Johns Hopkins University Press
  • A Hero Forgotten:Gus Garcia and the Litigation of Hernandez v. Texas (1954)

In 1951, in the east end of Jackson County, Texas, if Mexican-American attorney Gus Garcia had attempted to stop by the local restaurant for lunch before his next trial, he would have been greeted with a sign reading "No Mexicans Served."1 When Garcia walked into the Jackson County courtroom to defend his client Pete Hernandez, on trial for the murder of Joe Espinoza, he would have been greeted by a sea of white faces on the jury.2 Finally, should Garcia have needed to use the restroom at the courthouse, there would have been two available; one room unmarked, and the other with two signs above reading "Colored men" and "Hombres Aqui."3

Gustavo 'Gus' Garcia lived amongst and advocated against these pervasive reminders that, to white Texans, Mexican Americans were distinct and decidedly second-class citizens. As a young and promising Mexican-American civil rights attorney, Garcia took it upon himself to challenge these injustices. The talented attorney's trailblazing impact on Mexican-American civil rights deserves wider recognition.4 His dedication to Mexican-American civil rights transformed a local open-and-shut murder case with an unsympathetic plaintiff and factual deficiencies into a brief but national reckoning on Mexican-American civil rights.

A Cantina, A Gun, and An Opportunity

Although Gus Garcia rocketed to national fame during the Hernandez case, he was already a respected San Antonio attorney when Pete Hernandez initially approached him seeking representation.5 By all accounts, Garcia was a prodigy. A native Texan, Garcia was born in Laredo to one of the state's oldest families, which first settled there in 1765.6 Garcia graduated valedictorian of his high school class, going on to study at the [End Page 31] University of Texas at Austin and became the first Mexican-American debate team captain.7 Garcia graduated in 1936, and received his LL.B. at the University of Texas at Austin two years later.8 After graduation, Garcia initially served as an assistant San Antonio city attorney, followed by a stint as an assistant criminal district attorney. When the U.S. entered World War II, Garcia served in the Pacific Theater, earning the rank of First Lieutenant and serving as a Judge Advocate General in Yokohama, Japan.9

After the war, Garcia returned to Texas and began to make a name for himself. He possessed an "awesome eloquence," in both Spanish and English, allowing him to enrapture courtrooms and crowds alike as he simultaneously nurtured a career in the law and speaking on behalf of local Mexican-American candidates for public office.10 Anywhere Garcia went in Texas, the local attorneys and Mexican-American population would praise this "brilliant" young attorney, who possessed "one of the finest legal minds anywhere."11

It was Garcia's work on Delgado v. Bastrop ISD in 1949 that established him as a preeminent Mexican-American civil rights attorney. Delgado was a challenge to Mexican-American school segregation in Texas. The case went before Judge Ben H. Rice on the U.S. District Court for the Western District of Texas. Judge Rice's ruling ordered a permanent injunction from the "segregating of pupils of Mexican or other Latin American dissent in separate schools," as well as in "facilities and services."12 The injunction did allow, however, for separate classes within the same school for first grade students, "solely for instructional purposes," especially if the

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Delgado v. Bastrop ISD (1949) was a successful challenge to Mexican-American school segregation in Texas, although it allowed for some separate classroom instruction. Gustavo "Gus" Garcia (right) made his name litigating that case, along with Hector P. Garcia and Hector de Pena (left and middle).

[End Page 32] student's English was not sufficient.13 A full five years before Brown, Garcia had won a watershed school desegregation victory, chipping away at Texas Mexican-American school segregation.

Hearing of Garcia's reputation as an attorney and champion for his people, the twenty-six-year-old Hernandez sought him out for representation. The facts were not promising. On February 23, 1951, Pete Hernandez was working as a migrant cotton picker in Edna, Texas for Joe Espinoza, a cotton planter.14 At a local cantina that evening, Espinoza and Hernandez got into a heated argument. Hernandez left, went home to retrieve his gun, returned to the cantina, and shot Espinoza point blank outside of the building in front of numerous witnesses.15 Hernandez was indicted on September 20, 1951, by a grand jury with no Mexican-American representation. Eight witnesses testified against Hernandez, swiftly indicting him for murder with "malice aforethought … against the peace and dignity of the state."16

Although the facts of Hernandez' case presented an open-and-shut murder conviction, the mechanics of the trial intrigued Garcia. It was no secret Mexican Americans were treated as a distinct and unequal class in Texas, similar to the treatment at that time of African Americans in the South.17 The Delgado case had been decided just two years prior, and while progressive, still allowed for some separate classroom education. Additionally, six years earlier in a nearby county, a Mexican-American congressional Medal of Honor recipient had been denied service at a local restaurant on account of his Mexican heritage.18

Given these instances of overt discrimination and a preliminary investigation into the history of jury composition in the region, Garcia knew he had "an excellent opportunity to make a test case," for the exclusion of Mexican Americans from juries.19 Hernandez could not afford to pay Garcia's costs for his trial, let alone for an appeal with possible national reach. Garcia took the case pro bono.20 Numerous times Garcia expressed his preference to "soak in the applause" rather than "make a fat legal fee."21

Initial Proceedings

Discussing his strategy, Garcia recalled in a memoir that it was necessary "to lay the proper predicate," by preserving all possible lines of argument and introducing supporting evidence for the appellate record.22 To do so, he prepared a series of motions to quash the indictment and a motion to quash the jury panel on Fourteenth Amendment grounds.

The Supreme Court's jury selection precedents applying the Fourteenth and Fifteenth Amendments were a mixed bag. In Neal v. Delaware (1880), the Court ruled the Fourteenth and Fifteenth Amendments invalidated a provision in the Delaware constitution that limited jury service to 'white' males, but these amendments did not require people of color to serve on any given jury.23

Eighteen years later, however, the Court swerved in Williams v. Mississippi (1898). There, the justices unanimously held Mississippi's requirements to be a grand or petit juror, which included many hallmarks of race-based voter disenfranchisement such as literacy tests and poll taxes, did not violate the Fourteenth Amendment.24 The Court determined the laws "did not on their face discriminate between the races, and it has not been shown that their actual administration was evil, only that evil was possible under them."25 Despite holding twelve years prior in Yick Wo v. Hopkins that the potential for racial discrimination under a law may be enough to invalidate the law, the Court in Williams distinguished away the case stating that Yick Wo involved the administration of laws "so exclusively against a particular class of persons," that no matter how "fair on its face" the law appeared, it's application rendered it unconstitutional.26 [End Page 33]

In Strauder v. Virginia (1879), the Supreme Court held it was a violation of the Equal Protection Clause to bar individuals from serving on grand or petit juries on account of the individual's race or previous condition of servitude.27 A half century later, in Norris v. Alabama (1935), the Court held that systemic exclusion of African Americans from jury service on account of being treated as a distinct class violated equal protection, a rule that came to be called the 'Rule of Exclusion'.28 Garcia hoped to expand and apply these precedents in the context of Latin American jury exclusion, relying on clear evidence of unequal treatment on the basis of national origin and the creation of a subjugated and distinct Latin American class.

On October 4, 1951, Garcia filed his motion to quash the indictment. In it, he outlined five justifications: first, in the "selection of the Grand Jury Commissioners," who in turn chose the jury members, "defendant was … denied the equal protection of the law," under the Fourteenth Amendment; second, the defendant was deprived of his equal protection rights "in the selection of the Grand Jurors who returned this Indictment"; third, there were persons, especially of Mexican-American dissent, on the tax and poll rolls "who are qualified for Jury Commission and Grand Jury service"; fourth, approximately twenty-five percent of Jackson County's population was of Mexican Dissent and "considered as members of a separate race" by the people of Jackson County; and fifth, that the defendant had not had an opportunity to raise his constitutional rights "prior to the Commission of the alleged offense averred in this indictment."29

On the same day, Garcia filed a motion to quash the jury panel. In the motion, Garcia pushed his key narrative: that persons of Mexican heritage were treated as a distinct class in Jackson County: Mexican-American citizens in Jackson were eligible to serve on juries, and despite their eligibility were "systematically, intentionally, and deliberately" prevented from serving.30 To support these

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Gus Garcia (pictured in 1952) was by all accounts brilliant, charismatic and eloquent. Born in Laredo, he became a preeminent Mexican-American civil rights lawyer.

[End Page 34] contentions, Garcia contended that people of Mexican-American origin were explicitly prevented from serving on juries, treated as a distinct class in society, and the defendant had not yet been able to challenge these violations of his Fourteenth Amendment rights.31

These petitions served more to lay the appellate groundwork than in a feasible way to overturn the indictment. Despite this, Garcia was disheartened to see that no one "on [their] side," such as local Mexican Americans or League of United Latin American Citizens (LULAC) leaders, or even anyone "mildly sympathetic," was present at the hearing for these motions.32 Garcia learned posthearing that"' Mexicans don't attend court," in the area, and even more problematically, Hernandez had killed a "well liked and respected" local figure.33 Killing a fellow Mexican American would have made it difficult to win Hernandez' murder trial, even with Mexican Americans on the jury.

