Response in Opposition to Appellees' Motion to Expedite Schedule for Appeal

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 73-2519

BELLE FEW THOMPSON, et al.,
Plaintiffs-Appellants, 
v.

MAX SHEPPARD, et al.,
Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

C. B. KING 
HERBERT E. PHIPPS 
P.O. Drawer 3468 
Albany, Georgia 31706

Attorneys for Plaintiffs- 
Appellants



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 73-2519

BELLE FEW THOMPSON, et al..
Plaintiffs-Appellants, 

v.
MAX SHEPPARD, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia

CERTIFICATE

The undersigned counsel for plaintiffs-appellants 
Thompson, et al., in conformance with Local Rule 13(a), 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are made 
in order that Judges of this Court may evaluate possible 
disqualification or recusal:

1. Belle Few Thompson, Lonnie M. Taylor, Maurleen 
Edwards, Celestine Hill, Joanne Mants, Leon Robinson,
Calvin Williams, Charlie Jones, and Billy Roy Calloway, 
plaintiffs.



2. The class of black and women residents of 
Dougherty County, Georgia.

3. Max Sheppard, Jr., Wendell Prince, B. B. White,
Jerry Bauer, H. B. Brimberry, Ms. McCree Harris, J. W. Bush, 
Asa D. Kelley, Jr., R. H. Warren, Felix G. Marbury, Dr. J. P. 
Cheevers, Harvey J. Cohen, Franklin U. Cross, Morgan Murphy 
and Charles Nesbitt, public of Dougherty County, defendants.o

Attorney for Plaintiffs-Appellants

2



INDEX
Page

Table of Authorities -----------------------  i
Statement of the Issue Presented for Review-- ii
Statement of the Case-----------------------  1
Statement of Facts --------------------------  3
ARGUMENT------------------------------------  7
THE DECISION OF THE COURT BELOW CONFLICTS 
WITH DECISIONS OF THIS COURT ESTABLISHING 
STANDARDS IN CIVIL ACTIONS TO ENFORCE THE 
RIGHT TO SERVE ON JURIES--------------------  7
CONCLUSION------------------------------------11
Certificate of Service --------------------- 12

TABLE OF CASES:
Alexander v. Louisiana, 405 U.S. 625 (1972)--  5
Broadway v. Culpepper, 439 F.2d 1253

(5th Cir. 1971) ------------------------ 8, 10
Smith v. Yeager, 465 F.2d 272

(3rd Cir. 1972) --------------------------  11
Turner v. Fouche, 396 U.S. 346 (1970)------ 9, 10

STATUTES:
42 U.S.C. § 1983 1



STATEMENT OF THE ISSUE PRESENTED 
___________FOR REVIEW

Whether, following a finding that an earlier jury list 
unconstitutionally excluded blacks and women, the district 
court erred in approving a new jury list on which blacks 
and women were still substantially underrepresented?



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 73-2519

BELLE FEW THOMPSON, et al.,
Plaintiffs-Appellants, 

v.
MAX SHEPPARD, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS 

Statement of the Case

This is an action brought pursuant to 42 U.S.C. § 1983, 
to enforce the right to serve on grand and petit juries in 
Dougherty County, Georgia, on behalf of black and women 
citizens who alleged that they have been unconstitutionally 
excluded from such service. The defendants are the members 
of the Jury Commission of Dougherty County and other Dougherty 
County officials responsible for the selection and composition 
of grand and petit jury lists.



The action was filed on November 22, 1973; following 
a hearing, the district court entered a preliminary injunction 
on January 12, 1973, requiring that the defendants proceed 
without delay to compose new grand and petit jury lists 
for Dougherty County (A. 23). The order required them 
to submit a written, detailed report of their action within 
90 days after the date of the injunction. The basis for the 
court's order was the finding that the existing jury lists 
substantially underrepresented both blacks and women, in 
violation of the constitutional rights of plaintiffs and 
members of their class.

Subsequently, on April 3, 1973, the defendants submitted 
their report detailing their attempts to comply with the 
district court's order and to produce jury lists that com­
ported with their duties under the Constitution of the 
United States and the statutes of the State of Georgia 
(A. 27). On April 4, 1973, the district court issued an 
order to show cause why the report of the defendants should 
not be affirmed and set down a hearing on the order of April 17, 
1973 (A. 34).

At that hearing the plaintiffs objected to the report 
and requested that it not be approved, on the ground that 
there was still a failure to comply with constitutional

2



requirements (A. 35). The district court, in accord with
an oral opinion at the hearing on April 17, issued an order
the same day that stated:

It appears to the Court that, within the 
bounds of what is possible and practical, 
both the petit and grand jury lists have 
been recomposed fairly and legally within 
the standards known to this Court. A. 38.

