Chinn v. Mississippi Brief for Appellant

    In the

Intfrii (Emu*! nf
F ob th e  F if t h  Circuit 

No. 22233

C. 0 .  Ch in n ,

S tate of M ississippi,

Appellant,

Appellee.

A PPE A L FRO M  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  SO U TH E R N  D ISTRICT OF M ISSISSIPPI

BRIEF FOR APPELLANT

Carsie H all 
J ack  Y oung

115% North Farish Street 
Jackson, Mississippi 39201

R . J ess B rown

125% North Farish Street 
Jackson, Mississippi

J ack  Greenberg 
M elyyn  Z arr

10 Columbus Circle 
New York, New York 10019

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Appellant



I N D E X
PAGE

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

Specification of Error ....... ....     3

A rgum ent  :

Appellant’s Case Is Removable Under 28 U. S. C. 
§1443(1) ....................................................................... 4

Co n c l u s io n ............................         7

T able of Cases

Louisiana v. United States, 380 U. S. 145 (1965) .... 5

Robinson v. Florida, 378 U. S. 153 (1964) _____ _____ 6

Strauder v. West Virginia, 100 U. S. 303 (1880) ____ 4, 6

United States v. Mississippi, 380 U. S. 128 (1965) .......  5
United States v. Mississippi, 229 F. Supp. 925, S. D.

Miss. 1964, rev’d 380 U. S. 128 (1965) ............... .......  6
United States v. Mississippi, 380 U. S. 128 (1965) .... 5

F ederal and S tate S tatutes and 
Constitutional P rovisions

28 U. S. C. §1443(1) .......................................... .......... .3,4,6

La. Const., Art. VIII, § l(d ) ............................................  5

Miss. Const., §244 ........... ............. ....................................  5

Miss. Code Ann., 1942, §1762 (Supp. 1964)   ___  4

Miss. Code Ann., 1942, §1762-01 (Supp. 1964) ....... . 4



u

O ther  A u thority
page

Amsterdam, Criminal Prosecutions Affecting Feder­
ally Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. Rev. 793 (1965) ..........................



In th e

States Glmtrl of Appeals
F o b  t h e  F i f t h  C i r c u i t  

No. 22233

C. 0 .  Ch in n ,
Appellant,

—v.—

S t a t e  o f  M i s s i s s i p p i ,

Appellee.

APPE A L FROM  T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  SO U TH E R N  DISTRICT OF M ISSISSIPPI

BRIEF FOR APPELLANT

Statement of the Case

On or about March 4, 1964, appellant was arrested while 
walking along a street in Canton, Mississippi (R. 2). 
Appellant was searched and then charged with carrying 
a concealed weapon (a fish knife) (R. 2). He was released 
on $1,000 bail pending grand jury action.

Appellant was indicted by the grand jury of Madison 
County at its September, 1964 term (R. 7-8). Thereupon 
appellant moved to quash the indictment against him on 
the ground that Negroes were systematically excluded from 
service on the grand and petit juries in Madison County 
and from the grand jury which indicted him (R. 9-10).



2

Appellant also moved to quash the venire summoned to 
appear as petit jurors at that term of the Circuit Court of 
Madison County on the ground of systematic exclusion of 
Negroes therefrom (R. 10-11). Appellant also moved for 
a change of venue because of community hostility against 
civil rights workers (R. 12-14).

Appellant’s three motions were consolidated for hearing 
and heard before the Circuit Court of Madison County, 
Leon P. Hendrick, Circuit Judge, on September 25, 1964 
(R. 27-144). All of appellant’s motions were overruled by 
Judge Hendrick that day (R. 142).

