Townsend v. Ross Appellees' Brief

    UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

IN THE

No. 19,065.

CHARLES TOWNSEND, 
Appellant,

vs.
ROY B. ROSS, Chief of Police, Helena, Arkansas, et al., 

Appellees.

On Appeal from the United States District Court for the 
Eastern District of Arkansas,

Helena Division.

APPELLEES' BRIEF,

ROSCOPF & RAFF,
Helena National Bank Building, 

Helena, Arkansas 72342, 
DAVID SOLOMON,

215 Cherry Street,
Helena, Arkansas 72342,

W. G. DINNING, JR.,
538 Rightor Street,

Helena, Arkansas 72342, 
Attorneys for Appellees.

S t- Lo w s  L aw  Pbinting Co., Inc., 411-15 N. Eighth St., 63101. CEntral 1-4477,



INDEX.

Page

Statement ........................................................................   1

Argument:
Tlie District Court did not err in overruling Ap­

pellant’s Motion to quash the jury list and names 
in the jury box ...........................................................  5

Conclusion............................................................................  8

Certificate of S erv ice .........................................................  8

Cases Cited.

Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966) .............. 6

Cassell v. State of Texas, 339 U. S. 282 ...................... 5
Mobley v. United States, 379 F. 2d 768 (5th Cir. 

1967) .................................................................................. 7

Pope v. U. S., 372 F. 2d 710 .......................................... 6

Rabinowitz v. United States, 366 F. 2d 34 (5th Cir. 
1966) .................................................................................. 6

Smith v. State of Texas, 311 U. S. 128 (1940) ..........  5
Swain v. State of Alabama, 380 U. S. 202 (1964) . . . .  5

Whitus v. State of Georgia, 385 U. S. 545 (1967) .. 8



UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT.

IN THE

No. 19,065.

CHARLES TOWNSEND, 
Appellant,

vs.
ROY B. ROSS, Chief of Police, Helena, Arkansas, et al., 

Appellees.

On Appeal from the United States District Court for the 
Eastern District of Arkansas,

Helena Division.

APPELLEES’ BRIEF.

STATEMENT.

This suit was filed by Appellant in the United States 
District Court, Eastern District of Arkansas, Helena Divi­
sion, on February 8, 1966, seeking damages for personal 
injuries from alleged assaults on his person committed 
on December 24, 1965. Appellees are the Chief of Police 
and two Policemen of the City of Helena, and Eoyce W il­
liam Finley, a Special Officer in the capacity of a store



5

detective. The Home Indemnity Company was made a 
party since it was a joint obligee on the official bond of 
Chief Eoss to the City of Helena.

Answers were duly filed by all Appellees and a jury 
trial was requested.

On May 16, 1966, Appellant filed a Motion to Quash the 
jury roll, jury list and names in the jury box, alleging 
that Negroes were discriminated against and unconsti­
tutionally excluded in the election of jurors.

On May 23, 1966, a pre-trial hearing was held at which 
counsel for Appellant sought additional tipae to take 
depositions, request admission, or submit interrogatories 
prior to a hearing on this motion (E. 52). The Court at 
this time stated that no jury had been selected for the 
approaching June term, so there was no jury roll or list to 
quash, but suggested that interrogatories to the Clerk and 
Jury Commissioner be first submitted and then if neces­
sary a hearing be held before the Court with such testi­
mony as necessary to be presented, and all interested par­
ties allowed to be present (E. 61 and 65).

On August 3, 1966, Charles F. Cole, Clerk of the Court, 
filed his answers to the interrogatories propounded by 
Appellant. These described in detail the method used 
in the selection of jurors and that no record of race, creed 
or color was kept.

On September 8, 1966, J. J. White, Jury Commissioner, 
filed his answers to the interrogatories propounded by 
Appellant. These also confirmed the procedure and no 
record of race, creed or color was kept, and such was not 
taken into account in the selection of jurors.

