Thompson v. Sheppard Brief for Respondents in Opposition

    IN THE

Supreme Court of tfje ®mteb States.
OCTOBER TERM, 1974

No. 74-914

BELLE FEW THOMPSON, et ah,

Petitioners,

v.

MAX SHEPPARD, JR., et al,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

H. H. PERRY, JR.
JESSE W. WALTERS

Perry, Walters, Lippitt & Custer 
Post Office Box 527 
Albany, Georgia 31702

Counsel of Record

Washington, D.C. •  CLB PUBLISHERS' •  LAW PRINTING CO. •  (2021 393-0625



TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT  ............................ 1
OPINIONS BELOW  .................................................. 2

QUESTIONS PRESENTED ........................................................  2
STATEMENT OF THE CASE .......... .........................................  2
STATEMENT OF THE FACTS ..................................................  4

REASONS FOR DENYING THE WRIT ...................................10
I. THE FIFTH CIRCUIT COURT OF

APPEALS WAS CORRECT IN FINDING 
THAT THE APRIL, 1973 JURY LISTS OF 
DOUGHERTY COUNTY, GEORGIA WERE 
CONSTITUTIONALLY COMPOSED ....................  10
A. The Source From Which A Jury Is 

Chosen Must Represent A Fair Cross-
Section Of The Com m unity........................... .. 10

B. The Requirement Of A Fair Cross- 
Section Of The Community Does Not 
Demand Proportionate Representation
Of All Identifiable Elements ............... .................. 13

C. Reasonable Representation Of Identifi­
able Elements Is Required ............................  15

II. THE PRESENT METHOD OF JURY 
SELECTION DOES NOT OPERATE TO 
EXCLUDE IDENTIFIABLE ELEMENTS OF
THE COMMUNITY ....................    17

A. The Source Of The Jury Lists Was Not
Tainted .........................   17

B. The Jury List Was Not Tainted .................................19
III. THE DUTY OF THE JURY COMMIS­

SIONERS WAS FULFILLED ................................   21
Conclusion ................................................   23

(i)



Page
TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S. 625 (1972) .................. 10, 16
Brown v. Allen, 344 U.S. 443 (1953) ..........................15, 16, 18

Carter v. Jury Commission Of Greene County, 396
U.S. 320 (1970) ................................................ 10,14,15,20

Glasser v. United States, 315 U.S. 60 (1942) . .................. .. . 15
Mobley v. United States, 379 F.2d 768 (5th Cir.

1967)   14,18,20,22

Peters v. Kiff, 407 U.S. 493 (1972) ................................... .. 11
Rabinowitz v. United States, 366 F.2d 34 (5th Cir.

1966)    14,18,20

Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972) . . . .  .14, 17, 18

Strauder v. West Virginia, 100 U.S. 303 (1880) ...............  10, 13
Swain v. Alabama, 380 U.S. 202 (1 9 6 5 ) ...............  10, 11, 12, 13

Taylor v. Louisiana, 43 LW 4167 (1975) . . .  10, 11, 12, 14, 15,
16, 18, 20

Thomas v. Texas, 212 U.S. 278 (1909) ......................... 11
Turner v. Fouche, 396 U.S. 346 (1970) ..............................10, 15
United States v. Grey, 355 F.Supp. 529 (W.D. Okla.

1973)   22
Virginia v. Rives, 100 U.S. 313 (1879) .............................. .11, 13
Wright v. Smith, 474 F.2d 349 (5th Cir. 1973) ....................... 22

Statutes

Georgia Code §59-106 (1972 Supp.) ....................................... .21
Georgia Code §59-112 (1972 Supp.) .................    19

(ii)



IN THE

Supreme Court of tljt ®mteb States.
OCTOBER TERM, 1974

No. 74-914

BELLE FEW THOMPSON, et al.,

Petitioners,

v.

