Rabinowitz v. United States Supplemental Brief for Appellee

    N os. 21256 and 21345

In the United States Court of Appeals 
for the Fifth Circuit

J oni R abinowttz, appellant

V .

U nited S tates of A merica, appellee

E lza L eslte J ackson, et al., appellants

v.
U nited S tates of A merica, appellee

A PPE A LS FROM  TH E  UNITED STATES D IS T R IC T  COURT F O R  TH E  
M ID D LE  D IS T R IC T  O F GEORGIA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

F R E D  M . V IN SO N , Jr.,
A ssistant A ttorn ey General,

F L O Y D  M . B U FOR D,
United States A ttorney, 

N A T H A N  L E W IN ,
R O B E R T  S. E R D A H L ,

A ttorneys,
D epartm ent o f Justice, 

W ashington, D.C., S0530.



I N D E X

Pag*

'Statement_________________________________    1
I . Census data concerning the Macon Division-----  2

II . The jury commission____________________________  3
I I I . Standards used by the jury commission for com­

piling the jury list----------------------------- -------------- 4
IV . Procedures by which the 1959 jury list was com­

piled_____________________________________________ 6
A . The 1953 list_____________________________  6
B. Compilation of the 1959 list-------- „ ---------  7

1. Commissioner’s method--------------  7
2. Clerk’s method__________ ________  8
3. Questionnaires_______ ______ _—  9

V . Results___________________________________________   10
V I . Explanations offered for results----------------------- - 12

VTI. Actual service by Negroes as jurors,-------------------- 13
V I I I . The district court’s ruling________________________  14

Discussion________________________________________________________  16
Introduction_________________________________________________  16

I. It is only purposeful exclusion from jury service 
because of race or other similar status which 
contravenes constitutional and statutory stand­
ards_______________________________________________  17

A . The constitutional ground______ ._______ 18
B . The statutory ground___________________  28

II . The procedures for compiling the jury list be­
low met constitutional and statutory standards, 33

I I I . In the particular circumstances of this case, the 
addition of only four new Negro names in the 
compilation of the 1959 jury list and the fail­
ure during the period involved to make further 
affirmative efforts to add additional Negro 
names to the list leads us to suggest that this 
court, reverse the convictions in the exercise of 
its supervisory power____________________________ 38

796^ 006— 65 ---------- 1 (I)



II

C IT A T IO N S
Qages • Page

Akins v. Texas, 325 U .S. 358---------------------------  2 2 ,2 3 ,2 4 ,2 7 ,3 4
Arnold  v. North Carolina, 376 U .S . 773---------------------------  24
A very  v. Georgia, 345 U .S . 559—  ------------------------------------  24
Ballard v. United States, 329 U .S . 187------------------ 28 ,30 ,31 ,33
Bolling v. Sharpe, 347 U .S . 497----------------------------------------

v. Allen, 344 U .S . 443--------------------------------------  21 ,23 ,27
Brown  v. Ae-io Jersey, 175 U .S . 172--------------------------------- 18

5y^ C a rter  v. Texas, 177 U .S . 442------------------------------------------  21
C W eB  v. 339 U .S. 282____________________  2 5 ,26 ,27 ,42
Chamce v. United States, 322 F.2d 201, certiorari denied,

379 U .S . 823____________________________________________29,32
Commonwealth v. Wright, 79 K y. 22,42 Am.Rep. 203—  22
Delaney v. United States, 199 F.2d 107-------------------------  19
Dow  v. Caimegie-Illinois Steel Corporation, 224 F.2d

414, certiorari denied, 350 U .S . 971-----------------------  29 ,30 ,31
. F ay  v. New York, 332 U .S . 261------- 1 7 ,2 0 ,2 1 ,2 2 ,2 3 ,2 7 ,3 6 ,3 7
^A F rqzer  v. United States, 335 U .S. 497------------------------------- 30

Glgsser v. United States, 315 U .S. 60-------- : ----------------- -— 30
Goldsby, United States ex rel. v. Harpole, 363 F.2d 71—  42
Kayes  v. Missouri, 120 U .S . 68----------------------------------------  18

xyH ernandez  v. Texas, 347 U .S . 475----------------------------- 21 ,24 ,26
l^ K i l l  v. Texas, 316 U .S . 400-----------------------------------------------  24,26

H o yt  v. Florida, 368 U .S . 57-------------------------------------------- 27
International Longshoremen's <& Ware. Unions. Acker­

man, 82 F . Supp. 65------------------------------------------------------- 21
Legmllou, United States ex rel. v. Davis, 115 F . Supp.

9 2 . 21
iPM artin  v. Texas, 200 U .S . 316------------------------------------------  23

Need v. Delaware, 103 U .S . 370----------------------------------------  21,22
orris v. Alabama, 294 U .S. 587--------------------------------  24 ,26 ,33

Northern Pacific B .R . Co. v. Herbert, 116 U .S . 642------- 18
y ^ O f fu t t  v. United States, 348 U .S . 11--------------------------------  11
yA 'P adgett v. Buxton-Smith Mercantile Co., 283 F.2d 21,

certiorari denied, 365 U .S . 828------------------------------------  34
Patton v. Mississippi, 332 U .S . 463--------------------------------  24
Pierre v. Louisiana, 306 U .S . 354------------------------------------  24
Rawlins v. Georgia, 201 U .S . 638------------------------------------  22

^ yR eece  v. Georgia, 350 U .S . 85------------------------------------------  24,26
Respublica v. Mesca, 1 Dali. 73----------------------------------------  18
Rideau v. Louisiana, 373 U .S. 723----------------------------------  19



Ill

Cases— Continued Page
l^ ^ S e a le s  v. United States, 367 U .S . 203-----------------------------  34

Seals, United States ex rel. v. Wiman, 304 F . 2d 53------- 25,26
Shepherd v. Florida, 341 U .S . 50----------------------------------- 19

, ^ S m i t h  v. Mississippi, 162 U .S . 592------------------------------ 23
. S S m ith  v. Texas, 311 U .S . 128-------------- -----------------------  24 ,25 ,26

State v. Lea, 228 La. 724, 84 So. 2d 169, certiorari <--------
denied, 350 U .S . 1007--------------------------------------------------  22

Strauder v. W est Virginia, 100 U .S . 303--------------  19 ,20 ,21 ,26
> 4 » t . Alabama, 380 U .S . 202------------------21 ,2 2 ,2 3 ,27 ,2 8 , 34

arrance v. Florida, 188 U .S . 519----------------------------------- 23
TM el v. Southern Pacific Company, 328 U .S . 217----------  28

2 9 ,3 0 ,3 1 ,37
‘ Thomas v. Texas, 212 U .S . 278-------------------------------2 2 ,2 3 ,2 7 ,34

United States v. Brandt, 139 F . Supp. 349---------------------- 29,31
United States v. Cartadho, 25 Fed; Cas. 312-------------------- IS

fi^H JPited States v. Clancy, 276 F . 2d 617, reversed on
other grounds, 365 U .S . 312----------------------------------------  31

S ^ U n ited  States v. Dennis, 183 F . 2d 201, affirmed, 341
U .S. 494___________________________________- ________  29 ,30 ,36

United States v. Flynn, 216 F . 2d 354, certiorari denied,
348 U .S . 494____________________________________________ 29

United States v. Foster, 83 F . Supp. 197__--------------------- 29
United States v. Fujimoto, 102 F . Supp. 890____________ 29
tfnited States v. Greenberg, 200 F . Supp. 382_________ 29,31

t̂ r^fjnited States v. Henderson, 298 F . 2d 522, certiorari
denied, 369 U .S . 878___________________________________ 36,37

United States v. Local 36 o f International Fishermen,
70 F . Supp. 782, affirmed 177 F . 2d 320, certiorari
denied, 339 U .S . 947___________________________________  31

United States v. Boemig, 52 F . Supp. 857_____________  28
United States v. Roma,no, 191 F . Supp. 772____________ 29

. ^ H n i t e d  States v. W ood, 299 U .S . 123-----------------------------  18
Virginia, ex parte, 100 U .S. 339----------------------- ------------ - 20
Walker x. United States, 93 F . 2d 383, certiorari denied,

303 U .S . 644____________________________________________ 34
Windom  v. United States, 260 F . 2d 384______________  34

i^ ^ T o w n g  v. United States, 212 F . 2d 236, certiorari
denied, 347 U .S. 1015-------------------------------------------------  31

Constitution:
F ifth  Amendment________________   19
Fourteenth Amendment________________________________  19



IV

Statutes: p»se
Civil Eights Act of 1957-------------------------------------------------  4 ,32
Code of Ala., Title 30, § 2-------------------------------------------- 18
Code of Md., Article 51, § 2 3 -------------------------------------   18
28 U .S.C . 1861_______________________________  1 7 ,28 ,30 ,32 ,36
28 U .S .C . 1863__________________________________________  30
28 U .S .C . 1864---------------------- -- --------------------------------------- 32

Miscellaneous:
103 Cong. Eec-------------------------------------------------------------------- 32,33
Forsyth, Trial by Jury , 228-230------------------------------------- - 18
1 Pollock and Maitland, History of English Law , 473- 18
Potter’s Historical Introduction to English Law  (4th

ed.) 190----------------------------- -----------------------------------------  l g
Thompson & Merriam on Juries, §§ 16, 17-------------------- 18
The Jury System in the Federal Courts, 26 F .E .D .

