Correspondence from Pamela Karlan to Prof. Richard Engstrom

    1st t h e

&t<xtvs (Emtrt nf Appals
F ob t h e  F if t h  C ir c u it  

No. 23617

A r t h u r  L. J a ck so n ,

v.
Appellant,

W il l ia m  L. M orrow , e t  al .,
Appellees.

A P P E A L  FRO M  T H E  U N IT E D  STA TES D IST R IC T  CO U RT FO R  T H E  

N O R T H E R N  D IST R IC T  OF ALABAMA

BRIEF FOR APPELLANT

O scar W . A dams, J r .
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

D e m e t r iu s  C. N ew to n  
408 North 17th Street 
Birmingham, Alabama 35203

J ack  G reenberg  
N orm an  C. A m a k er  

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



I N D E X

PAGE

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

Specification of Error ....... ..........................................  5

A b g u m e n t—

I. The District Court Erred in Overruling Appel­
lant’s Motion to Challenge the Array and Quash 
the Yenire .................. ..... ..................................... 6
A. The list from which the jury was drawn is not

representative of a cross-section of the popula­
tion of the Northern District of Alabma in 
that Negroes are excluded........ ............ ......... 6

B. The list from which the jury was drawn is not
representative of a cross-section of the popula­
tion of the Northern District of Alabama in 
that women are excluded .......................   13

C. The Clerk of the Court and the jury commis­
sioner in compiling the jury list violated the 
federal statutory scheme by applying statu­
torily incorrect standards to prospective 
jurors ....................................................   14

C o n clu sio n  .....................................................    17

A p p e n d ix —

H. R. 14765, Title I (In part) ................................ la



11

T able op Cases

page

Ballard v. United States, 329 U.S. 187 (1946) ......10,14,16

Cassell v. State of Texas, 339 U.S. 282 (1950) ... .....8 , 11,15

Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414 
(1955) ....................................................................... 10,12

G-lasser v. United States, 315 U.S. 60 (1942) .... ...10,11,16

Hill v. Texas, 316 U.S. 400 (1942) .................. .........  11

Rabinowitz v. United States, No. 21256 (1966) 

Radio Officers v. N.L.R.B., 347 U.S. 17 (1954) ....

....9,10,12, 
14,15,16 

.........  10

Scott v. Walker, 358 F.2d 561 (1966) .... ...........
Smith v. Texas, 311 U.S. 128 (1940) .................

.........  11

.........  10

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)
10,11,12,16

United States v. Holla, 205 F. Supp. 710 (1962) ._......  9

White v. Crook, 251 F. Supp. 401 (1966) .............. 14

S tatute

28 U.S.C. 1861 16



Ill

O t h e b  A itth o eities

PAGE
The Jury System in Federal Courts, Report of the 

Judicial Conference Committee on the Operation of 
the Jury System, 26 F.R.D. 409 ............. ......... ...... 8

U.S. Census of Population: 1960 General Population 
Characteristics Alabama. Final Report PC(1)-2B,
U.S. Government Printing Office, Washington, D.C.
1965 ............................. ........................................... 6

H. R. 14765, 89th Congress, 2nd Session .... ................. la



I n  the

Mrntpft OInurt of Appeals
F or t h e  F if t h  C ir c u it

No. 23617

A r t h u r  L. J a ckson ,
Appellant,

W illia m  L. M orrow , e t  al ,,
Appellees.

a ppea l  from  t h e  u n it e d  states district  court for  t h e  
NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from a judgment of the United States 
District Court for the Northern District of Alabama, East­
ern Division, challenging the fairness of the jury verdict 
(on which the judgment was based) in favor of appellees 
in a civil damage suit, on grounds that the list from which 
the venire was drawn was not representative of the popula­
tion of the District in that both Negroes and women have 
been excluded on account of their race and sex, from, jury 
service because of the procedures used by officials in com­
piling the jury list (R. 25, 31).

Appellant, a Negro, filed suit in the district court on 
February 25, 1965 seeking damages for injuries he received 
at the hands of appellees, police officers of the City of



2

Anniston, Alabama. The suit arose from the following 
circumstances:

Around 11:00 p.m. on January 23, 1965, appellant, Ar­
thur Lewis Jackson, was involved in an accident (R. 105, 
240, 254). He was driving a 1959 Ford car south on 
Leighton Street between E and D Streets in Anniston, 
Alabama, when he met a car going north with its head­
lights on bright. He swerved to the right to miss this 
car and partly struck the back end of a 1958 Ford parked 
on the street. The car he struck belonged to a Mrs. Davis 
(E. 101).

Upon arrival of appellees, officers Morrow and Taylor, 
appellee Morrow came over and asked appellant something 
and then told him to get into the police car. He also asked 
to see appellant’s driver’s license. As appellant was getting 
his wallet out, Morrow grabbed his arm and told him to 
come over to the car. Appellant’s wife then took the wallet 
from his hand and he followed the officer’s order and went 
to the police car (E. 103).