MAX SHEPPARD, JR., et al,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

PRELIMINARY STATEMENT

The respondents, Max Sheppard, Jr., et al., respect­
fully pray that this Court deny The Petition for a Writ 
of Certiorari to the United States Court of Appeals for



2

the Fifth Circuit, to review the opinions and judge­
ments of that Court entered in this proceeding on 
March 8, 1974 and October 25, 1974.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 
490 F.2d 830. The opinion of the Court of Appeals 
denying rehearing is reported at 502 F.2d 1389. The 
opinion of the District Court of January 12, 1973 is 
not reported, but is included in the Record at page 38. 
The order of the District Court of April 17, 1973, is 
not reported, but is included in the record at page 226.

QUESTION PRESENTED

Whether the present method of jury selection which 
has produced jury lists with substantial representation 
of women and blacks thereon, reasonably representing a 
fair cross-section of the community, operates to exclude 
identifiable elements within the community?

STATEMENT OF THE CASE

This action was brought pursuant to 43 U.S.C. 
§1983, to enjoin the alleged systematic exclusion of 
black and women citizens from service on the grand 
and petit juries of Dougherty County, Georgia. The 
plaintiffs are allegedly certain citizens of Dougherty



3

County, some of whom are allegedly awaiting trial for 
criminal offenses in the Dougherty County Jail' The 
defendants are members of the Jury Commission of 
Dougherty County, the Judge and Clerk of the Superior 
Court of Dougherty County, and various other officials 
allegedly involved in the selection and composition of 
grand and petit jury lists.

This action was filed on November 22, 1972, and a 
hearing was held before Judge Wilbur D. Owens on 
January 12, 1973. The District Court entered a 
preliminary injunction and ordered the Jury Commis­
sioners to compose new grand and petit jury lists for 
Dougherty County. (38)1 The order required them to 
submit these lists, with a written and detailed report of 
their action within ninety (90) days.

The defendants prepared new lists, and on April 3, 
1973, they submitted their reports in compliance with 
the District Court’s order. (42) On April 4, 1973, the 
District Court issued an order to show cause why the 
report of the defendants should not be affirmed.

At the hearing on April 17, 1973, the defendants 
presented the reconstituted grand and petit jury lists to 
the Court. After consideration of the evidence, the 
Court concluded that the petit and grand jury lists were 
recomposed fairly and legally within the standards 
known to that court, and issued an order accordingly. 
(226) To this order a notice of appeal to the Fifth 
Circuit Court of Appeals was filed. (227)

The Court of Appeals affirmed the District Court’s

1 Numerals in parenthesis refer to pages of the Record of the case, 
unless otherwise designated.



4

order approving the reconstituted lists on March 8, 
1974; and on October 25, 1974, denied the request of 
petitioners for rehearing and rehearing en banc. The 
petitioners filed their petition for a writ of certiorari 
with this Court on January 23, 1975.

STATEMENT OF FACTS

A. Composition Of Jury Commissioners Of 
Dougherty County, Georgia.

As required by law, §59-101 of the Code of Georgia, 
the Board of Jury Commissioners of Dougherty County, 
Georgia is composed of six (6) persons. Four of this 
number are white males; one is a black male, and one is 
a black female. (75)

B. Racial Composition Of Population Over 21 
Years of Age Of Dougherty County, Georgia.

According to the 1970 census data, the population of 
Dougherty County, Georgia over twenty-one years of 
age was 48,444, consisting of 33,568 white persons and 
14,645 black persons, approximately 70% white and 
30% black. This population was shown to be 
approximately 45% male and 55% female. (40)



5

C, Composition Of The January, 1973 Grand 
and Petit Jury Lists Of Dougherty County, 
Georgia.

The petit jury list of Dougherty County, Georgia, in 
January, 1973, contained 3,221 names, of which there 
were 2,194 white males, 625 white females, 257 black 
males, and 145 black females, — approximately 87% 
white and 13% black, or 76% male and 24% female. 
(39)

The grand jury list of Dougherty County, Georgia, in 
January, 1973, contained 614 names, of which there 
were 462 white males, 86 white females, 49 black 
males, and 17 black females, — approximately 90% white 
and 10% black, or 83% male and 17% female. (39)

D.Method Used To Compile The January, 1973 
Grand And Petit Jury Lists.

