Swain v. Alabama Motion for Leave to File and Brief Amicus Curiae in Support of Petition for Rehearing

    1st the

iiTtprpmp GJourt o f the Im tpfc S ta ll's
October T erm, 1964 

No. 64

R obert Swain,

A labama,

Petitioner,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF 
OF THE AMERICAN CIVIL LIBERTIES UNION, 

AMICUS CURIAE, IN SUPPORT OF PETITION 
FOR REHEARING

Osmond K. F raenkel 
120 Broadway 
New York, N. Y.

E dward J. E nnis 
165 Broadway 
New York, N. Y.

Melvin L. W ijlf
156 Fifth Avenue 
New York, N. Y.
Attorneys for the American Civil 
Liberties Union, Amicus Curiae



INDEX TO BRIEF

PAGE

Argument ........................................................................... 5

Conclusion.........................................................................  14

Cases:

Arnold v. North Carolina, 376 U. S. 773 (1964) ........... 6,9
Avery v. Georgia, 345 U. S. 559 (1953) ......................  10

Brown v. Allen, 344 U. S. 443 (1953) .....................7,10,11
Bush v. Kentucky, 107 U. S. 110 (1882) ..................  7

Cassel v. Texas, 339 U. S. 282 (1950) .......................... 9

Eubanks v. Louisiana, 356 U. S. 584 (1958) ..................  9

Goldsby v. Harpole, 263 F. 2d at 78 .............................  12
Gordon v. Mississippi, 243 Miss. 750, 140 So. 2d 88 

(1962) ............................................................................. 13

Hale v. Kentucky, 303 U. S. 613 (1938) ........................ 8
Harper v. Mississippi, ------ Miss. ------ , ------  So. 2d

------ (1965) .....................................................................12,13
Hernandez v. Texas, 347 U. S. 475 .................................  9
Hill v. Texas, 316 U. S. 400 (1942) .................................  8
Hollins v. Oklahoma, 295 U. S. 394 (1935) ..................  8

In the Matter of Newton, 224 F. Supp. 330 (D. C. W. D.
La., 1963) (Louisiana) ...................................................  6

Neal v. Delaware, 103 U. S. 370 (1880) ...................... 7
Norris v. Alabama, 294 U. S. 587 (1935) ...................... 7



11

PAGE

Patton v. Mississippi, 332 U. S. 464 (1947) ..............  9
Pierre v. Louisiana, 306 IT. S. 354 (1939) ..................  8

Keece v. Georgia, 350 U. S. 85 (1955) .......................... 9

Smith v. Texas, 311 U. S. 128 (1940) .............................. 8
Strauder v. West Virginia, 100 U. S. 303 (1880) ------ 6, 7

U. S. ex rel. Goldsby v. Harpole, 263 P. 2d 71 (C. A.
5, 1959), cert. den. 361 U. S. 838 (1959) (Mississippi) 6

U. S. ex rel. Seals v. Wiman, 304 F. 2d 53 (C. A. 5, 
1962), cert. den. 372 U. S. 924 (1963) (Alabama) .... 6

Whitus v. Balkcom, 33 F. 2d 496 (C. A. 5, 1964), cert, 
den. 33 U. S. L. Week 3209 (IT. S. Dec. 7, 1964) 
(Georgia) ................................................................... 6-7,11

Other Authorities:

IT. S. Commission on Civil Eights, 1961 Report, Book 5, 
Chapter 7 .......................................................................  7

Burke Marshall, Federalism and Civil Bights (Colum­
bia ITniv. 1964), page 37 ............................................. 12

Mississippi Code 

Section 1762 12



In the

ia tp rn n e  CEnnrt o f tlir I n t f r ii  States
October T erm, 1964 

No. 64

E obert Swain,

A labama,

Petitioner,

Respondent.

MOTION FOR LEAVE TO FILE BRIEF OF THE 
AMERICAN CIVIL LIBERTIES UNION, 

AMICUS CURIAE

The American Civil Liberties Union respectfully moves 
for leave to file a brief amicus curiae in support of the 
petition for rehearing in this case. The attorney for peti­
tioner has consented to the filing; the respondent’s attor­
ney has denied consent. Their letters have been filed with 
the Clerk of the Court.