Choosing such an unsympathetic plaintiff placed the larger test case at risk. If Garcia appealed to the Supreme Court, it was entirely possible Hernandez would draw criticism from the various Mexican-American populations across the Southwest. Many portions of the Mexican-American population could potentially object to having their race represented by a man who had killed his own people in a national conversation on the qualification of Mexican-Americans to sit on juries.

Establishing the Record

Despite a discouraging turnout in the courtroom, Garcia was determined to make the most of his hearing and hammer home the "three essential elements" to a claim of systematic jury service exclusion: No one of Mexican-American dissent had served on a Jackson County jury in the last 25 years, there were qualified Mexican Americans living in Jackson County, and "discrimination and segregation" were commonplace in the county.34

Garcia called on several prominent local officials, the first of which was Jackson County court clerk Gena Lee Lawrence, to corroborate the allegation presented in his motions. During Garcia's direct examination of Lawrence, he asked her if she could recall in her fifteen years of service ever seeing a Mexican American serve on a jury commission, grand jury, or venire. She answered, "I don't think so; I don't recall there ever was."35 Further, Garcia asked that Lawrence be given the chance later to go over her records to ensure his claim that no Mexican-American had served on a Jackson County jury in over 25 years "is not contradicted."

Next, Garcia asked Lawrence if people of Mexican dissent in the area were commonly referred to as "Mexican" or "Latin Americans" while people of other national origins were referred to as "white," to which Lawrence responded, "we all understand that the Latin Americans are considered white."36 Further, when asked if people of Mexican heritage were denied service at restaurants in the area, Ms. Lawrence answered "no, sir."37

Wayne Hartman, the District Attorney for the twenty-fourth judicial district of Texas, conducted cross-examination for the state.38 Lawrence answered affirmatively that she could recall no one of Mexican-American heritage "on name alone," serving on a jury, but that there could have been people with Mexican blood who nonetheless served.39 On re-direct, Garcia was able to mitigate some of the damage from Lawrence's testimony. Garcia asked her if she had heard "people say 'Mexican' and 'white man' in contrast," to which she answered "yes, sir."40 Additionally, Garcia asked if Lawrence could recall any person in Jackson County who was of Mexican heritage but had an Anglo name. Lawrence replied, "I don't recall any."41

The next defense witness was Claudius Branch, a Jackson County tax collector and assessor. On direct examination, Garcia attempted to establish the Mexican population in Jackson County, and their ability to fulfill [End Page 35] the property and tax requirements to vote. Branch testified that the total Jackson County population was "something like 18,000," with "around 15 per cent [sic]" being of Mexican descent. Further, after affirming that he was familiar with the county requirements for serving on any kind of jury, Branch testified that in 1951 "there [were] persons with Spanish names" eligible for service. Garcia tried to go for the knockout blow, asking Branch if since coming to the position in 1946 he had ever known of a "Spanish named person," serving on a jury. Branch evasively replied "I have not had any reason to check it."42

What emerged from this hearing was a mixed record. It was clear discrimination existed against Mexican Americans in Jackson County, and that there was a noticeable dearth of Latino names on juries in the County. However, there was not unquestionable evidence the jury had struck Mexican Americans solely on account of their race. This relatively weak record would prove to be a sticking point for Supreme Court clerks and justices alike on appeal.

Unsurprisingly, Judge Frank M. Martin of the 24th Judicial District of Texas promptly overruled Garcia's motion.43 Accordingly, Garcia attempted to file a final application for suspended sentence on October 8, as "all trial lawyers with one eye cocked on the appellate court … are wont to do."44 This too was rejected, and the trial proceeded on October 8.

Hernandez' trial was a quick affair. It began promptly at 9 am on October 8, with the clerk instructing a special venire of 130 men to gather at the courthouse at 10 am.45 Voir dire examination of the jurors began at 1:30 pm, and was concluded by 5 pm the next day, ultimately requiring "twelve talesman" (additional jurors) to complete the jury panel.46 Garcia filed another motion to quash the entire jury panel, including the use of talesmen.47 Both motions were promptly rejected by Judge Martin. The presentation of evidence began on October 11, and the jury

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Gus Garcia, Peter Hernandez and John J. Herrera on the courthouse steps in 1953. Hernandez was a Mexican-American migrant cotton picker who shot a man point blank in front of several witnesses in Edna, Texas. Herrera, a member of the League of United Latin American Citizens, took on the case with Garcia after Hernandez was tried by an all-white jury.

received the case at 4:30pm that afternoon. After three and a half hours of deliberation, the jury returned the verdict: guilty "of murder with malice aforethought," with a sentence of life imprisonment.48

That same evening, Garcia filed a motion for new trial, arguing that the verdict was against the law, and against the evidence. The motion was later amended on December 15, 1951, attaching the initial motions to quash the jury panel and indictment.49 Judge Martin promptly denied the motion, but granted permission to appeal to the Court of Criminal Appeals for the State of Texas in Austin.50

The Court of Last Resort

Garcia and his team prepared briefs and argument at the state appeals court.51 'Carlitos' Cadena, a law professor at St. Mary's School of Law and John J. Herrera, both members of the League of United Latin American Citizens, had joined Garcia's team). Although the transcript of the appellate argument has not been preserved, on June 18, 1952, Judge Lloyd W. Davidson issued the opinion for the Texas Court of Criminal Appeals. The [End Page 36] opinion lists only Davidson as an author, but said the opinion was "approved by the court."52

Judge Davidson traced the history of the Equal Protection Clause under the Fourteenth Amendment from its ratification. He discussed the Slaughter-House Cases (1873) and Norris v. Alabama (1935), which held that the systematic exclusion of African American from jury service was unconstitutional. He concluded that "so far as the question of discrimination in the organization of juries in state courts is concerned," the Fourteenth Amendment "contemplated and recognized only two classes." Falling under the amendment's protection: whites and African Americans.53 Further, under Sanchez v. State (1951),54 Mexicans were considered part of the white race, and so far as the Texas Court of Criminal Appeals had "been advised," "no member of Mexican nationality challenges that statement," except of course for Garcia and his legal team.55 Davidson concluded by recognizing that Mexicans as a special class "within the white race," would violate equal protection principles as it would "extend special privileges not accorded to all others of that class similarly situated."56 With Hernandez' appeal to state court denied, and the Texas appellate court being the court of last resort in Texas for criminal cases, the stage was set for a Supreme Court challenge.

The Supreme Court

On losing their appeal at the Texas Court of Criminal Appeals, Garcia and his team seriously debated appealing to the United States Supreme Court. Garcia had diligently filed a motion for rehearing to preserve his right to appeal, but whether the team would now follow through was an open question.57 Despite taking the case specifically to serve as a test vehicle, Garcia had "little hope" their petition would be chosen out of the "hundreds" submitted, and the funds to even file a petition were extremely limited.58 After many discussions with other local civil rights attorneys and "harboring many misgivings," Garcia filed a petition for certiorari on January 19, 1953, the "last day allowable."59 The petition had to be typewritten, as there was "no money" to afford printing services.60

An Unconvincing Start

Hernandez's petition arrived while Chief Justice Fred M. Vinson was still alive—he would die suddenly of a heart attack in August. His chief clerk, James C.N. Paul, wrote the first memo on the case. A 1951 graduate of the University of Pennsylvania Law School, Paul began clerking for Vinson after graduation.61 Paul's memo immediately pointed out an unanticipated hurdle for Garcia and his legal team. Although they had in fact filed on the last day, the petition was not "received" by the Supreme Court until January 20, and not filed by the Court until January 21, two full days after the petition window had expired.62

However, luck and precedent were on Hernandez' side. Paul pointed out that the Clerk of Court's office was closed on January 20 for Inauguration Day. Thus, the petition was allowable as it had arrived on a federal holiday.63 But, there was yet another hurdle: the typewritten nature of the petition and record. Paul relayed to the chief justice that "neither a motion nor an affidavit [had] yet been submitted asking permission to proceed on typewritten papers." Paul additionally noted that Garcia had not yet responded to the Clerk of Court's letter "calling attention" to the defect.64

Willing to set these procedural deficiencies aside, Paul's attitude towards the case's merits seemed lukewarm at best. In his memo, Paul outlined the basic details of the proceedings below, chiefly that Hernandez was a U.S. citizen of Mexican descent, had been convicted of murder with a sentence of life imprisonment, the conviction had been [End Page 37]

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Chief Justice Earl Warren announced the Hernandez decision on May 3, 1954, two weeks before Brown v. Board of Education. Above is his draft that was circulated to Justice Tom C. Clark.

upheld on appeal, and petitioner was arguing an equal protection violation given that Mexican-Americans were regarded in Texas as a "distinct race" and thus denying jury service based on their race violated their constitutional rights.

