Pullum v. Greene Appellants' Brief

    Itutefc (Emtrt of Appeals
F ob the F ifth Cibctjit 

No. 25389

D. U. Ptjlltjm, et al. and U nited States op A mebica,

Appellants,
v.

A ustin Gbeene, et al.,
Appellees.

ON appeal fbom th e  u nited  states distbict coubt fob the

MIDDLE DISTBICT OF GEOBGIA

APPELLANTS’ BRIEF

Nobman C. A makeb 
Jack Gbeenbebg

10 Columbus Circle 
New York, New York 10019

C. B. K ing

P. 0. Box 1024 
Albany, Georgia 31702

Attorneys for Appellants



I N D E X
PAGE

Statement of the Case ..................................................... - 1

Specifications of Error ......... ............... .................. -.........  3

A rgument :

I. The District Court Erred in Failing to Find 
That Appellees Have Pursued a Longstanding 
Pattern and Practice of Discriminating Against 
Negroes in Compiling the Jury Lists for Terrell 
County, Georgia ....................................................

II. The District Court Erred in Failing to Find 
That the Pattern and Practice of Excluding 
Negroes From Jury Service Because of Their 
Race and Color Continued to and Through the 
Time of the Hearing and of Appellees’ Motion
to Dismiss ............. ................................................. 9

III. The District Court Erred in Refusing to Issue 
an Injunction Against the Appellees and in 
Granting the Appellees’ Motion to Dismiss .... 13

C onclusion ......................................................................................  16

Certificate of Service 17

Cases:
Table oe A uthorities

Alabama v. United States, 304 F.2d 583 (5th Cir. 1962) 4
Avery v. Georgia, 345 U.S. 559 (1953) ..........................  H

z /B r o o k s  v. Beto, 366 F.2d 1 (5th Cir. 1966) ...............4,11,12

J /^C assell v. Texas, 339 U.S. 282 .......................... ................  12



PAGE

L'Eubanks v. State of Louisiana, 356 U.S. 584 (1958) ..... 9

Hernandez v. State of Texas, 347 U.S. 475 (1954) .......  9
Hill v. State of Texas, 316 U.S. 400 ................................... 12

t-^Hinton & Anderson v. Georgia, 154 S.E.2d 246 ...........  12

Leones v. State of Georgia, 154 S.E.2d 228 ..................... 12

*,WLouisiana v. United States, 380 U.S. 145 (1965) .....9,13,16

Mitchell v. Johnson, 250 F. Supp. 117 (1966) ...............8,16

t-'-'TvForris v. Alabama, 294 U.S. 587 (1935) ......................— 9

|/Patton v. State of Mississippi, 332 U.S. 463 ...............9,11

Rafchnowitz v. United States, 366 F.2d 3 4 ....................... 11
^ /ije e ce  v. Georgia, 350 U.S. 85 (1955) ............................. 9

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966), rehearing en banc, 380
F.2d 385 (5th Cir. 1967) .............................................. 9,16

United States, ex rel. Goldsby v. Harpole, 263 F.2d
71 ..........................................................................................5,6

^^TJnited States v. Louisiana, 225 F. Supp. 353 (E.D. La.
1964), aff’d sub nom. Louisiana v. United States.....  16

United States v. Ward, 349 F.2d 795 (5th Cir. 1965) .... 9

leeward v. Rutledge, 369 F.2d 584 .......    11

, Whit us v. Georgia, 385 U.S. 545 (1967) .......................3,13

Statutes :

18 U.S.C. §243 ......................................................................  15

Georgia Code §59-106 .................................................. 3,13,15



In t h e

luttfii (Himrt of Appeals
F oe t h e  F ifth Cibctxit 

No. 25389

D. U. Pullum, et al. and U nited States of A meeica,

Appellants,

v.

A ustin Greene, et al.,

Appellees.