409___________________________________    3M °



In the United States Court of Appeals 
for the Fifth Circuit

No. 21256
Joxi R abinowitz, appellant

V.

U nited S tates op A merica, appellee

No. 21345

E lza L eslye J ackson, et al., appellants

v.
U nited S tates op A merica, appellee

A PPE A LS FRO M  T H E  UNITED STATES D IS T R IC T  COURT F O R  T E E  
M ID D L E  D IS T R IC T  OF GEORGIA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

STATEM ENT

Both Rabinowitz v. United States, No. 21256, and 
Jackson, et al. v. United States, No. 21345, present at­
tacks upon the method by which the 1959 jury list was 
compiled in the Macon Division of the United States 
District Court for the Middle District of G-eorgia. 
The appellants in both cases were, in fact, indicted 
by the same grand jury, and were tried by petit juries

(i)



2

drawn from the same box. Additionally, the de­
fendant in United States v. Anderson, Criminal No. 
2222 (which ended in a mistrial), was indicted by 
the same grand jury, although tried in the Albany 
Division. The record in Jackson (hereinafter desig­
nated J.) in regard to the jury challenge consists, by 
stipulation, of the record made in Anderson and the 
record made in Rabinowitz (hereinafter designated 
R .).

I. Census data concerning the Macon Division

As set forth in the 1960 census, the eighteen coun­
ties comprising the Macon Division o f the Middle 
District of Georgia have a total population of 373,594, 
of which 39% are non-white, and a total adult popu­
lation of 204,321, of which 35% are non-white. 
38.9% of the white population and 11.6% of the Ne­
gro population over the age of 25 have completed four 
years of high school. Thus, non-whites comprise ap­
proximately 11% of those in the Division who have 
completed a high school education.1 The median 
years of education for urban whites in the Division is 
11.7 years; for rural whites, 8.8 years; for urban non­
whites it is 6.8 years; for rural non-whites, 5.1 years.

Although levels of income do not reflect with pre­
cision the levels o f intelligence or civic interest of the 
populace, there is some relationship. In this respect, 
the eighteen counties in the Division had an average

1 According to appellant Kabinowitz, Negroes comprise 24.3%  
of the population of the division over the age of 25 who are 
“ functionally literate” (i.e., have completed five years of 
schooling), and 21.9% of those who have completed six years 
(No. 21256, App. Supp. Brief, p. 2 ).



3

of 45.4% of families whose total income was under 
$3,000, the range on an individual county basis run­
ning from a low of 20.6% to a high of 67.2%. Me­
dian income by county for all persons, white and non­
white, ranged from a high of $3,418 to a low of 
$1,537, and for all families from a high of $5,051 to 
a low of $1,907. Median non-white personal income 
by county ranged from a high of $1,036 to a low of 
$657, and non-white family income from a high of 
$2,174 to a low of $1,204.

II. The jury commission

William P. Simmons, the jury commissioner at the 
time the jury list in question was compiled, is a prom­
inent business man who has been very active in civic 
affairs. He is a member of the Bibb County Board 
o f Education, a trustee o f Wesleyan College, and a 
member of the Governor’s Commission on Efficiency 
and Economy (J. 175).

John P. Cowart, the clerk, served previously as 
Assistant United States Attorney and as United States 
Attorney. He was personally appointed as Assistant 
United States Attorney by President Roosevelt in 
1934, and was appointed United States Attorney by 
the same president in 1945. He was appointed clerk 
by the court in 1952 (J. 100).

The jury commission worked closely with District 
Judge Bootle. Upon appointment as commissioner, 
Mr. Simmons was personally instructed as to his du­
ties by the judge, and was given a copy of the manu­
al for jury selection published by the Administrative 
Office of the United States Courts (R. 184). Both



4

the clerk and the commissioner discussed their se­
lection procedures with the judge before putting them 
into operation (R. 228-229).

III. Standards used by the jury commission for compiling the
jury list

Both the commissioner and the clerk emphasized 
in their testimony that they were guided, in compiling 
the jury list, by the twin goals of achieving as repre­
sentative a list as possible while at the same time pro­
viding potential jurors who would be capable of per­
forming their duties with understanding, intelligence 
and integrity. Thus, the commissioner stated that his 
goal was “ an outstanding blue ribbon jury list of peo­
ple we thought would perform very good service,” 
and as a result, in selecting names, character and 
intelligence were taken into consideration (J. 173). 
H e pointed out that a lot of people can read and write 
but are incapable of imderstanding courtroom pro­
ceedings, and an effort was made to avoid add­
ing the names of such persons to the list (R. 209). 
Hence, the effort was to find persons who were 
thought qualified to perform good jury service (R. 
183). This was the only limitation, however. The 
attempt was made to have all types of vocations and 
occupations represented on the list, and to see that 
both the Negro race and women were represented (R. 
186). In short, it was considered important to ob­
tain qualified jurors of each race from every county 
(R. 198).

Similarly, the clerk deemed himself governed by 
the Civil Rights Act o f 1957 (R. 227). He studied



the Administrative Office manual and the cases cited 
therein, and attempted to keep current on the latest 
cases in regard to jury selection (R. 228). He tried 
for an age balance on the list, keeping in mind the 
fact that the very old might be ineligible due to in­
firmity, and the very young might be unavailable 
because of college or military service (R. 240). He 
and the commissioner discussed with the judge the 
possibility of omitting certain classes of persons for 
whom jury service might be a hardship, such as 
nurses and school teachers, but in the end it was 
decided that no such class would be excluded (R. 228- 
229). Similarly, the deputy clerk, who made in­
quiries for potential jurors under the clerk’s instruc­
tions, stated that he was looking for good jurors, and 
that his idea of a good juror was a person of good 
character and intelligence who could understand cases 
that are tried in court (R. 263).

While the commissioner believed that it was impor­
tant to obtain Negro names for the list, he had no 
preconceived notion in regard to the desirable quantum 
(R. 216). He did not attempt to achieve propor­
tional representation (R. 186-187), but rather he and 
the clerk attempted to obtain as many names of quali­
fied Negroes and as many names of qualified whites 
as they could (R. 187). In like vein, the clerk testified 
that he used census figures only to prorate the list by 
county, but not to ascertain the Negro percentage of 
the population (R. 259).

The clerk also indicated his recognition of the ne­
cessity for constant improvements in the selection 
techniques, and of the desirability of taking into ae-

796- 009— 65— 2

5



count the latest teachings of the cases on the subject. 
However, there are seven divisions in the district, and 
it had taken from six to eight months to compile a 
separate list for each of the divisions (R. 240). 
Hence, he did not deem it feasible to revise the jury 
list each time a new case was decided, but instead 
felt that the time to take new cases into consideration 
was when the jury box was replenished in regular 
order (R. 230).

IV. Procedures by which the 1959 jury list was compiled 

A. The 1953 list

When the jury list now under attack was compiled 
in 1959, the commission started with the list which 
had previously been compiled in 1953, taking off the 
names of those who were deceased or physically dis­
qualified and adding new names (R. 182). There 
were 1,897 names on the original 1953 list (R. 220), 
and the names of 308 women were subsequently added 
when Georgia law (which at the time governed federal 
jury qualifications in the district) made them eligible 
for service (R. 221). Although they thus started with 
about 2,000 names, only about 1,000 were left when 
the names of those who had moved, died or aged had 
been removed (R. 238).2 Forty of the names on the 
list were marked with a “ C” in red crayon (R. 223- 
224). The clerk did not know who had thus marked 
the list (R. 225), although he speculated that the 
purpose was to make certain that the list would be 
replenished with Negroes (J. 112). There were other

2 Further analysis of the questionnaires since the hearings 
below indicates that at least 1,624 persons on the 1953 list were 
sent questionnaires in 1959. See p. 12, infra.

6



Negro names on the list which were not so marked 
(R. 251-257), a total of 97 additional ones (R. 285- 
286), and possibly more (R. 291).3

B. Compilation of the 1959 list

1. Commissioner’s method

In obtaining names for the 1959 list, the jury com­
missioner used two basic sources: the suggestions of 
friends whose integrity and opinion he valued, and of 
people whom he knew were active in civic life, busi­
ness, and church affairs (R. 183). He made general 
inquiries, and did not tell the people to whom he 
talked that he was developing information for the 
jury list, as he did not want to have people say that 
they did not want to be on the list (R. 190). He used 
this personal inquiry method, rather than availing 
himself of such existent lists as those of automobile 
owners, telephone subscribers and taxpayers, because 
he was not attempting to compile names qua names, 
but only the names of those he thought would be 
qualified (R. 210). He made inquiries of both 
Negroes and white persons, and had occasion to talk 
to Negroes frequently (R. 191). For example, he 
talked to Negroes who were employed in his own com­
pany (as foremen, etc.) (R. 192), although he was not 
successful in obtaining very many names from them 
(R. 193). He also talked with Negroes in the school 
system in Bibb County (R. 191), and made inquiries 
among the faculty of the Negro college in Peach

3 Further analysis indicates that the 1953 list as supplemented 
contained the names of at least 177 Negroes. See n. 6, infra,
p. 12.

