Arthur Goldberg

“ While recognizing that no Negro has ever served on any petit jury in Talladega County, that the method of venire selection was inadequate, that the prosecutor in this case used the peremptory challenge system to exclude all Negroes as a class, and that the systematic misuse by the State of a peremptory challenge system to exclude all Negroes from all juries is prohibited by the Fourteenth Amendment, the Court affirms petitioner's conviction on the ground that petitioner has 'failed to carry' his burden of proof. ”

“ The defendant is a party to one proceeding only, and his access to relevant evidence is obviously limited. The State is a party to all criminal cases and has greater access to the evidence, if any, which would tend to negative the State's involvement in discriminatory jury selection. The burden of proof rule developed in Norris, Patton, and other cases, which until today the Court has uniformly applied, is a simple and workable one designed to effectuate the Constitution's command. ”

“ Blackstone, in his Commentaries, says, 'The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter'. ”

“ All of these factors confirm my view that no good reason exists to fashion a new rule of burden of proof, which will make it more difficult to put an end to discriminatory selection of juries on racial grounds and will thereby impair the constitutional promise of 'Equal Protection of the Laws,' made effective by Strauder and the cases which follow it. ”

“ Petitioner, a 19-year-old Negro, was indicted in Talladega County for the rape of a 17-year-old white girl, found guilty, and sentenced to death by an all-white jury. The petitioner established by competent evidence and without contradiction that not only was there no Negro on the jury that convicted and sentenced him, but also that no Negro within the memory of persons now living has ever served on any petit jury in any civil or criminal case tried in Talladega County, Alabama. ”

“ In 1880 this Court, in Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, one of the first cases applying the Fourteenth Amendment to racial discrimination, held that under the Equal Protection Clause, a State cannot systematically exclude persons from juries solely because of their race or color. Since Strauder and until today this Court has consistently applied this constitutional principle. See Ex parte State of Virginia, 100 U.S. 339, 25 L.Ed. 676; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. ”

“ Moreover,
' (t) he very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.' 100 U.S. at 308. ”