ion .
COURT: You see , you are making a statement
here as an o f f i c e r o f the Court. I demand from you a great
re sp on s ib ility because you are an o f f i c e r o f the Court.
Justice is your only desire as an o f f i c e r o f th is Court.
That's the way we look at i t as our profession a l responsible
i t y , Justice is our only d esire , our only ta rget, and when
you make a statement as an o f f i c e r o f the Court I want i t
to be as correct as you in your erudition may make i t , in
an e f fo r t to make sure that Justice is not besmudged by
some misstatement as to the resp on s ib ility or the authority
which you seek to attack. Proceed.
MR. HEFFRON: In South Carolina when the Jury
returns a verd ict o f gu ilty as charged fo r the crime o f
rape then there is no d iscre tion , the Judge must impose the
sentence.
COURT: The Judge can commute to l i f e imprison
ment.
MR. HEFFRON: I beg your pardon?
COURT: He can commute to l i f e imprisonment any
death penalty. Am I right in that, Mr. D istr ict Attorney?
MR. BRANDON: I believe not, your Honor?
COURT: Not in rape? He can on a death sentence
i
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in murder.
MR. BRANDON: The Judge?
COURT: W ell, he has done i t fo r me a number
o f times when I was s o l i c i t o r and I was always happy that
he did i t .
MR. BRNADON: I be lieve that power is with thB
Governor, four Honor.
COURT: All r ig h t, s i r , he c la r if ie d i t fo r ui
Go ahead.
MR. HEPPRON: I t is our contention that the
Jury has the d iscretion o f returning a verd ict o f gu ilty as
charged which resu lts in the death penalty or return a
verd ict o f gu ilty with recommendation o f mercy, which then
throws the d iscretion in to the Court.
COURT: Have you seen the indictment under whl
th is Defendant, P etition er was accused?
MR. HEFFRON: I have seen the written record 1
which reproduced that indictment.
COURT: Did that indictment Include f i r s t , th®
indictment fo r rape and indictment fo r assault and attempt
to ravish and then the indictment fo r assault and battery
in a highly aggravated nature or not?
MR. HEPPRON: Yes, I t does, Your Honor.
COURT: So, then, a l l o f those choices were
fo r the Jury or not?
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MR. HEPPRON: I f the Jury return* * verd ict o f
gu ilty —
COURT: Whet were the choices o f the Jury, I
•eld , because the Court record should show what the choices
o f the Jury were? Well, did they have those choices?
MR. HEFFRON; Yes, s i r , the Jury had choices.
COURT: A ll r ig h t, th a t 's what I wanted you to
t e l l me, e ith er yes or no. A ll r ig h t, proceed.
So the Jury did have the choice o f rape, g u il ty ;
gu ilty with recommendation o f mercy o f the Court.
MR. HEPPRON: That is co rrect.
COURT: Quilty o f assault with intent to ravish;
gu ilty o f assault and battery o f a high and aggravated
nature or not g u ilty , correct?
MR. HEPPRON: Yes, s i r .
COURT: Thank you, proceed.
MR. HEPPRON: The verdict in th is case was
gu ilty o f rape.
COURT: Yes, s i r .
MR. HEPPRON: I Just want to make i t c le a r , I'm
not sure I made the poin t: That a Jury in South Carolina,
once i t is convinced o f the g u ilt o f the Defendant, has
complete unlimited and unreviewable d iscretion to choose
e ith er a verdict leading to the death sentence subject to
further computation by other authority or to choose a verdic t
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which can not resu lt in the (loath sentence, whioh is gu ilty
with a recommendation fop mercy. I t is our claim that the
South Carolina ju r ie s have returned verd icts which show
a pattern o f much harsher sentencing in cases where negro
men are charged with the rape o f white women, and that the
statute which allows th is p ractice is unconstitutional,
vague and in d e fin ite and uncertain, resu lting in a denial
o f due process o f law.
COURT: A ll r ig h t, s i r .
MR. HEFFRON: That contention is included within
although not w ell stated , In our paragraph 13b o f the
Amended P etition fo r Writ o f Habeas Corpus.
COURT: WE11, i t ' s stated in other parts o f the
p e t it io n , is n ’ t i t ?
MR. HEFFRON: W ell, there is another vagueness
ob jection to the statute in the p e tition which is quite
a b it d iffe re n t .
COURT: The Court w ill be happy to consider
that a part o f B perm itting you to araend the semantics,
at th is time, the language, fo r the purpose o f having the
Court’ s consideration.
MR. HEFFRON; W ill my remarks be considered
such an amendment, your Honor?
COURT: I don 't know. You don 't have any o b je c ;
do you, Gentlemen?
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MR. BRANDON: No ob je ction , your Honor.
COURT: No ob jection on the part o f the State.
Yes, s i r , the amendment is now before the Court. Proceed.
MR. HEPFRON: We began,when we raised th is claii
with a few unquestioned fa c ts . The Federal Bureau o f Prisoi
prints s ta t is t ic s o f execution in the United States, and
they show that since 1930, in th is country, in a l l the stat<
o f the union the men who have been executed fo r the crime
o f rape have been overwhelmingly members o f the negro race.
In fa c t , the only seventeen Jurisd iction s — the only 17
states in the union which have allowed the im position o f
death penalties fo r th is crime in the United States have
been those states which are considered southern states or
border states with the addition o f the state o f Nevada.
These states are states mainly in which there is
a high proportion o f negroes in the population and they are
also states having the h is tory , early h istory o f ra c ia l
tension.
COURT: Now, Mr. Heffron, you c le a r ify fo r me
one thing at th is point? Are we trying th is case on i t s
merits or do you wish to try the race question using th is
Court and th is ease as a vehicle?
MR. HEPFRON: I think the race question Is very
much involved in the merits o f th is case, your Honor.
COURT: I ask you to answer my question, p lease ,
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• ir .
MR. HEFFRON: X don’ t think I can choose one
alternative or the other.
COURT: A ll r ig h t, s i r . Sou are an o f f i c e r c
th is Court, I w ill have to remind you o f that again. Sou
see , we expect so much in tegrity o f our lawyers. Perhaps
i t ' s unusual but we think ju s t ice would demand i t .
MR. HEFPRON: Sour Honor, I have been stating
what I believe to be fa cts or what I contend is the law
or ought to be the law. I don’ t believe I have been gu ilty
o f any m isrepresentations in th is Court.
COURT: Decessus.
MR. HEFFRON: The records in the State o f Soul
Carolina since 1930 up to and including 1964 was that 37
negroes had been executed fo r the crime o f rape.
MR. BRANDON: I f four Honor please.
COURT: fe s , s ir .
MR. BRANDON: We ob ject to the presentation
In th is form. Counsel is obviously te s t ify in g . None o f
th is is before the Court in any fashion what-so-ever. I
don 't know what the purpose o f Counsel's argument is but
i t ’ s pure testimony and we certa in ly ob ject to that.
MR. HEFFRON: Your Honor, I would be p erfectly
w illin g to introduce the copy o f the Federal Report at the
proper time, and I don 't mean my remarks to be taken as
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testim ony. I have attempted to present th is issue in a
number o f Courts.
COURT: W ell, suppose he brought out some artic
in various news media, which I don’ t think are proper here
even though you say that you are making a raoe issue out
o f i t , but I am going to le t you go as fa r as I think you
ought to go and even further perhaps than you ought to go
as long as I don 't think i t ' s prejucid ing the P etition er
because 1 am going to p rotect his r ig h ts . I see I have got
to to some extent here more than Counsel.
But some time ago — I w ill advise you now,
your associate Counsel has been advised — In some other
cases I have ruled that ethnic d ifferen ces are not fo r
consideration in school cases. Other Courts have made
d iffe re n t decis ion s. I believe that to be the law, that
there is no consideration o f ethnic d iffe ren ces .
Now, the thing that rea lly concerns me here i s ,
that i f you go Into a l l o f th is extraneous matter, which
has no rea l app lica tion , unless you can re la te i t to what
happened in th is case, does i t ? Aren't we trying th is
case, Insofar as the rights o f P etition er is concerned,
in th is case? Would you try him or have him tr ied or have
his p e tition heard on what other Courts did at other times?
MR. HEFFRQN: Your Honor, i f we can estab lish
a pattern o f discrim ination in the sentencing o f Defendants
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chargad with the crime o f rape and that d iscrim ination is
based on race then i t is our contention that the sentence
against our p e tit ion er can not be upheld.
COURT: Suppose the state was so i ll -a d v is e d ■
and I'm sure my state would not do th is — as to establish
a pattern o f crimes attributable on account o f race;
not because o f any section a l d iffe re n ce s , which you seek to
invoke your own purposes, that would not be proper, would
i t ? I wouldn't le t them do that.
MR. HEFFRON: Your Honor —
COURT: This case is a matter o f Ju stice . This
case o f race should not be tr ied hew unless, in this case,
th is man's race had something to do with i t , right?
MR. HEFFRON: ?our Honor —
COURT: Unless, in th is case, his race had
something to do with I t , what application does a l l the
theory, s t a t is t i c s , or evidence o f other cases have?
MR. HEFFRON: I f th is man Is a negro, four Hon
and he is charged with the rape o f a white woman and I am
saying that i f he were not a negro and charged with the rap*
o f a white woman or i f i t were a white man or i f he had beer
convicted o f rape o f a negro woman the chances are astronomi
ca lly higher that he would have received a le sser sentence
than the sentence o f death. That's how i t e f fe c t s th is case
COURT: fou believe Justice should be pred ica t
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on such a theory?
MR. HEFFRON: Yes, your Honor.
COURT: Proceed.
MR. HEFFRON: We must prove a pattern o f ra c ia l
d ifferen ces in sentencing in rape cases and th a t 's what we
propose to do to th is Court. To do th is causes a great
many problems. I t is not an easy Job, as I said before ,
and we- have gone to great lengths to try to meet the requir
ments that such proof en ta ils and i t so happens that during
th is summer, while th is case has been pending, a group
o f students and researchers have gone through the records,
pub lic records in Court Houses in the state o f South Carolli
Investigating rape cases over the period o f the last twenty
years between 19^5 and 1965.
They were provided with a very complicated form
or schedule consisting o f 28 pages and asking questions aboi
the background o f the Defendant, about the iden tity and
background o f the v ictim , about the procedures, Jud icia l
procedures follow ed In the case, and deta iled questions
about the circumstances o f the crime.
COURT: Wouldn’ t that be en tire hearsay?
MR. HEFFRON: Much o f i t would be hearsay.
COURT: E ntirely .
MR. HEFFRON: Much o f i t . Hearsay is a very
substantial problem, a very serious problem, and to present
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the evidence we have gathered, ra ise s , we acknowledge, a
very serious hearsay problem.
COURT: Let me ask you something. In the matte;
o f races; since the rules o f Court applies to everybody,
do they apply to the negro?
MR. HEFFRON: Your Honor knows —
COURT: Or only when i t ’ s convenient? We apply
them to everybody, we think, a lik e . Is i t your theory that
there should be some d iffe re n tia tio n o f app lication o f
Court rules because o f race to anybody, white, colored?
MR. HEFFRON: Certainly not, your Honor.
COURT: Very w ell.
' MR. HEFFRON: We present these schedules and
information on them would present a serious hearsay obJectl<
or problem i f they were objected to . There is an a ltern ate i
way to present, In th is Court, the information we have
gathered on the schedule.
F irst o f a l l I would lik e to show what i t is I
am talk ing about. I in v ite a copy to the State. This is
a blank copy o f the schedule that was given In large numbern
to the researchers who conducted th is study.
(Document handed up to the Court)
COURT: A ll r ig h t, s i r , proceed)
MR. HEFFRON: We have made a d ilig en t attempt
at
and I believe a successfu l one to get/th e records o f every
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rape east occurring in aavaral counties in South Carolina
over the period of the past 20 years* from all the availably
information and from every available source to answer the
questions on that 28 page schedule.
COURTi What are the sources?
MR. H E F P R O N : The sources are trial court record
Appellate Court records* in some oases* prison records.
Other souroes are A t t o m y s * both for the State and for the
Defense who participated in some of the cases* and o c c a s i o n
ally some of the sources are news paper r e c o r d s . Those
were resorted to only when other Impossible sources were
not available. I have gone a little too far too early and
I want to come back and explain the theory Just a little
bit more.
Our theory is that 37 negroes in the state have
been exeouted for rape and five white men executed for rape
and we acknowledge there are circumstances could be shown
by the state or by anyone to justify such a disparity. For
Instance* if the rate of crime* or* let's say, the rate of
convictions for the crime of rape were in proportion as
37 is to 5j that is, for every five white men who are
convicted of rape 37 negroes are convicted of rape, then
that figure as to sentencing would just correspond to some
thing that is impartial, that is reasonable, not arbitrary
and not unconstitutional. We contend this disparity and
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sentencing Is not justified by such a difference between
the crime rates and the incidents of rape as between negroe|i
and whites and further that the higher frequency of death
sentences, in cases where negroes are convicted of raping
white women, lsnot attributable to the fact that greater
force was used, greater violence used, greater h a r m occurre
COURT: How could you possibly prove the truth
of that?
MR. HEFFROM: That was why we needed a 28 page
schedule.
COURT: Who made up the schedule?
MR. O E F F R O N : The schedule was made up by two
professors of the University of Pennsylvania.
COURT: Had either one of them ever defended
anybody for rape?
MR. HEFFRON: I'm quite sure that one of them
had.
COURT: Did either one of them e ver prosecute
anybody for rape?
MR. HEFFRON: I know one was with the office
of the United States Attorney for a few years in Washington,
D. C. I don't know if he ever prosecuted any rape cases.
COURT: Has either one ever been to 3outh Caroll
MR. HEFFRON: I'm sure — I can't state that,
your Honor. _______________ _____________________________________
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COURT: Have they *v*r set In on a rap* t r ia l?
NR. HEPFRON: 1 can only sp*ou lat*( your Honor.
COURT: I s n 't a l l o f th is speculation?
MR. HEPFRON: I was only speculating only as to
the answer to that one question.
COURT: A ll r ig h t, s i r . You see, fortun ately ,
you are making a record, which someone may think is based
upon some truth that you can v e r ify . You are making i t as
Counsel. Now, i f i t ' s evidenoe, i t ' s evidence that must be
tested in the ligh t o f truth , vera city , the rules o f evident
such as hearsay, the p ropriety , and application in th is cast
i f i t be your purpose to seek J u stice , and I in v ite your
r
adherence to those ru les . Proceed.
MR. HEPFRON: We have sought together enough
information about —
COURT: Who is we?
MR. HEFFRON: The Counsel fo r P etition er.
COURT: Why, you don 't mean Mr. Perry and Mr.
Moore had anything to do with th is , do you?
MR. HEFFRON: Well, they contacted me and I had
something to do with i t . They contacted others.
COURT: Who e lse did they contact?
MR. HEFFRON: W ell, I guess I don 't mind d isc lo i
ing to the Court.
COURT: W ell, i f i t ' s honest and honorable why
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not d isc lose i t ?
MR. HEFFRON: It is honest and i t is honorabls.
COURT: A ll r ig h t, thsn, l e t ’ s have i t .
MR. HEFFRON: Professor Anthony Q. Amsterdam,
o f the University o f Pennsylvania was connected with the
study that was conducted.
COURT: What is his t i t l e and what does he do?
MR. HEFFRON: He Is a p rofessor o f law at the
University o f Pennsylvania, he is a former assistant United
States Attorney fo r the D istr ict o f Columbia, former Clerk
fo r Justice Frankfurter in the Supreme Court and Justice
Hand in the Court o f Appeals in the Second C ircu it . He is
now In C a liforn ia fo r the summer.
COURT: We would be glad to have him. You d idn1
bring him?
MR. HEFFRON: The time may w ell come when he
w ill appear.
COURT: Here?
MR. HEFFRON: I don’ t know what h is commitments
are, your Honor. We hadn't contemplated i t at th is hearing,
your Honor.
COURT: W ell, a fte r a l l , you are speaking as an
o f f i c e r o f the Court, you asked admittance here. Your motion
was made fo r your admittance which was granted.
MR. HEFFRON: Your Honor -----
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COURT: You see , we understand that whan Mr.
Wigmore wrote the rules o f evidence, which he did so ab ly ,
that we would abide by the laws o f evidence. Now, i f you
have any reason to say that we should not l e t ’ s get at that
because I a® much concerned that we might be considering
here something which is improper from the standpoint o f
evidence, plus the fa ct that you haven't related i t , but
I want you to go ahead. As I say, we have got plenty o f
time and I want to give you plenty o f time. X want to give
you a l l the time you want so go right ahead, s i r .
MR. HEPPRON: I appreciate th at, your Honor,
and i t does take some time. We plan to abide by the rules
o f evidence and we ask no exceptions fo r us.
COURT: Now, who e lse? You sa id , "we", l e t 's
get a l l o f the wes in the record.
MR. HEPPRON: When I say we, I mean, Counsel fo
P etition er.
COURT: A ll r ig h t, s i r .
MR. HEPPRON: As to the appearances, you asked
an in terestin g question about whether or not Professor
Amsterdam w ill appear. I t is our hope that in approximatel
60 days we w il l have — have in order a s c ie n t i f i c , orderly
computational study o f the data contained in the schedule
that has been completed and that we w ill be able to present
expert testimony as to the s ign ifican ce o f those and, at
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that t in t , I t is not at a l l unlikely that Professor
Amsterdam w il l appear In th is Court, and, lndood, Marvin 1.
Woolfgang, a lso from tho University o f Pennsylvania, from
the eentor fo r orim inologioal roaoaroh, would appear and
explain the th e o re tica l, the a e le n t if le basis o f th is
s t a t is t i c a l study.
In b r ie f i t ' s our attempt to show that negroes
charged with white women received harsher sentences and
we know there is a ra c ia l d iffe ren ce . The question i s ,
is there anything e lse in the cases that J u st ifie s th is
d iffe re n ce , and we are able to t e l l from comparing the
schedules that we have gathered, we w ill be able to t e l l
r
whether a greater degree o f v iolence was used by negroes
than white defendants.
COURT: Mow, wouldn't anything they said be
based p a r t ia l ly , i f not prim arily, on hearsay?
MR* HEFFRON: No, your Honor. The only thing
based on hearsay —
COURT: W ell, you said you got part o f i t from
the newspapers.
MR. HEFPRON: Yes.
COURT: How would the Court records r e f le c t
violence unless you researched the or ig in a l t r ia l transcript
How would you know?
MR. HEFFROM: We have researched or ig in a l t r ia l
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tran scrip ts where those wara aval lab la .
COURT: Yes, but you used a ta tia tlca where
tbay ara not a v a ila b le , don 't you?
MR. HEFFRON: Wall, we looked at other aources.
COURT: W ell, the other sources are hearsay
sources, prim arily , a ren 't they?
MR. HEFPRON: In some cases they ara hearsay.
I imagine i f wa present a schedule that has information
based on those sources and i t ' s not hearsay to bring him
in Court and have him t a l l the Court.
COURT: What man, that to ld you?
MR. HEPPRONj W ell, l e t 's say, the man who
represented the Defendant, the Attorney. We bring him in
and he to ld the Court.
COURT: Prom his re co lle c t io n o f what he heard
from the witness stand?
MR. HEFFROH: Proa his re co lle c t io n o f what he
knows about the case.
COURT: I t doesn 't make any d ifferen ce what he
knows about the case, he would have to have heard i t from
someone e ls e , wouldn't he? You are a lawyer; have you ever
tr ie d a case?
MR. HEPPRON: Yes, s i r , your Honor.
COURT: A ll r ig h t. What you hear in the case
is what you hear from the Witnesses, is that not true?
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HR. HEFFRON: Yes, s i r , your Honor.
COURT: A ll r ig h t , s i r . Then i t '* hearsay on
your part. Otherwise tho Lawyer oan gat up in fron t o f tha
Jury and naka any spaeeh and aay that thla la tha fa c t ,
not what 1 hoard but what I aay because I heard I t and i t ’ a
tha truth because I heard I t , cou ldn 't he?