7



Comity (R. 214-215). He was sure that he must 
have talked to both, white persons and Negroes in 
Crawford County, as he had occasion to see both 
fairly frequently (R. 199). Most of his contacts were 
white (R. 215). However, in every instance in which 
he made inquiries of a white person, he asked for the 
names of competent Negro jurors—i.e., those who, like 
potential white jurors, met the statutory qualifications 
and in addition possessed integrity, good character 
and intelligence—if the person could provide him with 
any (R. 198).

2, C lerk ’s  m ethod

The clerk also had two basic sources for names: 
he would call friends and public officials whom he 
knew and ask them for suggestions, and he sent his 
chief deputy into counties other than Bibb to talk 
to people and obtain suggestions (R. 231). He also 
used the telephone book, but only as a reminder of 
people whom he knew but might have forgotten 
(R. 236). In Bibb County he had four or five white 
sources, and five Negro sources (J. 110, 121-122). 
He also obtained Negro names from white sources. 
Two assistant United States Attorneys provided him 
with suggestions for prospective Negro jurors (J. 
129), and he also obtained suggested names of 
Negroes from a state judge, attorneys in practice, 
their secretaries, and a former United States At­
torney (J. 134-135). He recalled telling some of 
his sources to suggest more Negro names to him, as 
they had not provided him with enough (J. 135). 
He did not rely upon state jury lists as a prime source 
of names, even when state qualifications governed

8



9

federal qualifications. His deputy reviewed state lists 
at that time, but he did not (J. 108-109).

The deputy clerk got his names primarily from 
public officials in the outlying counties (R. 260), 
although he also contacted business men, merchants, 
and secretaries, in law and business offices (R. 261; 
J. 143). When he contacted state officials, they would 
use their jury books to make suggestions. They did 
not do so exclusively, however, and provided as many 
names from memory as from their books (J. 142). 
He always asked specifically for ISTegro names (R. 261, 
265), and specifically requested that he be provided 
with as many Negro names as possible (J. 145). He 
asked that he be provided with a representative group 
of Negroes, but always particularly mentioned school 
teachers (R. 262). From his white sources he ob­
tained, for example, the names of those who taught 
at the Negro college in Peach County (R. 264). He 
did not seek out Negroes to make inquiries from, 
since it was his belief that the persons he did talk to 
were acquainted with both Negroes and whites (R. 
263).

3, Q uestionnaires

After the commissioner and clerk compiled their 
separate lists of prospective jurors, they sent out de­
tailed questionnaires to those on the combined list. 
The questionnaires were sent both to persons whose 
names were newly acquired and to those whose names 
remained on the 1953 list after it was pruned (R. 
237). The commissioner’s recollection was that some 
4,000 questionnaires were sent out (R. 187), and the



10

clerk estimated that the number was either 4,000 or 
5,000 (R. 237). Of this number, 2,500 or 3,000 were 
returned (ibid.);* some were not returned until after 
the final list was compiled (R. 238). Some returns 
indicated that the persons were disqualified, as, for 
example, because o f  poor health (R. 189). On others, 
the persons would offer information in support o f 
Claims that they were unable to serve (R. 239). I f  
the clerk and commissioner agreed with the reasons 
o f such persons, their names would not be added to 
the final list (R. 240). From the questionnaires 
which were returned, 1,985 names were finally selected 
for the list (R. 237, 239).

One of the questions on the questionnaire inquired as 
to race. The commissioner believed that the reason 
was to insure that there would be Negroes on the list, 
and pointed out that other questions inquired as to 
sex and age, two other factors which had to be consid­
ered in obtaining a broad representation (R. 188). 
The clerk also stated that the question as to race was 
to insure that the names of Negroes would be included 
on the final jury list (R. 241; J. 132). Race was not 
a consideration in determining which names would 
actually be placed upon the list; all that was consid­
ered was the person’s qualifications (J. 132). The 
jury list itself contained no designations in regard 
to race (J. 133).

iV. Results

At the time of hearings below, it was agreed, from a 
study of the questionnaires returned by those persons 4

4 The actual number returned was 2338. See p. 11, infra.



whose names appear on the 1959 jury list, that Ne­
groes comprise 117, or 5.9%, of those on the list. In 
connection with the preparation of this brief, we re­
quested the United States Attorney to have a fuller 
analysis made of all o f the questionnaires returned—- 
including those returned by persons who for one 
reason or another were not placed on the 1959 
list—and to compare the 1959 list and questionnaires 
with the 1953 list to determine the number o f carry­
overs.5 He has reported the following:

Of the 1985 persons on the 1959 list, 1428 are 
carry-overs from the 1953 list and 557 are new names. 
O f the 117 Hegroes on the list, 113 are carry-overs 
and 4 are new. Of the 1868 persons on the list who 
are white or who did not designate their race on their 
questionnaires (there are 5 of the latter), 1,315 are 
carry-overs and 553 are new. Hence, o f the new 
names added to the list in 1959, 553 are white or of 
unknown race and 4 are Negroes.

A  total of 2,338 persons returned questionnaires in 
1959, and of these, 353 were not placed on the list 
for one reason or another. Of these 353, 297 were 
white, 53 were Negro, and 3 did not indicate their 
race (although one of the 3 has been unofficially 
identified as a Negro). Of the 353, 196 had appeared 
on the 1953 list, and 157 were new names. Broken 
down by race, 150 whites were new names and 147 
had appeared on the 1953 list, 7 Negroes were new 
names and 46 had appeared on the 1953 list, and all 
3 unknowns had appeared on the 1953 list. Hence,

5 The 1959 returned questionnaires in the clerk’s possession are 
being forwarded to the clerk of this Court.

11



12

Negroes comprised 7 of the 157 new names in this 
group.6

Of the 2,338 questionnaires returned, 1,624 were 
carry-overs from the 1953 list and 714 were new con­
tacts. Of the 1,624 carry-overs, 1,465 were whites or 
of unknown race and 159 were Negroes (taking ac­
count of the person unofficially known to be Negro, 
the count would be 1,464 and 160). Of the 714 new 
contacts, 703 were white and 11 were Negro. Hence, 
a total of 170 Negroes returned questionnaires in 
1959, or 7.3% .of those returned (171 taking account of 
the person unofficially known to be Negro), 159 (or 
160) being carry-overs and 11 being new contacts.

The 353 persons not placed on the 1959 list were 
omitted for the following reasons: .

White Negro Race
unknown

63 4 1
26 9 1

188 24 1
20 0 0

Other (felony conviction, illiteracy, civil service employment, etc.) _ 0 16 0

T o t a l . _____ ______ __________ ___________  _ ------------ 297 53 3

V I. Explanations offered for results

Asked by appellant in No. 21,256 to explain the 
small proportion of Negro names on the list, the 
commissioner suggested that Negroes, as a group, are

0 It would thus appear that the 1953 jury list as supplemented 
contained the names of 177 Negroes: the 113 carry-overs who 
appeared on the 1959 list, the 46 carry-overs who returned 
questionnaires in 1959 but were not placed on the list, and 18 
of the 40 persons on the 1953 list whose names were marked 
thereon with a “ C” (see p. 6, supra) and who did not return 
questionnaires in 1959 (22 of the 40 did return questionnaires).



13

not as numerically qualified as are whites, and that, 
because of lack o f acquaintanceship among Negroes, 
it was necessary to rely for suggestions upon those 
persons whom he did know and whose judgment and 
opinion he respected (R. 215). Asked the same ques­
tion by the defendant in Criminal No. 2222, he re­
plied that it was a well-known fact that, although 
regrettable and unfortunate, “ there is infinitely more 
illiteracy among the Negro group,” and hence, nu­
merically, there are not as many Negroes who are 
qualified in terms of educational standards as there 
are whites (J. 174-175). He added that he felt that 
his experience as a member of the Bibb County 
Board of Education and trustee of Wesleyan College, 
as well as his experience as a member o f the Gov­
ernor’s Commission, which was making an elaborate 
study of the Georgia school system, qualified him to 
make this judgment (J. 175).

The clerk stated that he was not sure that he agreed 
with the commissioner that the lack of acquaintances 
among Negroes was a cause of low representation 
(R. 242). Rather, he suggested that it is as difficult 
to obtain qualified Negroes to serve as jurors as it is 
to obtain qualified women, because, like women, 
Negroes do not want to serve as jurors (R. 241).7

VII. Actual service by Negroes as jurors

There were five Negroes on the grand jury which 
returned the indictments in these cases. A  panel of

7 W e  are informed by the United States Attorney that the 1959 
list contained the names of 288 women, of whom 200 had been on 
the 1953 list as supplemented. A s previously noted, m$ra, p. 6, 
the names of 308 women were supplemented to the 1953 list.