The Board of Jury Commissioners of Dougherty 
County utilized the registered voters’ list of Dougherty 
County, Georgia used in the last general election (the 
general election prior to 1972), which list contained 
29,204 names. In a series of some sixty-two (62) 
meetings, the Board of Jury Commissioners considered 
every name on this list, and from the names on the list 
they selected persons (a) who were known by one or 
more of the individual commissioners; (b) who were 
recommended by one or more jury commissioners after 
personal investigation; or (c) who were on the most 
recent preceding jury list. (39)



6

E. Composition Of The April, 1973 Grand And 
Petit Jury List Of Dougherty County, 
Georgia.

There were 2,721 names on the April, 1973 petit 
jury list, consisting of 1,439 white males, 760 white 
females, 250 black males, and 271 black females. 
Percentagewise, the list was approximately 53% white 
male, 28% white female, 9% black male, and 10% black 
female (180); or 19.15% black, 80.75% white, and 
62.10% male and 37.90% female.

The April, 1973 grand jury list of Dougherty County, 
Georgia, consisted of 701 names. Of those 701, there 
were: 392 white males, 194 white females, 59 black 
males, and 56 black females. (185) Percentagewise, the 
list was approximately 53% white male, 28% white 
female, 8% black male, and 8% black female; or 16.3% 
black, 83.7% white, and 64.5% male and 35.5% female.

F. Method Used To Compile The April, 1973 
Grand And Petit Jury Lists.

The Board of Jury Commissioners was advised by the 
Judge of the Superior Court of Dougherty County, 
Georgia, that he desired approximately 3,000 names on 
the petit jury list (168) and approximately 500 names 
on the grand jury list. (185)

With this request from the Judge of the Superior 
Court of Dougherty County, Georgia, the Board of Jury 
Commissioners determined that they would draw every 
fourth (4th) name on the voters’ registration list of 
Dougherty County as used in the November, 1972 
general election; and they had a computer eject every



7

fourth (4th) card of that voters’ registration list. (170) 
In selecting every fourth name on the voters’ 
registration list, the Board of Jury Commissioners did 
not know whether they were securing males, females, 
white, or black persons. (170)

By utilizing this method, the Board of Jury 
Commissioners had a list of 7,308 names. (171) The 
Board of Jury Commissioners then mailed a question­
naire to each of the 7,308 persons (173,174), together 
with a letter of explanation and a self-addressed, 
stamped envelope for use in returning the questionnaire 
to the Board of Jury Commissioners. (173,174)

The returned questionnaires were divided into nine 
(9) categories as follows:

(1) Females not desiring to serve and so 
indicating; (176)

(2) Occupational exemption; (177)
(3) Over age; (177)
(4) Health reasons; (178)
(5) Illiteracy; (178)
(6) Moved or unknown address with the 

questionnaire being returned by the United 
States Post Office; (179)

(7) Students away at college; (179)
(8) Deceased; (180) and
(9) No response to questionnaire. (180)

The names of persons not falling within one of the 
above categories were automatically included on the 
petit jury list of Dougherty County, Georgia (180), 
which in effect made a tenth category into which the 
questionnaries were divided.



8

Of the ten categories listed above, the following is a 
breakdown thereof:

(1) 1,078 females not desiring to serve; (176)
(2) 195 not included because of occupational 

exemptions; (177)
(3) 224 persons 65 years of age or older; (178)
(4) 228 exemptions for health reasons; (178)
(5) 24 exemptions because of illiteracy; (178)
(6) 1,240 questionnaires returned by the 

United States Post Office with notation 
thereon: “Unknown address or moved” ; 
(179)

(7) 102 persons were exempt because they 
were students and away from Dougherty 
County attending college; (179)

(8) Nine of the persons on the list were not 
included because they were dead; (180)

(9) 1,489 persons did not consider jury service 
to be of such importance as to warrant a 
return of the questionnaire; (180) and

(10) The remaining 2,721 names composed the 
petit jury list of Dougherty County as of 
April, 1973.