Paul also reviewed the appellate court's reasoning, particularly its reliance on a "two classes" theory of equal protection.65 Paul argued that the lower court's "reasoning … if not its conclusion, [was] open to doubt." He wrote the Fourteenth Amendment did not require Mexican-Americans on the panel when a Mexican-American was on trial, but it did "protect 'Mexicans' as a class from unreasonable discrimination," given the amendment was not "limited to just Negro[e]s."66 However, Paul had reservations about the strength of the record. Specifically, given the only evidence presented was the absence of Mexican sounding names from the jury rolls, the testimony of the jury commissioners who swore they "simply made their selection from a taxpayer list," with no instructions given to discriminate, seemed plausible.67

Paul did not advocate for granting certiorari outright; rather, he recommended the state be given a chance to file a brief for the case. He suggested before "disposing of the petition," the court should give the state a chance to respond.68 Chief Justice Vinson appears to have agreed, and someone penciled in the margins of Paul's memorandum "Held Response." Allowing the state to file a response pushed deliberation to next Term and inadvertently set the case on a path for reconsideration under new leadership and new clerks.

The New Chief

In September 1953, shortly before the start of the Term, Chief Justice Vinson died suddenly of a heart attack.69 Given the timing of his death and his position on the Court, there was an immediate scramble to find a suitable replacement. Earl Warren was nominated on September 20, 1953, as a recess appointment and soon after began work as chief justice.70

As a former governor of California, a state with a significant Mexican-American [End Page 38] population, Warren was uniquely suited for his first major case on the Court. Moreover, Warren had been governor during the 1947 Mendez v. Westminster case in California. In Westminster, the Ninth Circuit unanimously upheld the lower court's ruling that Mexican-American segregation in schools violated the Fourteenth Amendment.71 Following the decision, Governor Warren went further and repealed all remaining school segregation laws in the state.72 In Warren, the Court gained a justice both sensitive to and supportive of Garcia's aims.

As Warren settled into his new role, his new clerks, including Paul, who stayed over a second Term, were busy catching him up to speed on the upcoming Term's docket before the Court's October 5 Conference. One new clerk was Richard J. Flynn.73 A 1953 graduate of Northwestern University School of Law, Flynn was initially accepted as a clerk for Chief Justice Vinson but was reassigned to Warren upon his death. Flynn wrote his own memo on Hernandez in preparation for the October 5 Conference. It began with a brief recitation of the lower court proceedings, outlining the basic facts of the case and the Fourteenth Amendment claims. Specifically, Flynn observed that while the Supreme Court had previously held the Texas method of using jury commissioners was "fair on its face," Garcia was challenging "the administration of the law."74

On the constitutional question, Flynn argued that the Texas Appellate Court's assertion that the Fourteenth Amendment "recognized only two classes," was "fallacious."75 If Mexican Americans were discriminated against "as a class," they are "entitled" to Fourteenth Amendment protection.76 Flynn then recounted the evidence from Garcia's pre-trial hearings. The record showed "a separate school had existed," "there was some exclusion from public places," and the toilets in the courtroom were segregated.77 Flynn argued "the record [could] be read to support" a finding that Mexicans were treated as a separate class in Jackson County, and thus subject to Fourteenth Amendment protection.78 Finally, Flynn, like Paul, noted the procedural errors, chiefly the filing date which the State of Texas challenged in its brief, and the typed nature of the petition. However, unless "barred by failure to conform to the rules," Flynn argued certiorari should be granted.79

Finally, Justice William O. Douglas had his clerk, James F. Crafts, prepare a short memorandum in preparation for the October 5 Conference. A native of Rochester NY, Crafts attended Harvard University, graduating magna cum laude in 1950, before receiving his JD from Stanford University in 1953.80 Crafts' memo took the most vehement stand against the Texas appellate court ruling, reflecting the fire of his boss's own opinions. Crafts initially addressed the procedural deficiencies but waved them off as things that "can probably be gotten around."81

Further, Crafts agreed the state had "brashly stipulated" that no one with a Mexican name has served on a jury in the county for twenty-five years. With those facts, had "the petitioner been a Negro, summary reversal would be justified." Crafts concluded by stating it was "not necessary," to currently consider the "tortured reasoning," the Texas court relied on, it was sufficient that the question presented was "substantial" and worthy of granting certiorari.

Though all three memos differed in their tones and zeal, two of the three outright advocated for granting certiorari, and Paul's advocated first for more briefing from the state of Texas. All three memos concluded that Texas's two-class interpretation of the Fourteenth Amendment was incorrect. Interestingly, despite having his chief clerk prepare a certiorari memo, Chief Justice Warren took no part in the "consideration or decision" to grant certiorari, most likely because of his recent arrival on the Court, and that this was a carry-over case from the previous Term.82 [End Page 39] On October 5, every justice except Stanley F. Reed agreed with the certiorari memos and voted to hear the hand-typed Mexican-American civil rights case.83

Acceptance and Raising Funds

On October 12, 1954, Columbus Day in the United States, but "El Dia de la Raza" in Mexico and Latin America, Garcia found out his petition had been accepted.84 Although Garcia was elated, the notification came with a $900 fee to cover requisite court costs.85 Thankfully, the local branch of the League of United Latin American Citizens (LULAC), the leading national Latin American civil rights advocacy organization, was able to cover them. "In violation of established procedure," the local San Antonio Council No. 2 LULAC division provided $900 from their scholarship fund to cover the court costs of litigation.86

Given the paucity of funds at Garcia's disposal, voluntary donations were as essential to the case as the legal team's arguments. Garcia utilized his veteran and local community connections to collect "$3,000 all told for all purposes," from various G.I. Forums, LULAC divisions, private donations, and the Texas Good Relations Association.87 Garcia and his team had a shoe-string budget to cover all legal fees, transportation, living expenses, and any other costs of litigation.88 Somewhat resentfully, Garcia noted the NAACP and Thurgood Marshall were working with sums of $45,000-$100,000 per case.89 A search of the NAACP files did not reveal any communication or solicitation from Garcia and his team on the Hernandez case.

Despite their tight budget, Garcia, along with his co-counsel, travelled to Washington, determined to emerge victorious. Appearing with Garcia as co-counsel were Carlos Cadena and John Herrera. Cadena was, like

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The American GI Forum, a congressionally chartered Hispanic veterans and civil rights group, provided crucial support for the case. Carlos Cadena is at center; Garcia is second from right with his hand on James De Anda's shoulder.

[End Page 40] Garcia, a respected Texas civil rights attorney who held a professorship at St. Mary's University School of Law. In 1965 he was appointed to the Texas Fourth Court of Appeals and in 1977 became the first Mexican American to become chief justice of the court.90 Herrera served as a national president for LULAC and earned renown as a civil rights attorney for facilitating cooperation with the American G.I. Forum, and filing the first discrimination complaint in Texas with the President's Employment Practice Commission."91

In pursuing the case, Garcia and his team made history as the first all-Mexican-American attorneys to argue before the Supreme Court in representing a defendant.92 Additionally, Hernandez v. Texas marked the first time a "case involving the civil rights of Latin Americans" came before the Supreme Court.93 Thus, the legal team itself as well as its interpretation of the Fourteenth Amendment represented monumental historical firsts.

To Classify by "Blondes and Brunettes, or Redheads and Others"94

On December 31, 1953, the State of Texas filed its merits brief in opposition. Texas initially attacked the date of the filing. The brief argued that with a late filing and no extension requested, the petitioner should have been denied jurisdiction.95

Attacking the petitioner's substantive argument, the brief argued that Garcia "far overestimates the evidence in this case." Texas's brief stated that over "some seventy-nine pages of testimony," and no less than six witnesses for the petitioner, much of the testimony was about "school procedure," and every jury commissioner had testified under oath that "no discrimination was allowed in selecting the jury lists."96 This, Texas argued, proved "full performance of all legal duties," on Texas' part.97

Next, the brief emphasized that Hernandez was a white man, and to "divide the white race into small segments," such as by hair color or religion would "[encumb[er] the jury system as to utterly ruin it." The state then quoted the criminal appeals court opinion in its entirety, taking up well over half of its short fifteen-page brief.98 The state's brief thus amounted to a refutation of the hearing testimony, and a word-for-word reiteration of the lower court opinion. Only one Supreme Court precedent was cited, Brown v. Allen (1953), which according to the state suggested a hesitation to "upset state procedure," but in the distinct context of a habeas petition."99 Texas's brief was altogether unremarkable. If Texas were to win, it would have to overcome not only its weak brief, but the talented Garcia in oral argument. Garcia's merits brief was more than three times in length, with twenty-three pages alone devoted to a legal analysis of the Fourteenth Amendment Claim. As opposed to Texas' brief, it was all argument and did not include extensive quotation of the lower court opinion. Garcia's brief presented two arguments. First, the "intentional, arbitrary, and systematic exclusion of persons of Mexican-dissent" from juries is a denial of their liberty, due process, and equal protection rights.100 Second, where "over a period of twenty-five years, no persons of Mexican descent have been called for jury service," and there were qualified candidates available, the Texas Court of Appeals' failure to "apply the 'Rule of Exclusion'" from Norris v. Alabama resulted in a deprival of due process and equal protection.101

