Carrington v. Slayton Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    X >I
„  2 2 =

* *

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1974
NO. 74-

JAMES MURRAY CARRINGTON,
Petitioner,

v .
A. E. SLAYTON, JR.

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

JACK GREENBERG 
JAMES M. NAERIT, III 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

CHARLES M. L, MANG'JM 
522 Jackson Street 
Lynchburg, Virginia 24504

Attorneys for Petitioner



INDEX

Page

Opinions Below .........................................  x
Jurisdiction ...........................................  1
Question Presented .......................... •.......... 1
Constitutional and Statutory Provisions

Involved....*....................................... .
Statement of the Case ..................................
Reasons for Granting the Writ

I. Certiorari Should Be Granted To Settle The 
Important Question Of The Standards For 
Jury Selection Imposed By The Sixth And 
Fourteenth Amendments ......................  . 7

II. Certiorari Should Be Granted Because The 
Decision Below Conflicts With Decisions 
Of This Court ..............................  9

III. Certiorari Should Be Granted Because The 
Decision Below Conflicts With Decisions 
Of The Third. Fifth, And Ninth Circuit ....  13

Conclusion ............... »....................* ........ ^
"1 3Appendix ..................... *......................* * *

TABIjE OF CASES
Alexander v. Louisiana, 405 U.S. 625 (1972).......... * 7,9,1011,12,13,14

Avery v. Georgia, 345 U.S. 559 (1953) ................. 1-0
Carmical v. Craven, 457 F.2d 502 (9th Cir. 1971) .....  13
Carter v. Jury Commission, 396 U.S. 320 (1970) .......  7,11
Duncan v. Louisiana, 3 91 U.S. 145 (1968) .............  8
Hill v. Texas, 316 U.S. 400 (1942) ....................  10
Neal v. Delaware, 103 U.S. 370 (1881) .............. 7,9
Norris v. Alabama, 294 U.S. 587 (1935)  ...........  7,10,1].
Patton v. Mississippi, 332 U.S. 463 (1947) ..........  7
People v. Jones, 9 Cal.3d 546, 108 Cal. Rptr. 345,

510 P. 2d 705 (1973) .................. ............  9



Table of Cases (Continued)
Page

Peters v. Kiff,-407 U.S. 493 (1972) ..................  8
Smith v. Texas, 311 U.S. 128 (1940) ..................  10
Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972) ........  14
Strauder v. West Virginia, 100 U.S. 303 (1880) .......  7,9
Turner v. Fouche, 396 U.S. 346 (1970) ................  10,12
United States ex rel. Seals v. Wiman, 304 F .2d 53

(5th Cir. 1962) .................... ................ 14
Wansley v. Slayton, 487 F.2d 90 (4th Cir. 1973) ......  6,11
Whitus v. Georgia, 385 U.S. 545 (1967) ...............  10
Williams v. Florida, 3 99 U.S. 78 (1970) ..............  8
Wright v. Smith, 474 F.2d 349 (5th Cir. 1973), cert.

den. , 414 U.S. 853 (1973) ..........................  7

STATUTES
Code of Va., 1950:

§ 8-174 ......................................... 2
§ 8-181 ............... ......................... 2
§ 8-182 ......................................... 3,5
§ 8-208.2 ..... .................................  2
§ 8-208.38 .................................    2
§ 19.1-198 .....        3



IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1374 

NO. 74-

JAMES MURRAY CARRINGTON,
Petitioner,

v.
A. E. SLAYTON, JR.

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

Opinions Below
The opinion of the Court of Appeals is as yet unreported and 

is reprinted in the Appendix to this Petition, p. la. The opinion 
of the district court is reported at 359 F. Supp. 139 and is 
reprinted in the Appendix at pp. 2a-5a.

Jurisdiction
The judgment of the Court of Appeals was entered on April 29, 

1974. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1) .

Question. Presented
Petitioner, who is black, was tried by petit juries selected from 

a jux'y list that was 11.5% black. He was tried in a county where 
21.5% of those eligible for jury service were black. Jurors were 
chosen by the use of highly subjective standards.

Under these circumstances, was petitioner denied due process and 
equal protection of the laws as guaranteed by the Fourteenth Amend­
ment and the right to be tried by an impartial jury as guaranteed by 
the Sixth Amendment, by being tried by a jury chosen from a jury list 
from which blacks had been systematically excluded and on which they

were underrepresented?



Constitutional and Statutory 
Provisions Involved

This case involves the sixth and Fourteenth Amendments to
the Constitution of the United States, which provide in pertinent 
part:

Amendment VI: In all criminal prosecutions, the
accused shall enjoy the right to a speedy and 
public trial, by an impartial jury of the State 
and district wherein the crime shall have been 
committed. . . .
Amendment XIV: . . . .  [N]or shall any State de­
prive any person of life, liberty, or property, with­
out due process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.

This case also involves the following provisions of the
Code of Virginia 1950 (1957 Replacement Volume) relating to jury

, . 1/selection:”
§ 8-174. V7ho liable to serve as' jurors.-- All citizens over twenty-one years of age’who shall have 

been residents of this State one year, and of the county, 
ciLy or cown xn waxen uney resicie six montns next pre­
ceding their being summoned to serve as such, and competent 
in other respects, except as hereinafter provided, shall 
remain and be liable to serve as jurors. No officer, 
soldier, seaman, or marine of the United States army or 
navy shall be considered a resident of this State by 
reason of being stationed herein. (Code 1919, § 5984;
1930, p. 624; 1936, p. 379; 1950, p. 372.)