MR. HEFFRON: I think ha could vary w ell ta a t lf
as to what ha —
COURT: Tha Lawyar before tha Jury?
MR. HEFFRON: Mo, s i r , not that.
COURT: W all, a ren 't we faced with tha same
thing?
MR. HEFFRON: Wall, tha lawyar who conducted
the t r ia l o r the lawyar who agreed to the plea o f g u ilty .
COURT: Wall, ha had to t e l l what he heard.
MR. HEFFRON: W ell, I'm sura he could come in
and t e s t i fy as to h is knowledge o f the case and that he
would be an ex ce llen t source.
COURT: But you would le t him te s t i fy hearsay
as to what he heard?
MR. HEFFRON: Wall, in soma cases there are
exceptions to the hearsay ru le .
COURT: What exceptions would that be?
MB. HEFFRON: W ell, there is a business record
exception .
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COURT: We are talking about the testimony In
a rape case. I don't know of any business of rape.
MR. HEFFRON: Well, he keepe records, he has
his own file as to what occurs in a case.
COURT» Then he would have to testify business
records are an exception, but a Lawyer's records are what
he heard from his client or what he heard In the Courtroom
are hearsay. Of course, if he heard It from his client he
heard It, I think, at least, we consider it, in our effort
in integrity here as privileged communication.
MR. HEFFRONi Your Honor, there is going to be
some —
COURT: You see, I am listening to you and I
want to give you a full opportunity and I am going to; but
to break down the system of Jurisprudence is a very serious
thing which I have some concern about even though I am not
one of the policy makers, I Just do what the Supreme Court
of the United States tells me to do, and I try to do it
right and sometimes I make mistakes, of course. I am not
one of the infalliblea, unfortunately. But when you start
talking to me about hearsay testimony it is something I
have concern with because if you Just take that rule out
whenever it's convenient then, of course, our system breaks
down, doesn't itt
_____________ MR. HEFFRON; We don't ask any special exception
U
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to the hoarsay ru lo .
COURT: Wall, i f you don’ t , I don’ t think wo
havo any worry. Proeood.
I needed that statement to c la r ify your p osition
Thank you.
MR. HEFPRON: I don’ t be lieve we would be grantn
any exceptions to the hearsay ru le , any that are not recogn:.
as exceptions to the ru le .
COURT: You see , i f you had some lega l reason
fo r exceptions the Court is going to give you the b e n e fit .
That’ s the reason I asked the question , I am trying to get
the whole p icture here.
MR. HEFPRON: I am not admitting or aeknowledgiJi
that our evidence is not subject to the exception o f the
hearsay ru le . I am saying, in the main, our evidence can
be presented without v io la tion o f the hearsay ru le . There
is some parts o f th is study to which a va lid hearsay
ob jection may be raised. This is the way we propose to race:
the o b je ction s , your Honor, or that problem.
We have, in a box behind me, 355 o f those
schedules f i l l e d out as beat they can be from available
sources. Most o f the information on those schedules and
most o f those schedules are very w ell f i l l e d ou t, very
completely f i l l e d out with va lid bonafled information from
Irrefu tab le sources such as transcripts and ease f i l e s .
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Now, i t i s our proposal we b« allowed to present those
schedules, those 355 schedules in evidence at the proper
time. I f that is not allowed we w ill subpoena the Clerks as
Indeed we have subpoenaed one Clerk to appear here today.
And we w ill go through the whole process, that the students
took seven weeks to do, in th is Courtroom.
COURT: What q u a lifica tion s do the students havn
in cid en ta lly?
MR. HEFFRON: They are co lleg e graduates. They
have been educated or trained to do what is b a s ica lly —
w e ll, most o f i t is simply c le r ic a l work.
COURT: Who trained them?
MR. HEFFRON: Your Honor, I don 't want to go
in to a l l o f that.
COURT: W ell, I have to ask because you are
making a statement that you want to introduce something;
a l l I am trying to do i s to find out whether or not there
is any q u a lifica t io n . I think the Court should be advised
i f there is any q u a lifica t io n o f people you send out. I
suppose you sent them out or we sent them out, meaning the
three o f you, since you say i t ' s , "we". You sent them out
i f
fo r the purpose o f getting Information and, o f course/ they
are properly q u a lifie d , I would lik e to know i t . I would
lik e to know what th e ir q u a lifica tion s are, why they are
properly q u a lifie d , i f they are properly q u a lified and Just
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what tha whola thing Is a l l about.
MR. HEFFRON: W ell, they have been trained by
P rofessor Woolfgang, whom I mentioned, at the University o f
Pennsylvania, And th is is a man that — certa in ly he has
q u a ilfloa tion s in the f ie ld o f socio logy and s t a t is t ic a l
research and crim inologica l research. The day w il l come
when we w il l l i s t those q u a lifica tion s with the Court.
Professor Woolfgang participated in the train ing
process o f the students.
COURT: Is Woolfgang here?
MR. HEFFRON: Woolfgang is not here today.
COURT: Where is Woolfgang?
MR. HEFFRON: I imagine he is in Philadelphia.
COURT: W ell, was he advised the Court was here
MR. HEFFRON: No, he wasn't.
COURT: When he sent h is people out on th is
research was he advised that th is Court would be the possiblji
recip ien t?
MR. HEFFRON: He was advised that the material
COURT: Was a l l th is in connection with th is
ease?
MR. HEFFRON: I t was In connection with th is
case and several other cases throughout many other sta tes .
COURT: W ell, l e t 's be honorable with the Court
and l e t 's name the states and eases.
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MR. HEPPRON: I can do that, your Honor. Wall,
I can name some casts in which the Issues we propose to
prove have been raised.
COURT: I thought you said that th is was done i i
several states and in several cases and I requested, I f l t ' i
not p re ju d icia l to the P etition er, that you name the states
and cases because the Court would lik e to be informed.
MR. HEPPRON: I can name the s ta tes , your Honor.
COURT: Very w ell, and name the cases. Thank
you so much fo r your cooperation.
MR. HEPPRON: The states are, V irg in ia , North
Carolina, South Carolina, Georgia, F lorida, Alabama,
M ississipp i, Louisiana, Texas, Tennessee.
COURT: Do you have the s ta t is t ic s fo r the
D is tr ic t o f Columbia, by chance?
MR. HEPPRON: We do not.
COURT: New York City?
MR. HEPPRON: W ell, rape is not a cap ita l
punishment in New York City.
COURT: Chicago?
MR. HEPPRON: Rape is not a cap ita l punishment
in Chicago.
COURT: W ell, what other states is rape a
ca p ita l offense that you have the s ta t is t ic s in?
MR. HEPPRON: Well ~
*5
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* 6
COURTS You see , I '* sure you wouldn’ t want to
be partisan and se c t io n a l.
MR. HEFFRONi W ell, as I sta ted , the only
sta tes In the union which impose the penalty o f death fo r
the crime o f rape are those in the southern sections and
border states with the exception o f Nevada.
COURT: Do you contend that the state le g is la t e
do not have the con stitu tion a l authority to define such
penalties fo r crime as the state leg is la tu res may, in th e ir
wisdom and d is cre tio n , may find necessary or proper fo r the
p rotection o f soc ie ty and Justice?
MR. HEFFRON: We have a separate claim that the
sta te leg is la tu re may not allow the penalty o f death be
Imposed fo r the crime o f rape as a v io la tion o f cruel and
unusual punishment. That is one contention —
COURT: What’ s the penalty in the D istr ict o f
Columbia?
MR. HEFFRON; The penalty in the D istr ict o f
Columbia is a lso death fo r the crime o f rape.
COURT: Thank you. And you don’ t have those
s ta t is t ic s ?
MR. HEFFRON: We do not have those s t a t is t ic s ,
your Honor.
COURT: What other states do have? You say the
southern s ta te s , which are your targets today, are the only
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s t a t e s ?
MR. HEFPRON% Theft* are the only states In the
union which have the penalty o f death fo r the crime o f rap*
except Nevada, Oklahoma, Kentucky, Maryland. That may
exhaust them.
COURT: Do you have the s t a t is t ic s fo r those
sta tes?
MR. HEFPRONj Ve only have gathered s ta t is t ic s
fo r the states 1 l is te d o r ig in a lly .
COURT: Why aren 't you at a l l in clu sive? fou
don 't want th is to be a section a l matter, I'm sure, do you?
MR. HEPFRON: We did i t in order to preserve
the rights and liv es o f those whose righ ts and liv e s are
subjected to i t .
COURT: I say, do you want th is to be a section
matter? Why aren 't you concerned with the liv e s o f those
people in the other states except those in th is particu lar
section?
MR. HEPFRON: There have been no other — no
eases have been brought to our attention o f a negro —
COURT: But you want to help everybody, don 't
you? Why not Maryland and Kentucky and Nevada and the
D istr ict o f Columbia I f your cause be on that plane.
MB. HEFPRON: Maryland because we d id n 't have
time, we planned to do Maryland.
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time?
COURT: Whet about Kentucky, you d id n 't have
MR. HEFPRON; No, cap ita l punishment la on It*
way out in Kentucky and we d id n 't expect i t was going to be
a problem.
COURT: A ll r ig h t, s i r , you have answered the
Court's question , thank you. Go ahead.
MR. HEFPRON: You asked me to l i s t the eases?
COURT: Yes, s i r , I am hoping you w il l .
MR. HEPFRON: W ell, there is a couple o f cases
in Alabama.
COURT: Name them,
MR. HEPFRON: Swain v. Alabama.
COURT: A ll r ig h t, s ir .
MR. HEFPRON: Aaron v. Holeman. That was a
p e tit ion In the D is tr ic t Court fo r the D istr ict o f Alabama.
COURT: How do you sp e ll that name?
MR. HEFPRON: A-A-R-O-N v. Holeman and Warden.
That's been remanded to the state courts fo r exhaustive
remedies.
COURT: A ll r ig h t, s i r .
MR. HEFPRON: There is a case in Louisiana in
which th is issue has been raised : Exrel Scott v. Henchey,
pending on State Habeas Corpus proceedings.
COURT: Yes, s ir .
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*9
MR. HEPPRONs There was a case recently decid
by the Court o f Appeals in the Eight C ircu it. That was
an Arkansas case in which claim was denied by the D is tr ic t
Court and the denial was affirmed by the Eighth C ircu it.
P etition fo r C ertiorari has been f i le d to the Supreme Court.
And I point out that at the time that case was l it ig a te d in
the D is tr ic t Court we did not have a box fu l l o f schedules
about rape cases and now we do.
Cases a lso raised in another Arkansas case:
Mitchel v. Stephens, pending in the Eight C ircu it.
COURT: You have a box fu l l o f schedules on
that case?
MR. HEPFRON: No, we — but we now have a boxj
fu l l o f schedules on Arkansas and we hope we w ill get the
opportunity to use them on those cases but those cases
have proceeded a l i t t l e further along than th is one.
COURT: A ll r ig h t, s i r , name the other cases.
MR. HEPFRON: W ell, there is a case o f Alabam
v. B illin g s ley and two other defendants in that case are
consolidated cases. I am not sure o f the names. Those
three cases are down in Pederio County, Alabama.
COURT: Can you get the names at lunch
hour so the Court w ill be advised, the names and the states?
MR. HEFFRON: Yes, s i r , o f course, i f ~
COURT: W ell, i f i t wouldn't prejudice your
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P etition er fo r the Court to have tho fu l l ben efit o f your
exp lora tion , I'm sure at th is p o in t, would i t ?
MR. HEFFRONi Not at a l l .
COURT: A ll r ig h t , a ir , I w il l ask you to
furnish ths rest o f tho names to tho Court, by l i s t , by
tho end o f the lunch hour. Prooood.
MR. HEF7R0N: Wo11, I want to bo frank with tho
Court and t o l l you how fa r wo hare proooodod with th is
survoy and how fa r wo have not proooodod and a lso the
re la tionsh ip to tho motion I an about to make.
Wo have done the studies and f i l l e d out tho
schedules on those forms on every case wo can find in tho
la s t 20 years. In those counties which wo studied there
was a s c ie n t i f ic a l ly drawn up sample o f the counties in
South Carolina ex is tin g o f approximately h a lf the counties.
COURT: Who drew that?
MR, HEFFRON* That was drawn under the auspices
o f Professor Woolfgang by profession al means that I don 't
completely understand m yself, and that would require
expert testimony.
COURT: A ll r ig h t, s i r . Do you think i t ' s a l l
right to substitute the signs o f the Ivory Tower fo r the
Courts o f Justice?
MR. HEFFRON: I think the Courts o f Justice hav<
often found occasion to make use o f the ta len ts o f those
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In the academic community.
COURT: No question about that, no quaatlon
about that, Wright on Pederal Courts is the fin e st book I
have read from, no question about that. We don 't argue thajt
1 agree with you. We Just don 't want to pervert Ju stice .
1 beg Counsel to have the same ambition. Proceed.
MR. HEPPRON; We have 355 f i l l e d out schedules.
There are some minor things to be completed. I won't
n ecessarily state that at th istim e. So when the time comes
i f we want to make certa in law additions we would be allowed
to . They are in s ig n ifica n t.
COURT: W ell, I think you had better state now f
I apologise fo r interrupting you so much.
MR. HEPPRON: I can state it very easily.
COURT: State the names of all the Witnesses,
all the people who have paid for or had anything to do with
this, all the cases which has application to under your
theory. You have stated all the states which it does and
the states In which it does not. Any other information
that should be in the nature of a full disclosure, since
I'm sure, as you have said, unless you now take the positlor
it would not deny the Petitioner's rights.
MR* HEPPRON: I don't quite understand your
Honor's remarks.
COURT: I want such full explanations from you
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o f any and everything concerning th ie as you fe e l would not
in any way prejudice the rights o f th is p e tit io n e r .
MR. HEFFRON: Pine. We were discussing what
had not been completed about the schedules.
COURT: res , s i r .
MR. HEPFRON: I a* handing you a copy o f a
white schedule, 28 pages, although they are unnumbered.
In there is what we c a l l a blue Insert. The blue insert is
necessary to write on. I t 's a blue form. I w ill hold i t
up fo r your Honor.
(Mr. Heffron holding up document)
MR. HEPFRON: This is a schedule f i l l e d out
and attached is a blue back, and th is Is necessary to be
f i l l e d out under certain circumstances.
COURT: Not a pink r id er attached anywhere.
is i t ?
MR. HEFFRON: I don 't know. We have three
d iffe re n t co lo rs . I don 't think there is pink.
COURT: I was wondering i f there was a pink
r id er attached, I would lik e to know.
MR. HEFFRON: The blue one —
COURT: The blue one is the only one you seek
to Introduce?
MR. HEFFRON: Blue is the only one.
COURT: A ll r ig h t , s i r .
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MR. HEFFRON: We ran out o f blue riders and a
there i t tone information to be added.
COURT: I'm a l i t t l e co lo r blind is the reaso;
I ~
MR. HEFFRON: Blue riders are supplied and
we w il l be adding a few blue r id ers .
W ell, I think I have explained the theory
under which the survey was conducted and upon which our
p roof w il l re s t .
COURT: A ll r ig h t , s ir .
MR. HEFFRON: We have the resu lts . We have
data and what we do not have because we have not had time,
is we do not have a analysis prepared fo r presentation;
that i s , four Honor, I would say, hundreds o f thousands o f
b its o f information on the schedules. There are computers t
are set up to handle such vast amounts o f information and
we have arranged to use those computers and under accepted
methods to analyse th is inform ation. This is going to take
approximately two months and th a t’ s only fo r prelim inaries.
I be lieve that we could rest on the preliminary studies
fo r the purpose o f th is case.
Until that study is in everyone is in the dark
except fo r what’ s in that box, except to the amounts o f
paper. And I hesitate to introduce in th is Court amounts
o f paper about which we have some Ignorance.
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COURT; Some what?
MR* HBFPRON: Sob* ignorance. We have — I hk
not digested a l l the Information in that box o f paper end
no one e lse has* We have made arrangements to have p r o fe s s
iona l persons who have available computers who can take
these schedules and run them through the computers so to
speak, and come out with certa in s t a t is t i c a l conclusions.
And i t is our earnest request o f th is Court that we be
allowed two months in which to produce that study. At that
time we w ill show the study to the State and to the Court
and, we w il l say, you have seen our data and th is is our
studyj do you want to force us to prove that by ca llin g
court clerks throughout the State o f South Carolina, puttinf:
them on or w ill you accept our presentation , our a ffid a v its ,
that the information was gathered honestly and by accepted
means. At that time we can present expert testimony to
explain the s ign ifica n ce o f th is data and# I think, that
we can avoid hearsay problems because there would be no
ob jection raised i f — A fter a l l , i t might turn out, conceit
but we don 't have much fear o f that.
COURT; Have much what, fear? Pear o f what?
MR. HBFPRON: I say that i t ' s conceivable that
I t * s Information in those schedules damaging to our position
That's what I say I don 't have much fear o f but there is a
p o s s ib i l i ty .
5*
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COURT: AU r ig h t, a ir , I Just want to make
sure o f what you faar.
MR. HEPPRON: A fter a l l , p e t it io n e r 's counsel
have gone to great trouble and expense in order to present
a l l the proof that can be gathered and I know the Court
wants to get th is case disposed o f as quickly as p oss ib le .
COURT: I an at your d isp osa l, le t there be
no question about that. Unless somebody misreads the record
I am going to be here at your d isp osa l, so you proceed.
MR. HEFPRON: I t is our request, and I w ill pu
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i t in the form o f a motion; we be allowed a stay o f proceed:,
fo r s ix ty days in order to have time to produce a s ta t is t ic s
study analysis based on s c ie n t i f ic methods fo r presentation
in th is Court.
COURT: A ll r ig h t, s i r , I w il l ask you: When
did you start th is supposed studyt
MR. HEPPRON: We began thinking about th is stn
COURT: Who i s , "We began thinking about i t ? "
MR. HEPPRON: I would say lawyers in New fork
with whom I am associated and Professor Amsterdam, possibly
two years ago, began thinking about such a study and the
thoughts d id n 't c ry s ta llis e u n til early in the spring o f
th is year. P inally we mapped out a plan o f action and we
d id n 't have the manpower. We had to wait u n til the summer
when the students would be ava ila b le , q u a lified students
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who wore willing to work at lost than reasonable wages,
to help us gather the information.
South Carolina, we had one team of researchers
go into South Carolina the day after they finished their
training In Philadelphia.
COURT: What day was that?
MR. HEPFRON: June 21, 1965 and they arrived
here June 22, 1965 and the group was here until August 3rd,
this year gathering the data we have here today.
I had a conference with Professor Woolfgang,
oh, I would say, soon thereafter, within a week or two after
that, and he had Just returned from Puerto Rico, discussion
ways and means of putting this information into a comprehem
but brief document so that the Issues in the case could be
made much more understandable to the Court and Counsel on
both sides. And we formulated the plan. He originally
told am would take a year and a half. 1 said, "We need
something faster.” He said, "Well,a less elaborate study
on one state, you pick the state” and I said, "South Carolln
Really, he said two states and I picked another and South
Carolina was one of the states we chose and he said, "we
could have a preliminary study worked up on that state in
about two months and that's as early as we could hope.”
COURT: All right, sir.
MR. HEFPROH: I present that motion at this time
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COURT: Mow, Mr. Attorney General, we hare th is
problem. I hare, o f course, given Counsel a l l the time he
wished. I don 't be lieve you can complete your argument,
o r can you complete i t in f i f t e e n minutes?
MR. BRANDON: I would p re fer , i f i t ' s the Court’
p leasure, to —
COURT: I t i s n 't the Court's pleasure ~
MR. BRANDON: This i s , o f course, a l l new to
u s .