The percentage breakdown of the petit jury was 
approximately 53% white male, 28% white female, 9% 
black male, and 10% black female. (180) The Board of 
Jury Commissioners had no idea or knowledge of the 
racial or sex composition of the jury until after the jury 
list was completely compiled. (181)

After compiling the petit jury list, the Board of Jury 
Commissioners then compiled the grand jury list of 
Dougherty County, Georgia, which ultimately consisted



9

of 701 names; 392 white males, 194 white females, 59 
black males, and 56 black females. In compiling the 
grand jury list, the Board of Jury Commissioners 
determined that they would not include anyone with 
less than a seventh grade education. (210) In addition, 
the Board of Jury Commissioners, recognizing its duty 
under the law, attempted to determine from the 
information contained on the questionnaire whether or 
not a person was qualified to serve on the grand jury. 
(213) If any one of the six jury commissioners felt that 
a person was qualified to serve as a grand juror, that 
person’s name was included on the grand jury list. 
(218)

The method used by the Board of Jury Commis­
sioners in compiling the January, 1973 jury lists was to 
take the voters’ registration list and consider persons on 
that list known to the jury commissioners, recom­
mended to the jury commissioners, or whose names 
were on the last jury list.

The method used in compiling the April, 1973 jury 
lists of Dougherty County, Georgia was to take every 
fourth name on the voters’ registration list, send 
questionnaires to every fourth person, and place on the 
jury list all those persons returning the questionnaire to 
the Board of Jury Commissioners, unless they were 
otherwise disqualified from serving under the law of the 
State of Georgia. There was no necessity that the Jury 
Commissioners know such person, nor was there any 
knowledge on the part of the Jury Commissioners as to 
the racial identity of such person. The April, 1973 jury 
lists were the result of a random selection procedure.



10

REASONS FOR DENYING THE WRIT

I.

THE FIFTH CIRCUIT COURT OF APPEALS 
WAS CORRECT IN FINDING THAT THE 
A P R I L ,  1973 JURY LISTS OF 
DOUGHERTY COUNTY, GEORGIA WERE 
CONSTITUTIONALLY COMPOSED.

A.The Source From Which A Jury Is Chosen 
Must Represent A Fair Cross-Section Of The 
Community.

The present method of jury selection in Dougherty 
County, Georgia does not operate to exclude any 
identifiable element of the community. The Fifth 
Circuit Court of Appeals was correct in affirming the 
finding of the District Court for the Middle District of 
Georgia, that the present jury lists were constitutionally 
composed, and the Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit 
should be denied.

On innumerable occasions our courts have interpreted 
the Constitution of the United States to prohibit the 
systematic and deliberate exclusion from the jury 
service of any class of persons, whether it be by race, 
creed, sex or national origin. Strauder v. West Virginia, 
100 U.S. 303 (1880); Swain v. Alabama, 380 U.S. 202 
(1965); Carter v. Jury Commission, 396 U.S. 320 
(1970); Turner v. Fouche, 396 U.S. 346 (1970); 
Alexander v. Louisiana, 405 U.S. 625 (1972); Taylor v. 
Louisiana, 43 LW 4167 (1975). Although a defendant 
has no right either to demand that members of his race



11

be included on the grand jury which indicts him, 
Virginia v. Rives, 100 U.S. 313, 25 L.Ed.2d 667 
(1879), or to demand proportionate representation on 
the jury which tries him, Swain v. Alabama, supra, 
Thomas v. Texas, 212 U.S. 278 (1909), Taylor v. 
Louisiana, supra, he can successfully protect their 
exclusion by design or intent. Furthermore, one not a 
member of that excluded class now has standing to 
assert this exclusion as a violation of his own rights. 
Peters v. Kiff, 407 U.S. 493 (1972). in one of its most 
recent decisions, this court has said that “the American 
concept of jury trial contemplates a jury drawn from a 
fair cross-section of the community.” Taylor v. 
Louisiana, 43 LW 4167, 4169 (1975). These principles 
are well settled; such is not at issue in this case. Rather, 
the Court is once again presented with a question 
concerning the application of those principles.