The wrecker came and appellant told his wife not to 
allow the wrecker to move his car if it could be moved 
under its own power. Appellant’s wife told him that she 
thought the car would have to be moved by the wrecker. 
Appellant then attempted to get out of the police car 
to assess the damage for himself. Appellee Taylor told 
him to get back into the car. This the appellant did (E. 
103). According to appellant, this was the only attempt 
to leave the police car and at no time did he resist the 
officers (E. 103).

However, there was a conflict in testimony. Taylor testi­
fied that as he and Morrow pulled up at the scene of the 
accident, appellant was leaning on the fender of his car 
and that he could not get his billfold out of his pocket



3

and that the lady with him got the driver’s license for him 
(E. 241). Appellant did have a little difficulty in getting 
his wallet out of his pocket but it was because this was 
not an ordinary type wallet but a picture holder (R. 104).

Testimony was given to the effect that appellant was 
intoxicated (E. 241). Appellant had had one-third of a 
pint of bourbon whiskey around 9 :30 or 10 ;00 o’clock a.m. 
(E. 105). Around 11:30 a.m. appellant shared one-half 
pint of white whiskey with one or more persons (E. 106). 
Betwen 6 :30 and 7 :30 p.m. he shared one can of beer with 
his wife (E. 128). Testimony established that the accident 
occurred around 11:00 p.m. (E. 106, 240, 254). Appellant 
was not given a sobriety test to determine whether or not 
he was intoxicated (E. 232).

When appellant and appellees arrived at the City Hall, 
appellee Morrow, who was driving, pulled up around the 
side of City Hall placing appellee Taylor, who was riding 
in back with appellant, on the right side next to the side 
entrance. Taylor opened the door to get out. Appellant 
slid out behind Taylor and went inside. Morrow wTas no­
where in sight at this time. Taylor asked appellant to 
take the contents out of his pockets. As he was following 
this order, Morrow came up, spun him around, knocked 
him to the floor and started kicking him in the face (R. 109).

After Morrow stopped kicking appellant, he and ap­
pellee Taylor picked him up. Morrow then got a blackjack 
from Taylor’s belt and started hitting appellant over the 
head (E. 111). At no time was appellant given medical 
treatment while he was confined to the jail (R. 112, 274). 
Appellant did not ask for medical treatment because when 
the officers shoved him into the cell he was dizzy and 
passed out (R. 112).



4

Officers Morrow and Taylor testified that appellant had 
to be helped ont of the car when they arrived at City Hall 
and that as he came out of the seat he shoved or ran at 
appellee Taylor thereby making it necessary to grab his 
arm and by that time appellee Morrow had gotten around 
and grabbed the other arm. Taylor also testified that as 
he and Morrow were carrying appellant through the 
swinging glass doors of City Hall, appellant broke loose 
and swung into the door, hitting himself somewhere about 
the head (E. 245).

Appellees Morrow and Taylor testified that after they 
got inside of City Hall and up to the desk sergeant’s 
window, they attempted to search appellant as is cus­
tomary procedure. At that point appellant, according to 
them, pushed or shoved back and both appellees grabbed 
him and all three of them fell to the floor on top of a 
spittoon or cuspidor (E. 246). Appellant was the only 
one injured in the fall (E. 261, 270).

Appellant was treated at the emergency room of the 
Anniston Memorial Hospital at approximately 7:30 a.m. 
on January 25, 1965 (E. 115, 152). He had two facial 
lacerations and some bruising and swelling on his face 
at that time (E. 152). Fifteen stitches were required to 
repair the lacerations (E. 153). Several days later an 
X-ray was taken of appellant’s face, which indicated a 
fracture of part of the cheekbone. From the X-ray the 
fracture appeared to be of recent origin (E. 153, 154). 
The X-ray was not taken before this time because of the 
swelling of appellant’s face (E. 154). Appellant left jail 
somewhere between 7 :00 a.m. and 8 :Q0 a.m. on January 24, 
1965. Bruises on his face were observed at that time 
(E. 231, 232).

Although there was testimony given that appellant con­
tinually tried to get away and one of the charges against



5

him was resisting arrest, at no time did appellees Morrow 
and Taylor use handcuffs (R. 133, 264, 265).

On November 4, 1965, appellant filed a motion to chal­
lenge the array and quash the venire (R. 25). The motion 
was overruled by the court after a hearing (R. 29). Trial 
was held on November 12, 1965 in the Eastern Division of 
the District Court for the Northern District of Alabama 
(R. 99). On the same day, the jury returned a verdict 
for the appellees (R. 30). In accordance with the verdict 
of the jury, the court ordered that appellant take nothing 
(R. 30).

On December 3, 1965, appellant filed a notice of appeal 
from the order of the District Court overruling his motion 
challenging the array and venire, said order being dated 
November 9, 1965, and from the judgment on the jury 
verdict (R. 31).

On January 6, 1966, this Court granted appellant’s mo­
tion for an extension of time in which to file his appeal 
(R. 31).

Specification o f Error

The District Court Erred In Overruling Appellant’s 
Motion To Challenge The Array and Quash the Venire.



6

ARGUMENT

I.

The District Court Erred in Overruling Appellant’s 
Motion to Challenge the Array and Quash the Venire.

