Salary v Wilson Brief for Appellants

    In t h e

tnitrii g>tatcH ffin«rt of Aiiprals
F or t h e  F if t h  C ircu it

No. 25978

Kev. J. A. Salary,

— y .—

John C. W ilson, Jr., et al.,

Appellant,

Appellees.

H onorable

No. 26072

A da Pearl Smith,
Appellant,

Gardner F. Goodwyn, Jr., et al.
Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN- DISTRICT-OF -ALABAMA —

BRIEF FOR APPELLANTS

Norman C. A maker 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

Demetrius C. Newton 
408 North 17th Street 
Birmingham, Alabama 35203

Oscar W . A dams, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



t t

I N D E X

Statement ............................................................................

Proceedings in Salary v. Wilson ............................  4

Proceedings in Smith v. Goodwyn ..........................  ®

Summary of the Evidence ........................................
(1) The Jury Board and Its Selection Techniques 12

(2) The Role of the Jury Board Members in Fill­
ing the Box .........................................................

(3) The Results of the Selection Techniques Em­
ployed by the Jury Board ..............................

(4) Qualifications of Negroes for Jury Service .... 22

(5) Selection Process of Grand and Petit Juries 24

27Specifications of Error ...................................................

A rgum ent

X__The Juror Selection Process In Use In the Bes­
semer Division Has Resulted In Racial Discrim­
ination Against Negro Residents of the Division,
Its Most Numerous Identifiable Racial Compo­
nent, In Violation of the Equal Protection Clause 
of the Fourteenth Amendment to the Constitu­
tion of the United States ........................................ 2
A. The Effect of this Court’s Opinion m Billings­

ley v. Clayton .......................................................
B. The Governing Legal Principles ......................  33.
C. The “ Objective Results” Established A Prima-

Facie Case .............................................................
D. The Failure of the Jury Board and Its Clerk

to Deal With the “Practical Problem” ........... 37

PAGE



11

II— The District Court Should Have Granted Injunc­
tive Relief In the Smith Case But, In Any Event,

PAGE

Declaratory Relief Was Mandated .......................  41

Conclusion ........................................................................  44

Certificate of Service .......................................................  45

T able op Cases

Alabama v. United States, 304 F.2d 5S3 (5tli Cir. 1962) 35
Avery v. Georgia, 345 U.S. 559 (1953) ..........................  31
Baker v. Bindner, 274 F. Supp. 658 (W.D. Ky. 1967) .... 43
Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) ....In, 2n,

3, 7, 8, 9n, 10,11,12, 
25, 29n, 30, 31, 32, 42

Bokulich v. Jury Commission of Greene County, Ala­
bama, No. 24048 (5th Cir. 1966) ..................................  43

Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) .......31, 32, 33n,
35, 38, 40

Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1967) 43
Coleman v. Alabama, 389 U.S. 22 (1967) .................. 34n, 42

Davis v. Davis, 361 F.2d 770 (5th Cir. 1966) ............... 35
Davis v. Jury Commissioners of Montgomery County,

261 F. Supp. 591 (M.D. Ala. 1966) ..............................  43
Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct.

877, 87 L.edf 1324 .........................................................  41

Eubanks v. Louisiana, 356 U.S. 584 (1958) ...........33n, 34n

Gray v. Main, CA No. 2430-N (M.D. Ala. March 29,
1968) ................................................................................  40n

Green v. County School Board of New Kent County,
V a .,------U .S .------- , 20 L.ed. 2d 716 (1968) 41



Hernandez v. Texas, 347 U.S. 475 (19o4) .............. -
Hill v. Texas, 316 U.S. 400 (1942) .............................d1’

op;
Jones v. Georgia, 389 U.S. 24 (1967) ■■■--»....— n
Jones, et al. v. Wilson, et al„ No. CA 66-92-S .-2 , 3, 9 ,1 ^  ^

Kennelley v. Travelers Ins. Co., 273 F.2d 479 (5th Cir. ^

hahat v. Bennett 365 F.2d 698 (5th Cir 1966)...........33, 35
Louisiana v. United States, 380 U.S. 145 (1965) ........... 40

Malone v. Emmet, 278 F. Supp. 193 (M.D. Ala. 1967^  ^

Mitchell v. Johnson, 250 F. Supp. 117 (M,D' 38

Mobley v. United States, 379 F.2d 768 (5th Cir. 1967^  ^

Norris v. Alabama, 294 U.S. 587 (1934) ......................  34

Patton v. Mississippi, 332 U.S. 463 (1947)
Pullum v. Greene, No. 25389 (5th Cir., June 18, 1968) ̂  ^

Rabinowitz v. United States, 366 F.2d 34 (5th Cir^ ^  

1966) .............................................................................

Scott v. Walker, 358 F.2d 561 (5th Cir. 1966) ......._ _  £
Smith v. Texas 311 U A  128 ( ) t 96
Stefanelli v. Mmard, 342 U.b. i  , 41

L.ed. 138 ......................................”  03
Swain v. Alabama, 380 U.S. 202 (196 ) ..........................

United States v. Board of Education of Bessemer, et 
al Nos. 25809-10-11 (5th Cir. June 3,1968) .........

Unit d States v. Dogan, 314 F.2d 767 (5th Cir. 1963) 34

I l l
PAGE



iv
PAGE

United States V. Duke, 332 F.2d 759 (1964) ..................  34
United States, ex rel. Goldsby v. Harpole, 263 F.2d 71 3o 
United States v. Jefferson County Board of Education,

372 F.2d 836 (5th Cir. 1966); on rehearing en banc,
380 F.2d 385 (5th Cir. 1967) ......................... - ........37> 38

United States ex rel. Seals v. Wiman, 304 F.2d 53 (5tli
Cir. 1962) ......................................7n, 9n, 31, 32, 33, 35, 38

United States v. Ward, 349 F.2d 795 (5th Cir. 1965) .... 41

Ware v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) 43 
White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) - . 6, 7n 
Whitus v. Georgia, 385 U.S. 545 ...................................... 35

Zwickler v. Koota, 389 U.S. 241 (1967) ...................... 41, 43

Statutes

Alabama Code, Title 30 ■§ 21 M958) ...............-..............
H. 173 of the 1966 1st Special Session of the Alabama 

Legislature.......................................................................

28 U.S.C. § 2283 ...............................................................4

Other A uthorities

Finkelstein, “ The Application of Statistical Decision 
Theory to the Jury Discrimination Cases,”  80 Har­
vard Law Rev. 338 (1966) ......................................35,

Kuhn, Jury Discrimination: The Next Phase, 41 South­
ern Cal. L. Rev. 235 ................................................... 34

Note, “ The Congress, The Court And Jury Selection, 
etc.” 52 Va. L. Rev. 1069, 1140 (October 1966) .......

4 Moore’s Federal Practice, 1174-1185 (2nd ed.) ...........



I n  the

luifrii States (fkmvt af appeals
F or th e  F ifth  Circuit

No. 25978

R ev. J. A. S alary,

Appellant,—v.—

J o h n  C. W ilson, Jr., et ai f

----- - Appellees.
No. 26072

A da P earl S m it h , 

—v.—

H onorable Gardner F. Gc

Appellant,

IOODWYN, JR>, et a i}

_ ________  Appellees.
appeals from the  united states district court 

for THE NORTHERN DISTRICT of ALABAMA

brief for appellants

These appeals1 are the second attemnt2 w  \r 
zens in Jefferson Cnrm+ir a i u P y Negro citi-
of Riv -n a^ama (embracing the cities
of Birmingham, Fairfield and Bessemer) to reform 
county’s juror selection process in o r r w V  1 the
representation of Negroes on the m + , .t0 achieve fair -________ _ negroes on the county’s jury roll and in

i ^°n'S0lidated ^  order of this Court dated July 2, 1968. 

ton, 359 F.2dP13*(5th Cir. 1 9 6 6 ) reported as BiUingsley v. Clay-



2

the jury box. The suits, which concern only the Bessemer 
Division (Bessemer cut-off) of Jefferson County, were filed 
a little more than a year apart in the District Court for the 
Northern District of Alabama. In Salary, No. 25978, filed 
below sub nom. Jones v. Wilson, CA 66-92 (N.D. Ala.) 
plaintiffs sued only the county’s jury officials and the Clerk 
of the Bessemer Division Circuit Court. In Smith, No. 
26072, the judges of the Bessemer Division Circuit Court 
and the division’s district attorney were named as defend­
ants in addition to the jury officials since plaintiff also 
sought an order to enjoin a criminal prosecution against 
her. The relief sought against the jury officials in each 
case, however, was identical: an order requiring representa­
tion on the division’s jury roll and in its jury box in a 
proportion approximating the numerical strength of the 
Negro population3 so that Negroes may have the oppor­
tunity to serve on juries in this division and thus partici­
pate in decisions affecting the lives, liberty and economic 
interests of the Negro majority.4 *

The previous appeal was from a 1964 order of the dis­
trict court denying injunctive relief^ on the basis of the

3 Negroes constitute a majority of those persons in the Bessemer 
Division eligible for jury service. By 1960 census data, Negroes 
constitute 14,199 of the 27,733 eligibles or 51.2% and, by later 
figures (1967) from the Birmingham Health Department, Negro 
eligibles are 20,238 out of a total eligible population of 36,396 or 
55.6% (R. 38-39).

4 As one commentator considering Negro participation in voting 
and jury service has put it:

“ Voting and jury service are the two most common instances 
of direct citizen participation in government. The most deeply 
rooted problems in both areas stem from the alienation of the 
Negro from the general affairs of the community, particularly 
in the South.” Note, “ The Congress, The Court And Jury 
Selection, etc.” , 52 Va. L. Ilev. 1069, 1140 (October 1966).

As this Court noted on the prior appeal: “Negroes seldom sit 
on petit or grand juries in the Bessemer Division.” Billingsley v. 
Clayton, supra, n.2 at 23.