ON A PPE A L FBOM  T H E  U N IT E D  STATES DISTRICT COURT FOR T H E  

M IDDLE DISTRICT OF GEORGIA

APPELLANTS’ BRIEF

Statement of the Case

This appeal brings before this court for review an order ! 
of the District Court for the Middle District of Georgia I 
(Judge J. Robert Elliott) denying injunctive relief to, and j 
dismissing the complaint of, Negro residents of Terrell, 
County, Georgia who sought in a. class suit to put an end 
to discrimination against Negroes in jury service in Ter- ,

According to the United States Census for 1960, the pop­
ulation of Terrell County, Georgia is 12,742. Of this num­
ber 6,592 are 21 years of age or older. Of these persons, 
3,659, or 56%, are Negroes and 2,933, or 44%, are white. 
Prior to June 23, 1966 a Negro name had never appeared



2

on any jury list in Terrell County nor had any Negro ever 
sat upon any grand or traverse jury in the county (E. 
81-2, 110, 757-764). The Jury Commission of Terrell County 
compiled the jury lists for the county solely by reviewing 
the names of those persons on the tax digests of the 
county (E. 758). The tax digests were divided by race and 
listed only those persons who had entered tax returns on 
real or personal property owned by them (E. 481-5). Tax 
returns should have been returned by all or substantially 
all of the adults in the county, but, through custom and 
practice, poor persons in Terrell County do not enter re­
turns and the officials make no effort to force them to do 
so (E, 481-5, 517). Most of the Negro majority of Terrell 
County are so poor that they have not, under the prevail­
ing custom, entered any tax returns (E. 79, 525-529). How­
ever, on the average, approximately one-third of the names 
on the tax digests of Terrell County have been the names 
of Negroes (E. 79). Prior to June 23, 1966, the Jury Com­
mission of Terrell County reviewed the names of all 
Negroes listed on the tax digests but did not find a single 
one qualified in its judgment to be listed for jury service 
(E. 763).

Appellants are Negro citizens of Terrell County who 
meet all the requirements set forth in the Georgia Code 
for jury service (E. 456-9, 524, 530-1, 542-545, 551-3). Ap­
pellants had never been called for jury duty prior to June 
23, 1966 and on that date brought suit in their own behalf 
and in behalf of the other Negro adult citizens of Terrell 
County charging the appellee jury commissioners of Ter­
rell County with deliberate and intentional discrimination 
against them and their class (E. 3).

On September 12, 13 and 14, 1966 (after this suit was 
filed), appellees met and compiled a new jury list from 
the segregated tax digests (E. 168-9). They added the



3

names of 166 Negroes to the jury list, including the names 
of the appellants (R, 78, 179). The 166 Negroes comprised 
only 21% of the revised jury list (R. 78). This list was in 
use at the time hearing was had on the complaint on Feb­
ruary 20-22, 1967.

On January 23,1967, the Supreme Court decided the case 
of Whitus v. Georgia, 385 U.S. 545, which called into ques­
tion the constitutional validity of any jury list drawn from 
segregated Georgia tax digests. In an apparent response 
to the opinion of the Supreme Court in Whitus, the Geor­
gia legislature, on March 30, 1967, amended §59-106 of the 
Code of Georgia to require the jury commissioners to con­
sult the voting rolls rather than the segregated tax digests 
to obtain the names of prospective jurors (R. 859). On 
May 12, 1967, the appellees moved the district court to 
dismiss the action and deny injunctive relief solely upon 
the basis of the amendment to the Georgia Code (R. 86- 
90). The motion was accompanied by an affidavit stating 
that appellees had created a new jury list with names drawn 
from the voting rolls. The affidavit did not cite the racial 
composition of the new list nor assert any intention on the 
part of the appellees to correct their past practices. (R. 
904)2).

On June 29, 1967, the district court filed an opinion and 
order denying appellants’ prayer for an injunction and 
dismissing their complaint upon appellees’ motion and ac­
companying affidavit (R. 857-864). On August 28, 196/, 
appellants filed notice of appeal to this court (R. 864).

Specifications of Error

1. The district court erred in failing to find that appellees 
have pursued a longstanding pattern and practice of dis­
criminating against Negroes in compiling the jury lists 
for Terrell County, Georgia.



4

2. The district court erred in failing to find that the 
pattern and practice of excluding Negroes from jury service 
because of their race and color continued to and through 
the time of the hearing and of appellees’ motion to dismiss.