Thereafter, on September 28, 1964, prior to his trial in 
the Circuit Court, appellant removed the prosecution to 
the United States District Court for the Southern District 
of Mississippi (R. 2-6). Appellant alleged in his removal 
petition that his arrest and prosecution were carried on 
with the purpose and effect of harassing and punishing 
him for his civil rights activities (R. 3). Appellant also 
raised as a ground for removal the systematic exclusion 
of Negroes from juries in Madison County under a policy 
of the State of Mississippi of discrimination against 
Negroes (R. 4-5). On December 28, 1964, appellee moved 
to remand the prosecution to the Circuit Court of Madison 
County on the ground that the case was not properly re­
movable under 28 U. S. C. §1443 (R. 22-23). Thereafter, 
on December 30, 1964, it was stipulated by counsel for 
appellant and counsel for appellee that the transcript of 
testimony taken in the Circuit Court of Madison County 
on appellant’s three motions (R. 27-144) be considered by 
the District Court as the evidence offered by the parties



3

in support of, and in opposition to, appellee’s motion to 
remand (E. 25-26).

The evidence thus submitted to and considered by the 
District Court revealed that appellant was known in the 
community as a civil rights worker (E. 39, 93-94, 115, 120, 
123, 125, 130, 133), that only registered voters were sum­
moned to serve as jurors (E, 47-48, 64, 69, 75, 109), that 
few, if any, Negroes were ever summoned to serve as jurors 
(E, 41, 49-50, 58, 68, 71, 82-84, 96-97, 99-100, 103, 113), and 
that there was hostility in the community toward civil 
rights workers, particularly toward appellant (E. 44-45, 
47, 115, 121, 123, 126, 134).

On January 2, 1965, United States District Judge Harold 
Cox entered a letter opinion holding that the case should 
be remanded to the Circuit Court of Madison County. 
Judge Cox stated as his reasons that appellant was not 
known in the community as a civil rights worker (R. 144), 
that “ [j Jurors were selected at the September, 1964 term 
of the State Court in strict accordance with state law” (E. 
145), and that the “ lists of prospective petit jurors and 
grand jurors were selected by the Board of Supervisors at 
random from a list of qualified electors which contained 
some negroes” (E. 145). Judge Cox’s order of remand was 
entered January 11, 1965 (E. 146-147); timely notice of 
appeal was filed January 14, 1965 (E. 148), and that day 
Judge Cox entered an order staying his remand order for 
30 days pending appeal to this Court (E. 148).

Specification of Error

The court below erred in holding that appellant’s case 
was not removable under 28 U. S. C. §1443(1).



4

ARGUMENT

Appellant’s Case Is Removable Under 
28 U. S. C. §1 4 4 3 (1 )

Under the test of removability enunciated in Strauder 
v. West Virginia, 100 U. S. 303 (1880), appellant’s case is 
removable under 28 U. S. C. §1443(1). Appellant is denied 
and cannot enforce in the state courts his right to a trial 
by a jury from which Negroes are not discriminatorily 
excluded, and this denial is traceable to statutory and con­
stitutional provisions of the State of Mississippi.

Miss. Code Ann., 1942, §1762 (Supp. 1964), taken in 
conjunction with §1762-01, effectively limits jury service to 
qualified electors of the State of Mississippi.1

1 Miss. Code Ann., 1942, §1762 (Supp. 1964) :
Every male citizen not under the age of twenty-one (21) years, 
who is either a qualified elector, or a resident freeholder of the 
county for more than one year . . .  is a competent juror . . .

Miss. Code Ann., 1942, §1762-01 (Supp. 1964) :
Resident freeholders not qualified electors—competent jurors 

by court order.
Whenever any judge of the circuit court . . . determines in 
his discretion that persons who are then, and have been for 
more than one (1) year previously thereto, a resident free­
holder of any county in his district though not a qualified 
elector of that county, should be made and constituted a per­
son qualified to serve as a competent juror of the county of 
that person’s residence, but who is otherwise qualified, the said 
circuit judge is authorized to make and enter an order . . . 
upon the minutes of the circuit court of such county to that 
effect and thereupon all persons in that county who are and 
have been such a resident freeholder shall thereupon be quali­
fied, in accord with the terms of this act, to serve upon any 
jury in that county . . . Laws, 1964, ch. 327, §1.