3

record made in that proceeding. Unlike that earlier case, 
which concerned both the Birmingham and Bessemer divi­
sions of the county, the record in these cases relate only 
to the Bessemer Division as to which this court com­
mented :

“We do not approve the situation which the record 
shows to exist in the Bessemer Division.” 359 F.2d 
at 23.

Moreover, this Court’s decision affirming the district court 
stated that:

“ The court was amply justified in concluding that the 
plaintiffs failed in their proof.” 359 F.2d at 22.

but also said:
“It is appropriate to state that our conclusion in this 
case does not preclude the granting of relief in any fu­
ture proceedings in which racial discrimination of a 
systematic nature in the jury selection process is es­
tablished by adequate proof.” 359 F.2d at 24,_______

Thus, a major difference between these appeals and the 
former appeal is that these cases are now presented to this 
Court on the basis of a record in which the facts are fully 
developed (they are described more fully below at p. 12 
ff.) which appellants believe meet the standard of “ade­
quate proof” referred to in the court’s opinion. All the 
facts were developed in connection with the trial of the 
Salary case (Jones v. Wilson, CA 66-92 (N.D. Ala.)). The 
district court in the Smith case based its denial of relief 
on the record made in Jones (R. Smith 31)5 in which, of 
course, relief was also denied. 6

6 This reference is to the record in the Smith case, No. 26072. 
Throughout this brief, record references will be references to the 
record in the Salary case, No. 25978, unless otherwise indicated.

P



4

Proceedings in Salary v. Wilson

The amended complaint was filed on April 1, 1966 (R. 1).
Injunctive relief was sought inter alia

“ to secure the right of qualified Negro citizens of Jef­
ferson County, Alabama to be fairly chosen for service 
on grand and petit juries in the Bessemer cut-off, Jef­
ferson County, Alabama without discrimination based 
on race and to have the number of such persons chosen 
fairly to reflect their proportion of the number of all 
persons in Jefferson County qualified to serve on grand 
and petit juries in the Bessemer cut-off of Jefferson 
County, Alabama, further, that the grand and petit 
juries so constituted will be bodies truly representative 
of all persons in Jefferson County? Alabama qualified 
for jury service”

# # # *

“ to correct the effects of past and present racial dis­
crimination against Negro citizens in the Bessemer 
cut-off of Jefferson County, Alabama with respect to 
their opportunity to serve on grand and petit juries 
in the Bessemer cut-off of Jefferson County, Alabama 
by removing from the present jury rolls and lists and 
from the jury box, the names of all persons contained 
thereon and therein and substituting new jury rolls, 
lists, and boxes compiled in such a manner as to fairly 
reflect the relative proportion of Negroes to the total 
number of all persons in the Bessemer cut-off of Jef­
ferson County, Alabama qualified for jury service.” 
(R. 2-3)



This relief was sought, as alleged in the complaint, be­
cause o f :

“ the failure by defendants to acquaint themselves with 
Negro citizens resident in the Bessemer Division of 
Jefferson County, Alabama to the same extent and in 
the same manner in which they normally and regularly 
acquaint themselves with white citizens in the Besse­
mer Division of Jefferson County, Alabama or the fail­
ure of the defendants to apply the same methods and 
procedures to secure the names of qualified isegro citi­
zens resident in the Bessemer Division of Jeffeison 
County, Alabama, used with respect to securing the 
names of white citizens resident in the Bessemer Divi­
sion of Jefferson County, Alabama.” (R. 7)

The relief prayed in the complaint was that of an injunc­
tion seeking to correct the effects of past discrimination by 
forbidding the use of the current jury roll and box and 
affirmative relief requiring the compilation of a new jury 
roll which would more accurately reflect the relative numer­
ical strength of the black and white eligibles in the Besse­
mer Division (R. 11).

With the complaint was filed a motion for preliminary 
injunction asking for the relief prayed in the complaint 
(R. 13). On May 16, I960, the several motions of the de­
fendants to dismiss the complaint were overruled by the 
district court (R. 17) and on the same date defendants’ 
answer was filed (R. 18). The answer was a general denial 
of the allegations of the complaint (R. 18-21).

Before defendants answered, plaintiffs undertook discov­
ery by taking the depositions on May 5, 1966, of the Clerk 
of the Jury Board (PI. Exli. 18; R. 269), the Chairman of 
the Jury Board (PI. Exh. 20; R. 337), and the Clerk of the 
Circuit Court for the Bessemer Division (PI. Exh. 16; R.! .



6

239). Following the depositions, plaintiffs moved to in­
spect the current jury roll and jury box for the division in 
order to determine their racial composition6 which motion 
was granted (R. 22). The results of that first inspection of 
the jury roll and box, which was completed during the sum­
mer of 1966, are stated in plaintiffs’ request for admission 
of facts at page 23 of the Salary record.

Because the decision in White v. Crook, 251 F. Supp. 401 
(M.D. Ala. 1966) outlawed Alabama’s statute excluding 
women from jury service and required that the names of 
women be placed on jury rolls throughout the State by 
June 1, 1967,7 a new jury roll for the Bessemer Division 
was compiled and a new jury box filled by May 15, 1967 
to include women for the first time (R. 318). The new jury 
roll and box resulted from the normal house-to-house can-

6 The outstanding deficiency of the record made in the earlier 
case was the complete absence of proof on the results of the juror 
selection process in the two divisions of Jefferson County regarding 
the relative numbers of Negroes and whites whose names were on 
the jury roll and in the jury box. As this court quoted from the 
brief of the United States filed here on that appeal:

“ The difficult problem in this case is that a critical link in the 
evidence— the racial composition of the jury boxes— is miss­
ing. If for example the plaintiff could have proved that the 
jury boxes contain extremely low percentages of names of 
Negroes, or that some precincts heavily populated with Negroes 
are grossly underrepresented, these facts would cast consider­
able doubt upon the credibility of the testimony of members 
of the Jury Board explaining their system for selection. If 
on the other hand the proof showed that there was a substan­
tial or reasonable proportion of names of Negroes in the jury 
boxes the plaintiff would lose his case as to these defendants.” 

“ As the record stands, this Court could conclude that the plain­
tiff had failed in his proof, since the racial composition of the 
jury boxes was not proved.” 359 F.2d at 22-23, note 6.

7 The decision in White v. Crook was implemented by the Ala* 
bama legislature by enactment of 11.173 of the 1966 first special 
session. H.173 was approved September 12, 1966 after the first 
inspection of the jury roll and jury box of the Bessemer Division.

;



1

vass used by the Jefferson County Jury Board (see Bill­
ingsley v. Clayton, 359 F.2d at 19-20) winch because of 
White v. Crook and the implementing legislation was con­
ducted earlier than usual.8

Shortly after the new jury roll was constituted and the 
new jury box filled, the deposition of the Jury Board Clerk 
was taken again (PL Ex. 19; R. 317) and thereafter 
another order of the district court was entered permitting 
inspection of the new jury roll (R. 29). The jury roll was 
inspected during the summer of 1967 primarily by using 
the list of registered voters of Jefferson County on which 
the names were identified by race by use of a numenca 
code (R. 31) and, where needed, additional racial identifi­
cation of the names on the jury roll, which itself carries 
no racial designations, was made by the use of knowledge­
able Negro citizens from the community.9 The results of 
this second inspection of the jury roll_ are in the stipula­
tion at pp. 30-40 of the Salary record with the actual black- 
white totals at p. 36. This stipulation, entered into shortly 
before trial, also contains the pertinent population data 
with regard to the Negroes and whites in the Bessemer 
Division presumptively eligible for jury service (R. 38-39).

Both sets of data were given to an expert statistician 
on the faculty of the University of Pennsylvania (his 
qualifications are at R. 50-52) who computed the statistical 
probability of the results of the juror selection process 
based on the inspection of the new jury roll and who later 
stated his conclusions in this regard in a deposition taken 
pursuant to Rule 31 of the Federal Rules of Civil Pro­
cedure (see deposition of John S. deCam (R. 50)). (The

8 The canvass began in the first week of July, 1966 (R. 321) 
and was completed during the first week of March, 1967 (R. 333).

8 Cf. United States cx rcl. Seals v. Wiman, 304 F.2d 53, at 63 
n.5 (5th Cir. 1962).



8

notice of taking the deposition is at p. 41 and the interroga­
tories propounded are at p. 42.) This deposition was in­
troduced at the trial (R. 178); however, the defendants’ 
objections to two of the interrogatories (R. 48) were sus­
tained (R. 178, 182-183). (See discussion in argument 
below at page 36.)

After additional discovery (depositions of the persons 
who actually conducted the house-to-house survey) occurred 
and a pretrial conference was held, the stipulation (R. 30) 
giving factual data as to the numbers of Negroes and 
whites on the jury roll, on jury venires drawn between 
September and December, 1967, and those actually serving 
on trial juries during this same period was entered into 
and filed with the court on the day of the trial, January 16, 
1968.

At the trial, 14 witnesses testified, 22 exhibits were ad­
mitted into evidence and the stipulation and Dr. deCani’s 
deposition were received. No evidence was presented by 
the defendants. At the conclusion of the trial, the case 
was taken under advisement (R. 68)._____________________

On February 6, 1968, the court filed its opinion (R. 69). 
The thrust of the opinion was that the question of effec­
tive discrimination against Negroes in the Bessemer Divi­
sion on racial grounds had already been settled by this 
court in Billingsley v. Clayton, supra (R. 71) because:

“ the Jury Board of Jefferson County . . .  is presently 
following the same procedures and practices in secur­
ing names of qualified persons to be placed in the 
Bessemer jury box as was followed by them at the 
time of the Billingsley case” (ibid.).

