Rabinowitz v. United States Second Supplemental Brief on Behalf of Appellant

    1ST T H E

Ittitefc ©Hurt rtf kppm lz
For the Fifth Circuit

No. 21256

JONI RABIN0 WITZ,

versus
Appellant,

UNITED STATES OF AMERICA,
Appellee.

SECOND SUPPLEMENTAL BRIEF ON BEHALF 
OF APPELLANT

V ictor R abinowitz,
L eonard B. B oudin,

New York, N. Y.

C. B. K ing,
Albany, Ga.,

Attorneys for Appellant.
October 19, 1965.



IN' THE

Ittt&fr (&mrt nf Appeals
For the Fifth Circuit

No. 21256

------------ o------------
J oni R abin o w itz ,

versus
Appellant,

United States of A mebica,
Appellee.

o

SECOND SUPPLEMENTAL BRIEF ON BEHALF 
OF APPELLANT

I .

The nation has long been aware that Negroes do not 
receive fair trials in Southern courts because, among other 
things, the methods used to choose juries has been dis­
criminatory. The courts in scores of cases over the past 
century have addressed themselves to this problem and, 
on a case-by-case basis, have sought to correct the most 
glaring injustices resulting from racially-biased jury sys­
tems. Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 
177 U. S. 442; Norris v. Alabama, 294 U. S. 587; Smith v. 
Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400; Patton 
v. Mississippi, 332 U. S. 463; Cassell v. Texas, 339 U. S. 
282; Speller v. Allen, 344 U. S. 443; Avery v. Georgia, 345 
U. S. 559; Reece v. Georgia, 350 U. S. 85; Eubanks v. Louisi­
ana, 356 U. S. 584̂ -,United States ex rel. Goldsby v. Harpole, 
263 F. 2d 71 (5th Cir., 1959); United States ex rel. Seals 
v. Wiman, 304 F. 2d 53 (5th Cir., 1962); Collins v. Walker, 
329 F. 2d 100 (5th Cir., 1964).



2

It lias also been true that, for a century, the jury system 
of the South has resulted in the wrongful acquittal by all- 
white juries of whites accused of crimes of violence against 
Negroes. Appellate courts have not addressed themselves 
to this problem because those acquittals presented no ques­
tion subject to appeal. Over the past months, however, the 
conscience of the nation has been shocked by the spectacle 
of Southern white juries which failed to convict white de­
fendants under circumstances where guilt appeared obvious 
to all.*

In many of these cases, the defendants and their asso­
ciates have openly taunted the Government of the United 
States and the state governments with the futility of at­
tempts to enforce the laws against murder when, under 
our system of government, defendants so charged are 
entitled to a jury trial. That the jury system, as admin­
istered in many Southern counties and in the United States 
courts, bears a major responsibility for this evil situation 
is self-evident.

Not the least disgraceful aspect of the situation has been 
the attitude of the Attorney General of the United States 
who, when asked to comment on the acquittal of Coleman 
by an Alabama jury a few weeks ago, is reported to have 
said:

“ I think this kind of result is expected from 
time to time. . . . This is the price you have to pay 
for the jury systems, but I don’t think it ’s too high 
a price to pay.”  New York Herald Tribune, Oct. 1, 
1965, p. 16.

Of course, this kind of result is expected—-when juries 
are improperly chosen. But Mr. Katzenbach’s duty as chief

* The Court, we think, can take judicial notice of the fact that the 
murderers of Medgar Evans, Lemuel Penn, Michael Schwerner, 
Andrew Goodman, James Chaney, Viola Liuzzo, Rev. Jonathan 
Daniels and others are as yet unpunished and are not likely to be 
convicted.



3

law officer of the United States is to do everything in his 
power to correct this monstrous situation in the state courts; 
instead, in this case and in Jackson v. United States, No. 
21345, he seeks judicial approval of a similar jury system 
in the Federal courts.

Against this background, the order of this court dated 
September 23, 1965 takes on great significance. The court 
is presented with the opportunity of reviewing the entire 
jury system of the South in both state and federal courts. 
The promulgation and enforcement of rules for the non- 
discriminatory selection of juries in both state and federal 
courts will represent a great step toward full and equal 
citizenship for the Negro in the South and will correct 
many gross miscarriages of justice both where Negroes, 
as defendants, seek a fair trial and where whites, as de­
fendants, are charged with racially-motivated crime.*

II*

In considering the cases raising the question of exclu­
sion-inclusion of race in jury selection in both state and 
federal courts, a distinction must be made between the 
method of choosing jury panels ** and the results of the 
application of that method. In a constitutional sense it is

* Civil cases as well as criminal are affected by the nature of the 
jury system. There are relatively few cases in the Appellate courts 
on this aspect of the problem, but it cannot be ignored. See, for 
example, Thiel v. Southern Pacific Co., 328 U. S. 217; Dow  v. 
Carnegie Illinois Steel Corp., 224 F. 2d 414 (3rd Cir., 1955).