796- 00& — 65— 3



14

45 was drawn from the jury box to obtain the twenty- 
three grand jurors (R. 424). We are informed by 
the United States Attorney that the panel o f 94 
drawn from which the juries for all of the trials below 
were selected included three Negroes. None were 
reached on voir dire in the Rabinowitz trial; from one 
to three were reached on voir dire in the separate 
trials of the Jackson appellants, but all who were 
reached were challenged peremptorily by the Govern­
ment. Calling upon this experience in the District 
Court going back to 1934, as Assistant United States 
Attorney (when his duties included making present­
ments to grand juries), United States Attorney, and 
clerk, the clerk stated that he could not “ recall many 
times, if  any, * * * that there weren’t Negroes on 
both the grand jury and the petit jury, in not only the 
Macon Division but every other division in this dis­
trict” (J. 123; see also J. 104). He specifically re­
called the recent criminal trial of the mayor of W ar­
ner Robins in which a Negro woman had served as a 
juror (R. 255-256).

VIII. The district court’s ruling

Judge Bootle ruled in the Rabinowitz case as fol­
lows (R. 293-294) :

I  am going to overrule this motion. The 
Wiman case pays some considerable attention 
to percentages, but there are other factors in 
the Wiman case in addition to percentages, and 
there are differences in the grand jury system 
of selection and the result and the percentages 
relating thereto in this case and in the Wiman 
case.



15

Now just how far the Courts may go in the 
future in looking at certain percentages and 
saying that will do and that won’t, and how 
much emphasis they are going to pay to the 
matter of Negroes and Whites and whether 
that is the controlling [590] element in the per­
centages and in the ratio of representation on 
the list I  can’t say hut I  am satisfied, as counsel 
very commendably concedes here, that there 
was no intentional discrimination on the part 
of the Jury Commissioners in this District. 
And while that is not controlling in this case 
it is a factor of considerable importance.

There are, perhaps, some practical difficul­
ties in selecting juries. For instance, in this 
ease I  don’t know now how many question­
naires were sent out to either White or Ne­
groes. I  don’t know what the answers were to 
those questionnaires. I  don’t know how many 
Whites or how many Negroes said “ please 
don’t put me on the list, please excuse me, my 
job will interfere” , how many of them ex­
pressed a desire to serve, how many expressed 
an unwillingness to serve.

I  may say this, that this jury list will be 
revised from time to time. I f  the Negroes in 
this district want to serve they can cooperate 
by giving to the Jury Commissioners some reli­
able information about themselves so that they 
can receive beyond any peradventure of a doubi 
all consideration that they are entitled to re­
ceive. But that is a matter for the future.

Taking this case as the facts present it and 
as the law reads, I  think I  can not do anything 
except overrule this motion.

Now, do you have another one, perhaps a



16

short one? And I  may just add to what I  
have been saying, I  have heard a good bit of 
evidence about school teachers. That might 
be a good [591] place to go for information, 
probably would be, but it is a mighty bad place 
to go to get a juror. The school teachers are 
so busy that they will offer an excuse if  you 
happen to get one and he is summoned to court 
to serve. I  don’t doubt that they have an ex­
cuse. They want to go back to the class room. 
I  have had that experience over and over and, 
of course, their excuse would generally he hon­
ored if  you had enough jurors to serve without 
them.

DISCU SSION

Introduction

As the Court will see (infra, pp. 38-42), although 
on the first argument of these eases we contended 
that the judgments of conviction should be affirmed, 
we have, since that time, become aware of new facts 
(supra, pp. 11-12), which have persuaded us to suggest 
that the Court, in the exercise of its supervisory 
jurisdiction, grant appellants new trials.

In this brief, we will first recanvass the cases set­
ting out the constitutional and statutory standards for 
jury selection. We will then turn to the facts of 
these cases as they appear of record and give our 
reasons for believing that the court below was cor­
rect in concluding on the evidence before it that no 
violation of constitutional or statutory standards has 
been established. Finally, we will discuss the new 
facts which we have discovered—namely, that of 557 
new names added to the 1959 jury list over and above



17

those carried over from the 1953 list, only four were 
of Negroes—and present to the Court the reasons 
why we believe that these facts, in the context of the 
importance o f securing adequate representation of 
Negroes in the administration of justice, warrant 
the granting of new trials.

I
It is only purposeful exclusion from  jury service because of 

race or other similar status which contravenes constitutional 
and statutory standards

There are two grounds upon which the unlaw­
fulness of a federal grand or petit jury can be as­
serted. The first is constitutional; to prevail upon 
this ground, a litigant must establish, as he would 
were he challenging a state jury, that the nature of 
the jury was such that the submission of his cause 
to it for judgment deprived him of due process of 
law.8 The second ground is statutory; to prevail, 
a litigant must establish that the jury was selected 
in violation of the standards set by Congress in 28 
II.S.C. 1861 et seq. In essence, however, the same 
showing is necessary to establish a case upon either 
ground; vis., purposeful discrimination on the basis 
of race or other like status, or the adoption and use 
of a procedure for obtaining jurors which is in­

8 A n  attack on a state jury can assert the denial of both 
due process and equal protection of the law. See F a y  v. New  
York , 332 TJ.S. 261, 284 n. 27. In regard to juries, however, 
the area of the two constitutional protections Would appear to 
be co-extensive. And compare Bolling v. Sharpe, 347 U .S. 
497, 499.



18

herently and necessarily discriminatory, must be 
proved.

A. The constitutional ground

The constitutional principles o f “ due process” and 
“ equal protection” guarantee to a litigant a fair trial 
by an unbiased and impartial tribunal. Brown v. 
New Jersey, 175 U.S. 172, 175; Hayes v. Missouri, 120 
U.S. 68, 71; Northern Pacific R .R . Co. v. Herbert, 
116 U.S. 642, 646. They do not, either in terms or by 
necessary implication, establish any requirement con­
cerning the classes of persons to whom jury service 
must be open. Indeed, even though a litigant is him­
self a member of a class which is excluded from such 
service, he does not necessarily have a ground for 
constitutional objection. For example, it could 
hardly be contended that it is a denial of due process 
or equal protection to require an alien or a minor to 
submit his cause for judgment to a jury which by law 
must be composed of adult citizens. Compare United 
States v. Wood, 299 U.S. 123, 145.9 The law, in

9 As W ood  points out, aliens were once entitled at common 
law to a jury de medietate linguae— one half aliens and the 
other half citizens— presumably upon the theory that xenopho­
bic bias on the part of citizens was to be presumed. See also 
Respublica v. Mesca, 1 Dali. 73 (O . & T. Pa., 1783); United 
States v. Gartacho, 25 Fed. Cas. 312 (Case No. 14,738) (D . Va., 
1823); cf. Code of Ala., Tit. 30, § 2, and Code of M d., Art. 51, 
§ 23, derogating the common law privilege in those states. For 
the origins of the privilege, see Thompson & Merriam on 
Juries, §§ 16, 17; Forsyth, Trial by Jury , 228-230; I  Pollock & 
Maitland, H istory of English Law , 473; Potter’s Historical In ­
troduction to English Law  (4th ed.), 190. The privilege was 
never deemed to be of constitutional dimensions, and its early 
statutory abandonment would appear to reflect the view that 
xenophobia is not a significant impediment to jury impartiality.



19

short, ordinarily presumes disinterested impartiality 
on the part of jurors unless the contrary is specif­
ically demonstrated in the individual case.

The line of so-called “ Negro exclusion”  cases stem­
ming from Strauder v. W est Virginia, 100 U.S. 303, 
does not constitute a deviation from the rule that it is 
only juror impartiality with which the Fifth and 
Fourteenth Amendments are concerned. Rather, 
those cases establish the subsidiary rule that where a 
Negro litigant is forced to trial before a jury upon 
which members of his race are, by reason of their 
race, precluded from serving, a special circumstance 
exists in which juror bias, rather than jury impar­
tiality, must be presumed.10 In Strauder:, state law 
limited jury service to white male adult citizens. The 
Supreme Court found no difficulty with the limita­
tions in regard to sex, majority and citizenship. Id., 
at 310. It took note, however, “ that prejudices often 
exist against particular classes in the community, 
which sway the judgment o f jurors, and which, there­
fore, operate in some cases to deny to persons of those 
classes the full enjoyment o f the protection which 
others enjoy,”  and found that “ [t]he framers of the 
[Fourteenth] amendment must have known full well 
the existence of such prejudice and its likelihood to

10 Although it is highly unusual to indulge a conclusive pre­
sumption that jurors are biased against a litigant without some 
showing as to their actual state of mind, nevertheless exclusion 
cases are not the only ones in which such an approach is 
adopted. A  similar conclusive presumption of bias is indulged, 
for example, when pervasive and intense prejudicial pretrial 
publicity is established. Cf. Rideau v. Louisiana, 373 U .S . 723; 
Shepherd v. Florida, 341 U .S . 50 (concurring opinion); D e­
laney v. United States, 199 F . 2d 107 (C .A . 1, 1952).



20

continue against the manumitted slaves and their 
race, and that knowledge was doubtless a motive that 
led to the amendment.”  Id., at 309. Then, observing 
that “ [t]he very idea o f a jury is a body of men com­
posed of the peers or equals of the person whose 
rights it is selected or summoned to determine; that 
is, of his neighbors, fellows, associates, persons having 
the same legal status in society as that wdiich he holds”  
(id., at 308), it held (ibid.) :

The very fact that colored people are singled 
out and expressly denied by a statute all right 
to participate in the administration of the law, 
as jurors, because of their color, though they 
are citizens, and may be in other respects fully 
qualified, is practically a brand upon them, 
affixed by the law, an assertion of their inferi­
ority, and a stimulant to that race prejudice 
which is an impediment to securing to in­
dividuals of the race that equal justice which 
the law aims to secure to all others. [Emphasis 
added.]