The court’s opinion further noted that the defendants “had 
made a good faith effort to establish representative juries,

T



9

which would constitute a valid defense for Jury Commis­
sioners” (R. 71-72). The court opined that, in its judg­
ment, the jury board canvassers had found it difficult to 
obtain information from Negroes they had interviewed to 
secure names for the jury roll (R. 72) and that the appel­
lant here, Rev. Salary, had received a letter from the jury 
board in July of 1967 after this suit was filed soliciting 
his help in securing the names of qualified Negroes but 
that apparently appellant did not respond to this lettci 
(ibid.). On these bases, the court stated:

“ It is very apparent here, as in Billingsley, that the 
record reflects a good faith bona fide effort on the 
part of the Jury Board to give the Negro citizens of 
Jefferson County at least an equal, if not a privileged, 
opportunity to be called for jury service.” 10 (R. 75)

The judgment of the district court denying relief was 
entered February 6, 1968 (R. 82). Notice of appeal was 
filed on February 8, 1968 (R. 347).

Proceedings in Smith v. Goodtcyn

The complaint in this case was filed more than a year 
after the amended complaint in Jones v. Wilson (R. Smith 
1). The action sought a declaratory judgment that an 
indictment of murder against the plaintiff, Ada Pearl

10 The court’s conclusion in this regard echoes a theme struck
in this court’s opinion: .

“ For reasons not apparent from the record, it is evident that 
a large proportion of the Negro community is either uninter- 
ested in jury service, or being interested, does not avail itse 
fully of the opportunity to render jury service. The tech­
niques used by the Jury Board have made the opportunity 
available ”  359 F.2d at 23. See argument below at 37 ft.

!

|

♦



10

Smith,31 a Negro woman residing in the city of Bessemer 
was void because the grand jury which returned it was 
the result of the unconstitutional juror selection system 
in effect in the Bessemer Division. The complaint also 
sought a preliminary and permanent injunction enjoining 
the defendants from: (a) giving any effect to the indict­
ment; (b) trying the plaintiff before a petit jury selecte 
from a jury roll and box from which Negroes had been 
systematically excluded; (c) refusing to admit her to bail; 
and (d) refusing to reform the juror selection system  ̂ o 
include a representative number of Negroes (R. Smith 
2-3). In language practically identical with that m the 
complaint in Jones, the complaint in Smith alleged the 
discriminatory effect of the juror selection process in use 
in the Bessemer Division and prayed for the relief indi­
cated (R. Smith 5-10). On the date the complaint was 
filed, May 2, 1967, motions for temporary restraining order 
(R. Smith 11) and preliminary injunction (R. Smith 13) 
were made. The motion for preliminary injunction was 
set for a hearing on July 10, 1967 (R. Smith 16) but the 
hearing was never held.

On October 16, 1967, the district court entered an order 
dismissing the complaint and motion for temporary in­
junction on the basis of this court’s decision in Billingsley 
v. Clayton, supra, n. 2 (R. Smith 21). The order, however 
granted plaintiff leave to amend her complaint within 20 11

11 Mrs. Smith is the mother of nine children with whom she was 
living in a housing project in Bessemer on March 10, 1961, wheii 
she sliot and killed a white bill collector who was breaking in the 
door of her home when she was alone with her three smallest chil­
dren. (Transcript of hearing on motion to admit to bail filed 
the Bessemer Circuit Court.) After proceedings m both state and 
federal courts, Mrs. Smith was admitted to bail ($o 000) under 
her indictment in December, 1967. She is still at hberty under 
the bond and, to date, the state has not proceeded further against
her.

♦
I1



11

days “ settiar forth, such additional facts or circumstances, 
if any exist, to reflect wherein her complaint is based upon 
acts or practices substantially different from those decided 
in Billingsley v. Clayton, supra”  (ibid.). Plaintiff’s amend­
ment was tiled November 6, 1967 (R. 22) whereupon de­
fendants answered, once again moving to dismiss the action 
(R. Smith -25)

After the trial in Jones v. Wilson, the district court filed 
its opinion (R. 26). The opinion stated:

“ It appearing to the court that the issues involved 
in this case were identical with the issues involved 
in the case of Jones, et al. v. Wilson, et al., No. CA 
66-92-S (hereinafter referred to as Jones), which case 
was set for trial on January 15, 1968, no action was 
taken on defendants’ motion to dismiss filed on No­
vember 14, 1967.” (R. Smith 27-28)

The court then stated that the Jones case was heard by 
the court on January 16, 1968, and that the evidence taken 
in connection with that case “did not reveal any discrimina­
tory practices by the Jury Board” ; that the evidence did 
not “ establish discrimination against eligible Negroes in 
the formulation of the jury and in the filling of the jury 
box” ; nor was the “ evidence sufficient to establish practices 
or procedures in selecting petit or grand juries in the 
Bessemer Division that would permit discrimination against 
eligible Negroes” (R. Smith 28). The court citing Malone 
v. Emmet, 278 F. Supp. 193 (M.D. Ala. 1967), further held 
that declaratory and injunctive relief against the pending 
criminal prosecution was inappropriate. The court’s opin­
ion in Jones v. Wilson was attached to the court’s opinion 
in this case and made a part of the record (R. Smith 39).



12

The order dismissing this action was filed with the 
opinion (R. Smith 32) and notice of appeal was filed on 
February 26, 1968 (R. Smith 33).

Summary of the Evidence

The evidence in the Salary record common to both cases, 
was received at the Jones v. Wilson trial. In addition to 
the trial testimony, a large portion of the evidence was 
from the several depositions taken during the pre-trial 
discoverv phase of the Jones case. In summarizing this 
evidence below, appellants, for ease of reference, adopt, 
where appropriate, the headings employed by this court m 
its opinion in Billingsley v. Clayton, 359 F.2d 13, 18-22.

(1 ) The Jury Board and Its Selection Techniques

The record discloses that the techniques employed by 
the clerk of the jury board in selecting names for inclu­
sion on the division jury roll have not changed since the 
Billingsley case. The method still employed is that de­
scribed in this court’s opinion in that case, 359 F.2d at
18- 20.

Beginning in August of every even-numbered year, the 
regular house-to-house survey commences and lasts for 10 
months ending in May of the next succeeding odd-numbered 
year (R. 273-274). The names picked up in this survey 
are those that are included on the jury roll which is re­
constituted each odd-numbered year; these same names are 
used in filling the jury box to be used beginning m the fall 
(R. 275). The survey begins in the Bessemer Division ol 
the county (R. 280). In making the regular survey, the 
jury board normally employs 5 temporary field agents 
(R. 273), all of whom are white women taken from a civil 
service list furnished by the Jefferson County Personnel 
Board (R. 279). Each of these women was examined



13

either by deposition or at the trial and, uniformly they 
testified that they were residents of
without any knowledge of the Negro „  rghborhoods they
canvassed or without any suhstantml eontacts wdh No roe
in these communities or elsewhere <K. 103 ff 1189 ft', 204 ,
214 f f ; 226 ff).

In the conduct of the survey, the clerk of the 3ur5̂  board, 
Mr. Whitley, who has been the board clerk since July 16 
1964 (R. 270), assigns the streets to be worke y e ® 
agents who work as a team; the team goes to the assiene 
a?eas in an automobile driven by the clerk or a member 
nf his staff - they get out of the automobile and woik up 
one side o f ’ a block and down the other side where they 
Z  picked up and assigned to the next street (E. 286V 
During the months of the survey the hours worked 
8 a.m to 5 p.m. from Monday to Fnday (ibid.).

The field agents use information lists (work sheets)
. . p v latino* the name, address, date and

containing spaces e g 077) The agents go
nlace of birth and occupation (R. = 0
UP to the doors of the homes in the areas a*d ta lk to
someone at the house and by t ns means^ tiy^t ^  ^  ^  
information on the w o r k s  ( ■ V ^

n :  & = £ :  r  r  * *
L riw ! nut and mailed back to the clerk’s office (R. 286). 
T h f p o s t t r d t  use during the 19G4-65 and 1966-67 sum 
The p . . , -n thn=!p used in previous suiveys
V hh fteexeept on of the change of the name of the clerkvr e r cs
is visited, lt IS not res 1 ’ f the
„ „  the return of the p o s t* £ £  J ^ k  testified 
person surveye race py who answers the door;

! f f t ° i s einaa Negro neighborhood, it is assumed that the

t •

T



I

i \
I I

14

w  it is in a white neighborhood 
person is a h-egro, hi , that the per-
Ske Mountain Brook, the assumption is mad * *  P
son living at that address -  white even thou^ ^  (r  
answers the door since, nc) ^  race is kept
289). In any event, no (ibid.),
anywhere in the records of the clerk or Du y

Sometimes the information is g o t t e n ta^  ^

neighbor (B. 288). In ‘^ b y  n ighbors, thus, if a 
reli o n ^  (this was, of

^  * 4 -0 5  survey, Uves in the next 3 or
houses, then these houses are skipped ( . ■

In the county’s rural area^ a Ynttese rural
e„t  'tom  the house t„^ „u seore ^  ^  ^ su ite d  for
areas, post masters There are, how-
the furnishing of juror names B 2921J  and
ever, no Negro post mas ers m t o t e -  ^  
the clerk could recall on y ° »  " ^  areas (ih id .); hut lie 
a Negro store keeper in on he name
could not remember his ”  ‘ “ ’areas Ubid.). The rural 
any Negro he knew m 1 e 111 ‘  ..difficult areas” which 
areas of the division -  «  nior clerk rather

^ n  by S e  female field agents (B. 274).
, • ru„ -R oom er Division encom- 

The survey conducted m voting districts
passes three precincts correspond g thege pre.

cinets were precinct 33 (the

fie,d\ a,'V v i t ^ m  immediately adjoining Fairfield) £  
vicinity of Vmesvii effect when the
280-281). This p r e s e t  ” ^ i aion wereinspected in 1966.
jury roll and box tl ion of the jury roll in

53 had been redesignated as pre-



15

cincts 1 and 2, respectively, for voting purposes though
the designations on the jury roll had not chanp  ’ preC^ C

/n  These three precincts iurnisli9 was the same (R. 6/.). J-ucse n
the names of all the jurors whose names are place on
jury roll for the Bessemer Division by the clerk ai
staff.