At the next pre-trial conference on May 29, 1967, the 
Appellant’s counsel asked for the jury box and key men 
used by the Clerk and Commissioner be made available

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for inspection (E. 70), and this was the first request that 
Appellant made for the names of key men. The Court 
offered to allow appellant an opportunity to examine the 
Clerk and the Jury Commissioner (E. 77), but refused to 
allow the jury list to be examined. The Court also pointed 
out that the Appellant’s counsel had asked that the De­
cember, 1966 pre-trial be cancelled, and that counsel had 
done nothing to develop the case after the interrogatories 
were submitted and answered or ask that depositions be 
taken (E. 79 and 81-83). The Court also pointed out that 
the matters Appellant was seeking to prove could be done 
by further examination of the Clerk and Jury Commis­
sioner without the list (E. 83). The Court further pointed 
out that Appellant made no request for further discovery 
or testimony in support of the motion from the filing of 
the interrogatories in September, 1966, until May, 1967 
(E. 94-95). The Court gave the Appellant an opportunity 
to move to quash the panel of forty-one (41) jurors prior 
to the trial (E. 96-97), and it was disclosed that of the 
forty-one (41) jurors fifteen (15) were Negroes (E. 98).

The testimony adduced at the trial June 13th and 14th, 
1967, was conflicting, and the jury found for all of the 
defendants against the Plaintiff. The racial composition 
of the jury was eight (8) Caucasians and four (4) Negroes. 
Since the matters on appeal do not involve the facts and 
testimony developed at the trial, Appellees need only state 
that Appellant’s version of his statement of the case is 
not objective in this field.

Appellant filed a motion for judgment notwithstanding 
the verdict (E. 38-40). Appellees responded stating that 
Appellant had ample time to present evidence in support 
of his motion to quash the jury roll and in addition the 
actual composition of the jury empanelled conclusively 
refuted the allegations of the motion. The Court ordered 
sixty (60) jurors drawn, and thirty-seven percent (37%)



of this number were Negroes. Further, the forty-four (44) 
who reported for jury duty on June 12, eighteen (18) 
were Negroes, and on June 13, forty-one (41) jurors re­
ported and seventeen (17) were Negroes. Appelles in 
their motion also pointed out that of the jury of twelve 
(12) which tried the Defendants, four (4) were Negroes 
(R. 41-43).

The Court denied Appellant’s motion for a judgment 
notwithstanding the verdict, and this Appeal resulted.



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ARGUMENT.

The District Court Did Not Err in Overruling Appellant’s 
Motion to Quash the Jury List and Names in 

the Jury Box.

Appellees have cited statistics of the population of the 
Helena Division, and the percentage of Negroes therein. 
Although Appellant had ample opportunity to place proof 
of this and any other facet to support his motion, the 
only thing he did was to obtain the interrogatories of 
the Clerk and Jury Commissioner. The statistics cited are 
not a part of the record. Thus, the District Judge was 
faced with the problem of holding jury trials, and did not 
abuse his discretion in not allowing the matter involved 
in the motion to quash the jury list, open for another year 
or more, for Appellant’s convenience.

It is impossible to believe that the only way Appellant 
could obtain the information he sought was by the jury 
list or roll. Certainly the records of former panels were 
available to him, but for a period of well over six months 
he did nothing to either obtain evidence by any of the 
procedures available to him or advise the Court that 
such was necessary on his part.

As Appellant has pointed out, the Supreme Court has 
made quite clear that juries should be “ truly representa­
tive of the community”  or a “ fair cross-section of the 
community” . Smith v. State of Texas, 311 U. S. 128 
(1940); Swain v. State of Alabama, 380 IT. S. 202 (1964); 
Cassell v. State of Texas, 339 U. S. 282. It is equally 
true that the actual representation of any segment of the 
community on any particular jury is unnecessary. Swain 
v. State of Alabama, supra, in which the Court said:

“ But a Defender in a criminal case is not constitu­
tionally entitled to demand a proportionate number of



his race on the jury which tries him or on the venire 
or jury roll from which petit jurors are drawn. 
Neither the jury rolls nor the venire need be a per­
fect mirror of the community or accurately reflect the 
proportionate strength in every identifiable group. 
Obviously the number of races and nationalities ap­
pearing in the ancestry of our citizens would make it 
impossible to meet a requirement of proportional 
representation. ’ ’

The rules are well established but their application brings 
about many questions. The Clerk and Jury Commissioners 
have a delicate and difficult job in selecting the cross- 
section to take into account race, and yet not consider 
race to secure proportionate representation. In looking at 
their responses to the interrogatories, Ave see that they 
have fulfilled the requirements of the statute. More than 
this, the results from the panel chosen speak loudly and 
clearly that there was no discrimination. The Clerk and 
Jury Commissioner stated that they did not take into 
account race, creed or color in making their selections of 
prospective jurors, and such was true in their selection 
of key men. In many cases statistics have been used to 
show discrimination, but certainly in this case the oppo­
site is true. In Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966), 
the Court made the statement that statistics speak louder 
than words, and the statistics here make it quite evident 
that no deliberate exclusion or discrimination against 
Negroes has been practiced.

