Brownfield v South Carolina, 189 U.S. 427
A MURDER CASE! RIGHT IN MY WHEELHOUSE. VOTING POOL RACIAL DISCRIMINATION! DITTO.
This case was argued February 25, 1903 with opinion issued March 9, 1903. Justice Holmes' first three opinions for the high court, Otis v Parker, Diamond Glue, and Hanley, were issued January 5, 1903. The opinion is four pages long.
I barely recognize this opinion as American law, so strange are the its gyrations. Yet, the gyrations may be rooted in standard legal doctrine. I see a paucity of what I know of Oliver Wendell Holmes, Jr., his "experience" and philosophy, in this opinion except for this: Pragmatism is process-determinative; if the pipes are all shiny and shit comes out it's sweet-smelling shit.
I can summarize the facts of this case far more easily than I can the economic cases.
A Black man, in South Carolina Pause: Can you think of a more dire combination? Unpause. is convicted (🙄) of murder. That's it. That's the factual summary.
How did this state murder case make it all the way to the Supremes? From Holmes' summary of the facts:
...the error alleged is that the grand jury was composed wholly of white persons, and that all negroes, although constituting four-fifths of the population and of the registered voters of the county, were excluded on account of their race and color. The plaintiff in error is a negro, and he says that in this way he has been denied the equal protection of the laws and of the civil rights guaranteed to him by the Constitution and laws of the United States.
That is pretty much game, set, match in American law of the last half century and Holmes recognizes that,
The case involves questions of the gravest character...
Yet, there was a fatality in the record (also in the facts). Pause. Lawyers may be surprised to learn that the accused actually had a lawyer in his murder trial in S.C.! Until the regimen of Gideon v Wainwright (1963) those accused of most crime had no "right" to counsel, despite that being like right in the Sixth Amendment. "Right" was construed most narrowly: you have the right to hire an attorney, Pilgrim, you don't think the Constitution means you had a right-right, did you? Silly Pilgrim. If you didn't have the money you were s.o.l. Except in capital cases and those of similar seriousness. So Brownfield had an attorney. Unpause. The attorney fucked up. The trial judge fucked up. Everybody lower down fucked up. It is not surprising to this white lawyer that all of these white peoples’ fuckups in South Carolina conspired to deprive the Black man of any relief:
The trouble with the case is that we are not
warranted in assuming that the allegations are true. The record
contains an agreed statement...the defendant below made a motion to quash on the grounds stated, and...offered to introduce testimony... But this agreed statement is "signed with relation to
case as settled by judge."
The trial judge then made a written statement that the facts for quashing,
"did not appear from the record"...and "I was bound to assume that the jury commissioners had done their duty."
A provisional objection, Holmes wrote, is made to the Constitution of South Carolina in case it should be held to exclude negroes from the jury.
But the motion of the murder defendant did not raise a state constitutional infirmity; it rested solely on the jury commissioners excluding Blacks from the grand and petit juries.
Holmes:
...we must deal with it according to the record, and the record discloses no wrong.
Judgment affirmed.
Now it is easy to make fun of this legerdemain and my fellow barristers will instantly see our cases on a fatally defective record—the higher court sends the whole mess back down to augment or correct. Especially when "The case involves questions of the gravest character."
However. But. It is standard doctrine that the appellate court is limited to the record presented it on appeal. There is a push and pull tension. The undersigned is not learned enough, especially in fin de siecle appellate practice, to comfortably make fun or grudgingly concede. Holmes does seem to be sincerely troubled by this outrage.
On the other hand: The grand and trial juries were all white in a jurisdiction where the aggregate and voting population was 80% Black. That is part of the record that reached the Supreme Court. I assume. It's in Holmes' second sentence in the opinion. That alone would be record enough, I would think. If that was not in the record below then why did Holmes mention non-record evidence at all--and give it the prominence he did? It's a very short (four pages) opinion.
I am persuaded, but only to a standard of probability, that for reasons known only to them, the Justices, with Oliver Wendell Holmes, Jr. in the lead, did not want to rule a denial of equal protection to a Black man in South Carolina on a murder rap.