The clerk of the board made no special effort to acquaint 
himself with Negroes in the precincts comprising ^ B e s ­
semer Division prior to conducting the survey nor did 
instruct anv of his staff assistants or field agents to make 
this effort (R. 295); he could remember the name of on y 
one Negro in one of the three precincts (precinct 53) an 
that was because at some prior time he had woike wi
this man (R. 294).

The testimony of all individuals having anything_to do
with the house-to-house canvass was unl ° ™  ; ious..
lowing effect: that they found Negroes to he suspicious 
l ? ;  white canvasser when she approached the door to a
Nevro home (li. 298); that because of this it was ea
to get information about their neighbors from white peo- 
10 ° -yT ct? 19  ̂ 198) and there was a
Pl° ^ N e g t o . S i b -  even if they hnew
to^nexf1 door neighbor to divulge the name for fe.ird .at 
lo do so would get the neighbor into double ( . 
n  d Of the female canvassers testified that to her it often 

d tha Ne'roes “ were afraid” and in her judgment

thei ighhorhood Q"  ^ s ,  however,

T te t l that it appeared that sometimes they were unable 
to get the names of Negroes from their neighbors because 
often their neighbors did not know the proper name 
the individual involved (R. 10b) and it was conceded th 
te re  were occasions when white people were also reluc-

I
i



16

tant to give out information regarding someone (R. 326).
All in all, however, it is clear from the record that Negroes 
were “ suspicious” (R. 327) of the white female canvassers.

Notwithstanding, no Negro canvassers were used in the 
survey (R. 298, 327). Though the board clerk conceded 
that Negro canvassers could probably get more informa­
tion in Negro neighborhoods (R. 328), he did not request 
Negro canvassers on the two occasions that he went be­
fore the Jefferson County Personnel Board with a mem­
ber of the jury board to request canvassers for the two 
surveys over which he presided (R. 167). At the time of 
trial, no Negro canvassers had ever been used nor had 
any been hired and the board had no plans to hire Negro 
canvassers for the canvass scheduled to begin in August,
1968 (R. 168). The explanation for the failure to use 
Negro canvassers is that all personnel used in the survey 
must, by law, come from the personnel board and that 
board had never furnished any Negro canvassers to the 
clerk of the jury board (R. 174-75).______________________________

Though it is clear that no special effort was made during 
the canvass itself to get Negro names (R. 323), in the two 
surveys conducted since the record was closed in the Bil­
lingsley case (the results of which are described below at 
p. 19 ff), the procedure of mailing letters to some Negroes 
requesting them to furnish Negro names for inclusion on 
the jury roll was retained (R. 297) (cf. 359 F.2d at 20).
For the 1965 compilation of the jury roll and filling of the 
jury box (the survey commencing in 1964), 63 letters were 
mailed to Negroes in the entire county (both divisions) 
on June 1, 1964 (R. 300; Exhibit 1 to Deposition of Bill 
R. Whitley taken May 5, 1966 (PI. Exh. 18)). Only four 
of these letters, however, were mailed to Negroes in the 
Bessemer Division (R. 303, Exhibits 2-5 to the deposition 
op. cit.). Ten answers were received from the 63 letters

*



•i a <K 302) but the clerk did not know whether he mailed (B. 302), D f the four addressees in
received any replies fl0“  & J The cierk used the
the Bessemer Division (B. 30̂ ° O): '  to that was used
same list of Negroes to mai pst was
by the prior jury board c le rk (»• ^  departed
left in the clerk’s <> ce^w primarily the names of
and the names on bulletin boards in the
Negro ministers taken came from
front of Negro church* hou h (R 136).
the Birmingham and Bessem 7 ^  ^  bos (the
For the 1967 recoMUtu' 78 was addressed
canvass began ^j-966) t entire county but only
to Negroes m July of 1Jbb the Bessemer Divi-
15 r g l t o " ^  c L d  not recall how ^

£  received, but Kev. X
plaintiffs W ow  1 filed (B. 113)
after the complain havin'* received a
and the clerk’s office had no reco d ^  ^  sent
response from ^ 5  ; , ! ,  the record « -
to Negroes in the Bessemer footnote in the
plaintiff’s Exhibit 17 and «  ^ Bote 5 ). The letter asks 
Billingsley case (oo9 r M  ’ « WOuld want to
the addressees to recommend persons yo . ^  & case
sit on the jury w h i c h ^  J  f , (ibitL) (R .
involving your own life, lib Y P iiations nor

» > • No ^ 4  derk ° r a,,y were any - „  ,-r? onn 3Qb) Neither the clerk 1101
members of his staff^Iw » £ £ >  ^  ^  ^  ol th
any member t b either attempting to contact
few letters that we letters or by telephoning
personally the addressees of the letters oy
them (B. 166).

^  t a k Z b a S  l ^ T h e r e

17

T



18

the cit*, directory is used to complete the work sheets as, 
for example, with respect to the correct listing of occu­
pation (R. 291) and the spelling of names (R. 323). The 
telephone book is also used for this purpose but neither 
the directory or telephone book is used as a source of 
names (ibid.). Voting lists are not used at all (R. 324). 
After the work sheets are checked against the city direc­
tories and telephone books, they are turned over to typists 
to type the cards which go into the. jury box and the typist 
in turn turns the cards over to the senior clerk who checks 
to determine whether the individual has a criminal recoi d 
(R. 291, 307-308). “Other than physical disqualifications” 
(R. 322), the only check made to determine whether a 
person’s name will ultimately be included on the jury roll 
is whether there exists a criminal record (R. 307-308). 
After the senior clerk has made the criminal check, the 
cards are turned over to the clerk typists who type the 
jury roll from the cards (R. 307). The jury roll is made 
up alphabetically within each precinct and once the jury 
roll is typed up from the cards, the cards are then avail­
able to be placed into the jury box (R. 312).

(2 )  The Role of the Jury Board Members in Filling 
the Box

The jury board meets once a month with the clerk of 
the board during the period of the canvass to check on the 
clerk’s progress and to discuss any problems that may 
arise, but all the “detail work” is delegated to the clerk 
and his staff (R. 339-340). On the last Tuesday in every 
odd-numbered year, the members of the jury board meet 
to fill the jury box (R. 340). The board members, without 
looking at the cards individually, place the cards in the 
jury box (R. 341). The president of the board made it 
clear that he and the other board members rely on the 
judgment of the clerk and his staff and simply ratify what



19

they have done; they themselves don’t select any names 
nor do any members of the jury board actually go mto 
the precincts (R. 341). The names initially placed in t 
jury box correspond with those that have been typed on 
the jury roll (R. 309). At the end of each two-year perio , 
the names left in the jury box are destroyed and a new 
jury roll is made from a new set of cards based on a new 
canvass (ibid.). The new jury roll has the names ot re­
peaters whose names are picked up in the new canvass 
providing they have not changed their residence from 
previous survey (ibid.). However, the names of people 
who have actually served on juries during the two-year 
period when a jury box is being used are held m reserve 
out of the next jury box when it is filled so that they w 1 
not be called during that two-year period (lbi .). 
the jury box is filled by the members of the jury board, 
the president of the board who, other than the senior ju ge 
of the court for the Bessemer Division, is the only person 
who has a key to the box, locks the jury box (R. 344) and 
the box is delivered into the custody of the clerk ot the 
Bessemer Division Circuit Court (R. 243).

(3 ) The Results of the Selection Techniques Employed 
by the Jury Board

As noted above, the record in the Billingsley case did 
not contain the racial results of the initial selection of 
juror names. Through extensive pre-trial discovery re­
lating to two successive jury rolls compiled after wo 
successive surveys, the results of the initial selection of 
names were determined. The jury roll compiled as a 
result of the 1964-65 survey contained 9,546 names; 6to 
were the names of Negroes (R. 24). By precincts, the 
results were: precinct 9, a total of 64 names of which 
only one was Negro; precinct 33, a total of 8,102 names



20

of which 398 were Negroes; precinct 53, a total of 1,3S0 
names of which 276 were Negro (R. 23-24).

By the time the Bessemer Division Jury Box was in­
spected in the summer of 1966, there was, of course, a 
smaller number of names than the number on the cor­
responding jury roll since the box had been used for 
some months. However, the totals derived from inspec­
tion of the jury box were: of 6,223 names only 444 or 
approximately 1% were the names of Negroes (R. 23).

A year later after a new jury roll was compiled, in­
cluding women for the first time, the jury roll was again 
inspected. Since at the time of inspection in the summer 
of 1967 no names had as yet been drawn from the jury 
box, it was only necessary to inspect the roll. That in­
spection revealed a total of 1,549 names of Negro men 
and women (R. 36). According to the testimony of the 
clerk of the jury board, the new jury roll contained 
12,050 names (R. 319). However, by the count of the 
persons who did the actual inspection of the roll, there 
were only 10,429 names (R. 36). The discrepancy is 
probably accounted for because during the course of in­
specting the jury roll there were several instances of 
repeated names (R. 37). Assuming the correctness of the 
clerk’s count, only 12.9% of the names on the roll were 
Negro; if the figure arrived at during the inspection is 
correct, Negroes are 14.9% of the roll (R. 38).

Appellant’s statistician calculated the probabilities with 
respect to both sets of figures and with respect to two 
different sets of population figures. According to the 1960 
census, there were 14,199 Negroes over the age of 21 in 
the Bessemer Division of a total 21 and over population 
of 27,733 (R. 39). Thus, based on the census figures, 
Negroes constitute 51.2% of the persons presumptively 
eligible for inclusion on the jury roll (ibid.). However,



I

■21

more current population rigures were derived from data 
furnished by the Birmingham Health Departmcn These 

showed that in 1967 there was a total of 36,39b 
p e l n s 20years of age and older in the Bessemer >Dm- 
• f 90 were Negroes (ft- 38). lnus, iNe

groes°Presumptively eligible for inclusion on the Bessen^ r 
Division jury roll were 55.67s of the total population (E.