COURT: — I'm trying to make sure that Counsel
get a fu l l opportunity to explore th is matter in every
fa ce t o f i t because i t seriou sly a ffe c ts the system o f
jurisprudence in th is s ta te , and I am most seriou sly concern
with the C onstitutional rights o f the P etition er here.
Recognising that perhaps that may not be the concern o f
some others but I have to protect that absolu tely . Now,
in keeping with that p o licy o f the Court which I am directe<
not only by the Constitution o f the United States, the
Supreme Court o f the United S ta te s ,fo r the Fourth C ircu it
and by the train ing I have received but I don 't want to
prejudice you by saying you can complete the thing in
f i ft e e n minutes i f you need th irty or th irty i f you need
fo r ty . I t 's ju s t lik e I d id n 't ask him to hurry up at any
time. And, as I say, the Court is at your d isposa l. I
had in mind perhaps recessing now u n til 2:00 o 'c lo c k since
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the Gentlemen has some s t a t i s t i c s , names, cases, and so on,
or other Inform ation, 1 hope, he w il l provide fo r us, which
he says Is not prejudicia l to the P it lt lo n e r 's r ig h ts . So
I f that wouldn't Inconvenience you I would lik e to take a
recess u n til 2:00 o 'c lo c k or would I t Inconvenience the
NAACP to take a recess u n til 2:00 o 'c lo c k . I t would not,
s ir ?
MR, HEFPRON: Your Honor —
COURT: A ll r ig h t , s i r , we w ill take a recess.
You say I t would not?
MR. HEFFRON: I Just responded to your question,
your Honor. I can 't respond to that. Because I don 't
speak fo r the NAACP«
COURT: W ell, fo r whom ever you represent,
whether I t 's the NAACP or some facet o f I t or some conneotlo
with I t , th a t 's not Inconvenient, Is i t ?
MR. HEFFRON: In my capacity o f one o f the
Counsel fo r P etition er I concur with what Mr. Perry has
sa id .
COURT: Thank you very much. We w il l recess
u n til 2:00 o 'c lo c k .
< Recess)
(2:06 P.M.)
COURT: A ll r ig h t , bring the P etition er back.
(P etition er In Courtroom)
5 «
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COURT: Nov, Mr. Heffron, just to got tht reoorc
straight, I bolitvo I was somewhat u ndor confusion that
y o u represented tho NAACP. Just w h o Is It you represent?
MR. HEFFRON s I roprosont tho Potitlonor.
COURT: I moan, who Is It that sont you here?
You said NAACP and I didn't exactly know what you meant by
that.
MR. H B F F R O N : Wall, Mr. Porry contacted mo
through ay office. I an employed and paid by NAACP legal
defense and educational fund Incorporated. I do not repress
then. X am a Lawyer w h o m they have hired among others to
cooperate with other Lawyers In the defense of persons
w h o m we believe to have depravation of constitutional rlghta
COURT: So some organisation hired you?
MR. HEFFRON: It's like a legal aid organisation
almost like a civil rights organisation, that's who I work
fo r and I joined In the defense, In the representation of
the Petitioner.
COURT: But you only appear In NAACP cases
that they have some —
MR. HEFFRON: X guess any case that X appear In,
by definition, beoomes a ease of NAACP.
COURT: X don't know what yo u mean by NAACP by
definition?
MR. HEFFRON: Well, just because I am employed
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by than and they pay ay expenses as wal l as ay salary, I
Imagine any observer w ould ba Justified in saying that this
la a easa In which tha NAACP legal defense fund Is envolved
COURT: But Mr. Parry sought you out, you d i d n ’t
seek h i m out?
MR. H E F F R O N : He sought us out. We have worked
with Mr. Parry in many other casas.
C O U R T : And tha organisation has adaquate funds
to pay y o u entirely, does It not?
MR. HEFFRON: It does have those funds solicited
by voluntary contributions.
COURT: Who Is president of tha organisation?
MR. HEFFRON: The president of the organisation
Is the Honorable Frances E. Rivers, a former judge of the
Civil Court of the State of New York; the director counsel
Is Mr. Jac k Greenberg.
COURT: Oreenberg?
MR. H E F F R O N : Yes, and he Is the operating head
and acting director.
COURT: All right, sir, now, yo u were going to
state into the record hare for us some Information. I hope
I gave yo u enough time. Did you gat the Information?
MR. HEFFRON: I did gat that information, your
Honor.
COURT: All right, let's have It If it's not
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preju d iea l to the P etition er.
MR. HIFFRON: Among the oases — I think i t ’ s
important fo r the Court to rea lize the issue we are present:.!
th is morning and th is afternoon is being presented in Severn:
other cases throughout several other states and th is could
w ell become a land-mark case and very very w ell could —
th is is the f i r s t case in which we have been able to come
in to Court with the gathered data and there w il l be other
oases in the very near future in which we would be able to
do that.
COURT: Yes, s i r .
MR. HEFFRON: One o f those cases is the State
o f Alabama v William B illin gsley Jr.
COURT: You named that before lunch, I think.
MR. HEFFRON: We did name that. Edwards County
C ircu it Court No. 7^3 in the state o f Alabama, and the
companion case to that is the State o f Alabama v Robert
Hawthorne, Edward County C ircu it Court No. and s t i l l
another companion case is the State o f Alabama v James
L_i _d-D-E-L-L, Edward County C ircuit Court No. 7^5. And
in a l l three o f those cases there was a sentence o f death
upon conviction o f rape and a motion fo r new t r ia l is pendir.
There is one other case that I have knowledge ol
which I neglected to mention th is morning. That is the cast
o f Craig v F lorida , pending presently in the Supreme Court
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o f tho stut# o f F lorid * . And th a t 's * useful esse because
In that case there was a s ig n ifica n t amount o f information
gathered. The Information was not as deta iled as I t is
In the study that was conducted fo r th is case but i t was
quite deta iled and a fa ir ly comprehensive report written
about i t and that information was presented in to the T ria l
Court fo r the purposes o f proving the con stitu tion a l
a llegation s which are sim ilar to those in th is case. And
the State there stipu lated fo r the purposes o f the motion
that those fa cts could be considered as true in that postun
The case is now before the Supreme Court o f F lorida follow ii
the denial motion by the T ria l Court in F lorida.
COURT: Except in a sta te where you have descrll
as a southern s ta te , has your organisation appeared?
MR. HEPPRON: I t appeared in a few cases in the
northern s ta te s , your Honor*
COURT: How many eases approximately? You say,
*a few ," and what states?
MR. HEFFRON: X only know about f iv e or ten and
X might not be able to l i s t that many. Ohio is one.
COURT: What sort o f case in Ohio?
MR. HEFFRON: A housing ease in Ohio, a case
against rea l esta te brokers. The contention is rea l estate
brokers in Toledo, Ohio are v io la tin g the Anti Trust Laws
by excluding negroes from membership in the organisation ,
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1 by refusing to soil houses to certa in negroes in certain
designated portions o f the c it y . And I be lieve there are
three or four other cases, state cases o f the same nature
in V irg in ia .
We have — I be lieve we are involved in a
case, some o f our lawyers are Involved In the case in Chlcajg
Involving the desegregation o f schools in the c ity o f
Chicago and beyond that my knowledge is lim ited .
COURT: I certa in ly thank you. A ll r ig h t , Mr
Attorney General, X w ill hear from you.
MR. BRANDON: May i t please the Court, the Attornej
General, Mr. McLeod asked me to have him excused from the Cpurt.
COURT; C ertain ly , he has Just moved his offijs#
and he is overworked, I understand.
MR. BRANDON; Thank you, four Honor. In opposing
th e ir motion fo r continuance o f th is matter fo r 60 days we,
o f course, would note that they have had th is matter over
two years, as Your Honor heard counsel s ta te , and they only
started th is spring to gather the s ta t is t ic s such as they
are. We, o f course, think that that in I t s e l f would be
enough to deny the motion in th is p articu lar case. We are
n ot, at any time, admitting that the supposed s ta t is t ic s
or records that they have, have any relevancy on th is matte^
And, to make the record c le a r , I would lik e to s ta te , at
th is time, a lso that In the event the s ta t is t ic s are secure:
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and placed in what they consider proper fora or correlated
or handled in whatever matter i t might be, the State would
not even, in that event* stipu la te that they would be
admitted. We wouldn’ t do that even i f we were convinced
o f the absolute accuracy o f the statements. We think th is
is a matter, i f i t ever comes before the Court, w ill have
to be lit ig a te d with a l l rights reserved fo r the State fo r
cross examination or such moves as i t thinks proper. We,
o f course, and th is is not en tire ly relevant to the
argument at th is time, think that they are absolutely hear
say.
Arguing fo r a moment on the merits o f th is maf
we could , o f course, bring s ta t is t ic s In to show the to ta l
number o f arrests in th is country fo r crim es, including
the crimes o f fo rc ib le rapes, to show how many are white
and how many are negro, and in comparison with the to ta l
number. We, o f course, don’ t think that —
COURT; Don’ t you think they would ob ject to
that on the grounds that i t ’ s hearsay, and properly ao?
MR. BRANDON: I surely do, and we don’ t think
i t ' s relevant at a l l and fo r that reason I w il l not mention
the matter, Further, I would say that we have them avallab:
We think the contention that is made, that i t
certa in ly a fan tastic one and i t reaches far out in to l e f t f i i
I t could never have any useful purpose or p ra ctica l applicati<
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Bv«n i f they secured what they hoped to determine to be a
land-nark decision in the matter how would i t ewer work?
Would you have a quota fo r conviction# in certa in counties
o f the sta te and i f you went in to prosecute a negro fo r
fo r c ib le rape on a white woman and you pulled out the box
to see previous convictions and show there were so many
white and so many negroes and that was not in the proper
proportion would you have to wait u n til you f i l l e d the
quota fo r white u n til you prosecuted? And suppose a
prosecution was pending in one county and a prosecution
pending in another county at the same time, would each o f
them have to wait u n til the other one tr ied th e ir case
u n til they could go ahead? How would i t ever work? Why
wouldn’ t i t apply to other crime#?
I think* in getting back to s ta t is t ic s — I
said I hoped I could stay away from them but there could
be Instances that show that there are other orlmes which
negroes do not commit In the greater proportion to the
whites as i t is o f rape. Would i t apply there i f there
were more than the proper amount o f convictions? We think
that the matter is u tterly fa n ta stic , that there would
be no p ossib le way to evaluate a situ ation o f th is s o r t ,
that i f a Defendant can’ t show discrim ination in the s e le c t !
or in the paneling o f the Jury in some manner that there ia
no other way i t could possib ly be shown in th is s ta te , the
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question being l e f t up, e n t ire ly , to the d iscretion o f the
Jury as to the punishment*
COURT: W ell, o f course, you know the people
that would destroy our system o f Jurisprudence would be
the f i r s t to attack the Jury system because ever since
Runny Mead we have had the fin est system o f Jurisprudence
in modem c iv i l i s a t io n , the English-speaking people.
I believe they celebrated recently the dedica ;
o f some property to the la te and beloved President Kennedy
and that was emphasised, and I am happy to say, widely
p u b lic ised .
MR. BRANDON: We think, o f course, unless the
defendant can show some concrete plausable deprivation o f
con stitu tion a l rights to th is Court that there is no Juris
d iction in the Court to grant him r e l i e f .
I would lik e to say, at th is tim e, that i f tb*
defendant can show the deprivation o f a con stitu tion a l righs
the State w ill certa in ly agree to a new t r ia l at any time
that i t can be shown.
COURT: I think that should be the attitude or
the State o f South Carolina at a l l tim es, that I f an
infringement o f deprivation o f con stitu tion a l rights were
proven, the State would consent to a new t r ia l . And I
commend you on that attitude because I think i t ’ s proper.
MR. BRANDON: With reference to th is proposed
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form that they have shown here and upon which they say
th e ir inform ation is to be corre la ted , there are many, many
things that are perhaps o f no relevance. The whole thing
is Irrelevant but there are pages hero that give inform atio
about the v ictim . I t would be Just as lo g ica l meeting
out punishment, that the thing is proper in th is ca se , that
the victim be consulted sometime a fter the crime and i f i t
be shown that she recovered properly and suffered no lastlni
physical damage that the defendant be given a lig h ter
sentence, maybe even turned lo se , but I f i t be shown she
su ffered a te r r ib le mental breakdown that he be punished
more severely . We think that would be equally lo g ic and
we certa in ly urge th at, as a matter o f contrast, to show th
u tter l l l o g i c , to show the u tter irre levan ce, the u tter ,
we think, in cap ab ility o f any p ra ctica l application by i t
should It be adjudged/which we do not in any way agree to .
The thing would Involve, in getting to th is ultimate
I l l o g ic a l conclusion , a system o f t r ia l by p o ll taking or
perhaps you would run a column in the newspaper about i t
and le t people send in what they think should happen in the
case .
We think the matter should be confined to what
has happened to th is defendant. We don 't think i t has been
shown, we do not think that i t can be shown, that he suffer*
any con stitu tion a l deprivation o f r ig h ts .
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COURT* A ll r ig h t , Mr. H effron, do you or your
Associate Counsel wish to reply to the argument o f the
Assistant Attorney General?
MR. HEPFRONt Yes, s i r , your Honor, we do Just
b r ie f ly . My f i r s t point would be that we have not had th is
ease fo r two years. We have been considering th is problem,
the problem o f what the term discrim inatory sentencing is
fo r about two years. But Mr. Perry f i r s t became associated
in th is case on November 28, 1964 and I became associated
th erea fter .
COURT: Suppose you a l l quit today and somebody
e lse came in?
MR. HEFFROM: I f we quit today a l l the Issues
that have been raised would remain u n litiga ted . I Imagine
anyone e lse could come in and l i t ig a t e i t . I imagine we
would a lso be su b ject to the Court's power o f d isc ip lin e
fo r irrespon sib ly leaving the case,
COURT* W ell, o f course, i f the Court found
ir r e s p o n s ib ility wouldn't there be a defense o f discriminate
MR. HEFFRON* I imagine i t might w ell be raised,
your Honor.
COURT* I would think so , that that would be
raised and a l l the other red herrings. Qo ahead.
MR. HEFFRON* As to any evidence the State might
want to put in in rebutta l o f our evidence I don 't see how
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»• eould «v»p o b je c t to th e ir m r presenting FBI rep orts ,
rats o f a rrests , number o f negroes arrested fo r various
crim es. Our ob jection sight be as to irrelevancy to vhatev*
they presented but X d on 't be lieve we would ob ject to
submission o f federa l rep orts . We certa in ly plan to o f fe r
c e r t i f ie d copies o f federa l reports as part o f our ease.
As a matter o f fa c t , one o f the th eories o f our case is
that we only carry the burden so fa r and once we have
carried the burden ju st as fa r as we can and we have made
the kind o f showing we know that we can make then the burder
w il l s h i f t . We w il l have established a prlma fa c ie case
In discrim ination in eases o f race and i t would then be the
burden o f the sta te to present evidence o f rebuttal and
that would be expected* Just one more word on the basic
theory o f the case: I t 's been claimed that what might have
to be a quota system, one county would have to wait to try
another county's ease before i t could proceed in i t s ease,
and th is claim might be raised with respeot to other crim es.
Our point i s th is : The C onstitution , ltth Amendment in
the Federal Statute a l l require that a l l persons sh a ll
s u ffe r lik e punishment, pains, and p en a lties . That's
incorporated in the statutes now on the books and which is
one o f the basis o f the lt th Amendment. Certainly no one
in th is Courtroom w il l argue that a l l men receive lik e palm
and punishment and penalty upon conviction o f certa in crime:
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and circum stances.
The Supreme Court held , in the landmark case <
Newthold v. Hopkins, in the 19th Century, i f i t could be
shown that a building ordinance in the operation o f a
laundry in a wooden building can only be forced against
Chinese ancestry and not enforced against laundry owners
o f other ancestry then th is was discrim inatory o f a p erfectl;
va lid sta tu te . I t is our claim there that Its discrim inator:
app lication o f a statute may very w ell be valid but the
app lication has been a rb itra r ily and unconstitutional.
And i f that can be shown with respect to other crim es, why
should that not be struck down by Courts which uphold the
C onstitution . I make no apology whatever fo r in s is tin g on
the application o f the Constitution where ever i t should be
applied.
F inally as to the existence as to possibly
irrelevant questions on the schedule: There are a lo t o f
questions on that schedule, some are more relevant than
others. Once the schedule on th is man has been f i l l e d out
about th is ease most o f the factors are known: Factors
relevan t, the amount o f resistance put up by defendant and
amount o f in ju ries done to her, which can be measured at
that time right a fte r the o ffen se . Certainly many a
prosacuter has made many a statement about that.
COURT: What? What did you say?
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MR. HEFFROM; I say, that ca rta in ly , many a
prosecutor has made many a statement to the Jury,
COURT: About shat7
MR, HKFFROM? About the harm done to the victim
COURT: Do you think th a t 's wrong? What sort
o f a speech do you think the prosecutor should make?
MR. HEFFROH: I think I t 's relevant,
COURT: A ll r ig h t , s i r .
MR. HEFFROM: I think I have rep lied to the
arguments made by Mr. Brandon and I do b e lie v e , your Honor,
that the only sound way to handle th is case Is to allow
us to do I t in an orderly fashion and unburdened fashion
a fte r we have demonstrated a w illingness to do whatever
we could In the time allowed, to try to prove th is point
which, by i t s nature, requires a great deal o f p roo f. A ll
we ask is a modest 60 days In which to submit our fin a l
rep ort•
COURT: Anything that you think needs rebuttal
that he raised that he d id n 't ra ise In his main argument?
You would be confined to th at.
MR* BRANDONi I think n ot, your Honor.
COURT: This Court has before i t a motion fo r
postponement o f consideration the issues which have been
d irected to th is Court fo r app lication and consideration by
the United States Court o f Appeals fo r the Fourth United
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States Judicial Circuit in this parti c u l a r ease. Without,
at this time, ruling upon the adstisslbllity or the c o mpetent
o f the evidence which, at this time, has not been offered
but which hat been referred to. An d sitting for the purposi
o f hear i n g such arguments on the Issues as confined by the
p r e-trial o r agreed to by the pre-trial, and at the same
time, allowing Petitioner, whose presence was made certain
upon motion today, to present through his Counsel of choice
o r o f association any other issues w hich may have to d o wit i
his constitutional rights o r depravation or Infringement of
the same*
The Court rules, at this time, on the motion to
postpone which, if n o connotation, would be called the
Motion for Delay o f Consideration at this time*
There is no showing here that the information,
if it were competent, if it is competent o r admissible,
could not and should no t have been obtained by those associ i
by Counsel in behalf of Petitioner over the long period of
time wit h which this Court has been acquainted and given
time and consideration to the various petitions and request!
and motions o f the Petitioner.
The State of South Carolina, through its Counse i
today, has admirably stated: That, if in the opinion of
those Counsel chosen by the electorate of South Carolina as
solicitor of the particular circuit involved, and as A t t o r n >
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Central and Deputy Assistant Attorney* Central o f tha statu
Involved ware convinced that any deprivation of tha petitli
right w ould ha accomplished o r would ha predicated by the
delay o r hy the granting o f tha notion o r in any way infriik
upon, that the State o f South Carolina would eoneent to
a ne w trial. The atate haa abated that it would not enter
into any agreenent aa to the adalealhlllty or competence
o r approprlatlve value, inaofar aa thia petition la concern
o f tha auppoaed or alleged evidence which haa been referre<
to although, at thia time, not proffered to the Court for
ruling aa to a d m i a a l b l l l t y , competency, approprlatlve
value aa to thia particular eaae.
Counsel for petitioner has admitted and have
voluntarily submitted to the Court a aoreorleaa verlflcatlc
there of the hearsay which would he Involved without specif
ing the competence o r wherein, aa counsel have stated, any
exception to the hearsay rule w ould be applicable.