3. The district court erred in refusing to issue an in­
junction against the appellees and in granting their motion 
to dismiss.

A R G U M E N T

I.
The District Court Erred in Failing to Find That 

Appellees Have Pursued a Longstanding Pattern and 
Practice of Discriminating Against Negroes in Compil­
ing the Jury Lists for Terrell County, Georgia.

“In the problem of racial discrimination, statistics often 
tell much, and Courts listen. Here they are spectacu­
lar.” State of Alabama v. United States, 304 F.2d 583, 
586 (5th Cir. 1962). See also Brooks v. Beto, 366 F.2d 1, 
9 (5th Cir. 1966).

According to the United States Census for 1960, the 
population of Terrell County, Georgia is 12,742. Of this 
number 6,592 are 21 years of age or older. Of those per­
sons 21 years of age or older, 3,659, or 56%, are Negroes 
and 2,933, or 44%, are white persons. Within memory and 
before September 1966, no Negro ever served on any grand 
or traverse jury in Terrell County, Georgia. Available 
figures show that in the years 1944 through September 1966 
the jury lists of Terrell County did not bear the name of a 
single Negro citizen of Terrell County (R. 80-82).

The situation in Terrell County prior to September 1966 
closely paralleled that of Carroll County, Mississippi prior



5

to 1959. This court considered tlie jury situation of Carroll 
County in United States, ex rel. Goldsby v. Harpole:

In the present case, the naked figures prove startling 
enough. According to the 1950 United States Census, 
Carroll County, Mississippi, had a population of 15,448 
persons, of which 8,836 or more than fifty-seven per 
cent were nonwhite, predominantly Negroes. Of the 
nonwhite population, 1,949 were males twenty-one years 
of age and over. The median school years completed 
by the nonwhite population of Carroll County, twenty- 
five years of age and over, were 5.2 years. Yet none of 
the officials called as witnesses—the Circuit Clerk, the 
Chancery Clerk, the Sheriff, the ex-Sheriff who had 
served for twenty years, the District Attorney, or the 
Circuit Judge—could remember any instance of a Ne­
gro having been on a jury list of any kind in Carroll 
County.

We cannot assume that Negroes, the majority class 
in Carroll County, had en masse, or in any substantial 
numbers, voluntarily abstained from registering as 
electors and, by such action, had rendered themselves 
ineligible for jury duty. I f  the registration officials 
freely and fairly registered qualified Negroes as elec­
tors, that fact rested more in the knowledge of the 
State. The burden was on appellee, as the State’s rep­
resentative, to refute the strong prima facie case de­
veloped by the appellant. The only Negroes ever proved 
registered as electors in Carroll County were two who 
had died before 1954.

We have called the figures startling, hut we do not 
feign surprise because we have long known that there 
are counties not only in Mississippi, but in the writer’s 
own home State of Alabama, in which Negroes consti­
tute the majority of the residents but take no part in 
government either as voters or as jurors. Familiarity



6

with such a condition thus prevents shock, but it all 
the more increases our concern over its existence. 
When, in a proper case such as this, there is added to 
our common knowledge proof that some of the Negro 
citizens are qualified educationally and by other legal 
standards but are excluded from serving as jurors 
solely because of their race or color, the courts must 
declare the maintenance of such a condition violative 
of the Constitution and must not tolerate its longer 
continued existence. 263 F.2d 71, 78-79 (1959) (foot­
notes omitted)

Under Mississippi law, the jury commissioners were re­
quired to draw the names of prospective jurors from the 
lists of registered voters who had paid their poll taxes and 
had met the other requirements for voting in Mississippi 
elections. The State attempted to explain the absence of 
Negro jurors by exhibiting a voting list from which Negroes 
were absent and arguing therefrom that the jury commis­
sioners had discharged their duty and were innocent of 
discrimination. This court, however, pierced the surface of 
this pat explanation and perceived the obvious discrimina­
tion that must have attended the compilation of such a 
voting roll. The Harpole case stands squarely for the prop­
osition that where state law requires jury officials to use a 
given source in formulating the jury list, if that source is 
not representative of the community, a prima facie case of 
discrimination is not rebutted by mere reliance upon such 
source.