At the initial hearing of this case, the District Court 
decided that the jury lists did not represent a fair 
cross-section of the community. Using the registered 
voter’s list from the November 1972 general election, 
new lists were compiled, pursuant to the Court’s order, 
which increased the representation of women and 
blacks on the respective juries, as follows:

Petit Jury List

January
List

Blacks 12.48% 
Women 24.00%

April Percent
List Increase
19.15% 53.44%
37.90% 57.91%



12

Grand Jury List
January April Percent
List List Increase

Blacks 10.70% 16.30% 52.30%
Women 17.00% 35.66% 109.76%

It is apparent from these figures that substantial 
increases were made in the representation of blacks and 
women on jury lists.

The figures given by petitioner, which supposedly 
portray under-representation, distort and magnify the 
actual representation of the constituent elements, and 
presuppose a requirement that the composition of the 
jury lists should be the same as the composition of 
identifiable elements within the community. Such is not 
the law, Swain v. Alabama, supra, Taylor v. Louisiana, 
supra, but rather that the method chosen to select 
jurors does not operate to exclude elements of society 
from jury service in a systematic manner. A substantial 
precentage of blacks and female persons were added to 
the reconstituted jury lists, increasing their number by 
more than 50% in each case.

These jury lists reasonably reflect the composition of 
the community, with one of every five petit jurors a 
black person, while the census shows that blacks over 
twenty-one represent a little less than one-third of the 
population. Even after reduction for those desiring not 
to serve, women represent better than a third of the 
grand jury list and almost 40% of the petit jury list, 
while they comprise 50% of the population. This is a 
favorable and reasonable comparison, reflecting not a 
deliberate and systematic exclusion of classes, but an



13

inclusion of all groups and classes within our society. 
The law demands as much, and with that standard the 
respondents have complied. The District Court and the 
Court of Appeals were correct in approving the 
reconstituted jury list.

B. The Requirement Of A Fair Cross-Section Of 
The Community Does Not Demand Propor­
tionate Representation Of All Identifiable 
Elements.

In one of the first cases to consider the question of 
the exclusion of blacks from jury service, this Court said 
that purposeful discrimination against Negroes in the 
selection of juries was a violation of the equal 
protection clause. Strauder v. West Virginia, supra. In 
almost the same breath, however, the Court in Virginia 
v. Rives, supra, said that a defendant has no right to 
demand that members of his race be included on the 
grand jury which indicts him.

This Court again reaffirmed the principle that a 
defendant is not entitled to a jury containing members 
of his race almost one hundred years later in Swain v. 
Alabama, supra. However, the Court went a step further 
and said:

“But a defendant in a criminal case is not 
constitutionally entitled to demand a propor­
tionate number of his race on the jury which tries 
him nor on the venire or jury roll from which 
petit jurors are drawn. Virginia v. Rives, 100 U.S. 
313, 322 through 323, 25 L.Ed. 667, 670 through 
671; Gibson v. Mississippi, 162 U.S. 565, 40 L.Ed.



14

1075, 16 S.Ct. 904; Thomas v. Texas, 212 U.S. 
278, 282, 53 L.Ed. 512, 513, 29 Sup. Ct. 393; 
Cassell v. Texas, 339 U.S. 282, 94 L.Ed. 839, 70 
Sup. Ct. 629. Neither the jury roll nor the venire 
need be a perfect mirror of the community or 
accurately reflect the proportionate strength of 
every identifiable group. ‘Obviously the number of 
races and nationalities appearing in the ancestry of 
our citizens would make it impossible to meet a 
requirement of proportional representation. 
Similarly, since there can be no exclusion of 
Negroes as a race, and no discrimination because 
of color, proportional limitation is not permis­
sible.’ Cassell v. Texas, 339 U.S. 282, 286-287, 94 
L.Ed. 839, 70 Sup. Ct. 629 (opinion of Mr. Justice 
Reed announcing judgement).” Swain, supra, page 
766.