A. T he list from  which the jury was drawn is not 
representative o f a cross-section o f the popula­
tion  o f  the N orthern D istrict o f  Alabam a in that 
N egroes are excluded.

This cause was tried in the Eastern Division of the 
Northern District of Alabama. Prior to trial, a hearing 
was held on the motion challenging the array. From the 
evidence at the hearing and depositions taken the following 
facts emerged:

The venire consisted of 39 persons. Of this group 36 
were white and three were Negroes; 37 were men and 
two were women (R. 22). There are 1,062,055 persons 
over the age of 21 and potentially eligible for jury service 
in the Northern District of Alabama, of these 840, 943 
persons or 79.18% are white; 221, 122 or 20.82% are 
Negro; 503, 595 or 57.41% are men and 558, 460 or 52.59% 
are women.1

In the Northern District of Alabama it is the duty of 
the Clerk of the Court and the Jury Commissioner to fill 
or refill the jury box. Ninety-nine per cent of the business 
conducted with reference to obtaining names to be placed 
in the jury box is done by mail through the “key” man or 
suggestor system (R. 47).

1 Computed from data taken from U.S. Census of Population: 1960 
General Population Characteristics Alabama. Pinal Report PC(1)-2B 
published by the U. S. Government Printing Office, Washington, D.C. 1965.



7

The procedure for obtaining names of prospective jurors 
is this: Letters are written to “key” persons and “key” 
persons in organizations within the district, asking them 
to recommend names of prospective jurors. The names 
of the “key” people and organizations are added to lists 
from previous years, which lists are kept indefinitely (R. 
48). In the letters to the “key” people and organizations, 
the Court Clerk asks each to send in the names of prospec­
tive jurors “that he or she would want to have on the jury 
to pass on his rights to his life or to his property” (R. 79, 
80, 310). After the “key” people have sent in their lists 
of prospective jurors, a questionnaire is sent to each 
prospective juror (R. 45).

Some of the “key” people and organizations asked to 
submit names of prospective jurors are the American 
Legion, Veterans of Foreign Wars, luncheon clubs such 
as the Optomists, Lions, Kiwanis and Civitans, Civic or­
ganizations, Veterans organizations, Masonic lodges, pub­
lic officials such as bankers, judges of probate, county 
and city superintendents of education, presidents of county 
and city boards of education, special supervisors, county 
boards of revenue, county agents, home demonstration 
agents, Agricultural Soil Conservation Service officials and 
Jeanes teachers2 (R. 76). The great majority of the “key” 
people are white and more frequently than not, the petit 
jury is all white (R. 81, 299, 318). There are no Negro 
superintendents of education, no Negro probate judges, 
no Negro chairmen of the boards of revenue, no Negro 
educators in special supervisory positions and very few, 
if any, Negro bankers (R. 59, 63). There are very few, 
if any, Negroes represented by the above named organiza­

2 Negro teachers who benefit from the Jeanes Fund created by Mrs. 
Anna T. Jeanes in the 1920’s for the purpose of improving Negro primary 
schools in the rural South.



8

tions and “key” people. There are Negro chapters of the 
Veterans of Foreign Wars in a few counties, the Jeanes 
teachers are Negro and a very few Negro county agents. 
These organizations just named do not reach the over­
whelming majority of Negroes qualified for jury service 
(R. 72-75).

In Cassell v. Texas, 339 U.S. 282, the jury commissioners 
chose jurors only from among those people whom they 
knew. They knew of no qualified Negroes to serve on the 
grand jury so none were chosen. This was held to be a 
discriminatory practice; the Court said that it was the 
duty of the commissioners to familiarize themselves with 
the qualifications of the eligible jurors of the county. And 
the report of the Judicial Conference’s Committee on the 
Operation of the Jury System commented in 1960 that:

“Insofar as federal officials secure the names of 
prospective jurors from state jury lists, and insofar 
as they uncritically accept the recommendations of 
local ‘key men,’ they run the risk of infecting the 
federal process of jury selection with the evils which 
led to [e.g. the holding in Cassell, supra.]” The Jury 
System in the Federal Courts, 26 F.R.D. 409, 428.

The jury commissioner here testified that he is only 
familiar with the Negro population in the county where 
he lives and that the clerk’s office is responsible for select­
ing the “key” people (R. 312, 314). Testimony was given 
to the effect that no effort is made by the clerk’s office 
to determine whether a cross section of the community is 
represented by the lists of names submitted by the key 
people, the lists are accepted as they are (R. 45). The 
jury commissioner suggests only a small percentage of 
the names appearing on the jury list (R. 46). Most of the 
names are secured by mail from the key people and or­



9

ganizations (R. 47). This testimony from the jury com­
missioner and the deputy clerk shows that they have not 
sought to familiarize themselves with the qualifications 
of the Negro population or to see that the Negro popula­
tion is adequately represented by the suggestors or “key 
men.”