39).
Using this data, plaintiff's statistician who •is th e je c -

„rd shows, is extremely well qualified “
mined that the probability of _ obtaining lo49 or
Negroes on a jury roll of 12,050

“ is so small that its meaning is difficult to grasp- It
is about the same as the probability of tossm0 9,842
“  more heads consecutively with a fair com or he-
in<r dealt 251 or more consecutive bridge ran s, ea

° • 1  ̂ 7nades or being dealt 509 or more con-contammg 13 spades, oi dli g
secutive royal flushes in a game ot five-caid 
poker.” (K- 54-55).

But on the more favorable assumption to the jury selec­
t s  that there were only 10,429 names on the jury roll,

the probability but "till
55)”  As the statistician continued:

••It is roughly the same as the probability of tossing 
6456 or more heads consecutively with a fair , 
or bent" dealt 164 or more consecutive bridge hands 
l h  c o n t a i lg  IS spades, or being dealt 334 consec­
utive royal flushes in a game of five-card draw poker.

(B. 55).

And even on the assumption that there were as many as t% more names of Negroes on the jury roll than



2 2

acta: counted (Question 18, R. 44), the statistician con­
duced that the probabilities for the actual result as shown 
were extremely small (R. 55-5G).12 He further concluded 
that “ [i]n 10 years of professional consulting, I have 
never seen probabilities this small” (R. 55), and thus 
stated that in his professional opinion the method of 
selection of jurors in the Bessemer Division was not inde­
pendent of race (ibid.).

(4) Qualifications of Negroes for Jury Service

The population data put in evidence at the Jones trial 
(R. 38-39) show that a majority of the persons in the 
Bessemer Division qualified for jury service on the basis 
of residence and age are Negroes. The jury board clerk 
testified that the principal basis for disqualifying a per­
son whose name was picked up in the survey was whether 
the person had a criminal record (R. 308, 322). The clerk 
of the court estimated that there were between 600-700 
criminal cases a year in the Bessemer cut-off (R. 122) and 
the judge of the Bessemer Circuit Court who tries crim­
inal cases estimated that about 60% of all criminal defen-

12 “ To make my assumptions explicit, I am adding five per cent 
of the jury roll to the 1549 Negroes on the jury roll._ If the jury 
roll contains 12,050 names, I add 603 (5%  of 12,050) to lo49, 
giving 2152 Negroes, or 17.86%. If the jury roll contains 10,429 
names, I add 522 to 1549 giving 2071 Negroes, or 19.86%. If 
20,238 out of a population of 36,396 persons are Negroes, the prob­
ability that random selection of a jury roll of 12,050 persons would 
yield a roll containing 2152 or fewer Negroes is 1.7 x 10'2260, or a 
number which can be written as a decimal point followed by 2259 
zeroes and the number 17. It is about the same as the probability 
of being dealt 388 consecutive royal flushes in a game of five-card 
draw poker. If 14,199 out of a population of 2/,733 persons are 
Negroes, the probability that random selection would lead to a jury 
roll of 10,429 persons of whom 2071 or fewer are Negroes is 7.9 x 
10-1415. This probability can be written as a decimal point followed 
by 1414 zeroes and the number 79 and is roughly the same as the 
probability of being dealt 243 or more consecutive royal flushes 
in a game of five-card draw poker.” (R. 55-56).



-----juLm ~~

23

dants are Negroes and the ratio of convictions of blacks 
to whites on the basis of guilty pleas is about 60-40 (ibid.); 
this same ratio bolds with respect to convictions after 
jury trials (R. 148). This estimate of the number of Ne­
groes convicted of crimes compared to whites similarly 
convicted is consistent with a Negro population of around 
55% (R. 39). Thus, there is no basis for assuming that 
a greater number of Negroes than whites were disqualified 
because of a criminal record.

Though no question was raised by appellees with respect 
to the disqualification of Negroes because of educational 
factors (indeed appellees put on no evidence at all to 
attempt to show that a substantial proportion of the ma­
jority Negro population was not qualified for jury service), 
appellants nevertheless introduced at the trial evidence 
tending to show that most of the Negroes m the Bessemer 
cut-off who are qualified for jury service by residency and 
age also possess the requisite level of intelligence judged 
by educational factors.13 The principals of all the Negro 
hitrh schools in the Bessemer cut-off testified as to the 
number of graduates from their high schools for the years 
1960-65 and exhibits showing the number of such graduates 
were received in evidence (PI. Exh. 1-6 ; R. 89, 92, 9o, 97, 
99 102). These years were chosen because most of t e 
persons graduating in those years would have been 21 
years old at the time of the most recent house-to-house 
survey and, thus, eligible for inclusion on the jury roll 
(R. 184). And, as to older Negro residents, a principal ot 
one of the high schools testified that between 65 and 70% 
of the students who had formerly graduated from his high 
school remained in the Bessemer Division because it is an

13 All that is required under Alabama law is the ability to read 
English Even this is not required if a person is a freeholder 
or householder” Ala. Code. Title 30 §21 (19o8).



24

industrial center (R. 100) to indicate to the court that there 
were a substantial number of Negro high school graduates 
(who presumably can read English) in the Bessemer cut­
off and thus eligible for selection as prospective jurors. 
As stated above, appellees put on no evidence to show the 
contrary.

(5 ) Selection Process of Grand and Petit Juries

After the jury box is filled by the members of the jury 
board, it is delivered to the clerk of the Bessemer Circuit 
Court about the first of October in every odd-numbered 
year (R. 242). Civil and criminal cases involving jury 
trials are held throughout the year except the months of 
July and August (R. 244). Most venires drawn from the 
box are drawn for one week (R. 246) and typically about 
24 venires are drawn each year (R. 251). About 3 or 4 
grand juries are organized each year in the Bessemer 
Division (R. 260).

After the week’s criminal and civil docket is set, the 
clerk of the court asks the senior judge of the court to 
draw a venire containing a sufficient number of names for 
empanelling juries to try both the civil and criminal cases 
(R. 242, 245). The judge determines how many names are 
drawn and usually between 80 and 100 names are drawn 
for one week (R. 247). The clerk takes the jury box out 
of his office safe, delivers it to the judge who opens the 
box and draws the names out in open court 20 days in 
advance of trial (ibid.). After the names are drawn, the 
box is locked by the judge and the clerk delivers it to his 
safe (R. 247-248). The cards are then given to the clerk 
who arranges them alphabetically and makes up the venire 
(R. 248). The list of jurors drawn for the venire is made 
up in duplicate with the original being delivered to the 
sheriff for the purpose of summoning the jurors whose 
names are listed (R. 248).

!



25

The sheriff then either makes or attempts service, and 
makes a return on his venire list to the clerk who records 
on his list whether the juror was served or not found (R. 
248). On the Monday morning of trial week, the jury is 
organized in open court and the clerk calls the roll of those 
persons who have been found (ibid.). After the jurors are 
selected for trial of the criminal cases, the names remain­
ing on the venire are sent to the judge of the court handling 
civil cases (R. 254). The clerk, after removing the cards 
that were drawn from the box bearing the names of the 
jurors chosen for criminal trials, delivers the remaining 
cards to the judge who tries the civil cases (R. 255). Judge 
Ball, who tries the civil cases, discontinued the practice 
of organizing the cards into separate numbered juriesj in 
1966 after this court’s decision in Billingsley v. Clayton 
(R. 256-257). However, he later resumed the practice of 
organizing the venires into separate numbered juries (R. 
117-118). Five such separate juries are organized on the 
average for the trial of civil .cases-af-ter—the-jurors--are 
selected for the ci’iminal trials (R. 118).

Judge Ball testified that he organizes the numbered 
juries after all excuses and disqualifications have been 
noted by a process of shuffling the cards brought to him 
by the clerk and then counting out 12 each; each group of 
12 is designated as jury No. 1, jury No. 2, etc. (R. 143). 
He testified that this is done “ simply for organizational 
purposes” (R. 144). Any odd number of cards remaining 
after the last 12 man jury is organized is designated as 
another numbered jury (ibid.).

Grand jury venires are drawn in much the same way as 
petit juries. Typically between 35-50 names are drawn 
from the box (R. 259). After the cards are drawn, they 
are placed in a hat from which the judge draws 18 names 
for the grand jury panel (R. 153). The clerk of the court



26

testified that the highest number of Negroes he had ever 
seen on a grand jury was 4 while Judge Goodwyn, senior 
judge of the court who tries the criminal cases, testified 
at the trial that on the most recent grand jury empanelled 
in the court there were 6 Negroes (E. 145).

With regard to the petit jury venires, Mr. McAdory, 
the clerk of the court, stated in his deposition taken before 
trial that 10 Negroes were the most that he had ever seen 
on any venire during his years as clerk (R. 258-259). This 
is the most that he had ever seen in the courtroom when 
the jury was organized on the Monday morning of trial 
week (ibid.). Appellees’ evidence of the number of Negroes 
on the venires between September 11, 1967 and December 
11, 1967, a little more than a month before trial, is in the 
record at pp. 33-35. That evidence shows that the highest 
number of Negroes on any venire was 15 during the week 
of September 25 and that this venire contained 73 persons 
(R. 33-34) and the smallest number was 5 during the week 
of November 6 on a venire of 52 persons (R. 34). Of the 
two grand juries empanelled during the period, there were 
4 Negroes on the grand jury drawn during the week of 
September 11 (R. 33) and 6 on the grand jury empanelled 
during the week of November 2/ (R. 34). This last grand 
jury was the one referred to by Judge Goodwyn in his 
testimony, supra.

j i Overall, during this two month period just before the
trial, there were 384 veniremen drawn of whom 71 or ap­
proximately 18% were Negro (R. 35). Plaintiffs statis­
tician was asked to calculate the statistical probabilities 
involved in this occurrence and to compare these prob­
abilities with those calculated with respect to the per­
centage of Negroes on the jury roll (R. 44-45). As before, 
he calculated these probabilities on the basis of both a 
55.6% Negro population and a 51.2% population (R. 56).



