Thompson v. Sheppard Brief for Petition for Writ of Certiorari

    I n  th e

ghijtrritt? (Burnt nf %  Imiei*
O ctober T erm , 1974 

No..............

B elle F ew  T h o m pso n , et al.,

v.
Petitioners,

M ax S heppard , J r ., et al.

PETITION FOE A W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ack  Greenberg 
C harles S te p h e n  R alston  
E ric S ch napper

10 Columbus Circle 
New York, New York 10019

C. B. K ing 
H erbert E . P h ipps  

P.O. Drawer 3468 
Albany, Georgia 31706

Counsel for Petitioners



INDEX

PAGE

Opinions B elow ..................................................................... 1

Jurisdiction .......... ............... .............. ...... ..........................  2

Question Presented......... ........................... —- ....................  2

Constitutional and Statutory Provisions Involved.......  2

Statement of the Case  .............. ...... ...... -.......................  4

Statement of the Facts .... ...... ............. -............. -.............  5

Preparation of Petit Jury L is t ..... ...........................  5

Preparation of Grand Jury List .........................   6

Reasons for Granting the Writ ......... ............. ...............  8

C onclusion* .....     15

A ppendix

Opinion of the District Court, January 12, 1973 .... la

Opinion of the District Court, April 17, 1973 .......  6a

Opinion of the Court of Appeals ---- ------------------ 7a

Opinion of the Court of Appeals on Petition For 
Rehearing ............................      14a



11

T able  oe A uthorities

Cases:  page

Alexander v. Louisiana, 405 U.S. 625 (1972) ............... 12,13

Bivens v. Six Unknown Federal Narcotics Agents, 403 
U.S. 388 (1971) ................................................................. 14

Carter v. Jury Commission, 396 U.S. 320 (1970) .......2, 8, 9,
10,11,14

Cassell v. Texas, 339 U.S. 282 (1950) ............. ........... . 13

Green v. School Board of New Kent County, 391 U.S.
430 (1968)............................................................... .......... 8,12

Mitchell v. Johnson, 250 F.Supp. 117 (M.D. Ala. 1966) 10

Norris v. Alabama, 294 U.S. 587 (1935) .......................  15

Patton v. Mississippi, 332 U.S. 463 (1947) ......... .........  15
Peters v. Kiff, 407 U.S. 493 (1972) ...... ............................  15
Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968) _____  10

Shepherd v. Florida, 341 U.S. 50 (1951) ...... ................  15
State v. Burns (Indictment No. 25570)   .................... . 14
State v. Lane (Indictment No. 34052)  ...... ................  14
State v. Mallory (Indictments No. 34054 and 34082) .... 14 
State v. Moulden (Indictment No. 38377) ...... .............. 14

Tollett v. Henderson, 411 U.S. 258 (1973) .......................  15

Whitus v. Georgia, 385 U.S. 545 (1967).............. ............  15



Ill

Statutes: page

18 U.S.C. § 243 ................................-...................................  2

28 U.S.C. § 1254(1) ......... ............ ......................................  2

Code of Georgia, § 59-106 ........ ........................ —- ............  3, 9

Other Authorities:

U.S. Census, 1970, Characteristics of the Population, 
Georgia .................................-............................... -......... 6,7,9

“Jury Discrimination In the South: A Remedy?” , 8 
Col. J. of Law and Social Problems 589 (1972) .......  14



I n  th e

tourt of %  ItuM States
O ctobee T e em , 1974 

No..............

B elle F e w  T h o m pso n , et al.,

v.
Petitioners,

M ax  S heppaed , J e ., et al.

PETITION FOR A W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioners, Belle Few Thompson, et al., respectfully 
pray that a Writ of Certiorari issue to review the judg­
ments and opinions of the United States Court of Appeals 
for the Fifth Circuit 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, and is reprinted in the Appendix hereto at pp. 
7a-13a. The opinion of the Court of Appeals denying re­
hearing is reported at 502 F.2d 1389, and is set out in the 
Appendix hereto at pp. 14a-20a. The opinion of the District 
Court of January 12, 1973, which is not reported, is set 
out in the Appendix hereto at pp. la-5a. The order of the



District Court of April 17, 1973, which, is not reported, is 
set out in the Appendix hereto, p. 6a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
March 8, 1974. The judgment of the Court of Appeals, 
denying petition for rehearing and rehearing en banc, was 
entered on October 25, 1974. Jurisdiction of this Court is 
invoked under 28 U.S.C. §1254(1).

Question Presented

Did the District Court, having found a pattern of racial 
discrimination in the selection of grand and petit jurors, 
provide the “ detailed and stringent injunctive relief” re­
quired by Carter v. Jury Commission, 396 U.S. 320 
(1970), when it permitted the use of inherently discrimina­
tory criteria which resulted in substantial underrepresenta­
tion of blacks on those lists?

Constitutional and Statutory Provisions Involved

This case involves the Fourteenth Amendment to the 
Constitution of the United States.

Section 243, 18 U.S.C., provides in pertinent part

No citizen possessing all other qualifications which are 
or may be prescribed by law shall be disqualified for 
service as grand or petit juror in any court of the 
United States, or of any State on account of race, color, 
or previous condition of servitude . . .



3

At least biennially, or, if the Judge of the superior 
court shall direct, at least annually, on the first Monday 
in August, or within 60 days thereafter, the board of 
jury commissioners shall compile and maintain and 
revise a jury list of intelligent and upright citizens of 
the county to serve as jurors. 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 supplement such list by going 
out into the county and personally acquainting them­
selves with other citizens of the county, including in­
telligent and upright citizens of any significantly iden­
tifiable 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. The entire 
number first selected, including those afterwards se­
lected as grand jurors, shall constitute the body of 
traverse jurors for the county, except as otherwise pro­
vided herein, and no new names shall be added until 
those names originally selected have been completely 
exhausted, except when a name which has already been 
drawn for the same term as a grand juror shall also 
be drawn as a traverse juror, such name shall be re­
turned to the box and another drawn in its stead. (Book 
18, 1972 Cumulative Pocket Part, p. 28)

Section 59-106, Code of Georgia annotated, provides



4

Statement o f the Case

This action was commenced on November 22, 1972, on 
behalf of black and female citizens who alleged that they 
had been unconstitutionally excluded from service on grand 
and petit juries in Dougherty County, Georgia. The defen­
dants are the members of the Jury Commission of Dough­
erty County and other Dougherty County officials responsi­
ble for the selection and composition of grand and petit 
jury lists.

After a hearing the United States District Court for the 
Middle District of Georgia concluded that blacks and women 
had been unconstitutionally excluded from the existing 
grand and petit jury lists.1 The District Court issued a 
preliminary injunction enjoining the use of these lists and 
directing the defendants to prepare new grand and petit 
jury lists from which blacks and women were not so ex­
cluded.