Even though the questionnaires sent out to prospective 
jurors and the letters sent to key people and organizations 
make no mention of race, there is a defect in the system 
in that the majority of the key people are white. In 
Rabinowits v. United States (No. 21256, July 20, 1966), 
this Court held that the Constitution and laws of the 
United States place an affirmative duty on the court clerk 
and jury commissioner to develop and use a system that 
will probably result in a fair cross-section of the com­
munity being placed on the jury rolls. The fact that both 
the deputy clerk and the jury commissioner testified that 
an average of six Negroes have appeared in an average 
venire over the last ten or more years (R. 81, 308, 318), 
reflects without question that there is something drastically 
wrong with the method of selecting jurors in the Northern 
District of Alabama. The record in this cause clearly 
indicates that the jury list does not represent a fair cross- 
section of the community. Rabinoivits v. United States, 
supra. Though there is nothing inherently wrong in em­
ploying suggestors or “key men” for the purpose of ob­
taining prospective jurors, the jury commission has failed 
in its duty to see to it that the jury list is made up of a fair 
cross-section of the district. United States v. Hoffa, 205 
F. Supp. 710; Rabinowits v. United States, supra.

Purposeful discrimination on the basis of race need not 
be shown, Rabinowits, supra. More is required of jury 
officials than merely that they not intentionally and sys­
tematically exclude. In the federal system, jury officials



10

must not exclude any cognizable groups from jury lists 
through neglect or intention. Dow v. Carnegie-Illinois 
Steel Corp., 224 F.2d 414, 424. Jury commissioners are 
held to have intended the natural results which flow from 
their conduct. Rabinowitz v. United States (supra, slip 
opinion, p. 50.) Compare, Glasser v. United States, 315 
U.S. 60, 86; Smith v. Texas, 311 U.S. 128, 132; Radio 
Officers v. N.L.R.B., 347 U.S. 17, 45. In these cases the 
qualifications and methods used by the jury commissioners 
resulted in Negroes being underrepresented on list after 
list. If a fair cross-section is consistently lacking, as the 
record indicates in this case, then, without more, it is 
established that the clerk and jury commissioner have failed 
in their duty. Rabinowitz v. United States (supra, p. 52).

“The American tradition of trial by jury, considered 
in connection with either criminal or civil proceedings, 
necessarily contemplates an impartial jury drawn 
from a cross-section of the community. . . . This does 
not mean, of course, that every jury must contain 
representatives of all economic, social, religious, racial, 
political and geographical groups of the community; 
frequently such representation would be impossible.” 
Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 
cited in Ballard v. United States, 329 U.S. 187, 192.

What makes the petit jury and jury panel from which it 
was drawn suspect is the fact that the Court Clerk and 
jury commissioner have neglected the affirmative duty 
placed upon them by the Constitution and laws of the 
United States to develop and use the “key man” or sug- 
gestor system in such a way that it will result in a fair 
cross-section of the district being placed on the jury rolls.

“Tendencies, no matter how slight, toward the selec­
tion of jurors by any method other than a process



11

which will insure a trial by a representative group 
are undermining processes, weakening the institution 
of jury trial, and should be sturdily resisted. That 
the motives influencing such tendencies may be of the 
best must not blind us to the dangers of allowing any 
encroachment whatsoever on this essential right. Steps 
innocently taken may one by one lead to the irre­
trievable impairment of substantial liberties.” Glasser 
v. United States, 315 U.S. 60, 86.

In Cassell v. Texas, 339 TT.S. 282 and Hill v. Texas, 311 
U.S. 128, there was apparently no basis for finding that 
a particular group had been intentionally excluded, how­
ever, new trials were ordered because of the failure of 
the officials to obtain an adequate cross-sectional repre­
sentation. When the clerk of the court and the jury com­
missioner were appointed as judicial administrative offi­
cials, it was their duty to familiarize themselves fairly 
with the qualifications of the eligible jurors of the district 
without regard to race or color. They did not do so here 
and the result has been racial discrimination. Cassell 
v. Texas, 339 U.S. 282, 289; Scott v. Walker, 358 F.2d 561.

In Thiel v. Southern Pacific Company, 328 U.S. 217, 225, 
the Court said:

“It follows that we cannot sanction the method 
by which the jury panel was formed in this case. 
The trial court should have granted petitioner’s mo­
tion to strike the panel. That conclusion requires us 
to reverse the judgment below in the exercise of our 
power of supervision over the administration of justice 
in the Federal courts [citations omitted]. On that 
basis it becomes unnecessary to determine whether 
the petitioner was in any way prejudiced by the wrong­
ful exclusion or whether he was one of the excluded



12

class [citations omitted]. It is likewise immaterial 
that the jury which actually decided the factual issue 
in the case was found to contain at least five members 
of the laboring class. The evil lies in the admitted 
wholesale exclusion of a large class of wage earners 
in disregard of the high standards of jury selection. 
To reassert those standards, to guard against the 
subtle undermining of the jury system, requires a new 
trial by a jury drawn from a panel properly and 
fairly chosen.”

Section 1863, 28 U.S.C. specifically states that no citizen 
shall be excluded from service as grand or petit juror in 
any court of the United States on account of race or color. 
In regard to Negroes, there is no doubt that they are a 
classifiable category of our society which cannot be wrong­
fully excluded, whether intentionally or through neglect. 
Thiel v. Southern Pacific Company, 328 U.S. 217, Dow v. 
Carnegie-lUinois Steel Corporation, 224 F.2d 414.