§ 8-181. Notification of jury commissloners; their oath.--Such commissioners shall be immediately notified of 
their appointment by the clerk, and before entering upon 
the discharge of their duties shall take and subscribe an 
oath or affirmation before the clerk of such court in the 
following form: "I do solemnly swear (or affirm) that I
will honestly, without favor or prejudice, perform theduties of jury commissioner during the year ________;
that in selecting persons to be drawn as jurors, I will select none but persons whom I believe to be of good 
repute for intelligence and honesty; that I will select 
none whom I have been requested to select, and that in 
all my selections I will endeavor to promote only the 
impartial administration of justice," (code 1919, § 5987, 1918, 
p. 505; 1920, p.3.)

1/ These provisions were replaced and substantially amended in the 
1973 revision of the Code of Virginia, subsequent to petitioner's 
conviction. See, code of Virginia 1950, 1973 Cumulative Supplement, 
§8-208.2-8-208.38.

2



§8-182. Lists of jurors to be prepared by the jury com­
missioners. -- The commissioners shall, as soon as may be 
after their appointment, prepare lists of such of the in­
habitants of their respective counties or cities as are 
well qualified to serve as jurors and are not excluded 
or exempt by §§ 8-174, 8-175 and 8-178. The whole number 
of persons selected in any county or city shall not be 
less than one hundred nor more than three hundred,...

*  *  *  *

The same percentage of population shall be taken from 
each magisterial district or ward. The inhabitants of a 
city, however, which is situated in whole or in part with­
in the bounds of a county shall not be placed on the lists 
for such county, except in those cases in which the circuit 
court of the county and the corporation court of the city have concurrent jurisdiction of both civil and criminal 
cases arising within the territorial limits of such county 
or city and in such cases the city shall be considered as 
a magisterial district, or the equivalent of a magisterial 
district, of the county for the. purpose of the jury list.
(Code 1919, § 5988; 1918, p. 505; 1920, pp. 3, 595; 1924, 
p. 129; 1942, p. 98; 1944, p. 11; 1948, p. 893, 915; 1950, 
p. 374; 1952, c. 129; 1954, c. 252; 1956, c. 156.)2/

STATEMENT OF THE CASE

petitioner, who is black, is incarcerated as a result of two 
jury convictions in the circuit Court of Ap'pomatox County on 
August 26, 1970 (rape) and April 1, 1971 (abduction). He was 
sentenced to 35 years for rape and 40 for abduction. Following 
unsuccessful appeals in the state courts, petitioner filed a 
petition for writ of habeas corpus in the United States District 
Court for the western District of Virginia, alleging that the con­
victions and sentences pursuant to which he is confined were im­
posed in violation of the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment and of the sixth Amendment to the 
Constitution in that petitioner was tried by juries chosen by 
methods that "systematically excluded and underrepresented" blacks 
on the jury lists (J.A. 4-5; 13-14; references are to the Joint 
Appendix filed in the Court of Appeals). The respondent conceded

Under Virginia law, the jury lists so compiled are used for 
selecting both civil and criminal juries. See, Code of Virginia 
1950, 1960 Replacement Volume, § 19.1-198.

3



exhaustion of state remedies as to both convictions.
According to the United States Census reports for 1970 

(J.A. 21), 21.5% of the persons in Appomatox County between the 
ages of 21 to 69 (and thus presumptively eligible for jury service) 
were black. Names of persons to be considered for jury service 
were selected mainly from the personal property tax book which

3 /was 16.79% black. However, of the 199 persons on the 1970 master 
jury list (from which both petit juries were chosen) only 11.5% 
were black. Thus, instead of there being 43 blacks on the list,

V
there were only 23.

At petitioner Carrington's second trial, the clerk of the 
circuit court and four of the five jury commissioners responsible 
for compiling the jury list from which all of his juries were 
s elected testified. (The transcript of the state hearing on the 
jury challenge was introduced in federal court and was the basis 
for that court's decision.) The fifth commissioner, Mr. Edward 
Johnson, the one black member, was deceased at the time of the 
hearing. The clerk gave the commissioners the personal property 
tax book as a source of names, and told them they were not limited

3y This figure was jointly determined by counsel for petitioners 
and respondent, who were appointed as special masters for that 
purpose. J.A. 31-32.
4/ The grand jury that actually indicted petitioner was 33.3% 
black. The first jury was selected from a venire 5.5% black and 
from a panel 10% black. The second jury was selected from a venire 
7.5% black and a panel 5% black.
5/ Although the focus of inquiry in both the state and federal 
courts was the 1970 jury list in effect when petitioner was tried, 
evidence was also introduced as to the racial composition of juries 
selected from 1960 through 1969. Of 464 persons called for jury 
service in that period, only 46, or 9.91% were black. Of the 479 
persons on venires from 1960 to 1966, 40, or 8.35%, were black.
J.A. 53-62. Thus, there was shown a consistent pattern of under­
representation of blacks over a decade.

4



to those in it, but it was just a guide to help them (J.A. 66).
Indeed, other sources of names were used (J.A. 83). The commissioners 
were told to pick around two hundred and fifty names; usually, 
the clerk told the commissioners to pick forty or fifty blacks, 
but she was not able to say definitely whether she did on this 
particular occasion (J.A. 66-67).

