Michel v. Louisiana/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

I do not think that petitioners were accorded the opportunity, guaranteed by due process of law, to challenge the constitutionality of the composition of the grand juries that indicted them.

As to Michel, the trial judge found that counsel was appointed on March 2, 1953, three days before the deadline for filing a motion to quash. From the record it is clear that the trial judge believed that he appointed counsel on March 2. But the record contains a sworn statement by Michel's counsel that he did not consider himself appointed until he received official notice from the court on March 5; and that is what he tells us with great seriousness on oral argument.

The crucial question in this case is not what the trial judge thought, but what the effect of the misunderstanding between him and counsel had upon the constitutional rights of Michel. If counsel on March 2 believed that he was not yet appointed and rendered no service to the petitioner during this critical three-day period, the appointment was not an effective appointment. On this record and on the representations made to us on oral argument, it is clear that Michel had no real opportunity to raise the important constitutional question that might well have saved him from execution. Without counsel, of course, he had no effective opportunity to raise the constitutional question. See Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167. I would not allow any man to got his death because a misunderstanding between the judge and his lawyer prevented him from getting a hearing on a constitutional question.

Petitioner Poret apparently fled Louisiana shortly after the crime was committed. He was apprehended in Tennessee, but long after the indictment had been returned and the statutory period for filing a motion to quash had expired. The opportunity to raise the constitutional objection, therefore, was foreclosed before he was arraigned and, as far as the record shows, before he had any knowledge that the indictment was pending against him. It's as if the grand jury had been impaneled before the commission of the offense, and the time for raising objections to it expired with the impaneling, as was the case of Carter v. State v. Texas, 177 U.S. 442, 447, 20 S.Ct. 687, 689, 44 L.Ed. 839. Under these circumstances, Poret had no real opportunity to challenge the constitutionality of the composition of the grand jury. His flight was a wrong that could be punished. But is is dangerous doctrine to deprive a man of his constitutional rights in one case for his wrongful conduct in another. That is a doctrine that currently is gaining momentum. I disavow it. I would give every accused, regardless of his record, conduct, reputation or beliefs, the full benefit of the constitutional guarantees of due process. Every accused should have the right on his arrest and arraignment to invoke them. Poret goes to his death without ever having had an opportunity to show that the grand jury which indicted him was not drawn in accordance with the mandate of the Fourteenth Amendment.

I would reverse both convictions and give the defendants an opportunity to come forward with their evidence that the grand juries which indicated them were unconstitutional because of the systematic exclusion of Negroes from the panels.