In sum, the Court held in Strauder that the trial 
o f a Negro defendant by a jury upon which members 
o f his race are precluded by law from serving de­
prives him of his constitutional right to “ an impar­
tial jury trial.”  Ex parte Virginia, 100 U.S. 339, 
345. This holding can be seen to have been bottomed 
upon two essential factors: (1) recognition of what 
a later Court referred to as “ the long history of un­
happy relations between the two races”  (Fay v. New 
York, 332 U.S. 261, 282), from which bias on the part 
o f white jurors against Negro litigants is likely to



21

result,11 and (2) legislation which precluded jury 
service by Negroes, thereby placing an official impri­
matur of ratification and approval upon such bias.12

In Neal v. Delaware, 103 17.S. 370, the Court ex­
panded the rule, making it applicable where the ex­
clusion results from administrative action rather than 
from legislation. See also Garter v. Texas, 177 U.S. 
442, 447. The bases for the rule, however, remained 
the same. Administrative exclusion, as much as leg­
islative exclusion, was held to prejudice “ the fairness' 
and integrity of the whole proceeding against the

11 A s noted in F ay, 332 U .S . at 283, this is not to imply that 
it is only Negro exclusion which the Fifth  and Fourteenth 
Amendments forbid. The ambit of the amendments reaches 
“to any identifiable group in the community which may be the 
subject of prejudice.” Swain v. Alabama, 380 U .S . 202, 205, 
citing Hernandez v. Texas, 347 U .S . 475. Nevertheless, uncon­
stitutional discrimination has been found in only three cases 
which did not involve Negroes: Hernandez, where the record 
showed that the status in the community of Mexican-Americans 
was equivalent to that of Negroes; United States ex rel. Leguil- 
lou v. Davis, 115 F . Supp. 392 (D .Y .I ., 1953), where the court ex­
pressly found that community prejudice existed against the 
Puerto Rican minority in St. Croix (see 115 F . Supp. at 398); 
and International Longshoremen’s cfi Ware. Union v. Ackerman, 
82 F. Supp. 65 (D . Haw., 1948), where Filipinos were excluded 
from grand jury service because “ [w]e just have a lot of other 
men a lot better” and the grand jury list was disproportionately 
stocked with “haoles” (persons of mainland American or north­
ern European descent) “so that they might have an oppor­
tunity to run the country” (see 82 F . Supp. at 119).

12 In Fay, the Court noted that “ a Negro who confronts a 
jury on which no Negro is allowed to sit * * * might very 
well say that a community which purposely discriminates 
against all Negroes discriminates against him.” 332 U .S . at 
293. In  Brown  v. Allen , 344 U .S . 443, 471, as well as in 
Strauder, 100 U .S . at 309, it referred to Negro exclusion as 
“jury packing.”



22

prisoner.”  Neal V. Delaware, supra, 103 U.S. at 396.
Since the rule thus has its basis in a presumption 

of juror bias, it follows that a litigant must meet two 
conditions in order to offer it as a ground for over­
turning unfavorable action against him by a grand or 
petit jury. The first is that he must himself be of 
the class against which discrimination was exercised 
in the jury selection procedure. Fay v. New York, 
supra, 332 U.S. at 287 yRawlins v. Georgia, 201 U.S. 
638, 640; State v. Lea, 228 La. 724, 730, 84 So. 2d 169, 
170-171 (S. Ct., 1955), certiorari denied, 350 U.S. 
1007; Commonwealth v. Wright, 79 Ky. 22, 42 Am. 
Rep. 203 (C.A. 1880). A  litigant who is not of the 
excluded class could hardly claim to be the victim of 
bias resulting from the exclusion.13 14

Secondly, he must establish the existence of a pur­
poseful and substantially effective effort to deprive 
members of his class or group of any realistic oppor­
tunity to serve as jurors. I f  the jury which considers 
his case contains a fair representation of members of 
his class or group, he can hardly claim the existence 
of a condition from which bias against him would be 
inferrable. Compare Swain v. Alabama, 380 U.S. 202, 
205;14 Akins v. Texas, 325 U.S. 358, 405-406; Thomas

13 Concededly, however, a litigant who, like appellant in 
No. 21256, is involved in legal proceedings as the result of 
activities wherein he associated himself with a minority group 
can properly claim that community prejudice against that 
group would be reflected in jury bias against himself.

14 Significantly, although there were three dissenters in Swain 
(Warren, C.J., Goldberg and Douglas, JJ-), they did not dis­
agree with the majority holding that neither the jury list or 
venire as such, nor the grand jury which indicted petitioner 
(upon which two Negroes sat), was composed in such a manner



23

v. Texas, 212 U.S. 278, 283. And, unless their omis* 
sion is the result of a purposeful exclusion, it could 
hardly be thought to constitute “ jury packing”  (see 
n. 12, supra, p. 21), or to carry the implication that 
community prejudices have been given an official 
sanction. As the Supreme Court stated in its most 
recent pronouncement on this matter on March 8, 
1965, it is only “ a State’s purposeful or deliberate 
denial to Negroes on account of race of participation 
as jurors in the administration of justice [which] 
violates the Equal Protection Clause.”  Swain v. 
Alabama, supra, 380 U.S. at 204.

Thus, from the very beginning, the Supreme Court 
has held that an intention to exclude must be estab­
lished ( Thomas v. Texas, supra, 212 U.S. at 282-283; 
Akins v. Texas, supra, 325 U.S. at 403-404; Fay v. 
New York, supra, 332 U.S. at 284; Brown v. Allen, 
344 U.S. 443, 471), and that the person attacking the 
selection procedure has the burden of proving this 
intent. Smith v. Mississippi, 162 U.S. 592, 600; Tar- 
ranee v. Florida, 188 U.S. 519; Martin v. Texas, 200 
U.S. 316; Fay v. New York, supra, 332 U.S. at 285. 
While the eases in which the necessary proof has been 
made have generally been marked by a minimal rep­
resentation of the minority group on the jury list in 
comparison to their proportion of the population, 
such minimal representation does not of itself violate 
the Constitution. Brown v. Allen, supra, 344 U.S. at
as to violate his constitutional rights. Rather, the basis for 
their dissent was the historical use in the county in question 
of peremptory challenges which resulted in no Negroes ever 
having sat as petit jurors. See 380 U .S. 233 et seq.



24

471. As the Supreme Court has explained, “  [ ojur 
directions that indictments be quashed when Negroes, 
although numerous in the community, were excluded 
from grand jury lists have been based on the theory 
that their continual exclusion indicated discrimina­
tion and not on the theory that racial groups must be 
recognized.”  'Akins v. Texas, supra, 325 U.S. at 403. 
In short, since proof o f a discriminatory purpose 
brings into issue the subjective state of mind of jury 
selection officials—a fact which rarely lends itself to 
direct affirmative proof—a litigant is permitted to 
establish a prima facie case by proof of the objec­
tive results of the jury selection procedure at issue. 
Norris v. Alabama, 294 U.S. 587, 591; Pierre v. Lou­
isiana, 306 U.S. 354, 361; Smith v. Texas, 311 U.S. 
128, 131; Hill v. Texas, 316 U.S. 400, 404; Patton v. 
Mississippi, 332 U.S. 463, 466; Hernandez v. Texas, 
347 U.S. 475, 480; Reece v. Georgia, 350 U.S. 85, 88; 
Arnold v. North Carolina, 376 U.S. 773, 774.

The dispositive question, moreover, is whether the 
facts indicate a purposeful exclusion from actual jury 
service, and not merely a purposeful exclusion from 
the lists from which jurors are chosen. Avery v. 
Georgia, 345 U.S. 559. Hence, the necessary prima 
facie inference is raised when a showing of “ the selec­
tion on the jury list of a relatively few Negroes who 
would probably be disqualified for actual jury serv­
ice”  is combined with a showing that none had ever 
served as jurors. Reece v. Georgia, supraP Simi- 15

15 In  Reece, only six of the 534 names on the grand jury list 
were of Negroes. One was a non-resident of that county, two 
were over 80 years of age (one of the two being partially deaf



25

larly, token participation of Negroes in actual grand 
jury service can raise the inference of a discrimina­
tory intent which is merely dissembled if Negro rep­
resentation on the jury list is minimal ( United States 
ex rel Seals v. Wiman, 304 F. 2d 53 (C.A. 5, 1962)),16 
and particularly if the procedures for selecting jurors 
appear to have been manipulated in such a way as to 
minimize the translation of token Negro representa­
tion on the list into actual jury service by Negroes. 
Smith v. Texas, supra.17 And again, if Negro par­
ticipation in grand jury service has been intention­
ally limited to the exact proportion of members of the 
race who are eligible for such service, and if such pro­
portion is substantially lower than the proportion of 
members o f the race to the total population, a dis­
criminatory intent may be found. Cassell v. Texas,

and the other in poor health), and the other three were 62 
years of age. The clerk and deputy clerk both testified that 
they had never known a Negro to serve on a grand jury in 
the county.