The commissioners did not select names at random from the 
tax book or other sources for consideration as potential jurors. 
Rather, meeting as a group, they went through the sources of names, 
picked names they recognized, and discussed their suitability for 
jury service (J.A. 80, 82, 102).

The commissioners were from different parts of the county,
6/

and each would comment on persons from their area. The general 
standard by which persons were selected was that found in § 8-181, 
viz., they should be "of good repute for intelligence and honesty" 
(J.A. 79). However, the specific criteria used were subjective 
and generally not clearly defined. Thus, one person was not chosen 
because one commissioner said he could "not be trusted" (J.A. 81); 
another because he was a "heavy drinker" (J.A. 93). With regard 
to determining intelligence, no set standard, such as length of 
schooling, was used (J.A. 92). One commissioner simply tried to 
pick "good citizens," but could not be specific as to the bases 
on which that determination was made (J.A. 99-102).

Two of the commissioners testified that they relied on Mr. 
Johnson's (the black member) judgment as to the qualifications of 
blacks (J.A. 79; 96-97). However, they had no idea of what 
standards Mr. Johnson used to decide whether a black was not a

6/ Section 8-182 requires that each magisterial district be 
equally represented. See, J.A. 91, 107.

5



1/"good citizen." Mr. Johnson did disqualify between twenty-five 
to forty blacks (J.A. 98). No one was able to testify as to the 
number of whites disqualified by the white commissioners beyond 
that there were "some" (J.A. 98). Two of the commissioners could 
recall only one such instance each (J.A. 81, 93). All of the 
white commissioners testified that they did not intentionally 
discriminate against blacks in the selection process.

The district court held that petition had made a priraa facie
case of jury discrimination, but that it had been rebutted by the 
state. The court relied on the testimony of the surviving white 
commissioners that they had not discriminated coupled with the
fact that they had relied on the black commissioner's opinion as 
to black prospective jurors. Therefore, there could not have been 
intentional discrimination. 359 F. Supp. at 193, App. p„ 5a.

The court of appeals affirmed, in a per curiam opinion, "for 
reasons included in the opinion of the District Judge." App. p. la. 
Although the Fourth Circuit did not specify the grounds for its
decision in the present case, it had recently held, in Wansley v. 
Slayton, 487 F.2d 90 (4th Cir. 1973), that a 2 to 1 disparity 
between the percentage of blacks in the community and their 
percentage on the jury list was necessary to establish a prima 
facie case. 487 F .2d at 99-101. That is, for example, if a 
county were 20% black then there must be 10% or fewer blacks on 
fhe jury list for a pattern of systematic and deliberate exclusion 
to be shown. Since in Wansley 23% of the population was black and 
12% of the jury list, rather than 11.5%, there was no such showing.
In the present case, 21.5% of the population and 11.5% of the jury 
list were black. Under the Wansley rule, there could be no constitu­
tional violation, since the percentage of blacks was over 10.75%.

7/ "Q.
capable

And can you tell us, sir, 
of serving as a juror?

No, I never heard M m  say
-  6

how he determined who wasn't
J.A. 101..I .didn ' t ask him."



REASONS FOR GRANTING THE WRIT
I.

Certiorari Should Be Granted To Settle The 
Important Question Of The Standards For 
Jury Selection Imposed By The Sixth And 
Fourteenth Amendments.

It has been ninety-four years since this Court first held
that the exclusion of blacks from juries violated the Fourteenth
Amendment. Strauder v. West Virginia, 100 U.S. 303 (1880).
Despite the many decisions by this Court since Strauder dealing

8/  'with jury discrimination, a number of important issues remain 
unresolved and are presented by this case. These include the 
constitutionality of selection of jurors from an unrepresentative 
source, resulting in the underrepresentation of blacks (cf., Wright 
v. Smith, 474 F .2d 349 (5th Cir. 1973), cert, den., 414 U.S. 853 
(1973) ) ; whether there has been a constitutional violation only 
if there has been intentional discrimination on the part of jury 
commissioners (see Parts II and III, infra); and the degree of 
underrepresentation that is tolerable under the Constitution 
(see, Alexander v. Louisiana, 405 U.S. 625, 630 (1972)).

This case also presents another issue of great importance, 
viz., the relationship between the Fourteenth Amendment's prohibition 
against exclusion of blacks and the Sixth Amendment's guarantee 
of the right to a trial by an impartial jury selected from the 
community where the trial takes place. The connection between the 
right to be free of discrimination, and the more general right to

8/ E.g_. , Neal v. Delaware, 103 U.S. 370 (1881); Norris v. Alabama,
294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463 (1967);
Carter v. Jury Commission, 396 U.S. 320 (1970); Alexander v. 
Louisiana, 405 U.S. 625 (1972).



9/
a jury representative of a "cross-section of the community" 
embodied in the Sixth Amendment was noted in Peters v. Kif f, 407 
U.S. 493, 500 n. 9 (1972). However, this Court has not yet 
elaborated on the duty now imposed by the Sixth and Fourteenth 
Amendments upon the States' to use jury selection methods that 
are likely to result in representative juries (cf., People v. 
Jones, 9 Cal.3d 546, 108 Cal. Rptr. 345, 510 P.2d 705 (1973)).

The present case provides this Court an opportunity to
address this important issue. The jury commissioners used, as
their primary source for names, a tax list that significantly
underrepresented blacks. However, they did not select names
at random but picked only those of persons they knew. The
courts below therefore upheld a system that resulted in only 23
out of nearly 200 jurors being black instead of 43, the number
tnat would nave been adequately retiectrve of a cross-section of

10/
the commun ity.