In the case at bar, as of the time of the filing of the com­
plaint in this action and the hearing thereon, the Terrell 
County commissioners were required by Georgia law to 
consult the tax digests as the basic list source for prospec­
tive jurors. For the years prior to September 1966, the



7

Terrell County commissioners cannot avail themselves even 
of the spurious excuse used by the Carroll County commis­
sioners. Unlike the Carroll County voting list, the Terrell 
County tax digests have and have had, a substantial num­
ber of Negroes listed. The percentage of Negroes on the, 
tax digest is not comparable to the percentage of Negroes 
xn~TEe~^neraT ^ ^ t  population of Terrell County but it 
has in recent years averaged about 36% of  the total number 
of names on the tax digests (R. 79). The Terrell commis- 
sionerTstated that they had in all the years prior to Sep­
tember 1966 considered and discussed each of the Negroes 
listed on the tax digest and that not within memory had 
they happened upon the name of a single Negro whom they 
considered qualified. The kindest word that can be said for 
this explanation is that it is incredible.

After innumerable jury cases before the Supreme Court 
and before this court over many decades, it must have been 
known by the jury commissioners of Terrell County that 
the majority Negro community of the county should have 
been represented on the jury lists in numbers fairly reflec­
tive of their numerical strength in the county. The fact 
that the jury commissioners waited all these years and un­
til they were sued before according the majority Negro com­
munity even token representation on the jury lists clearly 
evinces a lawless will to discriminate of proportions ex­
traordinary even in this region where official discrimination 
against Negro citizens is no rarity.

The district court, therefore, erred in its conception of 
plaintiffs’ case when it stated:

The main thrust of the Plaintiff’s case is the contention 
that since Georgia law required the selection of jurors 
from the tax digests only, and since the jury commis­
sioners followed the provisions of Georgia law in this 
respect in selecting the names of jurors in the county,



8

and since the names of Negroes do not appear on the 
tax digests in proportion to their actual numbers in 
the county, this amounts to an automatic use of a prop­
erty qualification by the jury commissioners which nec­
essarily resulted in systematic exclusion of Negroes 
from the jury lists. (R. 858-59)

The complaint in this cause was filed on June 23, 1966. 
As of that date not a single Negro was listed on the jury 
lists nor had any Negro ever been listed on any jury list 
used prior to that time. It is clear that had the Jury Com­
mission simply obeyed Georgia law, as the district court 
states, and compiled the jury list from the tax digests, 
the jury list would have been composed of about 36% 
Negro names. The fact that it had no Negro names at all 
indicates clearly that the jury commissioners disregarded 
Georgia law as well as federal law and did so consistently.1 
Clearly there can be no dispute on the proposition that 
the longstanding policy and practice of the Terrell County 
jury commission up through the filing of the complaint in 
this case was the total exclusion of Negroes from jury 
service because of their race and color. Appellees estab­
lished a more than sufficient prima facie case indicating 
this discrimination prior to September 1966 and the appel­
lants did not rebut it. Accordingly, the district court 
should have ruled that a pattern and practice of dis­

1 Cf. Mitchell v. Johnson, 250 F. Supp. 117, 120 (M.D. Ala. 1966) : 
“ The evidence is clear that the commissioners had not followed the proce­
dure required by the Alabama state law.11”

# * # # #
11 “ The ultimate issue in this case is, of course, whether or not 

there has been a violation of the federal law. Whether the state re­
quirements have been followed, however, is relevant in determining 
the relief, if any, to be granted and the manner in which such relief 
is to be secured to the plaintiffs and the members of their class.” 
(court’s footnote).



9

crimination on the basis of race had been shown. Patton 
v. State of Mississippi, 332 U.S. 463; Norris v. State of 
Alabama, 294 U.S. 587; Eubanks v. State of Louisiana, 
356 U.S. 584; Reece v. State of Georgia, 350 U.S. 85; 
Hernandez v. State of Texas, 347 U.S. 475. Once shown, 
appellants were entitled to injunctive relief. Louisiana v. 
United States, 380 U.S. 145 (1965); United States v. Ward, 
349 F.2d 795 (5th Cir. 1965); United States v. Jefferson 
County Board of Education, 372 F.2d 836 (5th Cir. 1966); 
rehearing en banc, 380 F.2d 385 (1967).