Therefore, the report of the defendants was approved and
further relief was denied to the plaintiffs. A timely notice
of appeal was filed on May 13, 1973 (A. 39), and the case
was docketed in this Court on July 2, 1973.

Statement of Facts

In its order of January 12, 1973, the court found 
substantial underrepresentation of both blacks and women 
on the jury lists in question, in light of 1970 census data. 
In summary, that data show that the total number of persons

1
over 21, and therefore considered for jury duty, was 48,444.

1/ Under Georgia law, persons over 65 are exempt from 
service unless they volunteer. In the present case many 
persons over 65 indicated they wished to serve and were put 
on the jury list. See A. 155.

3



Of this, 47.32% were male and 52.68%, female. Blacks over
2/

21 comprise 30.23% of the population.
The grand jury list before the court in January, however,

3/contained only 10.7% black names and only 17% women. On 
the petit jury list there were 12.48% black and 24% female 
(A. 24-25). The court correctly concluded that these figures 
established a prima facie case of discrimination against both 
women and blacks pursuant to decisions of the Supreme Court 
of the United States and of this Court, and therefore relief 
was required.

2/ Census Data, 1970, Dougherty County
Source: U.S. Department of Commerce,

General Population Characteristics for 
Georgia, 1970. PC(1)-B12, Table 35,
p. 145.

Total Population 
Over 21

48,444

Blacks Over 21
14,645: 30.23%
Black Males 
Over 21

6,169: 12.73%

Males Over 21

22,920: 47.32%

Whites Over 21
33,568: 69.29%
Black Females 
Over 21

8,476: 17.49%

Females Over 21 

25,524: 52.68%

3/ In the order of the court dated January 12, 1973, the 
court stated that blacks were 13% of the grand jury (A. 24). 
This was later recognized to be an arithmetical error 
(A. 195-197) .

4



The revised jury list approved by the court, however, 
did not represent a substantial improvement in the figures 
found to establish a prima facie case. On the grand jury 
list, out of a total of 701 names, only 115 names, or 16.40%, 
were black. On the petit jury list, out of a total of 
2,720 names, only 521 were black, or 19.15%. Thus, blacks 
were underrepresented on the grand jury list by 45.75% 
compared with their total number in the eligible population, 
and underrepresented on the petit jury list by 36.66%. With 
regard to women, on the grand jury list 35.66% of the names 
were those of women and on the petit jury list 37.90% were 
women. Thus, women were underrepresented on the grand jury

V 'list by 32.31% and on the petit jury list by 28.16%.
At the hearing on April 17, 1973, jury officials 

testified as to the method by which the new jury list was 
compiled. It is clear that the only source used was voter

4/ Percentage underrepresentations set out above are 
derived by determining the percentage of persons on the list 
as a ratio of their percentage in the total population. It 
is clear that this is the proper method of determining the 
extent of underrepresentation, rather than to simply subtract 
the two percentages. See Alexander v. Louisiana, 405 U.S. 
625, 629 (1972).

5



registration rolls (A. 27-28; 146-47). The computer on 
which voter registration information was kept was made 
to select every fourth person at random from the voter 
list, thus resulting in 7,308 names being selected (A. 28, 
147). Jury commissioners determined that, of these, 77.9% 
were white and 22.1% were black (A. 149). When compared 
with the black population of the county as a whole, this 
means that blacks were underrepresented on the initial listVused by 26.9%.

Questionnaires were then sent out to each of the 
7,308 persons (A. 28, 149). These questionnaires were 
screened to eliminate people under Georgia law for a 
variety of reasons. A large number of persons, 1,078, 
so eliminated were women who chose not to serve on juries 
under the Georgia statute which allows women to exercise 
an option not to serve (A. 153). Another large group eli­
minated was the result of questionnaires being unanswered 
(A. 151). Although this involved 1,489 persons, no further 
attempt was made to contact them (see, A. 197-98). In

5/ No determination was made as to the proportion of blacks 
on the total voter list of 29,000 names (A. 174-75).

6



addition, there was an unspecified but large number of 
questionnaires returned undelivered by the post office 
(A. 151). As a result of this procedure 2,721 names were 
left, which made up the petit jury list.

From the petit jury list grand jurors were selected 
pursuant to different standards. According to the testimony 
of the jury officials, they interpreted Georgia law as 
requiring them to select persons of higher educational and 
job statuses for service on grand juries (A. 161; 186-192). 
The result of this process, as can be seen from the figures 
above, was to increase the underrepresentation of blacks 
on the grand jury list, so that as compared to the petit 
jury list, blacks were underrepresented by 14.37%. As stated 
above, no attempt was made whatsoever to investigate the 
possibility of using other sources either before or after it 
became evident that blacks were still substantially under­
represented on the grand and petit juries (see, A. 193).