** Nomenclature differs from place to place. The words “ jury 
panel” and “ jury list”  are used herein to designate the list compiled 
by court officials from which jurors are to be chosen. This is to be 
distinguished from the venire (the persons on the jury list who are 
summoned to appear in court at the opening of a trial or at the 
beginning of a grand jury inquest) and the jury (the persons actually 
selected to try the facts in a trial or to consider an indictment in a 
grand jury proceeding).



4

the method that counts. Whatever the result, a constitu­
tional or lawful method is proper; an unlawful method is 
improper. So the systematic inclusion of Negroes on the 
jury is as unlawful as their systematic exclusion even 
though the results may appear on their face to he fair 
(Collins v. Walker, supra). Appellant has never argued 
that her rights would have been protected had more Negroes 
been arbitrarily placed on the jury list, the venire or the 
jury. She argues only that the venire and jury should 
have been chosen from a panel compiled in such a method 
that it would have represented, as the federal practice 
requires, a reasonably accurate cross-section of the com­
munity.

Though the law and the Constitution regulate the 
method of choosing a jury list, the end results of that method 
are highly significant because they provide indirect but 
very reliable evidence of the legality of the method. It is 
often much easier to secure evidence of the result of the 
method used. Furthermore, such evidence can usually be 
reduced to mathematical terms—-hence the frequency with 
which this court and the Supreme Court are concerned with 
statistical compilations of the number of Negroes on the 
jury list as compared with the number of Negroes in the 
population. Such evidence of the composition of the jury 
list-even though it be only indirect evidence of the method 
in which the list was compiled—has a very high probative 
value. And so the courts have held that evidence of a 
decisive imbalance in the composition of the jury panel or 
evidence that Negroes never or seldom serve on juries, 
while indirect, is such convincing evidence of impropriety 
in the method of compiling a jury list that it establishes a 
prima facie case and puts the burden on the state to prove 
its method proper. See Norris v. Alabama, supra; Smith 
v. Texas, supra; Aikens v. Texas, 325 U. S. 398; State v. 
Wilson, 262 No. Caro. 419; 137 S. E. 2d 109 (1964).

Experience has shown that the state rarely maintains 
the burden so cast upon it; the laws of probability and



5

logic have inexorable force and it almost always turns out 
that a raeially-imbalanced list is the result of an unlawfully 
discriminatory method of compiling that list.

Swain v. Alabama, 380 U. 8. 202, does not hold to the 
contrary. The method of selection of the jury list in that 
case is set forth in considerable detail in footnote 4 to the 
Court’s opinion at page 207. And it appears that city 
directories, registration lists, membership lists of Farm 
Bureau Cooperatives, membership lists of the Rural Elec­
tric Cooperative, telephone directories, church rolls and 
club rolls were all used. The footnote concludes with the 
following sentence:

“ The record contains no admission by the com­
missioners that they had relatively few Negro ac­
quaintances or that they tended primarily to use 
white church lists or white club lists.”

The exact opposite is true in the instant case (R. 193a, 
209a, 211a, 242a, 266a, 267a). It may well be that the 
discrepancy in Swain between Negroes on the jury list and 
Negroes in the population was accounted for by factors 
which do not appear in the opinion.*

In the instant case appellant has proven by both direct 
and indirect evidence that the jury list was compiled by a 
racially discriminatory and hence constitutionally improper

* There is a curious and material arithmetical error made by the 
majority of the Court in Swain. Negroes constituted 26% of 
all males in the county; “ 10% to 15% of the grand and petit jury 
panels drawn from the jury box . . . have been Negroes”  (p. 205). 
Somehow, the Court concluded that Negroes were under-represented 
by 10% (p. 205).

It seems obvious that in Swain Negroes were under-represented 
not by 10% but by 100%. Had the Negroes in the jury box been 
proportionate to the Negroes in the population, there would have 
been 100% more Negroes on the panel ( i . e twice as many) than 
there were. In the instant case, Negroes were under-represented by 
580% if we use total population figures; by 412% if we use the 
“ functionally literate”  population statistics which are presented in 
appellant’s Supplemental Brief.