II.
The District Court Erred in Failing to Find That the 

Pattern and Practice of Excluding Negroes From Jury 
Service Because of Their Race and Color Continued to 
and Through the Time of the Hearing and of Appellees’ 
Motion to Dismiss.

After the filing of the Complaint in this cause, the ap­
pellee jury commissioners met and revised the jury lists. 
They abandoned the jury list in existence when the com­
plaint was filed and created an entirely new one. The com­
missioners reviewed the names on the tax digests, which 
are segregated by race, as the sole means of arriving at a 
new jury list. They considered each name. There was no 
limit placed upon them as to the number of tax digest 
names they could choose to enroll upon the jury list (R. 
265-71). Theoretically they could have enrolled all or sub­
stantially all of the 3,158 names on the 1966 Tax Digest 
(R. 79). They instead chose to cease adding names when 
they had obtained 764 names (R. 78, 271). The commis­
sioners went through the list of 3,158 one time choosing 
those who were “upright and intelligent people” (R. 268). 
When they reached the end of the list they found that they



10

had 764 names (E. 271). They did not go through the list a 
second time although they realized that there were many 
persons, Negro and white on the tax digest who had not 
been selected by them for jury service (R. 262-72). The 
commissioners knew very few Negroes other than those 
who worked for them or friends of theirs (E. 177; 229-59; 
192; 314-9; 379-390; 422-30). They had, as a group, no 
social or organizational contact with Negro citizens of 
Terrell County. However, they chose the 764 “best” quali­
fied upon the basis of personal knowledge and reputation 
as to honesty, integrity, successfulness, good judgment, 
common sense, and other personal traits of a like nature 
(R. 201-2; 305-6; 377; 420-1). Of the 764, 598 were white 
persons (R. 78). Consequently, the number of white per­
sons selected for jury service was 29.8% of the 2,048 white 
persons carried on the 1966 tax digest. The standards 
used by the jury commissioners were the same as those 
used in prior years and the proportions of the “best quali­
fied” in those years are virtually the same as the 1966 
proportion. In 1964, 569 or 28.8% of the 1,972 white per­
sons on the tax digest were chosen for jury service. In 
1962, 526 or 27.1% of the 1,949 white persons on the tax 
digest were chosen (R. 78-81).

Of the 764 “best qualified” in 1966, only 166, or 14.9% 
of the 1,110 listed on the tax digest were Negroes (R. 78- 
79). No explanation was given by the appellees as to why 
the proportion of Negroes having the “ integrity,” “hon­
esty,” “ common sense,” and “ good judgment” demanded by 
the commissioners was so much less than the proportion 
of whites with those characteristics. This disproportion 
is the apparent sole explanation for the fact that though 
Negroes are 35% of the 1966 Tax Digest, they are only 
21% of the jury list drawn from the 1966 Tax Digest. The 
most innocent explanation of this disparity (which as-



11

snmpis that the commissioners suddenly divested them­
selves of their prior discriminatory attitudes after the 
complaint was filed) is that the commissioners simply do 
not have sufficient contact with Negroes to make a fair as­
sessment of their personal traits. Cf. Brooks v, Beto, 366 
F. 2d 1 (5th Cir. 1966).

The proportion of Negroes to whites on the 1966 tax 
digest was obvious and apparent to the Commissioners. 
They admitted that there were Negroes who were qualified 
for jury service on the tax digest but who were not se­
lected for jury service. They offered no explanation as to 
why they did not utilize these Negro names to bring the 
percentage of Negro jurors up to a point at least close to 
the percentage of Negroes on the tax digest. Accordingly, 
it is clear that there was discrimination against Negro 
citizens of Terrell County in the compilation of the new 
jury list in September 1966. Avery v. Georgia, 345 U.S. 
559; Patton v. Mississippi, 332 U.S. 463; Vanleeward v. 
Rutledge, 369 F. 2d 584; Rabinowits v. United States, 366 
F. 2d 34.

