Jackson v. United States Supplemental Brief for Appellants

    Ilf T H E

Mmtzb (Emtrt nf Appeals
F ob t h e  F if t h  C ircuit

No. 21,345

E lza L eslye J ackson, R obert T homas, S amuel B. W ells , 
S later H u nter  K in g , a n d  T homas C. Ch atm on ,

Appellants,

U nited  S tates of A merica,
Appellee.

A PPEA L S FR O M  T H E  U N IT E D  STA TES D ISTR IC T  COURT 

FO R  T H E  M ID D LE D ISTR IC T  O F GEORGIA

SUPPLEMENTAL BRIEF FOR APPELLANTS

J ack Greenberg 
F rank  H. H effron  

10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell

859% Hunter Street, N.W. 
Atlanta, Georgia

C. B. K ing

211 South Jackson Street 
Albany, Georgia

Attorneys for Appellants



In  t h e

dour! n! Appeal#
F oe t h e  F if t h  Circuit

No. 21,345

E lza L eslye J ackson, R obert T homas, S amuel B. W ells, 
Slater H u nter  K ing , a n d  T homas C. Ch atm on ,

—v.—
Appellants,

U nited  S tates of A merica,
Appellee.

appeals from t h e  un ited  states district court

FO R T H E  M ID D LE D ISTR IC T  O F GEORGIA

SUPPLEMENTAL BRIEF FOR APPELLANTS

Statement

This ease was briefed by both parties and argued on 
April 27, 1965, before a panel consisting of Chief Judge 
Tuttle, Judge Rives, and Judge Bell. On September 23, 
1965, it was set down for reargument en banc with four 
other cases presenting similar issues: Rabinowitz v. United 
States, No. 21256; Scott v. Walker, No. 20814; Davis v. 
Davis, No. 21976; Billingsley v. Clayton, as President of the 
Jury Board of Jefferson County, Alabama, No. 22304. At 
that time the court indicated that supplemental briefs would 
be appropriate.



2

ARGUMENT
In a District Willi a History and Continuing Pattern 

of Segregation, a Jury List Compiled on the Basis of 
State Jury Lists With Almost No Negroes and the Recom­
mendations of White Suggesters Does Not Satisfy Due 
Process of Law or Federal Standards of Fairness.

As pointed out in appellants’ original brief, the jury 
commission compiled the jury list using two basic sources, 
the Georgia state jury lists for the 18 counties in the Macon 
Division and the recommendations of men who suggested 
persons for jury service. The use of state jury lists was 
patently improper. In the Report of the Judicial Conference 
Committee on the Operation of the Jury System, 26 F. R. D. 
409 (1960), the Committee stated:

Insofar as federal officials secure the names of prospec­
tive 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 the hold­
ings [of the United States Supreme Court invalidating 
certain state jury selection methods].

In the Knox Report, the recommendation was made 
that the use of state jury lists should be discontinued: 
The committee entertains the thought that state jury 

lists should not be used as a source for names of jurors 
o serve in the Federal courts. In the early days of 
he Republic, when this procedure was required by Fed­
eral law, the practice was found to he harmful, and the 
atute establishing the office of Federal jury commis-



3

11 sioner was enacted in an attempt to overcome it. The 
\ ' dangers are as great today as they were when the pro- 
' cedure was abandoned.” This recommendation has not 

i. been followed in all districts. It is now renewed. 26 
' F. R. D. 428.

In compiling the 1959 jury list, the commission ignored 
this advice and turned to the state lists as a basic source of 
names to supplement the previous federal list (R. 108, 142). 
In several of the counties with the greatest percentage of 
Negroes in the population, there were no Negroes at all on 
the state jury lists, and over-all the percentage of Negroes 
on the state lists was about two per cent (R. 86, 94-95).

The jury commission also relied heavily on recommenda­
tions of their friends and associates, almost all of whom 
were white. Brief for Appellants, pp. 6-8. The 1960 Judicial 
Conference Report states:

The key-man system 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.

A large number of districts make a positive effort 
to obtain adequate representation of various economic 
and social groups at the source, either by key-men, 
clerks or jury commissioners, based on the occupation, 
place of residence, and economic and social status of 
prospective jurors. Race or national origin is con­
sidered only in order to obtain a representative cross 
section of the population. 26 F. R. D. 470.

As the Judicial Conference Report makes clear, the key 
man or suggester system will produce a representative jury



4

only if the key men are of diverse backgrounds. In a com­
munity with pervasive racial segregation, a white jury com­
mission cannot be expected to turn up an appreciable 
number of Negro jurors by asking their white friends. 
According to the Southern Education Reporting Service 
Statistical Summary of School Segregation-Desegregation 
in the Southern and Border States (1964-65), only Bibb 
County of the 18 counties in the Macon Division had any 
public school desegregation at all before this year. Segre­
gation is also prevalent in Bibb County. See Evans v. New­
ton, 220 Da. 280,138 S. E. 573 (1964), cert, granted 380 U. S. 
971. Mr. Cowart, Clerk of the Middle District, acknowl­
edged that his friends were predominantly white (R. 157- 
58). This is only one aspect of the separation that exists 
between the white and Negro communities in these counties. 
Social contacts between the races are necessarily limited, 
and all too often the suggesters called upon by the jury 
commission share the low opinion of Negroes stated by the 
jury commissioner in this case (R. 177).

Whatever the system chosen by jury commissioners for 
selecting jurors there can be no place in the federal courts 
for jury selection methods which tend naturally to exclude 
Negroes. If organizational lists are to be consulted, both 
Negro and white organizations must be consulted. If the 
jury commissioners use suggesters, they must ask Negroes 
as well as whites to suggest names. If a possible source, 
such as state jury lists or voter lists is completely or virtu­
ally without Negroes, it is not an appropriate source. While 
it may be difficult for a jury commission to produce a per­
fect cross section of the community in all respects, where a 
significant percentage of the population is Negro and segre­



5

gation is a fact, there must be a fair representation of Ne­
groes among the sources consulted by jury commissioners.

Respectfully submitted,

J ack Greenberg 
F rank  H . H effron  

10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell

859% Hunter Street, N.W. 
Atlanta, Georgia

C. B. K ing

211 South Jackson Street 
Albany, Georgia

Attorneys for Appellants



CERTIFICATE OF SERVICE

This is to certify that I have served the foregoing Sup­
plemental Brief for Appellants upon Floyd M. Buford, 
United States Attorney, and Wilbur D. Owens, Jr., Assist­
ant United States Attorney, Box 118, Macon, Georgia, at­
torneys for appellee, and upon Ernest Goodman, 3220 
Cadillac Tower, Detroit 26, Michigan, and Samuel Rosen- 
wein, 220 No. California Street, Burbank, California, at­
torneys for amicus curiae, National Lawyers Guild, by 
mailing copies to them at the above addresses, air mail, 
postage prepaid.

This day of October, 1965.

Attorney for Appellants

/

A '



r\

38