The American Civil Liberties Union has been engaged 
for forty-five years in the national effort to secure the ap­
plication of the Bill of Rights and the Reconstruction 
Amendments to all persons within the jurisdiction of the 
United States. Its work has laid special emphasis on the 
procedural rights protected by the due process clause of 
the Fourteenth Amendment and on the substantive rights 
protected by that Amendment’s equal protection clause.

In the case at bar, the due process and equal protection 
clauses intersect. What is at stake is the right of a defen­



2

dant to receive the benefits of a fair trial regardless of the 
color of his skin. It is perhaps the nltimate right, for it 
involves the method by which a state may enforce its power 
to deprive a man of his physical liberty or, as in this case, 
of life itself.

In recent years the ACLU has engaged in special efforts 
to insure that Negroes in the Southern states become the 
beneficiaries of a fairly administered system of criminal 
justice. All the world knows that Negroes now are the 
victims of a distorted system of justice. Their second-class 
citizenship does not end at the steps of the court-house; 
it goes inside with them. Johnson v. Virginia, 373 U. S. 61 
(1963); Hamilton v. Alabama, 376 U. S. 650 (1964); Louisi­
ana v. United States, 33 U. S. L. Week 4262 (U. S. March 
8, 1965).

The ACLU is involved today in no less than a dozen 
cases in Mississippi, Louisiana, Alabama, Georgia, and 
Florida, which challenge the systematic exclusion of 
Negroes from jury service in those states. The Union be­
lieves that those cases, in conjunction with the related 
efforts of other organizations and attorneys, promise to 
affect substantially the illegal tribunals which, though con­
demned by the Constitution, nonetheless sit in judgment 
on men’s liberty. The Court’s opinion in Swain v. Ala­
bama, however, threatens to extinguish that promise. It is, 
in our opinion, an emphatic contradiction of the Court’s 
earlier expressions of special responsibility for the fair 
administration of criminal justice.



3

In order to inform the Court of our views, we respect­
fully ask leave to file the attached brief.

Respectfully submitted,

Osmond K. F raenkel 
120 Broadway 
New York, N. Y.

E dward J. E nnis 
165 Broadway 
New York, N. Y.

Melvin L. W itlf
156 Fifth Avenue 
New York, N. Y.
Attorneys for the American Civil 
Liberties Union, Amicus Curiae



In the

Suprem e (Em trt nf %  I n i t i o  States
October T eem, 1964 

No. 64

R obert Swain, 

—v.—■
Petitioner,

Ahabama,
Respondent.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, 
AMICUS CURIAE, IN SUPPORT OF PETITION 

FOR REHEARING

Argument

The brazen fact in this case is that in Talladega County, 
Alabama, where the population consists of 20,970 Negroes 
and 44,425 whites, no Negro has served on a petit jury 
at least since 1950.

The petitioner made two claims: first, that “Negroes 
are unconstitutionally excluded from jury service in that 
the State always strikes the token number of Negroes on 
the trial venires with the result that Negroes never serve 
on trial juries” ; and, second, that “ Negroes have been 
summoned for jury service in only token numbers and 
the State has offered no explanation of the small propor­
tion called.” The Court rejected both claims. We shall 
confine our brief to the second claim. We support the 
first, to be sure, but for brevity’s sake leave its discussion 
to petitioner’s able attorneys.



6

The evidence showed that though Negroes eligible for 
jury service (males over 21) constituted 26% of the total 
eligible population, only 10 to 15% of the names drawn 
from the box had been Negroes.1 The majority concluded, 
therefore, that “Alabama has not totally excluded a racial 
group from either grand or petit jury panels,” that “ an 
average of six to eight Negroes on these panels [does not 
constitute] forbidden token inclusion,” and that “ the evi­
dence in this case [does not] make out a prima facie case 
of invidious discrimination” (Slip Opinion, pp. 3-4). Fur­
thermore, the opinion said that “We cannot say that pur­
poseful discrimination based on race alone is satisfactorily 
proved by showing that an identifiable group in a com­
munity is under-represented by as much as 10%” (Slip 
Opinion, p. 6).

We believe that the interpretation of the prima facie 
rule adopted implicitly in the Court’s opinion is unwork­
able and calls a dead halt to the improvement of the ad­
ministration of justice in the Southern states.