Aside from any purposeful and deliberate discrimina­
tion practiced by the commissioners, there was effective 
discrimination against Negro jury service by the mere use 
of the tax digest as the sole source of names. Negroes con­
stitute 56% of the Terrell adult community; yet they were 
only 21% of the revised jury list. The discrepancy is ex­
plained in two steps: (1) Since Negroes are only 35% of 
the tax digest, 60% of the fall-off is accounted for by the 
mere use of the tax digest and (2) 40% of the fall-off is 
due to some factor related to the judgment of the white 
commissioners. The jury list is obviously not representa­
tive of the community.

Theoretically the tax digest should fairly accurately re­
flect the white-Negro composition of the community since,



12

if the law were enforced, virtually everyone would file a 
tax return. Testimony of the tax officer, however, indi­
cated that as a matter of custom, the tax return law is not 
enforced. Persons with little property do not customarily 
file tax returns, and the tax office makes no effort to en­
courage or force them to do so. Negroes are by far the 
predominant group of the very poor in Terrell County and 
thus customarily 70% of the adult Negroes do not file tax 
returns whereas 70% of the white adults customarily do, 
because of the size of their holdings. Consequently the 
names of a major proportion of adult Negroes otherwise 
qualified for jury service are missing from the tax digests.

The Jury Commission could have supplemented this ob­
viously unrepresentative list by personal contact or the use 
of a “key man” system within the Negro community. Both 
federal law and Georgia law, expected this of the Jury 
Commission at the time of the 1966 revision. Hinton <& 
Anderson v. Georgia, 154 S.E. 2d 246; Jones v. Georgia, 
154 S.E. 2d 228; Brooks v. Beto, 366 F. 2d 1. Since the 
Jury Commission did not make any effort to supplement 
an obviously unrepresentative tax list, without more they 
continued their discrimination against the Negro com­
munity of Terrell County in the matter of jury service. 
Brooks v. Beto, 366 F. 2d 1; Cassell v. Texas, 339 U.S. 282; 
Hill v. Texas, 316 U.S. 400.



13

III.

The District Court Erred in Refusing to Issue an 
Injunction Against the Appellees and in Granting Their 
Motion to Dismiss.

After the completion of the hearing, and in apparent 
response to the decision of the Supreme Court in Whitus 
v. Georgia, 385 IT.S. 545, the Georgia legislature on March 
30, 1967 amended §59-106 of the Code of Georgia to require 
jury commissioners to consult the voting rolls rather than 
the tax digests to obtain names for jury lists and further 
required the commissioners to supplement the jury list 
with additional names should any voting list be unrepre­
sentative of the community. As soon as this law was 
passed, the appellee commissioners discarded the revised 
jury list they had compiled in September 1966 and made 
a new list (R. 90-92). Without indicating the racial com­
position of the new list or any facts to support an in­
ference that they had departed from their past pattern 
and practice of discrimination, the appellee jury com­
missioners moved the district court to deny appellants’ 
request for an injunction and to dismiss the action solely 
upon the basis of the change in law (R. 86-90). Appellees 
did not state that they would obey the new law and attempt 
to assure cross-sectional representation on the jury lists. 
And in light of their past conduct, had such an assertion 
been made, it would hardly have been worthy of belief.

There is an apt comparison here with the situation ex­
posed in Louisiana v. United States, 380 U.S. 145 (1965). 
There in a voting context, the state argued that the district 
court’s mandatory injunction ignored the fact that the 
Board of Registration had adopted a new voter-qualifica­
tion test pursuant to a statute and constitutional amend­



14

ment enacted after the suit was filed. In rejecting this 
argument and affirming the district court’s decree, the 
Supreme Court pointed out “ that the [district] court has 
not merely the power but the duty to render a decree 
which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future.”  380 U.S. at 154.

By contrast, the district court here in granting the relief 
prayed for by the appellees stated:

Obviously, the situation which now exists is radically 
different from that which existed at the time this 
complaint was filed and at the time evidentiary hearing 
was had. Consequently, all of the allegations of the 
complaint and the testimony both for the Plaintiffs 
and the Defendants at the trial of the case, and the 
documentary evidence introduced relating to the mat­
ter, have no relevance whatever to the jury lists now 
in use in Terrell County compiled pursuant to the 
new statute. . . .