Following the District Court’s order the defendants pre­
pared new grand and petit jury lists. Blacks were still 
substantially underrepresented on both of these new lists. 
Plaintiffs objected to approval of these lists on the ground 
that the defendants had failed to remedy the proven viola­
tion. After a hearing the District Court issued a one sen­
tence order approving the new grand and petit jury lists.

On March 8,1974, the Court of Appeals affirmed the order 
of the District Court approving the new lists. On October 
25, 1974, the Fifth Circuit denied petitioners’ petition for 
rehearing and rehearing en banc. Two members of the 
Court of Appeals, Judge Goldberg and Chief Judge Brown, 
dissented from the refusal to grant rehearing en banc.

1 See Appendix, pp. la-5a.



5

Statement of the Facts

Preparation o f Petit Jury List

The old traverse or petit jury list prepared by the de­
fendants in 1972 was the result of a two step procedure. 
First, the Jury Commissioners, although not required to do 
so by state law, expressly excluded from consideration any 
otherwise eligible adult who was not registered to vote.2 
Second, the Commissioners reviewed the name of the regis­
tered voters and picked out those whom they regarded as 
“ upright and intelligent.” Voters were regarded as upright 
and intelligent if they had been selected for the petit jury 
list in the past or were personally known to and vouched 
for by one of the jury commissioners.3 This resulted in a 
petit jury panel 12.48% of whose members were black, al­
though blacks constituted 30.23% of the county imputation 
over 21. Blacks were thus underrepresented by 58.71%.

The District Court correctly concluded that the petit 
jury list thus prepared was unconstitutional. It held that 
“ it is the right of every citizen, who is within the age and 
statutory qualifications, to be considered for jury service”  
and directed the Jury Commissioners “to do whatever is 
necessary to consider every person for jury service.”  4

Following the District Court’s decision, the defendants 
undertook to prepare a new petit jury list. Although the 
subjective “upright and intelligent” test was largely aban­
doned, the Jury Commissioners again refused to consider 
any citizen who had not registered to vote. The record 
reveals, and the Jury Commissioners were aware, that

2 Transcript of hearing of January 4, 1973, pp. 14, 36, 66, 67.
3 Transcript of hearing of January 4, 1973, pp. 25, 30, 34, 35.
4 Transcript of hearing of January 4, 1973, p. 97.



6

68.0% of the white adults in Dougherty County were regis­
tered, compared to only 44.3% of the blacks. By considering 
only registered voters the defendants excluded from jury 
service 55.7% of all the eligible blacks in the county. As a 
result, when approximately 7,300 names were drawn at 
random from the list of registered voters for possible jury 
service, only 22.1% of those so selected were black.5 6 Ques­
tionnaires were sent out to this list of voters; approximately 
4,600 were returned. Among the questionnaires returned, 
after elimination of certain persons exempt from, jury duty, 
blacks constituted 19.15%. Although blacks constituted a 
disproportionately large proportion of the voters who did 
not return questionnaires, no effort was made by the Jury 
Commissioners to follow up this first mailing or to locate 
voters who had moved to a location within the county since 
the last election.6

Preparation o f Grand Jury List

The old grand jury list was selected from among the petit 
jury list with the vaguely defined purpose of picking “a 
little higher type [sic].”  The Commissioners refused to con­
sider any citizen without prior service on a grand or petit 
jury, a standard which eliminated most blacks.7 Among 
those meeting this test, jurors were chosen who were per­
sonally known to and recommended by one of the Jury Com­
missioners.8 This selection procedure had the effect of fur­
ther reducing the proportion of blacks. Thus, although

5 Transcript of hearing of April 17, 1973, p. 30.
6 Ibid., p. 13. The proportion of blacks changing residence within 

the county is significantly higher than the proportion of whites. 
See U.S. Census 1970, Characteristics of Population, Georgia, 
Tables 119, 125.

7 Transcript of hearing of January 4, 1973, p. 55.
8 Ibid., pp. 46-48.



7

blacks were 12.48% of tlie old petit jury list, they were only 
10.7% of the old grand jury list, a reduction of 14.4%. 
Blacks were underrepresented on the old grand jury list by 
64.60%.

The District Court correctly concluded that the old grand 
jury list was unconstitutional. The Court expressly con­
demned the two primary criteria used in picking grand 
jurors from the petit juror list—prior service and personal 
acquaintanceship with a Jury Commissioner9— and directed 
the defendants to prepare a new list.

The Jury Commissioners proceeded to prepare a new 
list using a slightly rephrased subjective standard, whether 
a potential grand juror “would serve the public in Albany 
in a good manner.” 10 Except where a potential grand juror 
was personally known to a member of the Jury Commis­
sion, the decision was based on the juror’s job. A  candidate 
with a “high position” was regarded as desirable, a mere 
carpenter was not.11 In view of the disproportionately low 
number of non-whites holding professional, technical and 
managerial jobs in Dougherty County,12 any such employ­
ment test would have had an inherently discriminatory 
effect. These selection procedures had the effect of further 
reducing the proportion of blacks. Thus, although blacks 
were 19.15% of the new petit jury list, they were only 
16.40% of the new grand jury list, a reduction of 14.10%. 
Blacks were underrepresented on the new grand jury list 
by 45.75%.

9 Transcript of hearing of January 4, 1973, pp. 96-98.
10 Transcript of hearing of April 17, 1973, p. 16. Albany is the 

largest city in Dougherty County.
11 Ibid., pp. 46-47.
12 See U.S. Census, 1970, Characteristics of the Population, Geor­

gia, pp. 486, 554.



8

Reasons for Granting the Writ

In Carter v. Jury Commission, 396 U.S. 320 (1970), 
this Court established the right of black citizens, excluded 
because of their race from service as grand or petit jurors, 
to maintain a civil action to challenge that discrimination. 
The question presented by this case is what type of remedy 
the federal courts must afford once such discrimination has 
been established. In the instant ease, after the District 
Court found that blacks had been unconstitutionally ex­
cluded from the old grand and petit jury lists, the defen­
dants drew up new lists using criteria which they knew 
had resulted in the past, and would result again, in the 
exclusion of large numbers of blacks. In the old lists blacks 
had been underrepresented by 64.60% and 58.71%, respec­
tively, on the grand and petit jury lists; in the new lists 
blacks were underrepresented by 45.75% and 38.66% re­
spectively. The District Court and Court of Appeals ap­
proved the new lists as so constituted. Petitioners maintain 
that the remedy afforded in this case fell impermissibly 
short of the “ detailed and stringent injunctive relief” re­
quired by Carter. The failure of the courts below to provide 
a remedy which in fact ends the disproportionate exclusion 
of blacks is directly analogous to the problem of ineffectual 
remedies dealt with in Green v. School Board of New Kent 
County, 391 IT.S. 430 (1968). Review by this Court is par­
ticularly appropriate because racial discrimination in the 
selection of juries threatens the very integrity of the judi­
cial process, and because the decision below calls into ques­
tion the viability of civil litigation as a means of remedying 
such discrimination.