16 There had been only three Negroes among the 504 grand 
jurors who had served on 28 grand juries in a nine-year period. 
304 F . 2d at 61. Negroes comprised 31.7% of the population 
but less than 2%  of the persons on the jury rolls. Id. at 59.

17 Only three individual Negroes had served on five of the 
thirty-two grand juries which had been impaneled over a 
seven-year period. There were 18 Negroes among the 512 per­
sons summoned for grand jury duty during this time, but 13 
of them were placed at the bottom of the list where they stood 
small likelihood of being reached for actual service, and only 
one was listed where he had to be reached. Negroes comprised 
20%  of the population and 10% of the poll tax payers. 311 
U .S. at 129.



26

339 U.S. 282, 286-287 (plurality opinion), 295 (con­
curring opinion).18

The inference raised by such evidence, however, is 
only prima facie and not conclusive. While mere 
general disclaimers are not sufficient to rebut it (Nor­
ris v. Alabama, supra, 294 U.S. at 598; Hernandez 
v. Texas, supra, 347 U.S. at 481-482 ; Reece v. Georgia, 
supra, 350 U.S. at 88),19 compelling rebuttal can be

18 Such grudging acceptance of Negroes as eligible for jury 
duty can be said to have the same effect of singling them out 
as a class apart (see Strauder v. W est Virginia, supra, 100 
U .S. at 308) as would an outright exclusion. But quaere if 
a Negro indicted by one of the grand juries upon which a 
Negro had served could claim that, however much the over­
all procedure was tainted by a discriminatory purpose, he was 
affected by it. In  Wiman, Smith  and Cassell, the indictments 
at issue were returned by all-white grand juries.

19 Similarly, jury selection officials cannot excuse a total 
omission of Negroes from jury service or the mere token par­
ticipation of members of that race in the jury process upon 
the ground that they lack acquaintanceship with qualified Ne­
groes. Rather, they are under a duty actively to seek out 
Negroes who qualify. Smith  v. Texas, supra, 311 U .S . at 132; 
Hill v. Texas, supra, 316 U .S . at 404; Cassell v. Texas, supra, 
339 U .S . at 290 (plurality opinion). There would appear to 
be two grounds for this rule. First, it would offer too facile 
kn alibi for purposeful discrimination if  it could be dissembled 
by the virtually irrebuttable contention of lack of acquaintance­
ship among Negroes. A s  the Court said in Smith, the Con­
stitution forbids discrimination, “ whether accomplished in­
geniously or ingenuously.” 311 U .S . at 132. Secondly, the 
very community patterns which generate prejudice would be 
responsible for the lack of acquaintanceship, and hence an omis­
sion on that basis would be as much a stimulant to juror 
prejudice as would a purposeful exclusion. Compare Strauder 
v. W est Virginia, supra, 100 U .S . at 308. But if officials make 
bona fide efforts to obtain the names of Negroes who qualify 
as jurors, and if  their efforts eventuate into actual participa­
tion by Negroes as jurors on a regular basis, then they would



27

provided by a showing that Negroes have regularly 
participated as grand jurors and have appeared on 
the panels from which petit jurors are chosen (see 
Swain v. Alabama, supra, 380 U.S. at 205; Akins v. 
Texas, supra, 325 U.S. at 405-406; Thomas V. Texas, 
supra, 212 U.S. at 283), or by a showing that the dis­
proportion on the jury list, however gross, resulted 
from factors other than race. Brown v. Allen, supra, 
344 U.S. at 481.20 There is no constitutional require­
ment that jury lists reflect the proportional strength 
of the various elements of the population (Fay v. 
New York, supra, 332 U.S. at 291; Cassell v. Texas, 
supra, 339 U.S. at 286; Brown v. Allen, supra, 344 
U.S. at 471; Hoyt v. Florida, 368 U.S. 57, 69; Swain 
v. Alabama, supra, 380 U.S. at 208), and hence “ [t]he 
mere fact of inequality in the number selected does 
not in itself show discrimination.”  Akins v. Texas, 
supra, 325 U.S. at 403. In short, if  there is Negro 
representation on the jury list, even though dispro­
portionately low, and there is actual jury service by 
Negroes at more than a mere token level, then there
appear to meet the requirements of the Smith-Hill-Cassell 
rule, even though the proportion of Negroes on the jury list 
is small and might have been larger had the efforts been more 
vigorous. A s the Supreme Court stated the rule in Hill, 
“ [discrimination can arise from the action of commission­
ers * * * w]-10 neither know nor seek to learn whether there are 
in fact any qualified to serve” (emphasis added). 316 U .S. 
at 404.

20 In  Brown , Negroes comprised only 7%  o f those on the 
jury list in a county where they comprised 38%  of the eligible 
taxpayers, but the discrimination which caused this was eco­
nomic rather than racial and hence the court found no consti­
tutional violation.



28

is no violation of constitutional standards. See Swain 
v. Alabama, supra, 380 U.S. at 209.

B. The statutory ground

A  litigant’s statutory rights in regard to jury se­
lection arise from, different considerations than do his 
constitutional rights. The “ statutory scheme”  of 28 
U.S.C. 1861 et seq. is not limited in contemplation to 
juror impartiality, but rather is designed to provide 
the jury system itself with a “ broad base,”  Ballard 
v. United States, 329 U.S. 187, 195, so that the jury 
will be “ drawn from a cross-section of the commu­
nity,”  Thiel v. Southern Pacific Go., 328 U.S. 217, 220, 
and be “ truly representative of it.”  Ballard v. 
United States, supra, at 191. Hence the exclusion of 
a cognizable class or group violates the statutory 
scheme even though—like the women, in Ballard or 
the daily wage earners in Thiel—the members of such 
class or group are not the subjects of community 
prejudice, since their omission deprives the jury of 
“ a flavor, a distinct quality.”  Ballard v. United 
States, supra, at 194. And since, irrespective of any 
possibility of juror bias, such exclusion “ does not 
accord to the defendant the type of jury to which 
the law entitles him,” the statutory right, unlike the 
constitutional one, may be asserted by any litigant, 
even though he is not a member of the excluded 
class. Id., at 195; see also United, States v. Roemig, 
52 F. Supp. 857, 862 (IsT.D. Ia., 1943). The gist of 
a statutory complaint, unlike a constitutional one, thus 
does not pertain to exclusions from the jury itself, 
since “ complete representation [of all elements of so­
ciety] would be impossible”  on a single jury. Thiel



29

y. Southern Pacific Co., supra, at 220. Rather, the 
complaint is directed at exclusions from the jury 
list, which distort the ‘ Muck of the draw”  and pre­
clude the possibility that the jury (and particularly 
the pptit jury after both sides have exercised their 
challenges) will reflect the mesne sentiments and the 
consensual views of the community.

But although the desideratum is thus that the jury 
list be “ drawn from a cross-section of the commu­
nity,”  it does not follow that the list must reflect 
the relative population strength of all elements 
of the community. Proportional representation is 
no more required by statute than it is by the Con­
stitution. Chance v. United States, 322 F. 2d 201, 
204-205 (C.A. 5, 1963), certiorari denied, 379 U.S. 
823; United . States v. Flynn, 216 F. 2d 354 (C.A. 
2, 1954), certiorari denied, 348 U.S. 494; Dow v. 
Carnegie-Illinois Steel Corporation, 224 F. 2d 414, 
428 (C.A. 3, 1955), certiorari denied, 350 U.S. 971; 
United States v. Dennis, 183 F. 2d 201, 223 (C.A. 2, 
1950), affirmed, 341 U.S. 494; United States v. Green­
berg, 200 F. Supp. 382, 392 (S.D.U.Y., 1961) ; United 
States v. Romano, 191 F. Supp. 772, 774—775 (D. 
Conn., 1961); United States v. Brandt, 139 F. Supp. 
349, 354-355 (K D . Ohio, 1955); United States v. 
Fujimoto, 102 F. Supp. 890, 894 (I). Haw., 1952) ; 
United States v. Foster, 83 F. Supp. 197, 208 
(S.D.H.Y., 1949). In Thiel, the Supreme Court ex­
plained that the requirement that juries be “ drawn 
from a cross-section of the community”  means only 
“ that prospective jurors shall be selected by court 
officials without systematic and intentional exclusion



30

o f any [economic, social, religious, racial, political 
and geographical] groups,”  328 tT.S. at 220, adding 
that “ a blanket exclusion o f all daily wage earn­
ers * * * must be counted among those tendencies 
which undermine and weaken the institution o f jury 
trial.”  Id. at 224 [Emphasis added]. In Ballard, 
it held that it was “ the purposeful and systematic 
exclusion of women from the panel” which constituted 
“ a departure from the scheme of jury selection which 
Congress adopted,”  329 TT.S. at 193, and further 
stated that “ [t]he evil lies in the admitted exclusion 
o f an eligible class or group in the community in 
disregard of the prescribed standards o f jury selec­
tion.’ ’ Id-, at 195. [Emphasis added.] In short, 
what the Court held Congress to have forbidden is 
the same purposeful exclusion which the Constitu­
tion forbids. The only variation is that Congress has 
forbidden all purposeful exclusions (other than those 
sanctioned by 28 TT.S.C. 1861 and 1863), and not 
merely those which stimulate juror bias against par­
ticular litigants.21

Ballard and Thiel have been generally construed by 
lower courts as forbidding only purposeful and total 
exclusion, and not as placing any affirmative require­
ments upon jury officials. See Frazer v. United 
States, 335 TT.S. 497, 504; United States v. Dennis, 
supra, 183 E. 2d at 219, 223; Dow v. Carnegie-Illinois

21 The Court has also held that the statutory scheme places 
one further inhibition upon jury officials: they cannot limit 
their selections from a given class to a specialized subgroup 
with particular interests within that class, as, e.g., choosing only 
those women who are members of the League of Women 
Voters. See Glasser v. United States, 315 U .S . 60, 83-87.