Appellant’s real basis to show error on the part of the 
Clerk and the Jury Commissioner is Rabinowitz v. United 
States, 366 F. 2d 34 (5th Cir. 1966). This Court pointed 
out in Pope v. U. S., 372 F. 2d 710, at page 723:

“ The defense urges upon us Rabinowitz v. United 
States. We are frank to say that a careful reading 
of the several opinions filed in that case affords us



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little effective assistance in resolving the issues 
presently before us. The opinions reveal that a 
sharply divided Court with Judge Brown, although 
fully concurring in the result, noting page 72, that 
he joins the bare majority ‘ in order to avoid a four 
to four deadlock’, and that, ‘ having so declared, 
I am not at all certain just what is decided.’
“ We, of course, do not express disagreement with 
Rabinowitz on its facts. The majority opinion there 
does not hold that a suggestor’s system is per se 
inadequate.”

In Mobley v. United States, 379 F. 2d 768 (5th Cir. 
1967),the Court admitted that Rabinowitz did not declare 
the key men selection system illegal as such. It stated 
that the way it was used was improper. The Court said 
at Page 772:

“ There is therefore an affirmative duty imposed by 
the Constitution and laws of the United States upon 
the jury selection officials—Jury Commissioner and 
Clerk of Court—to know the availability of potentially 
qualified persons within significant elements of the 
community, including those which have been the 
object of State discrimination, to develop and use a 
system that will result in a fair cross-section of quali­
fied persons in the community being placed on the 
jury rolls and to follow a procedure which will not 
operate to discriminate in the selection of jurors on 
racial grounds.”

The results obtained by the Clerk and Jury Commis­
sioner do not bear out Appellant’s contention that these 
men are applying improper standards or that their sources 
for prospective jurors are inadequate. The label that the 
Clerk and Jury Commissioner might have used does not 
show any improper result as in the Rabinowitz case. Ap­
pellant’s conclusions as to the improper limitation by the



<
Clerk and Jury Commissioner is not borne out by the 
facts.

In Whitus v. State of Georgia, 385 U. S. 545 (1967) the 
Supreme Court reaffirmed that the burden of proof is on 
the person attacking the existence of discrimination, and 
Appellant has not sustained this. The Court correctly 
overruled the motion to quash the jury roll and list.

Thus, it is clear that the District Court did not err in 
overruling Appellant’s motion to quash the jury list and 
names in the jury box nor did the Court err in not allow­
ing the jury list to be inspected by the Appellant.

~~8 — -

CONCLUSION.

For the foregoing reasons, the Appellant would re­
spectfully submit to this Court that the verdict of the jury 
should not be set aside and that a new trial should not be 
granted. Appellees respectfully urge that the judgment of 
the trial court be affirmed.

Respectfully submitted,
ROSCOPF & RAFF,

Helena National Bank Building, 
Helena, Arkansas 72342,

DAVID SOLOMON,
215 Cherry Street,

Helena, Arkansas 72342,
W. G. DINNING, JR.,

538 Rightor Street,
Helena, Arkansas,

Attorneys for Appellees.

Certificate of Service.

This is to certify that on the 8tli day of March, 1968, 
I served a copy of the foregoing Appellees’ Brief upon



Jack G-reenberg, Norman C. Amaker, and James N. Fin­
ney, 10 Columbus Circle, New York, New York 10019, and 
George Howard, Jr., 329% Main Street, Pine Bluff, Arkan­
sas, by mailing a copy thereof to each of them at the above 
addresses via United States mail, postage prepaid.

Roseopf & Raff,

By: Gene Raff,
Attorneys for the Appellees.

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