9

In Garter v. Jury Commission, 396 U.S. 320 (1970), 
this Court made clear the responsibilities of the lower 
courts in framing a remedy where, as here, jury lists were 
found to discriminate on the basis of race. Those courts 
have “ not merely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in 
the future.” 396 U.S. at 340. Such a decree must both end 
the discriminatory practices which excluded blacks and 
result in a jury list on which the number of blacks is no 
longer disproportionately low. The decree entered in this 
case and approved by the Fifth Circuit did neither.

In preparing the new petit jury list, the Jury Commis­
sioners made a deliberate decision to consider only regis­
tered voters, a practice which they knew had contributed 
substantially to the invalidity of the old list. The Commis­
sioners were well aware that they were not required to 
consider only registered voters, but were obligated by 
Georgia law to use whatever other sources of names were 
necessary to obtain a jury list which was “ a fairly repre­
sentative cross-section” of the population and so as to 
increase the number of “citizens of any significant group 
in the county which may not be fairly represented.” Section 
59-106, Code of Georgia.13 The Commissioners knew that 
blacks were substantially underrepresented on the voter 
list.14 The Commissioners also had in their possession lists 
which could have been used to supplement the voter lists, 
including a city directory listing the residents of the city of 
Albany in which 91.7% of the county’s black population 
resided.15 When asked why the Jury Commission had de­

13 Transcript of hearing of January 4, 1973, p. 67.
14 Transcript of hearing of April 17, 1973, p. 30.
15 Transcript of hearing of January 4, 1973, p. 18; U.S. Census, 

1970, Characteristics of the Population, Georgia, p. 12-69.



10

liberately used only the voter registration list, one Com­
missioner responded, “I really don’t have any reason” .16 
In Carter this Court stressed that the district court’s decree 
had resulted in substantial efforts to go beyond the avail­
able voting list, 396 U.S. at 339-340 ;17 no such efforts were 
required or made here.

Similarly, the only change in the subjective method of 
picking grand jurors was in altering the description of 
the vague eligibility requirement from “a high type” person 
to a person who would serve the public “ in a good manner” . 
In practice these standards reduced the proportion of 
blacks by virtually identical amounts— 14.4% in preparing 
the old list and 14.1% in preparing the new list. The 
potential for and degree of discrimination in this subjective 
method is made apparent by comparing the effect of this 
procedure on blacks with its effect on women. In preparing 
the old grand jury list the jury commission, ostensibly 
applying this standard, reduced female representation by 
52.1% ;18 in preparing the new grand jury list the jury com­
mission applied a similar test but reduced female repre­

16 Transcript of hearing of January 4, 1973, p. 67.
17 This Court expressly referred to Pullum v. Greene, 396 F.2d 

251 (5th Cir. 1968) and Mitchell v. Johnson, 250 F.Supp, 117 
(M.D. Ala. 1966) as examples of the appropriate remedial action. 
In Pullum the court disapproved the creation of a new list based 
on a voter list with a disproportionately low number of blacks, and 
required the commissioners to augment the voter list by “ the affirm­
ative action of going out and familiarizing themselves with indi­
viduals and groups in the community,” 396 F.2d at 255.̂  In 
Mitchell the court based its finding of discrimination on the failure 
of the jury commission to use all reasonable means to identify 
citizens eligible for jury duty by using “ the city directories, the 
telephone directories and by visiting the precincts in the county,” 
and required the commission to use such sources of names in the 
future. 250 F.Supp. at 122.

18 From 24% on the petit jury to 12.48% on the grand jury.



11

sentation by only 5.8%.19 The record thus reveals, not a 
change in the subjective selection methods which had earlier 
resulted in the unconstitutional exclusion of both blacks and 
women, but the retention of those methods by a jury com­
mission willing to abandon discrimination on the basis of 
sex but not on the basis of race.

In addition, the District Court’s decree clearly failed to 
substantially eliminate the pattern of disproportionately 
low numbers of blacks on the jury lists. In the instant case 
black underrepresentation on the petit jury was reduced 
from 58.71% to 36.66%, a reduction of 37.7%. Black under­
representation on the grand jury declined from 64.65% to 
45.75%, a reduction of only 29.2%. The jury lists approved 
by the District Court and the Court of Appeals in this case 
clearly failed to end the unconstitutional exclusion of 
blacks, in violation of this Court’s direction in Carter, or 
to produce a “ representative cross-section” of the county 
population, as required by Georgia law.

The Court of Appeals, in failing to provide the remedy 
required by Carter, relied on three standards each of which 
was squarely in conflict with the decisions of this Court.

First, the Fifth Circuit assumed that, in deciding whether 
to approve the new jury lists, the question before it was 
whether those lists were—in isolation— “constitutionally 
defective.” P. 12a. But once the old jury lists had been 
shown to have been tainted by racial discrimination, the re­
sponsibility of the courts below was “ to fashion detailed 
and stringent injunctive relief that will remedy that previ­
ous discrimination.” Carter v. Jury Commission, 396 U.S. 
320, 336 (1970). Regardless of whether the new jury 
selection procedures were apparently neutral on their face,

19 From 37.90% to 35.66%.



12

as the Fifth Circuit contended, the proper test under Carter 
was whether those procedures were adequate to remedy the 
prior discrimination. That is not the test applied by the 
Court of Appeals, nor a test which those procedures could 
meet. A plan for selecting juries, like a plan for assigning 
public school students, although not inherently unconstitu­
tional, is not acceptable as a remedy for a previous viola­
tion unless it in fact provides “ effective relief.” Green v. 
School Board of Neiv Kent County, 391 U.S. 430, 439 (1968).