Garcia attacked the Texas Court of Appeals' untenable position. Throughout Texas, "persons of Mexican dissent occupy a definitive minority status."102 Despite this, the Texas Court of Appeals maintained that Mexican Americans are members of the white race and to protect their right to sit on juries would be to extend "special privileges" not granted to other members of the class, making Mexican Americans a "special class within the white race."103 Garcia succinctly pointed out [End Page 41] the logical fallacy in this argument: "the court is apparently under the impression that, in Jackson County, Texas, only Negroes are allowed to serve as jurors."104

Garcia's argument section concluded by pointing out the absurdity of setting up a double standard in applying the Norris v. Alabama rule of exclusion. The Texas Court of Appeals decision made it so there is "one rule of evidence for Negroes, and a different rule for persons of Mexican dissent."105 "Given the same facts, but changing the color of the accused," Garcia argued the state of Texas requires Mexican Americans to show "express discrimination," and "bear this more onerous burden of proof solely and simply because they are not Negroes."106

"That Wetback from Tennessee"107

Oral argument on January 11, 1954, began one hour earlier than expected, causing the news reporters to miss most of the "historic opening argument" By Carlos Cadena, Garcia's co-counsel.108 Regrettably, oral arguments at the Supreme Court were not recorded until the October 1954 Term, just one year after Hernandez and Brown. Instead, journalists selected snippets to relay to the public in the newspapers. El Paso Times reporter Sarah McClendon did manage to capture parts of Cadena's argument. Cadena told the justices it was "ironic of Texas courts," to deny Fourteenth Amendment rights to Latins by reminding Latins they "are white."109 Although "glad to be considered so legally," Cadena forcefully iterated that Latins wished to "be so considered legally and socially."110

By the time Garcia stepped to the podium to argue, the press was present. Felix Frankfurter led off the questioning, asking Garcia if Latins had been living in Jackson County "for some time without being called for jury service."111 Garcia answered in the affirmative. Tom C. Clark, the Supreme Court's native Texan who "displayed some familiarity" with the Texas system of jury selection, seemed at times to attack Garcia's position.112 Clark pointed out that according to the evidence only six per cent of the Latin population "were freeholders and eligible for jury duty."113 Boldly, Garcia retorted: "Evidently the Justice is not aware that in Texas the law does not require a man to hold a poll tax to serve on the petit jury."114

Building on Cadena's earlier comments expressing a desire for social and legal assimilation, Warren asked Garcia if "assimilation into the Texas population would eventually come about." Garcia answered he was hopeful one day it would, but "two or three" counties in Texas were still "plenty of trouble." Garcia pressed further, telling Warren if the Court could "just give the Mexicans a chance" to be on juries, they "will not dodge jury service as so many white people do."115

Focusing on the legal argument, the Dallas Morning News reported that Garcia pointed out the double standard the Texas Court of Appeals had applied to Mexican Americans. Citing Norris v. Alabama, Garcia observed that African Americans could make a case of discrimination if they were "available and qualified," for jury service while the Texas Appellate Court had "chided" Mexican Americans as seeking "special privileges" in making the same argument.116 Instead, the Texas courts would prefer that Mexican-Americans trust the impartiality of citizens who "do not want to go to school," with or give "service in public places," to Mexican Americans.117

Garcia's most famous quip came when the Court asked the attorney if Latins in Jackson County were "newcomers" and possessed the requisite command of English to serve in a meaningful capacity.118 Incensed, Garcia retorted "Your Honor, my people were in Texas 100 years before Sam Houston arrived," adding, Sam Houston was just "that wetback from Tennessee."119

"Against the array of Latin talent," Texas sent assistant attorney general Horace Wimberley to represent the state.120 Wimberley [End Page 42]

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A unanimous Supreme Court held that the Fourteenth Amendment protects Mexican Americans as a "special class" separate from whites. Unlike whites, they faced pernicious discrimination, as evidenced by this restaurant sign in Dimmitt, Texas, 1949.

said those in Texas "regret the situation, but deny there was any discrimination against the Latin-American race." Wimberly emphasized that the Mexican American-white relations were "better than it was some time ago," and everyone was "friendly," and wanted to "treat each other right." Throughout his argument, Wimberly emphasized that Texas's jury system did not "inten[d] to be unfair or hurt" anyone and jury commissioners always selected jurors with "regard to individual qualifications," not racial motive.121

Despite voting to deny certiorari, Justice Stanley Reed was skeptical of Texas' argument. Reed asked Wimberley if over a period of ten years, a commissioner had "carefully considered qualifications," but still no "Mexican or negro" was chosen, would Wimberley "consider that there was discrimination?" Wimberley conceded "there might be an inference of discrimination," but quickly added there "may be an explanation … maybe the jury commissioners thought they couldn't understand the case as well." Reed quickly shut down Wimberley's explanation, stating there was "no such explanation in the record." Warren then asked Wimberley to explain how there could be no discrimination, yet this exclusion could "continue for 25 years." Wimberley could only respond "that question was not asked."122

On rebuttal, Garcia observed that even the state of Texas itself, in arguing there was no discrimination, had referred to a distinct Latin American "race," separate from the white race and bearing badges of inequality.123 Garcia concluded with a witticism that left the Courtroom erupting in laughter. Garcia pointed out that Mexicans accounted for fourteen percent of the population but had not served on a jury in twenty-five years. With those numbers, there "must be a 'white man' in the woodshed somewhere."124

According to contemporaneous and posthumous accounts, Chief Justice Earl Warren was so impressed with Garcia's oral argument and asked so many questions of Garcia that he allowed the young attorney an extra fifteen minutes of time.125 As El Paso Times reporter Sarah McClendon stated, regardless of the outcome, to have "reached this far on a typewritten petition and small contributions," was a feat to be proud of in of itself.126

The Decision

On January 16, five days after Garcia and his team's impressive oral argument, the justices discussed Hernandez.127 In Conference, the chief justice spoke first. Warren thought the petitioner had "clearly made out a case" that evidence of Mexican-American discrimination was a part of "community life" in Jackson County.128 He cast his vote to reverse. Justices Hugo L. Black, Stanley F. Reed, Felix Frankfurter, Harold H. Burton, and William O. Douglas all agreed with the chief justice, also voting to reverse. Burton noted the justices were particularly taken by the fact that no Mexican American had served on a jury "for 25 years."129 Initially, Justice Robert H. Jackson also voted to reverse, agreeing that the evidence of national [End Page 43] origin discrimination was clear here and the right of Mexican Americans to serve on juries was distinct from the proportional representation issue.130

The justices stood seven in favor of reversal when Clark spoke. The Court's native Texan, Clark possessed first-hand knowledge of the conditions Mexican Americans lived in Jackson County. On December 13, 1952, during the initial Conference on the Brown v. Board of Education case, Clark had spoken to the issue of Mexican Americans in Texas, painting the "Mexican problem," as "more serious. Far more retarded, "than even as pervasive an issue as segregation in the South.131 A mere month before the Hernandez Conference in January 1953, the justices again discussed Brown and Clark raised the Mexican-American issue. He said that in several predominantly Mexican-American counties, especially near San Antonio, a mere two hours away from Jackson County by car, "there is trouble with Mexicans and whites." Further, in the context of the Brown case, Clark explicitly stated "I don't like the system of segregation and will vote to abolish it."132

Despite this strong anti-segregation stance and repeated declarations that Mexican American segregation was of far greater concern during both the Brown Conferences, Clark was the first justice to favor affirming the Texas Court of Criminal Appeals' decision. For Clark, the issue came down to the evidence in the record and concerns over federalism. Clark felt, up to this point, this Court had gone "pretty far on inferences," and the evidence presented of no "Mexican" names on the jury lists was some of the "flimsiest proof" he had seen. Additionally, he thought this court was "causing a lot of trouble to the states." It's not clear if Clark meant "trouble" in the context of this specific case, or the entire term given that Brown would come down in a matter of months, but his comments suggested the latter. The Justice's concerns exemplified how Hernandez would be wedded to Brown, and the Court's self-awareness over the expenditure of its political capital.