In Dow v. Carnegie-Illinois Steel, 224 F.2d 414, 424-425, 
a third circuit case cited by this court in Rabinowits v. 
United States, supra, p. 54, the court was of the opinion 
that the present day desideratum of jury selection is the 
obtaining of lists of individuals representative of a cross- 
section of the qualified community and it seems clear that 
it is the duty of the jury officials to use methods reasonably 
designed to attain that end. Undoubtedly these officials 
have discretion in their choice of methods, but it must 
be exercised with this purpose in view. The third circuit 
went on to say that when in any court of that circuit there 
has been a failure to do this, either intentionally or 
through neglect, that court in the exercise of its super­
visory power must require a new trial so that the error 
will be obliterated. It is not significantly more difficult to 
make a finding of negligent practices resulting in exclusion



13

than to make a finding of intentional exclusion; the same 
reasons for requiring a retrial when there has been inten­
tional exclusion exist when there has been exclusion by 
reason of neglect ; and any interference in the course of 
litigation caused by enforcing such a requirement is justi­
fiable because it is neccesary to insure fair trials.

B. The list from  which the jury was drawn is not 
representative o f a cross-section o f the popu­
lation o f the Northern District o f A labam a in  that 
w om en are excluded.

Although women account for 52.59% of the population 
in the Northern District of Alabama potentially eligible 
for jury service, only 1-6 women have been seen on the 
average venire since women became eligible to sit on 
federal juries with the passage of the 1957 Civil Rights 
Act, which did away with the qualification that a woman 
must have been eligible to sit on a state jury in order to 
sit on a federal jury (R. 49, 296). No more than one 
woman has been seen serving on a petit jury since the 
passage of the 1957 Civil Rights Act, yet the jury box 
has been filled twice since that time, once in 1959 and once 
in 1963 (R. 70, 301). More frequently than not the petit 
jury has been all male (R. 301). Women account for very 
few of the key people who are asked to send in the names 
of prospective jurors (R. 315).

The random sampling test or theory suggests that the 
number of women appearing on the jury venire or list does 
not reflect a cross-section of the population of the North­
ern District of Alabama eligible for jury duty (R. 66, 67, 
68). Accordingly, the same points of law and issues dis­
cussed in 1(A), supra are applicable to the exclusion of 
women from the jury in that women are a classifiable 
category of our society which cannot be wrongfully ex­
cluded, whether intentionally or through neglect.



14

The exclusion of women from the jury is operative to 
destroy the basic democracy and classlessness of jury per­
sonnel, whether intentionally or through neglect. Ballard 
v. United States, 329 U.S. 187; Rabinowits v. United States, 
supra. It takes away from appellant the kind of jury the 
law assures him. A. three-judge court held in White v. 
Crook, 251 F. Supp. 401, 409, that women have a right 
not to be excluded as a class from jury service in Alabama 
courts.

Appellant directs the court’s attention to R. 49, 52, 70, 
71 and 301, where testimony factually similar to that cited 
in 1(A), supra was elicited from various jury officials who 
compiled the Northern District list.

C. T he Clerk o f the Court and the jury com m is­
sioner in  com piling  the jury list violated the  
federal statutory schem e by applying statutorily  
incorrect standards to prospective jurors.

In the letters to the “key” people and organizations, the 
Court Clerk asked each to send the names of persons “that 
he or she would want to have on the jury to pass on his 
rights to his life or to his property” (R. 79, 80, 310). A 
statement such as the foregoing in a letter to a “key man” 
or suggestor leaves too much room for subjectivity. This 
court speaking in Rabinowits v. United States, supra, p. 44 
said:

“But the change occasioned by the 1957 Civil Rights 
Act substantially altered the situation. The State 
statutes with all their nebulous qualifications no longer 
applied. Therefore the State statutes ceased to confer 
discretion on the Court Clerk and the jury commis­
sioner. The federal qualifications are objective and 
precise, requiring in their application no discretion on 
the part of the court clerk and the jury commissioner.



15

Since Congress only conferred discretion on the clerk 
and the commissioner by implication from the State 
statutes, their discretion ceased to exist when the State 
qualifications were entirely swept away.”

It would appear from the record that these “key” people 
are not made aware of the fact that the jury roll must 
represent a true cross-section of the community. Mr. 
Justice Frankfurter indicated the following in a separate 
opinion in Cassell v. Texas, 339 U.S. 282, 293:

“If one factor is uniform in a continuing series 
of events that are brought to pass through human 
intervention, the law would have to have the blindness 
of indifference rather than the blindness of impar­
tiality not to attribute the uniform factor to man’s 
purpose. The purpose may not be of evil intent or in 
conscious disregard of what is conceived to be a 
binding duty. Prohibited conduct may result from 
misconception of what duty requires. Such miscon­
ception I believe to be the real situation on the record 
before us.”