Second, the Fifth Circuit held that, in assessing the suf­
ficiency of the new lists, the burden of proof was on the 
plaintiffs to show that the lists were invalid. P. 12a. This 
Court, however, has uniformly held that, where a plaintiff 
establishes that state officials have engaged in discrimina­
tion, the burden is on those officials to demonstrate that the 
remedy they propose will in fact end that discrimination 
and any continuing effects thereof. Green v. School Board 
of New Kent County, 391 U.S. 430 (1968). Even if the 
question in this case were not one of fashioning a remedy 
but of assessing the validity of a list without a tainted 
history, plaintiff need only show the exclusion of a dispro­
portionate number of blacks by a method with potential 
for discrimination. Alexander v. Louisiana, 405 U.S. 625, 
631 (1972). The evidence in the instant case showed pre­
cisely those two elements—that blacks were underrepre­
sented by 45.75% and 38.66% on the new grand and petit 
juries, respectively, and that this resulted from the deliber­
ate and unjustified decision of the defendants to choose ju­
rors from a voter list with a disproportionately low number 
of blacks, and to select grand jurors using vaguely defined 
subjective criteria. Even by the standard established by the 
Fifth Circuit, all that plaintiffs were required to show was 
that the jury list “was not fairly representative of the in­



13

habitants.” P. 12a. The undisputed evidence established 
that in Dougherty County, where 31.99% of the inhabitants 
of voting age were black, only 22.1% of the registered 
voters were black. Such a voters list, which underrepre­
sented blacks by 30.92%, was manifestly not “ fairly repre­
sentative.”

Third, as Judge Brown suggested in his dissent, pp. 16a- 
17a, the Fifth Circuit failed to use the method established 
by this Court for calculating the degree of underrepresenta­
tion in a case such as this. The record showed that the total 
county population over twenty-one was 30.23% black, 
whereas only 19.15%' of the petit jurors and 16.40% of the 
grand jnrors were black. The Fifth Circuit calculated the 
degree of underrepresentation by simple subtraction, yield­
ing figures of 11.08% and 13.83%. This Court has made 
clear, however, that the degree of underrepresentation is 
to be calculated by computing what proportion the differ­
ence in composition (11.08% and 13.83%) is of the composi­
tion of the population (30.23%). See Alexander v. Louisi­
ana, 405 U.S. 625, 629 (1972). This method of calculation, 
as Judge Brown noted, reveals that the percentage of 
underrepresentation was 36.55% on the petit jury list and 
45.75% on the grand jury list.

The decision of the Fifth Circuit seriously threatens the 
vitality of civil litigation as a method of ending racial 
discrimination in the selection of juries. The use of such 
civil litigation was first proposed by Justice Jackson in 
Cassell v. Texas, 339 U.S. 282 (1950), on the ground that a 
civil remedy, unlike the assertion of a jury discrimination 
claim, by a criminal defendant, would not entail the reversal 
of otherwise valid convictions. 339 U.S. at 303-304.20 See also

20 “ Qualified Negroes excluded by discrimination have available, 
in addition, remedies in courts of equity. I suppose there is no



14

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 
388, 411-424 (1971) (Burger, C.J. dissenting). Such civil 
litigation, to afford an attractive remedy and to protect 
the legality of subsequent jury verdicts, must entail stan­
dards of relief at least as stringent as those required to 
validate a jury panel challenged by a criminal defendant.21 
The Fifth Circuit has not so provided, nor has it purported 
to hold the petit and grand jury panels to be constitutionally 
constituted. The Court of Appeals merely held that the 
particular plaintiffs in this particular case had failed to 
meet their “ burden of showing” that the new lists were not 
defective. P. 12a. Such a resolution of this case is an open, 
invitation to criminal defendants to challenge every grand 
and petit jury chosen from the new lists, and that is pre­
cisely what has occurred in Dougherty County following 
the decision of the District Court.22 Unless this Court 
requires that meaningful relief be provided whenever, as 
here, a civil litigant shows a pattern of racial discrimina­
tion in the selection of grand and petit jurors, aggrieved 
blacks will not have a significant incentive to pursue such 
civil litigation in the Fifth Circuit. Such an emasculation 
by the Fifth Circuit of the civil remedy recognized in Carter 
would be particularly serious because it is in states com­

doubt, and if there is this Court can dispel it, that a citizen or a 
class of citizens unlawfully excluded from jury service could main­
tain in federal court an individual or a class aetion for an injunc­
tion or mandamus against the state officers responsible . . .  I doubt 
if any good purpose will be served in the long run by identifying 
the right of the most worthy Negroes to serve on grand juries with 
the efforts of the least worthy to defer or escape punishment for 
crime.”

21 See “ Jury Discrimination in the South: A  Remedy?” , 8 Col. J. 
of Law and Social Problems 589 (1972).

22 See e.g. State v. Lane (Indictment No. 34052); State v. Burns 
(Indictment No. 25579); State v. Mallory (Indictment Nos. 34054 
and 34082) and State v. Moulden (Indictment No. 38377).



15

prising that circuit that the majority of criminal appeals 
based on claims of jury discrimination have arisen.23

CONCLUSION

For the above reasons, a Writ of Certiorari should issue 
to review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

J ack  G reenberg

Ch ari,es S teph en  R alston

E ric S ch napper

10 Columbus Circle 
New York, New York 10019

C. B. K ing 
H erbert E . P h ipps  

P.O. Drawer 3468 
Albany, Georgia 31706

Counsel for Petitioners

23 See e.g. Norris v. Alabama, 294 U.S. 587 (1935) ; Patton v. 
Mississippi, 332 U.S. 463 (1947); Cassell v. Texas, 339 U.S. 282 
(1950); Shepherd v. Florida, 341 U.S. 50 (1951) ;  Whitus v. Geor­
gia, 385 U.S. 545 (1967) ;  Alexander v. Louisiana, 405 U.S. 625
(1972) ; and the cases cited in Peters v. Kiff, 407 U.S. 493, 497, 
nn. 6-8 (1972) and Tollett v. Henderson, 411 U.S. 258, 262, n. 2
(1973) .



APPENDIX



Isr th e

UNITED STATES DISTRICT COURT

F ob th e  M iddle D istrict  oe G eorgia 

A lbany  D ivision  

Civil Action No. 1224

O rder o f  District Court, January 12, 1973

B elle F e w  T h o m pso n , et al.,
Plaintiffs,

vs.

M ax S heppard , J r ., et al.,
Defendants.

Ow ens , District Judge:

Plaintiff Negro citizens complained1 that the grand and 
petit jury lists2 of Dougherty County, Georgia, are un­

1 Plaintiffs in their complaint contend, among other things, that 
this action should proceed as a class action pursuant to Rule 23, 
Federal Rules of Civil Procedure, and that the Dougherty County 
Board of Education is also unconstitutionally composed because 
of the six members of said board of education: two, by law, are 
chosen by the grand jury and the current two members were 
chosen by grand juries which were selected from unconstitutionally 
composed grand jury lists. These claims were not considered by 
the court; they are reserved until such time as the entire case 
is heard and decided.

2 Georgia law provides for a board of jury commissioners com­
posed of six persons appointed by the judge of the superior court. 
Georgia Code Annotated 59-101. These jury commissioners by law 
are directed:

“At least biennially, or, if the judge of the superior court shall 
direct, at least annually, on the first Monday in August, or

la



2a

constitutionally composed and moved this court for a pre­
liminary injunction. On January 4, 1973, that motion 
came on for hearing. This order confirms the court’s 
oral decision announced at the conclusion of that hearing.