Echoing Clark's concerns, Sherman Minton spoke next. He thought there "was no proof here," and mere estimations of the number of Mexicans eligible for jury service in the county were insufficient.133 With Minton's comments, each justice had spoken once. However, Jackson spoke up again, and appears to have switched his position. Now tentatively arguing for affirmation, Jackson cited concerns about the "weak proof" on record.134 However, by the end of the discussion, both Douglas and Burton recorded in their notes that the vote was 7–2 in favor of reversal; Jackson had switched back to his initial position and confirmed this in his own docket book.135

By the end of the Conference, the justices had divided into two camps. Although all agreed that the situation in Texas was untenable and the denial of Mexican Americans to serve on juries was a Fourteenth Amendment violation, Clark, Minton, and for a brief period Jackson voiced concerns over deciding a case with implications on state power so close to Brown, and on what the three justices considered weak evidence. Ultimately, only Clark and Minton voted to affirm.136 With a seven-person majority, Warren assigned the majority opinion to himself.

Warren entrusted clerk Richard Flynn, who had prepared one of the initial memoranda on the case, with drafting the opinion. Warren's other two clerks had also attended law school at Northwestern; there were no Texans or Mexican Americans to receive the assignment. Flynn's final rough draft was completed sometime around April 19.137 Warren largely approved of the draft, with most suggestions made by the chief justice and fellow clerks being grammatical and slight edits to the case citations.138 Flynn incorporated Warren's edits into his draft, promptly had a revised version completed by April 27, [End Page 44] and sent the new version to the printers the next day for circulation to the other justices.

Two days later, approval for Warren's opinion started to arrive at his chambers. Reed's memo on April 29 praised the draft as "excellent," and Burton's, arriving the same day, thought it a "clear and simple statement."139 Jackson, initially skeptical in Conference, sent a short memo stating, "I agree."140 The biggest surprise was a handwritten note dated April 30 from Clark to Warren. Clark relayed that although he and Minton still believed the facts section as written "set up a 'straw man'," the two had "decided not to dissent on a factual basis."141 Warren had "covered the law in the field so well" that Clark and Minton were compelled to "go along."142 For Warren, this was the best possible turn of events. Now, he spoke for a unanimous Court moving to strike down a dual-race interpretation of the Fourteenth Amendment.

Frankfurter's Suggestions: A Plea for Strategic Victory

On reading the chief justice's initial draft, Frankfurter wrote a two-page response memorandum to the April 27 draft outlining his "two worries" and circulated the response to Warren on April 29.143 Frankfurter wrote he was "of course … for your result," but prior "to the disposition of the Segregation Cases," caution was perhaps needed. Frankfurter's first concern was with Warren's discussion of the scope of the Fourteenth Amendment. Frankfurter questioned the sageness of a "generalized pronouncement," that the Fourteenth Amendment was not limited to a "two-class theory," across all contexts, particularly in light of the upcoming Brown decision.144

Even though Brown is remembered today as establishing the Fourteenth Amendment as an instrument for outlawing segregation, Warren's draft in Hernandez was prepared to in some sense go even further. Warren's draft read the Fourteenth Amendment to apply to all individuals, not just white and Black plaintiffs, and not limited to the context of juries. Nothing in Frankfurter's memorandum indicates he was necessarily against this interpretation, more so the timing of issuing such a sweeping change to Fourteenth Amendment precedent.145

Frankfurter's second point was based on similar questions of caution and spoke to Clark and Minton's concerns. Frankfurter asked Warren if it were even necessary to reach a pronouncement establishing "the existence of two definable groupings in the community based on differences of race, color, or national origin reflected generally in the social institutions of a community." Frankfurter pointed out that the instances of discrimination Warren identified in his draft opinion "were not revealed in the record and indeed were not practiced."146

Although the evidence Warren cited clearly showed that Mexican Americans generally were treated as a subordinated class in Texas, the specific examples cited were not present in Hernandez' case. The Court was willing to take a strong stance against jury segregation, but, considering the other cases that Term, Frankfurter thought it was wise to "cover no more ground than is needed to establish an unequivocally inadmissible discrimination."147

Frankfurter agreed that the "fact that Mexicans are set apart in the community tends to show they are in an inferior position in the eyes of non-Mexicans." However, he thought the "systematic exclusion of all members of a particular group, otherwise qualified," was sufficient to forcefully demonstrate an Equal Protection Clause violation. The impact of Hernandez was to be measured by its temporal relation to Brown.

Frankfurter's letter repeatedly referred to the "disposition of the Segregation Cases," and advocated for a narrow ruling in Hernandez considering those cases.148 However, [End Page 45] Frankfurter's caution does not equate to a lack of conviction in achieving equality under the Fourteenth Amendment. Rather, Frankfurter's caution reflected what he believed to be the best chance for an accepted and authoritative decision for the school segregation cases.

The question of school desegregation, its constitutionality, and how to draft a convincing opinion on the issue weighed heavily on Frankfurter. During the October 1952 Term, Frankfurter assigned his clerk Alexander Bickel to "read every word in the Congressional Globe," which resulted in a sixty-page report on the legislative history of the Fourteenth Amendment.149 Frankfurter reported the legislative history was "in a word, inconclusive," and that the "39th Congress … neither manifested that the Amendment outlawed segregation in the public schools … nor that it manifested the opposite."150

Given this inconclusiveness, Frankfurter realized an opinion outlawing segregation must be well-grounded and legally convincing to avoid as much as possible accusations that the Court was not giving "a Constitutional stamp to [its member's] merely personal attitudes towards these issues."151 Thus, to Frankfurter, to issue two major reinterpretations of the Fourteenth Amendment related to race and nationality within weeks of each other posed a threat to his ultimate goals of legitimate and accepted opinions on school desegregation and equal protection. Given this, Frankfurter advocated for a limited reach in Hernandez, to preserve as much institutional legitimacy as possible for the school segregations cases.152

Warren immediately set upon re-drafting the opinion. Warren re-drafted the bold and concise "no 'two-class' theory of the Fourteenth Amendment," language for what ultimately appears in the final draft.153 Warren's edited language still broadened the Fourteenth Amendment's reach to cover Mexican Americans and preserves the 'two class theory' phrase but couches the language in more ambiguous and verbose terms.154 Warren choose to disregard Frankfurter's second suggestion, and left in the opinion the section discussing how there was clear evidence that Mexican Americans were treated as a separate and distinct group in Jackson County.

"It Taxes our Credulity"

On May 3, 1954, the justices assembled, taking their seats on the bench in front of a bustling Courtroom. Chief Justice Warren pulled out a prepared memo and announced the Hernandez decision from the bench, a practice reserved for cases of particular significance. Warren's memorandum, with "announcement from the bench" penciled in across the top, outlined the facts of the case, and presented the main question at issue: were people of Mexican dissent "singled out" on account of their race, and if so, were they "systematically excluded" from serving on juries.155 Further, Warren emphasized that "community prejudices are not static," and the petitioner's burden was to show community prejudice served to bar Latins from jury service.

Warren reiterated that the petitioners had carried their burden and summarized the evidence presented to the Court, including that citizens frequently distinguished between Latins and whites, the schools had been segregated until very recently, a restaurant carried a 'No Mexicans' sign, and the toilets in the courtroom were segregated.156 The Dallas Morning News reported that Warren said "it taxes our credulity to say that mere chance resulted in," there being no Mexicans on a jury out of the "6,000 jurors called in the last 25 years."157 Warren concluded by stating "the result bespeaks discrimination, whether or not it was a conscious decision on the part of any independent jury commissioner."158 The Court announced its reversal of the lower court decision and adjourned for a two-week recess before reconvening to announce the segregation cases.159 [End Page 46]

News coverage of Hernandez and personal letters to Warren quickly recognized the opinion as significant. Senator Dennis Chavez of New Mexico praised the opinion as one of "far reaching importance," and requested a personal copy from Warren for "study and information."160 The Corpus Christi Times lead with the headline "Supreme Court Upsets Texas Murder Conviction."161 The article noted that the Court had not yet announced its "awaited decision on school segregation," but banned jury exclusion on the basis of "ancestry or national origin," when a "distinct class is demonstrated." The article identified a potential point of future litigation, as Warren did not define what a nondiscriminatory "reasonable classification," could be.162 The Dallas Morning News ran a similar article on May 4, 1954, reporting Jackson County had violated the Fourteenth Amendment in "habitually excluding persons of Latin-American descent."163

These articles reflected an issue Garcia and other Mexican-American civil rights attorneys would face in the years after Hernandez. Each article recognized a newly identified interpretation of the Fourteenth Amendment but reported the case as largely a one-off event and opportunity for Hernandez to receive a retrial. Any subsequent press coverage and momentum Garcia would have to fight for himself.