Since petitioner was tried in 1970, after the date of Duncan 
v. Louisiana, 391 U.S. 145 (1968) and Williams v. Florida, 399 
U.S. 78 (1970) the Sixth, as well as the Fourteenth Amendment 
governed. Thus, the case raises squarely the important issue of

9/ Williams v. Florida, 399 U.S. 78, 100 (1970).
10/ The black community was therefore underrepresented by 46.5%.
This figure measures the relative degree of representation by 
comparing the percentage of blacks on the jury list with the percentage 
of eligible blacks in the community. It is arrived at by dividing 
the number of blacks actually on the jury list (23), by the number 
that would be on if the list accurately reflected their number in the 
community (43); the resulting figure, 53.5% is the percentage of 
eligible blacks that appear on the jury list. The percentage 
underrepresentation, _i.e., the percentage of blacks excluded from the 
list, is obtained by substracting 53.5% from 100%. This Court 
established in Alexander v. Louisiana, 405 U.S. 625, 629 (1972), that 
this is the proper method of analyzing these figures:

In Lafayette Parish, 21% of the population 
was Negro and 21 or over, therefore presumptively

8



whether the jury commissioners failed in their obligation, imposed 
by the Sixth Amendment to utilize methods of selection that were 
likely to result in representative jury lists. That is, even 
assuming that intentional discrimination must be shown to establish 
a Fourteenth Amendment violation, do jury commissioners also have 
a duty under the Sixth Amendment both to avoid selection methods 
that have the effect of excluding blacks and to utilize methods 
that are reasonably likely to result in their proper representation. 
Petitioner urges that if the right to a representative jury is 
to be realized, this Court must make clear that the Constitution 
requires not only the avoidance of purposeful discrimination, but 
also the use of methods of selection that will in fact select 
adequate numbers of black jurors.

II.
Certiorari Should Be Granted Because The Decision 
Below Conflicts With Decisions Of This Court.

For historical reasons the early decisions of this Court dealing 
with jury selection involved deliberate discrimination against 
blacks. Thus, in Strauder v.. West Virginia, supra, the issue was 
the constitutionality of a state statute that explicitly excluded 
blacks from jury service. Other cases involved undenied, intentional 
exclusion by the administration of statutes racially neutral on 
their face. See, Neal v. Delaware, 103 U.S. 370 (1881). In later- 
cases purposeful discrimination was denied; the result was the rule

10/ (Continued)
eligible for grand jury service. Use of 
questionnaire.s by the jury commissioners 
created a pool of possible grand jurors which 
was 14% Negro, a reduction by one-third of 
possible black grand jurors. The commissioners 
then twice called this group to create a list of 
400 prospective jurors, 7% of whom were Negro - 
a further reduction by one-half.



that, in the face of total or near-total exclusion of blacks 
over a long period of time, such denials on the part of jury 
commissioners were not sufficient to overcome a prima facie case 
of jury discrimination. Norris v. Alabama, 294 U.S. 587 (1935).

A natural outgrowth of these cases was the more recent rule 
that where there is a significant disparity in the number of blacks 
chosen (short of total exclusion) and there is an opportunity to 
discriminate because the race of prospective jurors was known, 
then it would be presumed that the opportunity had been seized 
upon despite sworn denials by jury commissioners. Avery, v. Georgia. 
345 U.S. 559 (1953); Whit.us v. Georgia, 385 U.S. 545 (1967);
Alexander v. Louisiana, 405 U.S. 625 (1972). Similarly, when the
rtisoaritv occurred in part at a point in the selection process 
where subjective judgments as to qualifications were exercised, 
then a constitutional violation was established. Turner v. Fouche,

396 U.S. 346 (1970).
However, beginning with Smith v. Texas, 311 U.S. 128 (1940),

a somewhat different standard than deliberate discrimination began 
to emerge. The Court also held unconstitutional, because they 
resulted in non-representative juries, methods of jury selection 
that had the effect of excluding blacks irrespective of whether jury 
commissioners intended discrimination when they adopted those methods 
Thus, in Hill v. Texas, 316 U.S. 400 (1942), the Court ordered an 
indictment quashed on a showing that jury commissioners had not 
acquainted themselves with the black community, thus failing in 
their duty "not to pursue a course of conduct in the administration 
of their office which would operate to discriminate m  the selection 
of jurors on racial grounds." Id. at 404. And in Alexander, v.

10



Louisiana, supra, this Court stated that "racially neutral selection 
criteria and procedures" must be used. 405 U.S. at 632. Thus, 
the crucial inquiry in a jury discrimination case is not the 
subjective state of mind of the jury commissioners, but whether 
the methods of selection used were likely to and in fact did result 
in a disproportionate exclusion of blacks from jury service. Once 
that showing has been made the State has the burden of showing 
that the methods used were nevertheless justifiable.

The decision of the court below is in direct conflict with 
all of the decisions cited above. The Fourth Circuit's absolute 
rule, adopted in Wansley v. Slayton, 487 F.2d 90, 99-101 (4th Cir. 
1973), that a 2-to-l disparity between blacks in the community 
and those on the jury rolls must be shown to make out a prima facie 
case, conflicts with the admonition in Alexander that rigid 
matnematical tests should not be solely relied upon. Rather, "a 
factual inquiry is necessary in each case that takes into account 
all possible explanatory factors." 405 U.S. at 630.

