ustxtxb_obs_1960_04_01_50_00005-00000_000.pdf

WILL THE SOUTH LEAD OR BE LED? CAMBRIDGE, MASS. When Franklin Delano Roosevelt assumed the reins of government in the revolt of the thirties, he pointed to the South as the great underdeveloped area of the American nation. He declared that this area must , be given full attention to bring its standards up to the rest of the country. Today the South is not looked upon with such benevolent paternalism. Dixie in 1960 is the number one problem child, the juvenile delinquent of American society. And most national therapists call for harsher medicine than the natives desire. The South, an area Walter Prescott Webb calls a potential “new frontier,” still seriously blurs the national image. Its flaunting of egalitarian standards of suffrage has brought demands for action from the Civil Rights Commission and now the full chorus of the Congress. Its low wage pull on north: ern industries has heralded an era of tight-fisted , industrial land-grabbing. Its “enclosure movement” in the rural areas is sending Negro share-croppers to the North “to give the Yankees a taste of our problem” and white laborers to the cities to form the industrial army for the further expansion of manufacture in towns and villages basically unprepared for it. Its singleminded politics has brought the Democratic Party to the point of no return either Dixie gets on or gets out in the summer of 1960. And what is the South doing about all this? Southern congressional leadership is evidently deeply confused. They feel caught between going along with the advances that “Westerner” Lyndon Johnson proposes to keep his presidential hopes alive and rebelling frontally to hold together the traces of the . Great Southern Blockade that William S. White calls the “South’s unending revenge upon the North for Gettysburg.” Is the problem simply one of power juggling in the United States Senate? If the South’ can do no better than build its progam around the negativism of parliamentary tacticsand is utterly stranded when its only convenient power spokesman becomes a “Westerner”leadership in Dixie has reached a new low. Can the Southern leader take a position between the extreme racism which fans the flames of emotional white supremacy in his home district and the stance of those who choose to deny their Southern lineage ? Must the “Southerner” by definition be either a traditionalist or a traitor? TEXANS have found it increasingly convenient to deny their association with the. other Confederate states, and in the process perhaps some of the best chances for liberal leadership in the South have been lost. Can a Texan overlook the evidences of Dixieism that pervade the state? What of East Texas with its boasts of “the blackest land and the whitest people,” its neatly divided feudal communities that leave the American Negro always on the “other side of the tracks” from justice and opportunity, its entrenched traditionalism and love of the status quo ? Isn’t East .Texas as “Southern” in the traditional sense as Louisiana or Mississippi or Georgia? There are islands of influence Norfolk, Charlotte, Charleston, At About the Author AUSTIN Robb Burlage, this week’s guest columnist in the Observer, was editor of The Daily Texan at the University of Texas and is now engaged in graduate study in political science at Harvard Univer Buriage city. He reported for the Arkansas Gazette last summer and. has written for the Nation magazine. lanti, Miami, Birmingham, Nashville, New Orleans, even Little Rock and many other communities in the South where the keynote is the awareness of something deeper than clinging to the past and all-out white supremacy. Is it not the job of Texas liberals to help rally the liberal tradition, to stimulate its vital centers throughout the South, to make the liberal position something more potent than traitorism or carpetbagging? The need is for the liberal cornmunity to come out of hiding, for liberals in the South to find a common cause in the progressive development of the Southern frontier. Texas liberals, who are generally on safer ground and have more political elbow room than those surrounded with strangling prejudice and entrenched Dixie machine politics, could speak out for their contemporaries all across the South. This is not a cry for pallid hearts who point to the “extremists on both sides”ostensibly the NAACP and MARSHALL Last November, Mr. Justice Stable of England instructed a jury that i it did not make a verdict within ten minutes, it would be locked _up for 21 hours. The resulting conviction of the defendant was, of course, set aside, but the incident gives a glimpse of the jaundiced gaze that the judiciary too often casts on trial by jury. In TexaS, the judges seldom make a frontal attack on the time-honored system, but do so in the fashion of an earlier Senator Lodge who, when asked how he could sustain an attack on Wilson’s plan for a League of Nations, replied : “Oh ! I wouldn’t think of opposing the plan in general ; I plan to destroy it in detail.” While this may ‘not be the conscious plan of some of our appellate courts, it is well to consider their pronouncements which may lead to a blindfolding, if not a hamstringing of trial by jury. In the forefront of judicial confusion rises the shapeless head of special issue submission. This is the present plan of asking a jury a number of questions in the belief that it will answer them without knowing the effect of the answers on the final outcome of the case. The theory is that a jury must be kept_ in the dark as to who should win or lose a lawsuit, and that from its answers on fact questions, the judge can properly apply the law. The jury is treated to the spectacle of two sets of ldwyers moving heaven and earth for days on end to have the questions put to it answered in exactly opposite ways and is not supposed to know that if it answers all of the questions for lawyer “A” and against lawyer “B” its verdict will be for A’s client. Nowhere else in government can such foolishness be found. The blame for this needless confusion lies wholly with the appellate courts of Texas, or in the ultimate, with the Supreme Court Of Texas. The special verdict, whereby a jury reached findings on particular parts of a case, instead of on general principles, has long been known to Texas practice when the “special issue” law was passed. The first act had as its purpose the abolition of some of the technicalities found in the general verdict practice and was in no way intended to limit trial by \\jury or suggest that in order to procure a just verdict, a jury must be blindfolded or deceived as to the results of its answers to a court’s questions. The Supreme Court interpreted a game of blind man’s buff into a practice that was originally designed to simplify, not confuse, the submission of cases to the jury. The backers of legislation for the special issue verdict would spin in their graves if they could revisit Texas and see the monstrous injustice and plain damnfoolishness that has flourished in