Aftermath: "Our Guinea Pig"

Though Garcia secured Mexican Americans the right to fair jury trial, freedom was not in store for Hernandez. He received a new trial in 1955 and was again found guilty, but this time given a sentence of only twenty years, as opposed to his initial life sentence.164 Much to Garcia's credit, even after this defeat, Garcia advocated for his client and continued to help reduce Hernandez' prison sentence. As late as 1960, Garcia was still writing letters to the Board of Pardons and Paroles in Austin asking to discuss "personally" Hernandez' freedom in Austin. Garcia felt "conscience-stricken" that the "boy" who in serving as the team's "guinea pig," was willing to risk the death penalty to gain a vindication of rights for his fellow Mexican Americans had been languishing in state prison "continuously since August 1951."165

Garcia's request to meet in person was granted, and the attorney traveled to Austin to plead Hernandez' case. The Board of Pardons and Paroles objected to Hernandez' prison record. The Board reported it was "very bad in recent years," and Hernandez had not even attended church, a "simple way of getting additional points," toward parole.166 Despite these reservations, it seems Garcia's meeting was a success. On June 8, 1960, he informed Hernandez that the Austin Board of Pardon and Paroles was recommending him for parole.167 In a similar letter to close friends and co-counsels in the case, Garcia felt his conscience was finally "clear in this matter."168 After several months of pestering, including "letters, long distance calls, and two personal visits in Austin," Garcia had gained a victory for his client yet again.169

In Garcia's letter to Hernandez, Gus wrote some parting advice. Garcia asked Hernandez to not "think of the past," because most people "will be ready to show you kindness and understanding if you only give them a chance." Unfortunately, Hernandez' fate is unknown after his release on parole.170 Hopefully, Hernandez heeded Garcia's advice. Regardless, Garcia had ensured his client, who had risked his life on appeal, was now at least able to re-enter society.

A 'White' Man's Death

By June 1960, Garcia had only four years left to live. He had always possessed a "legal brain of the very first order," but in his later years his abilities were increasingly limited by [End Page 47] his alcohol consumption.171 His close friend and Hernandez co-counsel Carlos Cadena described Garcia as acutely aware of his demons, but also steadfast in his conviction that if "the Mexican people wanted his leadership, they would have to put up with his … idiosyncrasies."172

It's not clear what event, if any, tipped the scales for Garcia and eventually caused him to lose his battle with alcohol addiction. However, in 1960, Garcia inquired with Adolfo Chavez about obtaining a divorce from his wife either in Europe or Mexico.173 Additionally, in 1960 and 1961, Garcia passed "several bad checks," causing several San Antonio lawyers to petition for Garcia's disbarment.174 Though not disbarred, Garcia's license was suspended for a year, but he was able to regain it and attempt to press forward.175

By January 28, 1963, Gus Garcia found himself in the Waco, Texas VA Hospital for alcoholism treatment. Writing his old friend, co-counsel, and LULAC member Johnny Herrera, Garcia thanked him for lending him money, allowing Garcia to pay his "poll tax and get a haircut."176 Garcia's condition was taking a significant mental toll on the once promising and lauded attorney. Garcia felt he had reached the "final turning point in [his] life." By that point, his only available options were "the right road … the gutter or a suicide."177 Despite his severe financial state, Garcia refused to ask Herrera for more money, asking only that his friend come down and lend Garcia his "guidance and counseling."178

By July, Garcia's condition had still not improved sufficiently for a discharge and Herrera was concerned that "all indications" pointed towards Garcia remaining hospitalized "the rest of [that] year."179 It is unclear if Herrera informed Garcia that his wife Eleanor had contacted Herrera about her estranged husband. In her letter, Eleanor describes how Garcia hadn't "been a father," to his daughters in "years," and that on discharge if Garcia attempted to return home, she "wouldn't hesitate a second to call the police."180 Herrera responded that Gus knew it was "all over between you two," but even an occasional letter "would be of the greatest aid," in making a full physical and professional comeback.181

Tragically, Garcia's comeback was not to be. In June 1964, Garcia, by then penniless, asked Raul Acevado, a local shop keeper, if he could sleep for a night on a bench in Acevado's office in the San Antonio farmer's market.182 After breakfast on June 3, Garcia told Acevado he was having a hard time breathing, and shortly thereafter collapsed on the floor, his body in the throes of a seizure.183 Ravaged by alcoholism, Garcia died later that afternoon; he was just forty-eight. The coroner listed his cause of death as "fatty liver with liver failure."184 The champion of Mexican American rights was delt one final indignity: on Garcia's death certificate under 'Race or Color,' the coroner wrote simply "white."

Hernandez' Initial Reception

Despite a favorable Supreme Court ruling, it remained to be seen how Hernandez would impact lower courts decisions. In 1956, a plaintiff filed a motion to re-hear their conviction for marijuana possession to the Texas Court of Criminal Appeals, claiming "Latin Americans as a class had been discriminated against in the selection of the jury commission."185 Specifically relying on Hernandez, the plaintiff argued that in light of the discrimination, the verdict was invalid.

The court denied the motion stating the plaintiff had not met his burden and proven that "Latin Americans constituted a separate class," in the specific county in question.186 Thus while Texas courts routinely recognized the principles that Hernandez stood for, the watershed case could and was distinguished away depending on whether the [End Page 48] judge determined the Latin population in a particular county to be truly distinct.187

Why Brown, Why not Hernandez?

A March 12, 1974, San Antonio Express News article by Jose Chacon referred to Garcia as a "premature hero."188 In the article, the author credited Garcia with a historic victory, but faulted the attorney for not "communicating the significance of the decision to his people," on returning from Washington.189 The article also described Hernandez v. Texas' temporal proximity to Brown as a positive, implying Brown should have spurred a civil rights revolution on the African and Mexican American fronts. Unfortunately, Garcia did not "receive the support of his own people," and the cause of Mexican American equality was largely a localized effort, left to individual attorneys such as Garcia and Herrera rather than a nationwide organized movement.190 Chacon also cites Thurgood Marshall's appointment to the Supreme Court in 1967 and Garcia's descent into obscurity as further proof that Hernandez was failed by a lack of community support. This is a leap too far. Marshall was an establishment appellate NAACP attorney and a repeat player at the Supreme Court. Garcia was a local hero, but only argued at the nation's highest court once. Marshall's appointment was much more a product of his appellate attorney status, involvement with the Kennedy and Nixon administrations, and the civil rights movement's focus on African American status.

The failure of Hernandez to spark a nationwide movement cannot be tied to any one specific factor. The utilization of a test case where the plaintiff had clearly committed a capital offense would not garner a lot of public sympathy. The case's proximity to Brown overshadowed Hernandez, as any national conversation on Mexican American rights was halted two weeks later when the Court announced Brown. Additionally, Garcia and Herrera did not have access to a well-funded, national organization like the NAACP to bring more test cases in federal court, relying instead on local LULAC chapters as they tried to apply Hernandez' promise to the state level. Finally, perhaps Garcia's descent into obscurity cost the cause its most convincing and dedicated voice, a loss it couldn't recover from.

Regardless of the ultimate reasons for Hernandez' failure to permanently enter the national conversation, what's beyond question is Garcia's contribution to the case. Through ingenuity, dedication, and peerless advocacy Garcia turned an open and shut murder case in a small Texas town into the country's first national legal reckoning on Mexican American rights. No matter how short lived the discussion, it was unquestionably thanks to Gus.

Gabriel Valle

Gabriel A. Valle is a J.D. candidate at the Georgetown University Law Center.

ENDNOTES

1. Transcript of Hearing on Motion to Quash Jury Panel and Motion to Quash the Indictment, Supreme Court Record, at 38.

2. Hernandez v. Texas, 347 U.S. 475, 482 (1954).

3. Ibid. at fn 5 (1954) ('Hombres Aqui' translates to 'Men Here').

4. See generally, Lupe S. Salinas, Gus Garcia and Thurgood Marshall: Two Legal Giants Fighting for Justice, 28 T. Marshall L. Rev. 145 (2003); Kevin R. Johnson, Hernandez v. Texas: Legacies of Justice and Injustice, 25 Chicano-Latino L. Rev. 153 (2005).

5. "International Assembly to Hear S.A. Attorney," San Antonio Express, Sunday Jan. 27, 1952, Gus Garcia papers, Box 1, F10.

6. Ibid.

7. Sam Kindrick, "Story of Gus Garcia Deserves Telling, Retelling," as published in The San Antonio Express News, June 1970, Gus Garcia Papers, Box 1, File 10, https://utexas.app.box.com/s/7a2hvphsks7nhxzyhtmb5ngxvyl75qso.

8. Cynthia Orozco, Garcia, Gustavo C. (1915–1964), Texas State Historical Association: Handbook of Texas, (Dec. 04, 2021), https://www.tshaonline.org/handbook/entries/garcia-gustavo-c.

9. "International Assembly to Hear S.A. Attorney."

10. "Seizure Kills Gus Garcia," San Antonio News, June 4, 1964, Gus Garcia Papers, Box 1, Folder 10.

11. "Gus Garcia: Legal Genius," The Houston Post, June 1971, Garcia Papers, Box 1, Folder 10.

12. Delgado v Bastrop Indep. Sch. Dist., Civil Action No. 388, 2 (W.D. Tx. 1949), https://texashistory.unt.edu/ark:/67531/metapth248861/citation/#top/.