In looking at the exhibit handed to the Court
designated by a person or persons unknown or an organlaatie
o r organisations unknown as quota, capital punishment eurve
unquote X find therein, not to single out but included amor
the other portions o f said proposed statistical effort sue*
questions as: Under Hi " V i c t i m ’s reputation
Cheek the appropriate categorise
below:
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7*
Trior M t « o f prostitution *
sexual intoroourso for compensation by tho vi c t i m are
admitted b y vic t i m
Reported by D o f o n d a n t , on
personal knowledge
Reported b y a companion assail
on porsonal knowledge
on porsonal knowledge
Roportod by any othor p a r s o n ,
Attributed to tho vi c t i m by
gene r a l r e p u t ation.”
Again u n d o r T "How long p r i o r to tho offonso
did Dofondant first form tho intontion to oosmlt spooifio
offensof
9. Commission o f aontoaporanoous o f f e n s e s , and their
pro-planning.
I. 3. Open h o w atany parsons in addition to victim did
Dofondant hlas o l f ooaait aets constituting tho saae offonso
as tho prlnoipal offonso o r an attoapt to ooaait it in tho
plaeo and at tho tlao of tho principal offenseT"
T here is n o showing before this Court at this
tlao that tho granting of tho notion or tho aoooapllshaont
of tho compilation of tho statistics would bo of appropriate
v a l u e , of coapotonco o r adaisslblllty if aocoapliahod by
those whoso qualifications have not boon proven, whoso aoani
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In gathering the Information hate n e i t h e r been proven,
verified, qualified, n o r given any expertise c h a r a c t e r i s e d
inso f a r as p r o o f u n d e r oath o r on the witness stand o r
agreed to, is concerned.
This Court, o f course, has every respect for
those w h o have given t h e i r lives and their talents t o the
nobility o f the profession to w hich we call education, and
this refusal is n o criticism of those, w h e t h e r n a m e d or
unna m e d in the colloquies which have occurred in discussing
this parti c u l a r motion. But X a m constrained to wonder
whet h e r or not, when we oonslder such Information as this:
W h o gathered,why gathered, should hearsay be here?
We must admit that the burden would be on the
Petitioner, which burden has not been discharged before
this Court at this time and at this hearing although the
Court told Counsel that they would have all the time that
they felt necessary.
U nder all these circumstances and because the
Petitioner himself is entitled to a speedy disposition of
the issues as defined and directed by the Fourth Cirouit
Court of Appeals, the motion is refused and Counsel for
«
the Petitioner are now at liberty to proceed.
MR. H E F F R O H : T our Honor, we take exception
t o that ruling.
C O U R Tt In South Carolina yo u don't have to take
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exception, X tell y o u that because y o u don't have to do
that. That is tho rulo in N orth Carolina, not South C aro11^
Vo undoratand that y o u don't agree with ua when wo rulo
against you.
MR. HEFFRON: All right. May I ask If that
carrloa throughout tho proceedings?
COURT: Oh, cortainly, air. Aa an offloor of
thia Court y o u aro ontltlod to ovary bonoflt of tho rulo an)
you got it.
MR. HEFFRONi So that It la not nocoaaary to
tako explicit obJaction to tho ruling which tho Court makes"
COURT: No, air. Vhon tho Court ruloa in South
Carolina — and thia la whoro wo aro superior in our ayatow
of Jurisprudence to many othora — wo don't require Counael
to be that alert beoauae if mistakes have boon made our
Courts are quick to correct it once it is brought to their
attention, without tho necessity of any exception, and I'ai
proud of that fact in South Carolina.
MR. HIFFRON: At thia tine we offer in ovidonoo
the 355 schedules that have been completed and have been
referred to previously in this hearing. And with the Court'i
permission X will make a proffer as to what those ~ If X
h o a r an objection X will make a proffer to what those schedi:
will p r o v e .
COURT: What does the Attorney Oeneral sayf
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MR. BRANDON* V* object to then on the groun
of hearsay and Irrelevancy.
COURT: All right, sir,
MR. HEFFRON: We offor to prove through tho
four Honor, I had bottor got thoao narked.
COURT: All right, air. Any objection to tlw
1dontification?
MR. BRANDON: Wo do not object to that.
COURT: Of course, If ho objected to it ho
would have to bring tho person up hero who supposedly made
or allegedly aade then*
MR, BRANDON: If four Honor please, nay I
Inquire of the Court at this tine? I perhaps an tinder the
misapprehension of the law myself. It was ay understanding
that no objection to the identification of then would not 1
any way facilitate their admissibility into evidence.
COURT: Well, I don't want the accused dlseri
ated by insisting that the petitioner conform to the rules
of the Court but, as I understand the rule, when you offer
evidence you put up a witness. Unless it's agreed that the
evidence has the authenticity, for the purpose of identlfle
you offer somebody: fou Identify this? Xs that your hand
writing? Did you nude® it? Or, Is that your calculation?
Did you make it? When did you make it? From what lnfornat
did you make it? And then you tender the evldenoe for
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Identification. Then y o u o f f e r it in evidence u what has
heen i d entified because somebody bat identified it, o t h e r
wise, this could have bee n gotten up by oh, just anybody —
and X nean n o parti c u l a r oannotation by that to anybody,
in
but/any given ease y o u could w a l k up and h a n d soaebody thlnjf
like this and say, well, these are records. But where is
any authenticity unless they are identified as authentic:
Who aade then! H o w they nade then? Why, and so on. It
concerns as. He is Counsel, he didn't wake then, o r if he
di d he hasn't inforaed as. Xf he did, then, o f course, he
could raise his right han d and properly Identify then.
Then after he has properly identified t h e n he can proffer
them in evidence and then the Court rules at that ties
upon the admissibility, its competence, approprlatlve value
and their application and relation to the particular issue
Involved. A m I rightt Z w ould like for Counsel who is froji
South Carolina to correct as if I a a wrong.
NR. P E R R Y : Your Honor, as Z understand Rule h3b
where a litigant desires to offer certain evidence and wherji
the right to offer that evidence is denied by the Court,
speaking specifically of that portion of 43c which has to
do with the Court sitting without a Jury, that under the
Rule the Petitioner in this case may state what he aay
offer to prove, the facts which he contends to exist. This
is a aatter which is actually taken — covered under the
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excluded e v i d e n c e » The Court tokos its attitude against
tho evidence i f that bo tho Court * s ruling but, n e w r t h e l e i
tho petit i o n e r is protootod by baring offorod bis evldenoe
and b y stating wbat bo proposes to p r o w by that ovidonoo.
This is tho way I understand the last port of * 3e.
COURTi Well, y o u r use o f sonanties was perhi
a little o w r enthusiastic, the Court has no attitude.
Tho Court just fools that tho authenticity should bo p r o w i
in some way before ho attempts just to offer 3 5 5, is itt
HR. PERM': T h a t ’s ny understanding,
COURT: 355 © f those pamphlets or booklets, 3|
d o n ’t know what would bo tho best way to catalogue or
classify them for tho purpose of keeping the record pure,
without any p r o o f of their Identity except his statement.
MR. PERRYj Veil, Your Honor, of course, he
was about to identify them.
COURT: Veil, how could he identify them unle
he made themf I didn't say the gentleman did this and I'm
sure he wouldn't, but suppose he brought them down from
w h e r e e w r he came from and somebody else made themf Just
suppose that, in the extreme, because that's the reason for
some applicability of the necessity of proof or he could
just come down and dump them and seme Court look at them
and look all through them and all like that and there is
n o authenticity but they get the color o f authenticity becsi
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o f the fa ct that they were referred to and argued about.
Suppose you were trying one o f those big
damage s u its , Mr. Perry, that you have been trying la te ly
and somebody came in with a bunch o f s ta t is t ic s and sa id ,
I am Just o fferin g them here, and you would say, where is
the man that knows something about them, and that would
be the f i r s t question you would ask him: Now, wouldn't you?
I think you would, You see, the fact that th is P etitioner
is here engages every sympathetic understanding o f th is
Court; at the same time, i f we abolish the rules here then
somebody w ill find an excuse to abolish the rules some
other p lace. There w ill always be an exception.
MR. PERRY: May I say, Your Honor, i f I might
in je c t th is?
COURT: Certainly.
MR. PERRY: Your Honor, in the hypothetical
situ ation you Just mentioned to me: Before a Jury, under
rule *3c, i f my adversary wanted to o f fe r evidence to which
I objected and to which the ob jection the Court indicated
i t s agreement, under the f i r s t part o f 43c, my adversary,
at that time, would have the right to ask fo r the Jury to
be excused and he would then have the right to o f fe r things
fo r consideration in the absence o f the Jury. It would come
under the excluded evidence.
COURT: Yes, s i r , Mid he would put a witness <
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fll /
that stand to prove tho authenticity o f it* *
MR. PBRRTt I a tro ly stated tha proaadura o f l t k
your Honor.
COURT: fa s , a ir , but ha would put a tfitneaa up
there to Id en tify I t , wouldn't ha?
MR. PERRY: Perhaps ha would, your Honor.
COURT: Perhaps nothing. That would be tha only
way ha could prove tha a u th en ticity , wouldn't i t ? How alaa
could ha prove i t ?
MR. PERRY: W all, o f course, your Honor, you
asked ae to reply to a given s itu a tion .
COURT: V a il, how alaa would ha prove i t ?
MR. PERRY: V a il, o f course, he would have to
carry tha burden o f proving tha auth en ticity .
COURT: That's a l l I 'a asking you. Thank you
very much. L e t 's hear from you.
MR. HSPPROM: Your Honor, at th is time, we are
not going to put a Vltness on to explain the testim ony,
that which I eluded to th is morning, I tr ie d to explain
th is morning that th is is a Job that has to bs dons a l l at
one time. Ve made the request that we be allowed a s u f f io i h
amount o f time to preaent data and Vltneases and axpert
testimony to explain juat what I t Is in thers and how tha
survey i s completed and what i t was designed fo r and how tho
operation was performed.
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COURTt Which v u nothing more then a statement
o f Counsel with an absolute vacancy as to p roo f. Absolute;
there i s no testimony o ffe re d o r , you say, to be o ffe red
at th is time,
MR* HEFFRON: At th is tim e, your Honor.
COURTj That's right*
MR. HEFFHONt We are not in the p os ition —
COURT! fe e , s i r .
MR. HEFFRON: — to make the Id e n tifica tio n
and explanation that i s necessary.
COURT! A ll r ig h t , a ir .
MR. HEFFRONi We want to present the data fo r
the Court's attention and we want to make a record .
COURT! There having been no id e n t if ic a t io n ,
no attempt at id e n t if ic a t io n , no attempt o f explanation o f
id e n t if ic a t io n , or the reasons fo r lsek o f id s n t if lca t io n
fo r the purpose o f o ffe r in g the p ro o f, the Court w ill
authorise the Clerk to sea l the package and mark thereon,
Counsel's exh ib it 1 fo r P etition er and fo r — what's your
orga n isa tion 's name?
MR. HEFFRON: I resp ectfu lly ob ject to any
such designation.
COURT! W ell, Mr. Perry d id n 't o f fe r i t . Do you
o f fe r i t to o , Mr, Perry?
MR. PERRYj Your Honor, o f course, I think perhni
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you are haring to do now with whether Nr. Heffron la o ffe r in
i t u in organisation . Nr. Haffron though Is ind ividua lly
as a Counaal fo r P etition er .
COURT: A ll r ig h t. And the testimony Is not
acceptable because the P etition er has absolutely fa ile d
by h is own admission o f sustaining the burden o f authentlelt
o r p roo f thereabout. Prooeed.
MR. HEFFRON: tour Honor, you mentioned that
the box would be sealed and we. o f course, are going to
require to have copies made o f th is one to show to Counsel
on the other s id e , one fo r our own use and I wonder i f that*
contemplated by the Court's previous order. I f i t i s not,
your Honor, 7 would resp ectfu lly withdraw that exh ib it
because we have to have i t .
COURT) You have come in here as an o f f i c e r
o f th is Court, you and Mr. Perry, knowing th is hearing was
today. At each stage o f th is proceeding the Court's
patience has been generous. You knew you were going to
o f fe r th is evidence or hoped to o f f e r i t and the Court has
given you the right to tender i t . Why d id n 't you bring that
up beforehand?
MR. HEPPRON: I t re a lly d id n 't —
COURT) X mean, Justice demands that the o f f i c e r
o f the Court convenience the Court.
MR. HEPPRON: Your Honor, i t occurred to us that
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I t was Just lik e ly and probable that th is Court would not
allow us the time to work with th is m aterial. ’
COURT: fou have had a l l the time you needed
you are trying to make a record when the record speaks fo r
l t a e l f . This case has been dragged and dragged and dragged
and I have convenlenced counsel every time they have
asked me fo r a hearing. I ’ ve been available a fte r hours and
any other time. I am available today, I was available
yesterday. Since the notices went out that th is case would
be here fo r a hearing I have been ava ila b le . My secretary
knows where I am every given day at any given tim e, counsel
knows that. Don't say that th is Court has done you anything
that Is not correct. This Court stands ready to receive
anything you have. Don't becloud the Issues here, which
are the con stitu tion a l rights o f th is P etition er , by draggirij
red herring across i t ; i t ' s not becoming o f an o f f i c e r o f
th is Court.
Insofar as that la concerned, Mr. Brandon, tfc<
want to make copies o f i t : They w ill prepare an order to
which you agree and which, at the expense, since he has
said he Is adequately secure fin a n c ia lly , the Gentleman
who stands, Mr. H effron, to have the necessary copies made
and you w ill be given that opportunity i f , as an o f f i c e r
o f the Court, you can now state that th a t 's proper, can youl
MR. HEFFRON: I can s ta te , at th is tim e, w# <i
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P V - w m b P * f far the proMii of copying Oho orders
«nd hope they will beoene port of the eoete of the Utlgatl
to bo determined in fetor of the prevailing party oesential
OOURTt What do you have to say to that, Mr.
Attomoy Central?
MR, BRANDONt If pour Honor please, X don't wank
to sennit nyself to having to pay for then because we haven'
get tho funds. Lot no, If X night go back — Xt was his
notion to withdraw that thing, that box of paper that was
overruled by tho Court?
COURT! Veil, if he withdraws it — he is Just
nousetrapping the Court and having sene Appellate Court,
he hopes, saying we didn't give hln a chance to put it in.
That is all he Is doing and X an going to give bin everythlj)
he deserves and nore; X have already done that. Most Judgeji
would have called tine on hln and X wouldn't do that.
MR. VOLFSi Xf your Honor please, of course,
Dorchester County wouldn't want to be involved in the cost.
Of course, It's originally a state case. X know that the
funds down there are United and X know that would be quite
a task to wake copies of all of that. X call It a confusion
COURT! Veil, Counsel is privileged to sake suclt
designations as he wants to. X assune that they are booklet)
or paaphlets• Would you agree to the cost at your own
expense? Ton see, you brought it in here, you and the
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ientleaen f o r w h o a y o u aro working, I have n o e r l tlelHi *
o f %fcot. But too* you aro trying to propose a oeat an
perhaps aoaa o f those w h o aro Quito innocent to w h a t e v e r
y o u r purpoaoa aro.
MR. HKPPROMt Y o u r Honor, wo w o u l d not agroo to
orontually Owing llablo fo r the coat o f photocopying and
reproducing these aahoduloa. Vo, of eourao, aubait to
w h a t e v e r o r d e r this Court rondora subject, o f oourao, to
rowiow on appeal. I definitely will no t go on reeord to
contenting to p a y i n g the aoat o f thia o r all the o ther aoati
Incident to the p r o o f o f thia laaue, w h i c h la a aanmoth
tun.
COURT} You have aald to no, as an officer of
this Court, that y o u r organisation would engage In the
expenditure, a possible expenditure of a aanmoth sua?
MR. HSFPRONt As long as it's relative here.
COURT} Veil, it's ne t relative here because
it's very serious.
MR. HSPTROHs X will state to the Court that
several thousand dollars have been spent to gather the data
we have here today and we will atteapt, if we prevail In
this litigation, i f w e have the expense o f having to prove
what could well be stipulated If the noraal course o f eventa
would be followed. I understood, y o u r Honor, the Pederal
Courts have devised t heir entire procedures to determination
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o f the fa cts to relevant l it ig a t io n In an unburdensome a *
manner as p ossib le always encouraging stip u la tion s and
admissions. And we have been severely disadvantaged with
the lim itation o f time and scope o f the Job we undertook
but we are trying to get th is case se ttled on an agreed
statement o f fa c ts , a fte r a very systematic Job o f fa c t
gathering.
COURT: fou s ta te , "fa ct-ga th erin g11 in th is
breath and a while ago you said hearsay in a large p ile .
MR. HEFFRON: Some o f the hearsay is fa c t ,
four Honor.
COURT: W ell, mark i t , seal i t and they can
show cause at a future time I f they want to reprint i t .
Mark i t P e tition er ’ s Exhibit number one refused.
(Thereupon P e tit ion er ’ s Exhibit No. 1 refused
marked fo r id e n tifica t io n )
COURT: Proceed, gentlemen.
MR. Marshall, you make sure that there Is
s u ff ic ie n t tape and so on. This w ill be marked and put in
a safe in your o f f i c e , Madam Clerk, u n til such time as good
cause is shown why.
MR. HEFFRON: I want to complete the record,
Your Honor, I am f i l l in g the box.
COURT: As far as I ’ m concerned, I don’ t know
what the record is because there has been no p roof as to
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v h a t e r e r y o u put in there* it*a just boo n put in there, *•
there io n o p r o o f of authenticity.
lot, tir, X * a ready to h o a r from y o u new.
NR. HSPVRONs An ozooptlon la not neeessaryf
COURTi Vo, tir. You hart tho high privilege
o f South Carolina Law in this Court and X am happy to hart
you.
MR. RKPPRON: T o u r Honor, at this time, X make
a request to utillao tho satoriala that art in that box
which hat boon ordered to bo aoalod, in o rdor to aid at in
tho examination of tho first Witness to bo oallod.
COURT) T h o first Witness that w i l l be sailed,
i f his testimony is competent, y o u can use that o r any
o t h e r thing to refresh his memory.
MR. H E V 7 R 0 M : Your Honor, X want to use it to
refresh ay recollection as an aid to ms in asking the
questions. Somebody w ent out and gathered the information
at ay request and at the request o f others. He brought as
back a groat deal o f information in w h i c h X hare confidence
and trust. Vow, we sire going to hare to go through the
burden o f proving the information piece by pleoe in this
Courtroom. X hare specific information in those schedules
that X W a n t to present to the Court. In using that seheduli
X can ask the appropriate question of the Witness on the
stand and then that information can be placed in the record.
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COURT: How auoh o f i t do you intend to uaef fc
MR* HEFPR0H{ How much?
COURTi Yea, a ir , fo r the convenience o f the
Court.
MR. HEFFROH: I lntond to go through each o f
thoao schedules, a l l 335*
COURTS Suppose you s ta rt i t . Too to o , a l l you
ham boon doing is ta lk ing and I have boon lis ten in g and
I w il l l is te n on. Let*a put sons Witnesses up and see
what you ham because what you say is not p roof here, i t
nay be in sons other Court. It*a not p roof here and th is
i s no d isrespect to you, Counsel. I am glad to ham you
stake a l l the speeches you want to , but l e t 's ham the proof
i f there is something that proves th is man's con stitu tion a l
righ ts have been Invaded or deprived in any way, l e t 's ham
the p ro o f, I'm ready.
Tou ham read the opinion o f the C ircu it Court,
haven't you?
MR.HEP?RON: Yes, s i r , I ham , your Honor.
COURT: W ell, the C ircu it Court o f Appeals has
sa id that I should consider certa in th ings. I am here to
consider i t now and I expect Counsel to present, i f they
wish i t fo r consideration , i f they don 't I w il l ask the
Sttfte to present i t , i f they don 't I w il l get presentation
on ay own i f I fin d i t necessary.