This same position has received repeated acceptance in 
later cases. Rabinowitz v. U.S., 366 F.2d 34, 59 (5th 
Cir. 1966)-, Mobley v. U.S., 379 F.2d 768, 772 (5th Cir. 
1967); Carter v. Jury Commission, supra, Smith v. 
Yeager, 465 F.2d 272, 274, (3rd Cir. 1972), cert, 
denied 93 Sup. Ct. 685 (1972). Furthermore, in the 
recent case of Taylor v. Louisiana, supra, Mr. Justice 
White said:

“It should be emphasized that in holding the 
petit juries must be drawn from a source fairly 
representative of the community we impose no 
requirement that petit juries actually chosen must 
mirror the community and reflect the various 
distinctive groups in the population . . . but the 
jury wheels, pools of names, panels or venires from 
which juries are drawn must not systematically 
exclude distinctive groups in the community and 
thereby fail to be reasonably representative 
thereof.” 43 L.W. 4167, at 4172.



15

From a fair reading of the cases above cited, it is 
evident that while the courts interpret the Constitution 
to require that a jury contains a reasonable cross-section 
of the community, they do not require it to be 
proportionately composed of all identifiable groups 
within the community. The thrust of the petitioner’s 
argument is to the effect that the jury lists should be 
composed along strict demographic lines, propor­
tionately reflecting the composition of identifiable 
groups within the community; such is not required by 
the law. A reasonably representative cross-section of the 
community does not require proportionate representa­
tion of elements within that community.

C. Reasonable Representation Of Identifiable 
Elements Is Required.

This court has said on numerous occasions that a 
jury must be a representative cross-section of the 
community. Glasser v. U.S., 315 U.S. 60 (1942); Turner 
v. Fouche, supra; Taylor v. Louisiana, supra. Indeed, 
the Georgia Statute itself requires that the commis­
sioners select a “fairly representative cross-section” of 
the citizens of the county from the registered voters’ 
list.

Neither the Constitution nor the courts require that a 
jury be composed along proportionate or demographic 
lines. What is required, is that the jury reasonably reflect 
a cross-section of the community. Mr. Justice Stewart, 
in writing the majority opinion in Carter v. Jury 
Commission, supra, quoted from Brown v. Allen, 344 
U.S. 443 (1953), when he said:



16

“Our duty to protect the Federal constitutional 
rights of all does not mean we must or should 
impose on states our conception of the proper 
source of jury lists, so long as the source 
reasonably reflect a cross-section of the population 
suitable in character and intelligence for that civic 
duty.” 396 U.S., at 332 through 333.

This same sentence was also used by Mr. Justice 
Douglas in his dissent in Alexander v. Louisiana, supra. 
In fact, Mr. Justice Douglas emphasized the words “so 
long as the source reasonably reflects a cross-section of 
the population”. Similarly, Mr. Justice White in the 
decision of Taylor v. Louisiana, supra, quoted above, 
said that whatever the source of the jury, it must not 
fail to be reasonably representative of the community.

It is obvious from a fair reading of the excerpt from 
Brown v. Allen, as well as that case and the above-cited 
opinions, that the source need not be proportionately 
representative of the community. If the source is not 
proportionately representative, then the result obtained 
from using that source could not be expected to be 
proportionately representative either. What is required is 
a reasonable comparison between the source and the com­
munity, and a reasonable comparison between the jury 
list which is obtained from that source and the commun­
ity. The jury lists presented to the District Court in April 
reflected a reasonable cross-section of the community.



17

II.

THE PRESENT METHOD OF JURY SELEC­
TION DOES NOT OPERATE TO EXCLUDE 
IDENTIFIABLE ELEMENTS OF THE COM­
MUNITY.

A. The Source Of The Jury Lists Was Not 
Tainted.

The jury lists presented to the District Court in 
April, 1973 were the product of an objective system of 
selection, designed to obtain jury lists without the 
intervention of human bias. At no step in the selection 
process did the jury commission inject any personal bias 
in the compilation of the jury lists. The result was 
objectively selected petit and grand jury lists reasonably 
representing a fair cross-section of the community.

The source from which the lists were drawn was not 
influenced by the bias of any commissioner; it was the 
registered voters’ list of the November 1972 general 
election. A computer randomly selected every fourth 
name from that list. The Third Circuit has said in the 
case of Smith v. Yeager, supra, that:

“In the absence of a randomized procedure, 
[the jury commissioner] must conform his method 
of selection to a system that will produce jury lists 
reasonably approximating that cross-section [of the 
community]. When such a cross-section is not 
produced, and the circumstances offer an oppor­
tunity for discrimination, it is then his burden to 
justify his inability to fulfill his duties.” 465 F.2d, 
at 282.