The additional subjective standard given to the “key men” 
has the tendency to destroy the right to serve on federal 
juries that Congress intended to confer. In Rabinowitz v. 
United States (supra, p. 48), this court said:

“The line of demarcation is clear—a person need 
only be able to read, write, speak and understand 
English, he need not enjoy that degree of excellence 
found only among the more fortunate classes of our 
society. Any attempt to gain competent jurors that 
would result in a less representative cross-section than 
a selection drawn from the statutorily qualified pool 
would destroy the “right” to serve on juries which



16

Congress intended to confer, as well as destroy the 
broad based cross-section Congress has designated 
for federal juries.”

See also, Thiel v. Southern Pacific Company, 328 U.S. 217, 
220; Ballard v. United States, 329 U.S. 187, 193; Glasser 
v. United States, 315 U.S. 60, 86.

Section 1861, of Title 28, is not just a minimum standard 
vesting discretion in the Court Clerk and jury commis­
sioners to set higher standards or to vest the “key men,” 
who are delegatees of the Court Clerk and jury commis­
sioner with such a subjective standard as was given to 
them in the letter soliciting names of prospective jurors 
(R. 80, 310). Rabinowits v. United States, supra. The 
intent to adopt uniform federal juror qualifications is 
clearly demonstrated by the 1957 Civil Rights Act, subject 
only to certain adjustments within the discretion of the 
district judge. The situation would be impossible if each 
set of jury officials were free to construct their own 
qualifications. Rabinowits v. United States, supra, p. 34. 
H.R. 147653 passed by the House but not the Senate, which 
would have amended Title 28 U.S.C. §§1861 and 1863 
through 1869, appears to have been designed to bring about 
more uniformity in the federal jury system and to divest 
the jury commission of a great deal of its discretion in 
choosing persons to serve on juries, thereby making it less 
possible for subjective standards to be used by the jury 
commission and others vested with authority in this regard.

3 See appendix. Though the bill failed of passage in the Senate, it 
commanded a majority there as the votes on closure indicated. These 
provisions are set out in the appendix to provide a standard—derived 
from the most recent Congressional expression on the subject—by which 
this Court can measure the performance of the jury officials involved here.



17

CONCLUSION

For the foregoing reasons the verdict should be set aside 
and a new trial granted after a new jury list has been 
drawn without discrimination, intentionally or through 
neglect, as to race, color or sex.

Respectfully submitted,

O scar W . A dams, J r .
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

D e m e t r iu s  C. N ew to n  
408 North 17th Street 
Birmingham, Alabama 35203

N orm an  C. A m aker  
J ack  Greenberg

10 Columbus Circle
New York, New York 10019

By:
N orman  C. A m aker



APPENDIX



APPENDIX

Introduced by: Congressman Emanuel 
Celler, May 2, 1966

Passed by: The House of Representatives 
89th Congress, 2nd Session

H. R. 1 4 7 6 5 , T itle I (In  Part)

Chapter 121—Juries; Trial by Jury §§ 1861-1870

Ҥ1861. Declaration of policy
“It is the policy of the United States that all qualified 

persons shall have the opportunity to serve on grand 
and petit juries in the district courts of the United 
States and shall have an obligation to serve as jurors 
when summoned for that purpose.

“ § 1862. Discrimination prohibited
“No person or class of persons shall be denied the 

right to serve on grand and petit juries in the district 
courts of the United States on account of race, color, 
religion, sex, national origin, or economic status.

Ҥ 1863. Jury commission
“(a) There shall be a jury commission for each dis­

trict court of the United States composed of the clerk 
of the court and a citizen appointed by the court as a 
jury commissioner: Provided, That the court may es­
tablish a separate jury commission for one or more 
divisions of the judicial district by appointing an addi­
tional citizen as a jury commissioner to serve with the 
clerk for such division or divisions. The jury commis­
sioner shall during his tenure in office reside in the 
judicial district or division for which appointed, shall



2a

not belong to the same political party as the clerk serv­
ing with him, and shall receive $16 per day for each 
day necessarily employed in the performance of his 
duties.

“(b) In the performance of its duties, the jury com­
mission shall act under the direction and supervision 
of the chief judge of the district.

Ҥ 1864. Master jury wheel
“(a) Each jury commission shall maintain a master 

jury wheel and shall place in the master wheel names 
selected at random from the voter registration lists of 
persons residing in the judicial district or division it 
serves: Provided, That the judicial council of the cir­
cuit, with such advice as the chief judge of the district 
may offer, shall prescribe some other source or sources 
of names for the master wheel in addition to the voter 
registration lists where necessary, in the judgment of 
the council, to protect the rights secured by section 1862 
of this title.

“ (b) The jury commission shall place in the master 
wheel the names of at least 1 per centum of the total 
number of persons listed on the voter registration lists 
for the district or division (or, if sources in addition to 
voter registration lists have been prescribed pursuant 
to subsection (a), at least 1 per centum of the total num­
ber of persons of voting age residing in the district or 
division according to the most recent decennial census): 
Provided, That in no event shall the jury commission 
place in the master wheel the names of fewer than two 
thousand persons.

“(c) The chief judge of the district shall prescribe, 
by rule, definite and certain procedures to be followed



3a

by the jury commission in making the random selection 
of names required by subsections (a) and (b) of this 
section.