31

Steel Corporation, supra, 224 F. 2d at 423; United 
States v. Clancy, 276 F. 2d 617, 632 (C.A. 7, 1960), 
reversed on other grounds, 365 U.S. 312; Young v. 
United States, 212 F. 2d 236, 238 (C.A.D.C., 1954), 
certiorari denied, 347 U.S. 1015; United States v. 
Brandt, supra, 139 F. Supp. at 354; United States 
v. Greenberg, supra, 200 F. Supp. at 393. As was 
concluded in United States v. Local 36 of Interna­
tional Fishermen, 70 F. Supp. 782, 790 (SJD. Cal., 
1947), affirmed, 177 F. 2d 320 (C.A. 9, 1949), cer­
tiorari denied, 339 U.S. 947, after a detailed analysis, 
Thiel holds only “ that for a jury panel to be invalid 
because o f discrimination there must be clear evidence 
of an intent on the part of the jury commissioner or 
the clerk, or both, to prevent or exclude, or to devise 
and use a system or method of selection which is cal­
culated and intended by them, or either of them, to 
result in the prevention or exclusion of, any person 
or group of persons from being called for jury service 
on account Of, and solely because o f”  their member­
ship in a cognizable class. [Emphasis added.]22

22 In D ow  v. Camegie-IUinois Steel Corporation, supra, the 
Third Circuit took a broader view of Thiel and Ballard, and 
held that they forbade federal jury officials “ to exclude any 
cognizable groups from jury lists through neglect as well as 
through intentional conduct.” 224 F . 2d at 424. No other 
court has given the two cases that broad an interpretation. 
The Third Circuit, however, made it clear that it viewed only 
total exclusion by neglect to contravene the statutory scheme. 
It  held that so long as “each official was aware o f this signifi­
cant racial segment of our population [Negroes], and each, 
in the proper exercise o f his discretion, devised his own method 
to insure their representation”, their efforts were not unlawful 
even if “more effective or vigorous methods of solicitation” 
might have been devised. Id. at 425.



The amendment of 28 U.S.C. 1861 brought about 
by the Civil Rights Act of 1957 has, as this Court 
recognized in Chance v. United States, supra, 322 F. 
2d at 205, placed federal jury officials “ under no 
mandatory or positive commands,”  but has left them 
“ on the contrary, controlled by one negative require­
ment: they may not discriminate, directly or indi­
rectly.”  Prior to the amendment, federal jurors had 
to be competent to serve as state jurors. I f  states 
(as most Ahem did) required jurors to be. electors, 
and if Negroes were generally excluded from the 
franchise in certain states, then their disability as 
state jurors made them ineligible as federal jurors. 
The purpose of the amendment was to qualify 
Negroes as federal jurors despite their discriminatory 
disqualification under state practices. . See 103 Cong. 
Ree. 13154, 13157, 13277, 13249, 13325-13326. There 
is nothing in the amendment which requires federal 
officials to take positive steps of any particular vigor 
to obtain Negro jurors, a fact which caused Senator 
Morse to object that “ [t]he provision is not self-en­
forcing,”  id. at 13317, and Senator Douglas to object 
that “  [njothing in the amendment compels an affirma­
tive change in the practice of selecting juries.”  Id. 
at 13250. [Emphasis added.] See also remarks of 
Senator Carroll, id. at 13293. Senator Clark went 
further and proposed that the amendment “ should 
require the nondiscriminatory selection of jurors in 
proportion to the population within the district,”  id. 
at 13290, adding that “ unless strong mandatory lan­
guage is written into the proposed jury-trial amend­
ment, preferably in connection with section 1864, we

32



shall have done nothing more than remove a qualifica- 
tion.”  Id. at 13290-13291. [Emphasis added.] 
Since the views of Senators Morse, Douglas, Carroll 
and Clark did not prevail, it follows that the amend­
ment has left the “ statutory scheme”  where Thiel 
and Ballard proclaimed it to be: with the single com­
mand that there must be no purposeful exclusions 
based upon race or any other similar status.

II

The procedures for compiling the ju ry  list below met constitu­
tional and statutory standards

Applying the principles enunciated in the foregoing 
cases, it can be seen that the procedures used to com­
pile the jury list in the Macon Division of the Middle 
District of G-eorgia did not violate either constitu­
tional or statutory standards. That is to say, the 
record, taken as a whole, does not support the con­
clusion that there existed a purposeful discrimination 
against Negroes because of race or that the procedures 
were inherently calculated to discriminate on the basis 
of race. A  prima facie inference of purposeful dis- 
eriminaiioiriimglLt, peBBaps, be raised on the basis
o f.proportions (i.e., Negroes comprising 35% of the
adult popTrlatien^-in^r^fviSion, 7.3% of those who 
returned questionnaires, and 5.9% of those on the 
jury list) were such proportions the only facts which 
the record disclosed. But the inference loses its com-
H n ji — ....— — .......  -nin Vl

pelling force when measured against the fact that, 
unlike such cases as Norris v. Alabama, 294 U.S. 587, 
the record here shows that Negroes have regularly 
served as both grand and petit jurors within the divi-

33



34

sic®, and that five Negroes served on the indicting 
grand jury in these cases. Where Negroes actually 
serve regularly as jurors, the record can hardly be 
said to establish a purpose to preclude them from such 
service or to evince a procedure which has such pre­
clusion as its natural and inherent result. Compare 
Swain v. Alabama, supra, 380 U.S. at 205; Akins v. 
Texas, supra, 325 U.S. at 405-406; Thomas v. Texas, 
212 U.S. at 283. In such circumstances, whatever else 
may be said about the disproportion on the jury list, 
it falls short of establishing either constitutional or 
statutory fallibility in the procedures by which the 
list was compiled.

In the face of the actual participation of Negroes 
as jurors which the record here shows, a claim of 
constitutional or statutory infirmity would have to 
rest upon the nature of the procedure used (i.e., the 
“ key man”  or suggestor system), or upon the stand­
ards for jury service which the clerk and commis­
sioner applied in making their selections. The sug­
gestor system, however, has been specifically ap­
proved for use in federal courts. Scales v. United 
States, 367 U.S. 203, 259; Padgett v. Buxton-Smith 
Mercantile Go., 283 F. 2d 21, 41—46 (C.A. 10), cer­
tiorari denied, 365 U.S. 882; Windom v. United 
States, 260 F. 2d 384 (C.A. 10); Walker v. United 
States, 93 F. 2d 383 (C.A. 8, 1937), certiorari denied, 
303 U.S. 644. Nor was its application in these cases 
improper or unlawful. In turning for suggestions to 
persons whom they knewT and trusted, the clerk and 
commissioner followed the procedure twice recom­
mended (in 1942 and 1960) by the Judicial Confer­



ence Committee on the Operation o f the Jury System: 
vis., “ that the ‘key-men’ asked to suggest names 
should be those citizens of the district who are most 
likely to be impartial and who are known to have a 
high sense of civil responsibility.”  The Jury System 
in the Federal Courts, 26 F.R.D. 409, 428-429. See 
also n. 23, pp. 40-41, infra.

In seeking jurors who were not merely literate, but 
rather who had the education and intelligence to be 
able to understand and decide cases presented in fed­
eral courts, the clerk and commissioner also followed 
the recommendations of the Judicial Conference Com­
mittee that “ jurors should possess as high a degree 
of intelligence, morality, integrity, and common sense, 
as can be found by the persons charged with the duty 
of making the selection. The Jury System in the 
Federal Courts, supra, 26 F.R.D. at 425; see also 418, 
419, 421. As the 1960 report stated, id. at 419:

The jury holds in its collective hands the life, 
liberty and welfare of individual defendants in 
criminal cases and the interests of litigants in 
civil eases. The importance of improving the 
calibre of these judges of the facts is therefore 
self evident.

and:
In order to get better jurors, the Committee 

recommends greater care in the compilation of 
the list of jurors whose names go into the jury 
wheel or box from which trial jurors are 
chosen.

Procedures calculated to obtain high calibre and 
intelligent jurors have never been deemed repugnant 
to either the Constitution or to federal jury laws.