18

The “key-man” system of selection was used in Smith 
v. Yeager and found to be discriminatory in operation 
by the facts presented there. In the instant case 
however, the commissioners began with an unbiased and 
objective source, and then applied a random and 
objective procedure to reduce its size. The resulting 
petit and grand jury lists did not appreciably differ 
from the composition of the 7,308 names selected by 
the computer.

This court has said before, in Brown v. Allen, supra, 
and Taylor v. Louisiana, supra, -  as well as the Fifth 
Circuit Court of Appeals in Rabinowitz v. United 
States, 366 F.2d 34 (5th Cir. 1966) and Mobley v. 
United States, 379 F.2d 768 (5th Cir. 1967) -  that the 
States may prescribe relevant qualifications for their 
jurors, so long as the lists are reasonably representative 
of the community. The use of the voters’ registration 
list as a source for potential jurors does not operate in 
a suspect fashion to exclude interested persons from 
jury service. Rather, the voters’ list includes all citizens 
who are so civic-minded and concerned with the public 
interest as to evidence their desire to participate in the 
most basic feature of our system of government — the 
exercise of their right to choose those who will make 
the laws by which our country functions and which the 
courts interpret. The use of the voters’ list also satisfies 
the requirement of the Georgia statute that the Board 
of Jury Commissioners select “intelligent and upright 
citizens” for jury service, without injecting any human 
bias on their part. That the statute requires the use of 
the registered voters’ list as a primary source is neither 
a discriminatory nor irrelevant requirement.



19

B. The Jury List Was Not Tainted.

From the registered voters’ list within the computer, 
every fourth name was selected. Questionnaires were 
sent to those persons “kicked-out” by the computer; 
and a petit jury list was obtained, after elimination of 
those persons whose questionnaires indicated they were 
exempted from jury service.

Exemption on request was allowed to those who 
were engaged in exempted occupations, to women, and 
to those persons over 65. Such exemptions are allowed 
by statute.2 Also those persons suffering from illness or 
infirmity were allowed exemption, as were students 
away at school. There were only twenty-four persons 
eliminated from the 7,308 because they were unable to 
read, write, speak, or understand English.

It is obvious that little could be done with those 
persons who had moved or who would not reply to the 
questionnaire, especially with the 90-day period 
imposed by the District Court. Such a lack of response 
automatically must withdraw their name from consider­
ation; but this was not from any subjective bias or 
intervention on the part of the commission. Even with 
this reduction, the petit jury was still reasonably 
representative of the community.

From the petit jury list, the grand jury was selected. 
The jury commission separated from the petit jury list 
as potential grand jurors those who had completed the 
seventh grade. Then they examined the answers given 
on those questionnaires with regard to the extent of the 
educational training of an individual and his present

2Georgia Code Section 59-112 (1972).



20

employment. In reviewing this data, the jury commis­
sioners attempted to follow the applicable statute and 
reduce the petit jury list to a number of persons which 
could feasibly operate as a grand jury.

This court, as others, has recognized the need for 
competent jurors. The work of the jury commissioners 
is circumscribed only when it results in deliberate and 
systematic exclusion of classes or in consistently 
under-representative jury lists. The Fifth Circuit Court 
of Appeals discussed the competing requirements of a 
fair and impartial jury when it said in Mobley v. United 
States, supra, at 771-2:

“In compiling jury lists, both the need for 
competency and for a fair cross-section of the 
community are important elements, but the desire 
for competency must not be pursued to the extent 
that it prevents a fair cross-section and any 
attempt to gain competent jurors that would result 
in a less representative cross-section than one 
drawn from the statutorily qualified pool would 
destroy the right to serve on juries which Congress 
intended to confer. . . , and would destroy the 
broad-based cross-section Congress has designated 
for federal juries. Rabinowitz v. United States, 
supra. ”

While this was written in regard to federal juries, it is 
equally applicable to those juries selected for use in 
state courts. Indeed this Court said in Carter v. Jury 
Commission, supra, and Taylor v. Louisiana, supra, that 
the States remain free to prescribe relevant qualifica­
tions for jurors, so long as the lists are representative of 
the community. The competency of jurors is an 
important consideration, and justifiable as long as it is 
not used to discriminate against classes of potential 
jurors. It is evident from the composition of the lists 
presented here that it was not used discriminatorily.