ARGUMENT
THE DECISION OF THE COURT BELOW 
CONFLICTS WITH DECISIONS OF THIS 
COURT ESTABLISHING STANDARDS IN 
CIVIL ACTIONS TO ENFORCE THE RIGHT 
TO SERVE ON JURIES.

Plaintiffs-Appellants contend that the order of the 
court below is squarely in conflict with the decision of

7



this Court in Broadway v. Culpepper. 439 F.2d 1253 (5th Cir. 
1971). That case, as here, also involved the proper 
standards to be applied in a civil action seeking to enforce 
compliance with constitutional requirements prohibiting 
discrimination against blacks and others from serving on 
juries. Moreover, Broadway established standards to be 
applied in cases arising in the State of Georgia. That case 
makes it clear that once a constitutional violation has 
been found, as was the case in the present proceeding, 
the district court is required to make the jury officials 
achieve as close an approximation to a representative cross- 
section of the community as is feasible.

Broadway further makes it clear that because of the 
requirements of Georgia law, jury officials cannot restrict 
themselves to voting lists when those voting lists are found 
to be unrepresentative of the black community. Rather, the 
jury officials must at least make a reasonable effort to 
utilize other sources when it is apparent that voting lists 
are not sufficient.

Of particular significance with regard to Georgia jury 
cases is the fact that the state statutes give jury commis­
sioners considerable discretion as to the standards they will 
use in selecting persons for jury duty. Following the

8



decision of the Supreme Court of the United States in 
Turner v. Fou.che, 396 U.S. 346 (1970), this means that the 
duty of the district court is to closely question substantial 
disparities in the number of blacks selected for jury duty 
when such subjective standards are utilized.

It is clear that these requirements were not followed 
by the court below. First, the prior jury list before the 
court in January was found to be unconstitutional. Second, 
the list of 7,308 names selected from the voting list 
underrepresented the black community by 26.9%. Third, 
in the process of weeding out persons who had returned 
questionnaires a further diminution of black representation 
took place, so that blacks were underrepresented on the 
petit jury list by more than 36% and on the grand jury list 
by more than 45%. Put in another way, if representative 
lists had been compiled, then 30 out of every 100 jurors 
selected would have been black and 70 white. Under the lists 
as compiled, however, only 16 out of every 100 grand jurors 
will be black, with 84 being white, and only 19 out of 
every 100 petit jurors will be black, with 81 being white. 
Thus, there will be a double disparity in that there will 
be both many fewer blacks and substantially more whites 
selected on jury venires than if the master list were

9



reasonably representative. Further, it is clear that the 
selection of potential grand juries was done according to 
precisely the "kind of subjective standards discussed with 
disfavor in Broadway and in Turner.

Finally, the jury commissioners, although cognizant 
of the fact that blacks were substantially underrepresented 
on the final list, made no inquiry or investigation of, or 
indeed even gave any thought to, the possibility of using 
supplemental sources. Indeed, they did not even make an 
effort to obtain responses from the many persons who 
returned unanswered questionnaires. Thus, there was no basis 
in the record whatsoever for the district court's conclusion 
that there was no practical or possible way that more 
representative jury lists could not have been compiled. 
Clearly, once a prior history of unconstitutional jury lists 
has been established, the burden is on the jury commissioners 
to adduce evidence that establishes why the use of other 
sources is not feasible.

In addition to relying on these inconsistencies with 
the standards set out in Broadway, plaintiffs-appellants 
contend that the use of higher standards of selection for 
grand jurors, which, in this case, resulted in a further 
underrepresentation of blacks, is not constitutionally

10



permissible. We urge the Court to adopt the rule recently 
enunciated by the Court of Appeals for the Third Circuit in 
Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972). There, the 
Third Circuit, relying on decisions of the Supreme Court 
of the United States and of this Circuit, held that, if 
anything, grand juries should be more representative of the 
community than petit juries. it condemned any notion that 
blue ribbon grand juries were permissible and, in so doing, 
it held unconstitutional a method of selecting grand juries 
by the exercise of subjective standards of higher quali­
fications strikingly similar to those present here.

CONCLUSION

For the foregoing reasons, the decision of the district 
court should be reversed.

Respectfully submitted,

JACK GREENBERG
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New York, New York 10019

C. B. KING 
HERBERT E. PHIPPS 

P.O. Drawer 3468 
Albany, Georgia 31706

Attorneys for Plaintiffs- 
Appellants

11



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief 
for Plaintiffs-Appellants- were served upon counsel for 
Defendants-Appellees by depositing the same in United 
States mail, air mail, postage prepaid, addressed as 
follows:

Jesse W. Walters, Esq.
P.0. Box 527
Albany, Georgia 31702.

This 25th day of July, 1973.

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