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m , HRPPROM* X bellows, y o u r Honor, the notion
is be f o r e tho Coart to two ono o f tho oohoduloo in that
b o x w h i c h has b o o n orde r e d t o bo sonlod.
COURT! Couaool w ill bo allow#d to reaove fro®
tho b o x on« o f tho oohoduloo v h l o h tho Cleric w i l l nark
n o o v a l n u a b e r ono, for tho porpooo of identification,
w h i c h w i l l bo placed in tho hando o f Oounool for tho purpoo
o f ouo h te n d e r o f p roof o r ouoh p r o o f oo ho nay bo adwlsed,
aftor w hioh it w i l l bo returned t o tho Clerk a n d roturnod
to th o box. Proceed*
M R . H E P P R O M * Petitioner ealla Mr. Major.
J O B S T. MAJOR, a Witness on be h a l f of tho
Plaintiff, haw i n g boo n duly sworn, beatified aa follows*
COURT* Xa tho Gentleman*a occupation and
offic i a l position adaltted?
MR. BRAMDOH* Yea, air,
COURT* All right. State tho official poaltlon
o f tho Wltnoaa, I a a a u m ho la hero in aono official
eapaeltyf
MR. HEPPROM* Aa X understand, tho Wltnoaa la
tho Clerk o f tho Circuit Court of Richland County, South
Carolina,
COURT* All right,
MR. HRPPROM* Tho Wltnoaa* nano and address la
on tho record, y o u r Honor.
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COURTt Tha Clark has It.
Q <Sy Nr* Saffron) Nay Z ask you how lens you have bald your
position?
A Since Marsh 1$ of tha current year, 1965*
Q What was your oooupatlon or position prior to that tins?
A t r i o r to that tins X was supervisor of tha hearing and
speeeh correction program of tha State Department of
Education* state of South Carolina*
Q Hava you had previous experience in tha office of the Clerk
A Not prior to March 15*
Q Nona prior to March 15* 1965?
A Right.
Q Are you in custody of the records of the office of the Cleri
A Yes, sir.
Q Have you brought some of those records here today?
A Selected cases* yes* sir*
Q fou are under subpoena* are you not?
A Under subpoena yes* sir*
Q Have you brought case files, from the records of your Court,
case file number 21031?
A Yes* sir,
Q And you have that before you?
A Yes.
Q Would you explain to the Court what la contain#! in tha
envelop# that you are now holding in your hand?
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A The indlotnant. Can X state the indlotnant» nano and *
everything?
Q too, State tho papars with an identification* Tali «a
what yon are looking at?
A X an looking at an indlotnant, atato of South Carolina,
county of Richland, Court of Oonaral Sessions, Nay tarn,
1963. Stato v Jinny Janas, indlotnant for raps, oamal
knowledge.
COURT* What's tho applicability; is ho a
co-defendant or klnanan or sonothing of this Petitioner?
HR, HSPPRON: Ho la not.
COURT: What do you h a w to aay, Nr. Attomoy
Oonaral? What*a this got to do with this eaaa?
NR. BRANDON: If your Honor plaaaa, X was Just
waiting for a nonant until ha ldantlflad it and offarad it.
Va aaa that thara is no ralavancy thara and oartalnly
objaot to it on tha grounds of irrelevancy.
COURT: All right. What's ralawant, Counsal?
NR. HEFFROH: Tour Honor, at this tlna, wa
propose to go through to present oonpatant Wltnassas who
have parsonal knowladgo or who haws custody of official
records of all of those oases resulting in a conviction of
rape in tha county Courts of South Carolina, in tha Circuit
Courts of several counties of South Carolina during tha
period 19*5 *9 1965. It is our purpose to elicit for tha
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Court's inform ation. And they are not subject to a hearsay
ob ja ction .
COURT: Why la n 't i t subject to hearsay?
MR. HEPFRON: Thla man is reading o f f i c i a l
State records regularly kept in the Court and, as a matter
o f fa c t , J u d ic ia l n otice by th is Court.
COURTS What re la tion has i t to th is P etitlon erf
Old he p a rtic ip a te? Are the fa cts id en tica l?
MR. HEPFRON: In the case that the Witness Just
mentioned 1 d on 't know o f any connection between that ease
and P e tit io n e r 's ease.
COURT: The ob jection is sustained and the
evidence i s not competent In th is case.
MR. HEPFRONs Your Honor, I would lik e the
opportuntly to make a more d eta iled p ro ffe r o f p roo f. I
propose —
COURT: I don 't want to hear any statements fo r
4
the simple reason that we have gone fa r enough. You can
o f fe r the p roo f. I w il l be glad to hear your o f fe r o f p roo f.
Rut you have said there i s no connection, I took you at your
word.
MR. HEPFRON: I sa id , your Honor, that there
was —
COURT: You said there was no connection la what
Z understood you to say?
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MR. HEFFRON; I M t n t to say, your Honor, that
thoro wot no re la tionsh ip between the Defendant and the
Defendant in the cate .
COURT: And there is no connection between the
two cases, is there?
MR. HEFFRON: We are attempting to es ta b lish ,
your Honor, a pattern o f discrim ination in the im position
o f sentences o f persons who are charged with the crime o f
rape, th is d iscrim ination being on a ra c ia l basis resu lting
in harsher sentences, including the penalty o f death, most
often and almost exclu sive ly when the Defendant is a negro
charged with the rape o f a white woman. We know o f no othe
way to prove such a pattern o f d iscrim ination . I t requires
a presentation o f evidence o f Just about every case in the
counties which represent the State o f South Carolina, and
it* s a long complicated process, but i t i s relevant and i t
is not subject to a hearsay ob jection .
COURT: A ll r ig h t, s i r . Objection sustained.
MR. HEFFRON: W ell, what was the ob jection to ,
my question?
COURT: I t 's not competent, i t has nothing to
do with the issues before the Court In th is case which has
been d irected to me by the Fourth C ircu it Court o f Appeals,
i t ' s in en tire ly separate case, and that the proof is not
admissible because i t i s not competent.
9*
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KH. HEFFRON* Tour Honor, I don't want to flauijt
tho authority of the Court but It'a my Intention to go
right down tho schedule and oak of the Witness whatever
questions can be answered from the record that he holds
in his lap right now so that we may place it in evidence.
COURT: What says the Attorney General as to
that line of testimony?
MR. BRANDON: We think that couldn't be proper.
This Witness has no right to go in there and answer quest lojn
about these documents.
COURT: Yes, sir, he has admitted it to be
hearsay, the objectlonils sustained.
MR. HEFFRON: I didn't understand that hearsay
ruling, your Honor.
COURT: Well, you admitted some of the things
in there are hearsay.
MR. HEFFRON: Some of the things.
COURT: Now, you want to ask this Witness about
it.
MR. HEFFRON: I haven't had an opportunity to
ask him a question.
COURT: No, sir, you are not going to put the
hearsay in this record*
MR. HEFFRON: I have no intention of putting
anything in that is hearsay.
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COURT: Ho, a ir , you are not going to put i t *
in th is record*
MR. HBFPRON: Wo11, I was only going to ask
that ho —
COURT: Wall, I have ruled that thoao art not
proper. I havo le t you put thea in hero even though your
Id e n tifica tio n was not proper. Your burden o f proof aa to
authenticity ia not proper, your manner o f proof ie not
proper, you admitted that they are hearaay and you haven*t
put up the tfitneaaea. How, I have ruled that thia partioul^
record ia not applicable to th ia p articu lar oaae and there
fore hia ob jection ia auatained.
MR. HEFFROM: Your Honor, thia Witness ia on
here to cure whatever hearaay ob jection there might be and
i f we can’ t put the schedule in that contains the inform atl
from h is record — we have ca lled him to t e s t i fy before th l
Court;
COURT: A ll r ig h t, you have made your po in t.
The ob jection is auatained.
MR, HBFPRON: Your Honor, at thia time, I want
to o f fe r to c a l l the County Clerk o f the fo llow in g counties
in the state o f South Carolina: Clerks o f the C ircu it Courjfc
in the follow ing counties.
COURT: Did you subpoena thea here?
MR. HBFPRON: No, your Honor, they were not
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subpoenaed.
COURT! Did you have tho power o f subpoena?
MR* HSPFROKi Wall —
COURT! Did you subpoana th is Gentleman?
MR. HSFFRON j X had no idaa that thia Oantlaaan
testimony would ba finiahad in tan minutes, your Honor.
COURT! Did you subpoana thia Gentleman?
MR. HEFPRON: Ha was subpoenaed.
COURT; You didn’ t aubpoana tha others?
MR. HSFFRON• Hot yet but we certa in ly intend t|>
COURT! A ll r ig h t , s i r . Put your motion in
the record , I t w il l be fin e .
MR. HSFFRONj W ell, we propose to examine the
Clerks o f the C lrouit Courts o f the follow ing counties in
South Carolina: A bbeville , Aiken, Anderson, Bamberg, BerksL
Charleston, Chester, C h esterfie ld , Clarendon, Dorchester,
F lorence, G reenville , Horry, Jasper, Lee, Newberry, and
Orangeburg. X l i s t Richland but that Clerk is on the stand.
COURT! That’ s already been ruled on.
MR. HSFFRON: Spartanburg, Sumter, Union, and
Williamsburg, fo r the purpose o f examining these Clerks as
to the records now on f i l e in th e ir Courts with respect to
the rape cases or those oases resu ltin g in conviction o f
rape since 1 9 *15, intending to ask them deta iled questions
about the Defendant and h is background, about the victim
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and h e r background, about the lagal procedures followed
in eaoh of thoaa cases, and about the circumstances o f the
orlme in each case. At this tine I would like to a d d to
my o f f e r — my motion, the blank copy of the schedule which
I presented to the Court which will serve as a guide to
the types of questions that I would be asking this Clerk
and the other Clerks.
COURT: You Just made a statement, y o u haven't
offered any Witnesses.
MR. HEPFRON: W ell, I have o ffered th is Witness,
your Honor.
COURT: A ll r ig h t, s i r . Objection sustained
to th is Witness. Put up your next Witness. I f you haven't
prepared your case, s i r , I ca n 't help i t .
Step down, unless you have some other questions
o f th is Witness.
MR. HEPFRON: I would lik e a short time to thin!
about i t , your Honor.
COURT: A ll r ig h t, s i r , recess fo r f iv e minutes.
Let the P etition er stay in Court..
(Recess)
(3s^5 P.W. — P etition er present in Courtroom)
COURT: A ll r ig h t, Oentlemen.
MR. HEPFRON: Your Honor, I Just completed
making an o f fe r o f p roof.
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COURTi Yes, sir.
MR. HEPFROM: X vant to present and h a w marked
In Identification, blank copy o f aohadula vhloh I w ould
follow aa a guide to quaatlona for aqr examination of tha
various Circuit Clarka.
COURTS Mark It for ldantlfieatlon. Zt haa n o
proof In thla Court ao mark It for ldantlfieatlon for tha
purpoaa of preservation and contain It with tha othar
racorda of tha Court* Thank you.
(Thereupon Petitioner'a Exhibit No. 2 marked
for Identification)
MR. HE7FR0N: I also offer that In evidence —
MR. VOLFS: Mr. Heffron, would you atend back
a little, please, air, ao we can hear you?
MR. HEFFRON: I would like to offer that In
evidence so It would become a part of the exhibits and so
that the Appellate Court can understand the offer If It
becomes an Issue on appeal.
COURT: O f course, you are entitled to It.
Mark It for identification. It will not be reoeived In
evidence because there la n o proof of the authenticity and
competency and practicability In this particular hearing
n o r as to wh o made It, wh y It was made, when It was made,
what a w the facts from which the ma k i n g of It originated,
o r why anybody ha d either the authority, the duty, the
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n e ce ss ity , d u r a b i l i t y , o f making the tame.
Continue, s i r .
MR. HEPPRON: I would lik e to state th at, as
the oase about which Mr. Major began to t e s t i fy : We have,
on a form sim ilar to that which has Just been o ffe re d , the
follow ing information which came from the records o f Mr.
Major and as to which I w ill p ro ffe r some s p e c if ic answers
that I could e l i c i t from Mr. Major i f he were allowed to
consult his records and te s t i fy in answer to my questions.
For instance, the records on f i l e in Mr. M ajor's o f f ic e
i t appears and I o f fe r to show through the testimony o f
Mr. Major, that Jimmy James was indicted and tr ied fo r the
offense o f rape, statutory rape, assault and battery o f a
high and aggravated nature and assault with Intent to rape.
Further, the t r ia l began on September 8, 1953. The verd ict
was returned on the same date and sentence was Imposed on
the same date. Purther, that the t r ia l was held in the
City o f Columbia, County o f Richland, State o f South Carolini
COURT: Yes, s i r .
MR. HEFFROM: The name o f the Court was the
Court o f General Sessions. The docket number is 21031 and 21
that the name o f the t r ia l Judge was H. Henderson. Further
that i t appears from the f i l e s presently with Mr. Major
today —
COURT: You have tendered the f i l e and the f i l
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has been id e n tifie d and re fu ted , that le s u ff ic ie n t .
NR. HEFFROM: Mr. M ajor's f i l e has not been
tendered, your Honor.
COURT: W ell, why d id n 't you tender i t ? That's
the best evidence, i s n 't it ,b e s id e s your statement or his
statement?
MR. HEFFROM: I would be glad to o f fe r the ease
f i l e ,
COURT: W ell, why d id n 't you o f fe r i t ?
MR. HEPPRON: I don 't want to burden — I am
sure there are going to be ob jection s to that. I know that
they are going to want or need th e ir records. I f the
ob jection is sustained to ray questions about those records \-
COURT: The testimony is not competent, by the
ru lin g o f th is Court.
MR. HEFFROM: I want to complete ay p ro ffe r , yoji
Honor.
Further, that the records which Mr. Major has
with him today shows about the case o f Jimmy James:
That he was b o m in either 191** or 1915, that he resided at
5^09h Ridgeway Street in Columbia, that he was married.
COURT: What a p p lica b ility to where he liv e d ,
would i t make any d ifferen ce? What has that got to do with
i t ?
MR. HEFFROM: That's one question that doesn 't
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h iv i
GOURTi Anything to do with it, does itf
MR. HEFFROX: T h a t 1* a researcher's question.
It eould ho relevant to same things bat —
COURT) What eould it bo relevant to in thia
eaaef
MR. HEFFROX: Well, it can guide the raaearoheri
to further information; that ia, it can provide leada aa
to w h o e v e r night want to develop further information about
this cate.
I am merely listing information provided on the
form that haa been introduced, that has been gathered and
it*a available in Mr. M a j o r ’s records relating to the case
o f Jimmy James.
COURT: Well, i t ’s not competent and I don't
w ant you to pursue it.
MR. HEFFROX) All right, y o u r Honor.
COURT) Tou admitted it's not competent in thia
case.
MR. HEFFROXr I did not admit i t .
COURT: If y o u want to burden thia Court t h a t ’s
y o u r privilege as an officer of this Court. It doesn't
bespeak the integrity of the usual officer o f this Court.
MR. HEFFROX: I want to make it entirely clear
to whatever Court may review this record —
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COURTi A ll r ig h t , a ir .
MR. HEFPROMj That we have a great mass o f
inform ation we ara try in g to gat bafora tha Court.
COURT: And which you have not proparly present^
or proparly prepared to present, by your own admission,
MR. HBFPRON: Tour Honor, I am p erfe c tly w illin g
to ash Mr. Major to t e s t i fy about every item 1 Just l is te d
about th is p articu lar ease and about 60 or 70 other oases.
COURT: Mr. Major?
MR. HEFFRON: Mr. Major, yes, s i r .
COURT: About 60 or 70 other oases?
MR. HEFFR0H: Tea, s i r , your Honor.
COURT: A ll r ig h t , s i r .
MR. KSFPRON: Further, continuing, the informat!,
which we o f f e r to show from the f i l e s o f Mr. Major about
the ease o f Jimmy James: The Defendant was married and
had at least four ch ildren , that h is race was negro.
COURT: Is a l l that in the record , one o f those
records you have there?
MR. HEFFRON: I t 's a l l in the one that I removed
from the box.
COURT: A ll r ig h t. State that you want to prove
a l l o f the information in that p articu lar record that the
Clerk knows anything about and l e t 's cut i t short,
MR. HBPPROH: A ll r ig h t, your Honor.
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Start's s demonstration o f tlio typos o f inforaatlon that
art on tho first two pages o f tho schedule that was withdra
from tho box and about whloh thoro art, X * a ours, we can
elicit answers fro* Nr. Major* and X do proffor that
teatlaony and also attoh aoro about this oaso and othors
fro* Mr* M a j o r and o thor Claries.
COURT: All right.
MR. HSTPROMi Tho offor has boon donlod.
COURT: Tho objootlon has boon sustainod.
MR. HEPPROM: Tho objootlon has boon sustainod.
We havo n o furthor questions of Mr. Major.
COURT: T hank you* Mr. Major. Do y o u havo any
furthor questions* Mr. District Attorney?
MR. BRAHDOM: M o q u e s t i o n s , y o u r Honor.
COURT: T h a n k you* Mr* Major* you are oxeusod
at this tiao unloss the Counsel w h o subpoenaed you here has
objection. Do yo u havo any objection?
MR. HS77R0N: We have n o objection.
COURT: T hank you very auch* it was nice having
y o u in Court.
WXTNBS3: Thank you* you r Honor.
COURT: Yes* sir.
MR. HEP7R0N: Your Honor, X aentlonod that we
wanted to call other Clerks for Just the saao purpose. X
listed tho counties. At this tiao* X would like to list fo:
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the Court the n i » i fo r the Court o f ethor w itnesses that ,
wo propose to o a ll In order to estab lish the in fom atlon
In th is Court which has already been developed.
COURT: Are the witnesses here?
MR. HEPFRON: The witnesses are not here todafcr
Your Honor.
COURT: Let the record show that the witnesses
are not here, that counsel has pursued the power o f subpoena
as to one witness but had not presented the witnesses In
Court, had not made him self available o f the power o f
subpoena, and that by his own statement, the witnesses are
not here.
A ll r ig h t , s i r , proceed.
MR. HEFFRON: Among those we would wish to
c a l l would be the custodiart o f records o f the Department o f
C orrections, the Clerk o f the Supreme Court —
COURT: Nothing has prevented your ca llin g th»
except your own fa ilu re to subpoena them, and le t the record
so show fo r whatever Appellate Court that w i l l , in i t s
wisdom, review th is case.
MR. HEFFRON: At th is time, I move fo r
P etition er that a recess be declared so that we might be -all
to subpoena the witnesses that I have mentioned in order to
produce the same type o f testimony which was o ffered with
Mr. Major and his records.
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COURT i Let the m o H show that u nder direct lot
of the Circuit Court o f Appeal* Z convened thia hearing
nailing available to Counsel the opportunity to p r e a m t such
faete aa were competent, auch argument as should, could, o r
w o u l d be nade on the questions In the Petition and as
agreed upon in the pre-trial and as reduced to writing in
the pre-trial order. Upon commencement of the hearing this
morning Counsel having advised that they had changed their
previous position as to the presence of the Petitioner, the
Court was recessed for the purpose o f bringing the Petition*
to this Courtroom, which was done. The Petitioner is here.
The Court sits wait i n g to h e a r the arguments and/or the
competent facts on those matters for which this Court was
convened and of which due notice was given to Counsel.
Under those circumstances the Court sits now to hear those
a r g u m e n t s .
I f Counsel invokes a pattern of delay for the
purpose o f avoiding its responsibility as officers of the
Court to present, if they can or if they have proper
arguments, then this Court w ould take such under considerate
at this time, I would like to h e a r from you at this time
while you are not arguing,
NR. P E R R Y j tour Honor, did you dlreet an inquix
of us?
COURT; Yes, I did.
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MR. PERRY: Was i t that —
COURT: you asked fo r the P etition er to be
here and he Is here.
MR, PERRy: Yes, s i r , Your Honor.