21

III.

THE DUTY OF THE JURY COMMIS­
SIONERS WAS FULFILLED.

A jury commission is obligated to select a jury which 
reasonably reflects a cross-section of the community. 
The respondent believes that, in accord with the 
decision of the District Court, it compiled representa­
tive lists within bounds of what was possible and 
practical in the time allowed.

Section 59-106 (1972 Supp.) of the Georgia Code 
sets forth the statutory duty of the jury commission. 
The statute says:

“ . . . In composing such list the commissioners 
shall select a fairly representative cross-section of 
the intelligent and upright citizens of the county 
from the official registered voters’ list which was 
used in the last preceding general election. If at 
any time it appears to the jury commissioners that 
the jury list, so composed, is not a fairly 
representative cross-section of the intelligent and 
upright citizens of the county, they shall supple­
ment such list by going out into the county and 
personally acquainting themselves with other 
citizens of the county, including intelligent and 
upright citizens of any significantly identifiable 
group in the county which may not be fairly 
representative thereon. After selecting the citizens 
to serve as jurors, the jury commissioners shall 
select from the jury list a sufficient number of the 
most experienced, intelligent and upright citizens, 
not exceeding two-fifths of the whole number, to 
serve as grand jurors. . .”



22

The respondent believes that a fair and reasonably 
representative cross-section of the community was 
placed on the jury list. There was no need to 
supplement the list from outside sources, nor was this 
possible in the time allowed for recomposition. No 
showing was made by petitioners that the voting list 
was inadequate or that discriminatory voting practices 
were used in Dougherty County. See, United States v. 
Grey, 355 F.Supp. 529 (W.D. Okla. 1973), Wright v. 
Smith, 474 F.2d 349 (5th Cir. 1973). The commission 
was endeavoring to compile jury lists objectively and 
without the intervention of human bias. Of the two 
available methods of selection, the respondents chose to 
randomly select the petit jury list. They did so, without 
regard to race. To have used any other method would 
have injected an opportunity for discrimination, and 
would have been impractical in the short time available 
to prepare these lists.

In Mobley v. United States, supra, the Fifth Circuit 
Court of Appeals said:

“There is, therefore, an affirmative duty im­
posed by the Constitution and laws of the United 
States upon the jury selection officials — jury 
commissioner and Clerk of Court — to know the 
availability of elements of the community, in­
cluding those which have been the object of state 
discrimination, to develop and use a system that 
will result in a fair cross-section of qualified 
persons in the community being placed on the jury 
rolls and to follow a procedure which will not 
operate to discriminate in the selection of jurors 
on racial grounds.” 379 F.2d, a t___

While this statement was made in connection with the 
selection of federal juries, it is a fair statement of the



23

duty expected of any jury commission. The respondents 
firmly believe that their present system of jury 
selection, the objective method used to select these jury 
lists, will continue to produce constitutionally accept­
able jury lists. They believe that the present jury lists 
are fairly and reasonably representative of the com­
munity, without discrimination of any class. Therefore, 
they believe that their duty has been fulfilled.

CONCLUSION

In conclusion, it is respectfully submitted that the 
evidence in this case demands affirmance of the opinion 
of the Court of Appeals of the Fifth Circuit. This court 
has consistently said that juries and jury lists need not 
be composed along proportionate or demographic lines.
All that is required is that the jury list reasonably 
reflect a cross-section of the community, and with that 
standard the respondents have complied.

The decision of the Court of Appeals for the Fifth 
Circuit should be affirmed in all respects.

Respectfully submitted,

H.H. PERRY, JR.
JESSE W. WALTERS

Perry, Walters, Lippitt & Custer 
Post Office Box 527 
Albany, Georgia 31702

Counsel o f Record