The undisputed evidence shows that the. present grand 
and petit jury lists of Dougherty County were prepared 
by the defendant jury commissioners between August 5, 
1972, and December 4, 1972. In preparing those lists, the 
jury commissioners— one of whom is a Negro female, one 
of whom is a Negro male, and four of whom are white 
males—in a series of some sixty-two meetings considered

Order of District Court, January 12, 1973

within 60 days thereafter, the board of jury commissioners 
shall compile and maintain and revise a jury list of intelli­
gent and upright citizens of the county to serve as jurors. 
In composing such list the commissioners shall select a fairly 
representative cross-section of the intelligent and upright citi­
zens 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 supplement such list by going out into the county and 
personally acquainting themselves with other citizens of the 
county, incuding intelligent and upright citizens of any sig­
nificantly identifiable group in the county which may not be 
fairly representative thereon.

“After selecting the citizens to serve as jurors, the jury com­
missioners 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. The entire number first selected, including those after­
wards selected as grand jurors, shall constitute the body of 
traverse jurors for the county, except as otherwise provided 
herein, and no new names shall be added until those names 
originally selected have been completely exhausted, except 
when a name which has already been drawn for the same 
term as a grand juror shall also be drawn as a traverse juror, 
such name shall be returned to the box and another drawn 
in its stead.” Georgia Laws 1968, p. 533; Ga. Code Ann 
59-106. (emphasis added).



3a

every name on the then most recent general election reg­
istered voters list containing some 27,000 names. From 
those names they generally selected persons (a) who were 
known by one or more individnal commissioners, (b) upon 
personal investigation of a jury commissioner who were 
recommended by one or more jury commissioners or (c) 
who were on the most recent preceding jury lists. The 
grand jury list as thus compiled contains 614 names of 
which there are 462 white males, 86 -white females, 49 
Negro males and 17 Negro females—-about 87% white and 
13% Negro; 83% male and 17% female. The petit jury 
list contains 3,221 names of which there are 2,194 white 
males, 625 white females, 257 Negro males and 145 Negro 
females— about 87% white and 13% Negro; 76% male and 
24% female.

According to the 1970 census the total population of 
Dougherty County was 89,639, of which 48,444 were over 
twenty-one and among those who could have registered 
to vote and been considered for jury service. Of the 
48,444 persons over twenty-one, there were 22,790 males 
and 25,423 females; racially there were 33,568 white males 
and females and 14,465 Negro males and females about 
45% male and 55% female; 70% white and 30% Negro.

While as a matter of law the aforesaid numbers and 
percentages establish a prima facia case of discrimina­
tion against females as a group and against Negroes as 
a group, Whitus v. Georgia, 385 TT.S. 545 (1967), the testi­
mony of both Negro and white jury commissioners estab­
lished that this discrimination was not intentional or 
purposeful but instead resulted from the fact that these 
jury commissioners did not understand that it is the right 
of every citizen to be considered for jury duty and the 
responsibility of jury commissioners to fairly consider

Order o f District Court, January 12, 1973



4a

every citizen for jury duty. Rabinowits v. United States, 
366 F.2d 34 (5th Cir. 1966). In exercising their responsi­
bility jury commissioners who obviously already do not 
personally know and cannot personally become acquainted 
with all of the some 27,000 registered voters of Dougherty 
County, are required to demonstrate that they went beyond 
their personal knowledge and through some system devised 
by them objectively and fairly considered every registered 
voter and in so doing “fed each out of the same spoon” . 
These jury commissioners though required to so demon­
strate, could not. Accordingly, the present grand and petit 
jury lists of Dougherty County are unconstitutionally com­
posed. Turner v. Douche, 396 U.S. 346 (1970). Being un­
constitutionally composed, the present grand and petit jury 
lists while they may be used for jury selection to the extent 
that defendant and litigants m the Superior Court of 
Dougherty County voluntarily waive their constitutional 
right to a jury selected from a constitutionally composed 
jury list, may not and shall not otherwise be used by the 
defendants from and after this date.

In view of the fact that four of the Negro plaintiffs are 
in jail awaiting grand jury consideration of proposed in­
dictments against them, it is imperative that these de­
fendant jury commissioners proceed without delay to 
compose new grand and petit jury lists for Dougherty 
County. They are ordered to do so and no later than ninety 
(90) days after this date to submit a written detailed report 
of their actions and a copy of their new grand and petit 
jury list to this court following which this court will set 
this matter down for hearing and further consideration.

This constitutes the preliminary injunction of this court. 
The giving of security is deemed unnecessary by the Court. 
It is binding “upon the parties to this action, their officers,

Order of District Court, January 12, 1973



5a

Order of District Court, January 12, 1973

agents, servants, employees, and attorneys and upon those 
persons in active concert or participation with them who 
receive actual notice of the order by personal service or 
otherwise.” Rule 65, Federal Rules of Civil Procedure. It 
shall remain in effect until further order of this court.

So Ordered, this the. 12th day of January, 1973.

W ilbu r  D. O w e n s , J r. 
United States District Judge



I n the

UNITED STATES DISTRICT COURT 

F or th e  M iddle D istrict  of G eorgia 

A lban y  D ivision  

Civil Action No. 1224

Order of District Court, April 17, 1973

B elle F ew  T h o m pso n , et al., 

vs.

M ax S heppard , et al.

O r d e r

It appears to the Court that, within the bounds of what 
is practical and possible, both the petit and the grand 
jury lists have been recomposed fairly and legally within 
the standards known to this Court, and this Court will, 
therefore, approve and order that as of the revision the 
grand and petit jury lists of Dougherty County, Georgia 
are constitutionally composed.

So ordered, this April 17, 1973.

W ilbur  D. O w e n s , J r.
United States District Judge



7a

Belie Few THOMPSON, et al., etc., Plaintiffs-Appellants,

v.

Max SHEPPARD, Jr., et al., etc., Defendants-Appellees.

Decision of Court of Appeals

No. 73-2519.

United States Court of Appeals, 
Fifth Circuit.

March 8, 1974.

Appeal from the United States District Court for the Mid­
dle District of Georgia.

Before COLEMAN, AINSWORTH and GEE, Circuit 
Judges.

COLEMAN, Circuit Judge:
This is an action brought pursuant to 42 U.S.C., § 1983 on 

behalf of black and female citizens of Dougherty County, 
Georgia, to enforce their right to serve on grand and petit 
juries in the courts of that county.

A preliminary injunction at the outset of the proceedings 
resulted in the compilation of a new jury list, drawn by chance 
from county voter lists. After a hearing, the District Court 
approved this list. Plaintiffs are not satisfied and brought 
this appeal. We affirm the judgment of the District Court.