The district court's reliance on the testimony of the white 
jury commissioners that they had not discriminated was, of course, 
in direct conflict with an unbroken line of decisions from Norris 
v. Alabama, supra, through Alexander v. Louisiana, supra. Similarly, 
the reliance on the fact that one commissioner was black and that 
his advice was relied upon when selecting black jurors is not 
consistent with Carter v. Jury Commission, 396 U.S. 320 (1970).
In Carter, this Court, by implication, indicated that the racial 
composition of the jury commission was not determinative. Rather, 
the results achieved by the commissioners regardless of their race 
was the significant consideration. Since the right involved is

11



.
I 3J}Vi

.to a representative jury list, it would be wholly anomalous 
to hold that a non-representative one is valid simply because

||a black was involved in its composition. It should not be 
possible to defeat the enforcement of a right recognized since 
1880 by the simple expedient of placing a black on the jury 
commission.

Finally, and most seriously, the ruling below conflicts with 
the decisions of this Court that hold that where standards and

t
methods that are not racially neutral are used (Alexander v.

5Louisiana, supra, where there has been an opportunity to discriminate 
(ibid) and where the disparity in the number of blacks on the rolls 
occurs, in part, as a result of the exercise of subjective judgment 
(Turner v. Fouche, supra) , then there has been a constitutional 
violation.

I
As shown above, the jury list of Appomatox County greatly

underrepresented blacks ̂ nile this was due in part to the use of; ' *i
a source that was underrepresentative of the black community, it
is also clear that the method of selecting persons deemed sufficiently 
"intelligent and honest" to serve as jurors was clearly not racially 
neutral. To the contrary, blacks were picked separately by the 
black commissioner using his own unarticulated standard. Further, 
blacks and whites were excluded from or selected for jury service 
at different rates by the use of highly subjective standards. As 
noted in the statement of facts, supra, the four commissioners who 
testified were unable to explain with any clarity the standards 
for selection they used for picking whites, let alone explain what 
standard the black commissioner used in picking blacks. Finally, 
an opportunity to discriminate was inherent in a system that deliberately 
separated out black potential jurors for consideration. The net

i
}
\
l
\8
I

■

- 32



result of the procedures used was a jury list that was not, in any 
sense of the phrase, representative of a cross-section of the 
community.

The respondent totally failed to present reasons why blacks 
were rejected for service at a higher rate than whites or to 
demonstrate that racially neutral standards were in fact used. 
Thus, it failed in its duty to meet its heavy burden of proof to 
"rebut the presumption of unconstitutional action." Alexander v. 
Louisiana, 405 U.S. at 631-32.

III.
Certiorari Should Be Granted Because The Decision 
Below Conflicts With Decisions Of The Third, Fifth,
And Ninth Circuits.

The decision of the district court, and hence that of the 
Fourth Circuit, was based on a conclusion that the jury commissioner 
had not intentionally discriminated. Thus, despite the use of 
selection procedures that were not "racially neutral," and the 
exercise of subjective judgment at a point in the process where 
blacks were disproportionately excluded, no constitutional violation 
was found. Presumably, if the same degree of underrepresentation 
had been shown, but one commissioner had admitted intentional 
discrimination, then petitioner's conviction would have been vacated.

This holding, that a finding of intentional discrimination is 
necessary to establish a violation of the Fourteenth Amendment, is 
squarely in conflict with decisions of three other circuits. Thus, 
in Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971) the Ninth 
Circuit followed decisions of the Fifth Circuit holding that 
evidence of an intent to discriminate is "not an element of the 
constitutional test." 457 F.2d at 588, citing United States ex rel.

13



Seals v. Wiman, 304 F.2d 53, 65 (5th Cir. 1962). Subsequently,
the Third Circuit relied on Carmical and on this Court's decision 
in Alexander in concluding that "the issue of motive or intent 
[is] irrelevant in assessing a challenge to the jury selection 
system." Smith v. Yeager, 465 F.2d 272, 281 (3d Cir. 1972) .
Rather, the question is whether the jury commissioners, given 
the purest of motives, have conformed their "method of selection 
to a system that will produce jury lists reasonably approximating 
that cross-section [of their community]." Id. at 282.

For the reasons set out above, petitioner urges that the 
decisions of the Third, Fifth, and Ninth Circuits are correct, 
and that this Court should grant certiorari to resolve the conflict 
between those decisions and that of the Fourth Circuit.

CONCLUSION
For the foregoing reasons, the petition for a writ of 

certiorari should be granted.
Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

CHARLES M. L. MANGUM 
522 Jackson Street 
Lynchburg, Virginia 24504

Attorneys for Petitioner

14



APPENDIX



FOR THE FOURTH CIRCUIT

No. 73-1856

James Murray Carrington,
Appellant,

v .
A. E. Slayton, Jr., Superintendent 
Virginia State Penitentiary,

Appellee .

Appeal from the United States District Court for the 
Western District of Virginia, at Lynchburg. H. E. 
Widener, Jr., United States Circuit Judge, sitting by 
designation in the District Courc.

(Argued April 1, 197^ Decided April 29, 1974)

Before Bryan, Senior Circuit Judge, Winter and Adams*, 
Circuit Judges.

T'T'V > r \TTO  V  A Ty/f .