COURT: You asked fo r him to be here and you*
associate went in to some matters about which he had neither
information nor, so fa r as I can see , any consultation or
advice during the en tire proceeding. I am here to hear what
evidence he has i f he has evidence. I have reviewed th is
record no less than three times. I f the arguments or any
o f the things and matters set forth in the P etition or as
s o l id i f ie d in the p r e -t r a il order or other arguments, the
Court is s it t in g and ava ilab le .
MR. HEPPRON: Your Honor, researving a l l objs
ions to the Court’ s rulings gone b e fore , today, we have no
more proof to o f fe r in support o f paragraph 13b o f the Amend
P etition fo r Writ o f Habeas Corpus f i le d on May 12, 1965.
COURT; What do you say as to the rest o f i t ?
MR. PERRY: Now, may i t please the Court, the
P etition er o ffe rs as exh ib its in th is case the follow ing
things: The transcript o f record in the Supreme Court o f
South Carolina in the f i r s t p la ce , which, o f course, is a
transcript o f the t r ia l o f the case which occurred in A p ril,
1962.
COURT: Isn ’ t that already in the record?
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NR. PERRYt four Honor, X d o n o t reeall that
It la In tho record, it may bo. Mr. Brandon?
NR. BRANDONt X don't believe that It la.
COURT: Noll, thoro la n o objection to It and
I f thoro la tho objection la overruled. Tho evidence la
accepted and haa boon reviewed by thla Court previously
and H i l l bo reviewed again.
MR. PERRY: Row, y o u r Honor, I have tho
thing t o aay w i t h roforonco — about tho Haboaa Corpus
proeoodlnga which woro hold boforo tho Honorablo John
Orimball, Judgo o f tho Plfth Judicial Circuit of South
Carolina. And this was tho transcript, o f course, proceed!
tho second decision by tho Supremo Court of South Carolina.
COURT: X think that's proper.
NR. BRANDON: No will Join in in moving that
tho Court take Judicial notice o f all that.
COURT: X think that's proper. X have already
road the m two or three times and X wil l bo happy to have
the m again,
MR. PERRY: Then, there la n o necessity of our
actually handing In ou r copy, X believe the Court haa copied
COURT: Well, if the Court doesn't have copies,
unless the Counsel disagree, the Court will call on Counsel
to furnish such copies and then return them at such time
as the disposition of the Court is final.
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All right, sir.
Nit* FIRRYi The N l i t l w t r m t i , y o u r Honor*
COURTi You noo n to toll no, Nr. Perry, toot
y o u have n o argunont to present today after asking the
Cirouit Court o f Appeals to ooao b ook borof
NR. FIRRYt Oh, yos, y our Honor, vo have
arguaonto but X havo roforonoo to, o f oouroo, tho e v identua
p r e s e n t a t i o n s .
C O U R T * T h a t ’s all tho evidencef
NR* PERRYt T h a t ’s right, y o u r Honor.
COURTS Doos tho stats of South Carolina have
any evidence?
NR. BRANDON: No, y o u r Honor, wo bars nono.
COURTS All right. You nay p u r s u e •
HR. WOLFSi If y o u r H o n o r w ill pesnait no, X
haws ondoavorod to oooporato w i t h tho A t t o m o y Oonoral
a n d his staff who havo boon so kind. And as X understood
it n o ovidoneo was to bo subnit tod, u n d o r tho pre-trial ordi
and, of oourso, wo d i d n ’t attesqpt to bring anybody hors.
COURTS Noll, solicitor, tho purpose of tho
pre-trial was to inquire of Counsel as to what wa night
expect today and bo guided thereby in allocating tho tins as
purposes o f tho Court, And if ho ha d ha d sons competent
ovidoneo to offer X w o u l d not havo kept b i n from it. And
then if yo u had nado a notion upon showing, y o u w ould bo
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allowed to rebut and bring In other evidence and, o f course,
he would have been able to reply to youra. That would
have been the format.
The purpose o f the p r e -t r ia l was not to keep
anybody from producing evidence but Just to see what the
procedure would be. There is no n ecessity fo r evidence on
the part o f the State or on your p art, as an o f f i c e r o f this
sta te and an o f f i c e r o f th is Court, to present evidence.
I don’ t think that there is any disagreement but that any
o f the o f f i c i a l records would be properly considered. I
think th a t 's what the C ircu it Court meant and th a t ’ s what
I have been trying to do unless there is something unusual,
outside o f the record , which I haven't seen here. I don’ t
know o f anything. A ll r ig h t, s i r , proceed.
MR. PERRf: Now, may i t please the Court, our
arguments, o f course, may be s p e c i f ic a lly summarised in the
language in which, o f course, the a llegation s are variously
stated in the P etition . Paragraph number fiv e o f the
Amended P etition fo r Writ o f Habeas Corpus re fers to the
issue o f systematic exclusion o f negroes from the Jury
In Dorchester County, or o f a system atic lim ita tion o f the
extent o f th e ir inclusion within those Juries.
COURT: Mr. Perry, le t me interrupt you. Now
what issu es , other than that which your associate counsel
has expressed him self upon which he says is an issu e , are
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t h m that h are no t boo n presented to and passed upon by
Courts o f ro o o r d In tbo stato o f South Corolinsf
MX. MERRY: Well, y o u r Honor, any I r ofor yo u
to paragraph It o f tbo Amended Petition for Writ of Baboaa
Corpus. Nov, In that paragraph vo bars summarised tho
m a n n e r in w hleh oaeh o f tho issuss, allogod in this Potltlo
bars b o o n previously prooontod.
COURT: All right, sir. But you find n o noeoss
lty o f o f f ering any o t h o r p r o o f thereabouts than has boon
offered today by one Counsel o r another?
MR. PERRY: That Is correct, sir.
COURT: All right, sir.
MR, PERRY: The Issue presented In paragraph
13b was deemed to hare been the only one which required
the presentation o f no w evidence.
COURT: Z understand, thank yo u very much.
MR. PERRY: And the transcripts o f roeords
before y o u r Honor, w e think, contain the Issues, the erlden
the testlaony which was presented upon which we rely to
sustain tho othor co n t e n t i o n s .
COURT: Yes, sir.
MR. PERRY: If they can bo sustained.
COURT: All right, I will hoa r any legal arguae
y o u care to make and then h o a r from tho Attorney General
and then h o a r y our reply,
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HR. PERRYs Very good, p o u r Honor. Mow, u
X told, o f course, paragraph nu m b e r 5 oontalns o u r position
on the issue of systematic exclusion or systematic linitatim
in the amount of the inclusion and, of course, we feel that
the evidence which has been presented in the case, certainly
the evidence presented in the Habeas Corpus Proceeding
which was held in the State Courts of South Carolina
sustains our position on that aubjeot. And their review-— '
An independent review by this Court of the Habeas Corpus
Record made in the State Court will sustain our argument
on that point.
It's an evidentuary question. We know, of count
y o u r H onor is going to apply well settled federal principal!
in reviewing that record.
The cases are numerous and do not need to be
recited here, however, we will han d them in to the Court.
COURT* Well, I have been through with so many
others o f these that I have some knowledge of it. Is there
anything that you think the Court hasn't been advised off
You have been Counsel in the most important — not most
important because everybody's case is important, but those
which received more attention and r e v i e w s ; so if there is
something that y o u think yo u haven't brought to my attention
before, don't hesitate to do that. All right, sir.
MR. PERRY* Thank you, y o u r Honor. How, your
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Honor, u to tho allegation which la Included In paragraph
6, we respsotfully refer your H o n o r t o the record In the
Habeas Corpus Proceeding concerning that subject. Now, of
course, this subject has to do with, o f course, the Issue
o f the arralgnasnt proceeding*
Now, that Issue was m i tigated In the Court of
Central Sessions, o r rather, In toe Court o f Common Pleas
f o r Richland County In the State Habeas Corpus Proceeding.
The law Is well settled, ha v i n g been settled
most recently In Hamilton ▼ Alabama, on the right of the
accu s e d to counsel during the arraignment proceeding, which
In the Alabama Case was found to be e erltleal stage o f
the proceeding* Now, o f course, the evidence Is already In
Vs submit that record to your Honor and suggest, o f course,
that y o u r H o n o r w l U , I know, apply w ell recognised princip
In reviewing the allegations we make hers* And based on
the testimony which was taken on that ground there Is n o
further evidence to present on that ground. We merely
aak this Court conduct an indspendent review of the State
Habeas Corpus Procssdlng on that ground.
As to ths allegations contained In paragraph
n u m b e r 7 of the Amended Petition for Writ of Habeas Corpus
w hich has to do wit h the question of w h e t h e r the Petitioner
was given an unequivocal re c o r d of all o f the proceedings
In the Court of General Sessions for Dorohsster County;
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o f course, that ground was i n c luded In this petition out ^
o f on abundance of oautlon bseauss o f the fast that ths
evidence, as It was developed In tho Habeas Corpus Proeeedli
left sons question concerning precisely what happened on
Monday, April 2nd, 1962. This was the day on which Petltlo
was allegedly first brought into the Court, and during whlo
tine in the State Habeas Corpus Proceedings it was testlfle
that he was required to make a ple a to the indictment In
the absence o f his Counsel. Now, there was n o record made
o f that proceeding but the Court w ill recall, froa review
o f the record, that on Wednesday, April A, 1962, at the
commencement of the Petitioner's trial that, of course,
the record does reflect that no n a t t e r what happened on
the first ooeaslon that another arraignment was at that
time held.
COURTt At the second arraignment you did have
Counsel?
MR. PERRYi Yes, sir.
C O U R T .• Not Counsel who are present today but
other Counsel?
MR. PERRY: O t h e r Counsel.
COURT: All right.
MR. PERRY: That is co rre ct , your Honor. And
so , that Is the contention, as I say, was Included In th is
P etition out o f an abundance o f caution in order that, o f
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cou rt* , th is Court n ight, in conducting it * independent *
review, make any determination* which might appear Just and
proper under the circumstances to your Honor.
As to the a llegation s contained in paragraph 8
o f the Amended P etition fo r Writ o f Habeas Corpus:
This paragraph concerns i t s e l f with the fa ct that the
P etition er appeared at a preliminary hearing p r io r to his
indictment and t r ia l and that, o f course, he did not, at
that time, have any Counsel present with him nor did he hav<
Counsel appointed fo r him nor did he have the opportunity
to confer with Counsel. How, here again, the statement
which I have made with reference to the proceeding paragraph
is that th is paragraph was Inserted in th is P etition again
out o f an abundance o f caution. The testimony taken during
the State Habeas Corpus Proceeding re fers to a p re -t r ia l
hearing. I readily concede that the evidence in that recorjl
does hot show that the accused was ca lled upon to plead
and, o f course, with that in mind, the Court may well
recognise the way th is particu lar subject has been treated ,
when the accused is not ca lled upon to plead that, o f co u n t
the preliminary hearing, at least in the State o f South
Carolina, is not a c r i t i c a l stage as was declared to be
the case in White v. Maryland, where the accused was ca lled
upon to plead and d id , in fa ct,p lea d .
COUHT: Yes, s ir .
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MR. PERRY: Mow, as to ths a llegation s in
paragraph 9* your Honor, hsre again there is no testimony
in the State Habeas Corpus Proceedings nor is there any
evidence in the f i r s t tran scrip t o f record o f the t r ia l
held in A p r il, 1962, concerning whether the accused was
ever given a copy o f the indictment as is required in the
South Carolina Code o f Laws, section 17-$Q8. Me submit
th at, o f course, i f th is is true then we suggest that the
record does not ind icate that a copy o f the indictment was
ever given to the accused and the fa c t , o f course, the
testimony in the State Habeas Corpus Proceedings would seem
to ind icate otherwise then, o f course, th is would, o f coursi
constitu te a fa ilu re on the part o f the State to fo llow the
procedures o f South Carolina Law and that, hence, there is
a federa l due process argument present in th is ground.
And we resp ectfu lly urge that, o f course, the fa ilu re to
furnish the accused with a copy constitutes a denial o f due
process .
As to the a llegations in paragraph number 10:
The contention here is that section 16-71 o f the South
Carolina Code o f Laws fo r 1962, which purport to define the
crime o f rape in South Carolina is upon i t ' s face vague,
in d e fin ite and uncertain as upon i t s face and as construed
in th is case, vague, in d e fin ite , and uncertain. Of course,
the Court w il l r e c a ll that the words o f th is statute —
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COURT: "That whosoever sh a ll hava carnal
intercourse with a woman without her consent sh a ll he
o f rape."
g u ilt
MR. PERRY: That is co rre ct . Your Honor, o f
course, ravaged is the thing which gives us ooneem here.
That p articu lar word does not nean the penetration by the
male in to the fem ale, we resp ectfu lly submit, although I
resp ectfu lly a lso acknowledge th at, o f course, the Supreme
Court o f South Carolina has so found.
COURT: Vho e lse would properly in terpret the
laws o f South Carolina as applied in the State Court except
the South Carolina Court?
MR. PERRY: V e il, your Honor, the South Carolinji
Supreme Court is certa in ly a very exce llen t authority to
in terpret South Carolina Statutes, but where in the state
o f South Carolina, through i t s Supreme Court, gives meaning
to i t s words, o f course, extend beyond th is ordinary meanin
which, o f course, gives then meaning which do not appear on
th e ir fa ce , i t is resp ectfu lly submitted the words are
given meanings which do not necessarily appear cm th e ir fac^
and, hence, there is no standard by which members o f the
public can be guided, concerning whether certain conduct is
proh ibited by that sta tu te .
Langatta v . New Jersey i s , o f course, a w ell
known case on the question o f vagueness in the wording o f
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general sta tu tes. Now, there has been aany more d ecis ion s ,
recen tly ; Barr v . The City o f Columbia and Bowie v. The
City o f Columbia, in which, o f course, a trespasser in th is
state was deemed to be vague by reason o f the fa ct i t was
given a rule which did not appear in the words which were
included. And so i t is a w ell recognised p rin cipa l o f
con stitu tion a l law that where a statute i s , upon i t s fa ce ,
vague in that i t does n ot, by the words which compiles that
sta tu te , convey a plain unequivocal meaning to the public
concerning p rec ise ly what conduct is prohibited then, o f
course, that statute is said to be vague and, o f course,
a conviction under that statute must f a l l under due process
o f law under the Fourteenth Amendment. And we so urge
that section 16-71 o f the Code o f Laws o f South Carolina is
o ffen sive to th is p articu lar statute.
Now, as to the a llegations contained in parage
number 11: In th is paragraph i t is contended that this
defendant was convicted without proof o f every essen tia l
element o f the crime charged and, o f course, th erefore , the
conviction v iolated due process.
Now, the record in th is case, o f course, I knu
four Honor has already reviewed i t and w ill review i t again
In lig h t o f th is argument. The testimony which was presented
on the question o f rape, which I understand must include
the element o f penetration, was a question by Mr. W olfe, the
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Prosecutor, a question directed on direot examinations
D i d hs ravish o r rsps you, o r eould it have boon, d i d its
rape o r ravish you, and that t o this question the proseeutr
replied, yes.
Now, then the next evidence in the record cm
the question o f whether there was penetration, of course,
appears in testimony of the physician who examined the
prosecutrix and who testified he conducted an examination
and, of course, that there was evidence o f sexual lnt e r e o u n
Now, we respectfully show that nowhere in the record is
there evidence that this Petitioner accomplished the matter
of penetration which, of course, is a necessary element of
the offense of rape. And, of course, that b eing the case,
the conviction rests upon a record which does not contain
the p roof of the essential element of the crime, as was
found to be the oase in Thompson v. The City of Louisville,
and t h e r e f o r e , the conviction violates due process of law.
Now, your Honor, as to allegations contained in
paragraph number 12s There was, of o o u r s e , testimony by
the sheriff of Dorchester County that he talked with the
accused and, of course, the accused made a statement to him,
There was never any testimony as to what that statement was
however, there was a positive assertion on the p a r t of the
Witness that the accused did in fact make a statement and,
of course, the Jury certainly could and most probably did
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the impression that the accused made an admission o f v
fa ct to the S h e r iff . This being the case, o f course, the
testimony concerning whether the defendant or the accused
made a statement, the voluntariness o f that statement shoul<
have been gone in to by the Court in the absnece o f the
•Jury and, o f course, the Court should have made a determinst
f i r s t o f a l l , in the absence o f the Jury, concerning whether
any statement made was in fa ct free ly and voluntarily made.
And may I add, under a l l o f the other safeguards which the
Supreme Court o f the United States says must accompany
making o f such statements. I have reference to the more
recent cases o f the Supreme Court including Escobedo v.
I l l in o i s . Not only whether the confession was obtained
free o f physical coercion but a lso whether obtained under
circumstances where the accused had the right to confer with
counsel p r io r to making such an admission. Of course, four
Honor, that is our position and, o f course, we respectfu lly
contend that these are very legitim ate p os it ion s . That,
o f course, there are cases which are w ell recognised and
which do apply to the a llegations which we make here in
th is instance. The grounds contained in paragraph 13a,
o f course, we resp ectfu lly urge to th is Court. We say that
the death penalty in rape cases as required by Section 16-72
o f the 1962 Code is in v io la tion o f the l ig h t and Fourteenth
Amendment because i t Imposes a cruel and unusual punishment.
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As y o u r H o n o r w ell knows, o f course, there is n o t — at
least, not yet, any authority for this statement Insofar as
tho death penalty In rape eases Is e o n e e m e d . There Is amp]
authority on that subject with reference to some other
offenses w hich were collected In the decision of the Court
whe n it denied the Petition for Writ of Certiorari In
Blackman v. Alabama, and, of course, we respectfully urge —
I know, of course, 1 recognise that the Court o f Appeals
for the Fourth Circuit has only recently said that this is
an issue which it will not rule upon until the Supreme Couri
o f the United States has ruled upon it, hut we respectfully
urge to y o u r H onor that the death penalty in rape oases,
and this is particularly true In oases where there has been
no physical violence, constitutes a cruel and unusual
punishment in violation of the Eighth and Fourteenth Amend-
meats*
We would like the Court to take due notice of
our positions. We respectfully urge each of the positions
which we have set forth.
COURT: All right, sir. Since the Fourth
C i r c u i t ’s opinion, I have reviewed, as you are well aware,
because we had a pre-trial o n it, the entire record in
this case and will review it again. I don't know whether
y o u o r the advocate told the Circuit Court I hadn't read
the record o r not but somebody misinformed them. So 1 hope
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the next tint y o u all go u p than*, I f y o u go, that tbajr *
w i l l ha correctly Informed, that X hart read thl» «ora
o f tan than not*
MR. FERRY: Your Honor, could w«, at this tins,
make sons explanation?
COURT: It doesn*t naka any difference, I have
n o faaling. Thara is ona question I have to ask yo u shout.
You said s o b m)thing about violence; do y o u slain that thara
is n o avidanoa o f violanoa here*
MR. PERRY: Mo, y o u r Honor, we do not naka any
suah claim.
COURT: In o t h e r w o r d s , you claim thara is no
avidanoa o f penetration sufficient to constitute the crime
o f rape?
MR. FIRRY: That is oorreot.
COURT: All right, that olearifies that. All
right, Mr. Brandon.
MR. BRANDOH: May it please the Court, wa
believe ou r Brief as to the matter in paragraph five will
amply present the argument if y o u use the decision from the
Supreme Court. It sets forth the rationality of that
decision and wa think that it clearly shows it was not
exclusion of negroes from the Jury and n o total exclusion
whatsoever.
As to paragraph six wa think his arraignment
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baa bee n fully and adequately covered la the hearing before
J udge Orimball and In the deelalon In the Supreme Court in
the eeoond ease which waa appealed from the Habeas Corpus
Proceeding. The record there will fully show that he was
duly arraigned and that he wa i v e d the three day eite o f his
indietaent*
As to the charge in paragraph 7 that he was not
given a copy of the record in reference to the transcripts
The original trial will show that Judge Griffith directed
the entire record be printed after the Appellant h a d proposi
printing only part of It and the State ha d proposed printini
another part*
COURT: Veil, did he get a copy of itf
MR. BRANDON: Well, of course, Counsel represen
h i m on appeal.
