91 BLACK, J., dissenting. there was no such reasonable opportunity afforded to petitioners Michel and Poret or their counsel. I shall add a few words, however, about the supposed opportunity of petitioner Poret to challenge the validity of the indicting grand jury. The state courts have found that Poret fled from Louisiana after allegedly committing the crime for which he was indicted. But the time allowed Poret by state law to challenge the validity of his grand jury expired long before he was arrested and brought back to Louisiana. It is apparent therefore that after his arrest Poret never had any opportunity at all to challenge the grand jury. It is true that if Poret had not fled and had been arrested and had the benefit of counsel early enough he could have challenged the grand jury's composition. For this reason the Court holds that he forfeited his federally guaranteed right to have his case considered by an unpacked grand jury. I cannot agree that the right to the kind of fair trial guaranteed by the Federal Constitution and congressional enactment can be thus denied by a State. If Poret can be denied this constitutional right, why not others? Could a state statute of limitations like this one declare that anyone under indictment who flees the State has thereby waived his right to counsel or his right to be tried by an unbiased judge? Cf. In re Murchison, 349 U. S. 133. Poret could have been charged with a federal crime under 62 Stat. 755, 18 U. S. C. § 1073, for fleeing from one State to another to avoid prosecution. But he could not have been convicted until after adequate notice and a fair trial on an indictment returned by a fair grand jury selected without regard to race or color. And certainly Congress did not by this statute authorize state courts to forfeit the federally protected rights of an accused because he had violated the federal law against fleeing. I suppose Congress would have no power to do such a 362618 O-56-13 DOUGLAS, J., dissenting. 350 U.S. thing. Under our system even a bad man is entitled to have his case considered at every stage by a fair tribunal. No sound reasons have been advanced supporting the power of a State to use the device here contrived to justify trial of defendants on indictments returned by grand juries in flagrant violation of the Federal Constitution. The arguments advanced by the Court find no substantial support in any of our prior decisions. On the contrary, this Court has strongly asserted the right of defendants to raise defenses permitted others despite their guilt or innocence of charges that are separate and distinct from those upon which they are tried. See Hovey v. Elliott, 167 U. S. 409. Cf. majority and dissenting opinions in National Union of Marine Cooks & Stewards v. Arnold, 348 U. S. 37. The Court's opinion here appears to me to give far too little weight to the constitutional and statutory rights of an accused to be indicted and tried by juries selected without racial discrimination. I would reverse the convictions of Poret and Michel. Since Labat and Poret were jointly indicted by the same unconstitutionally selected grand jury, I would vacate the conviction of Poret's codefendant Labat. See Ashcraft v. Tennessee, 322 U. S. 143, 155-156, and 327 U. S. 274, 279. Cf. Malinski v. New York, 324 U. S. 401. 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 91 DOUGLAS, J., dissenting. 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. Georgia, ante, p. 85. I would not allow any man to go to 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. Texas, 177 U. S. 442, 447. 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 it is dangerous DOUGLAS, J., dissenting. 350 U.S. 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 indicted them were unconstitutional because of the systematic exclusion of Negroes from the panels. *The conviction of Labat should be vacated because he was jointly indicted with Poret by the same grand jury whose composition is challenged on constitutional grounds. Cf. Ashcraft v. Tennessee, 322 U.S. 143. Syllabus. NATIONAL LABOR RELATIONS BOARD v. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 27. Argued October 20, 1955. Decided December 12, 1955. The National Labor Relations Board ordered an employer to cease and desist from certain unfair labor practices, to reinstate certain discharged employees with back pay, to bargain collectively with the union, and to post notices stating that it would do so. The employer complied with all of these orders except the order to bargain collectively, claiming that the union no longer represented a majority of its employees. In an enforcement proceeding, the Court of Appeals decreed enforcement, overruling the employer's contention that the union's loss of majority representation of the employees relieved the employer from compliance with the order to bargain collectively. Subsequently, the Board petitioned the Court of Appeals to find the employer in contempt for continued refusal to bargain collectively; but the Court declined to do so on the ground that the union no longer represented a majority of the employees. Held: It was the statutory duty of the Court of Appeals to adjudge the employer in contempt of its enforcement decree, and the Court exceeded the allowable limits of its discretion in declining to do so. Pp. 108-113. (a) In the circumstances of this case, it was the lawful duty of the employer to bargain collectively with the union for a reasonable time. P. 112. (b) For failure to so bargain, it was the statutory duty of the Court of Appeals, on petition of the Board, to adjudge the employer in contempt of its enforcement decree. P. 112. (c) The National Labor Relations Act contemplates cooperation between the Board and the Courts of Appeals, both at the enforcement and the contempt stages in order to effectuate its purposes. P. 112. (d) The granting or withholding of such remedial action is not wholly discretionary with the Court, and the Court of Appeals exceeded the allowable limits of its discretion in denying relief to the Board. P. 113. 214 F. 2d 481, reversed and remanded. |