In the complaint which we have had under con­
sideration the Plaintiff sought to compel the aban­
donment of the jury lists being used in Terrell County 
and to compel the emptying of all jury boxes and the 
preparation of a new jury list using other sources than 
those which were then in use to secure the names to 
be placed thereon. All of this relief thus sought by 
injunction has been obtained by the Plaintiffs as a 
result of the passage of a statute by the Georgia 
General Assembly and the compliance therewith by 
the Terrell County jury commission (R. 862-63).

But there was no evidence before the court of compliance 
with the new statute and such compliance could not be 
assumed. It is quite apparent that the district court erred



15

in its conception of the nature of appellants’ complaint, 
the extent of the injunctive relief demanded, and the mean­
ing of the evidence adduced by appellants at trial. The 
gravamen of appellants’ complaint is stated in sections IX, 
X, XI, XII, and X III (R. 11-12). It is clear from a reading 
of those sections that appellants’ basic complaint is that 
they, as qualified Negro citizens representing a class of 
others similarly qualified, were being unconstitutionally 
denied their right to serve on juries in Terrell County 
because of their race and color. They were not complaining 
against any specific list of names but rather against a 
pattern and practice of intentional and unlawful conduct 
undertaken to deprive them and members of their class of 
their right to jury service. Insofar as the pattern and 
practice was one of purposeful, intentional and deliberate 
discrimination, it was a federal crime (18 U.S.C. §243), 
unconstitutional under the Fourteenth Amendment and in 
violation of the laws of the state of Georgia. Such unlawful 
activity is certainly not so related to the existence of 
§59-106 of the Georgia Code such that when that law was 
modified the purpose and intention of the jury commis­
sioners to discriminate against Negroes was in any way 
changed or hampered. The holding of the district court as 
it relates to the effect of the amendment of §59-106 on the 
allegations of the complaint was plain error.

The district court was no less in error when it stated 
that appellants had been given all the relief they prayed 
for by the amendment of §59-106 and initial action of the 
appellee commissioners in making up a new list from the 
voting rolls. It is clear that sections 4, 8 and 9 of the 
relief prayer of appellants’ complaint were not mooted by 
the passage of the new amendment and they are the heart 
of the relief prayed for by the appellants (R. 15-16).



16

Finally, the district court was greatly in error when it 
held that the documentary and other evidence introduced 
hy the appellants at trial “have no relevance whatever to 
the jury lists now in use in Terrell County compiled pur­
suant to the new statute.” (R. 862) Appellants at trial 
proved a case of intentional and conscious discrimination 
by the appellee commissioners. Had they “ confessed” there 
would have been no need to proceed further. Since they 
did not admit their wrongdoing, it was necessary to pro­
duce facts showing their intent to discriminate. That in­
tent can be thwarted in the future only hy the issuance of 
an injunction which, among other things, requires periodic 
reports to the district court and counsel demonstrating 
their compliance with constitutional demands. Cf. Mitchell 
v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966); United 
States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1964), aff’d 
sub nom Louisiana v. United States, supra; United States 
v. Jefferson County Board of Education, supra.

CONCLUSION

For the foregoing reasons, the judgment below should he 
reversed with directions to issue the injunction as prayed 
and to retain jurisdiction to assure compliance therewith.

Respectfully submitted,

Norm an C. A maker 
Jack Greenberg

10 Columbus Circle 
New York, New York 10019

C. B. K ing

P. 0. Box 1024 
Albany, Georgia 31702

Attorneys for Appellants



17

Certificate of Service

I hereby certify that on this 26th day of January, 1968, 
I served a copy of the foregoing Appellants’ Brief upon 
A. J. Land, Esq., P. 0 . Box 469, Columbus, Georgia 31902, 
W. L. Ferguson, Esq., Dawson, Georgia, B. R. Jones, Esq., 
Dawson, Georgia, and David L. Norman, Esq., Chief, Ap­
peals and Research Section, Civil Rights Division, Depart­
ment of Justice, Washington, D. C. by mailing a copy to 
each postage prepaid.

Norman C. A maker 
Attorney for Appellants



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