COURT: Well, did he get a copy of itt
MR. BRANDON: Tea, sir.
MR. PERRY: Copy of what, Mr. Brandon?
MR. BRANDON: Copy of the transorlpt of the
original trial,
MR, PERRY: Oh, yes, a copy of the original
trial, y o u r Honor.
COURT: All right, Co ahead, sir.
MR. BRANDON: As to paragraph nine that he was
given a preliminary hearing without Counsel is manufactured
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ftlMMt out o f whole cloth. Tht foot* developed here before
Judge Orlmball tad tht opinion before tht Supreme Court
thou that ht was taken btfort tht magiatrat®, advised of
hit rights, told that ht was ohargad with a strlous crime,
that ht nttdtd a lawyer and that tht Court would appoint
h l n ont if ht could not stourt ont. We think, instoad of
violating tht Dofondant's rights, wt think that is ont of
tht oltartr examples of having his rights explained to hln*
How, in paragraph 9 thay dtny a raoalpt of a copy o f tht
indiotnont. Now, thay admit that in paragraph 6 whan thay
art complaining about btlng arraigned but thay dtny it in
paragraph 9* In any event we think it*s immaterial whether
ht got it or not. Tht three day cite of the indictment is
a provision, of course, allowing the Defendant three days
between his indictment and his trial, and the record clear!
shows that he waived that in this case and that he had
Counsel present at all critical times. Nov, there has
bee n n o showing that he asked for a copy of the indictment,
that he offered to pay the fee or he was prejudiced by not
having a copy. And further, we think it is d e a r that he
absolutely waived that provision. That provision is n o t h i n
more than the three day waiving period. Theyare the same
things, the same statute and the record clearly shows it
was waived.
Now, as to the charge that the statute under
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which he waa convicted la vague, in d e fin ite , and uncertain*
We think that haa been previously l it ig a te d In the Supreme
Court and i t was the baala o f appeal there and the Supreme
Court defined the words rape and ravished and said that
they have w ell know plain English meaning. And they defined
rape in that case as being e l ic it e d sexual intercourse with
out consent, which in e f f e c t , is by fo r c e , duress, in tim i
dation or p ossib le in cep tion ; and further that ravish means
to commit rape, We think that the argument is auspicious
o f that sta tu te , is vague and in d e fin ite upon i t s fa ce .
Paragraph 11: He a lleges that every essentia
element o f the crime was not proven but the only element
any argument was d irected to was penetration and that
argument was a s p e c if ic grounds o f appeal in the State
against Moorer. That was the reason the Court defined rape
and ravished, and held that the questioning that was
propounded to the prosecuting witness was proper under those
circum stances, she being a married woman and w ell fam iliar
with i t .
Further, I w ill d irect the Court’ s a tten tion ,
as I am sure i t has already been, to the previous testimony
o f th is woman as to the actual physical encounter with the
defendant In that case. There is not the s lig h tes t doubt,
in reading her testimony as a whole, that th is act was
completed including penetration which is a l l that is necesaaz
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under the law In th is s ta te .
Mow, as to paragraph 12: The record shows tit
ths S h e r iff and Deputy S h e r iff , in the county, were question
as to the making o f a statement by defendant and that
they t e s t i f ie d that he did make a statement. There is noth!i
showing what was made or what was sa id , no occasion what
soever that i t was incrim inatory or exculpatory. I t was
not admitted in to evidence at any time. I t was excluded
com pletely. I t never became a part o f the case. I t was
not considered by the Jury, The defendant at no time moved
to have that examination conducted in the absence o f the
Jury. He at no time moved to have i t str ick en . He at no
time moved to have the charge abolished. The matter was
simply excluded and never became a part o f the t r i a l . The
defendant, at that tim e, had retained counsel as the record
w il l show. Since that time he has another counsel that
participated in that appeal and since that appeal he has
had another counsel who participated before the Supreme
Court o f South Carolina and before th is Court and, now,
today, we have another one added. We can see where no
prejudice resulted to the defendant on that matter whatsoever
Now, as to paragraph 13: I am pleased to see
that counsel concedes that there can be no contention that
there was no physical v iolence in th is case. A simple
reading o f several pages o f the or ig in a l transcript shows
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that this vis ona o f tho m t brutal rapss s w parpatratod
In thla H i l l and that tha likelihood la that this woman
la axtraasly lucky that aha vaa not killed* Zt aauld not
ba argued that aha was not In anywise In danger.
Zn ou r Brief, o f course, we alta tha aaaa of
Rudolph against Alohas*, where aartlorarl was danlad in a
aaaa making a similar sontantlon as nada hart, that tha
daath penalty for rape aonstitutas a arual an d unusual
punishment* We would submit that as balng tha authority
for tha danlal In this aaaa*
Mow, as t o 1 3 b * O u r position has boon nada
e laar during tha whola c o u n t o f this prooaadlng today*
Wa think that suoh mattar is antlraly irrelevant, It aould
have n o approprlatdv , n o dlraat o r competent n l a t l o n s h l p
to tha ma t t a r which Is bafora tha Court* Tha aattar of tha
santanea In this stats, as tha Court wall knows and as
Counsal knows, Is up to tha Jury In a n p a oasa; thay altha
recommend It or thay don't. Thay did not In this oasa.
Thank you, y o u r Honor*
COURT* Tas, sir.
MR. PERRYi Nothing In raply, y our Honor. Your
Honor, wa apologias to tha Court for not having n d u c a d our
position In writ i n g p r i o r to this time and no w ask laava
to do so*
COURT: All right, how mush tins do yo u need*
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UK* FSRRTs Is your Honor disposed to giro us*
fifteen days? Well, your Honor, of oourso, that It as to
oil Issttos oxoopt to the issuos as to Rule 13b. Of course,
at your Honor recognises, wo hart, at other stages of this
proceedings, atkod for noro tint to dorslops tho position
in 13b# And, of oourso, tho fifteen days Z now ask for
would not bo ouffieiont as to dorslop our position on 13b
but as to tho othor portion of tho rooord it toons to no
that wo could do it in fiftoon days.
COURT* All right, sir. What do you want any
noro tino for so far as tho development of the othor parts
of tho record is concerned? Can’t your argunont bo hero,
la 13b, as to tho propriety of it?
NR. FSRRTs We could advance argunont on that,
your Honor.
COURTS Well, I noan, can it bo done?
MR. FSRRTs Mr* Heffron will speak as to that,
your Honor.
MR. KKFFROMs If I nay, your Honor?
COURTS Certainly.
MR. HEFFRONs We would like sixty days to bo
able to go through those materials there and produce a
report. Wo can, of course, give you argument* about tho
issues hero} that is, wo can present argunont presenting
tho theoretical basis of tho contentions outlined in 13b
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As tilings n e w s tand vs hats a s proof* Ou r witness was n o t
allows* to testify and our proffered exhibits wars oxsludod.
Is
So w i t h those H a l t s o n the record it/very difficult to
argue from nothing.
COURT: well, y o u have ha d the evidence for c o m
tins, if y o u call it evidence* haven't you?
MR. H E P F R Q N : Well, we have been through all of
that , y o u r Honor.
COURT: Yes, sir, we have been through all of
that and I have ruled that it's inooapetent. In fifteen dayn
you can present o r n o t present, i f yo u desire, w h e t h e r or
not it's ooapetent, because I'm not going to have you do
Indirectly what yo u can not do legally and directly.
It nay be y o u r purpose to have other issues
here than the proper issues in this case but ay responsiblli
here is to see that the Issues here are the proper issues ap
that is the reason I stake the rulings Z do, and I have.
And 1 have been Indulgent as I thought I could u nder ay
responsibility. There is n o use in ay repeating what has
already been said and in the record) y o u have the record,
y o u d on't have to take any exceptions, yo u have aoeess to
such court of appeals as in their w i s d o a they accept your
appeal. And I, o f course, will be of such assistance as
I can in expediting you r appearance in that Court.
As far as the legal arguswnts are concerned I
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w o u l d U k o t o have the logoi argument in fifteen days i f f m
have any legal argument• aside from sene talentifie theory
o r tone raeial hope that this la competent e v i d e n c e . You
tee, this it a Court o f jus ties and that it all X an inter
ested in, justice o f a nan's petition* And all o ther things
proving o t h e r things whioh are extraneous are not a part of
justice sad, unless It relates to this nan, and y o u have not
proved the relation n o r have yo u tendered the p roof in
pro p e r fora* It the proof y o u were to offer would in any
way prove in any way anything in reference to this nan hut
if y o u say that X made a mistake on that X would like to
h e a r from yo u within the fifteen day period as to the legal
Situation which applies thereto.
These will he filed with the Clerk of Court.
how, Mr. Attorney General, what else would you
have?
MR. B R A N D O N : Ve w o u l d like the right to file
<me at the same time, y our Honor.
COURT: I think that's proper. You see, the
Attorney General complied with the rules and filed the Brief
on tine, y o u all did not, Petitioner did not. The Court
is not going to take any action thereon because, as X say,
the Court always leans over backward in a case of this
kind because o f the fact that a man's life is involved.
That, X think I have done. I will ask you, now, does
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Petitioner M r # anything elae at this hearing b®aaua® Z
w o u l d be gla d to M a r tram you*
MB, PEART: Nothing further fro® th® Petitioner
COURT: 111 right. Pro* th# Attorney General*
MR, BRANDON: Nothing further, y o u r Honor.
COURT: Medan Clerk, yo u hare the record# and
y o u nay take care of t hen and the M a r a M l will aaaiat you
in aealing then.
Thank yo u so very nuoh, Gentlemen.
(4:40 P.M.)
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132
I c e r t ify that the foregoing 131 typewritten
pages were transcribed from my shorthand notes that were
taken at the stated time and p lace.
JOSEPH D. SMITHt Court Reporter
259
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tharato, Tha natter m m haard hy aa ao Jtaly 5, IfftS.
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with. «h« font thereof only. Untor tha to«HUtto« of !ggMSSt&L
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tftto Qewrt to without to tola uyen what ahalt ha
fwmead to as exeapelan. ConaaqMMtiT* raajwadants* ^tofoaad
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m e w p t & m 7 ia at follow*!
ito toner m « 4 aa a nattar of law to toaytog
a r n U a t t U ftttiev tor a » | t o l t o w < f 7 " tha srouoda that ha waa net atotoad of rtoht
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to thanay 17, 19«3,
of
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to tha *up*aaa court
aa aat forth In »eto or tor,
ua- 261
<*• are Deputy Sheriff Ch U MarahantT
A. That** eight.
<*« And you ate a deputy Shneiff at Ub iA w i t ftneatjt
A. that* a right.
Q» I** »*»*• ahathe* «r oat yaw ware atitai ia that
eapneity aa ar sNw t December I4th» 194111
A. Ther’a right.
Q. did y m h a m aaaaaiaa «a arrest the petitioner la this
aaaa, Laais Hearer?
A. Z did.
q« 0p*» abac authority did yew enroot this petitioner?
A. I «aa called out at the Jail cad given a warrant* and tht
Chaif a< hsllae aad myself want avewad «a floorer** haaaa and mads
the araaat at hi* grandmother's haaaa* I believe.
Q. Aad at what tins waa thatt
A. It was Just shortly after dark. I aouldn’t swear exactly
what tie* it was.
Q. was he at hit grandmother** haws* then you arrested him?
a . i guess it was her house. I couldn't say for sure whose
house it was.
Old you hews s warrant la your possession?
A. Ua had eh# wsrrant* yea.
Q. »id yaw explain tha warrant to hiw?
A. tha Chief of %liea* Mr. Pohhins, did.
Q. ’--hat sis* did you say to hiw* if anything, at that tins*
at the time you plaead him uadar arraatt
A. w* taken hi* on back to Jail from the house.
V. You didn’t eay anything to him! ton didn't malt* any
statement* to him?
A. wa carried him t* the jail and than taken him by this
lady's house for positive idantifisatfan* and than w* carried him
en back to the jell and lacked him up.
123- 262
A#
4.
A. «• M i Jwt wmootod M m.
»M fM wamtm Mdk Ma «
A- •». 4Mot Uko S ««U ; ha kod M ir koto la w M r O w l
Q. Did ywi momot we M m Wt b f d n t O d i M t i W *D w or
*•» ko w M to *» to ttro. JMkootm*o fcoooo fWr U w tU U ai& w l
A. M». Mi d&do'ft ook Mb MM $MI W M t» *o
1* Vw dfdo®« oak Mm ckotf
A. in , t o t teo Aida*ft n f w « to » .
Q. »* dido*ft t«f«M «o § ft
Am Mil*
Q. Aad tarn fM took Mm d m , AM yw votptro M m to
OthlMft Mnaatf to Mm. Jtkaotoof
A. v« carried M m start t» Stew koooo. Mooror taf waited tm
mm. Jdmmmm tar o ooteor Wf m w , «wl — •
Q. X dido*ft p t M at.
a . Vo 4 tW 'l Hmm to . N n n r ted rnkW tar Mm. J t a t M
£wr a ouobov of ?oora# aod dm tea* Mm.
X M M ] W ffepoitdilr kod M M y U w i 1m tar o t m o m , m
dm oaold identify MMI
A. Wo total M m to tho tamo, y*».
Q. Von took Mm to cte hoiioof
A. Bo i ' i oom ooft.
« . Aod ate ldm tlflod MM
A. TOO.
Q. Aod oft ftteft PM tiM lM slo t, te did w t Horn oo otcomor
wick MM
124- 263
\ z
A. m . M didn’t I m M r n w y .
tr SfeeMfr « H H m , 9m m* « M m < U b » T U « «ft*t to 0— eolf
A. X didn't.
^ Q. «eo didn't?
A. Mo.
Q. woo ho advised of Hli sight to "inriril to m v preeoneet
A. Mot at that tint. ao I eay, oa ware oaly proooot M t h
hi* about too or fiftooo Mantas at that Hat,
<J* Mow, tmm you and chief MsfcMoe ottfe Maersr at all tioaa
at too t o o anraatod M a g woo Hooooo la tha praoaaco of ye* m d
O 4of Bobbins at all M ata aftat fow arrested M a that afteraaaaf
A. Until to locked hti op, yes.
Q. Until yea locked hist op?
A. Yea, air.
Q. Me** did 700 at any M a a hoar Chief MebMae advise Ida
of hia right to Oattaaal?
A. 1 aouln't a ay whether ho did or net. T couldn't sneeer
chat. If ho did. X dida*t hoar it.
Q. Md aitfear of yoo adoiaa hi* of Hia right* to refuse «a
ha pieced in the presence of Mrs. Johnston far IdaotU teat loot
A. Say M a t again.
'm. Bid yoo or sheriff Bobbin* advise his* of M e right to,
or that he did net heoe to ho placed in M e presence of Mre.
Johaeton for identification purposes, if ho did not wont tot
A. Jack wan talking to hi*. Moo. what ha told hi*. X
don’t know. Jack knooed tha boyt 1 didn't hoeo Ha . That woe the
first M o t X had ever seen him.
Q. And yoo didn't hear Sheriff Robbins advise hi* of any of
hia rights, or of his right to refuse t# ha plaaad in grant of Mra.
Jshnatea, IF ha did. net oant to?
A. Me. hot na and Chfef weren't together ovary admit* af tha
tiaw.
M*. SROVWi We have nothing farther, year Honor.
125 264
A. V«t t it .
<J* toa*. pw, sic.
X** CDOMl « M A M M W N i .
KR. j. V. w m im , a oUaaaa *a11*4 aa M hU ac t o pati*
Haa<r, btiai l in t Ally n h h , M M lftwi
<i. atorlff M A m, n iW fiiM M i Otiaf W ttU i, t o t i t
fame Call aaaa, ale?
a. J. w. fcafebiaa.
Q. J* W. Kabbiaa?
a* Xm , a ir .
<*• ami t o t ia fans oliialai w w a t U a i till t o Catiay ai
Qastoatsr?
a. chiaf of itoliaa aC t o to n at i t . Oaaaga.
<«. t o axa Chiaf of lalAaa n£ t o t o * ai S t. Oaargat
a . t o .
0. tor# fan acting la tliat alfiaial sayaalty an as about t o
I M A of Doaaabas, 19AU
A. t o lath?
Q. t o lAth of Beeatoe, 1911.
A. Z was.
<4. unwld ysa atata t o t o v as not yaa to ft aaaatian ta a to
t o aesast of t o patit&aaar* L w lt Maasas, along aitb Qayaty
ftWUU Mas tone?
A. XXw, Z v to v a ft a sail* X gaass, aaaamft iiOO a*alaak la
Itui aXtasHB ta i a fa it ta tAa caonsy Jail i that tbay had a warrant
t o t to y ta a f i-a a r to .
•lit- 265
<3* **m v*tat, me to whoa « t tbat wsetant directed, or whew
wan that warrant directed a*ainetT
Louis Hooter.
4̂# Did you srrsst Louis hsovar that aitsraosaT
X did.
L&d you have tha warrant with yaw wktea you snsatsd hint
Isa, sir.
Q* Chiaf, at tha tins you arrested mmror, did you have s
eaovarsetiee with WUst
a . X told hi« that we hod m arraet warrant tor him to Che
prmoac* of hi» - 1 don't knew whether it wee his sister or not,
hut M s graisdsmhe* was In the heuee, sad Lewis m m there. Touts
nos seated at a table with M s foot under th« table, sod w walked
is th« bowse, m 4 X pulled «h« warrant out and told Lode that X
had m mssmt mxxmt, fog Mat, and I road tha warrant to Touts In
tha presence of h U grsodaother, and Mr. aaarehaat m m el oar with
m , dafu<^ Sheriff Merchant.
<4* how, after you toad tha waarrant to hi®, a h M did yau da,
if myUiixw'i
a. well, vm carried M s around to d w county M U . X thought
that I knew wools floorer. t was pretty satistlad that l imsw hi®,
mui t know that ti->is M>y in <p*entie» had been NMidag for has.
Johns coa for a ouwber of years - X knew that - hut to bo on tha
safe aids, l told Deputy Sheriff Merchant, “Let's run hi® hy tha
-j htwit and he sure we have tha tight fallow bare. M * la a sariose
charge''. And we tiroppad by tha house with hin, and Mr*. Jahnetoo
«ume to the door, along with Dr. Johnston, and X aaitad Louis to stag
out a t tha car. Ha stepped out of tha car, and Mrs. Johnston said,
"yes. that's Louis Mooror". And we proceeded an to tha fiewoty
Jail witd him.
U» ■ ho you took bin Chare for tha potpaaa of hawing bin
identified*
A. tor positive identifieafcion.
Q, lor positive identification?
A . Vos*
-127- 266
<4 *y Mw. Jtoooteof
4 . A hM* • Sight,
q. nag mmi I twirl f 1 g Matf
4 . SIM « 4 .
M U M M M H Mi **aw* aotfeKm «k* M m *. pomr Im » .
mmjmmmmL
<5. Chig, you «** M m Chiof o f Mile* ot St. 0****#'?
4. Yo», (it.
Q. And tbit eriat took (A«m ia M mi Y a w (Ml St. GootgoT
4* H u m *# *******.
Q. YhtvtiMni. you o n acting aw CMM o f % lie* «N » you
mud* i8st» «rr*»t?
4. That*# sight.
q. llMuk you. r i i . dmm 4mm,
vat oamtt you **# o w u o i, *4*.
m, H » m . W A LT* * a», J R . , a * * * * * c « l l a d o n b o K M f o f M m
p o s i t io n * * , 'M in e f i n e d u ly m e n , t m t i f i o o t
■MaMft w i t t .m *
<4 M i W YOU kindly otot* yo u* tail non*, sir?