According to the 1970 Census, Dougherty County then had 
48,444 inhabitants over twenty-one years of age.

By percentages, this age group divides statistically into the 
following characteristics:

White, male and female,
over 21 years of age 69.29%69.29%



8a

THOMPSON v. SHEPPARD

Blacks, male and female,
over 21 years of age 

Black males 

Black females 

White males

30.23%

35.49%
17.49%

12.73%

White females 35.19%
There were 29,204 voters, as determined at the previous 

general election.

After the District Court prohibited the further use of the 
existing jury list and directed the compilation of a new one 
which would pass constitutional muster, a new jury list was 
compiled by a computer process which automatically selected 
every fourth name on the voter list, a total of 7,308 individu­
als (3,507 males and 3,801 females). Seventy five per cent of 
the names so selected were of white persons and 25% were of 
black persons, a variation of 5% from the actual racial popula­
tion proportions of the county.

These 7,308 individuals were sent a racially neutral ques­
tionnaire. Of this total, 1,240 were returned by the post 
office, addressee unknown, while 1,489 addressees simply 
failed to return the questionnaire at all. 1,078 females 
claimed the exemption allowed them upon request by Georgia 
law, 195 individuals claimed an occupational exemption, 224 
claimed the over age exemption, 228 cited physical disability, 
24 were unable to read or write, 102 were students away at 
college, and 9 wrere dead. The record fails to reveal the race 
of these various groups.

[1] This left a master jury pool of 2,721 names, selected 
solely by objective methods, with no subjective considerations 
entering the picture. Of these 2,721, 37.9% were women, 
which would appear to settle their presence in substantial 
numbers and we devote no further discussion to that aspect of 
the case.



9a

Racially, the master jury pool turned out to be composed of 
2199 whites (80.8%) and 522 blacks (19.2%).

This results in the following comparisons: Total black popu­
lation over age twenty-one, 30.23%; percentage of blacks on 
the jury list, 19.2%. Thus the jury list fell 11% short of 
proportionate population representation. The record is silent 
as to how much of this disparity was due to exemptions 
claimed, inability to deliver the questionnaires, and failure to 
return them. In any event, the names randomly selected by 
the computer were within 5% of racially proportionate to the 
population and there is not a hint that any name was there­
after rejected for any subjective reason.

Plaintiffs rely on Broadway v. Culpepper, 5 Cir., 1971, 439 
F.2d 1253 as authority for the proposition that the above 
method of compiling the jury lists failed to produce the 
required fairly representative cross section of the inhabitants 
of the county and argue that supplemental methods should 
have been used to produce a jury list in w'hich the percentage 
of black jurors would more nearly approach the actual per­
centage of those over twenty-one years of age residing in the 
county.

We must first point out that Broadway was not a case in 
which the jury list had been drawn at random by computer 
from the voter list, although the Court took pains to praise 
that procedure [Footnote 19, 439 F.2d at 1259], Moreover, the 
Broadway Court was careful to emphasize that “ Obviously 
nothing is to be gained by poking around in old 1966, 1967, 
1969 ashes. What is desired—what Georgia law and the 
Federal Constitution demand— is a valid jury list” . The case 
was remanded for further proceedings on a fresh, rather than 
a stale, record. The District Court was told, however, that in 
formulating a new jury list the jury commissioners should use 
“effective means to assure the return of the questionnaires 
properly filled out and signed and a suitable follow up proce­
dure for actual delivery of those returned as undeliverable” .

THOMPSON v. SHEPPARD



10a

Finally, the Court expressly declined to define what is re­
quired to constitute a fairly representative cross section of the 
community vis-a-vis comparison with demographic percent­
ages.

We turn for guidance to the decisions of the Supreme Court 
of the United States. We look first to Turner v. Fouche, 396 
U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). This was a 
Georgia case, originating in Taliaferro County, where 60% of 
the inhabitants were black. The jury list was not drawn at 
random. The commissioners pared the voters list of 2,152 
down to 608. These names were listed in alphabetical order 
and every other name (304) was carried forward to a new list, 
191 white and 113 black. Further refinements resulted in a 
grand jury of 17 whites and 6 blacks. 171 Negroes had been 
eliminated from the list as unintelligent or not upright. The 
Supreme Court held that Negroes composed only 37% of the 
304 member list from which the grand jury was drawn, that 
this contrasted “ sharply with the representation that their 
percentage (60%) of the general Taliaferro County population 
would have led them to obtain in a random selection (emphasis 
ours)” .

The Supreme Court then added, “ In the absence of a 
countervailing explanation by the appellees, we cannot say 
that the underrepresentation reflected in these figures is so 
insubstantial as to warrant no corrective action by a federal 
court charged with the responsibility of enforcing constitu­
tional guarantees” .

It must be remembered that the Supreme Court, 396 U.S. at 
360, singled out the use of subjective judgment rather than 
objective criteria as one of the causes of the impermissible 
disparity.

In short, there was subjective selection of jurors, there was 
no drawing at random from the whole body of voters, and 60% 
of the population wound up with only 25% of the grand jurors.

THOMPSON v. SHEPPAIiD



11a

Obviously, the case now before us is not such a case as 
Turner v. Fouche.

Carter v. Jury Commission of Greene County, 396 U.S. 320, 
90 S.Ct. 518, 24 L.Ed.2d 549, was decided the same day as 
Turner v. Fouche. In Greene the jurors were not selected at 
random from the whole body of eligibles. Although 65% of 
the population was black, only 32% of those on the jury roll 
were black. The discriminatory character of the jury lists was 
conceded but the Court declined to order the appointment of 
Negro commissioners, saying, “ The appellants are no more 
entitled to proportional representation by race on the jury 
commission than on any particular grand or petit jury” .

Mr. Justice Douglas dissented in part because he thought 
the selection of black jury commissioners should be compelled, 
but wrote:

“We have often said that no jury need represent propor­
tionally a cross-section of the community. See Swain v.
Alabama, 380 U.S. 202, 208..209, [85 S.Ct. 824, 829-830, 13
L.Ed.2d 759]; Cassell v. Texas, 339 U.S. 282, 286-287 [70 
S.Ct. 629, 631-632, 94 L.Ed. 839]. Jury selection is largely 
by chance; and no matter what the race of the defendant, 
he bears the risk that no racial component, presumably 
favorable to him, will appear on the jury that tries him. 
The law only requires that the panel not be purposely 
unrepresentative. See Whitus v. Georgia, 385 U.S. 545, 550 
[87 S.Ct. 643, 646, 17 L.Ed.2d 599], Those finally chosen 
may have no minority representation as a result of the 
operation of chance, challenges for cause, and peremptory 
challenges.”
This remands us to Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 

824, 13 L.Ed.2d 759 (1965), which declared, “ Neither the jury 
roll nor the venire need be a perfect mirror of the community 
or accurately reflect the proportionate strength of every iden­
tifiable group * * * We cannot say that purposeful dis­
crimination based on race alone is satisfactorily proved by

THOMPSON v. SHEPPARD



12a

showing that an identifiable group in a community is under­
represented by as much as 10%” .