13. Ibid. at 2–3.

14. Hernandez v. Texas, The Lone Star and The Supreme Court (2020), https://www.lonestarhighcourt.org/hernandez-v-texas-1954; Charge of the Court, Supreme Court Record, at 12-13.

15. Hernandez v Texas, The Lone Star and The Supreme Court (2020), https://www.lonestarhighcourt.org/hernandez-v-texas-1954.

16. State of Texas v. Hernandez, Supreme Court Record, at 1.

17. "Seizure Kills Gus Garcia," (One of Garcia's most noteworthy cases up to that point had been the 'Three Rivers Case,' where Garcia won the right for a decorated Mexican American WW2 service man to be buried in Arlington). https://utexas.app.box.com/s/7a2hvphsks7nhxzyhtmb5ngxvyl75qso.

18. "A Cotton Picker Finds Justice—An Informal Report to the People," [Hereinafter Cotton Picker] at 1, Garcia Papers. Box 1, Folder 4. https://utexas.app.box.com/s/ohp5aqfp0gwzte7kb44leun3t47rkuis. https://perma.cc/9FCZ-BAEP.

19. Ibid. at 2.

20. Id. at 3.

21. "Top of the News," San Antonio Express, June 14, 1964, Garcia Papers, Box 1, Folder 10, https://utexas.app.box.com/s/7a2hvphsks7nhxzyhtmb5ngxvyl75qso.

22. "Cotton Picker" at 2.

23. Neal v. Delaware, 103 U.S. 370 (1880),

24. Williams v. Mississippi, 170 U.S. 213 (1898).

25. Ibid. at 225

26. Id. Yick Wo v. Hopkins, 118 U.S. 356 (1886).

27. Strauder v. West Virginia, 100 U.S. 303 (1879).

28. Norris v. Alabama, 294 U.S. 587 (1935).

29. Motion to Quash Indictment October 4, 1951, Supreme Court Record, at 2–3.

30. Ibid. at 3.

31. Id. at 3–4.

32. Cotton Picker at 2.

33. Ibid.

34. Cotton Picker at 4.

35. Transcript of Motion to Quash Jury Panel and Motion to Quash the Indictment, Supreme Court Record, at 27.

36. Ibid. at 28.

37. Id.

39. Motion to Quash Indictment October 4, 1951, Supreme Court Record, at at 30.

40. Ibid. at 32.

41. Id. 32–33.

42. Id. at 34–35.

43. Motion to Quash Jury Panel, Supreme Court Record, at 5, 15–16; Cotton Picker at fn 2, Box 1, Folder 4 (In his personal account, Garcia remembers Judge Martin as a "former ace prosecutor himself," before taking the bench).

44. Cotton Picker at 3.

45. Charge of the Court, Supreme Court Record, at 15.

46. Id. at 16.

47. Transcript of Hearing on Motion to Quash the Indictment, Motion to Quash Jury Panel, and Motion to Quash the Talesmen After Special Venire was Exhausted, Supreme Court Record, at 82.

48. Verdict of the Jury, Supreme Court Record, at 16.

49. Motion for New Trial, Supreme Court Record, at 19–20.

50. Ibid. at 22.

51. Cotton Picker, at 4

52. Hernandez v. State of Texas in the Court of Criminal Appeals of Texas, Supreme Court Record, at 98.

53. Ibid. at 95-97.

54. Sanchez v. State, 479 S.W. 2d 933.

55. Hernandez v. State of Texas in the Court of Criminal Appeals of Texas, Supreme Court Record, at 95.

56. Ibid.

57. Cotton Picker at 4–5.

58. Ibid. at 5.

59. Id.

60. Id.

61. Sally A. Downey, James C N Paul, 85, Helped Found First Law School in Ethiopia, The Philadelphia Inquirer (Sept. 22, 2011), https://www.inquirer.com/philly/obituaries/20110922_James_C_N__Paul__85__helped_found_first_law_school_in_Ethiopia.html.

62. James C N Paul to Chief Justice Fred Vinson, "Memoranda for Certiorari," at 1, Earl Warren Papers, Library of Congress, Box 154, Hernandez v Texas Folder.

63. Ibid. (citing Nat'l. Bank v Lamb, 337 US 38, 40 (1950)) (In his autobiography of the case, Garcia makes no mention of just how close the petition came to being thrown out on procedural grounds. It's possible that Garcia never learned of the filing delay, or he simply did not want to admit to a calculation error in his autobiographical account).

64. Ibid.

65. Id. at 3.

66. Id.

67. Id. at 4.

68. Id. at 2.

69. Robert H Jackson Center, James C N Paul, C.J. Fred Vinson's Law Clerk 51 and 52 Terms, Youtube (2007), JCNP Youtube (2007), https://www.youtube.com/watch?v=axuPWWTBs4o ("He was really in very bad physical shape, didn't get enough exercise on the court, that was plain. Probably put down a little too much alcohol in relation to his lack of exercise. Smoked steadily … uh … with a little spittoon like Sherman Minton.").

70. Earl Warren, The Supreme Court Historical Society, https://supremecourthistory.org/history-of-the-court-timeline-of-the-justices-earl-warren-1953-1969/ (Interestingly, Warren was not officially confirmed by the senate until March 1, 1954, a fact almost unimaginable given today's confirmation process.)

71. Westminster School Dist. Of Orange County v. Mendez, 161 F.2d 774 (9th Cir. 1947).

72. Charles Wollenberg, Mendez v. Westminster: Race, Nationality and Segregation in California Schools, 53 Cal. Historic Quarterly 317, 329 (Winter 1974).

74. Richard Flynn to Chief Justice Earl Warren, "Memoranda for Certiorari," at 1, Earl Warren Papers, Library of Congress, Box 154, Hernandez v Texas Folder.

75. Ibid. at 2

76. Citing to Traux v Reich, Takahaski v Fish and Game Commission, and Strauder v West Virginia. Traux was a 1915 labor law case concerning an Austrian immigrant who was dismissed under an Arizona state law requiring eighty percent of work staff to be natives. The case held that the right to work could not be refused solely on account of race. Takahaski held a California statute ban on issuing fishing licenses to aliens, specifically Japanese immigrants, an unconstitutional violation of the Equal Protection Clause. Strauder v West Virginia held a state law allowing only white individuals to serve on juries was a violation of the Equal Protection Clause.

77. Richard Flynn to Chief Justice Earl Warren, "Memoranda for Certiorari," at at 3.

78. Ibid.

79. Id. at 4.

80. James F Crafts, Sfgate Powered by Legacy (Aug. 19, 2017), https://www.legacy.com/us/obituaries/sfgate/name/james-crafts-obituary?id=8049672.

81. James F. Crafts to Justice William Douglas, "Memoranda for Certiorari," at 1, Sept. 20, 1953, William Douglas Papers, Library of Congress, Box 1147, Argued Cases No. 400–49 Oct. Term '53.

82. Motion for Rehearing Overruled Without Written Opinion, Supreme Court Record, at 111.

83. Conference Certiorari Vote Sheet for October 12, 1953, William Douglas Papers, Box 1146, Misc. Docket for October 53.

84. Cotton Picker at 5. ("El Dia de la Raza" translates loosely to "The day of the Race" a phrase which generally conveys a pride in Latin heritage.)

85. Ibid. at 5.

86. Id. at 5–6.

87. Id. at 5.

88. Id. at 7.

89. Id. at 7.

90. Carlos Cadena, Texas Law Tarlton Law Library Jamail Center for Legal Research, (Nov. 3, 2021), https://tarlton.law.utexas.edu/first-year-societies/carlos-cadena.

91. Cotton Picker at 1.

92. While it was long believed that Garcia and his team were the first Latin-American attorneys to represent a defendant before the Supreme Court, Professor Michael A. Olivas argues the first Mexican-American attorney to argue before the Court was Manuel Ruiz Jr. in the 1952 case Buck v. California. See https://news-taco.com/2011/03/31/the-first-latina-latino-lawyersto-argue-before-supreme-court/. There are likely some Puerto Rican lawyers who argued cases before the Supreme Court in the early twentieth century, but research needs to be done to give them their due.

93. John J. Herrera to J.C. Machuca, Typed Letter, January 19, 1954, The Portal to Texas History.

94. Brief in Opposition, Supreme Court Record, at 4.

95. Id. at 2.

96. Id. at 3.

97. Id.

98. Id. at 4–14.

99. Id. at 5.

100. Brief for Petitioner, Supreme Court Record, at 4.

101. Ibid. at 18.

102. Id. at 13.

103. Id. at 14.

104. Id. at 15.

105. Id. at 23.

106. Id. at 23–24.

107. Jury Bias Put to High Court, San antonio light, Jan 12, 1954, LULAC Hernandez v Texas Electronic Collection, http://www.jfklulac.com/gus-garcia---hernandez-vs-texas.html.