4 . *fa#t Watte HUA t o n , JUaio*.
Q. A** you « wogUtrot* in Mm County o f aorch**t*r?
4. I aw.
<4 And in Mm City o f S t. c«o*g«?
4 . Yhot*o ee n o ct.
<4 Mr. do you know Mm position*. Lout* Moo***, * i* t
4. I do.
Q. lo ho ( t o o t in court today, *i*f
■4. Ho 1«.
<4 I ionite you* ottontion te Docoteo* 14th, 1961, *i*t « k $
I o*k you doth ** o* not you know i f on ****** warrant mm iaouod by
you for hi* mvxmtt
128» 26?
it
Nf
A. 1 * M i l
fer
A, Ibt mm that X
Q. Mt. HWtNKtyt
A. ¥aa» air. Tha Seliai
thissg# v«er carefully and
• air. ia reference so
e», Hr. wtobarly.
tor Iu m aii m to follow
that* a the
with Solicitor Wolf# after this parti-
a . X here always hope to clooa contact with solicitor Haifa.
Q. .Atta sa the 14th af
hto to reference to tbie
a , t*a, I 014 oat. 1 414n*t aagr
Q. Oh, pea 414a* tf
a . to. air.
Q. All right, air. tow. aftar yaw wara a4viaad of hto being
to ana tody, chat 414 you do than, air?
1 » - 268
&* ta li* m ftatmdiat nhlah m » Mm flaftlooftm f* r» an
« * » • * Am ay • fflM balding a m , an* X m U M Mm (ta riff* *
MMCm * *b#y had .tefwnwl aa Mm* *■ ilig «ta t ta ta i I f n if f *
i t a m it , ta i X aallad Mm ffetaatf** M H m — —
Q* X M m ** CMafc S f i n «iani*iiiiif yea - n r r m m .
4 . t M U Mm* X m m ft* m MHU* taajdftag Cans*, «ta t ta i
taa* a irta a i Mm* m iMm by Mm M M rtff** nipa t t w m m m ba ta i
iBMMi A AtAtAwan* 0* A AAttfAAAftta*
Q. ftat Ml* fACfttitata tai laanad A t a l M I t t
4. ftat*# ML#*. tai X astai M m * Im ta brought tatfmr* an, a*
M m** X Might * U I tai, a *rl#i* i*i toad M m i a q p to WU*. tai
taputy Sheriff tarchjmt. ala** aftch Chftaf of % U e * Mbbiaa* branch
tai* Into ny court, In M m yraaanc* of, X mmlA *ay, SO uitaaaaoa -
it or a a rrouiad Quart • and X rood M m MuMgaa ta tita dafandmt.
Loot* too***, and X aafead taa if ta a m rafvaaaatad by Gounaal.
tai ta iUn*t atom ta imdarataed M m * X aaaat* and ttan X aakad tain
did ta Hava a t w g m , and ta wadatatwd Chat, and told a* aa, that
ta did oat. tad X anpiatnad ta tain M m aortouaaa— of M m ctina
ami told tain M m * taa ataauld ho raftnaaatad by Cauaasl, and that ha
should consult * U h taia family and iaanra ao attorney, and that.
If ta iaairai a pr*li«U*ry hearing, m piaaaa notify aa in urltimg
at least 10 day* before M m aaat tec* of Amaral sessions court.
Q. You ora saying ta ttai* Court that you told caul# taorar"V
all of that an «h* IStb of 0***ob*rf
A, itaat 1* eorvaat.
Q. .ai right, air, t a * m o l d you stata M m M m t or not, at
„ Itoat particular tin*, you had a eagy of M m statementT
A. I did not.
<?• waa a aoyy at «ta atatanant avor brought ta your offUoT
a . ft mm net.
0. But you had M m infatuation that a atatanant had tarn
•ignod by taiMI
* A. That it had tarn elgaod, that** corract.
Q. Old you have, at that particular tina, th* natwra at M m
iof«cm*eton eontaitMd In M m atatanant then you core axpiaining Mia
aariousnasn of tha charg* *0 taarart
• u o * 269
A. 1 414b*t i t . % m m * *
Q* A ll d i l l , a ir .
A. X road M m
Q* In its mt&xmft
a* y««t l i t .
9. hs didn’t
portion of it.
to foot office, olio
A• 1 seated that ha did
X didB*t atats that ha didn’t
Q. All r i g h t , a i r . n h a n
aaaoupaalsd hlat?
A. ^ i a f o f % l i a a R o h h tn a a n d D e p u ty S h e r i f f
q . A n d y fe a t d id C M * f o f h s l le e to b f e in s s a y t o ye w id * e e h a
e a rn s i n t o y a u r o f f t e a ?
A . h a d id n ’ t s a y a n y t h in g , axes?* that **va h a v e t h e d e f e n
dant**.
Q. ha said that ha had tha
a . la aald that ha had tasii
(}. »a aald that ha had tha daf , Louts
A + '« earrsst.
f?. All right, sir. What did Deputy sheriff Merchant say ta
you?
A. t dten’t think ha aald it
9. All right, air. law, mould you state Whether or no*
50 witnesses that you talk shout sure uitoaaaas in tha ease
a£ Mss state vs. touts Maararf
A. fhaaa wltnaaaaa ware present haaaoaa X uaa holding Court
and vo* txytm traffic violations and ether offenses, such as
assaults.and others, and they vara pretest as witnesses in ay Court,
as wt<
Q. Would you kindly state for tha benefit of this Court
In bringing Louie hearer to your Court, sir?
270
. _ ■ a . % road ghargaa to M » mat anpiais M U rights a# Mm.
*• rood tho ofcargao « M anpisin M « rights to ttfaV
A. Tw,
Q* At that y n M M U r t U i M i nsorar Mil p > «*>Tl*rff sr
•Ot M mm guilty or not guilty, aitt
a * «* M 4 wot §Asoi rtttw way.
0. ®i< you oolt hi* whsthsr or not ha mm guilty!
a . X did not ash MLh m yioMft.
«• &id ho * sy toy thing M you!
A. Th* only thing Ho said on* ho answered afftrwartwaly Mum
X sake-* M>* didn’t ho wont to disease it with M o fondly and on
attorney - ho eald "Yea".
Q. sow, noold yaw ototo whether or not Mrs, Catharine
M m atm me In that group of 50 wttnassant
A. 5ho mu not present at m m tine.
C. Would you aeota whether or not hor husband mm present
at that Moot
A* Pm not not present at that tino.
M w i d yen atato whether or not Solicitor uolfo maa pro*
•oat at that particular Moat
A. to the bast of ay knowledge* ho aoo net prosont. how
X can’t m w everybody that waa present.
n. would yoo atato whatfckar or aot thoriff Knight was peasant!
h. t can’t raw* avoryona that was praaaat, hut that would ha
a lac «a nan*.
<1. would you atato Whether or not thora war# any officials
of Mrcheater County praaaat at that particular tire, sir?
A. the only oeos that X can dnfinttaly atata that war# pra-
aant at that tint and that had business before ny Court vara Paputy
Shortff ^archant and Chiaf of halloa Jade «?. KoHMaa.
n'» r'ac tha Jailor praaant at this per Mauler tine, namely,
str. !-'ilaoo vinberlyf
A. T couldn’t soy that ha wsa, and X wouldn’t any that ha
271
I N fttata «•. U n d a Haaaar wara p it at tfwt ttaai
A. l « wna aM ay Nwl— i ta IN I— 1* that al aaaly , md X
tm aay,
fij» Mr* kaitara, X * N w yaw c N U flan— at, and aafc yaa What
U iaf
A* w U aa a r m w m n ,
ft. i #ak *HM if afeLs aiiiMdMn (InUtatlBcHi — H f
A* Yhat ia ay aignatare*
<i* la tfcfta tisa warrant Abac yaa laaaafl far tha arraat af
Louis la— a. slat
A* is ta*
Q. It la, atrt
A. Yaa, alar*
HtU asm* Xf I N N a t yiaaaaa, fla yaHeiaanr weald ltia ta
ijwtoadwea thie la awldeoee at t N * tlaa, aaaa far the writing aa
tftia fcaak ateSafe aa think ia ehjeatlanable. (Banda daawnaat aa tha
Cawrt.)
W t tiOUHYt Mara yaa aaaa Nila, Mr. tvaadant
ha. mjmmmt «•» air, x havan’t.
m s dCWAYi A U right, air. laok at It. (Haada deauaant ta
Mr. Brandon.)
m . KGMurit tf year Hooor yiaaaaa — —
« . uuosi if year Uaaar yiaaaaa, wa trill withdraw that ahjac-
«law. aad let It go In in lea antiraty.
t m c o m m t m affar it aa it la?
Ml. uocwti Yaa, air.
h a . w i t Nee, If year hooor yiaaaaa, X weald like ta kaay
ay original if yaaait-la. X hawa a eayy af that, and X would ilka
ta aahatt It m couaaal aa l aaa yat it in tha racaafl and withdraw
eh# original.
YhS umiktt sail, flrat, 1 want ta know Iran tha state If
thara la any objection ea lea introduotiao ia evidence, and if thara
ia an objection, than aiaaw teuneel far tha yatitlanar tha ytoyeeed
eopy, and if it ia aatiafaetory to thaw, it will he yat in evidence.
ID - 272
Wt̂ JflWAIKXWH (After - w m n M ff o f JTr..n •• C W M I
§** too yfltlttonar) wa Iu m m ao ohjattfno. yaor Wmm».
TH& a s m All right, H > . t t m U w obiootftoo by toa «u m
*nd it till to roflotowd to atodanaa.
**• m m t i t too Q mrt ftoooto, ooofotoly •» M o o m pootl
W i o o tojoottoo. O f opt t o too foot toot «o m o l d 11M « m i n i
toot, t* toto aoor to flffotol* toot it was #i*nad «o too Mali by too
MOtotrwt* Moorrlf.
Wf MOTT* Loto «oa it. 1h«t*s too toot m m , too** it*
*». ». tottaro, Jr., Myiotooto^T
MR* Too, oto.
M s m m r% wall, lot too w o o l toow toot oo too ortftnsi
tooro to o Motooittoo ototomant aifaod **H. «. nottor*. Jr., togi-
ottMfl**, o M OB too copy too hondwrtfton •tm tm m n t boa toa» gypotf
owt, ami oo t understand it. tooro is ao <pa»tton but toot it is oo
m m am tm oooy o f eh# original otroflt oorram and atatowant m d
aigaaturaa?
MR. coot* toot*# oflovoot, your Sonar.
tot court* .Mr* Mportaw, onto M t o of toooo doouoaato ao
booing M o b iatrttownd is ovi4on«o» and allow too Solicitor to with*
draw too oxitihol. to too awigindt in your pooaooaian, nr. wolf of
HR* «H-TR* Too, sir. ft M o M a n to ay tooooooioo arnr alne#
too Mofloeroto sane it t» no.
ftoiginat **d copy of (hmmaot ontitlod* "ggoto of South
corolla*, County of Oorchnntor, too 8toto oo. tool# Maoror.
Aevoot warrant. Offonoati Ortotoai Aooowit, etc. ft. a.
toltara, togiataratn. S»to* Dooaabor 14, 1961. Offloors*
*oto Rabbin* and Cooil wootooot", and Mortis* on it*
rooaron ®ido too following* **»t. Merga, *. C., toaaator
15, 1061. too ooid fort* Motor woo toooght to or off too
f oiiLemtm m Mcawtor 13, 1961, following too tootomeo
of warrant too toy tofnarn, toe wao tootgod toto criminal
saasuic oto hi# orroot fellawod, and tho chorga* war#
V astfslataod ao wall m M o righto, o**d eharnupm I M o o d hi*
ores to* trial at too a n t ton# of toa Cnaoral »«#aion#
Court for btnrtoofltor County. to# dafandaat told m. if ha
daaiurto a pralitonory ht#«sio& ha would adriaa mm afcor
tolktnp toto M a Mina and nttomny, **. M. woltar#, Jr.,
nsgtattaso**, soaoiroa is avidoooo and M t o original and
copy ««fhad tooraupoa toa original
mw «titodrowu>. a.w.c. Jr.}
hit. OAAU daw, hagtotrota waiter#, altar you had had toi#
dt»«u*«Laa, 1 prasuma you would call it, toto toa dafendoae, toernr,
you houud him owtr to Canaral i:;#*«ioo# Qourtt
*134» 273
ms nimnssi
a. mm, mm
i in Borthaot
N N
Q. rim
it. **»14 ISM M tt« OwtiMt CM IMS* M • »0®ta* (rf ~OS*t MMf
a* a wotto* of imweSers foUow4* ym , attcnr tooaiat a pedUMKMvy
tOMWfag* woilli bind aaatt of four dafandanta owa* to Menorca
SiMtcm Oaort?
A. Zf 1 tom • RrailMlaary, toot Z dids't Kaon a oral i»itt ary
oitb M w . Hoaywar, it laa*« naaaaaary at a prollwLaary, and i f
tfcay 0oo*t pit of anodgh avidaoea, l 4ea*t toiari than avat.
q. toot la this omrtloular mu, p m had aaaogh awidaaaa
Mootat oaar to (aactaml Saoaiao* qacertt la that contact f
A* Xtoat’a correct.
q. m farther quectloa*.
Hr. haltars, yoo atetad that Hoorer under*rood the wtrd
"Ladyar’' tfccm to# didn’t wsuSaratsnti the word "Ceimaoi*4? X* that
tight?
*« That*a correct.
<•*. Pa ondatratcad dtoaa jm o lnfomed |dn that ha should, or
maid and ehould hare a laayor?
*. fa®, air.
<>„ Hr. * altera, was that* ever a pediatoary hearing held
in the oaaa of the State w , L w U poorer?
A. I mb # « « requested to >«1« oca.
q. ■ Palttoer Msorcr or hi* mtommy avar reyp«*te«l « p*ali«
winery Hearing?
A. Ms.
<> Therefor®, the wsocadura that taaah pfiLaca before you on
JMeentoar ISUto, wea not a preliminary hearing?
HR. <008*.* Mow, ;
m i it *t &
135* 27^
tm aomtt om mUwm . udm u i*f
« U C O O M f o u r I M S , K a b l e s t t o that p a r t i c u l a r y w tfia
« » * * U l » § f a r a a o a a lu a L m . Wa a a * b a r s t o d a y a » a r g u e W h e th e r
«m m * a p r a i i w U a v y h e a r in g was, l a faeft, had, dad X daa*t M *
In a w «U«it fwm this wttaee*, on crwe^ewaaiartiLaa or ary m o -
a t o a t t o a , \*m& a e t w a l l y t r a i t p la c e . H i m b e a iy t « U w h a t h a p p e n e d .
Tiue OPIJRT* thta la the Mogiatreta who would Iu m hold the
praUadnavy hearing had m e haatt hold. X «Mak ft«*a a aarfaatiy
W% v x m s s i will you repeat the (pHt t m , air?
m e . f c f mmm U l a m . X think this la What Z aakad foot
Xhle faroaadura of Ceosafcer i5Hi, wee rat a pralladnary hearing, aa
yaw tnaderatmd the law!
W * v i m s t It was not a preUadnaxy hearing.
h« And none wee ever reqpaated?
A* And iwkmi watt ever repeated or had.
<4. ^5 f u r t h e r t p a a t ia a a .
*5# »ao, «-**.i«erate haltera# thla m b a vary aarlawa oilease,
l« that not correct?
A. that** correct.
v. And this hearing, or whatever yam had, m behalf of
hoorer, waa wary important! la that oorvade?
A. I did not haw* a bearing.
I. tall, thla otMimwmo than that yaw had, air, was vary
lapartant so the defendant, wa#«*t It?
A. I figured it wna. 1 swtfd to explain his rights to ttia
and tall >«*.••• «h<tt h* wa* dbarged with.
W* And it woe a vary Iwpertmt wetter m far as yen ware
eseawm^d o r * shelf of the defendant? la that correct?
A. that*a correct.
-U 4 - 275
Q. A ll t ig h t , a ir .
«h* **w porpoee ot « M o Nattai eo* to toll hi* that ha
•hauid h » a a lawfort
a * m a t ia eowrae*. It wasn't • baortnp. Ha w Jh m
hreoghi b«f«r« aw. I wanted to read m e shatgse to M m due to the
eoriousnesa of ftw, end t « U hi* that he ehould he repreeeated bjr
Ceotwel, and explain hie right* to hi*.
Q. » W t m appaint daunaal t o o M m at that pertloolor ttUwf
A* £ here no ***«te eethevtty to do that.
q. old you dtaeuaa with Joliet tor Haifa the appointment of
Coonaal £m hiwt
a . i m oo«.
q* Bid SolAettor holie notify year office thet Counsel hod
hero appointed for hied
- a. %& the beet of ay kaoaiedie, ot that tine he didn't, hot
later m 1 knee that counsel had keen onployad.
q. I aoao at thi» particular tine.
A, sot then.
Q. hare you advised by any of the Circuit Judges in oor
Jadieiat *yetew that Counsel had keen appelated for hln?
A. hat*
m , a m .I A lt right, air. Tha witness i» with you.
immmm
sm m m .
<U I believe you have t aerified that no
did you not?
hm tJieant the feet that om at the officers said that ha had
a atatewwae fro* hi*.
t o te«v that, but it *t before yout
■137 2?6
a * wm i
Q. tone* Im ftMMft gftwao * w titw m , b i t l t n a i not hafooa
f W f
a. Shit** wW*.
O. Am* mu Kmd BlMi lmttreaaK b**Om MHt
A* Shat** M n w .
q. oad you know the dhoasaaf
a . Shat* a ********
<Q* And f*« did not ask So* a* raoaio* any Cow* of y&at foot*
Hi* defend***, Hoorort
A* I did not*
0* And a* ym hoa* tootlfiod, ym *te*if otatod to his hi*
rifjhta ** yon ondemtood thon?
A. thee** «o***ot.
Q. And adeiaed feta dutt ha m o l d and should hoe* an attorney?
A, Shat** ooc*«*t*
Q. And that ha ootid oak for • praMa&aary hoaria*, if h* *o
d**ir*d, or If id* attorney *o doairod?
A, Shat** eorraet.
C|» Shank you, air.
j ^ m M S S , a « M a 8iS»
s a m m j i M u s w
Q. On* short question, dr t aid this atato— nt #*y whether
a* not h* tod don* dhat h* wm charged etth, this atataonat of eh*
officer?
a, X didn’t r*od th* at*tow*nt»
Q. X uadoratand that, hot that too it that the officer told
you?
A. tta ««i«i ho had a aanfaaalon,
Q, that he had a aanfaaaloof
a , Xm , air.
q. All right# air.
MU. Sfuytuk* da further qoaatloo*.
•US- 27?
TH* COURT! All riche* Hr. Standee.
m . BBAMDOHi m muW like to after
W COURT* All srlght, Oiv.
Honor.
Ml. JULIAN S. HOLTS* 0 « i W M called M bdkdlf Of the
raa pendents, being first A d y scorn* testifies!
aiMS5r„j^£aiMaei>»
<*• «WM ora Julian S. Wolfs?
A. Too* air.
«i. what is your off idol position* Hr. Wolfs?
A. I m Circuit oli d ter of ths H w t Judicial Circuit of
South Carolina.
Q» What Gauntl— doaa that Circuit include?
- A* Oroas«d»urfi.* Calhoun and oowrehontor.
<3* Hr. wolfs, in four official capacity did you prosecute
the case of the state so. Louie Maottor?
A. 1 did.
L. At What taro of Court and In What County wns that case
triad?
A. Hurt «m In April, 1962* is Dorchester enmity* at it.
CSoor&a* S. C. That*a the Csunty scat.
On Tor Shot erino woo Louie Msorar triad?
A, the iadietnaet charged rape* assault with intent to
ravish and assault and battery of a high «ad aggravated nature.
L. waa ha ccuvtstsd?
A. Ha use convicted of rape.
139 278
9