Complaining that the juries indicting 
and convicting him were unconstitutlonally chosen 
through a systematic exclusion and underrepresenta­
tion of blacks, James Murray Carrington, himself a 
black, in his petition in habeas corpus seeks dis­
charge from the custody of the Virginia peniten­
tiary. He is confined pursuant 'to sentences in 
the Circuit Court of Appomatax County in 1970 for 
rape and in 1971 for abduction. The District Court 
refused the writs and Carrington appeals. For 
reasons included in the opinion of the District 
Judge, we decline to disturb the judgment. 
Carrington v. Slayton, Jr., Superintendent, 3 S ?

FS /pf (WDVa. 1973) •

*rr. •* —
Affirmed.

*Unlted States Circuit Judge for the Third Circuit, 
sitting by designation. la



OPINION

.James M u rray  CABBING ION, 
■Petitioner, 

v.
A E. SLAYTON, Jr., Superintendent Vir­

ginia State Penitentiary, Respondent.

U nited S la te s  D istric t C ourt, 
W. D. V irginia, 

L ynchburg  Division.
May 31, 1973.

WIDENER, Circuit Judge (Sitting by 
Designation as a U. S. District Judge).

Petitioner, James Murray Carrington, 
having exhausted his state remedies, 
seeks relief from this court by way of 
writ of habeas corpus. Petitioner, who 
is black, is incarcerated as a result of 
two jury convictions in the Circuit Couit 
of Appomatox County, one on Decembei 
8, 1970 for rape, and the other on May

359 FEDERAL SUPPLEMENT190
17, 1971 for abduction. He was sen­
tenced to 35 years for rape and 40 years 
for abduction.

Petitioner alleges that the convictions 
and sentences pursuant to which he is 
confined were imposed in violation of 
the Due Process clause of the Fourteenth 
Amendment and the Sixth Amendment 
to the United States Constitution in that 
petitioner was tried by a jury chosen by 
a method which, in the past and during 
petitioner’s trial, systematically excluded 
and underrepresented black persons on 
the jury lists.

[1] In recent years, the law concern­
ing discrimination by race in selection 
of individuals for jury service lias been 
undergoing development. Alexander v. 
Louisiana, 405 U.S. 025, 92 S.Ct. 1221, 
31 L.Ed.2d 536 (1972); Whitus v.
Georgia, 385 U.S. 545, 87 S.Ct. 043, 17 
L.Ed.2d 599 (1967) ; Avery v. Georgia, 
345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 
(1953); Hairston v. Cox, 459 F.2d 1382 
(4th Cir. 1973); Stephens v. Cox, 449 
F.2d 657 (4th Cir. 1971); Witcher v. 
Peyton, 382 F.2d 707 (4th Cir. 1967). 
In Stephens, supra, the Fourth Circuit 
enunciated the elements necessary for a 
petitioner to make out a prima facie case 
for habeas corpus relief:

“A showing that a substantial dis­
parity exists between the proportion 
of presumptively qualified Negroes in 
the general population and their pro­
portion on juries will establish a prima 
facie case of racial discrimination, if 
the disparity is coupled either with 
additional positive indicia of discrimi­
nation or with a showing that the se­
lection procedure provides an ‘oppor­
tunity for discrimination’. Whitus v. 
Georgia, 385 U.S. [545] at 552, 87 S. 
Ct. 643 [17 L.Ed.2d 599]; Witcher v. 
Peyton, [382 F.2d 707].”

Stephens, 449 F.2d at 659. The rule of 
Stephens requires that petitioner must 
show two things to make out a prima 
facie case: (1) a substantial numerical 
disparity and (2) cither additional posi­
tive indicia of discrimination or an op­
portunity for discrimination in the selec­

tion procedure. As to substantial dis­
parity, a disparity of approximately 2-1 
existing between the proportion of adult 
Negroes and their representation on 
juries was sufficient to be deemed a 
"substantial disparity” in Stephens.

Stephens also discussed “additional 
positive indicia of discrimination.” 
While not pretending to be an exhaus­
tive listing, the court included the 
following: (1) the extent to which Ne­
groes have served as jury commission­
ers; (2) whether or not names of pro­
spective jurors were taken from racially
SUgregaLt’U HSUS, { O J  wnaniT ui mn-

there have been persistent and syste­
matic attempts to utilize peremptory 
challenges to eliminate Negroes from 
actual service at trial, and (4) whether 
there has been a deliberate placement of 
a certain number of Negroes on each 
jury.

The court, in Stephens, did not discuss 
the meaning of the phrase “opportunity 
for discrimination,” but it did appear 
that the jury commissioners in Stephens 
(all white) could choose from the racially 
designated prospective jury list anybody 
they wanted so long as such persons were 
of “good repute for intelligence and 
honesty.” Likewise, Witcher v. Peyton, 
382 F.2d 707 (4th Cir. 1967), involved 
jury commissioners (all white) who se­
lected prospective jurors from lists which 
indicated race. See also Hairston v. Cox, 
459 F.2d 1382 (4th Cir. 1973). Witcher 
and Stephens cited Whitus v. State of 
Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 
L.Ed.2d 599 (1967) on the point of op­
portunity to discriminate. Whitus in­
volved selection of jurors by use of seg­
regated lists. Whitus relied on Avery v. 
Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 
L.Ed. 1244 (1953) in which selection was 
by drawing cards, which were yellow if 
the person whose name appeared there­
on was black. It would seem that any 
system short of random selection would 
piesent some opportunity, however 
slight, for discrimination by one bent on 
mischief; yet, in this circuit, random 
selection is not the constitutional cri­
terion. Stephens, n. 8 at 449 F.2d 660.