In sum, unless a court order is issued by a circuit judge, only 
electors qualify as jurors.



5

Thus, the Mississippi statutes governing the qualifica­
tions of jurors stand or fall with the Mississippi constitu­
tional provisions governing the qualifications of electors. 
Miss. Const., §244 provides, in relevant part:

Every elector shall, in addition to the foregoing quali­
fications be able to read and write any section of the 
Constitution of this State and give a reasonable inter­
pretation thereof to the county registrar. He shall 
demonstrate to the county registrar a reasonable 
understanding of the duties and obligations of citizen­
ship under a constitutional form of government. . . .

By force of the holding in Louisiana v. United States, 
380 U. S. 145 (1965), the constitutional interpretation test 
prescribed above is void on its face. In Louisiana v. United 
States, the United States Supreme Court struck down 
Louisiana’s constitutional interpretation test for voter reg­
istration because it “vested in the voting registrars a vir­
tually uncontrolled discretion as to who should vote and 
who should not” (380 U. S. at 150). The Louisiana law 
invalidated provided that a voter registration applicant 
“be able to understand and give a reasonable interpreta­
tion of any section of [the United States or Louisiana] 
Constitution when read to him by the registrar.” La. Const. 
Art. VIII, § l(d ).

On its face, Mississippi’s constitutional interpretation 
test is fully as bad as Louisiana’s,2 and with it falls 
Mississippi’s juror qualification statutes.

2 Indeed, only the posture of the Government’s case challenging 
Miss. Const., §244 prevented the Supreme Court from invalidating 
it the same day it decided Louisiana v. United States. United States 
v. Mississippi, 380 U. S. 128, 143 (1965).



6

Additionally, appellant’s ease is removable under Strau- 
der v. West Virginia, because Mississippi’s policy of ex­
clusion of Negroes from juries is supported by a panoply 
of state statutes commanding discrimination against Ne­
groes. These statutes are collected in the opinion of Circuit 
Judge Brown, dissenting in United States v. Mississippi, 
229 F. Supp. 925, 984, footnote 33 (S. D. Miss. 1964), rev’d 
380 U. S. 128 (1965). Because the statutes set out by Judge 
Brown have “ become involved to such a significant extent 
in bringing about” exclusion of Negroes from juries in 
Mississippi, that exclusion is attributable to state statutory 
law under the Strauder test. Robinson v. Florida, 378 U. 8. 
153, 156-57 (1964).3

, 3 Although appellant does not press it here, he wishes to preserve 
his contention that a prima facie showing of systematic exclusion 
of Negroes from juries is sufficient to support removal under 
28 U. S. C. §1443(1). See Amsterdam, Criminal Prosecutions 
Affecting Federally Guaranteed Civil Rights: Federal Removal 
and Habeas Corpus Jurisdiction to Abort State Court Trial 113 
U. Pa. L. Rev. 793 (1965).



7

CONCLUSION

For the foregoing reasons, the order of the district court 
remanding appellant’s case should be reversed.

Respectfully submitted,

Carsie H all 
J ack  Y oung

115% North Farish Street 
Jackson, Mississippi 39201

R . J ess B rown

1251/2 North Farish Street 
Jackson, Mississippi

J ack  Greenberg 
M elvyn  Z arb

10 Columbus Circle 
New York, New York 10019

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Appellant



8

Certificate of Service

This is to certify that on May , 1965, I served a copy 
of the foregoing Brief for Appellant upon the attorneys for 
appellee listed below, by mailing copies thereof to them by 
United States mail, postage prepaid:

Percy Parker, Esq.
County Attorney of Madison County 

Levy Building
Canton, Mississippi

William L. Waller, Esq.
P. O. Box 1261 

Jackson, Mississippi

Attorney for Appellant