“(d) State, local, and Federal officials having cus­
tody, possession, or control of voter registration lists 
or other appropriate records shall make such lists and 
records available to the jury commission for inspec­
tion, reproduction, and copying at all reasonable times 
as the commission may deem necessary and proper for 
the performance of its duties under this title. The dis­
trict courts shall have jurisdiction upon application by 
the Attorney General to compel compliance with this 
subsection by appropriate process.

“(e) The master jury wheel shall contain names of 
persons residing in all counties, parishes, or similar 
political subdivisions within the judicial district or 
division.

“(f) The jury commission shall in accordance with 
this section (1) from time to time, as necessary, place 
additional names in the master wheel and (2) between 
November 15 and December 31 of each even-numbered 
year empty and refill the master wheel.

Ҥ 1865. Drawing of names from the master jury wheel
“(a) From time to time as necessary the jury com­

mission shall publicly draw from the master jury wheel 
the names of as many persons as may be required for 
jury service, prepare an alphabetical list of the names 
drawn, which list shall not be disclosed to any person 
except pursuant to sections 1867 and 1868 of this title 
and summon by certified mail the persons whose names 
are drawn. Each person whose name is drawn, unless 
he claims exemption from jury service pursuant to sec­



4a

tion 1872 of this title and subsection (b) of this sec­
tion, shall appear before the clerk and fill out a juror 
qualification form to be prescribed by the Administra­
tive Office of the United States Courts in consultation 
with the Attorney General. The form shall elicit his 
name, address, age, sex, education, race, religion, occu­
pation, and citizenship and whether he has any physi­
cal or mental infirmity, is able to read, write, speak, 
and understand the English language, and has been con­
victed in any State or Federal court of record of a crime 
punishable by imprisonment for more than one year and 
has not had his civil rights restored by pardon or am- 
nesty. The clerk shall examine the form to determine 
whether it is filled out completely and responsively and 
shall call any omissions or apparent errors to the atten­
tion of such person who shall make such corrections or 
additions as may be necessary. If any person sum­
moned is unable to fill out the form, the clerk shall do 
it for him and indicate on the form the fact that he 
has done so and the reason. Except as provided in sub­
section (b) of this section, any person summoned who 
fails to appear as directed shall be ordered by the court 
forthwith to appear and show cause for his failure to 
comply with the summons. Any person who fails to ap­
pear pursuant to such order or who fails to show good 
cause for noncompliance with the summons may be 
fined not more than $100 or imprisoned not more than 
three days, or both.

“ (b) Any person summoned who is exempt from jury 
service pursuant to section 1872 of this title may state 
the basis for his exemption in the space provided on 
the summons and return the summons duly signed to 
the clerk by mail. Any person who willfully misrepre­
sents his exemption from jury service on a summons



5a

may be fined not more than $100 or imprisoned not 
more than three days, or both.

Ҥ 1866. Qualifications for jury service
“(a) The jury commission shall determine solely on 

the basis of information provided on the juror quali­
fication form or the returned summons whether a per­
son is qualified for or exempt from jury service: Pro­
vided, That such determination shall be made by the 
court if other objective evidence obtained by the jury 
commission indicates that a person is not qualified pur­
suant to subparagraphs (1), (3), or (4) of subsection 
(b) hereof. The jury commission shall enter such de­
termination in the space provided on the juror qualifica­
tion form and the alphabetical list of names drawn from 
the master jury wheel. If a person did not appear in 
response to a summons, such fact shall be noted on 
said list. Whenever a person is determined to be not 
qualified for jury service, the jury commission shall 
note on the space provided on the juror qualification 
form the specific ground of disqualification.

“ (b) In making such determination the jury commis­
sion shall deem any person qualified to serve on grand 
and petit juries in the district court unless he—

“(1) is not a citizen of the United States twenty- 
one years old who has resided for a period of one 
year within the judicial district;

“(2) is unable to read, write, speak, and under­
stand the English language;

“(3) is incapable, by reason of mental or physical 
infirmity, to render efficient jury service; or

“(4) has been convicted in a State or Federal court 
of record of a crime punishable by imprisonment for



6a

more than one year and his civil rights have not been 
restored by pardon or amnesty.

“(c) The jury commission shall maintain a qualified 
juror wheel and shall place in such wheel names of per­
sons determined to be qualified as jurors. Prom time to 
time, the jury commission shall publicly draw from the 
qualified juror wheel such number of names of persons 
as may be required for assignment to grand and petit 
jury panels. The jury commission or the clerk shall 
prepare a separate list of names of persons assigned 
to each grand and petit jury panel.

“ § 1867. Challenging compliance with selection pro­
cedures

“(a) In criminal cases, prior to the introduction of 
evidence at trial, the defendant may move to dismiss 
the indictment or stay the proceedings against him on 
the ground of failure to comply with sections 1864, 1865, 
or 1866 of this title. The defendant shall be entitled to 
present in support of such motion the testimony of the 
jury commission together with other evidence and, 
where there is some evidence that there has been a 
failure to comply with sections 1864, 1865, or 1866, any 
relevant records and papers used by the jury commis­
sion in the performance of its duties which are not pub­
lic or otherwise available. If the court determines that 
there has been a failure to comply with sections 1864, 
1865, or 1866, the court shall dismiss the indictment or 
stay the proceedings pending the selection of a petit 
jury in conformity with this title.