108. Cotton Picker at 8.

109. Brief for Petitioner, Supreme Court Record, at 112.

110. Ibid.

111. Id.

112. A West Texan in Washington, ElPaso Times, Jan. 16, 1954, LULAC papers, http://www.jfklulac.com/gus-garcia---hernandez-vs-texas.html.

113. Ibid. at con't. from page 1.

114. Id.

115. Id.

116. Ruth Schumm, High Court Hears Discrimination Case, Dallas Morning News, Jan. 12, 1954, at 10.

117. Id.

118. Jury Bias Put to High Court.

119. Ibid.

120. Id.

121. Id.

122. Id.

123. A West Texan in Washington, El Paso Times, Jan. 16, 1954, LULAC papers, http://www.jfklulac.com/gus-garcia---hernandez-vs-texas.html.

124. Ibid.

125. Schumm, High Court Hears Discrimination Case.

126. A West Texan in Washington, ElPaso Times

127. Conference Notes for January 15, 1953, Conference, William O. Douglas Papers, Library of Congress, Box 1147, Argued Cases No. 400–49 Oct. Term '53 Folder (Translation by both Prof. Brad Snyder and Gabriel Valle).

128. Ibid.

129. Conference Notes for January 15, 1953 Conference, Harold H. Burton, Library of Congress, Box 238, Conference Notes October Term 1953 Folder.

130. Ibid.

131. Conference Notes for December 13, 1952 Conference, William O. Douglas Papers, Box 1147, Folder (Translation done between Prof. Snyder and Gabriel Valle).

132. Conference Notes for January 15, 1953 Conference, William O. Douglas Papers, Box 1149, Segregation Cases Folder; Conference Notes for January 15, 1953 Conference, Harold H. Burton Papers, Box 238, 239, 244, Conference Notes October Term 1953 Folder.

133. Conference Notes for January 15, 1953 Conference, William O. Douglas Papers, Box 1149, Segregation Cases Folder.

134. Id.

135. Conference Docket Book Jan. 18, 1954, William Douglas Papers, Box 1146, Administrative Docket Folder; Conference Notes for Hernandez v Texas Jan. 18, 1954, Harold Burton Papers, Library of Congress, Box 238, Conference Notes October Term 1953 Folder; Record of Vote for Hernandez v Texas, Robert Jackson Papers, Library of Congress, Box 148, Folder 4.

136. Conference Notes for Hernandez v Texas, Burton Papers; Conference Vote Sheet Jan. 18, 1954, William Douglas Papers.

137. Chief Justice Warren to the Court, Memorandum by the Chief Justice," Apr.19, 1954, Earl Warren Papers, Box 570, Hernandez v Texas Folder.

138. Richard Flynn to Earl Warren, "Dick Flynn's First Draft With Retyped Pages," Apr. 28, 1954, Earl Warren Papers, Box 570, Hernandez v Texas Folder.

139. Stanley Reed to Earl Warren, Note, April 29, 1954, Warren Papers, Box 570, Hernandez v Texas Folder; Harold Burton to Earl Warren, Note, April 29, 1954, Warren Papers, Box 570, Hernandez v Texas Folder.

140. Robert Jackson to Earl Warren, Note, Apr. 30, 1954, Warren Papers, Box 570, Hernandez v Texas Folder.

141. Tom Clark to Earl Warren, Note, April 30, 1954, Warren Papers, Box 570, Hernandez v Texas Folder; Harold Burton to Earl Warren, Note, April 30, 1954, Warren Papers, Box 570, Hernandez v Texas Folder.

142. Tom Clark to Earl Warren, Note, April 30, 1954, Warren Papers, Box 570, Hernandez v Texas Folder.

143. Felix Frankfurter to Earl Warren, Memorandum, April 29, 1954, at 1, Warren Papers, Box 570, Hernandez v Texas Folder.

144. Ibid.

145. Id. ("Is it not highly undesirable to make generalized pronouncements of that nature prior to the disposition of the Segregation cases? I would delete the entire paragraph.")

146. Id.

147. Id. at 1–2.

148. Id.

149. Felix Frankfurter Memoranda to The Court, Dec. 3, 1953, William Douglas Papers, Box 1149, October Term, 1953 Folder.

150. Id.

151. Felix Frankfurter Memoranda to Chief Justice Earl Warren, September 26, 1952, Earl Warren Papers, Box 571, Opinions of the Chief Justice—Segregation State Cases Folder. Earl Warren papers—memo box 571.

152. For a complete and compelling discussion about Frankfurter's role in the school desegregation cases, see Brad Snyder, Democratic Justice: Felix Frankfurter, The Supreme Court, and the Making of the Liberal Establishment 570–597 (2022).

153. Earl Warren, Final Draft of Hernandez v Texas, May 1, 1954, Warren Papers, Box 540, Hernandez v Texas Folder.

154. Hernandez v Texas, 347, US 475, 478 (1954) (As edited, the passage reads: "The Fourteenth Amendment is not directed solely against discrimination due to a 'two class theory' that is based on differences between 'white' and Negro.")

155. Earl Warren, "Announcement From the Bench," n.d., Warren Papers, Box 570, Hernandez v Texas Folder.

156. Ibid.

157. Dallas morning news, May 4, 1954, 10.

158. Ibid.

159. "Can't bar Mexicans Off Juries, court decides," May 3, 1954, LULAC Papers, http://www.jfklulac.com/gus-garcia---hernandez-vs-texas.html.

160. Letter from Sen. Dennis Chavez to Earl Warren, May 6, 1954, Earl Warren Papers, Box 570, Hernandez v Texas Folder; Senator Dennis Chavez, https://www.senate.gov/senators/FeaturedBios/Featured_Bio_Chavez.htm (Senator Chavez served 27 years as a senator and was a graduate of the Georgetown University Law Center).

161. Corpus Christi Times, May 4, 1954, 2.

162. Id.

163. Dallas morning news, May 4, 1954, 10.

164. Letter from Garcia to the Honorable Jack Ross, Bd. Of Pardons and Paroles, Feb. 12, 1960, LULAC Papers.

165. Ibid.

166. Gus Garcia to Pete Hernandez, Letter, June 8, 1960, LULAC Papers.

167. Ibid.

168. Gus Garcia to Hector P. Garcia, George Sanchez, J.J. Herrera, Frank Jasso, James de Anda, Letter, June 8, 1960, LULAC Papers.

169. Ibid.

170. Pete Hernandez, Ancestry, https://www.ancestrylibrary.com/discoveryui-content/view/202133:4876?tid=&pid=&queryId=7c0aae14268d722646d46a5fc2cd87d9&_phsrc=FxA20&_phstart=successSource (A search of Ancestry.com revealed records for a "Pete Hernandez" who passed away in June 1966 in Jackson County, Texas. This date matches up with his release, however with no age at death provided and no record of his life it is impossible to tell for certain.).

171. "Gus Garcia … Once Brilliant Career Ends," Anonymous, Texas Newspaper, The Portal to Texas History, https://texashistory.unt.edu/ark:/67531/metapth248886/m1/1/.

172. Ibid.

173. Id.

174. Cynthia E. Orozco, Gustavo Garcia, Texas State Historical Association (Oct. 27, 2020), https://www.tshaonline.org/handbook/entries/garcia-gustavo-c.

175. Seizure Kills Gus Garcia, san antonio news, June 4,1954, Gus Garcia Papers, Box 1, Folder 10.

176. Gus Garcia to "Johnny" Herrera, Handwritten Letter, Jan. 28, 1963, LULAC Papers.

177. Ibid.,2–3.

178. Id., 2.

179. John J. Herrera to Eleanor R. Garcia, Typed Letter, July 27, 1963, The Portal to Texas History.

180. Eleanor R. Garcia to John J. Herrera, Typed Letter, November 13, 1963, The Portal to Texas History.

181. Ibid.

182. Seizure Kills Gus Garcia, san antonio news, June 4,1954, Gus Garcia Papers, Box 1, Folder 10.

183. "Ex-Champion of Latins Dead," June 4, 1954, Gus Garcia Files, Folder 1, Box 10.

184. Death Certificate for Gustavo Garcia, June 3, 1954, Gus Garcia Files, Box 1, Folder 11.

185. Ramirez v. State, 163 Tex. Crim. 491 (1956).

186. Ibid. at 494.

187. See Walker v. State, 162 Tex. Crim. 408, 416 (1955) ("It must be remembered that the guarantee of the Fourteenth Amendment against discrimination in the organization of a grand jury is not limited or restricted to members of the different races but extends to and includes all classes and groups which, by reason of some special condition or fact situation, are established in the particular county or community.); see also Gonzales v. State March 22, 1967 (Ct. of Criminal Appeals Tx) (Held that Latin American population in Wichita County Texas was not sufficiently distinct to fall under Hernandez).

188. san antonio news, March 12, 1974, Gus Garcia Papers, Box 1, Folder 11.

189. Ibid. at 2

190. Id.

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