This followed a declaration that “ a defendant in a criminal 
case is not constitutionally entitled to demand a proportionate 
number of his race on the jury which tries him nor on the 
venire or jury roll from which petit jurors are drawn” , 380 
U.S. at 208.

[2] We conclude that a jury list drawn objectively, me­
chanically, and at random from the entire voting list of a 
county is entitled to the presumption that it is drawn from a 
source which is a fairly representative cross-section of the 
inhabitants of that jurisdiction. The presumption, of course, 
is rebuttable but the challenger must carry the burden of 
showing that the product of such a procedure is, in fact, 
constitutionally defective. In addition to the authorities al­
ready discussed, see Camp v. United States, 5 Cir., 1969, 413 
F.2d 419; Wright v. Smith, 5 Cir., 1973, 474 F.2d 349.

[3] More specifically, in the case now under review we 
hold that the plaintiffs failed to carry the burden of showing 
that the Dougherty County jury list was not drawn from a 
source which was fairly representative of the inhabitants and 
that they accordingly failed to establish constitutional defi­
ciency on account of racial discrimination in the selection of 
the jury. As was pointed out in Broadway v. Culpepper, 
supra, the time is at hand for the selection of a new jury list. 
As in Broadway, we remind the defendant-appellees that they 
should prosecute a more effective follow-up on those whose 
questionnaires are not delivered and on those who fail to 
return their questionnaires. A County which has embarked 
upon a wholly objective method of compiling its jury list, 
substantially utilizing the same procedure used for the compi­
lation of jury lists in the federal court system, will no doubt 
comply with these details. If they do not, plaintiffs-appel- 
lants, in the exercise of their usual diligence, have the right 
effectively to question it.

THOMPSON v. SHEPPARD



13a

THOMPSON v. SHEPPARD

The jury commission, composed of whites, blacks, and wom­
en, selected the grand jury list according to the method which 
the Supreme Court declined to condemn in Turner v. Fouche, 
supra, and we see no reason to hold it fatally defective.

The judgment of the District Court is

Affirmed.



14a

Decision of Court of Appeals Denying Rehearing 

Belle Few THOMPSON et al., etc., Plaintiffs-Appellants,

v.

Max SHEPPARD, Jr., et al., etc., Defendants-Appellees.

No. 73-2519.

United States Court of Appeals, 
Fifth Circuit.

Oct. 25, 1974.

Appeal from the United States District Court for the Mid­
dle District of Georgia; Wilbur D. Owens, Jr., Judge.

ON PETITION FOR REHEARING AND PETITION FOR 
REHEARING EN BANC

(Opinion March 8, 1974, 5 Cir., 1974, 490 F.2d 830).

Before COLEMAN, AINSWORTH and GEE, Circuit 
Judges.

PER CURIAM:
The Petition for Rehearing is denied and the Court having 

been polled at the request of one of the members of the Court 
and a majority of the Circuit Judges who are in regular active 
service not having voted in favor of it, (Rule 35 Federal Rules 
of Appellate Procedure; Local Fifth Circuit Rule 12) the 
Petition for Rehearing En Banc is also denied.

JOHN R. BROWN, Chief Judge, with whom GOLDBERG, 
Circuit Judge, joins, dissenting:

I dissent to the Court’s failure to rehear this case en banc 
and on such rehearing reverse and remand the cause to the 
District Court with appropriate instructions.



15a

I.

It is, first, enbancworthy, FRAP 35, 28 U.S.C.A. § 46(c), as a 
case of major importance presenting recurring questions on 
which this Court in the past 20 years has spoken with a clear 
voice.

THOMPSON v. SHEPPARD

II.

But it is equally enbancworthy as such a case o f importance 
because the result is, in my view, wrong and contrary to what 
we have consistently held.

The basic error in the beguiling opinion of the Court, 
Thompson v. Sheppard, 5 Cir., 1974, 490 F.2d 830, is that it 
confuses two things: (i) proof of discrimination by race (or 
sex) and (ii) the appropriate remedy once discrimination is 
found to exist, either in fact, in law, or both.

Although there is loose language in the Court’s opinion 
about failure of plaintiffs to carry their burden of proof there 
is really no problem of burden of proof in this case. On the 
initial hearing the trial court assumed that the burden was on 
the state jury selection officials. And the defended officials, 
without questioning that in the least, undertook to shoulder 
that burden. Indeed, except for a few superficial witnesses 
produced by plaintiffs on aspects which the trial court thought 
were insignificant, all of the witnesses were put on the stand 
by the officials. Assaying the 1972 petit and grand jury lists 
the revelations of that hearing were so shocking that the 
Judge from the bench held the list to be unconstitutional by 
reason of discrimination against blacks, as a race, and women, 
both white and black.



16a

THOMPSON v. SHEPPARD 

This was the picture:

Table A

Percentage of Blacks in the 
Over-21 Community

Percent on 
Master Jury List

Percent on 
Grand Jury List

30.23% 12.48% 10.7%

Percentage of W o m e n  in the Percent on Percent on
Over-21 Community Master Jury List Grand Jury List

52.68% 24 % 12.48%

The District Court ordered the officials to compile a new list 
which would contain more blacks and women. On the hearing 
to show cause why the revised list should not be approved the 
officials again produced all of the testimony. This showed 
improvement—even substantial improvement—but again 
there was revealed a staggering, uncontradicted, difference 
between the percentage of these classes in the adult popula­
tion of the county and the percentage of such classes on the 
petit and grand jury lists. This glaring disparity was re­
flected not only on the difference in percentage points but, 
more significantly, the percentage of underrepresentation.1

1. This was obviously regarded as the significant thing in the analysis 
made by the Court in this excerpt from Alexander v. Louisiana, 
1972, 405 U.S. 625, 629, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536, 541: 

In Lafayette Parish, 21% of the population was Negro and 21 or 
over, therefore presumptively eligible for grand jury service. Use 
of questionnaires by the jury commissioners created a pool of 
possible grand jurors which was 14% Negro, a reduction by 
one-third of possible black grarfd jurors. The commissioners then 
twice culled this group to create a list of 400 prospective jurors, 
7% of whom were Negro^—a further reduction by one-half. 
Thus, in Alexander, the Court did not subtract 7% from 14% for a 

disparity of only 7%, but calculated that the reduction was one-half, 
i. e., 50%.