Of all the areas of law with which this Court has dealt, 
there is none which has more consistently evoked uniform 
disposition than cases dealing with the systematic exclu­
sion of Negroes from service upon juries. Though the 
Court has refused to tolerate the practice from Strauder 
v. West Virginia, 100 U. S. 303 (1880), to Arnold v. North 
Carolina, 376 U. S. 773 (1964), it has persisted nonetheless. 
See, e.g., U. 8. ex rel. Goldsby v. Harpole, 263 F. 2d 71 
(C. A. 5,1959), cert. den. 361 U. S. 838 (1959) (Mississippi); 
U. S. ex rel. Seals v. Wiman, 304 F. 2d 53 (C. A. 5, 1962), 
cert. den. 372 U. S. 924 (1963) (Alabama); In The Matter 
of Newton, 224 F. Supp. 330 (D. C. W. D. La., 1963) 
(Louisiana); Whit us v. Balhcom, 333 F. 2d 496 (C. A. 5,

1 The range was actually 4 to 23%. The average was 10 to 15%. 
The 23% occasion was extraordinary. Petitioner's brief, p. 19.



7

1964), cert. den. 33 U. S. L. Week 3209 (U. S. Dec. 7, 1964) 
(Georgia). See too, U. S. Commission on Civil Eights, 
1961 Eeport, Book 5, Chapter 7.

We suggest that the explanation for that persistence 
lies in the nature of the cases the Court has decided as 
contrasted to the case at bar. That is to say, the Court’s 
decisions, with one exception,2 have been confined to such 
plainly outrageous situations, that it has been child’s play 
to comply with their language but to ignore their sub­
stance. A brief look at the circumstances of the earlier 
cases will make our point plain.

1. Strauder v. West Virginia, supra. A state statute 
limited jury service to whites.

2. Neal v. Delaware, 103 U. S. 370 (1880).
White population: 124,000
Negro population: 26,000
Negroes called for jury service: None.

3. Bush v. Kentucky, 107 U. S. 110 (1882). A state 
statute limited jury service to whites.

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

Jackson County
White population: 36,881
Negro population: 2,688
White eligibles: 8,801
Negro eligibles: 666
Negroes called for jury service: None within
memory.

2 The exception is Brown v. Allen, 344 U. S. 443 (1953). But for 
the Swain opinion, we would have thought Brown v. Allen was now 
a constitutional derelict. Whether it is or not, will be clarified by 
reargument in the case at bar.



8

Morgan County

Total population: 46,176
Negro population: 8,311
Negroes called for jury service: None within
memory.

5. Hollins v. Oklahoma, 295 U. S. 394 (1935).
Total population: 56,200
Negro population: 9,554
Negroes called for jury service: None.

6. Hale v. Kentucky, 303 U. S. 613 (1938).
Total population: 48,000
Negro population: 8,000
White eligibles: 6,000
Negro eligibles: 1,700
Negroes called for jury service: None for 30 years.

7. Pierre v. Louisiana, 306 U. S. 354 (1939).
White population: 49.7 %
Negro population: 49.3%
Negroes called for jury service: One within memory.

8. Smith v. Texas, 311 U. S. 128 (1940).
White population: 80%
Negro population: 20%
White eligibles: 90%
Negro eligibles: 10%
Negroes called for jury service: 18 out of 512 over 
seven-year period.

9. Hill v. Texas, 316 U. S. 400 (1942).
White eligibles: 58,000
Negro eligibles: 8,000
Negroes called for jury service: None for at least 
past 16 years.



9

10. Patton v. Mississippi, 332 U. S. 464 (1947).
White population: 22,310
Negro population: 12,511
White eligibles: 5,500
Negro eligibles: 25
Negroes called for jury service: Two or three over 
past 30 years.

11. Cassel v. Texas, 339 TJ. S. 282 (1950).
White population: 336,959
Negro population: 61,605
White eligibles: 7,167
Negro eligibles: 5,500
Negro service on grand jury: One on each of 21 
consecutive jury over 6-year period.

12. Hernandez v. Texas, 347 U. S. 475.
Non-Mexican population: 86%
Mexican population: 14%
Mexicans’ service on juries: None for 25 years.