36

Thus, the Supreme Court, noting that “ [a] fair ap­
plication of literacy, intelligence and other tests 
would hardly act with proportional equality on all 
levels of life,”  has held that “ [t]he state’s right to 
apply these tests is not open to doubt even though 
they disqualify, especially in the conditions that pre­
vail in New York, a disproportionate number o f 
manual workers.”  Fay v. New York, supra, 332 U.S. 
at 291. The Fay holding, moreover, has been specifi­
cally applied to federal jury selection in accordance 
with statutory standards ( United States v. Dennis, 
supra, 183 F. 2d at 222) ; it was held to offer a valid 
and adequate explanation for the disproportionately 
low number of Negroes whose names appeared on 
the federal jury lists there in question. Id. at 223. 
And in United States v. Henderson, 298 F. 2d 522, 525 
(1962), certiorari denied, 369 U.S. 878, the Seventh Cir­
cuit, after noting that the 1957 amendment of 28 U.S.C. 
1861 was “ designed to attain objectives not inconsistent 
with recognition that a reasonable level of intelligence 
is appropriate, if  not a requisite, to the rendition of 
efficient service as a juror,”  held that it was proper for 
jury officials to consider, in making their selections for 
the jury box, whether prospective jurors had completed 
eight years of formal education, because:

Recognition that the statute envisions “ effi­
cient”  service requires rejection of a conclusion 
that an intelligence level equated with mere 
literacy was intended to be imposed as a maxi­
mum standard to be employed by the clerk and the 
commissioner in the selection of persons pursuant 
to § 1864 whose names are to be placed in the 
box from which jurors are drawn.



37

The only limitation upon the discretion of jury 
officials in adopting procedures calculated to insure 
efficient service is that “ [recognition must be given 
to the fact that those eligible for jury service are to 
be found in every stratum of society,” and that 
“ [j]ury  competence is an individual rather than a 
group or class matter.”  Thiel v. Southern Pacific 
Co., supra, 328 U.S. at 220. Standards for jury selec­
tion must not be “ irrational,” United, States v. Hen­
derson, supra, 298 V. 2d at 525, and must be applied 
in an even-handed fashion. Compare Fay v. New 
York, supra, 332 U.S. at 291. The record here shows 
that the clerk and jury commissioner were guided by 
the principle enunciated in Thiel, and set about to ob­
tain intelligent and efficient jurors on an individual 
basis, without regard to societal status. Their stand­
ards, adopted after consultation with Judge Bootle 
and based upon the advice set forth in the manual for 
jury selection published by the Administrative Office 
of the United States Courts, can hardly be deemed 
“ irrational.”  There is no suggestion in the record 
that they applied the standards other than even- 
liandedly, exacting the same qualifications for white 
persons as they did for Kegroes. There is thus 
nothing about the standards which they adopted which 
is either inherently discriminatory, or which evinces 
a purpose to discriminate, on the basis o f race.

It is our submission, therefore, that, on the record 
as it was made in the district court, the court was 
correct in its conclusion that the appellants had not 
shown that the jury box was defective from either 
the constitutional standpoint or the standpoint of the



38

federal statutory scheme as it was administered by the 
clerk and jury commissioner under the supervision of 
the district court in compiling a list of jurors avail­
able to meet the needs of the court in the adminis­
tration of justice in the Macon Division. In this 
view, neither the indictments returned by the grand 
jury nor the verdicts of the petit juries, all the mem­
bers o f which were drawn by lot from the jury box, 
are vulnerable on the grounds asserted by the 
appellants.

I ll

In the particular circumstances of this case, the addition of 
only four new Negro names in the compilation of the 1959 
jury list and the failure during the period involved to make 
further affirmative efforts to add additional Negro names to 
the list leads us to suggest that this Court reverse the con­
victions in the exercise of its supervisory power

As we have pointed out, further analysis of the 
questionnaires returned by persons whose names were 
selected for deposit in the box when the jury list was 
revised in 1959 has disclosed additional information 
with respect to the racial composition o f the list 
which we feel, in all candor, should be taken into ac­
count in considering whether, in the totality of the 
circumstances of these cases, the resultant verdicts 
of the petit juries should be sustained. This further 
analysis shows that in the 1959 revision, 1428 names 
from the 1953 list were carried over and 557 new 
names were added, making up the total o f 1985 
names on the 1959 list, 117 of whom were Negroes. 
Of the 557 new names, only four, or .7% were of 
Negroes. Without in any wise disparaging the sin-



39

cecity and good faith of the members of the jury 
commission in their purpose and objective of obtain­
ing a fair representation of Negroes on the list, it 
cannot but be recognized that this stark dispropor­
tion reflects deficiencies in their methods o f attaining 
their objective which culminated in a result that we 
feel cannot be ignored.

While the proportions reflected in the 1959 list 
as a whole are understandable in the light o f the evi­
dence brought out below and the census data set 
forth above and in our initial brief in the Rabinowitz 
case, this newly disclosed information concerning the 
new names added in 1959 obviously cannot be ex­
plained by reference to the record or on any other 
basis than that the 1953 list was, overwhelmingly, 
the source of Negro names for the 1959 list. Nor 
can we say without further proof that the fact, as 
reflected by the record, that the commissioners en­
countered difficulty in obtaining completed question­
naires from Negroes explains the disproportion among 
the names newly added in 1959. A  related factor 
which we feel appropriately should be considered is 
that the trial juries involved in these cases were drawn 
from a box which had not been revised over a period 
o f four years—from 1959 to 1963.

As reappraised in the light of the newly disclosed 
information, these cases present a situation in which 
the jury list was not made up with any purpose of 
precluding Negroes from service. Nor, since Negroes 
regularly serve as both grand and petit jurors, can 
it be concluded that, purpose aside, the natural con­
sequence of the method by which jurors were chosen



40

must have resulted in such preclusion. Yet the facts 
remain that, of the jurors added in the 1959 revi­
sion, only .7% were Negroes, and no attempt to add 
more jurors was made between 1959 and 1963.

This situation—although in our view not constitut­
ing a violation of either constitutional or statutory 
standards—does present a special problem for those 
charged with administration of the federal jury sys­
tem. The period between 1953 (when the last pre­
ceding list was compiled) and 1963 has been one 
which has been characterized in a large area of this 
country, including the Middle District of Georgia, by 
a shift from effective exclusion of Negroes from par­
ticipation in many of the significant aspects of citizen­
ship, toward participation in all its aspects. The period 
has been one of ferment and adjustment. Our point here 
is that Negro representation in the administration of 
justice is a special aspect of these times in which long­
standing wrongs are being righted. Those charged with 
administration of the jury system should be especially 
sensitive and alert to even the unintended exclusion 
of Negroes from jury service. This is particularly 
important in parts of the country where racial segre­
gation has traditionally prevailed. In these historic 
and special circumstances, additions to the jury list 
which produced so disproportionate representation by 
Negroes called for further affirmative efforts to rem­
edy the disproportion.23

23 In this area, the following comment in The Jury System  
in the Federal Courts (Report of the Judicial Conference Com­
mittee on the Operation o f the Jury System) (1960), 26 
F .R .D . 409, 470, is particularly pertinent: “The key-man sys­



41

The failure to take remedial action during this 
period seems to the Government to be inconsistent 
with the current need to demonstrate to Negroes 
their full participation in the benefits and duties of 
citizenship. Affirmative action in this respect is par­
ticularly important as it affects the administration of 
justice—in fact and in appearance (cf. Offutt v. 
United States, 348 U.S. 11, 14)—since so many as­
pects of the struggle for full citizenship—as these 
cases themselves demonstrate—inevitably find their 
way to the courts. For these reasons we believe that, 
though no purpose to discriminate has been estab­
lished and though no statutory or constitutional stand­
ards were violated, the court should exercise its super­
visory power in the circumstances of these cases.

In sum, it is our view that, against a background 
of what Mr. Justice Jackson referred to as “ the long 
history of unhappy relations between the two races” 
{supra p. 20), the extreme disproportion of the num­
ber o f Negroes among those added to the jury list in 
1959 imposed a special duty upon the officials charged 
with its selection in an area characterized by such 
“unhappy relations” to take affirmative action to rem­
edy that disproportion. The failure to take such 
action together with trial of these cases before petit 
juries upon which there were in fact no Negroes cre­
ates a possibility of injustice sufficient to warrant 
reversal o f the trial verdicts.
tem is the most widely used and if  the key-men are selected 
with discretion and a view of securing diversification, it is 
productive of generally good results. Periodic letters to the 
key-men keep the lists coming in so that there is a constant 
supply of new names being added.”



42

Not all of the considerations described above apply 
to the indictments. There were in fact five Negroes 
on the grand jury which returned them. Conse­
quently, the failure to take remedial action does not 
appear to have had a substantial impact upon its com­
position. Moreover, the Government feels that the 
Court’s supervisory function may be adequately dis­
charged by reversal of the verdicts of the petit jur­
ies—on which Negroes in fact did not serve and whose 
decisions had a more immediate impact upon the ap­
pellants24—and by reform o f the jury box in the 
future.

Respectfully submitted.
Reed M. V inson, Jr., 

Assistant Attorney General, 
Floyd M. B ufokd,
United States Attorney, 

Nathan Lewin,
Robekt S. Ekdahl,

Attorneys.

24 Cf. Cassell v. Texas, supra, 339 U .S . at 301-302 (Jackson 
J., dissenting); United States ex rel. Goldsby v. Harp ole, 363 
F . 2d 71, 80-81 (C .A . 5 ,1959).

U .S . GOVERNMENT PRINTING OFFICE: I96S



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