27

His conclusion m  that “ [i]n every case, Negroes are 
underrepresented on the juries” (R. 57). In comparing 
these probabilities with those calculated on the basis o 
the much larger sample of more than 10,000 names which 
were on the jury roll, he concluded that, of course, [t]hese 
probabilities are of an entirely different order of magni­
tude ” but that this was because “here we are dealing wit 
samples of less than 100 persons” (R. 57). The numbers 
of Negroes on the venires drawn during this period in 
relation to the total number of names on the venires did 
not persuade appellant’s statistician m his expert judg­
ment to alter his previously expressed conclusion that the 
method of juror selection in the Bessemer cut-off “has not 
been independent of race” (R. 55). He stated:

“My opinion is still quite consistent . . . The racial com­
position of the 36 juries we have examined in detail 
[those veniremen drawn from September 11 to De­
cember 11, 1967] is extremely unlikely if the juries are 
selected at random from the stipulated populations”
(R. 57).

Specifications o f Error

The district court erred:
1. In refusing an injunction against appellees in Salary 

on a showing that Negroes, a majority of the jury eligibles 
in the Bessemer Division, are substantially underrepre­
sented on the jury roll and in the jury box and that ap­
pellees had not adequately discharged their affirmative duty 
of assuring a fair cross-section of the eligible population.

2. In sustaining in Salary appellees’ objections to inter­
rogatories No. 15 and 16 propounded to Dr. John S. deCam.



28

3. in refusing in Smith, to enjoin appellees from giving 
any effect to the indictment against appellant and from 
empanelling a petit jury to try her in the face of evidence 
showing the racially discriminatory result of the jury selec­
tion process used in the Bessemer Division.

4. In not issuing a declaratory judgment that the in­
dictment of murder returned against appellant, Ada Pearl 
Smith, is unconstitutional and void because of the dem­
onstrated racially discriminatory effect of the juror selec­
tion process in use in the Bessemer Division.

ARGUMENT 

• I

The Juror Selection Pi*ocess In Use In the Bessemer 
Division Has Resulted In Racial Discrimination Against 
Negro Residents o f the Division, Its Most Numerous 
Identifiable Racial Component, In Violation o f  the 
Equal Protection Clause o f the Fourteenth Amendment 
to the Constitution o f the United Slates.

A. The Effect of this Court’s Opinion in Billingsley v. Clayton

At the outset, appellants think it important (because it 
was so important to the district court) to briefly discuss 
the effect of this court’s prior decision on the proceedings 
below. In a very real sense, this court’s opinion cast the 
mold into which was poured all of appellants’ considerable 
effort to demonstrate to the district court that the methods 
and procedures used by the clerk of the jury board at the 
initial stage of selecting the names of eligible jurors did 
in fact result in discrimination against Negroes in the 
Bessemer Division. The impress of this mold on the dis­
trict judge’s mind was such that appellants’ substantial



39

proof was hold for naught. The fact that this court had 
on a prior occasion affirmed the demal of injunctive r

predisposition to accept—despite this cour s 
claimer14—the decision in Billingsley as controlling.
' In its order filed October 16, 1967, dismissing the com­
plaint in the Smith case, the court stated:

“that the complaint in this action presents and is 
founded upon the identical issues decided in Hillings y 
V Clayton, 359 F.2d 13 (1966). certiorari denied 38o 
u  S 811 (1966), and it not appearing anywhere m the 
complaint that there is any different matter tor con­
sideration here than was considered and “
Billingsley v. Clayton, supra, (ft. 21) (e
phasis supplied)

And even prior to receiving the evidence, the district judge 
in a pretrial conference declared that m Ins opinio 
Billingsley case was dispositive hut requested the parties 
to file pretrial memoranda discussing its impac on 
present proceedings ( R .  58).

Each time appellants were required to address them- 
selves to the question of the effect of this court s previou 

• -ran +hpv responded in the same way. See, e.g., tn 
amended complaint in the S case (E. Smith 22) an

-------------- +n „ tq tP  t h a t  o u r  c o n c lu s io n  in  t h is  c a s e  does-
14 “ I t  is  a p p r o p r i a t e  t o  s t a t e  t h a t  o u r  c p r o c e e d in g s  m

n o t  p r e c lu d e  t h e  8'.r a n t " 1F f  s y s t e m a t ic  n a t u r e  in  t h e  j u r ySi&Xirsrs&VX-. *» -*

9



...

plamxiifi?- pretrial memorandum in Jones ( R .  58). The re- 
sponse given on each occasion was based on appellants’ 
reading of Billingsley. What this court appeared to be say. 
mg was that, “ if there is discrimination against Negroes 
on racial grounds as a consequence of the juror selection 
process extant in Jefferson County, Alabama, it has not 
been proved to our satisfaction; if such proof is available 
it can be made before the district court if the parties so 
desireand once this is done the district court must grant 
relief; If, as appellants submit, this is an accurate reading 
of this court’s Billingsley decision, if this court did no 
more than conclude that the district court on the prior 
record was correct in deciding that the plaintiffs had not 
proved their case, then an approach to the case of the kind 
obviously taken by the district court imposed an unneces­
sarily heavy burden on appellants in attempting to prove 
a case of jury discrimination because it meant that the 
court was predisposed to denigrate a considerable amount 
of appellants’ proof which appellants submit was an abuse 
of the district court’s discretion. In appellants’ view noth­
ing that this court said in Billingsley warranted the district 
court m assuming before hearing the evidence that the 
case could not be proved. The district court’s apparent as­
sumption—m light of this court’s clear statement to the 
con rary—that the question had already been settled15 had a 
damaging effect on the manner in which the proof was re-

: r ; f - COnf d7 e5  an GffeCt Which COuld only operate to he detriment of the plaintiffs before the district court
In hese circumstances, the court’s decision was predictable.'

ut appellants firmly believe that the evidentiary record
made in the proceedings below when considered in li<dit of
the governing legal principles enunciated time and again

( R 6 l̂Un9sley h a s  s e t t le d  m o s t o f  th e  q u e s t io n s  r a is e d  h e r e ”

30



31

discrimination of^sysk^L ^c913? 113̂ - Pr°° f” that ‘‘racia] 
process” does exist in the Be ^  the W  selection 
County, Alabama BeSSemer Divisioa of Jefferson

B' The Governi’ng Legal Principles
This court’s prior decision n f  

th e controlling legal principles • accurate]y stated
area, Billingsley v. 3 5 9  p g !  J a r ^  ^Crimination
appellants think it relevant \ 1 lo"18- However,
“  « > - .  eases to »f ‘ to prool
these principles. First the n r ' ■’  ( '  respect to three of
poseful discrimination' need^noMie 6 i, Pur-
eourt to properly conclude that th er^ 0'™ “  ° rdCr f ° r a 
tion in the jury selection process Z  n  U f f  dlsorim™ - 
128 (1942); p au„,t T. Uhsissiwi f „  t ‘ J ’ r<SMS’ 311 VS.

316 U.S. 400 (1940). T ’ 332 U‘S- 463’ 469 i v. 
559, 562 (1953); a , / /  *ery V‘ Geor9ia, 345 U.S.
F.2d 53, 65 (5th Cir. 1962)/ It iTsufr' ^ Wiman> 304
fail to perform their d u t y - w i n ™  1 “ ‘  “  * " *  
duct in the administration of their nllT 7 -  “ ” rSe ° f  con- 
ate to discriminate in the s o l e e t i o / o ' f W° UM oper’ 
grounds.” m il  v r  o f JU1'01'S on racial
Court stated in Sinitt v Texas *» 4°4' A” the S“ Preme

part of frry  t L r f o r e T f c ^ i a ™  affi,™ ative du‘y on the 
community’s significant identifiable ~  lemse,VM 'viu> the

^ i - e p r e s e n t a t i o n ^ ”“ —



32

3,66 F; 2d 1 (5th Cir. 19G6); Mobley v. United States, 379 
F.2d 768, 772 (5tli Cir. 1967) and Pullum v. Greene, No 
25389 (5th Cir., June 18, 1968). This affirmative duty is 
particularly compelling when a system of jury selection is 
alleged to be discriminatory against Negroes. Brooks v. 
Beto, supra; Pullman v. Greene, supra.

hird, is the principle that discrimination occasioned by 
the jury selection system can be shown “ by proof of the 
objective results of the jury selection process,” Billingsley
v. Clayton, 359 F.2d at 17. Cf. United States ex rel. Seals 
v. Wiman:

“It is not necessary to go so far as to establish ill will, 
evil motive, or absence of good faith, . . . objective re' 
suits are largely to be relied on in the application of 
the constitutional test” 304 F.2d at 65.1

Appellants’ proof, in light of these principles, requires 
a reversal of the district court. As argued below, the sys­
tem used by appellees in selecting names for inclusion on 
the jury roll has had the effect _o f discriminating against 
Negroes in the Bessemer Division with respect to their 
opportunity for service on grand and petit juries in the 
division quite apart from any question of purposeful intent 
or ill will on the part of the jury board and its clerk. The 
affirmative duty resting on the jury board and the clerk 
has not been discharged effectively by the methods used by 
them and the objective results of the selection process have 
established a prima-facie case which remains unrebutted by 
appellees.

C. The “ Objective Results” Established A Prima-Facie Case

It goes without saying that Negroes are a “ significant 
racial element,” Brooks v. Beto, supra at 15 and 16, of the 
Bessemer cut-off community. They are in fact the numeri-



33

cally dominant racial elemein. As such, their stake in fair 
numerical representation on the initial source listing of 
qualified jurors, the jury roll, is high if for no other reason 
than the fact that Negroes, because they are a majority, 
constitute a majority of the persons tried on criminal 
charges in the Bessemer Division (R. 147), and fair fact­
finding in these cases arising in a deep South community 
with its racial traditions17 depends on the opportunity 
Negroes have to participate in “ the most important stage 
of the system-final fact-finding by a trial jury,” Labat v. 
Bennett, 365 F.2d 698, 716 (5th Cir. 1966).