13. Reece v. Georgia, 350 U. S. 85 (1955).
White population: 55,606
Negro population: 6,224
White eligibles: 16,201
Negro eligibles: 1,710
Negroes called for grand jury service: Six in 18 
years.

14. Eubanks v. Louisiana, 356 U. S. 584 (1958).
White population: 66 2/3%
Negro population: 33 1/3%
Negro service on grand juries: One in 18 years.

15. Arnold v. North Carolina, 376 TJ. S. 773 (1964).
White eligibles: 5,583
Negro eligibles: 2,499
Negro service on grand juries: One in 24 years.



10

In fact, then, all the earlier cases, except Brown v. Allen, 
supra, indisputably involved mere token inclusion.3 None­
theless, the language of the earlier cases stated the prima 
facie rule so positively that attorneys have relied upon it 
with more than good reason. The language is so uniform, 
consistent, and forcefully expressed, that skepticism would 
have been a waste of energy. But that reliance turns out 
to have in fact been foolhardy, because the Court now says, 
without warning, that a defendant does not show pur­
poseful discrimination even when one-half of the eligible 
Negroes in a county have not been called for jury service, 
when their exclusion is unexplained, and when no Negro 
has served on a petit jury for 15 years.

It is relevant to point out here the fallacy of Mr. Jus­
tice White’s statement that the record in this case showed 
that Negroes were “under-represented by as much as 10%” 
(Slip Opinion, p. 6). As phrased, the disparity appears 
relatively minor.4 Actually, the statement is seriously mis­
leading, because Negroes in Talladega County were under­
represented not by 10% but by 50%. What Mr. Justice 
White meant to say was that Negroes were under-repre­
sented by 10 percentage points, which is quite a different 
thing. His 10% presumably refers to the difference be­

3 Avery v. Georgia, 345 U. S. 559 (1953), involved more than 
token inclusion but it was decided on another ground. However, 
Mr. Justice Reed in his concurrence concluded that a prima facie 
case was made out by a showing that a jury list contained 5% 
Negro names where Negroes composed 14% of the eligible jurors, 
that is, where Negroes were under-represented by only 9% com­
pared to the 10% under-representation deemed insufficient in Swain 
to show prima facie exclusion. But see our discussion of that 10% 
calculation which follows.

4 Indeed, Mr. Justice White says, “ The over-all percentage dis­
parity has been small . . . ” (Slip Opinion, p. 6).



11

tween the 26% figure which represents eligible Negroes 
and the 10-15% figure which represents the number of 
Negro names drawn from the box. But in absolute num­
bers, 26% equals 4,281 [Petitioner’s brief, p. 3], and 10 
to 15% equals 1,640 to 2,460. Consequently, Negroes were 
under-represented not by 10%, but by from 66.4% to 
42.6%, an average of 54.5%.5

The practical issue confronting attorneys in systematic 
exclusion cases is to determine the point at which the state 
has the burden of explaining the disparity between the 
number of Negroes in a county and the number who have 
been called or who have served on juries. Common sense 
should inform us how to allocate that burden.

If the defense shows that Negroes are under-represented 
by 50% on the jury lists and totally unrepresented on petit 
juries, the defense knows as well as the state officers that 
the explanation is local segregation policy.6 Who then 
ought have the burden of trying to explain it? The an­
swer seems fairly obvious: those who are responsible for 
administering the judicial system—the state officials. The 
Negroes not called for jury service in Talladega County 
cannot explain why they are not called except to say that 
they are Negroes. That is the real reason, but it is not 
a reason the state can offer because it is an unconstitu­
tional reason. If the state officials have a better reason, let

5 In 1953, Mr. Justice Black thought that the presence of 4-7 
Negroes in each jury venire of 44 to 60, where Negroes composed 
one-third of the county’s population, was “glaringly disproportion­
ate.” Brown v. Allen, 344 U. S. 443, 550 (dissent).

6 “We start with a fair inference. If the segregation policy in 
a county is so strong that Negroes are systematically excluded 
from the jury system, community hostility would be generated 
against any ‘trouble-maker’ who would attempt to upset the all- 
white make-up of the jury system.” Whitus v. Balkcom, supra 
at 506.