“(b) In civil cases, prior to the introduction of evi­
dence at trial, any party may move to stay the proceed­
ings on the ground of failure to comply with sections



7a

1864, 1865, or 1866 of this title. The moving party shall 
be entitled to present in support of such motion the 
testimony of the jury commission together with other 
evidence and, where there is some evidence that there 
has been a failure to comply with sections 1864, 1865, 
or 1866, any relevant records and papers used by the 
jury commission in the performance of its duties which 
are not public or otherwise available. If the court de­
termines that there has been a failure to comply with 
sections 1864, 1865, or 1866, the court shall stay the 
proceedings pending the selection of a jury in conform­
ity with this title.

“(c) The procedures prescribed by this section shall 
be the exclusive means by which a person accused of a 
Federal crime or a party in a civil case may challenge 
any jury in his case on the ground that such jury was 
not selected in conformity with sections 1864, 1865, or 
1866 of this title. Nothing in this section shall pre­
clude any persons or the United States from pursuing 
any other remedy, civil or criminal, which may be 
available for the vindication or enforcement of any 
law prohibiting discrimination on account of race, 
color, religion, sex, national origin, or economic status 
in the selection of persons for service on grand or 
petit juries.

“(d) The contents of any records or papers pro­
duced pursuant to subsections (a) or (b) of this sec­
tion shall not be disclosed, except as may be neces­
sary in the preparation or presentation of the case, 
until after the master jury wheel has been emptied 
and refilled pursuant to section 1864(f) of this title 
and all persons selected to serve as jurors before 
the master wheel was emptied have completed such 
service: Provided, That the parties in a case shall



8a

be allowed to inspect, reproduce and copy such records 
or papers at all reasonable times during the pendency 
of the case. Any person who discloses the contents 
of any record or paper in violation of this subsection 
may be fined not more than $1,000 or imprisoned not 
more than one year, or both.

‘ ‘ § 1868. Maintenance and inspection of records
“After the master jury wheel is emptied and refilled 

pursuant to section 1864(f) of this title, and after all 
persons selected to serve as jurors before the master 
wheel was emptied have completed such service, all 
of the records and papers compiled and maintained 
by the jury commission before the master wheel was 
emptied shall be preserved by the commission in the 
custody of the clerk for four years or for such longer 
period as may be ordered by a court and shall be 
available for public inspection.

1<§ 1869. Exclusion from jury service
“(a) Except as provided in section 1872 of this title, 

no person or class of persons shall be excluded, ex­
cused or exempt from service as jurors: Provided, 
That any person summoned for jury service may be 
(1) excused by the court for not more than six months 
at a time upon a showing of unusually severe hard­
ship or (2) excluded by the court upon (i) peremptory 
challenge as provided by law or (ii) a finding that 
such person may be unable to render impartial jury 
service or that his service as a juror would disrupt 
the proceedings. Whenever a person is excused or 
excluded from jury service, the jury commission shall 
note in the space provided on his juror qualification 
form the specific ground of excuse or exclusion.



9a

“(b) In any two-year period, no person shall be re­
quired to (1) serve as a petit juror for more than 
thirty calendar days, except when necessary to com­
plete service in a particular case, or (2) serve on more 
than one grand jury, or (3) serve as both a grand and 
petit juror.

“ § 1870. Definitions
“For purposes of this chapter—

“(a) ‘clerk’ and ‘clerk of the court’ shall mean the 
clerk of the United States district court or any 
deputy clerk.

“(b) ‘voter registration lists’ shall mean the offi­
cial records maintained by State or local election 
officials of persons registered to vote in the most 
recent general election for candidates for Federal 
office or, in the case of a State which does not require 
registration as a prerequisite to voting, such other 
official lists of persons qualified to vote in such elec­
tion. The term shall also include the list of eligible 
voters maintained by any Federal examiner pursuant 
to the Voting Rights Act of 1965 where the names 
on such list have not been included on the lists main­
tained by the appropriate State or local officials.

“(c) ‘division’ shall mean one or more divisions 
of a judicial district established by statute, and, in 
judicial districts where no divisions are established 
by statute, shall mean such counties, parishes, or 
similar political subdivisions surrounding the places 
where court is held as the chief judge of the district 
shall determine.

“(d) ‘district court of the United States’, ‘district 
court’, and ‘court’ shall mean courts constituted un­



10a

der chapter 5 of title 28, United States Code: Pro­
vided, That for purposes of sections 1861, 1862, 
1867, and 1869 of this chapter, these terms shall in­
clude the District of Columbia Court of General 
Sessions and the Juvenile Court of the District of 
Columbia.”



Certificate of Service

This is to certify that a copy of Appellant’s Brief and 
appendix thereto was served upon Ghiy Sparks, Esquire, 
Commercial National Bank Building, Anniston, Alabama, 
attorney for appellees, via United States air mail, postage 
prepaid, this 3rd day of November, 1966.

Attorney for Appellant



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