Thus, even though “ the jury roll . . . need [not] be a 
perfect mirror of the community or accurately reflect the 
proportionate strength of every identifiable group,” Swain 
v. Alabama, 380 U.S. 202 at 208 (1965), the proposition that 
jury selection methods and procedures can be sustained 
which leave the Negro majority of the community so grossly 
underrepresented on the jury roll in relation to the white 
minority is clearly absurd. The unassailable principle to 
be applied in judging the results of the jury selection system 
in the Bessemer cut-off is that stated by this court in United 
States ex rel. Seals v. Wiman:

“ [v]ery decided variations in proportions of Negroes 
and whites on jury lists from racial proportions in the 
population, which variations are not explained and are 
long continued, furnish sufficient evidence of systematic

it Considering “ the reality of . . . the segregated world { ’ Brooks 
V Beto 366 F.2d at 12, “ the selection of . . . juries in [the Bes­
semer cut-off] throughout the years has been controlled by a tra­
dition and the general thinking of the community as a whole is 
under the influence of that tradition.” Quoted in Eubanks v. Lou­
isiana, 356 U.S. 584 at 588 (1958). This court noted the reality 
in its decision of the earlier appeal: “ The record does disclose that ' 
Negroes seldom sit on petit or grand juries in the Bessemer Divi­
sion.” 359 F.2d at 23.



34

exclusion of Negroes from jury service.” 304 F.2d at 
67.

Such “ [v]ery decided variations” are present in the record 
in these cases. Less than 1% of the 1965-67 jury roll and 
box were Negroes (R. 23-24) and no more than 15% of 
the 1967-69 jury roll was Negro (R. 38) in a community 
where Negroes are more than 50% of the jury-eligible 
population!

This evidence “in itself made out a prima-facie case of 
the denial of the equal protection which the Constitution 
guarantees,” Norris v. Alabama, 294 U.S. 587, 591 (1934) 
(emphasis supplied). “ If a fair cross-section is consistently 
lacking, then without more, it is established that the com­
missioners have failed in their duty,” Rabinowitz v. United 
States, 366 F.2d 34, 58 (5th Cir. 1966) (emphasis supplied). 
These and like statements in cases too numerous to cite, 
express the intuitive appreciation of the laws of chance 
that courts have long applied to jury discrimination cases18 
and that this court has applied in voter discrimination 
cases, e.g., United States v. Duke, 332 F.2d 759, 763 (5th Cir. 
1964); United States v. Dogan, 314 F.2d 767, 772 (5th Cir. 
1963). The discrepancies shown on the record between the 
percentage of Negroes qualified for jury service and the 
percentage actually listed on the jury roll conclusively es­
tablishes the racially discriminatory effect of the selection

18“ [I]t  taxes our credulity to say that mere chance resulted in 
there being no members of this class among the over six thousand 
jurors called in the past 25 years.” Hernandez v. Texas, 347 U.S. 
475, 482 (1954). “ Chance and accident alone could hardly have 
brought about the listing for grand jury service of so few Negroes 
from among the thousands shown by the undisputed evidence to 
possess the legal qualifications for jury service.” Smith v. Texas, 
311 U.S. 128, 131 (1940). See also Eubanks v. Louisiana, 356 U.S. 
584, 587 (1958); Hill v. Texas, 316 U.S. 400, 404 (1942); Coleman 
v. Alabama, 389 U.S. 22 (1967).



35

procedures in the Bessemer Division. Indeed, this court 
has in numerous cases, held discrepancies of this magnitude 
and smaller to be conclusive proof of discrimination. Labcit 
v. Bennett, 3G5 F.2d G98 (5th Cir. 1966) (Negroes comprised 
25.8% of eligible population, compared to an average of 
6.2% and a maximum of 16.1% of venires); Davis v. Davis, 
361 F.2d 770 (5th Cir. 1966) (16% Negroes in eligible popu­
lation compared to 1.8% on venires); Scott v. Walker, 358 
F.2d 561 (5th Cir. 1966) (Negroes comprised 13% of eli­
gible population, 1% of venires); United States ex rel. Seals 
v. Wiman, 304 F.2d 53 (5tli Cir. 1962), cert, denied, 372 
U.S. 924 (1963) (31% compared to 2%). And see, Mitchell 
v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966) (82% Negro 
population, 35.7% on jury roll held “wide disproportion” 
at 121).

But, though the percentage discrepancy as demonstrated 
is sufficient to compel a finding of discrimination, the rec­
ord here presents this court with an even firmer basis for 
making such a finding. Here the court’s intuition is rein­
forced by the conclusions of an expert statistician who sub­
jected the variety of data to precise, rigorous statistical 
analysis based on a generally accepted scientific discipline 
(R. 57) recognized by the Supreme Court, see Whitus v. 
Georgia, 385 U.S. 545, 552, n. 2 citing Finkelstein, “ The Ap­
plication of Statistical Decision Theory to the Jury Dis­
crimination Cases,” 80 Harvard L. Rev. 338 (1966); Jones 
v. Georgia, 389 U.S. 24 (1967), and concluded that “ the 
method of [juror] selection has not been independent of 
race”  (R. 55). As this court has said “ [in] the problem 
of racial discrimination, statistics often tell much, and 
Courts listen,” Alabama v. United States, 304 F.2d 583, 586 
and note 5 citing United States ex rel. Goldsby v. Ilarpole, 
263 F.2d 71 and cases collected in note 13 at p. 77; Brooks 
v. Beto, 366 F.2d 1, 9 (“ figures speak and when they do,



36

Courts listen” ) and at p. 12 (“ . • • the Courts have con­
sistently held that statistics speak louder than the jury 
commissioners” ). Determination of probabilities based on 
actual statistics by generally accepted scientific methods, 
though consistent with intuitive judgment reinforces that 
judgment and makes it more reliable.

Notwithstanding, the district court sustained appellees’ 
objections to two questions propounded to appellants’ stat­
istician. The only basis other than privilege (which was 
not or could hardly be claimed) for sustaining these objec­
tions is relevancy to the subject matter of the action, 4 
Moore’s Federal Practice, 1174-1185 (2nd ed.). As argued 
to the district court both in plaintiffs’ pre-trial memoian- 
dum filed in the Jones case (R. 62-64) and orally at the 
trial (R. 180-182), the questions were clearly relevant to 
a determination of whether appellees’ selection procedures 
discriminated against Negroes. The assumption called for 
by questions 15 and 16 of the interrogatories (R. 43-44) is 
the usual assumption made in applying probability theory 
to events said to occur by chance or at random (R. 53)19 
and as appellants’ expert stated in his deposition, “ [i]f the 
selection is random, it is among other things, independent 
of race” (R. 53); appellees here deny that there is any­
thing wrong from a racial standpoint with their selection 
process, i.e., that it is independent of race. Hence, the 
questions meet the test of relevancy.

Moreover, the assumption of random or chance selection 
is one supported by the evidence: appellees conduct a ran­
dom (quite random as it appears) house-to-house survey; 
they don’t pick only houses with green shutters or blue 
awnings and they claim to canvass every neighborhood in 
the same way. And, of course, the proposition that an ex-

19 “ Probability theory has been found to apply to events com­
monly called ‘random’ or ‘chance,’ ” Finkelstein, op cit. at 349.

IJ
1



37

pert may be interrogated for his opinion regarding matters 
in evidence as were all the data with which he was sup­
plied, is not open to question, Kennelley v. Travelers Ins. 
Co 273 F.2d 479 (5th Cir. 1960). Thus, the district court 
erred in sustaining the objections to these questions.

Clearly then, the objective results of the selection proc­
ess made out a prima-facie case which appellees did not 
rebut. Appellants, moreover, demonstrated that Negroes 
possess the requisite juror qualifications (see p. 22 ff., 
supra). The remaining question then is what, if not in­
tentional discrimination, accounts for this extreme racia 
disproportion?

D. Tlic Failure of the Jury Board and Its Clerk to 
Deal With the “ Practical Problem”

The beginning of an answer to the question posed im­
mediately above is the recognition of two factors obvious 
on the record: 1) that appellees have not fully appreciated 
the extent of their affirmative duty to include Negroes 
the steps they have taken have been inadequate and they 
have failed to take other steps they could have taken— 
and 2) to a large extent as in the school desegregation area, 
see e.°\, United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836, aff’d en banc, 380 F.2d 385 (oth Cir. 
1966 1967) they have placed the burden of obtaining fair 
representation on the jury on the Negro community rather 
than assuming the burden themselves. They have been 
content to say that the problem is difficult because (1) Ne­
groes are “ suspicious” and won’t give information or (2) 
the few (very few) Negroes contacted to supply names 
don’t respond to the letters sent. Worst of all, the district 
court (R. 71-72, 75) and even this court on the prior ap­
peal (see note 10, supra at p. 9) accepted these pat ex­
planations for nonperformance by the officials charged



38

under the Constitution with the affirmative duty, United 
States ex rel. Seals v. Wiman, 304 F.2d 53, 60, 65 (5tli Cir. 
1962); Brooks v. Beto, 366 U.S. 1 (5tli Cir. 1966); Mobley 
v. United States, 379 F.2d 768, 772 (5th Cir. 1967); Pullum 
v. Greene, No. 253S9 (5tli Cir. June 18, 1968) of assuring 
adequate representation of Negroes on the jury roll and in 
the jury bos. These things perhaps

“posed practical problems. But the existence of a prac­
tical problem in the administration of justice . . . pre­
sents no obstacle as the law seeks reasonable, prac­
ticable means of meeting practical problems with com­
plete fidelity to the Constitution.” Brooks v. Beto, 
supra at 9.