12

them produce it. Given the opportunity in this case, the 
state had the audacity to speak of syphilis, gonorrhea, 
illegitimacy and the receipt of public assistance. The real 
reasons, as the Fifth Circuit said in Goldsby v. Harpole, 
“ rest more in the knowledge of the State.” 263 F. 2d at 
78. And the real reasons, we daresay, are constitutionally 
untenable.

Let us consider Mississippi for a moment, where jury 
service is restricted to “qualified electors.” Miss. Code,
§1762. In Harper v. Mississippi, ------  Miss. ------, ------
So. 2d------ (1965), the Mississippi Supreme Court reversed
a conviction because of systematic exclusion. The county 
involved had a total population of 21,139, 8,089 of whom 
were Negroes. 24 Negroes were qualified electors com­
pared to 5,172 whites. The record showed without dispute 
that for ten years the number of Negroes called for jury 
service were as follows: 1963—1; 1962—1; 1961—1; 1960— 
0; 1959—0; 1958—0; 1957—2; 1956—1; 1955—2; 1954—0. 
The Mississippi Supreme Court said “ long continued omis­
sion of Negroes from jury service establishes a prima 
facie case of systematic discrimination. The burden of 
proof is then upon the State to refute it.”

At some future time, perhaps 26% of the Negroes in that 
county will be registered voters. If they are called for 
jury service at the rate of 10-16%, will this Court say 
that the burden is on a defendant to prove that Negroes 
are qualified to vote, a procedural challenge which even 
the United States Government is unable to overcome. “ The 
federal government has demonstrated a seeming inability 
to make significant advances, in seven years’ time, since the 
1957 law, in making the right to vote real for Negroes in 
Mississippi, large parts of Alabama, and Louisiana, and 
in scattered counties in other states.” Burke Marshall, 
Federalism and Civil Rights (Columbia Univ. 1964) p. 37.



13

There was some progress being made in the hard job of 
whittling away at jury discrimination in the South before 
Sivain came down. Now that progress is seriously threat­
ened. If the promise of the equal protection clause is ever 
to be realized in the administration of criminal justice, the 
burden of disproving discrimination must rest on the state 
at least until the disparity between Negro population and 
Negro jury service is insignificant. That is the issue which 
the Court must reconsider in this case.

Both the state courts and the Fifth Circuit look here for 
guidance. If this Court will tolerate the 50% disparity in 
Swain, those courts will hardly require a more stringent 
test.

The Mississippi Supreme Court in Harper v. Mississippi, 
supra, closed its opinion with these words:

“We recognize that in some counties compliance with 
these constitutional requirements may present diffi­
culties, but they must be surmounted if the criminal 
laws are to be effectively administered. The United 
States Constitution does not require proportional rep­
resentation of the races on a jury, or even that mem­
bers of a particular race must be on a particular jury. 
As a practical matter, what is required is that the 
county officials must see to it that jurors are in fact 
and in good faith selected without regard to race.”

That is very strong language for that court. It is not 
speculative to say that the Mississippi Supreme Court vas 
persuaded that of all the racial issues that come before 
this Court, there was no expectation that its strong stance 
on jury exclusion would be qualified in any way.' But there

7 In the only other case in recent years in which the Mississippi 
Supreme Court reversed because of jury exclusion, it did so be­
cause it would have been “a vain and futile thing” to allow it to 
be reviewed by this Court. Gordon v. Mmmippi, 243 Miss. 750, 
140 So. 2d 88 (1M2).



14

is hope now for those who would flout the constitutional 
command. They can and will interpret Swain to mean that 
juries selected without regard to race are not constitu­
tionally sacrosanct after all.

In this time of rising expectations, the insistence upon 
strict constitutional compliance in the administration of 
justice is the foundation upon which all else rests. Of what 
use is the right to vote, the right to enjoy public accom­
modations, the right to a decent education, and the right 
to employment without discrimination, if a man is sent to 
jail or to his death by a jury from which a whole class of 
citizens is effectively excluded?

CONCLUSION

For the reasons stated above, the Court should order 
this case set down for reargument.

Respectfully submitted,

Osmond K. F raenkel 
120 Broadway 
New York, N. Y.

E dward J. E nnis 
165 Broadway 
New York, N. Y.

Melvin L. W tjlf
156 Fifth Avenue 
New York, N. Y.
Attorneys for the American Civil 
Liberties Union, Amicus Curiae

April, 1965



H E C O p f e i r