its name. The average juror, the doctrine runs, cannot be the Ku Klux Klanand follow the middle rut of inaction. This is an appeal to Southerners to awaken to their own problemsto see the potentiality in using the full .resources of all their people, to develop systems of education rather than using them as political tools, to develop resources and public works rather than depending on sweatshop wages todraw American commercialism to Dixie, to establish a “national” standard of public interest, and to lead the nation in dealing with the problems of pluralism in our communities. THE SILENCE of most of the Southern press and the stagnation of ad horninem and machine politics have left pitiful vacuums. The injus-/ tices of voting discrimination, the wasteful systein of segregated schools, and the double ‘standard in Southern living thus continue without serious internal challenge. If Southern leadership continues to be unreasonableand men of reason trusted to come up with a fair verdict, if he knows what he is about! , and which party will win. Therefore, it is the solemn duty of the court so to disguise and confuse the questions submitted that the jury cannot know the effect of its answers. This puts a premium on fraud and deceit ; for the unscrupulous juror who does know the effect of the answers may falsely assure those who may not that a question is unimportant, or may trade answers with other jurors so as to procure a verdict not conscientiously agreed to by those duped. 0 NE IS A CITIZEN before he becomes a judge. The present postulates of judicial science in Texas are that a judge, or a concert of as many as nine judges, may with impunity know the results of a decision made, or specifically, who wins .or loses by a judgment. But in any order beneath judges, with the exception of boards and bureaus, the citizen may not be trusted to know the result’s of his decision, and particularly must a juror be considered without the pale, and subject to a judicial concealment of the final outcome of his verdict. It is not often that a court frankly and directly says that this fetish of concealment had its origin and has its continued obeisance in a judicial dis trust of trial by jury, but a dissenting opinion of the Texas ,Supreme Court held exactly so in 1954. The thought merits a direct quote, thus : “Law is mainly policy. For example, there is no great motive of logic or clarity behind our practice of special verdicts. The latter, if we are frank about it, is in large part a policy recognition of the natural weaknesses of twelve average laymen as a tribunal of justice.” Fortunately, the majority of the Court were unwilling to accept the premise stated in so many words, but one wonders if it has not insidiously crept into the thinking of at least one other ‘member of the Court, Judge Calvert. I refer in the main to the philosophy once expressed by Mr. Bumble, and now a part of the judicial outlook of some, to quote : ” Juries,’ said Mr. Bumble, grasping his cane tightly, as was his wont when working into a passion : ‘juries is ineddicated, vulgar, grovelling wretches.’ ” `Sa.they are,’ said the undertaker.’ ” ‘They haven’t no more philosophy nor political economy about ’em than that,’ said the beadle, snapping his ‘ fingers contemptuously. ” ‘No more they have,’ acquiesced the undertaker. ” despise ’em,’ said the beadle, growing very red in the face.” To COME TO POINT, in 1958, a railroad passenger named Van Zandt found his case before the Supreme Court for review. He claimed injuries, for which a jury had awarded remain passivethe decisions to encompass the South in the “national” system will be made from outside. Those who understand least the problems of the South will formulate its ground rules. And, paradoxically, those who will have fought hardest against Yankee intrusion will have precipitated it. W. J. Cash, seeing this need for leadership, peals out in his monumental work The Mind of the South: “In the coming days, and probably to prove its capacity for adjustment far beyond what has been true in the past. And in that time I shall hope, as its loyal son, that its virtues will tower over and conquer its faults and have the making of the Southern world to come.” Are Texans willing to help the new “Mind of the South” come out of hidingor will they choose to “go West” and ignore their responsibilities ? The answer must be forthcoming soon: ROBB BURLAQE $27,000, in reply to -a question asking what amount of damages, if any, would compensate the plaintiff “for the injuries, if any, received by him.” The jury were even instructed to “answer in dollars and cents or none, as the case may be.” There was a sharp controversy over whether Van Zandt had gotten any injuries, and to the average logician or grammarian, the form of the question put to the jury pointedly . required the finding of damages, only if there had been injury, and instead did not require the jury to give money, even if it found injury to have been sustained. hen Judge Calvert wrote on the case, did he accept the view that the question of amount for injuries “if any” to be answered some “or none” gave the jury the gut question, and that by answering it the/ jury necessarily found Van Zandt kad been hurt ? ‘He did not. He applied the Bumblesque conception of juries, and held that the jury. should have been asked a separate question first, of whether or not. Van Zandt had been hurt. Now just what must a judge think of the jury system, who would suppose that a jury which found $27,000 for injuries would have answered “no injury” , to a separate question, had it been submitted ? Particularly when they had been required to answer the question asked by finding an amount or “None” for the injuries “if any.” Only the beadle, the undertaker, and a Texas court would hold a jury in such low esteem. The end result, whether intentional or not, to fracture the questions to invite conflict. It is not to be assumed, even by Mr. Bumble, that the jury to which Van Zandt’s case was tried would have answered a separate question that Van Zandt had not been injured, and then have found damages to the extent of $27,000 for injuries that did not exist. At least, this could not be assumed unless a court had asked the jury over 200 questions, as has been done, and it had become so confused that it did not know what it was doing. But even in the ordeal of repetitious questions that a jury has to answer, no jury has ever done what Calvert J. assumed would have been done if the Van Zandt jury had been asked directly if he had been injured, and then asked another question as to how much : namely, found that Van Zandt was not injured, and then assessed damages in the amount of $27,000 for an injury that it had found did not exist. Really ! This tendency of Judge Calvert to mistrust a jury verdict is a growing trait; one not found in his opinions during his firgt years on the Court. It is one that should not be encouraged by moving him over to the Court’s center seat at the coming election. FRANKLIN JONES Mistrust of the Jury