THOMPSON v. SHEPPARD

Table B

(1) (2) (3) (4)
Percentage

Point
Difference,

(5)

Percentage Original Revised Column (1) Percentage
of Over-21 Master Master Less of Under-
Community List List Column (3) Representation

Blacks 30.23% 12.48% 19.15% 11.08% 36.66%
W o m e n 52.68% 24 % 37.90% 14.78% 28.06%

Original Grand Revised Grand
Jury List Jury List

Blacks 30.23% 10.7% 16.40% 13.83% 45.75%
W o m e n 52.68% 12.48% 35.66% 17.02% 32.31%

Upon the completion of the initial hearing the trial court 
clearly recognized that it had “not merely the power but the 
duty to render a decree which will so far as possible eliminate 
the discriminatory effects o f the past as well as bar like 
discrimination in the future.” Carter v. Jury Commission of 
Greene County, 1970, 396 U.S. 320, 340, 90 S.Ct. 518, 529, 24 
L.Ed.2d 549, 563 (emphasis added), quoting Louisiana v. Unit­
ed States, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. 
Acting under that duty the Judge ordered the preparation of 
a new and better list. But in the face of continued flagrant 
underrepresentation shown by Table B that same duty re­
mained.

No explanations really were offered as to why that result 
was the best attainable “ as far as possible” , Carter, supra. 
And what evidence was offered, affirmatively proved a num­
ber of sources making the system vulnerable.

Intending no disparagement of the use of data computers in 
the law2 the Court nevertheless seems in my view to be

2. Ross v. Odom, 5 Cir., 1968, 401 F.2d 464; First National Bank of
Birmingham v. Daniel, 5 Cir., 1956, 239 F.2d 801; Bush v. Martin,



18a

almost mesmerized because a data computer was used. But 
the role of the computer here was very limited and wholly 
mechanical. It did only two things. First it merely created a 
“universe” of 7,308 names from the most recent voter list3 of 
29,204 voters, the racial-sex-composition of which was never 
established. And second it identified the race-sex categories 
in the “ universe” . From that point on the computer did 
nothing.

But the universe of 7,308 dwindled to 2,721 in the course of 
the further processing by the human beings comprising the 
officials. This was partly because of certain exemptions, 
required or claimed, in the answering questionnaire. But 
larger in numbers, in percentages, and legal significance un­
der this Court’s holding in Broadway v. Culpepper, 5 Cir., 
1971, 439 F.2d 1253 were the following:

THOMPSON v. SHEPPARD

Addressees Not Returning Questionnaires 1,489

Returned B y  Post Office, Address Unknown 1,240

2,729

Thus the so-called computer created “ random” list of 7,308 
was nothing of the kind. At most the universe was reduced 
to 4,579. But even this was an illusion.

Although I think the Court’s declaration that “a jury list 
drawn objectively, mechanically, and at random from the 
entire voting list of a county is entitled to the presumption 
that it is drawn from a source which is a fairly representative 
cross-section of the inhabitants of that jurisdiction” , 490 F.2d

S.D.Tex., 1966, 251 F.Supp. 484; Brown, Electronic Brains and the 
Legal Mind: Computing The Data Computer’s Collision With Law, 
71 Yale L.J. 239 (1961).

3. Under current Georgia law, this is the “ official registered voters’ 
list as most recently revised by the county board of
registrars or other county election officials. . . . ” Ga.Code
Ann. § 59-106 (1973).



19a

at 833 is an acceptable working principle4 its conclusion that 
the plaintiffs “ failed to carry the burden * * * ” of
“ showing that the product of such a procedure is, in fact, 
constitutionally defective” , id., is not sustainable on this 
record. In the first place, there was nothing to prove—noth­
ing, that is, beyond that shown by the testimony from the 
officials. And the result of the “ second try” was still glaring, 
spectacular, underrepresentation of 36% and 45% as to blacks. 
(See Table B.) This was proof that for some reason the 
so-called random selection from the voter list was not ade­
quate to create a fair cross-section of the community.5 What 
those reasons might be, and more importantly, what steps 
should be taken to achieve a fair cross-section and eliminate 
the causes of the disparity were factual things which Carter 
and Broadway, supra, imposed on the officials to prove.

But having responded to the duty following the initial 
hearing the District Court at this point did nothing. It did 
not, for example, require or even consider whether sources 
other than voting lists ought to be used and if so what ones 
would be the most reliable. Nor did it require that undeliv­
ered or unanswered questionnaires be followed up.6 Nor did

4. Under the federal Jury Selection and Service Act of 1968, 28 
U.S.C.A. §§ 1861-1869, and under all plans approved by the Fifth 
Circuit reviewing panel, see, Gewin, The Jury Selection and Service 
Act of 1968, 20 Mercer L.Rev. 349 (1969), voter registration lists are 
the principal source. But of course the act itself requires the use of 
“ some other source or sources of names in addition to voter lists 
where necessary to foster the policy and protect the rights secured 
by sections 1861 and 1862 of this title.” 28 U.S.C.A. § 1863(b)(2).

5. In Rabinowitz v. United States, 5 Cir., 1966 (en banc), 366 F.2d 34, 
57 we declared:

The Constitution and laws of the United States place an affirm­
ative duty on the [jury selection officials] to develop and use a 
system that will probably result in a fair cross-section of the 
community being placed on the jury rolls.

6. In Broadway, supra, 439 F.2d at 1257-1258, we condemn the use 
of a voter list as a source where 40% of the questionnaires to the 
voters were undelivered. In doing so we said:

A list—this constitutes the “ universe”—which is only 60% usea­
ble is hardly a source reflecting the community from which a fair 
cross-section may be obtained unless there is proof—lacking

THOMPSON v. SHEPPARD



20a

it require an explanation as to why more blacks than whites 
were excluded when grand jurors were selected under the 
subjective standards of “ intelligence” and “ uprightness” .

Finally, the Court’s decision is in conflict with other deci­
sions with regard to the degree of underrepresentation held to 
require further remedial action. Thus, in Turner v. Fouche, 
1970, 396 U.S. 346, 90 S.Ct. 532, 24 L,Ed.2d 567, the Supreme 
Court held that further relief was required upon a showing 
that only 37% of the master list was black in a county 60% 
black, an underrepresentation of 40%, and in Preston v. 
Mandeville, 5 Cir., 1970, 428 F.2d 1392, the master list was 16% 
black in a county 29.3% black, an underrepresentation of 
45.4%.

1 therefore respectfully dissent.

here— that the composition of the 40% remnant is comparable to 
the 60% available.
Here of course the remnant was 37% (2,721 of 7,308) and 

contrasted with Broadway was of '/» of the voters, not all voters.

THOMPSON v. SHEPPARD



MEILEN PRESS INC.