6

process. The direct evidence was supplied by the Jury 
Commissioner, the Clerk and the Deputy Clerk. It appears 
at pages 182a to 267a of the record and is summarized at 
pages 9 to 13 of the original brief. The indirect evidence, 
that of the result achieved, appears at pages 88a-94a and 
285a-289a of the record, at page 8 of appellant’s original 
brief and at pages 1 to 3 of her supplemental brief. Fur­
ther summary would seem to be superfluous. As might 
be expected, the result achieved was quite consistent with 
the unlawful method used. In fact, the result was totally 
inconsistent with any non-discriminatory random choice.**

We do not feel that we are under any obligation to pro­
pose a method for the non-discriminatory selection of 
jurors; we are the lawyers for the appellant and not jury 
commissioners or court clerks. However, this court, in 
setting these several cases down for argument en banc, 
may well be interested in providing guidance to both state

** Whether we use the statistics compiled in our original brief or 
the modified statistics submitted in the supplemental brief, the results 
for all practical purposes are the same. In either event the proba­
bility of getting 117 or fewer Negroes on the jury list in a non- 
discriminatory random choice is far less than one in a million. Indeed, 
the probability is so small that ordinary calculating machines cannot 
compute it. By contrast the probability of drawing a royal flush in a 
poker game is one in 4,165— much more than two hundred times as 
likely as the possibility of drawing only 117 Negroes from the eligible 
population. W e recognize, of course, that some variations from a 
random choice are necessary in view of the unavailability of a com­
plete list (see p. 8 below), but a deviation such as that experienced 
in this case is totally inconsistent with a non-discriminatory method 
of picking jurors.

The above calculations have been made at our request by statis­
ticians, who advise us that the formula used is standard in statistical 
theory. It can be found in D. A . S. Fraser, Statistics An Introduction 
(John Wiley & Sons, New York, 1958) 55.



7

and federal district courts and so we shall make a few 
suggestions without, however, presuming to any extraor­
dinary expertise.

Preliminarily, we might note that we think it clearly 
improper for the commissioners and clerks to rely on 
information given to them by friends, acquaintances, 
friends of friends and acquaintances of acquaintances. Few 
humans have such wide contacts that they know, either 
directly or indirectly, a significant number of persons in 
all classes and groups in our society. Furthermore, the 
possibility of subjective choice in these circumstances is 
so high as to amount to a certainty. Especially is this 
likely to be true in the South, where the kind of person 
most likely to be chosen Jury Commissioner or Court 
Clerk is least likely to know many Negroes and is likely 
to be prone to the prejudices and biases, however uncon­
scious, shared by most persons of his class. Even when 
Negroes are chosen, they are likely to be “ good Negroes”  
(R. 232a). The record in this case is an example but is 
not at all unique.

Given the most complete good faith, such a personal 
and subjective method of choosing prospective jurors is 
unsatisfactory and will never result in the cross-section of 
the community required by federal law.

The problem therefore is to find reasonably compre­
hensive lists of adults from which a random, non-discrim- 
inatory choice can be made. In New York City, primary 
reliance is placed on voting lists, but this is not likely to 
be satisfactory in the South. The most comprehensive lists 
are probably census and federal income tax rolls. Both of 
these are by law confidential, but the Court or the 
United States Attorney, if so minded, might call for ap­
propriate legislation to permit the release of the names 
of persons on those rolls. In some states (e . g Georgia) 
there are public lists of personal property taxpayers and, 
in fact, Georgia law requires that these lists be used by



8

jury commissioners in picking juries in state courts. Van- 
leeward v. State, 220 Ga. 135; 137 S. E. 2d 452 (1964). If 
a random choice were made from such a list it would prob­
ably come reasonably close to a cross-section. Telephone 
directories and auto registration lists would be helpful; 
their economic bias might be corrected by using lists of 
persons receiving welfare or unemployment insurance 
benefits.

In the course of the oral argument in this case, District 
Judge Hunter, sitting as a member of the panel, suggested 
the use of a list of those who use electric power; most 
persons, be thought, had electric power even if they did 
not have telephones or automobiles. In many cities there 
are regularly published city directories.

So we see that there is no scarcity of lists. The diffi­
culty is that the jury commissioner and clerks, in the instant 
case, referred to none of them.

I V .

We do not wish to derogate from the argument posed 
by counsel challenging the jury system in the four state 
cases before the court on this argument; we think that the 
respective records in these cases show sufficient grounds 
for complaint with respect to the method of choosing juries. 
We are, however, constrained to point out, once more, as 
we did in our original brief, that this is a federal case; 
that the standards here are much higher than in the state 
courts and that in this case and the Jackson case, unlike 
the others, this court is governed not only by the Consti­
tution but also by statute and the high standards which the 
federal courts have imposed on themselves (see original 
brief, pp. 17-24).



9

V .

One final point should be mentioned. The jury selection 
issue may he decisive in this case, but it is not the only 
ground on which appellant seeks reversal nor is it neces­
sarily the strongest ground. In our opinion the other errors 
committed by the court below are equally grievous and we 
would urge that those issues not he lost in the consideration 
of the issue of racial exclusion from the jury.

Respectfully submitted,

V ictor R abistowitz,
L eonard B. B oudin,

New York, N. Y.

0. B. K ing,
Albany, Ga.,

Attorneys for Appellant.

October 19, 1965.



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