.2a



191CARRINGTON v. SLAYTON
C ite  a s  3Ti9 F .S u p p . 1 HO (1073)

From the cases, it seems that the ques­
tion of whether there is an opportunity 
to discriminate must be asked initially, 
assuming that, if possible, the public of­
ficials in the locality in question are 
going to discriminate. See Alexander, 
supra, at 405 U.S. G31, 92 S.Ct. 1221. 
Given the present state of the law, this 
writer would surmise that there would 
be a more widespread acceptance of the 
apparently constitutionally unassailable 
practice of random selection from non- 
racially designated lists. Of. 28 U.S.C. 
§ 18G9(c)(d).

With the foregoing in mind, the in­
stant case must be reviewed to determine 
if petitioner has presented facts suffi­
cient to make out a jirima facie case. 
Of course, such facts do not entitle peti­
tioner to relief unless the state fails to 
meet its burden of going forward and 
showing that there is, in fact, no dis­
crimination. Alexander, 405 U.S. G25,
O') Q r* 1091 y 1 T V d  oa

Petitioner Carrington raised the jury 
discrimination claim before the trial 
court and testimony was taken ore Icnun. 
Petitioner and the state have stipulated 
that if certain of the witnesses who tes­
tified before the trial court were called 
to testify before this court, their testi­
mony would be the same as it was be­
fore the trial court. The transcript of 
the testimony of the witnesses has been 
filed. Neither party called any addition­
al witnesses, although given opportunity 
so to do, at the hearing held by this 
court.

The testimony of Aldah B. Gordon, 
Clerk of the Circuit Court of Appomatox 
County, shows that, on January 14, 1970, 
an order of the court was entered ap­
pointing five jury commissioners for the 
year 1970. . One of the commissioners, 
Edward T. Johnson, Jr., was black. He 
acted as such in preparing the list of 
jurors for 1970, but was deceased at the 
time of the trial court hearing. On Jan­
uary 21, 1970, the clerk administered the 
oath of office to the commissioners, 
which binds them to select without prej­
udice persons of good repute for intelli­
gence and honesty. The commissioners

may select anyone they care to, and they 
were provided with a list of names from 
the personal property book for use as an 
aid. The clerk directed them to choose 
about 250 names. The clerk testified 
that she usually told commissioners to 
choose at least 40 to 50 from the black 
race, but that she couldn’t recall whether 
or not she so told these particular com­
missioners. The names selected by the 
commissioners are placed in a box and 
folded twice so that one cannot tell in 
advance whether a white or a black is 
being drawn. The drawing is usually 
done by the Commissioner in Chancery 
in the presence of the clerk and another 
witness. The drawing for the petition­
er's trial was done in the presence of 
the trial judge. Incidentally, petitioner’s 
lawyer was in the clerk's office at the 
time, although not for the purpose of 
witnessing the drawing. The clerk testi­
fied that racial discrimination played no 
part in the selection process.

Jury commissioner Murrell Ferguson 
testified, and his testimony shows, that 
the commissioners deliberated as a group 
in their selection process. They used the 
personal property list merely as a guide 
and they attempted to get people from 
all the magisterial districts. His testi­
mony further indicates that the black 
commissioner was helpful in advising on 
the qualifications of the black people who 
were considered. He testified that they 
all knew that each person had to be a 
resident of the State of Virginia for a 
year, 21 years of age, and a resident of 
Appomatox County for six months prior 
to serving on the jury, besides being of 
good repute for intelligence and honesty. 
Ferguson stated that they didn’t inten­
tionally pick or exclude anyone on ac­
count of race. The testimony of the oth­
er commissioners was to the same ef­
fect. They denied that race had any­
thing to do with their deliberation, and 
that basically they tried to pick good 
citizens. One commissioner, Smith, 
stated very emphatically that Johnson, 
the black commissioner, was relied upon 
to strike blacks from the list on the basis 
of his knowledge. It further appears

3g



192 359 FEDERAL SUPPLEMENT

that there was no racial designation on 
the personal property list, and the list 
was not the exclusive source of prospec­
tive jurors.

The stipulation entered into in this 
case shows that in 1970 the population 
of Appomatox County totaled 9,784 per­
sons with 7,354 being white and 2,426 
being black, with blacks thus constitut­
ing 24.8% of the population. Of the 
9,784 total, 5,332 are between the ages of 
21 and 69. The 5,332 figure is further 
broken down as follows: 4,185 white,
1,147 black, or 21.5% black. The jury 
commissioners, 5 in number, contained 
one black and was thus 20% black. The 
grand jury which indicted petitioner on 
both counts was 33.3% black. The mas­
ter jury list for 1970 from which both 
of petitioner’s juries were drawn con­
sisted of 199 names, of whom 176 were 
white and 23 were black—a percentage
r i -i *- r  u „ „ i .  m i .  . . . . . .  . ; i. -,>r*

tilioner at his first trial was selected 
from a venire which contained 36 names, 
two of which were black—a percentage 
of 5.5. The list of 20 from which the 
jury was impaneled has 2 blacks, a per­
centage of 10. The jury which tried pe­
titioner at his second trial was selected 
from a venire which contained 40 names, 
of whom 3 were black for a percentage 
of 7.5 black. The list of 20 from which 
the second jury was impaneled contained 
1 black, a percentage of 5.

This court appointed the attorneys in 
this case as special masters and direct­
ed them to conduct a random selection 
from the 1969 personal property tax 
book. The selection resulted in a black 
percentage of 16.79.

These figures show that the percent­
age of presumptively qualified blacks is 
23.5. The master jury list prepared by 
the jury commission was 11.5% black. 
Thus, the disparity here is about the 
same as shown in Stephens—2-1, al­
though it is only 5.29% away from the 
random selection conducted by the spe­
cial masters in this case and stipulated 
to represent a typical random selection 
from the personal property list. Never­

theless, since the disparity is there, 
the other elements must be considered.

Whether or not there was an opportu­
nity to discriminate is the troublesome 
matter in this case. While not objected 
to, the method of selection of jurors from 
the master list as compiled is free from 
constitutional objection for it is done on 
a completely random basis: the name
tags are folded twice and drawn from a 
box in the presence of witnesses. The 
only opportunity which is of concern 
would be that of the five jury commis­
sioners to discriminate when they gather 
to select the jury list for the coming 
year of about 250 persons. While the 
opportunity to discriminate in this case 
is not equivalent to that presented in 
Stephens, Whitus, Witcher, Hairston, 
and Alexander, supra, the court cannot 
say that the possibility did not exist in 
this case, for every event controlled by 
bilitv of discrimination Whether or not 
the commissioners did discriminate will 
human discretion is open to the possi- 
be discussed subsequently, but to give 
the petitioner the benefit of the doubt, 
the court will assume for purpose of 
argument that, in accord with Stephens, 
he has made out a prima facie case.

| 2] Had the opportunity to discrimi­
nate been lacking, the court would have 
had to focus on the alternative ground 
of additional evidence of discrimination. 
While not indispensable in all instances 
to make out a prima facie case, consider­
ation of those elements is highly rele­
vant in that they bear on the existence 
of actual discrimination. • The court 
notes first the grand jury which indicted 
petitioner was 33.3% black. Petitioner’s 
juries were selected from a master jury 
list prepared by a jury commission which 
was 20% black. This is only 1.5% less 
than the percentage of presumptively 
qualified blacks in Appomatox County, 
and is as mathematically precise as possi­
ble. The names of prospective jurors 
in this case were not taken from segre­
gated or racially designated lists. There 
was neither an allegation nor a showing 
of any attempt to use peremptory chal-

4a



193CARRINGTON v. SLAYTON
C ite  n s  859 I '.S iip p . 1W> (1073)

lenges to consistently exclude blacks 
from jury service. There was no allega­
tion or showing that there has been any 
attempt to place a token number of 
blacks on each jury. Whether the ab­
sence of additional indicia of discrimina­
tion goes to the weakness of petitioner’s 
case or the strength of the state’s de­
fense, the point is that the existence of 
these latter factors, found pernicious in 
Witcher, are totally lacking here. Cf. 
Hairston, supra.

The record in this case, which is as 
full as either party wanted it to be, sug­
gests as much as anything else that the 
"opportunity for discrimination” was not 
exercised. Under the particular facts of 
this case, what is actually present is a 
remote opportunity for discrimination 
with a rather convincing showing that it 
was not exercised. Perhaps it would 
have been better to state at the outset 
that no opportunity to discriminate ex­
isted at all. There is a very fine and al­
most artificial distinction between the 
absence of opportunity and opportunity 
present but realistically not utilized.

the existence of the opportunity was be­
yond the realm of possibility. The 
white members of the jury commission 
could have outvoted the black member at 
every turn; they could have contrived 
to prevent blacks from being put on the 
master list. But, not only is there no 
proof that they did so, the evidence is 
that they did not. As previously stated, 
the black member of the commission was 
more familiar with the black community 
and he did most, if not all, of the elimi­
nation of blacks. In fact, there being 
no racial designation on the list, it would 
have been difficult to discriminate with­
out it being painfully obvious, especially 
to the black member of the commission.

359 F.Supp.— 13

To grant relief in this case, the court 
would have to presume that all of the 
commissioners acted in bad faith and in 
violation of their oath. Four of the com­
missioners took the stand and stated that 
race played no part in their selection. 
As previously stated, the fifth member 
was dead. The court is aware that this 
alone is insufficient to rebut a prima 
facie case. See Whit us, 385 U.S. at 551, 
87 S.Ct. 643. However, several factors 
are pertinent here. These men were 
cross-examined and in no way impeached. 
If anything stands out from their testi­
mony, it is that they made a good faith 
attempt to choose good citizens for jury 
duty and that the black commissioner’s 
familiarity with the black community 
was helpful, not to call attention to who 
was black or white, but because he was 
more familiar with that segment of the 
community. Additionally, in Whitus, 
the disparity was around 4-1, a racially 
designated list was used, and there were 
no black commissioners. In fact, no 
State case in which relief was granted 
has reached the Fourth Circuit or the 
Supreme Court in which the facts were 
as innocuous as those present here.

Whether or not petitioner has made 
out a prima facie case (if he has it 
would necessarily be established by the 
lowest acceptable quantum of proof), the 
court is of opinion the record discloses 
that the commissioners did not resort to 
racial discrimination, nor did their pro­
cedure result in the systematic exclusion 
of Negroes from the jury list for the 
coming year. The naked percentage fig­
ures of black to white in this case are 
quite similar to (or less aggravated 
than) those present in United States v. 
Grant, 475 F.2d 581, 471 F.2d 648 (4th 
Cir. 1S73) (dissent to order denying 
rehearing).

5a

/