With respect to the first factor mentioned above, it is 
not at all clear that the affirmative duty of the board and 
its clerk can ever be properly discharged in the Bessemer 
cut-off with the presence of “ a racial group which histori­
cally has been the object or victim of state-generated dis­
crimination,” Brooks, supra at 24, so long as all the jury 
selecting officials are white. Cf. Brooks, supra at 10. Sec­
ond, the use of all white canvassers in Negro neighborhoods 
is not likely to produce the required result of greater Negro 
representation. The use of Negro canvassers certainly is 
no absolute guarantee but, to date, it is an expedient that 
has not even been tried. The answer that Alabama law re­
quires selection from the county personnel board and no 
Negroes have been furnished by the board is no answer at 
all in light of the Supremacy Clause of the Constitution. 
Cf. Mitchell v. Johnson, supra and United States v. Jeffer­
son County Board of Education, supra (re State tenure 
laws). Third, there is some intimation in the record that in 
canvassing the Negro neighborhoods, the agents did not 
get all the eligible persons in the Negro households they 
visited (R. 196). Fourth, no Negro organizations or groups



were contacted to supply Negro names (R. 305). Fifth, four 
letters sent to Negroes in the Bessemer Division in 1964 
(out of a meager total of 63 sent in the whole county) and 
fifteen sent in 1966 (out of a still meager total of 78) do 
not strike appellants as extraordinary effort on the part of 
the clerk and his staff. (The clerk was not able to say how 
many responses he received from the Bessemer Division in 
either year but the record does show that lie got 10 re­
sponses from the 63 letters sent county-wide in 1964 (R. 302) 
which again does not strike appellants as unusually non- 
cooperative.) Sixth, the letters that were sent to Negroes 
asked them to supply the names o f :

“ only such citizens as you would want to sit on the 
jury which might be about to pass on a case involving 
your own life, liberty or property.” (R. 165)

Cf. Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966).
“ If subjective judgment has any place at all in the jury 
selection process, its exercise should certainly be restricted 
to those responsible by law and amenable to law,” Kuhn,
Jury Discrimination: The Next Phase, 41 So. Cal. L. Rev.
235, 264.

In short, appellees have done some things not at all, other 
things inadequately, still other things in the wrong way.
The result is plain: Negroes in the Bessemer Division are 
not represented to any substantial degree.

|
Regarding the second factor mentioned above, appellees’ 

and the courts’ response have also been wide of the mark.
AVliat may appear as Negro non-cooperation or disinterest 
is directly attributable again to “ the reality of the segre­
gated world” in which Negroes for decades have lived with 
the sure and certain knowledge that their participation in 
the official and public life of the community was not desired 
and would be resisted. “ The cases—the long, long line of

♦



40

cases borne of a century’s struggle against this evil of 
race discrimination— . . . ” B r o o k s , su p ra , page 12, firmly 
attest to this. Whatever the nature of the responses re­
ceived—or not received—from Negroes who were can­
vassed or were asked to propose names, it still remained 
the duty of the jury officials to make sure that the jury lists 
represented a fair reflection of the total universe of poten­
tial juror selectees.

This is a duty that may not be shifted to the Negro com­
munity ; the burden is on the jury officials. “ That this per­
haps poses difficulties in administration is not decisive” 
Brooks, supra at 24. In this, as in other areas recognized 
by the courts, in order to deal with the present problem of 
racial discrimination, specific tangible methods must be 
adopted by the officials responsible20 to counteract the ef­
fects of the past (as for example, the steps outlined above) 
including the attitudes21 and responses of both whites and 
blacks, e.g., “suspicion” of white canvassers, which account 
for the problem in the present. See, e.g., Louisiana v. United

‘ +r d i hei',e is 110 <luestion that the appellees before the court 
are the officials responsible for the jury situation in the Bessemer 
cut-oft and thus responsible for correcting it. The evidence showed 
that tewer than 1 in G names on the latest jury roll (fewer than 
1 in 10 on the previous roll) were the names of Negroes while 
Negroes are more than 1 in every 2 persons in the division With 
this small number of names in the jury box, nothing occurring at 
the drawing summoning, excusing or empanelling stages (see 359

. . atc ’ 01 the Jury selection process can cure the defects 
arising from the initial selection. Even if every time a drawing 
is made one name in each six is a Negro, the chances of all the 
Negroes drawn surviving the summoning, excusing, challenging for 
cause, and striking phases of the process are extremely remote 
Assuming this unlikely event, two Negroes on each twelve-man jury 
is still not representative of the community’s “ peers.”

' ; ‘ ‘The 5 (T,rocs r ere haunted by slavery and historical discrimi­
nation and the white population was haunted by 19th Centurv 
Reconstruction politics.” Gray v. Main, CA No. 2430-N ( Ml )  Ala 
March 29, 1968) (slip op. p. 41). U ' d'



.

41

States 380 U.S. 145, 154 (1965); United States v. Ward 
349 F.2d 795 (Sth Cir. 1965) and Grew v. Comfy School
Board of New Kent County, V a .,------ U.S. M U. .
2d 716 (1963); United States v. Board of of
Bessemer, et al„ Nos. 25809-10-11 (Sth d r .  Juno 3.1968).

II
The District Court Should Have Granted Injunctive 

Relief In the S m ith  Case But, In Any Event, Declaratory 
Relief Was Mandated.

Based on the evidence before the district court, it is 
clear that the jury selection system in the Bessemer Divi­
sion is constitutionally defective (see Argument I, supra). 
Therefore, for appellant to stand trial under her indict­
ment before a petit jury selected under this system voi 
violate her constitutional rights. The district court thus 
abused its discretion in denying an injunction against fur­
ther prosecution of appellant.

Appellant is, of course, aware of the principle of comity 
expressed in 28 U.S.C. § 2283- and such decisions 
las v. City of Jeannette, 319 U S. 157, 6o A t  8 7 87 
L E d  1324 (1943) and Stefanelh v. Mmard, 342 U.S. 11G 
72 S Ct 118, 96 L.Ed. 138 (1951). However, it is clear that 
the congressional statute and these cases are no barriers 
to the exercise of a federal court’s jurisdiction, ZwiĈ * 
TT , qqqTTR 241 (1967). Jurisdiction once established, 
t r  ranth,g of ^ c t J r e M  *  ^ cretiona^  with the 
court in light of all the relevant circumstances.

“ A coart of the ^ p T .s S

<* aid of “ • 
) S i c t i o n  or to protect or effectaate .ts judgments.

‘Vr"r



42

There were special circumstances in appellant’s case re­
quiring injunctive relief. First, the district court had beei. 
on notice at least since this court’s opinion in Billingsley 
that the jury selection process in the Bessemer Division, 
was defective. Second, the district court, prior to actiiu; 
in the Smith case, had taken evidence clearly demonstrating 
the extent of the defect. Third, the district court had beei. 
made aware of the circumstances of the crime for whicl. 
appellant had been indicted (see n. 11, supra, at p. 10) and 
being thus aware realized that appellant had a possibly 
good defense on the issue of guilt or, at the least, that 
there were factors present which might operate to miti­
gate the penalty if she was convicted; that, however, appel­
lant was a Negro who had killed a white person in the 
South and thus her ability to establish her defense on the 
merits to the satisfaction of the jury or in mitigation of 
the penalty would be severely hampered if she were put 
to trial under the present jury system. Finally, the district 
court was also aware that in Bokulich v. Jury Commission 
of Greene County, Alabama, No. 24048 (5th Cir. 1966) thh 
court had ordered the district court to grant a restraining 
order against prosecution of a white defendant charged 
with a crime in Greene County on the basis of the discrim­
inatory jury system in effect in the county. See Coleman v. 
Alabama, 389 TJ.S. 22. And the district couit in issuing the 
restraining order upon this court’s direction stated that.

“ It is necessary that this order issue in aid of the court’s 
‘jurisdiction’ and to protect and effectuate its judg­
ment.” Bokulich v. Jury Commission of Greene Coun­
ty, CA No. 66-562 (N.D. Ala. September 22, 1966).

Since under 28 U.S.C. § 2283, Congress carved out as ex­
ceptions to the general anti-injunction policy expressed, 
instances where a district court finds that an injunction is 
necessary in aid of its jurisdiction” or is needed to protect

l



or effectuate its judgment,”  the district court abused its 
discretion in not issuing tlie injunction in these circum­
stances quite similar to those in Bokulich. The suit attack­
ing the Bessemer Division jury system was already pend­
ing at the time the state proceeding against appellant com­
menced and the prosecution against her should not have 
been permitted to proceed in light of the pendency of the 
Jones case; clearly the injunction was required to aid the 
district court’s jurisdiction and to protect its judgment. 
The pendency of the federal suit attacking the Bessemer 
Division jury system as well as this court’s prior expres­
sion of its disapproval of that system are circumstances 
markedly different from those in Malone v. Emmet, 278 F. 
Supp. 193 (M.D. Ala. 1967) and Davis v. Jury Commis­
sioners of Montgomery County, 261 F. Supp. 591 (M.D. 
Ala. 1966) on which the district court relied.

However, at the very least, in the totality of these cir­
cumstances, the district court erred in not entering a 
declaratory judgment that the jury system in the Bes­
semer Division was discriminatory. As Zwickler v. 
Koota, supra, makes clear, it is generally error for a district 
court to refuse to render a declaratory judgment declaring 
the challenged practices illegal, 389 U.S. at 254. Several 
district courts have heeded this counsel and issued declara­
tory judgments even though declining to grant injunctive 
relief. Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 
1967) (However, four state statutes also enjoined.); Ware 
v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967); Baker v. 
Bindner, 274 F. Supp. 658 (W.D. Ky. 1967).

43



44

CONCLUSION

W herefore, for the foregoing reasons the judgment of 
the district court in these cases should be reversed.

Respectfully submitted,

Norman C. A maker 
Jack Greenberg

10 Columbus Circle
New York, New York 10019

Demetrius C. Newton 
408 North 17th Street 
Birmingham, Alabama 35203

Oscar W. A dams, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants