Memorandum from Lani Guinier to Steve Ralston
Correspondence
June 11, 1985
Cite this item
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Brief Collection, LDF Court Filings. Salary v. Wilson Record on Appeal, 1968. ffd85a8c-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/60386667-231e-4819-9a76-c71592ae9c71/salary-v-wilson-record-on-appeal. Accessed August 19, 2025.
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I n t h e
luttrii î tatPB Court of Appeals
F oe the F ifth Circuit
No. 25978
R ev. J. A . S alary,
Appellant,
—v.—
J ohn C. W ilson , J e ., et al.,
Appellees.
APPEAL FROM T H E U N ITED STATES DISTRICT COURT
FOR TH E N O R TH E R N DISTRICT OF ALABAM A
RECORD ON APPEAL
Norman C. A maker
Jack Greenberg
10 Columbus Circle
New York, New York 10019
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Appellant
I N D E X
Amended Motion for Preliminary Injunction ............. 13
Order of Court Denying Motions to Dismiss .............. 17
Answer ................................................................................ 18
Order of Court Granting Plaintiffs’ Motion to Produce 22
Plaintiffs’ Request for Admission of Facts .................. 23
Defendants’ Response to Request for Admission of
Facts ............................ 26
Order of Court Granting Plaintiffs’ Motion to Produce 29
Stipulation .......................................................................... 30
Notice of Taking Deposition of John S. de Cani........... 41
Interrogatories to John S. de Cani ............................... 42
Notice of Motion for Protective Order, etc. ... ..... ......... 46
Objections to Proposed Interrogatories ........................ 48
Deposition on Written Interrogatories of John S.
de Cani ............................................................... 50
Plaintiffs’ Pre-Trial Memorandum in Support of
Right to Injunctive Relief .......... 58
Judgment ............................................................................ 68
Findings of Fact, Conclusions of Law and Memoran
dum Opinion ...... 69
PAGE
Amended Complaint ......................................................... 1
Final Judgment and Decree ........................................... 82
Transcript of Hearing dated January 16, 1968 ........... 83
Motion to Exclude Testimony................................... 183
Notice of Appeal ............................................................... 347
Certificate of Service ....................................................... 348
Clerk’s Certificate ............................................................. 349
Designation of Contents of Record ............................... 350
Certificate of Service ....................................................... 352
Testimony
Plaintiffs’ Witnesses:
Johnny S. Dawson—
Direct ................................................................... 87
William Hawes—
Direct ................................................................... 90
George H. Yarbrough, Jr.—
Direct ........................ 93
Bonds Lee Henderson—
Direct ............................................................ 95
E. J. Oliver—
Direct ................................................................... 98
Hugh C olston-
Direct .................................................................... 101
ii
PAGE
I ll
W. L. Freeman—
Direct ................................................................... 103
J. A. Salary—
Direct ............................................................. -.... 107
Cross ..................... -........................................ -.... HO
Redirect ............................................................... I l l
Elmore McAdory—
Direct ................................................................... 115
Cross ..................................................................... 128
Arthur J. Jones—
Direct ................................................................... 131
Cross ..................................................................... 132
Redirect ............................................................... 133
James F. Cheatwood—
Direct ......................... 134
Edward L. B a ll -
Direct .................................................................. 140
Cross ......................................................... ........... 142
Gardner F. Goodwin, Jr.—
Direct ................................. ............................... . 145
Cross ......... 148
Redirect ...... 155
Bill R. Whitley—
Direct ..................................... 157
Cross ..................................................................... 172
Redirect ...... 176
PAGE
IV
E xhibits
Plaintiffs’ Exhibits P̂age'
1— List of Graduates........................... 89
2— Documents ............................... 92
3— Documents .. 95
4— Documents ..................................... 97
5— Documents ...................................... 99
6— Documents ...................................... 102
7— Deposition of Mary E. Blackwell .... 114
8— Deposition of Euth P. Cummings .... 114
9— Deposition of Betty Jo Harbison .. 114
10— Deposition of Grace M. H icks..... 114
11— Deposition of Edna Earl J o lly ... 114
12— Deposition of Patsy Ann J o lly .. . 114
13— Deposition of Joy Ann Lance ..... 115
14— Deposition of Mary Prances Myrex 115
15— Deposition of George S. W hite... 115
16— Deposition of Elmore McAdory .... 127
17— Letter dated July 1, 1966 ........... 164
18— Deposition of Bill E. Whitley ..... 170
19— Deposition of Bill E. Whitley ..... 170
20— Deposition of John C. Wilson ..... 170
21— Deposition of Elmore McAdory .... 171
22— Deposition of Elmore McAdory .... 183
Printed
Page
*
*
*
*
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*
187
202
#
212
224
*
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237
267
316
335
*
* Not printed.
I n the
Unttefc States listrirt Court
F ob the Northern District oe A labama
(S outhern Division)
Civil Action No. CA-66 92
A rthur J. J ones, 5705-Court E, Fairfield, Alabama; M il
lard Davis, 250-52nd Street, Fairfield, Alabama; L o
renzo Cates, 304-52nd Street, Fairfield, Alabama; Rev
erend J. A. Salary, 311-52nd Street, Fairfield, Alabama,
on behalf of themselves and all others similarly situ
ated,
Plaintiffs,
—v.—
John C. W ilson, J r., Jefferson County Courthouse, Bir
mingham, Alabama, as President of the Jury Board
of Jefferson County, Alabama; W alter E. P almer, as
Vice-President of the Jury Board of Jefferson County,
Jefferson County Courthouse, Birmingham, Alabama;
George W . Clayton, as Associate Member of the Jury
Board of Jefferson County, Alabama; B ill R. W hit
ley, as Clerk of the Jury Board of Jefferson County,
Alabama; Elmore McA dory, as Clerk of Tenth Judi
cial Circuit, Jefferson County, Alabama, Bessemer Di
vision, Bessemer, Alabama, and each of their successors
in office,
Defendants.
Amended Complaint
(Filed April 1, 1966)
Comes the Plaintiffs in the above styled case and Amends
their Complaint as follows:
2
I
J urisdiction
This court has jurisdiction of this action under 28 U.S.C.,
Section 1343 (3) (4). This action is brought to redress
the deprivation of rights privileges and immunities se
cured by the Fourteenth Amendment to the Constitution
of the United States, and by one or more of the following
statutes: 42 U.S.C., Section 1981, 42 U.S.C., Section 1983,
18 U.S.C., Section 243 as hereinafter more fully appears.
II
Nature of A ction
This is an action for injunctive relief:
(1) to secure the right of qualified Negro citizens of
Jefferson County, Alabama to be fairly chosen for service
on grand and petit juries in the Bessemer cut-off, Jeffer
son County, Alabama without discrimination based on race
and to have the number of such persons chosen fairly to
reflect their proportion of the number of all persons in
Jefferson County qualified to serve on grand and petit
juries in the Bessemer cut-off of Jefferson County, Ala
bama, further, that the grand and petit juries so consti
tuted will be bodies truly representative of all persons
in Jefferson County, Alabama qualified for jury service.
(2) to prevent the application to Negro citizens other
wise qualified in the Bessemer cut-off of Jefferson County,
Alabama of qualifying standards prescribed by state law
which, as applied to such Negro citizens, discriminate be
cause of race with respect to their opportunity to serve
on grand and petit juries in the Bessemer cut-off of Jef
ferson County, Alabama and to have the number of such
Amended Complaint
3
persons chosen fairly reflecting their proportion of the
number of all persons in the Bessemer cut-off of Jefferson
County, Alabama qualified to serve on grand and petit
juries in the Bessemer cut-off of Jefferson County, Ala
bama so that the grand and petit juries so constituted will
be bodies truly representative of all persons in the Bes
semer cut-off of Jefferson County, Alabama qualified for
jury service.
(3) to correct the effects of past and present racial dis
crimination against Negro citizens in the Bessemer cut
off of Jefferson County, Alabama with respect to their
opportunity to serve on grand and petit juries in the
Bessemer cut-off of Jefferson County, Alabama by remov
ing from the present jury rolls and lists and from the
jury box, the names of all persons contained thereon and
therein and substituting new jury rolls, lists, and boxes
compiled in such a manner as to fairly reflect the rela
tive proportion of Negroes to the total number of all
persons in the Bessemer cut-off of Jefferson County, Ala
bama qualified for jury service.
I ll
Class A ction
Plaintiffs bring this action as a class action on their own
behalf and on behalf of all others similarly situated pur
suant to Buie 23 (a) (3) of the Federal Rules of Civil
Procedure. There are common questions of law and fact
affecting:
(1) the rights of Nergo citizens who are completely
qualified under state law to be fairly chosen for service
on grand and petit juries in the Bessemer cut-off of Jef
Amended Complaint
4
ferson County, Alabama with discrimination because of
race.
The members of the class are so numerous as to make
it impracticable to bring them all individually before this
court but a common relief is sought by the plaintiffs for
themselves and for each member of the class. The inter
ests of the said class are adequately represented by plain
tiffs.
IV
P laintiffs
Plaintiffs, Arthur J. Jones, Millard Davis, Lorenzo
Cates, and Reverend J. A. Salary, are Negro citizens and
residents of Fairfield, Jefferson County, Alabama, who are
completely qualified under the laws of the State of Ala
bama for service on grand and petit juries in the Bessemer
cut-off of Jefferson County, Alabama.
V
Defendants
A. Defendants, John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton, Bill R. Whitley, officers and members
of the Jury Commission of Jefferson County, Alabama,
and are charged by state law with the duty of canvassing
the County to secure the names of persons qualified for
jury service and of preparing and maintaining a roll or
list of persons qualified for jury service in the Bessemer
cut-off of Jefferson County, Alabama and of filling the
jury box with the names of such persons. They are sued
in their individual and official capacities.
Amended Complaint
5
B. Defendant, Bill R. Whitley, is the Clerk of the Jury
Commission of Jefferson County, Alabama and he is
charged with the duty under state law of preparing the
jury roll or list from the names submitted to him by the
Jury Commission and of filling the jury box. He is also
charged under state law with the duty of maintaining a
sufficient roll. He is sued in his individual and official
capacity.
C. Defendant, Elmore McAdory is the Circuit Clerk of
the Circuit Court of the Tenth Judicial Circuit, Bessemer
Division of Jefferson County, Alabama, he is charged by
state law with the responsibility of selecting the names
of those persons certified to him as qualified for jury
service by the Jury Commission and Clerk on grand and
petit jury venires or panels. Such names are chosen by
him or by those acting at his direction or under his au
thority from the jury rolls, or box submitted to him by
the above named officials and he or someone acting at his
direction or under his authority, summons the persons
whose names have been chosen to appear for service on
said venire or panel. He is sued in his individual and offi
cial capacity.
Count One
YI
Plaintiffs aver that according to the 17th Decennial Cen
sus of the United States, its Territories and Possessions
for 1960, published by the U.S. Department of Commerce,
Bureau of Census, of which the Courts of Alabama and
the United States take judicial notice, the white male pop
ulation of Jefferson County, Alabama, twenty-one years
of age and over is 120,602 and the Negro male population
Amended Complaint
6
of said Jefferson County, Alabama, twenty-one years of
age and over is 51,961 and that the white male population
of Jefferson County, Alabama, twenty-one years to sixty-
four years of age inclusive is 107,602 and the Negro male
population of said Jefferson County, Alabama, twenty-one
years to sixty-four years of age inclusive is 43^248.
VII
Though plaintiffs and members of the class they repre
sent are totally qualified under state law to serve on grand
and petit juries in Jefferson County, Alabama, their names
have not been placed for service on the jury roll or lists
or been put in the jury box by the defendants, John C.
Wilson, Jr., Walter E. Palmer, George W. Clayton as
members of the Jury Commission of Jefferson County,
Alabama or defendant Bill R. Whitley as Clerk of the
said Jury Commission or only a very small number in
relation to the total number qualified have had their names
placed on such roll or lists or in the jury box. The failure
of these defendants to enroll the names of plaintiffs and
members of the class on the jury roll or lists or to put
their names in the jury box for service on grand and petit
juries within the Bessemer Division of Jefferson County,
Alabama is the result of (1) the deliberate and systematic
exclusion by defendants of all Negro citizens resident
within the Bessemer Division of Jefferson County, Ala
bama from service on grand and petit juries or (2) the
deliberate and systematic limitation by defendants of the
number of Negro citizens resident in the Bessemer Divi
sion of Jefferson County, Alabama who are called for
service on grand and petit juries so as to assure only a
token number of such persons appearance on the jury
Amended Complaint
7
rolls or lists and in the jury box or (3) the failure by
defendants to acquaint themselves with Negro citizens
resident in the Bessemer Division of Jefferson County,
Alabama to the same extent and in the same manner in
which they normally and regularly acquaint themselves
with white citizens in the Bessemer Division of Jefferson
County, Alabama or (4) the failure of the defendants to
apply the same methods and procedures to secure the
names of qualified Neg’ro citizens resident in the Bessemer
Division of Jefferson County, Alabama, used with respect
to securing the names of white citizens resident in the
Bessemer Division of Jefferson County, Alabama even
though said defendants do not regularly make an attempt
to secure the names of all citizens resident within the
Bessemer Division of Jefferson County, Alabama who are
qualified by state law for service on grand and petit juries.
VIII
A. As a consequence of defendants’ conduct as above al
leged, plaintiffs and members of the class they represent
have been deprived of their right to be fairly chosen for
service on grand and petit juries in the Bessemer Divi
sion of Jefferson County, Alabama without discrimina
tion based on race and to have the numbers of such per
sons chosen fairly reflect their proportion of the number
of all persons in the Bessemer Division of Jefferson
County, Alabama, qualified to serve on grand and petit
juries so that the grand and petit juries constituted in
the Bessemer Division of Jefferson County, Alabama may
be a body truly representative of the whole number of
persons in the Bessemer Division of Jefferson County,
Alabama qualified for jury service. Moreover, discrim
ination by these defendants, as alleged, permits where
Amended Complaint
8
the number of Negroes is limited or kept to a token figure-
selection from the jury roll or lists or from the jury box
on a racial basis and/or permits those who are able to
get selected for a grand or petit jury venire or panel
to be easily struck or challenged and prevented from serv
ing on any jury actually trying a civil or criminal case
in the Bessemer Division of Jefferson County, Alabama.
IX
Discrimination against plaintiffs and members of the
class by these defendants as above alleged violates the
equal protection and due process clauses of the Fourteenth
Amendment to the Constitution of the United States, and,
one or more or all of 42 U.S.C., Section 1981; 42 U.S.C.,
Section 243.
X
Plaintiffs and members of the class they represent have
been and are being irreparably injured as a result of
defendants’ conduct alleged above. They have no plain,
complete or adequate remedy at law to redress these
wrongs other than this suit for injunctive relief.
Count Two
XI
Plaintiffs and members of the class they represent re
allege paragraphs I-X above.
XII
Defendants, John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton, and Bill R. Whitley, has in the past
discriminated and is at present discriminating against
Amended Complaint
9
plaintiffs and members of the class they represent on
racial grounds by deliberately selecting from the jury rolls
or lists or from the jury box only a token number of
Negroes for the grand and petit jury venires or panels
or by deliberately excluding them altogether from the
grand and petit jury venires or panels and/or by failing
to summon any or summoning only a few Negroes for
jury duty in the Bessemer Division of Jefferson County,
Alabama, so as to assure that either no Negroes or only
a limited or token number of Negroes serve on the grand
and petit jury venires or panels and further to assure
that those whose names are placed on the venires or
panels can be easily struck from any panel of jurors
selected to try a civil or criminal case in the Bessemer
Division of Jefferson County, Alabama.
X III
As a consequence of the conduct of defendant alleged
above, plaintiffs and members of the class they repre
sent have been deprived of their right to be fairly chosen
for service on grand and petit juries in the Bessemer Divi
sion of Jefferson County, Alabama without discrimination
based on race and to have the numbers of such persons
chosen fairly reflect their proportion of the number of all
persons in the Bessemer Division of Jefferson County,
Alabama, to serve on grand and petit juries in the Bes
semer Division of Jefferson County, Alabama so that the
grand and petit juries constituted in the Bessemer Divi
sion of Jefferson County, Alabama may be a body truly
representative of the whole number of persons in the
Bessemer Division of Jefferson County, Alabama quali
fied for jury service. Moreover, discrimination by these
defendants, as alleged, permits—were the number of
Amended Complaint
10
Negroes is limited or kept to a token-figure—selection from
the jury roll, lists or box on a racial basis and permits
those few who are able to get selected for a grand or
petit jury venire or panel to be easily struck and pre
vented from serving on any jury actually trying a civil
or criminal case in the Bessemer Division of Jefferson
County, Alabama.
XIV
Discrimination against plaintiffs and members of the
class by these defendants as above alleged violates the
equal protection and due process clauses of the Fourteenth
Amendment to the Constitution of the United States, and,
one or more or all of 42 U.S.C., Section 1981; 42 U.S.C.,
Section 1983; 18 U.S.C., Section 243.
XV
Plaintiffs and members of the class have been and are
being irreparably injured as a result of the conduct of
defendants as alleged above. They have no plain, com
plete or adequate remedy at law to redress these wrongs
other than this suit for injunctive relief.
Pbayeb fob R elief
W hebefobe, plaintiffs and the members of the class on
whose behalf they sue, respectfully pray that this court
take jurisdiction of this action, advance this cause on the
docket and order a speedy hearing thereof and after such
hearing, issue a preliminary and permanent injunction
against the defendant named above, their officers, agents,
servants, employees, successors and all other persons in
active concert or participation with them from :
Amended Complaint
11
1. Using the names of any persons heretofore selected
for inclusion on the jury roll jury list and in the jury box
and using the jury roll, list or box as presently consti
tuted for the purpose of summoning grand or petit jurors
for service on the jury venires and panels in the Bessemer
Division of Jefferson County, Alabama, and from using
said jury list, roll or jury box in any manner whatsoever.
2. Failing to withdraw all outstanding summonses which
have been served upon prospective jurors.
3. Failing to dismiss each and every person who is
presently serving as a juror.
4. Failing to compile a new jury roll or list and a
new jury box in such a manner that the list and/or roll
and/or box so compiled will contain (a) the name of
every qualified Negro in the Bessemer Division of Jeffer
son County, Alabama, if heretofore the name of every
qualified white person in the Bessemer Division of Jeffer
son County, Alabama, has been contained in the afore
said jury lists, roll or box; (b) the names of a sufficient
number of Negro citizens resident in the Bessemer Divi
sion of Jefferson County, Alabama, so as to fairly reflect
the proportion or percentage of such citizens in the Bes
semer Division of Jefferson County, Alabama, if the prac
tice heretofore has been to include only a portion rather
than the whole of all the qualified white citizens in Bes
semer Division of Jefferson County, Alabama, thus mak
ing the jury list and/or roll and/or box truly representa
tive of all the persons qualified for jury service in the
Bessemer Division of Jefferson County, Alabama.
Amended Complaint
12
5. Failing to take any and all steps necessary to com
pile the jury roll or list and to fill the jury box in the
manner indicated in paragraphs 1-4 above.
6. Deliberately and systematically using procedures or
methods which result in either no Negroes being selected
from the jury roll, or box for grand and petit jury venires
or panels or limiting the number of Negroes so selected
to a small or token number which can easily be struck
when selecting juries for the trial of a civil or criminal
case in the Bessemer Division of Jefferson County, Ala
bama.
7. From using any and all other methods which result
in the failure to select Negroes for service on jury venires
and panels because of race or which deprive them of the
right to be fairly chosen for such service at all stages of
the process of constituting grand and petit juries in the
Bessemer Division of Jefferson County, Alabama.
Plaintiffs and members of the class on whose behalf they
sue also pray for any further, different, other or addi
tional relief to which they may be entitled.
/ s / Demetrius C. Newton
Demetbius C. Newton
408 North, 17th Street
Birmingham, Alabama
Nobman C. A makeb
Jack Greenberg
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs
Amended Complaint
13
Amended Motion for Preliminary Injunction
(Filed April 1, 1966)
A mended Motion for P reliminary I njunction
Comes the plaintiffs in the above styled ease and Amends
his Motion for Preliminary Injunction.
Plaintiffs, on their behalf and on behalf of all others
similarly situated, move the Court for a preliminary in
junction against the defendant names in the attached com
plaint and urge as grounds for its issuance the allega
tions contained in the attached complaint and the follow
ing additional grounds:
1. The conduct of defendant, as alleged, violates rights,
privileges and immunities secured by the Fourteenth
Amendment to the Constitution of the United States and
by one or more or all of the following statutes: 42 U.S.C.,
Section 1981; 42 U.S.C., Section 1983; 18 U.S.C., Section
243.
2. Plaintiffs and members of the class on whose behalf
they sue have been and are being irreparably injured by
the conduct of defendant as alleged in the attached com
plaint.
3. Plaintiffs and members of the class on whose behalf
they sue have no plain, complete or adequate remedy at
law.
W herefore, planitiffs and members of the class on
whose behalf they sue respectfully pray that this court
grant to them a speedy hearing, as required by law on
this motion and after such hearing, issue a preliminary
injunction against defendants, their officers, agents, ser
14
vants, employees, successors and all other persons in ac
tive concert or participation with them enjoining them
from :
1. Using the names of any persons heretofore selected
for inclusion on the jury roll, jury lists and in the jury
box and using the jury roll, lists or box as presently
constituted for the purpose of summoning grand or petit
jurors for service on the jury venires and panels in the
Bessemer Division of Jelferson County, Alabama, and
from using said jury lists, roll or jury box in any man
ner whatsoever.
2. Failing to withdraw all outstanding summonses which
have been served upon prospective jurors.
3. Failing to dismiss each and every person who is
presently serving as a juror.
4. Failing to compile a new jury roll or list and a new
jury box in such a manner so that the list and/or roll
and/or box so compiled will contain;
(a) the name of every qualified Negro in the Bessemer
Division of Jefferson County, Alabama, has been
contained in the aforesaid jury lists, roll or box.
(b) the names of a sufficient number of Negro citizens
resident in the Bessemer Division of Jefferson
County, Alabama, so as to fairly reflect the pro
portion or percentage of such citizens in the Bes
semer Division of Jefferson County, Alabama, if
the practice heretofore has been to include only
a portion rather than the whole of all qualified
white citizens in the Bessemer Division of Jeffer
Amended Motion for Preliminary Injunction
15
son County, Alabama, thus making the jury list
and/or roll and/or box truly representative of
all the persons qualified for jury service in the
Bessemer Division of Jefferson County, Alabama.
5. Failing to include on the jury roll or list and in the
jury box the names of all Negroes qualified for service
as jurors but for their failure to meet special standards
not required of every qualified white person, or, if it is
not, failing to include the names of Negroes so as to re
flect their relative proportion or percentage in the Bes
semer Division of Jefferson County, Alabama.
6. Failing to take any and all steps necessary to com
pile the jury roll or list and to fill the jury box in the
manner indicated in paragraphs 1-5 above.
7. Deliberately and systematically using procedures or
methods which result in either no Negroes being selected
from the jury roll, list or box for grand and petit jury
venires or panels or limiting the number of Negroes so
selected to a small or token number which can be easily
struck when selecting juries for the trial of a civil or
criminal case in the Bessemer Division of Jefferson County,
Alabama.
8. From using any and all other methods which result
in the failure to select Negroes for service on jury venires
and panels because of their race or which deprive them
of the right to be fairly chosen for such service at all
stages of the process of constituting grand and petit
juries in the Bessemer Division of Jefferson County, Ala
bama.
Amended Motion for Preliminary Injunction
16
Plaintiffs and members of the class on whose behalf
they sue also pray for any further, different, other or
additional relief to which they may be entitled.
Respectfully submitted,
/ s / Demetrius C. Newton
Demetrius C. Newton
408 North, 17th Street
Birmingham, Alabama
Norman C. A maker
Jack G-reenberg
10 Columbus Circle
New York, New York 10019
Amended Motion for Preliminary Injunction
17
Order of Court Denying Motions to Dismiss
(Filed May 16, 1966)
This cause, coining on to be heard, was submitted upon
motions filed in behalf of defendants to dismiss the com
plaint on various grounds assigned to such motions. Upon
consideration thereof and the oral arguments of counsel,
it is the opinion of the court that each of such motions
is due to be overruled.
It is, accordingly, Ordered, A djudged and Decreed by
the court that each motion filed in behalf of defendants
be and the same is hereby overruled and denied, and de
fendants are allowed 30 days from the date hereof within
which to file responsive pleadings.
It is further Ordered, Adjudged and Decreed by the
court that the motion filed in behalf of plaintiffs for a
preliminary injunction be and the same is hereby continued
to be reset after the responsive pleadings of defendants
and on further order of court.
Done, this the 16th day of May, 1966.
Seybourn H. Lynne
Chief Judge
18
(Filed May 16, 1966)
Answer of John C. Wilson, Jr., Walter E. Palmer,
George W . Clayton and Bill R. Whitley to
Amended Complaint
[ same title ]
Come now John C. Wilson, Jr., as President of the Jury
Board of Jefferson County, Alabama, Walter E. Palmer,
as Vice President of the Jury Board of Jefferson County,
Alabama, George W. Clayton, as Associate Member of
the Jury Board of Jefferson County, Alabama, and Bill
R. Whitley, as Clerk of the Jury Board of Jefferson
County, Alabama, separately and severally, and for an
swer to the Amended Complaint filed in this cause state
as follows:
1. That they deny that the Plaintiffs and the class they
represent are entitled to a proportionate representation
of the number of the members of their race on the jury
rolls of Jefferson County, Alabama, or in the Bessemer
Cutoff of Jefferson County, Alabama.
2. That they deny that there has been any past or pres
ent racial discrimination against Negro citizens in the
Bessemer Cutoff of Jefferson County, Alabama, with re
spect to their opportunity to serve on Grand and Petit
Juries in the Bessemer Cutoff of Jefferson County, Ala
bama.
3. That they have no knowledge as to whether the Plain
tiffs are qualified under the laws of the State of Alabama
19
for service on Grand and Petit Juries in the Bessemer
Cutoff of Jefferson County, Alabama.
4. That the general provisions with respect to juries
and jury commissions of the several counties of the State
of Alabama are found in Title 30, Sections 1-100, Code of
Alabama 1940 (Recompiled 1958); that except for certain
general provisions, the matter is largely regulated in Jef
ferson County by Title 62, Sections 196-228, Code of Ala
bama 1940 (Recompiled 1958); that in Jefferson County,
the body charged with the selection of jurors is called a
“Jury Board,” whereas, in other counties it is called a
“ Jury Commission” ; that in Jefferson County, the law
requires (Section 199) the Board to obtain the names of
male citizens between the ages of 21 and 65; that in other
areas of the State a person over 65 is not required to
serve on a jury (Title 30, Section 21), but is not manda-
torily excluded; that under Section 200 of Title 62, the
Jury Board is deemed to have performed the duties re
quired of it by law when it shall have prepared a jury
roll otherwise in compliance with law consisting of at
least 6% of the population in the county in accordance
with the last Federal census; and that the complaint and
motion for preliminary injunction do not allege that this
has not been done.
5. That they deny that they have (1) deliberately and
systematically excluded all Negro citizens resident within
the Bessemer Division of Jefferson County, Alabama, from
service on Grand and Petit Juries; (2) that they have de
liberately and systematically limited the number of Negro
citizens resident in the Bessemer Division of Jefferson
Answer of John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton and Bill R. Whitley to
Amended Complaint
20
County, Alabama, who are called for service on Grand
and Petit Juries so as to insure only a token number of
such persons appearing on the jury rolls or lists and in
the jury box and affirmatively aver that it is not a part
of their functions or duties to call persons for service
on the Grand and Petit Juries; (3) that they have failed
to acquaint themselves with Negro citizens resident in
the Bessemer Division of Jefferson County, Alabama, to
the same extent and in the same manner in which they
normally and regularly acquaint themselves with white
citizens in the Bessemer Division of Jefferson County, Ala
bama; and (4) that they have failed to apply the same
methods and procedures to secure the names of qualified
Negro citizens resident in the Bessemer Division of Jef
ferson County, Alabama, as is used with respect to se
curing the names of white citizens resident in the Bes
semer Division of Jefferson County, Alabama.
6. That they deny that the Plaintiffs and members of
the class they represent have been deprived of their right
to be fairly chosen for service on Grand and Petit Juries
in the Bessemer Division of Jefferson County, Alabama,
without discrimination based on race; they deny that the
Plaintiffs and members of the class they represent are
entitled to a proportionate representation on the jury
roll in the Bessemer Division of Jefferson County, Ala
bama; and that they deny that they have any functions
or duties in connection with the selection of Grand or
Petit Jury venires or panels or that they have any duty
or function in connection with the striking or challengnig
of jurors in civil or criminal cases in the Bessemer Divi
sion of Jefferson County, Alabama.
Answer of John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton and Bill R. Whitley to
Amended Complaint
21
7. That they specifically deny Paragraph X II of the
Amended Complaint and affirmatively aver that they have
no duties or functions in connection with the allegations
made in said paragraph.
8. That they specifically deny each and every other
material allegation of the Amended Complaint.
W herefore, they pray that they may he hence dismissed
.with their reasonable costs.
/s / R ichmond M. F lowers
R ichmond M. F lowers
Attorney General of Alabama
/ s / L eslie Hall
Leslie Hall
Assistant Attorney General of Alabama
Administrative Building
Montgomery, Alabama 36104
/ s / James D. Hammonds
James D. Hammonds
Deputy District Attorney
Tenth Judicial Circuit of Alabama
/ s / Hugh B. H arris, Jr.
H ugh B. Harris, Jr.
Assistant Deputy District Attorney
Tenth Judicial Circuit of Alabama
Court House
Bessemer, Alabama
Attorneys for Above-Named, Defendants
Answer of John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton and Bill R. Whitley to
Amended Complaint
22
Order of Court Granting Plaintiffs’ Motion to Produce
(Filed July 6, 1966)
On motion of plaintiffs and for good cause shown:
It is Ordered, A djudged and Decreed by the court that
the defendant, John C. Wilson, Jr., produce in the office
of the Clerk of the Bessemer Division of the Circuit Court
for the Tenth Judicial Circuit the jury bos described in
paragraph II of the motion to produce, and that the de
fendant, Elmore McAdory, produce in such office the min
ute books described in paragraph III of such motion, the
production in both instances to be at 10:00 a. m. on Monday,
August 8, 1966, and each defendant is directed to permit
plaintiffs, their attorneys or agents, to inspect and copy
the same.
It is further Ordered, A djudged and Decreed by the
court that copies or photographs of the cards contained
in the jury box, as above described, be placed under seal
and delivered to the Clerk’s Office of this court pending
further order of the court herein.
It is further Ordered, A djudged and Decreed by the
court that the defendant, Billy Bay Whitley, produce and
permit plaintiffs, their attorneys or agents, to inspect
and copy the documents described in paragraph I of plain
tiffs’ motion to produce in the office of the Clerk of the
Circuit Court for the Tenth Judicial Circuit, in Birming
ham, at 10:00 a.m., on Tuesday, August 9, 1966.
Done, this the 5th day of July, 1966.
Seybourn H. Lystne
Chief Judge
23
(Filed June 2, 1967)
Plaintiffs, Arthur J. Jones, et al., through their under
signed attorneys, request the defendants, John C. Wilson,
Jr., et al., within ten (10) days after service of this re
quest to make the following admissions of fact:
(1) That as of August 8, 1966, the jury box for the
Bessemer Division of the Circuit Court for the Tenth Ju
dicial Circuit, Jefferson County, Alabama contained a total
of 6,223 names.
(2) That as of August 8, 1966, the jury box for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained
444 names of Negro persons.
(3) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained a
total of 64 names from precinct 9.
(4) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained the
name of no more than one (1) Negro person from pre
cinct 9.
(5) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Plaintiffs’ Request for Admission of Facts
24
Judicial Circuit, Jefferson County, Alabama contained a
total of 8,102 names from precinct 33.
(6) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained no
more than 398 names of Negro persons from precinct 33.
(7) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained a
total of 1,380 names from precinct 53.
(8) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained no
more than 276 names of Negro persons from precinct 53.
(9) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained an
overall total of 9,546 names.
(10) That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the Tenth
Judicial Circuit, Jefferson County, Alabama contained an
overall total of no more than 675 names of Neg’ro persons.
This request for admission of facts is made pursuant
to Buie 36 of the Federal Buies of Civil Procedure.
Plaintiffs’ Request for Admission of Facts
25
Plaintiffs’ Request for Admission of Facts
Respectfully submitted,
/ s / N orman C. A makek
N orman C. A maker
J ack Greenberg
10 Columbus Circle
New York, New York 10019
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Plaintiffs
26
(Filed June 9, 1967)
The Defendants, by their attorneys, hereby respond to
the request for admission of facts in the above-styled case
as follows:
1. That as of October 8, 1966, the jury box for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained a total
of at least 6,223 names.
2. That as of August 8, 1966, the jury box for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained at least
444 names of Negro persons, and possibly more.
3. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained a total
of at least 64 names, and possibly more, from Precinct 9.
4. That as of August 9, 1966, the Defendants have no
way of knowing whether the jury roll for the Bessemer
Division of the Circuit Court for the 10th Judicial Cir
cuit, Jefferson County, Alabama, contained any specified
number of Negro persons in Precinct 9.
5. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained a total
of at least 8,102 names from Precinct 33.
6. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained at least
Defendants’ Response to Request for Admission of Facts
27
398 names of Negro persons from Precinct 33, and pos
sibly more.
7. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained a total
of at least 1,380 names from Precinct 53.
8. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained at least
276 names of Negro persons from Precinct 53, and pos
sibly more.
9. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for the 10th Judi
cial Circuit, Jefferson County, Alabama, contained an over
all total of 9,546 names, and possibly more.
10. That as of August 9, 1966, the jury roll for the
Bessemer Division of the Circuit Court for 10th Judi
cial Circuit, Jefferson County, Alabama, contained an over
all total of at least 675 names of Negro persons, and pos
sibly more.
That at the time of the taking of the depositions in
this case on August 8, 1966, it was stipulated between
Mr. Leslie Hall, Assistant Attorney General of Alabama,
one of counsel for the Defendants, and Mr. Norman C.
Amaker, one of counsel for the Plaintiffs, that the per
sons inspecting the names in the jury box did not know
the names of all the Negroes in the Bessemer Cut-Off,
and that they did not so pretend. It was further stipu
lated between counsel at that time that there are some
names about which the inspectors had some doubt; that
Defendants’ Response to Request for Admission of Facts
2 8
there are a number of names on the cards that are pos
sibly Negroes who are not personally known to the in
spectors; that in many instances, the inspectors relied
on addresses rather than on personal knowledge; that
there are mixed neighborhoods of both Negroes and white
persons in the Bessemer Cut-Off; that other races than
Negroes were not checked by the inspectors; that the in
spectors did not make a separate tally of unknown races;
and that in the United States Census for 1960 Negroes
are not listed as such, but that races other than white
are listed as “non-white.” (See deposition dated August 8,
1966, entitled “Opening of Jury Box, Bessemer, Alabama,
Monday, August 8, 1966.” )
This Response is made pursuant to Rule 36 of the Fed
eral Rules of Civil Procedure.
Respectfully submitted,
/ s / MacD onald O a l l i o n
MacDonald G a l l i o n
Attorney General of Alabama
/ s / Leslie Hall
Leslie Hall
Assistant Attorney General
of Alabama
/ s / E arl C. Morgan
E arl C. Morgan
District Attorney
10th Judicial Circuit of Alabama
/ s / B urgin Hawkins
Burgin Hawkins
Chief Deputy District Attorney
10th Judicial Circuit of Alabama
Attorneys for Defendants
Defendants’ Response to Request for Admission of Facts
29
Order of Court Granting Plaintiffs’ Motion to Produce
(Filed June 22, 1967)
The plaintiffs’ motion being presented to the court
for the production of certain documents, and it appearing
to the court that the plaintiffs are reasonably entitled to
examine the jury roll for the Bessemer Division of the
Circuit Court for the Tenth Judicial Circuit, Jefferson
County, Alabama,
It is, therefore, Ordered that the defendant Billy Bay
Whitley between the dates of June 28 and June 30, 1967,
at a time and place agreed to by the parties, produce
and permit plaintiffs, their attorneys and/or their agents
to inspect the following document:
The jury roll for the Bessemer Division of the
Circuit Court for the Tenth Judicial Circuit, Jeffer
son County, Alabama.
Done, this 22nd day of June, 1967.
/ s / C. W. A llgood
United States District Judge
30
(Filed January 16, 1968)
The examination of the jury roll for the Bessemer
Division of Jefferson County, Alabama, is being taken
in the above styled cause on the 28th day of June, 1967,
at Court Room #2 , Federal Court House, Birmingham,
Alabama.
Appearances: Demetrius C. Newton, Birmingham, Ala
bama, and Norman C. Amaker, New York City, New York,
appearing for the plaintiffs.
Perry Wayne Schoel and Raymond C. Winston, District
Attorneys office, Jefferson County, Alabama.
This roll is being examined pursuant to a motion for
production of documents, the same being granted by the
Hon. Clarence W. Allgood on the 22nd of June, 1967;
that pursuant to that order, the plaintiffs have gathered
the following persons to assist them in the examination
of the jury roll of the Bessemer Division of Jefferson
County, Alabama:
Dwight Haslip, 318 Woodward Avenue, Bessemer, Ala
bama; Annie R. Eubanks, 402 Woodward Ave., Bessemer,
Alabama; Fred W. Dew, 2516 8th Avenue No., Bessemer,
Alabama; Shirley Fuller, Route 4, Box 1124, Bessemer,
Alabama; Pearl Billingsley, 529 Ave. C. Lipscomb, Bes
semer, Alabama; Rev. James P. Smith, 2417 12th Ave.,
Bessemer, Ala; Sucena Buford, 536 55th St., Fairfield,
Alabama.
Plaintiffs, prior to the commencement of this examina
tion, have secured from the Board of Registrars of Jef
ferson County, the certified list of registered voters for
the Bessemer Division of Jefferson County, said list being
compiled according to voter precincts and the districts
Stipulation
31
within each precinct, and the names of the registered
voters being set out on that list alphabetically within
each precinct and district. The above-named persons who
are assisting the plaintiffs in the inspection of the jury
roll will compare the names appearing on the voting
lists with the names to be read aloud from the jury roll
of the Bessemer Division of Jefferson County, and when
such name is located on the list of voters a tally will be
made of whether the named person is white or Negro,
such designation being obtained from the designation on
the voting list.
On the voting list there is a column which is designated
S and C, and under this column is a listing of numbers
of 1 through 6. Number 1 indicates that the person op
posite whose name that number appears is a white male.
Number 2 indicates that the person opposite whose name
that number appears is a white female. Number 3 indi
cates that the person opposite whose name that number
appears is a Negro male; Number 4 indicates that said
person is a Negro female; plus designations Nos. 5 and 6
respectively are those persons whose names appearing on
the list of registered voters as a consequence of registra
tion by the federal authorities under the Voting Bights
Act of 1965, Number 5 indicating that said person is male
and Number 6 indicating that said person is female.
The plaintiffs have obtained from Mr. W. M. Gwin,
Chairman of the Board of Begistrars, a certificate of
authentication certifying that all of the persons on the
voting rolls numbering approximately 50,000 are all of
the registered voters as of June 1, 1967, in the Bessemer
Division of Jefferson County. That certificate was at
tested by the Hon. J. Paul Meeks, Judge of Probate, in
compliance with the Federal Buies of Civil Procedure.
Stipulation
32
The designation of race as previously stated was fur
nished the plaintiffs by W. M. Gwin, Chairman of the
Board of Registrars. Those designations numbered 5
and 6, of which the Board of Registrars of Jefferson
County have no knowledge of their race, will be checked
by these persons of each and every precinct in Jefferson
County by names and addresses to determine the racial
identity of those persons. The persons assisting plain
tiffs in inspecting the roll have been instructed by ob
serving the list of registered voters to determine what
number appears under the column headed S and C op
posite the voter’s name, and that number will be recorded
on a separate tally sheet in the following manner, to-wit:
Each of the six numbers will be listed in a vertical column
and as a name is read from the jury roll, when that
name is located by one of the persons assisting plaintiffs
in the inspection of the roll, that person will indicate
what number appears opposite a given name, and the
person maintaining the tally will so indicate by a check
mark under the column headed by the number; thus
when the process is complete, a numerical count can
be made of the number of persons whose names have
been checked under each of the numbers carrying the
racial designations as indicated above.
The jury roll is still designated by the old precinct
numbers; e.g. Precinct 33 and Precinct 53. The current
designations for those precincts found on the voter roll,
Precinct 33 is now 1, and Precinct 53 is now 2.
We are proceeding to examine the jury roll beginning
with Precinct 1, beginning with the alphabet A, and we
will examine Precinct 2 in the same manner and each and
every precinct alphabetically. Precinct 9 has a total of
86 names on the jury roll.
Stipulation
33
As the names are called off from the jury roll, if the
name so called off cannot he located on the list of reg
istered voters, a separate listing of such names will be
made and when the process of cross-comparing the jury
roll against the list of registered voters is completed,
these names not found will be checked by a different
method in order to determine the racial identity.
Showing
The following facts will be presented in the form of
testimony from competent witnesses by the defendants.
The defendants would produce witnesses who would
testify to the fact that on September 11, 1967, a jury
venire of 56 people was empaneled in the Bessemer
Division of Jefferson County at the court house; that
out of .those 56 people, 11 of them were Negro; that the
56 were then subsequently broken down into 4 jury panels.
On Jury No. 1 there was one Negro juror. On Jury
No. 2 there was one Negro juror. On Jury No. 3 there
were two Negro jurors and on Jury No. 4 there were
seven Negro jurors. Further, the defendants would put
on witnesses who would testify to the fact that a grand
jury was empaneled in the Bessemer Division of Jeffer
son County on September 11, 1967; the total number of
the grand jury was 18; the total number of Negro jurors
who actually served on that grand jury were four.
The defendants would additionally put on testimony
to the effect that on September 25th of 1967 a jury venire
was empaneled in the Bessemer Division of Jefferson
County; the total number of jurors who appeared at the
Jefferson County court house as jurors for the week of
September 25, 1967, was 73. Fifteen of those were Negro
Stipulation
34
jurors. The 73 were divided into five jury panels at the
court house. On Jury No. 1 there were three Negroes;
on Jury No. 2 there were three Negroes; on Jury No. 3
there were four Negroes; on Jury No. 4 there was one
Negro, and on Jury No. 5 there were four Negroes,
totalling 15.
On October 9th of 1967, 57 jurors assembled in the
Bessemer Division at the Jefferson County Court House
to serve as jurors for the week of October 9th. Nine of
those were Negroes. The 57 were divided into five panels.
On Jury No. 1 there were no Negroes; on Jury No. 2
there were three Negroes; on Jury No. 3 there were three
Negroes; on Jury No. 4 there were three Negroes; on
Jury No. 5 there were no Negroes.
On October 23rd of 1967, 58 jurors appeared at the
Bessemer Division at the Jefferson County Court House
to serve for that week. Fifteen of those 58 were Negroes.
The 58 were divided into five jury panels. On Jury No. 1,
three Negroes were placed; on Jury No. 2, three Negroes
were placed. One Negro served on Jury No. 3. Six Ne
groes were on Jury No. 4 and two Negroes were on
Jury No. 5.
On November 6th of 1967, 52 jurors appeared at the
Bessemer Division, Jefferson County Court House to
serve for that trial week. Five of them were Negro.
They were divided into five jury panels. Three Negroes
were placed on Jury No. 1; One Negro on Jury No. 2;
One Negro on Jury No. 3. There were no Negroes on
Jury No. 4 or Jury No. 5.
On November 27th of 1967 some 41 jurors assembled
to serve as the panel for that trial week. Six of that total
number were Negroes. The venire was divided into four
jury panels. On panel No. 1, two Negroes were placed;
Stipulation
35
on Panel No. 2, two Negroes were placed; on Panel No. 3,
two Negroes were placed; on Panel No. 4 there were
no Negroes.
A grand jury was empaneled for the week of November
27th of 1967, consisting of 18 total jurors, six of whom
were Negro and actually served on that grand jury.
On December 11th of 1967, some 48 persons were as
sembled at the Bessemer Division of the Jefferson County
Court House and served on juries for that trial week.
Ten of that number were Negroes. Those 48 were divided
into four panels. On Jury No. 1, two Negroes were placed.
On Jury No. 2, two Negroes were placed. On Jury No. 3,
two Negroes served, and on Jury No. 4, four Negroes
served.
The total numbers of jurors counted by the witnesses
which the defendants would put on the stand for the
period commencing with September 11, 1967, and ter
minating on December 11, 1967, would be 384; 71 of
whom were observed to be Negroes, which means approxi
mately 18 per cent of those who actually were empaneled
to serve on juries from September 11 of 1967 to Decem
ber 11 of 1967 were Negroes.
On the two grand juries that were empaneled, there
were a total of 36 persons who served, 10 of whom were
observed to be Negroes, which means that approximately
27 per cent of those who served on grand juries in Bes
semer in the period stated above were Negro.
The accuracy of these figures is not stipulated, but
offered for whatever purpose that they may be used.
The plaintiffs offer the following information which
would be testified to by competent witnesses as well as
the comparison figures which they intend to show.
Stipulation
36
Inspection of the jury rolls was done by personal knowl
edge and done by reference to the voter registration
list furnished plaintiffs by the Board of Registrars of
Jefferson County, which designates voters by race. In
Precinct 33 of the Bessemer Cut-Off, competent witnesses
would testify that there were 2,934 white males by refer
ence to voter registration lists, and there were 2,457
white females by reference to voter registration lists;
that there were 409 Negro males by reference to voter
registration lists, and that there were 280 Negro females
by reference to voter registration lists.
In Precinct 53, Fairfield, a part of the Bessemer Cut-
Off, there were 596 white males by reference to voter
registration lists, and there were 439 white females by
reference to voter registration lists; that there were 260
Negro males by reference to voter registration lists, and
116 Negro females. Total as reflected by comparisons
with lists of registered voters, white males, 3530; white
females, 2,896; Negro males, 669; Negro females, 396,
for a total of 7,491.
The total number of names that competent witnesses
would testify to not identified by reference to voter lists;
white males, 1,073; white females, 976; Negro males 207;
Negro females, 277, for a total of 2,533.
Over-all totals that competent witnesses would testify
to, white males, 4,603; white females 3,872; Negro males,
876; Negro females 673; white male and female, 8,475;
Negro male and female, 1,549, total, 10,024.
Those persons who were registered to vote and were
registered by federal registrants were not identified by
race and the total number of the federally registered
people on the jury roll was 405; total of all names on
list, 10,429.
Stipulation
37
Method used in inspecting the jury roll during the
months of June, July and August of 1967:
1. The names were read from the jury roll, cross
checked against the list of registered voters. If name
found, recorded, if name not found, the name of the
person living at same address as persons whose name
was found, then that person was listed in the appropriate
column. If the name found on the voter listed as 5 or 6,
indicating that they were federally registered, they were
separately recorded. However, if later found name identi
fied as 1, 2, 3 or 4 and such person lived at the same
address, then the name was switched to the appropriate
column. Since we were seeking racial identification of
the names on the jury roll by resorting to voter list rather
than determination of whether those persons had reg
istered to vote, where race was obvious, for example,
residence in Midfield or Fairfield Highlands, the total
reflects this. We did not seek to identify 405 names
federally registered. According to the Clerk of the Jury
Commission, 12,050 names appeared on the jury list.
The inspection of the jury roll disclosed that the clerk’s
figure is probably not correct since there were several
repeated names. However, the percentage of Negroes
on the jury roll has been calculated with respect to both
figures. Other names wtere separately listed and ex
amined later. Names not identified by reference to voter
lists were read, found in the jury roll and racial iden
tification made from information disclosed there on the
basis of (a) personal knowledge or acquaintance, (b)
address, (c) occupation. Work was done by a team quali
fied to do this in this way and such person’s qualifica
tions can be established. Where we were not sure of
Stipulation
38
the racial identity of a person, the doubt was resolved
in favor of the jury board by calling that person a Negro,
this maximizing or over-stating the names of Negroes
on total lists.
The percentages were computed both by long division
and slide rale calculation. Percentage of Negroes on
jury rolls, using the figure of the Clerk of the Jury Board,
the 12,050, discovered 1,549 would be equal to 12.9 per
cent. Using the figure actually found by the plaintiffs
on the jury roll, being 10,429, 1549, the percentage was
14.9 per cent.
Population data. Population estimates for the Bessemer
Division, 20 years and older, supplied by the Birming
ham Health Department Bureau of Statistics, 1967, in
cluding four census tracts which represent the four divi
sions of the Bessemer Division of Jefferson County from
which jurors are chosen, Tract 101, white males, 523;
white females, 653; non-white males 3,136; non-white
females, 3,855. Tract 102, white males, 2,424; white fe
males, 2,745; non-white names, 1,519; non-white females,
1,941. Tract 103, white males, 2,519; white females, 3,015;
non-white males, 2,420; non-white females, 3,129. Tract
104, white males, 2,011; white females, 2,268; non-white
males, 1,884; non-white females, 2,354. Total white males,
7,477; total white females, 8,681; total non-white males,
8,959; total non-white females, 11,279. Total whites in
the census tracts provided by the Birmingham Health
Department Statistics, 16,158. Total Negroes, 20,238, over
all totals, 36,396.
Percentage of Negroes in the Bessemer Division 20
years and older, Birmingham Health Department Sta
tistics, 1967, using the figures above, 20,238 over 36,396,
means that the total Negro population of the Bessemer
Stipulation
39
Division 20 years and older is 55.6 per cent. Percentage
of Negroes in the Bessemer Division age 21 years and
over supplied by Bureau of Census, 1960, Bessemer, age
21 years and over, Bessemer proper, 4,318; Negro fe
males, 5,467; making a total of 9,785. White males, 4,107,
white females 4,756, for a total of 8,863. The total being
18,648. The source for this information, the United States
Census population, 1969, “[sic.] Alabama, General Popula
tion Characteristics, Table 20, Pages 2 through 42.
Fairfield, age 21 and over, a part of the Bessemer
Cut-Off, Negro male, 1,932; Negro female, 2,482; a total
of 4,414. White male, 21 years an over, 2,226; white
female, 2,445, for a total of 4,671, total, 9,085. The source
the same as above, the United States Census of Popula
tion, 1960, pages 2 through 43.
Total of Bessemer and Fairfield population 21 and over,
27,733, 18,648 for Bessemer, 9,085 for Fairfield, making
the total of 27,733.
Total number of Negroes in Bessemer and Fairfield,
age 21 and over 14,199. Table 21 and 25 of Bureau of
Census Data lists only nine persons of a race other than
Negro or white in Bessemer, and only 12 persons of a
race other than Negro or white in Fairfield. Because
these totals are negligible, the census category non-white
is equated to Negro in these calculations.
The calculation of percentages, 14,199 over 27,733, gives
a total Negro percentage of 51.2 per cent.
This information would be testified to by competent
witnesses if necessary to do so in the trial.
Those witnesses for the defendants who would testify
they had actually observed those jurors which have been
empaneled between the period of September 11, 1967 and
December 11 of 1967, would further be able to testify
Stipulation
40
to the name of each one of the 71 Negro jurors who were
summonsed during that period, as well as the names and
occupations of the ten Negroes who actually served on
grand juries during that period; and further would be
able to testify that a copy of those names has been given
to Attorney Demetrius Newton who represents the plain
tiffs in this case.
A copy of the information just read into the record
on behalf of the plaintiffs has been furnished to Mr. Louis
Wilkinson of the District Attorneys office of Jefferson
County.
Stipulation
41
Notice of Taking of Deposition of John S. de Cani Upon
Written Interrogatories Pursuant to Rule 31 F.R.C.P.
(Filed January 2, 1968)
To: Leslie Hall
Asst. Attorney General of Alabama
Administrative Building
Montgomery, Alabama 36104
Louis W ilkinson
Deputy District Attorney
Tenth Judicial Circuit of Alabama
Jefferson County Courthouse
Birmingham, Alabama 35203
Please take notice that the attached interrogatories
will be propounded on plaintiffs’ behalf to John S. de Cani
whose address is 114 West Mount Airy Avenue, Phila
delphia, Pennsylvania 19119, by Bae DiBlasi, Notary Pub
lic, Philadelphia County, Pennsylvania whose address is
3400 Chestnut Street, Philadelphia, Pennsylvania 19104,
at the taking of his deposition.
Original Signed By :
Norman C. A maker
Norman C. A maker
Jack Greenberg
10 Columbus Circle
New York, New York 10019
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Plaintiffs
42
Interrogatories to John S. de Cani
(Filed January 2, 1968)
Interrogatories to be propounded pursuant to Rule 31,
Fed. Rules Civ. Proc., to Dr. John S. de Cani whose
address is 114 West Mount Airy Avenue, Philadelphia,
Pennsylvania, 19119 by Rae DiBlasi, Notary Public, Phila
delphia County, Pennsylvania whose address is 3400 Chest
nut Street, Philadelphia, Pennsylvania 19104:
1. State your name and address.
2. What is your occupation!
3. How long have you held this position?
4. What previous positions have you held?
5. What is your educational background? In answer to
this question, please state what degrees you hold, from
what institutions of learning and the subjects in which
they were awarded.
6. What professional awards, if any, have you re
ceived?
7. Have you received any grants for study or research?
If so, please state the nature of the grants and the study
or research involved.
8. Do you perform any consulting work? If so, please
state for whom and briefly describe the nature of the
consultancy or consultancies involved.
9. Of what learned or professional societies are you a
member? Briefly describe their nature.
43
10. In what professional journals has your study or
research been published? Briefly state the nature of some
of the work that you have published in these journals.
11. What books have you written? Briefly describe
their subject matter.
12. If you have prepared a written summary of your
professional biography, please attach it as an exhibit to
this deposition.
13. What is the theory of statistical probability as it
relates to the chance or random occurrence of events?
Explain in as much detail as required and illustrate by
an example; if necessary.
14. How does the theory of statistical probability apply
to the problem of determining whether the initial selec
tion of individuals for a pool of potential jurors is or is
not dependent on the race (Negro or white) of the in
dividuals selected? Again, explain in as much detail as
required and please state any hypothesis or assumption
involved.
15. Assuming that the initial selection of persons for
inclusion on the jury roll and in the jury box for the
Bessemer Division of Jefferson County, Alabama is in
dependent of race, i.e., is pursuant to random or chance
selection, what is the statistical probability of having 1,549
Negroes on a jury roll of 12,050 persons or 12.9% of the
total names on the roll, where the total presumptively
eligible population is 36,396 of which 20,238 or 55.6%
are Negroes?
Interrogatories to John 8. de Cani
44
16. Assuming that the initial selection of persons for
inclusion on the jury roll and in the jury box for the Bes
semer Division of Jefferson County, Alabama is inde
pendent of race, i.e., is pursuant to random or chance
selection, what is the statistical probability of having
1,549 Negroes on a jury roll of 10,429 persons or 14.9%
of the total names on the roll, where the total presump
tively eligible population is 27,733 of which 14,199 or
51.2% are Negroes?
17. On the basis of your calculation of the probability
of these occurrences as reflected in your answers to the
two previous questions, in your opinion, has the method
of juror selection in the Bessemer Division of Jefferson
County, Alabama during the period in which the jury roll
which yielded these totals was compiled been independent
of race?
18. In questions 15 and 16 above, assume a margin of
error of 5% in favor of the Jury Board of Jefferson
County, Alabama with respect to the percentages of Ne
groes on the jury roll, i.e., in question 15 assume the per
centage is 17.9% instead of 12.9% and in question 16
assume the percentage is 19.9% instead of 14.9%. What
are these probabilities?
19. In light of your answer to the immediately preceding
question, is your answer to question 17 the same. Explain.
20. From the data supplied by the circuit clerk for the
Bessemer Division of the Jefferson County, Alabama Cir
cuit Court, one of the defendants herein, comparing the
number of Negro jurors drawn for jury venires in the
Bessemer Division from September 11, 1967 to Decem
ber 11, 1967 with the whole number of jurors drawn
Interrogatories to John S. de Cani
45
Interrogatories to John S. de Cani
during this period, please calculate and state the statistical
probabilities based on the assumption of chance or random
selection, of that number of Negro jurors being drawn
for the venires in light of the population data previously
given.
21. How do these probabilities compare with those pre
viously determined by you in answering questions 15, 16
and 18 above?
22. After having, determined these probabilities, is your
opinion regarding whether the method of juror selection in
the Bessemer Division of Jefferson County is independent
of race consistent or inconsistent with that expressed in
your answer to question 17? Explain.
23. Are the methods employed by you in determining
the statistical probabilities inquired into above generally
accepted methods in your profession?
Plaintiffs waive their right to tile redirect interroga
tories.
Original Signed By :
Norman C. A maker
Norman C. A maker
Jack Greenberg
10 Columbus Circle
New York, New York 10019
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Plaintiffs
46
Notice of Motion for Protective Order Limiting
Examination Upon Written Interrogatories
Pursuant to Rule 3 1 (d ), F.R.C.P.
(Filed January 9, 1968)
To: Honorable Nokman C. A maker and
Honorable Jack C. Greenberg
10 Columbus Circle
New York, New York 10019
Honorable Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Please take notice that on the 15th day of January,
1968, at 10 o’clock A. M., or as soon thereafter as counsel
can be heard, the undersigned will move the Honorable
Clarence W. Allgood, Judge of the United States District
Court for the Northern District of Alabama in the court
room thereof, for an order limiting the scope of the
examination of John S. de Cani by disallowing the direct
interrogatories heretofore served and proposed to be pro
pounded to him upon the objections hereto attached.
/ s / M acD onald Gallion
M acD onald Gallion
Attorney General of Alabama,
/ s / L eslie H alt,
T iEst .te H alt,
Assistant Attorney General of Alabama
250 Administrative Building
Montgomery, Alabama 36104
47
N o tice o f M o tio n f o r P r o te c t iv e O rd er L im itin g
E xa m in a tion U pon W r it te n In te r r o g a to r ie s
P u rsu a n t to R u le 3 1 (d ) , F .R .C .P .
/ s / Louis W ilkinson
Louis W ilkinson
D e p u ty D is tr ic t A t to r n e y
T en th J u d icia l C ircu it
Jefferson County Courthouse
Birmingham, Alabama 35203
A tto r n e y s f o r D e fen d a n ts
48
(Filed January 9, 1968)
Defendants object to the following interrogatories pro
posed by Plaintiffs and served herein on the 3rd day of
January, 1968, on the grounds stated below, to wit:
Interrogatory No. 15: “Assuming that the initial selec
tion of persons for inclusion on the jury roll and in the
jury box for the Bessemer Division of Jefferson County,
Alabama, is independent of race, i. e., is pursuant to ran
dom or chance selection, what is the statistical probabil
ity of having 1,549 Negroes on a jury roll of 12,050 per
sons or 12.9% of the total names on the roll, where the
total presumptively eligible population is 36,396 of which
20,238 or 55.6% are Negroes?”
Objected to on the ground that the Interrogatory is
based on an incorrect hypothesis; that the assumption
that the initial selection of persons for inclusion on the
jury roll and in the jury box is independent of race and
that such selection is pursuant to random or chance selec
tion is contradictory; and that such assumptions are not
based on any proven or provable fact.
Interrogatory 16: “Assuming that the initial selection
of persons for inclusion on the jury roll and in the jury
box for the Bessemer Division of Jefferson County, Ala
bama, is independent of race, i. e., is pursuant to random
or chance selection, what is the statistical probability of
having 1,549 Negroes on a jury roll of 10,429 persons or
14.9% of the total names on the rolls, where the total pre
sumptively eligible population is 27,733, of which 14,199
or 51.2% are Negroes?”
Objections to Proposed Interrogatories Pursuant to
Rule 31 (d ) F.R.C.P.
49
Objections to Proposed Interrogatories Pursuant to
Rule 3 1 (d ) F.R.G.P.
Objected to on the ground that the Interrogatory is
based on an incorrect hypothesis; that the assumption
that the initial selection of persons for inclusion on the
jury roll and in the jury box is independent of race and
that such selection is pursuant to random or chance selec
tion is contradictory; and that such assumptions are not
based on any proven or probable fact.
/ s / MacDonald Gallion
MacDonald Gallion
Attorney General of Alabama
/ s / Leslie Hall
Leslie Hall
Assistant Attorney General of Alabama
250 Administrative Building
Montgomery, Alabama 36104
/ s / Louis W i l k i n s o n
Louis W ilkinson
Deputy District Attorney
Tenth Judicial Circuit of Alabama
Jefferson County Courthouse
Birmingham, Alabama 35203
Attorneys for Defendants
50
Deposition on Written Interrogatories of
Dr. John S. deCani
(Filed January 12, 1968)
P ursuant to the Notice of Taking Deposition by Writ
ten Interrogatories served by the Counsel for the Plain
tiffs, December 29, 1967, under the provisions of Rule 31
(a)(b)(c) of the Federal Rules of Civil Procedure, the
deposition of Dr. John S. deCani was taken before Rae
DiBlasi, Notary Public, Philadelphia County, Pennsyl
vania, in Room 101, University of Pennsylvania Law
School, 3400 Chestnut Street, Philadelphia, Pennsylvania,
beginning at 12:00 noon, January 9, 1968.
Dr. John S. deCani
having been first duly sworn by Rae DiBlasi, Notary Pub
lic, Philadelphia County, Pennsylvania, was called as a
witness and examined, and testified as follows in response
to the interrogatories directed to him:
To the first interrogatory, he saith:
John S. deCani, 114 W. Mt. Airy Avenue, Philadelphia,
Pennsylvania 19119.
To the second interrogatory, he saith:
I am Associate Professor of Statistics and Operations
Research at the University of Pennsylvania.
To the third interrogatory, he saith:
I was appointed Instructor in Statistics in 1948, As
sistant Professor of Statistics in 1958, Associate Profes
sor of Statistics in 1963. I received my present title in
1964, when the name of my department was changed.
I am primarily a statistician.
51
To the fourth interrogatory, he saith:
This is answered in question 3.
To the fifth interrogatory, he saith:
I have a Bachelor of Science in Mathematics from the
University of Wisconsin, a Master of Business Admin
istration and a Doctor of Philosophy from the University
of Pennsylvania. Both of these are in statistics.
To the sixth interrogatory, he saith:
I had a Fulbright Fellowship to Norway in 1959-60 and
a Lindhack Foundation Award for Distinguished Teaching
in 1964.
To the seventh interrogatory, he saith:
The Fulbright Award was for teaching and research.
The research was on a rather theoretical statistical sub
ject having to do with the best way to use the results of
one statistical study in another one.
To the eighth interrogatory, he saith:
Yes. My primary consulting is with the United States
Navy. This work is highly varied in nature. My most
recent work is on the changes in blood chemistry that are
induced by different kinds of physical and emotional stress,
but this is only one of many studies I have done for the
Navy. I am also a consultant for the Columbia Broad
casting System, where I do election forecasting from early
returns using a computer, and for the Auerbach Corpo
ration in Philadelphia, which is a company specializing
in the design of computer systems.
Deposition on Written Interrogatories of
Dr. John 8. deCani
52
To the ninth interrogatory, he saith:
I am a member of the American Statistical Association
and the Institute of Mathematical Statistics. These are
general societies in my profession. The Biometric Society
is concerned with the application of statistics in biology
and medicine, and the Econometric Society considers ap
plications in economics. The title of the Society for Indus
trial and Applied Mathematics is self-explanatory, and
the Institute of Management Science is devoted to the study
of applications of mathematics to the solution of some
types of business problems. I hold memberships in all
of these societies.
To the tenth interrogatory, he saith:
I have published in various journals in my field. I
recently published a study comparing the success of high
and low income groups in the stock market. This ap
peared in the Proceedings of the Business and Economics
Section of the American Statistical Association. My work
on various ways to measure technological change has ap
peared in the Review of Economics and Statistics, in the
Productivity Measurement Review, and in the Interna
tional Economic Review. A couple of papers on manage
ment decision-making under uncertainty appeared in Man
agement Science, and a paper on mathematical models for
forecasting population growth in an integrated neighbor
hood was published in Regional Science.
To the eleventh interrogatory, he saith:
I am co-author of a book on elementary mathematical
statistics in business, Basic Statistics with Business Ap
plications, John Wiley and Sons, New York, 1966.
Deposition on Written Interrogatories of
Dr. John S. deCani
53
To the twelfth interrogatory, he saith:
My vitae is currently being revised, but I have supplied
its essentials in my answers to the preceding questions.
To the thirteenth interrogatory, he saith:
The theory of probability is the basis for calculating
the relative frequency—or probability—of occurrence of
events when the occurrence or non-occurrence of these
events is determined by a large number of random causes,
or chance. For example, there are 2598960 different five-
card poker hands. This is the total number of ways in
which five cards can be selected from fifty-two cards. Only
four of these hands are “royal flushes,” one in each suit.
If the cards are dealt fairly, then all 2598960 hands are
equally likely, and the probability of a royal flush is four
out of 2598960, or 0.000001539, roughly fifteen out of ten
million.
To the fourteenth interrogatory, he saith:
If the selection is random, it is, among other things,
independent of race, and, if we know the composition of
the population from which the pool is selected, we can
calculate the probabilities of various compositions of the
pool, just as we do for poker hands. If the probability
of a particular pool is very small, we can take this as
an indication that the selection might not be random. The
smaller the probability, the stronger the indication. Ac
tually, when the population is large, the probability of
any particular pool is small, so we calculate the proba
bility that chance alone would have produced as strong
or stronger an indication of non-randomness. An over
simplified example will help. Suppose the population con
sists of ten whites and ten Negroes, and a pool of six
Deposition on Written Interrogatories of
Dr. John S. deCani
54
potential jurors contains one Negro. This is some indica
tion of underrepresentation, since, on the average, we would
expect three Negroes and three whites. If the pool con
tained no Negroes, this would he a stronger indication
of underrepresentation. So we calculate the probability
that random selection would have produced a pool con
taining either no Negroes or one Negro. There are 38760
different possible pools of six persons which can be se
lected from a population of twenty persons. 2520 of these
pools will contain precisely one Negro, and 210 of them
will contain no Negroes. Hence, 2730 pools will contain
one or no Negroes. With random selection, all 38760 pools
are equally likely, and the probability of a pool contain
ing either one Negro or no Negroes is 2730 out of 38760,
or 0.07043. In about seven per cent of the cases, chance
alone would have produced as strong or stronger an indi
cation of underrepresentation. It is up to the Court to
decide whether or not this probability represents a suffi
ciently rare event. Statisticians frequently draw the line
at five per cent, and conservative ones at one per cent
or even one-tenth of one per cent. Since seven per cent
is larger than any one of these, if I were making the
judgment, I would say that, in this case, there is not a
sufficiently strong indication of underrepresentation.
To the fifteenth interrogatory, he saith:
If the selection is random, the probability of 1549 or
fewer Negroes on a jury roll of 12050 persons is a num
ber which is written as 1.9 x 10-2963, or as a decimal point
followed by 2962 zeroes and the number 19. It is so small
that its meaning is difficult to grasp. It is about the same
as the probability of tossing 9842 or more heads consecu
tively with a fair coin, or being dealt 251 or more con
Deposition on Written Interrogatories of
Dr. John 8. deCani
55
secutive bridge hands, each containing 13 spades, or be
ing dealt 509 or more consecutive royal flushes in a game
of five-card draw poker.
To the sixteenth interrogatory, he saith:
This probability is slightly larger, of course, but still
extremely small. It is written as 3.7 x lO”1944, or as a deci
mal point followed by 1943 zeroes and the number 37.
It is roughly the same as the probability of tossing 6456
or more heads consecutively with a fair coin, or being
dealt 164 or more consecutive bridge hands each contain
ing 13 spades, or being dealt 334 consecutive royal flushes
in a game of five-card draw poker.
To the seventeenth interrogatory, he saith:
I would say that the method of selection has not been
independent' of race. My reasons are explained in my
answer to question 14. In ten years of professional con
sulting, I have never seen probabilities this small.
To the eighteenth interrogatory, he saith:
To make my assumptions explicit, I am adding five per
cent of the jury roll to the 1549 Negroes on the jury roll.
If the jury roll contains 12050 names, I add 603 (5% of
12050) to 1549, giving 2152 Negroes, or 17.86%. If the
jury roll contains 10429 names, I add 522 to 1549 giving
2071 Negroes, or 19.86%. If 20238 out of a population of
36396 persons are Negroes, the probability that random
selection of a jury roll of 12050 persons would yield a roll
containing 2152 or fewer Negroes is 1.7 x 10~2260, or a num
ber which can be written as a decimal point followed by
2259 zeroes and the number 17. It is about the same as
the probability of being dealt 388 consecutive royal flushes
Deposition on Written Interrogatories of
Dr. John S. deCani
56
in a game of five-card draw poker. If 14199 out of a pop
ulation of 27733 persons are Negroes, the probability that
random selection would lead to a jury roll of 10429 per
sons of whom 2071 or fewer are Negroes is 7.9 x 10-1415.
This probability can be written as a decimal point fol
lowed by 1414 zeroes and the number 79 and is roughly
the same as the probability of being dealt 243 or more
consecutive royal flushes in a game of five-card draw poker.
To the nineteenth interrogatory, he saith:
My answer to question 17 is still the same for the
reasons given there.
To the twentieth interrogatory, he saith:
Since my testimony is written rather than oral, the
easiest way to answer your question is in tabular form.
In each case, the probability is that of the given number
or fewer Negroes:
Deposition on Written Interrogatories of
Dr. John 8. deCani
Probability Assuming
Number of a Population of
Number of all Negro 55.6% 51.2%
Date Juries jurors jurors Negro Negro
9/11/67 5 Juries 56 11 5.9 x 108 2.1 x 106
9/11/67 1 Grand Jury 18 4 .0036 .013
9/25/67 6 Juries 73 15 1.6 x 109 1.5 x 106
10/ 9/67 5 Juries 57 9 1.6 x 109 1.0 x 106
10/23/67 5 Juries 58 15 4.9 x 106 9.8 x 105
11/ 6/67 5 Juries 52 5 2.9 x 1011 2.2 x 109
11/27/67 4 Juries 41 6 1.5 x 107 2.1 x 106
11/27/67 1 Grand Jury 18 6 .041 .10
12/11/67 4 Juries 48 10 1.3 x 10« 2.5 x IQ9
57
To interpret probabilities written in the form a x 10_b,
shift the decimal “b” places to the left, e.g., 5.9 x 10~8 =
.000000059, 2.1 x 10~6 = .0000021. In every case, Negroes
are underrepresented on the juries. Except for the two
grand juries, the probabilities are small enough to con
vince most statisticians of non-randomness, and the prob
abilities for the September 11th grand jury would be
sufficiently convincing in most contexts. When we con
sider the probability of these events occurring consecu
tively, as they appear to have occurred, we get 6 x 10~68
if we assume 55.6% Negroes in the population and 4.7 x
10-47 if we assume 51.2% Negroes in the population.
To the twenty-first interrogatory, he saith:
These probabilities are of an entirely different order
of magnitude, but in the earlier questions we were deal
ing with samples (jury pools) of over 10,000 persons,
and here we are dealing with samples of less than 100
persons. The so-called “law of averages” is strongly en
forced in large samples and not so strongly enforced in
small ones.
To the twenty-second interrogatory, he saith:
My opinion is still quite consistent with that expressed
in my answer to question 17. The racial composition of
the 36 juries we have examined in detail is extremely un
likely if the juries are selected at random from the stipu
lated populations.
To the twenty-third interrogatory, he saith:
Yes, they are standard methods. I believe that any
statistician faced with the same data would come to es
sentially the same conclusions.
/ s / J ohn S. de Cani
John S. deCani
Deposition on Written Interrogatories of
Dr. John 8. deCani
58
(Filed January 16, 1968)
I. Introductory Statement.
This class action filed in March 1966, by four Negro
citizens of the United States and the State of Alabama,
residing in the Bessemer Division of Jefferson County,
Alabama, seeks injunctive relief against the jury board
of Jefferson County, Alabama, its clerk, and the Clerk
of the Bessemer Division of the Jefferson County Circuit
Court, restraining them from discriminating against Ne
groes who are qualified for jury service in the Bessemer
Division in the selection of Negroes for jury service, and
requiring them to discharge their affirmative duty to use
juror selection methods and procedures in composing the
initial roll of juror names, jury venires and panels, which
will fairly reflect their proportion of the number of all
persons in Jefferson County qualified to serve on grand
and petit juries in the Bessemer Division of Jefferson
County, so that the grand and petit juries so constituted
will be bodies truly representatives of all persons in Jef
ferson County, Alabama qualified for jury service.
At the pre-trial conference held on November 21, 1967,
the Court requested the parties to file memoranda of law
by the trial date, January 15, 1968, and in such memoranda
to discuss particularly the question of whether the deci
sion in Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966)
precludes the Court from granting relief in the instant
case. This question is discussed below, as well as plain
tiffs’ principal legal contentions which plaintiffs submit
as the basis for granting them injunctive relief. Finally,
the question of the nature of the relief to be accorded is
briefly discussed.
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
59
II. The Effect of Billingsley v. Clayton.
Like the present action, Billingsley v. Clayton was a
civil class snit brought in this Court against the jury
hoard and Clerk of Jefferson County, seeking injunctive
relief against racial discrimination in the jury selection
process. After trial, this Court denied relief and the
denial was affirmed on appeal, Billingsley v. Clayton, 359
F.2d 13 (5th Cir. 1966). The basis of the Fifth Circuit’s
affirmance was that the complaining parties had failed to
discharge the requisite burden of proof:
After a careful and cautious examination of the
entire record, the briefs, and the contentions of the
parties made on oral argument, we reach the firm
conclusion that the findings of the trial court are
amply supported by substantial evidence, and that
the court applied the correct legal standards to the
facts found. The court was amply justified in con
cluding that the plaintiffs failed in their proof. 359
F.2d at 22 (Emphasis supplied).
This judgment, however, as was made clear by the Fifth
Circuit, is not to be construed as one asserting that relief
cannot be accorded against these defendants on the basis
of a different set of fact findings growing out of adequate
proof. The Court was quite explicit in this regard:
It is appropriate to state that our conclusion in
this case does not preclude the granting of relief
in any future proceedings in which racial discrim
ination of a systematic nature in the jury selection
process is established by adequate proof. 359 F.2d
at 24.
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
60
Thus, plainly, the Fifth Circuit’s decision in Billingsley v.
Clayton is not res judicata with respect to the issues pre
sented in the complaint but was rather a determination
that there had been a failure of proof; “ future proceed
ings” of this nature were clearly contemplated—indeed
invited—by the Court of Appeals.
It is important to note that the primary reason for
the failure of proof in the Billingsley case was that “a
critical link in the evidence—the racial composition of the
jury boxes— [was] missing.” 359 F.2d 22, n. 6. “ [S]ince
the racial composition of the jury boxes was not proved”
359 F.2d 23, n. 6, the Fifth Circuit concluded that there
was not “ evidence . . . sufficient to establish discrimina
tion against eligible Negroes in the formulation of the
jury roll and the filling of the jury box.” 359 F.2d at 24.
(Emphasis supplied). Yet, even though the Court of Ap
peals felt constrained by this evidentiary deficiency to
affirm the judgment of this Court, it plainly disapproved
of what even that inadequate record showed to be the
situation with respect to jury selection in the Bessemer
Division:
We do not approve the situation which the record
shows to exist in the Bessemer Division. 359 F.2d at
23.
Thus, clearly, as the above discussion indicates (1) the
Fifth Circuit’s affirmance was based solely on a failure
of proof by the plaintiffs and was not an endorsement
of the jury selection procedures in the Bessemer Division;
and (2) the Court expected that in “future proceedings”
of this nature, relief would be accorded on a proper show
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
61
ing. At the trial of this case, plaintiffs will prove the
racial composition of the jury roll and jury box, as -well
as supply all other “critical links” in the evidence. Based
on extensive pre-trial discovery, the results of which will
he introduced at trial, plaintiffs will show that Negroes
are grossly under-represented in the inclusion of their
names on the jury roll in the Bessemer Division in rela
tion to the number of Negroes in the population avail
able for jury service. Plaintiffs will further show that the
juror selection methods and procedures actually applied
for the selection of names for jury service in the Bessemer
Division have been such that the defendants have failed
in their affirmative duty to secure a fair representation
of Negroes on the jury roll and consequently on jury
venires and panels and that in some cases this has been
accomplished by means of the jury selectors applying un
warranted standards to the selection of Negro names. In
short, the proof here is more than adequate and Billings
ley v. Clayton, in terms, requires not only that this Court
grant the opportunity for such proof to be presented,
but also quite clearly requires a ruling in plaintiffs’ favor
in accordance with the established legal principles.
III. The Applicable Legal Principles.
“ . . . [I] t is a constitutional imperative that the jury,
grand or trial, fairly represent the community, Brooks
v. Beto, 366 F.2d 1, 11 (5th Cir. 1966). In another formu
lation, the United States Supreme Court has said “that
the jury [must] be a body truly representative of the
community.” Smith v. Texas, 311 U.S. 128, 130 (1940).
See also Scott v. Walker, 358 F.2d 561, 564; Billingsley
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
62
v. Clayton, 359 F.2d 13, 18 (5th Cir. 1966). Thus the initial
pool of juror names must fairly reflect the racial compo
sition of the community involved. “If a fair cross section
is consistently lacking, then, without more, it is estab
lished that the commissioners have failed in their duty.”
Babinowitz v. United States, 366 F.2d 34, 58 (5th Cir.
1966).
The judgment regarding whether the jury roll fairly
represents the racial composition of the community is one
that is made on the basis of the results shown by the
jury roll. “ The focus of the law is on the list from which
the jury is drawn and not on the composition of a par
ticular jury or grand jury.” (Emphasis supplied.) Babin
owitz v. United States at 59. Judged by this standard, the
proof here shows that the jury roll compiled by the de
fendants is constitutionally inadequate. Negroes consti
tute more than fifty percent of the eligible juror popula
tion of the Bessemer Division yet less than fifteen percent
of the names on the jury roll are the names of Negroes.1
Though the jury roll need not be a “perfect mirror of
the community,” Swain v. Alabama, 380 U.S. 202, 208
(1965), a result which leaves the Negro community so far
underrepresented as here, violates the Constitution.
(1) Relevant to the determination of whether such “ de
cided variations in [the] proportions of Negroes and whites
on [the] jury [roll] from racial proportions in the popu
lation . . . , ” Seals v. Wiman, 304 F.2d 53, 67, constitute
a constitutional violation, is the statistical probabiltiy of
these results, assuming a non-discriminatory random se
lection of juror names. For “ [representation must be
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Bight to Injunctive Belief
1 See data contained in the parties’ stipulation.
63
the product of either ‘the operation of an honest exercise
of relevant judgment or the uncontrolled caprices of
chance/ ” Brooks at p. 14. Since defendants’ method of
selecting jurors for inclusion on the roll in the Bessemer
Division is one of a house to house canvass or survey2
clearly the random nature of this canvass should produce
a fair racial cross-section of the community, i.e., one which
though not a “perfect mirror” closely approximates the
proportion of Negroes in the population, if one assumes
that racial factors as a means of excluding Negroes, have
not entered into the judgment as to the final composition
of the jury roll.3 On the other hand if either deliberate
racial inclusion or the failure of effort to get a fair racial
balance has occurred, then this result will be reflected
statistically and one can chart the probability of the oc
currence as reflected by the actual results obtained. De
termination of these probabilities based on the actual
statistics by generally accepted scientific methods, though
consistent with intuitive judgment reinforces that judg
ment and makes it more reliable. The Supreme Court
recognized this in Whitus v. Georgia, 385 U.S. 545, 552,
n. 2, citing Finkelstein “The Application of Statistical
Decision Theory to the Jury Discrimination Cases,” 80
2 See depositions of Bill R. Whitley, Clerk of the jury board
and B illingsley v. C layton, 359 F.2d, pp. 19-20.
3 The only “exercise of relevant judgment” made by defendants
is to determine a fter the initial canvass whether the persons whose
names have been selected have criminal records. See depositions
of Bill R. Whitley (May 5, 1966, pp. 67-68); (June 5, 1967, p.
15). And unless it is assumed that Negroes in the Bessemer Divi
sion have criminal records far out of proportion to their num
bers—which plaintiffs at the trial will show not to be the case—
the proportions of Negroes to whites on the jury roll should closely
approximate their proportion in the whole population.
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
64
Harvard Law Eev. 338 (1966), and in its recent case of
Jones v. Georgia, 19 L.ed. 2d 25 (1967). And on many
occasions the 5th Circuit has endorsed the use of the
statistical approach in dealing with the problem of racial
discrimination.4
(2) When the requirement of obtaining a truly repre
sentative jury is involved—as here—with the problem of
racial discrimination, there is an affirmative duty on the
part of jury commissioners, “a specific, tangible, identifi
able burden on jury-choosing officials” Brooks v. Beto,
supra, at 12,
that jury selectors make themselves acquainted with,
not just the class [of Negroes] hut the members of
it in order to determine the identity and availability
of individuals who have the qualifications for poten
tial jurors and whose presence is required in the
“universe” to assure fair community representation.
Brooks at 23.
This must be done because of “the reality of . . . the
segregated world . . . ” Brooks at p. 12. “ . . . [I]naction,
evidenced by the statistics or by the commissioners’ ad
missions that they have failed to acquaint themselves with
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
4 “In the problem of racial discrimination, statistics often tell
much, and Courts listen.” Alabam a v. United States, 304 F.2d
583, 586 and note 5 citing United S tates ex rel Goldsby v. H arpole,
263 F.2d 71 and cases collected in n. 13 at p. 77; B rooks v. B eto,
366 F.2d 1, 9 (“ . . . figures speak and when they do, Courts
listen”) and at p. 12 (“ . . . the Courts have consistently held
that statistics speak louder than the jury commissioners”).
65
the qualifications of Negroes,* 6 cannot be cured by the
symbolic or mechanical action which some commissioners
defensively resort to.” Brooks at 13. They must deal with
the practical problem. Brooks at 9. One way to deal with
it is, “ to place on the juror-selecting body persons from
or closely identifiable with [Negroes].” Brooks at 23.
Another is to establish “a systemized procedure for con
tacting responsible members or organizations within the
class to obtain names or lists of names of those likely to
be available and qualified.” Ibid.
(3) However, in adopting this latter course, jury offi
cials may not engraft unacceptable standards of their own
onto the statutory standards, thus investing unwarranted
discretion in the hands of persons who may use their
own notions of what constitutes an “acceptable” juror to
deviate from the fair cross-section standard.6 Rabinowitz
v. United States, 366 F. 2d 34 (5th Cir. 1966).
IV. Relief
As a court of equity, this court should fashion a remedy
to meet the practical necessities of the situation shown by
plaintiffs’ proof. An example of such practical adjust
ment of remedies in a suit of this kind is the decree of
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
6 See depositions of Bill R. Whitley and those of Ruth P. Cum
mings, Patsy Ann Jolly, Betty Jo Harbison, and Joy Ann Lance
taken Dec. 20, 1967 (Plaintiffs’ note).
6 Defendants here have sent a few letters (too few) to persons
in the Bessemer Division asking them to “select only such men as
you would want to sit on the jury which might be about to pass
on a case involving your own life, liberty or property.” See ex
hibits 2-5 attached to deposition of Bill R. Whitley taken on May 5,
1967.
66
District Judge Johnson in Mitchell v. Johnson, 250 F. Snpp.
117 (M.D. Ala. 1966). The relief there afforded included
(1) the emptying of the current jury box; (2) its refilling;
(3) the compilation of a periodic comprehensive report
to the court and attorneys of record, showing the racial
composition of the jury list and the names of the persons
who were found unacceptable by the jury commissioners
and the reasons therefor; (4) retention of jurisdiction for
the entry of further orders.
Similarly here, plaintiffs urge that (1) the present jury
roll be expunged and the present jury box be emptied
and any outstanding summonses to jurors be withdrawn;
(2) immediately upon rendition of the court’s decree, the
defendants be required, as interim measure until a new
house-to-house canvass can be conducted, to compile a
new jury roll from other sources smaller than the one
currently in use which shall contain just enough names
to permit the business of the Circuit Court in the Bes
semer Division to be conducted, and that they be re
quired to make a conscious effort to obtain a fair repre
sentation on such roll of Negro names; (3) after com
pilation of this roll, the customary house-to-house canvass
be conducted and that in conducting it, the defendants be
required to use Negro canvassers, contact Negro or
ganizations for lists of Negro names and Negro individ
uals who can reasonably be expected to furnish the names
of Negroes. In contacting these individuals and organiza
tions, the defendants shall not encourage them to use
any standard for selecting names for these lists other
than age, residency, and the absence of a criminal record
as is presently done in the case of white people; (4) the
defendants be required to make every effort to assure a
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
67
representative number of Negroes on the jury roll by
•whatever other means in addition to those indicated above
are necessary; (5) the defendants be required to keep
records by race and to report to the court with copies
of the report served on the attorneys of record for the
plaintiffs, the racial composition of the newly compiled
jury roll and a list of the names indicating their race,
of all persons whose names were considered for inclusion
on the jury roll but who were rejected as unqualified;
(6) a similar report be made upon each recompilation of
the jury roll and refilling of the jury box and; (7) the
court retain jurisdiction until further notice for the entry
of any additional orders as may be required.
Respectfully submitted,
Norman C. A maker
Jack Greenberg
10 Columbus Circle
New York, New York 10019
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Plaintiffs
Plaintiffs’ Pre-Trial Memorandum in Support of
Their Right to Injunctive Relief
68
Judgment
(Filed January 16, 1968)
This action came on for trial before the Court, Honor
able C. W. Allgood, United States District Judge, presid
ing, and the issues having been duly tried;
It is Ordered and Adjudged that this matter be taken
under advisement.
January 16, 1968
Birmingham, Alabama
W illiam E. Davis
Clerk
B y / s/ Lester H. Jones
Deputy Clerk
69
(Filed February 6, 1968)
The plaintiffs, Arthur J. Jones, Millard Davis, Lorenzo
Cates and the Rev. J. A. Salary, have filed this suit as
a class action against the members of the Jury Board of
Jefferson County, Alabama, and the Clerk thereof, as
well as against the Clerk of the Bessemer Division of the
Tenth Judicial Circuit of Jefferson County, Alabama.
Plaintiffs are Negro citizens of Jefferson County, resid
ing in that part of the county known as the “Bessemer
Cut-off.”
This action is filed on behalf of plaintiffs, as well as on
behalf of all others similarly situated, pursuant to Rule
23(a)(3) of the Federal Rules of Civil Procedure. Juris
diction is invoked under 28 U.S.C., Section 1343(3) (4), and
seeks to redress the deprivation of rights, privileges and
immunities secured by the Fourteenth Amendment to the
Constitution of the United States, and by one or more of
the following statutes: 42 U.S.C., Section 1981; 42 U.S.C.,
Section 1983; and 18 U.S.C., Section 243.
The plaintiffs by this action seek injunctive relief, alleg
ing that members of the Jury Board of Jefferson County,
Alabama, have in the past discriminated and are at the
present time discriminating against the plaintiffs and the
members of their class, which they represent, on racial
grounds by deliberately selecting from the jury rolls or
jury list or from the jury box only a token number of Ne
groes for the grand and petit jury venires or panels, or
by deliberately excluding them altogether from the grand
and petit jury venires or panels, and/or by failing to sum
Findings of Fact, Conclusions of Law and
Memorandum Opinion
70
mon any or summoning only a few Negroes for jury duty
in the Bessemer Division of Jefferson County, Alabama,
so as to assure that either no Negroes or only a limited
number of Negroes serve on the grand and petit jury
venires or panels, and further to assure that those whose
names are placed on the venires or panels can easily be
struck from any panel of jurors selected to try a civil or
criminal case in the Bessemer Division of Jefferson County,
Alabama.
In their prayer for relief, the plaintiffs ask that the court
issue a preliminary and permanent injunction against the
defendants’ their agents, servants, employees, successors,
and all other persons in active concert or participation with
them, from using the names of persons theretofore selected
for inclusion on the jury roll, list, or box, as presently con
stituted for the purpose of summoning grand or petit
jurors on the jury venires and panels in the Bessemer Divi
sion of Jefferson County, Alabama, and from using said
jury list, roll, or jury box in any manner whatsoever.
Plaintiffs further pray that the court enjoin the defend
ants from “Failing to withdraw all outstanding summonses
which have been served upon prospective jurors.”
In the original complaint the court was requested to re
quire the Jury Board of Jefferson County, Alabama, to
compile a new jury roll and jury box for the Bessemer Divi
sion, reflecting a proportionate ratio or percentage of Ne
groes residing in that area.
Following a motion to dismiss filed by the defendants,
the plaintiff filed an amended complaint, continuing to con
tend that Negroes should be represented on the jury rolls
and on the venires in proportion to the number of all per
Findings of Fact, Conclusions of Law and
Memorandum Opinion
71
sons in the Bessemer Cut-off of Jefferson County, Alabama.
By and large, Billingsley v. Clayton, 359 F. 2d 13 (1966),
hereinafter referred to as Billingsley, has settled most of
the questions raised here as to the Jefferson County Jury
Board, leaving the door open, however, to further inquiry
into the Bessemer Division. In Billingsley, the court stated:
“The record does disclose that Negroes seldom sit
on petit or grand juries in the Bessemer Division. We
do not approve the situation which the record shows to
exist in the Bessemer Division. However, the record
fails to show any connection whatever between this
fact and the performance of their duties by the mem
bers of the Jury Board and its Clerk. As the trial court
pointed out, the appellees have nothing to do with
selection of jurors to serve on petit and grand juries
after their names are placed on the jury rolls. The
trial court observed that it would not grant relief
against parties not before it, or grant relief in areas
over which the appellees had no jurisdiction or right
to intervene. . . . ”
Having heard the evidence and carefully studied the en
tire record in this case, including stipulations and numerous
depositions, it is clear to this court that the Jury Board of
Jefferson County has in the past and is presently follow
ing the same procedures and practices in securing names
of qualified persons to be placed in the Bessemer jury box
as was followed by them at the time of the Billingsley case.
In Billingsley, the court recognized that the Jury Board
of Jefferson County had made a good faith effort to estab
Findings of Fact, Conclusions of Law and
Memorandum Opinion
72
lish representative juries, which would constitute a valid
defense for Jury Commissioners.
Since there is no evidence here to show that the Jury
Board of Jefferson County is in any way discriminating
against Negroes and is following no procedures or practices
that would encourage or allow anyone else to do so, we find
it necessary only to explore the conduct and actions of the
remaining defendants and of the judges of the court in the
Bessemer Division in actually selecting petit and grand
juries from the jury box, and the manner in which petit and
grand juries are selected from the jury roll furnished by
the Board in the Bessemer Division.
Before leaving discussion of the Jury Board of Jefferson
County, it should be noted that the Board in its efforts to
secure names of qualified citizens encountered the same dif
ficulties in Bessemer as it did in the remainder of the
County. Canvassers found it difficult to obtain the required
information from Negroes they interviewed and from neigh
bors of a Negro who was not at home when they called on
him. It should also be noted that one of the plaintiffs in
this case, the Bev. J. A. Salary, on cross examination testi
fied that he had been called for jury service in the Bessemer
Division in 1965, but did not serve. The Rev. Salary also
testified that he had received a letter from the Jury Board
soliciting his help in furnishing to the Jury Board the
names of qualified Negroes for jury service. This letter was
received in July of 1967. Rev. Salary could not remember
whether or not he had made any response to this letter.
When questioned by the court, he would not say that he
had. Records of the Jury Board revealed that no response
to this letter had been received by the Board.
Findings of Fact, Conclusions of Law and
Memo randum Opinion
73
Records of the Jury Board reveal that one of the plain
tiffs, Arthur Jones, who had testified that he was a resident
of Fairfield, 46 years old, and otherwise qualified for jury
service, and that he had never been summoned for jury
service, was actually on the jury roll for the years 1957
through 1959 and 1961 through 1963. Jury Board records
show that Mr. Jones was summoned for jury duty on Octo
ber 21, 1957, and that a return of “Not found” was made.
The records further show that the plaintiff Millard Davis
was listed on the jury roll for the years 1965 through 1967
and 1967 through 1969. Mr. Davis was not called as a wit
ness so it is not known whether or not he has ever been
called or has ever served as a juror, either on a petit or
grand jury.
Records were introduced to show that the remaining
plaintiff, Lorenzo Cates, was born on January 18, 1890,
making him ineligible for jury service due to his age.
The court finds that the Jury Board defendants have not
only acted in good faith but have made an unusual effort
to conscientiously and sincerely adopt and follow a system
of obtaining the names of qualified citizens for jury service
that would result in a jury roll that would fairly represent
a cross section of the community. Canvassers have been
hired to make a house-to-house survey. These people were
instructed always to get as many names as they could, to
make no difference in effort between white and Negro
neighborhoods and to treat them all alike. When no one
was at home the canvassers were instructed to leave a
card requesting the occupant to give the required informa
tion and mail the card back to the Jury Board. An effort
was also made to get information from neighbors.
Findings of Fact, Conclusions of Law and
Memorandum Opinion
74
In addition to the house-to-house canvass the Jury Board
also wrote letters to Negro ministers and other Negroes
who might be in position to furnish qualified names.
All Jefferson County jury boxes were refilled on May 15,
1967, so that the names of qualified women jurors might be
placed on the jury roll in compliance with Gardenia White,
et al. v. Bruce Crook, et al., 251 F. Supp. 401, (1966).
The canvass in the Bessemer Division began on the first
Monday in July, 1966, and was completed prior to May 15,
1967. Cards were typed and checked for any court record
that might disqualify the individual whose name had been
placed on that particular card.
In the presence of all of the members of the Jury Board,
the Bessemer box was emptied and refilled. The box was
then locked and delivered to the custody of Mr. Elmore
McAdory, Clerk of the Tenth Judicial Circuit, Jefferson
County, Alabama, Bessemer Division, Bessemer, Alabama.
A total of 12,050 new names was placed in the Bessemer
box and 57,736 names were placed in the Birmingham box.
In 1962, 43,837 names were listed on the jury roll for the
Birmingham Division and 8,892 on the jury roll for the
Bessemer Division. Both of the new boxes contained the
names of male and female jurors for the first time. This
probably accounted for the increase in the number of names
placed in both boxes.
Due to the fact that the Jury Board realized that their
canvassers were getting less cooperation out of the colored
communities than they were in the white communities, let
ters were used as a supplement to the door-to-door canvass.
Letters were sent to Negro ministers and to Negro princi
pals of schools; a total of 75 or 80 letters was mailed in an
effort to get these key people to furnish names of persons
Findings of Fact, Conclusions of Law and
Memorandum Opinion
75
qualified for jury service. Mr. Bill R. Whitley, Clerk of
the Jefferson County Jury Board, who supervised the mail
ing of these letters, estimated that less than ten replies,
submitting names, were received.
Letters were not sent to lawyers because the Jury Board
felt that it would be unwise to do so since lawyers are
directly connected with jurors and might somehow he con
sidered as picking their own jurors.
It is very apparent here, as in Billingsley, that the rec
ord reflects a good faith bona fide effort on the part of the
Jury Board to give the Negro citizens of Jefferson County
at least an equal, if not a privileged, opportunity to he
called for jury service.
The Court, in Billingsley, speculating, stated, “ It may he
that Negro canvassers should he employed to assist in can
vassing the Negro community.”
The Jury Board has expressed no unwillingness to em
ploy any qualified Negro certified by the Civil Service
Board. The Board is required to select temporary or part-
time canvassers from a list certified to it by the Civil Ser
vice Board. Mr. Whitley, Clerk of the Jefferson County
Jury Board, when questioned about the hiring of Negro
canvassers, testified that he called one applicant, who he
assumed to be a Negro by her residence address and by her
voice over the telephone, and advised this applicant that
her name had been certified to the Jury Board as an avail
able temporary employee for canvassing purposes. He re
quested the applicant to come to his office for a personal
interview. This applicant did not fill the appointment and
was heard from no further.
In view of the apparent willingness and desire of the
Jury Board to obtain jurors truly representative of a cross
Findings of Fact, Conclusions of Law and
Memorandum, Opinion
76
section of the community, it would appear to this court that
if the Negro leaders in Jefferson County would really lead
in this direction and lend their able assistance to the Jury
Board, the problem would he speedily and easily resolved.
Some several months before the deadline for the names
of women to be placed in the jury boxes in this State, in
compliance with White, et al. v. Crook, et al., supra, attor
neys, clubs, District Attorneys and other interested and
qualified people conducted classes for women on jury ser
vice, its obligations and duties. These classes were well
attended and undoubtedly served an excellent purpose.
It was suggested by the canvassers and by the Clerk of
the Jury Board that quite often the Negro from whom they
were seeking information about prospective jurors just
did not seem to understand what they were talking about.
An educational program among the Negro communities
would undoubtedly be most helpful to all concerned. Such
a program might also help reduce the reluctance of some
Negroes to serve as jurors.
The court being satisfied that the Jury Board of Jeffer
son County is in no way discriminating against Negro citi
zens in the Bessemer Division of Jefferson County in select
ing names of qualified people to serve as jurors, it remains
only to examine the manner in which petit and grand juries
are selected in the Bessemer Division of Jefferson County.
In the Bessemer Division, civil and criminal courts are
held every month in the year except during the months of
July and August. The two judges in this division now alter
nate in holding civil and criminal dockets. For one term of
court Judge Gardner F. Goodwyn, Jr., will preside over the
criminal cases and will select jurors to serve in both his
court and in the court of Judge Edward L. Ball, who will
Findings of Fact, Conclusions of Law and
Memorandum Opinion
77
be hearing civil cases at the same time. For the next term
of court Judge Ball will hear the criminal cases and will
draw the jury venire for both courts.
The Clerk of the court, Mr. Elmore McAdory, makes up
the criminal docket, cuts a stencil for it, and then mimeo
graphs copies for all interested parties. The Clerk does not
set capital cases since these are set by the judge.
After the criminal docket is set, the docket is then shown
to the judge, who determines the number of jurors that
should be called. The jury box is unlocked and opened by
the judge, either Judge Goodwyn or Judge Ball, in open
court; and from 80 to 100 cards are drawn out. The drawing
is made in the courtroom. The Clerk of the court is present
and at times others are present since the courtroom is al
ways open when a jury venire is selected. The box is then
relocked by the judge and is returned to the Clerk who re
turns it to the safe where it is kept when not in use.
After the cards are drawn, they are delivered to the
Clerk who arranges them alphabetically and makes a dupli
cate list. The original is sent to the sheriff who summons
the jurors from this list and makes a return to the Clerk
as to the ones that have been served and the ones that have
not been found. The list is then returned by the sheriff to
the Clerk who checks on his books to determine whether the
names drawn from the box were served or not found. On
the morning the trial docket begins, usually on Monday,
the Clerk calls the roll, corrects the list of available jurors
who have reported, and the venire is then organized into
numbered juries, usually five. This is done due to the fact
that both Judge Goodwyn and Judge Ball will be holding
court at the same time and it is more convenient to desig
nate juries No. 1 and No. 3 to Judge Goodwyn and No. 2
Findings of Fact, Conclusions of Law and
Memorandum Opinion
78
and No. 4 or No. 2 and No. 5 to Judge Ball, holding one
panel in reserve, if necessary. The order is rotated so that
during a term of court all of the numbered jury panels will
be used.
Both Judge Goodwyn and Judge Ball use the same method
in selecting petit juries. The cards are shuffled and the
judge selecting the jury will draw six cards from the top
and six cards from the bottom. This will be jury No. 1. The
process is repeated until all available jurors have been
designated to serve on a numbered jury. The judges do not
look at the cards. They are drawn blind and at random
since they are shuffled before the drawing. The cards do
not bear any identification as to race, only the name of the
juror, his address and his employer. By looking at a card
one could not determine the color or nationality of the in
dividual whose name has been drawn.
In a capital case the jury will be selected from the entire
venire.
Judge Ball testified that he could remember only one case
in the last four months where no Negro was on the jury
finally selected to try the case; that in his best judgment
the ordinary jury would average eight white and four Ne
gro jurors. Judge Ball stated that he had been somewhat
surprised at the number of Negro women who had been
actually selected to serve on cases.
Judge Gardner F. Goodwyn, Jr., presiding judge of the
Bessemer Division who primarily handles the criminal divi
sion, testified that in selecting a grand jury he actually had
the shuffled cards placed in a hat and then reached into the
hat, which was held above his head, to pull the necessary
number of cards. He stated that six Negroes were selected
and served on his last grand jury. Judge Goodwyn further
Findings of Fact, Conclusions of Law and
Memorandum Opinion
79
testified that he could notice no difference, percentage wise,
between Negro and white defendants, in guilty verdicts in
jury trials. He stated that he based this on his impression
that 85 percent of the criminal cases were settled by a
guilty plea, and that approximately 60 percent of the re
maining cases which went to trial would he Negro and 40
percent white. Judge Goodwyn estimated that since August
of 1967, when the new box came into use, a large percentage
of his juries was made up of six women and six men, and
that about 40 percent of the jurors were Negroes.
Figures submitted to the court by both the plaintiffs and
the defendants in stipulations which agree that witnesses
would testify as to these checks but do not stipulate as to
the accuracy of the figures, reveal that a sizeable number
of Negro men and women has been actually selected to serve
on both petit and grand juries since September 11, 1967.
On the September, 1967 grand jury, made up of 18 jurors,
four Negroes actually served. On November 27, 1967, a
grand jury was empaneled. Of the 18 jurors who served,
six were Negroes. Approximately 27 percent of the grand
jurors were Negroes. Defendants’ stipulations offered fig
ures that would reveal that approximately 18 percent of
those who were actually empaneled to serve on juries from
September 11, 1967, to December 11, 1967, were Negroes.
The check made by the plaintiffs would show that 14.9
percent of the jurors were Negroes.
It appears from the record in this case that the manner
in which petit juries are being selected in the Bessemer
Division since Billingsley has been changed. In Billingsley
the court found that Negroes seldom sit on the trial of
cases or serve on grand juries in the Bessemer Cut-off.
This is no longer true, it being shown that since the box
Findings of Fact, Conclusions of Law and
Memorandum Opinion
80
was refilled in May, 1967, a substantial number of Negroes
has already been selected to serve and has served on both
petit and grand juries.
The court also found in Billingsley that in the or
ganization of the juries week by week, Negro jurors were
assigned to jury No. 4. This is no longer the custom or
practice. Both Judge Ball and Judge Goodwyn testified
that they now select the numbered juries at random; at
the time the cards are pulled from the available venire they
are selected after the cards are shuffled. The judges do not
look at the card until after it has been selected and handed
to the Clerk.
This court finds no discrimination against the plaintiffs
or members of their class, which they represent has been
practiced on racial grounds, in the Bessemer Division.
The number of Negroes known to be on the jury list and
who have actually served on petit and grand juries in the
Bessemer Division is far in excess of what would be nor
mally classed as a token representation. While the number
of Negroes is not an exact proportional representation of
the Negroes, the law as this court understands it does not
so require.
While a defendant is entitled to have a jury chosen with
out discrimination based on race or color, the Supreme
Court has repeatedly held that a defendant is not entitled
to an exact proportional representation of his class upon
the grand jury or petit jury determining his case. Swain
v. Alabama, 380 U.S. 202 (1965); Strauder v. West Virginia,
100 U.S. 303 (1880).
The court finds no evidence sufficient to establish dis
crimination against eligible Negroes in the formulation of
the jury roll and in the filling of the jury box. The court
Findings of Fact, Conclusions of Law and
Memorandum Opinion
81
further finds no evidence sufficient to establish practices
or procedures in selecting petit juries or grand juries in
the Bessemer Division that would permit discrimination
against eligible Negroes.
Therefore, a final judgment and degree will be entered
in conformity with the foregoing findings of fact, conclu
sions of law and memorandum opinion.
This the 6th day of February, 1968.
C. W. A LLP.OOP
United States District Judge
A True Copy
W illiam E. Davis, Cleric
United States District Court
Northern District of A labama
By: / s / Mary L. Tortorici
Deputy Clerk
Findings of Fact, Conclusions of Law and
Memorandum Opinion
82
Final Judgment and Decree
(Filed February 6, 1968)
Pursuant to the findings of fact, conclusions of law and
memorandum opinion filed herein,
It is Ordered, A djudged and Decreed that relief to the
plaintiffs he and it hereby is denied and that the defendants
have judgment herein.
It is further Ordered that the court costs herein be and
they hereby are taxed against the plaintiffs for which, un
less presently paid, execution may issue.
Done and Ordered this 6th day of February, 1968.
0. W. A llgood
United States District Judge
A True Copy
W illiam E. Davis, Clerk
United States District Court
Northern District of Alabama
By: / s / Mary L. Tortorici
Deputy Clerk
83
Transcript of Hearing of January 16, 1968
(Filed March 4, 1968)
—1—
In the United States District Court
F or the Northern District of A labama,
Southern Division
No. CA66-92
Arthur J. Jones, et al.,
vs.
Plaintiff,
John C. W ilson, et al.,
Defendants.
C A P T I O N
The A bove E ntitled Cause Came on to he heard before
the Hon. Clarence W. Allgood, Federal District Judge,
Birmingham, Alabama, on the 16th day of January, 1968,
when the following proceedings, among others, were had
and done:
A ppearances:
Mr. Norman C. A maker, 10 Columbus Circle, New York,
New York; and Mr. Demetrius C. Newton, 408 North 17th
Street, Birmingham, Alabama, appearing on behalf of the
Plaintiff.
Mr. Leslie Hall, Assistant Attorney General, Adminis
trative Building, Montgomery, Alabama, and Mr. L ouis
W ilkerson, Assistant District Attorney Tenth Judicial Cir
84
Transcript of Hearing of January 16, 1968
Proceedings
cuit of Alabama, Birmingham, Alabama, appearing on be-
— 2—
half of the Defendants.
Before :
Carmen Zegarelli, Commissioner.
P r o c e e d i n g s
10 o’clock A.M.
— 4 —
January 16, 1968
The Court: Good morning, gentlemen.
Mr. Newton: Good morning, Your Honor.
The Court: Do you now have all the stipulations in the
record!
Mr. Newton: No, sir, Your Honor. We have a stipula
tion here prepared by Mr. Meador that we previously
entered into.
Mr. Amaker: Yes, sir.
The Court: Have the clerk mark it and let me have it.
Mr. Newton: And, Your Honor, we have filed the original
of our trial brief with the clerk this morning and served a
copy on opposing counsel.
Mr. Hall: What stipulation are you talking about!
Mr. Newton: The one we took last Friday.
The Court: I understood that some several days ago
that stipulations were 1’ead into the record.
Mr. Wilkerson: Yes, sir.
The Court: Are these those stipulations?
—5—
Mr. Newton: Yes, sir.
The Court: And this is merely a copy of the stipulations
that have already been read into the record.
85
Mr. Newton: That’s correct, Your Honor.
Mr. Amaker: Your Honor, with respect to that stipula
tion, there are—unfortunately the pages are not numbered
—but there are four or five typographical errors that I
would like to point out.
The Court: That have not been corrected?
Mr. Amaker: I corrected them on the copy that I re
ceived, but they ought to he received and corrected in the
record. They are purely typographical.
The Clerk: Can you count down for me.
Mr. Amaker: Counting from the back with the back
pages 1 and 2, it is the third page from the back. If you
will look at the last full line of the first paragraph there,
you will see two of them, maximumizing, it should be
maximizing, and the ocer-stating should be, obviously,
over-stating.
The Clerk: O.K.
Mr. Amaker: And if you drop down to the last para
graph starting with “population data” , down to the word
— 6 —
chooses, which should be chose, and then over to the next
page immediately following that, we have got a couple.
First full paragraph, second line, older Birmingham, see
that?
The Clerk: Second paragraph next to last page?
Mr. Amaker: No.
Percentage of Negroes in the Bessemer Division, et
cetera. That second line, it should be Birmingham Health
Department. He has left the “I” off the Birmingham and
left the “TH” off health.
The Clerk: All right.
Transcript of Hearing of January 16, 1968
Proceedings
86
Mr. Amaker: Then the last paragraph of the same page,
the line just immediately above the one from the bottom,
he has “P3” and it should be “Persons” .
The Clerk: All right.
Mr. Amaker: That corrects them all.
Is that all right!
Mr. Hall: Do you have an extra copy of that!
Mr. Newton: Oh, yes.
Mr. Hall: We haven’t seen a copy of it.
The Court: You haven’t had a copy of that trial brief,
have you!
Mr. Hall: Just got it a few minutes ago, Your Honor.
— 7 —
The Court: All right.
Mr. Hall: There should be another correction with re
gard to this stipulation. Mr. Louis Wilkerson was present,
and this doesn’t show it.
Mr. Amaker: If you will notice, that date was the 29th
of June—excuse me, the 28th of June.
Mr. Wilkerson: I see.
Mr. Newton: The part in which Mr. Wilkerson was
present begins with the word “ Showing” .
Mr. Hall: We have no objection to it going in under the
circumstances, with the corrections.
The Court: All right.
Now, is the record clear up to this point now!
Mr. Newton: Yes, sir.
The Court: All right, gentlemen, you may proceed. I do
believe that—no, not yet.
Go ahead.
Mr. Newton: We would like to call Mr. Johnny Dawson.
Transcript of Hearing of January 16, 1968
Proceedings
87
The Court: I notice possibly a good many witnesses in
the courtroom, not necessary to have the rule invoked.
— 8—
Mr. Newton: No, sir.
The Court: All right.
Transcript of Hearing of January 16, 1968
Johnny 8. Dawson—for Plaintiff—Direct
J o h n n y S. D a w s o n , having been first duly sworn, was
examined and testified as follows:
Direct Examination by Mr. Newton-.
Q. Will you state your name, please, sir! A. Johnny
S. Dawson.
The Court: Let me get the last name. What is
it?
A. Dawson.
The Court: Dawson?
A. Yes, sir.
Q. What is your occupation, Mr. Dawson? A. Princi
pal of a high school, Carver in Bessemer.
Q. Where is Carver High School located? A. Bessemer,
Alabama.
Q. Is that area what is normally called, in our county,
the Bessemer Cut-off? Is that a part of what you normally
call the Bessemer Cut-off? A. Yes, sir, it is.
—9—
Q . Diff you receive from the United States Marshall a
subpoena asking you to bring certain information to court
with you? A. Yes, sir.
88
Q. What did that subpoena ask you to bring, Mr. Daw
son1? A. A complete list of the number of graduates of our
high school for the years 1960, ’61, ’62, ’63, ’64 and ’65.
Q. All right, sir.
Now, will you refer—did you bring such a list? A.
Yes, I did.
Q. And is that a true and correct list from the official
records of your high school? A. Yes, it is.
Q. How many graduates did you have for the year
1966? A. 1966?
Q. Yes. A. One hundred eight.
The Court: Let’s be sure—
Mr. Newton: I am sorry. 1960? A. 1960 the
— 10-
school was not operating as a high school, therefore, we
had no graduates.
Q. All right.
What was the first graduating class that you had? A.
1961.
Q. All right.
How many graduates did you have in 1961? A. Forty-
four.
Q. How many in 1962? A. Sixty-eight.
Q. How many graduates in 1963? A. Seventy-six.
Q. How many graduates did you have in 1964? A.
Seventy-six.
The Court: How many?
Transcript of Hearing of January 16, 1968
Johnny 8. Dawson—for Plaintiff—Direct
A. Seventy-six.
89
The Court: That’s the same number you had in
1963; is that correct?
A. Yes, sir.
Q. How many graduates did you have in 1965? A. One
hundred.
Transcript of Hearing of January 16, 1968
Johnny 8. Dawson—for Plaintiff—Direct
Mr. Newton: May I have that list, please, sir;
would like to have it marked, please, sir.
— 11—
(Plaintiff’s Exhibit 1 marked for identification.)
Q. I show you, Mr. Dawson, a document marked Plain
tiff’s Exhibit 1 for identification and I ask you if that is a
true and correct copy of the official records of your school?
A. It is.
Q. I would like to ask you if all of these persons are
Negro? A. Yes.
Mr. Newton: Your Honor, we offer Plaintiff’s
Exhibit 1 for identification into evidence as Plain
tiff’s Exhibit 1.
The Court: Any objection?
Mr. Hall: Not up to this point; he is just offering
it for identification, I believe.
Mr. Newton: No, I offered it in evidence.
The Court: He offered it in evidence now.
Mr. Hall: We object to the relevancy of it. I don’t
see where it has to do with the question of the
Jury Board of Jefferson County—
The Court: For the time being, I will overrule.
Mr. Hall: I wanted to note my objection.
90
Transcript of Hearing of January 16, 1968
William Hawes—for Plaintiff—Direct
— 12—
The Court: All right.
Mr. Newton: Your witness, sir.
Mr. Hall: No questions.
The Court: You may step down.
Mr. Newton: If opposing counsel has no objection
I would like to ask that this witness be excused so
that he can get back to his duties.
The Court: Any objection?
Mr. Wilkerson: No; we have no objection.
Mr. Hall: I would like to move to exclude his
testimony on the grounds it has no relation, no rele
vancy whatsoever to the issues involved in this case.
The Court: I will overrule subject to it being
connected up; later on it may have, I don’t know.
Mr. Newton: We would like to call Mr. William
Hawes.
M e . W illiam Hawes, called as a witness, being duly
sworn, was examined and testified as follow s:
Direct Examination by Mr. Newton:
—13—
Q. State your name, please, sir? A. William Hawes.
Q. What is your occupation?
The Court: Let me get the last name.
A. H-AW-E-S.
Hawes.
The Court: H-A-W-E-S?
91
A. Yes, sir, that is right.
Q. What is your occupation, Mr. Hawes? A. Principal
of Wenonah High School.
Q. Mr. Hawes, as principal of Wenonah High School,
do you have the official records of the school under your
care and control? A. Yes.
Q. Did you receive from the United States Marshall’s
Office a subpoena to bring certain documents with you? A.
I did.
Q. Did you bring those documents? A. I have them in
my possession.
Q. Now, Mr. Hawes, did that subpoena ask you to bring
with you a number of graduates—the number of graduates
from 1960 through 1965 of your school? A. Yes.
Q. And I would like to ask you, sir, did Wenonah High
- 1 4 -
School have, or did you have, during the years 1960 to
1965, any students other than Negro in attendance in your
school? A. No.
Q. In the year 1960, sir, how many graduates did you
have at Wenonah High? A. Two hundred eight.
Q. In the year 1961 how many graduates did you have at
Wenonah? A. Two hundred seventeen.
Q. All right.
In the year 1962, how many graduates did you have? A.
One hundred eighty-two.
Q. And in the year 1963, how many graduates did you
have? A. One hundred ninety-eight.
Q. And the year 1964? A. Two hundred fifteen.
Q. And the year 1965? A. Three hundred twenty-six.
Q. Do you have any knowledge of the relative age group
of your high school graduates at Wenonah High School?
Transcript of Hearing of January 16, 1968
William Hawes—for Plaintiff—Direct
92
Transcript of Bearing of January 16, 1968
William Hawes—for Plaintiff—Direct
—15—
A. Normally high school graduates are seventeen, eighteen,
normally it is about eighteen, and some do graduate at
seventeen.
Q. All right, sir.
May I see those documents that you have brought? A.
Yes, sir.
Mr. Newton: I would like to have you mark these.
(Plaintiff’s Exhibit 2 marked for identification.)
Q. All right.
I show you, Mr. Hawes, a document marked Plaintiff’s
Exhibit 2 for identification and ask you if these are true
and correct copies from your records of the graduates from
your school for the years 1960 to 1965? A. That’s correct.
Mr. Newton: We offer Plaintiff’s Exhibit 2 for
identification as Plaintiff’s Exhibit 2.
Mr. Hall: We object to them, Your Honor.
The Court: I will overrule. Make the same ruling
subject to them being connected up.
Mr. Newton: Your witness.
— 16—
Mr. Hall: No questions.
Mr. Newton: We would like to ask also that this
witness be excused, Your Honor.
Mr. Hall: No objection.
The Court: You are excused.
Mr. Newton: We would like to call Mr. George
Yarbrough, Jr.
93
Mr. G e o r g e H. Y a r b r o u g h , Jr., having been first duly
sworn, was examined and testified as follows:
Direct Examination by Mr. Newton-.
Q. State your name, please, sir? A. George H. Yar
brough, Jr.
Q. What is your occupation, Mr. Yarbrough? A. As
sistant Principal, Brighton High School.
Q. Are you here in response to—
The Court: What is the name of the high school?
A. Brighton High School.
The Court: Brighton?
A. Brighton.
Q. Are you here in answer to a subpoena issued to Mr.
Charles Allen Brown as principal of Brighton High School?
—17—
A. Yes, sir.
Q. All right.
Mr. Yarbrough, do you as Assistant Principal of Brighton
High School, have certain information requested by your
subpoena from your official records of that school? A. Yes,
I do.
Q. Is Brighton High School located in normally what
is called the Bessemer Cut-off in our county? A. Yes, sir.
Q. Now, Mr. Yarbrough, in answer to your subpoena,
how many students graduated from your school in the year
1960? A. From the records I have here, evidently Mr.
Brown did not understand it to be that, he did not give
the one for 1960.
Transcript of Hearing of January 16, 1968
George H. Yarbrough—for Plaintiff—Direct
94
Q. All right.
How many graduates did you have in the year 1961?
A. 172.
Q. And how many graduates in 1962? A. 147.
—18—
Q. And how many in 1963? A. 151.
Q. The year 1964? A. 164.
Q. The year 1965? A. 188.
Q. Do you have records for the year 1966? A. Not with
me.
Q. All right, sir.
Now, Mr. Yarbrough, were any white students in attend
ance during all the years that you taught at Brighton High
School? A. No.
Q. You have been a teacher and assistant principal at
Brighton High School for how long, sir? A. For the past
thirteen months.
Q. For the past thirteen months you have been assistant
principal? A. Assistant principal, yes, sir.
Q. How long have you worked at the school? A. The
past thirteen and a half years.
Q. All right.
Now, the figures you have just read into court were all
- 1 9 -
Negro students? A. Yes, they were.
Q. Do you have any knowledge of the approximate age
of those graduates for the years you have just read? A.
The average age is about seventeen and a half.
Q. All right, sir.
Mr. Yarbrough, may I have that document? A. Yes.
Transcript of Hearing of January 16, 1968
George H. Yarbrough—for Plaintiff—Direct
95
Mr. Newton: I would like to ask this be marked for
identification.
(Plaintiff’s Exhibit 3 marked for identification.)
Q. Mr. Yarbrough, is this a true and correct copy of the
records as reflected in the office of the principal at Brighton
High School? A. Yes, it is.
Mr. Newton: We offer Plaintiff’s Exhibit 3 for
identification as Plaintiff’s Exhibit 3.
Mr. Hall: For the record, we would like to make
the same objections and the motion.
The Court: All right, Court will make the same
ruling.
Mr. Newton: Your witness, sir.
— 20—
Mr. Hall: No questions.
Mr. Newton: We would like to ask that this wit
ness be excused.
Mr. Wilkerson: No objection.
The Court: You may he excused.
Mr. Newton: Thank you, Mr. Yarbrough.
Plaintiff calls Mr. Bonds Lee Henderson.
B o n d s L e e H e n d e b s o n , having been first duly sworn, was
examined and testified as follows:
Direct Examination by Mr. Newton:
Q. State your name, please, sir? A. Bonds Lee Hender
son.
Q. What is your occupation? A. Principal of the Jack-
son S. Abrams High School in Bessemer, Alabama.
Transcript of Hearing of January 16, 1968
Bonds Lee Henderson—for Plaintiff—Direct
96
Q. Is Jackson S. Abrams High School located in an
area that is commonly known as the Bessemer Cut-Off?
A. Yes, it is.
Q. Did you receive a subpoena from this court asking you
to bring certain information for a certain number of years,
did you bring that information? A. Yes, I did.
— 21—
Mr. Wilkerson: Excuse me, please. I didn’t hear
the name of the school?
A. Jackson S. Abrams High School.
Q. Now, Mr. Henderson, do you have, from your records
there, the total number of graduates of Jackson S. Abrams
High School for the year 1960? A. Your Honor, 1960, we
did not graduate; our first year was 1961.
Q. All right, sir.
Now, in 1961, do you have the records of the number of
graduates that year? A. Yes.
Q. What was that number, sir? A. 129.
Q. 129? A. 129.
Q. And the year 1962? A. 128.
Q. 128? A. Yes.
Q. And the year 1963? A. 1963, 106.
Q. The year 1964? A. 1964, 110.
— 22—
Q. 1965? A. 1965, 187.
Q. Now, during all these four years that you have called,
Mr. Henderson, were any white students in attendance at
Jackson S. Abrams High School? A. No.
Q. All these graduates for the four years which you have
talked about are all Negro students? A. Yes.
Transcript of Hearing of January 16, 1968
Bonds Lee Henderson—for Plaintiff—Direct
97
Q. What, in your judgment, if you know, was the average
age of those students! A. Average age was 18.
Q. All right, sir.
You have that information! A. Yes, I do.
Mr. Newton: Mark that.
(Plaintiff’s Exhibit 4 for Identification marked.)
Q. Mr. Henderson, I show you a document marked Plain
tiff’s Exhibit 4 for Identification, and ask you if this is a
true and correct copy of the records reflected in the office
of the principal of the Jackson S. Abrams High School?
—23—
A. Yes, sir.
Mr. Newton: Plaintiffs offer Plaintiffs’ Exhibit 4
for Identification, as Plaintiffs’ Exhibit 4.
Mr. Hall: Same objection.
The Court: Same ruling.
Mr. Newton: Your witness, sir.
Mr. Hall: No questions.
Mr. Newton: We would like to ask that this wit
ness also be excused, Your Honor.
Mr. Hall: No objection.
The Court: You are excused.
Mr. Newton: You are excused, Mr. Henderson,
and thank you for coming.
Mr. E. J. Oliver.
Transcript of Hearing of January 16, 1968
Bonds Lee Henderson—for Plaintiff—Direct
98
Me. E. J. Oliver, having been first duly sworn, was ex
amined and testified as follow s:
Direct Examination by Mr. Newton-.
Q. Please state your name, please, sir? A. E. J. Oliver.
Q. What is your occupation, Mr. Oliver? A. Principal
—24—
of Fairfield Industrial High School, Fairfield, Alabama.
Q. How long, sir, have you held that position? A. Forty-
three years.
Q. All right, sir.
Mr. Oliver, you received a subpoena from this court
asking you to bring certain information with you, did you
not, sir? A. Yes.
Q. Did you bring that information? A. Yes, sir.
Q. Mr. Oliver, for the year 1960, how many graduates
did you have in the Fairfield Industrial High School? A.
120.
Q. For the year 1961, how many? A. 112.
Q. And for the year 1962? A. 89.
Q. For the year 1963? A. 123.
Q. For the year 1964? A. 105.
Q. And for the year 1965? A. 132.
—25—
Q. Now, Mr. Oliver, in those five years that you have
mentioned here, were there any white students in attend
ance at the Fairfield Industrial High School? A. No, sir.
Q. Then, those records reflect only Negro students? A.
That’s correct.
Q. Now, Mr. Oliver, is Fairfield Industrial High School
located in the area that is commonly called the Bessemer
Cut-Off? A. That is correct.
Transcript of Hearing of January 16, 1968
E. J. Oliver—for Plaintiff—Direct
99
Transcript of Hearing of January 16, 1968
E. J. Oliver—for Plaintiff—Direct
Q. All right.
If yon know, sir, what is the average age of the graduate
of the Fairfield Industrial High School for that five year
period? A. I would say about seventeen and a half years.
Q. All right, sir.
May I see that document? A. Yes, sir.
Mr. Newton: Mark this, please, sir.
(Plaintiff’s Exhibit 5 for Identification marked.)
Q. All right.
—26—
Mr. Oliver, I show you a document marked Plaintiff’s
Exhibit 5 for identification and ask you if this is a true
and correct copy of the official records from the office of
the principal of the Fairfield Industrial High School? A.
According to the records, this is true.
Mr. Newton: Plaintiffs offer Plaintiffs’ Exhibit 5
for Identification as Plaintiffs’ Exhibit 5.
Mr. Hall: Note our objection.
The Court: Same objection and the court will
make the same ruling.
I would like to ask one question of Mr. Oliver.
Mr. Newton: All right, sir.
The Court: Does your—do your records anywhere,
or have you at any time ever made a research to
find out how many of your students are still in this
area?
A. In this immediate area?
1 0 0
The Court: Yes, sir. Through your Alumni rec
ords, ever been such a research made?
A. Not for that specific purpose, but there are quite a few
who have remained in that community out there, because, as
you will recall, that is an industrial center.
—27—
The Court: That is correct.
A. And quite—well, I imagine that around sixty-five per
cent, between sixty-five and seventy percent of the students
who were in school, their parents also went under me; that
would give you some idea.
The Court: All right.
Mr. Newton: We would—do you have any ques
tions 1
Mr. Hall: We have no questions.
Mr. Newton: We would like that this witness be
excused.
The Court: You may be excused.
Mr. Newton: And thank you, Mr. Oliver, for
coming.
We would like to call Mr. Hugh Colston.
Transcript of Hearing of January 16, 1968
E. J. Oliver—for Plaintiff—Direct
101
H ugh Colston, having been first duly sworn, was exam
ined and testified as follow s:
Direct Examination by Mr. Newton:
Q. State your name, please, sir? A. Hugh Colston.
—28—
Q. Mr. Colston, what is your occupation! A. Classroom
teacher and senior co-ordinator at Westfield High School.
Q. Are you here, Mr. Colston, in response to a subpoena
issued to the principal, William Jackson, of Westfield High
School! A. I am.
Q. Did you come on with some official records from the
office of the principal of that school? A. Yes.
Q. Now, Mr. Henderson—Mr. Colston, what do your rec
ords show as to the number of graduates from Westfield
High School in 1960? A. 1960, 199.
Q. And in 1961, sir? A. 196.
Q. And in 1962? A. 186.
Q. 1963? A. 207.
Q. 1964? A. 234.
Q. 1965? A. 257.
— 29—
Q. Is Westfield High School located in an area that is
normally called the Bessemer Cut-Off ? A. That is correct.
Q. Of those figures that you have given us, were there
any white students in attendance at Westfield High School
during those years? A. No.
Q. Then, those figures represent all Negro graduates?
A. Yes.
Q. Mr. Colston, as a senior co-ordinator, you come into
contact with all—with most of the students who would
Transcript of Hearing of January 16, 1968
Hugh Colston—for Plaintiff—Direct
102
graduate at the end of that year; is that correct! A. For
the most part.
Q. In your judgment, what is the average age of the
high school graduate from Westfield High School? A.
Around eighteen years of age, sir.
Q. All right, sir.
And you do have that document with you, Mr. Colston?
A. Yes.
—30—
Mr. Newton: I would like to ask this be marked
next exhibit.
(Plaintiffs’ Exhibit 6 for identification marked.)
Q. Mr. Colston, I show you a document marked Plain
tiffs’ Exhibit 6 for identification, is this a true and correct
copy as reflected by the records in the office of the principal
of Westfield High School? A. Yes.
Mr. Newton: We offer Plaintiff’s Exhibit 6 for
Identification into evidence as Plaintiff’s Exhibit 6.
Mr. Hall: I assume that the same objections and
motions will apply to all this matter.
The Court: Yes.
The court makes the same ruling, and I will over
rule you at this time.
Mr. Newton: Your witness.
Mr. Hall: No questions.
Mr. Newton: Your Honor, we would like to ask
this witness be excused.
The Court: You may be excused.
Transcript of Hearing of January 16, 1968
Hugh Colston—for Plaintiff—Direct
103
Mr. Newton: You may be excused, Mr. Colston,
and thank you so much for coming, sir.
* # * # *
— 37—
* * * * *
Transcript of Hearing of January 16, 1968
Mrs. W. L. Freeman— for Plaintiff—Direct
Mrs. W. L. F r e e m a n , being duly sworn, was examined
and testified as follows:
Direct Examination by Mr. Newton-.
Q. State your name, please, ma’am? A. Mrs. W. L.
Freeman.
Q. Mrs. Freeman, did you have occasion last year to be
employed by the Jefferson County Jury Board? A. I did.
Q. What was your duties while so employed! A. Well,
we were to go from door to door to get names and infor
mation on the men and women to serve on the jury.
Q. All right.
Did you work the area that is commonly called the Bes
semer Cut-Off? A. Yes.
Q. Who did you work with, Mrs. Freeman? A. You
mean in the car with us ?
Q. It is my understanding that you worked—you rode
in certain cars and worked in that manner; is that correct?
— 38—
A. That’s right; Mr. Bill Whitley drove the car and Petey
Harbison and Patsy Jolly and Kuth Cummings and Joy
Lansing were all together.
Q. Where do you live, Mrs. Freeman? A. I live out near
Trafford.
104
Q. Is the neighborhood you live in, can it be described
as a white neighborhood, a Negro neighborhood or mixed!
A. White.
Q. And you are a white female; is that right! A. Yes.
Q. Now, Mrs. Freeman, did you receive any special in
structions from anyone before you were sent out to can
vass! A. Well, we were just instructed to ask the ques
tions that were on our papers.
Q. All right. A. Get as many names as possible.
Q. When you say on your paper, were you furnished
with a sheet of some kind? A. Yes.
Q. What information was contained on that sheet, if you
—3 9 -
recall? A. Well, we were to get all the adults’ names be
tween the age of 21 and 63, their full names and their
address, where they were employed, and what their occu
pation was and their birthdate and where they were born.
Q. Now, you were instructed not to get anyone over 63?
A. That’s right.
Q. All right.
Now, who gave you these instructions? A. Well, Mr.
Whitley did.
Q. Did all the instructions you received come from Mr.
Whitley? A. Yes, uh-huh.
Q. Now, how did you go about this, once you got to the
area you went to canvass! A. Well, he would put us out
on streets, you know, that he wanted us to work, and we
usually worked across from each other and we met some
body coming towards us.
Q. One would work on one side of the street and another
lady on the other side of the street? A. That’s right.
Transcript of Hearing of Jamary 16, 1968
Mrs. W. L. Freeman—for Plaintiff—Direct
105
Transcript of Hearing of January 16, 1968
Mrs. W. L. Freeman—for Plaintiff—Direct
— 40—
Q. Were all of the persons whose names you called pre
viously females that worked with you! A. Yes.
Q. Are they all white? A. Yes, sir.
Q. Now, Mrs. Freeman, if you went to a house and no
body was home, what would you do? A. We left a card.
We had a stamped, addressed card there with the infor
mation to he filled in to he mailed back to the courthouse,
and we left the card on the door.
Q. If you went to a house and nobody was home and
then at the next house somebody was home, would you
ask the persons at that house about the persons next door?
A. We sure did try to get the information any way we
could from the neighbors or any way that we could.
Q. If you were given this information, by a Negro, you
would write those names down as part of your canvass?
A. That’s right.
Q. Now, were there any neighborhoods that you ladies
— 41—
didn’t go into? A. We—
Q. That only the men worked? A. No, sir.
Q. Did you have any difficulty in the Negro neighbor
hoods getting names? A. Well, lots of times. Now, I do
remember that the neighbors didn’t seem to want to give
out the information. When we didn’t find them at home,
it was hard to get the information from the neighbors.
Q. Would the neighbors give you any reason? A. No,
they just seemed to never know the information; maybe
they would call the man Sam or something, but I don’t
know whether they knew their last names or what, but
would say it is just Sam or something like that.
Q. Did you find that same sort of difficulty from the
106
neighbors in the white neighborhood! A. No; they usu
ally knew their names.
Q. Did you work Fairfield, Mrs. Freeman! A. Yes.
Q. Did you work the Negro area in Fairfield! A. Yes.
— 42—
Q. When you came to a house that was a Negro residence
and there were four or five adults in the house, would you
include all of their names! A. Yes. We got every name
that was possible.
Q. All right.
Did Mr. Whitley take any names himself, or did he just
supervise! A. Just supervised.
Q. All right.
Do you have very much acquaintance with the Negro
community in the Bessemer area! A. No; I don’t.
Q. Do you have any acquaintances or many acquaint
ances with the white community in the Bessemer Cut-Off
area! A. No, I don’t.
Q. Had you had many occasions to visit the areas in
which you worked on this occasion! A. No, I sure didn’t.
Q. Did Mr. Whitley instruct you to make any special
efforts to get the names of Negroes! A. He told us al
ways to get every name that we could.
- 43 —
Q. Well, did he give you any special instructions as it
related to Negroes! A. Well, not any that he didn’t
whites; he just said get every name available.
Q. Did you yourself then put forth any extra effort as
opposed to what you did when you went to a white area
to get Negro names! A. Well, now, we just always tried
to get everyone we could, white or Negroes; we were sup
posed to get everyone that we could possibly get.
Transcript of Hearing of January 16, 1968
Mrs. W. L. Freeman—for Plaintiff—Direct
107
Q. In other words, you did not make any special effort
for Negroes as opposed to anybody else? A. Well, we just
treated them all alike.
Mr. Newton: I believe that’s all I have.
Mr. Hall: We have no questions.
The Court: No questions?
Mr. Hall: No, sir.
The Court: All right.
You may be excused.
May this witness be excused?
Mr. Newton: Yes sir. Thank you so much.
Mr. Wilkerson: Yes, sir.
All right.
Mr. Newton: Just a moment, here, Your Honor.
We would like to call Eev. J. A. Salary.
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary— for Plaintiff—Direct
Rev. J. A. Salary, having been first duly sworn, was ex
amined and testified as follows:
Direct Examination by Mr. Newton-.
Q. State your name, please, sir? A. John Arthur Sal
ary.
Q. All right.
The Court: Excuse me just a moment. Let’s re
cess for about ten minutes.
(Whereupon, proceedings were in recess from
10:55 a.m., until 11:05 a.m., following which the fol
lowing occurred:)
108
Mr. Newton: I believe we had just sworn Eev.
Salary, Your Honor.
The Court: All right, go ahead.
By Mr. Newton:
Q. Where do you live, Rev. Salary? A. 3115 2nd Street,
Fairfield.
The Court: Let me get the last name. What is it,
please?
A. Salary, S-A-L-A-R-Y.
—45—
Q. How long have you lived in Fairfield, Reverend? A.
Practically all my life.
Q. How old are you, sir? A. 57 years old.
Q. Now, Rev. Salary, you are one of the plaintiffs in this
case?
The Court: Now, did you say 57 or 67?
A. 57.
The Court: 57?
A. That’s right.
Q. You are one of the plaintiffs? A. 1910.
Q. You are one of the plaintiffs in this case? A. I am.
Q. All right.
Have you ever been called for jury duty in the Bessemer
Division of Jefferson County? A. Have I been called for
jury duty?
Q. Yes. A. Yes.
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary—for Plaintiff—Direct
109
Q. Now, in all of your adult life you said you lived in
the Fairfield area? A. Yes, sir.
Q. How many times have you been called for jury duty!
A. One.
Q. When was that? A. ’65.
Q. Do you recall whether that was before or after the
commencement of this suit? A. I think it was after.
Mr. Newton: I believe that’s all. Your witness.
One other question.
Q. Have you ever been convicted of any crime involving
moral turpitude? A. No, I have not.
The Court: This suit was filed—
Mr. Wilkerson: In 1966.
The Court: 1966, wasn’t it?
Mr. Hall: Yes, sir.
Mr. Newton: I believe that is correct.
The Court: You state that you served on a jury
in 1965?
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary—for Plaintiff—Direct
A. I was called to jury in 1965, I never served.
The Court: But you were actually called to the
courthouse ?
—47—
A. Yes, sir.
The Court: So, that was before the commencement
of this suit?
110
A. It was in 1965.
The Court: Yes.
A. Yes, sir.
The Court: All right.
Any cross examination!
Mr. Wilkerson: Just a couple of questions, Judge.
Cross Examination by Mr. Wilkerson:
Q. Now, Rev. Salary, you testified, I believe, that you
live at 3115 2nd Street in Fairfield; is that correct? A.
Yes.
Q. And you testified that you have served on a jury in
1965 in the Bessemer Cut-Off area? A. I was called to
jury, I never served.
Q. But you went down to the courthouse as part of the
venire panel, didn’t you? A. Yes, sir.
Q. As a matter of fact, you also received a letter from
the Jefferson County Jury Board in July of last year,
didn’t you? A. Yes, I did.
Q. Yes.
And that letter in substance asked you to please furnish
a list of names, occupations and addresses of citizens in
that county that you felt would make good jurors; citizens
of Jefferson County that you thought would make good
jurors; isn’t that what the letter says? A. Yes, sir.
Q. And asked you to furnish a list of names of people
that you thought would make good jurors? A. Yes.
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary—for Plaintiff—Cross
I ll
Q. Did you in fact furnish that list of names? A. I
think I did.
Q. Oh, you think you did? A. I am not sure.
Q. You are not sure? A. No.
Q. You didn’t write any letter or send any list of names
to the Jury Board of Jefferson County, did you? A. I am
not sure; I know I got a letter, whether I sent the names
or not, I am not sure now.
—49—
Q. I missed this before, Rev. Salary, are you 57 or 67
years old? A. 57.
Q. All right, sir.
Now, this year 1960—well, in 1966 or 1967, did any can
vassers from the Jury Board come to your house? Did you
fill out any cards or anything like that? A. I don’t re
member.
Q. In other words, do you know whether you are on the
Jury Roll right now or not? A. I don’t know.
Mr. Wilkerson: O.K.
Thank you.
Redirect Examination by Mr. Newton-.
Q. Do you know when you got that letter that Mr. Wil
kerson asked you about a moment ago remember when
you got it? A. I think it was in ’66, sometime in the Fall
or summer.
Q. Of 1966? A. Yes, sir, I believe it was
The Court: Let me get it straight.
When was the letter sent?
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary—-for Plaintiff—Redirect
— 50—
112
Mr. Wilkerson: The letter was mailed on July 1,
1966.
The Court: July 1, 1966!
Mr. Wilkerson: Yes, sir.
Mr. Newton: Well, I think that part of his answer
might he stricken and I so move.
The Court: I don’t hear you when you turn your
back.
Mr. Newton: That part of his answer I moved be
stricken, as the box that we are now currently deal
ing with has been refilled. Since the time that letter
was sent, the box was filled in the latter part of
1967 and any information that he may have supplied
with that letter would not now currently be in the
box.
Mr. Hall: Your Honor, he is arguing with his own
witness.
The Court: I will overrule.
Any further questions of this witness!
Mr. Wilkerson: No, sir.
Mr. Amaker: Just a moment, sir.
Mr. Newton: I believe that’s all, Your Honor.
—51—
The Court: Let me get this straight now for my
information and be sure that I understand you.
From your testimony, I understand that you state
that you are 57 years old!
A. Yes.
The Court: That you have lived in Fairfield most
all of your life!
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary—for Plaintiff—Redirect
A. Yes.
113
The Court: That within the last three years you
have been called for jury service?
A. I was called once in the past three years.
The Court: Once in the past three years ?
A. Yes.
The Court: That you do remember receiving a
letter from the jury board asking you to furnish
them with names?
A. Eight.
The Court: Of people who, to your knowledge,
would be—you could recommend for jury service?
A. Yes.
The Court: That was in about July, 1966?
A. Uh-huh.
Transcript of Searing of January 16, 1968
Rev. J. A. Salary—for Plaintiff—Redirect
The Court: Now, you do not remember whether
—52—
you responded to that letter or not?
A. I really don’t, but I remember getting that letter.
The Court: You wouldn’t say to me that you did?
A. No, I wouldn’t.
The Court: All right.
114
Mr. Newton: One other question. For your in
formation, and you might not know, suit in the case
was filed in March, 1966. So, this letter you received
came to you after you were a plaintiff in this suit;
is that correct?
A. Yes, it did.
Mr. Newton: All right, I believe that’s all.
Mr. Wilkerson: All right.
The Court: Now, his first testimony, the reason
I asked the question, was that he got the letter in
1965 but he changed it!
Mr. Newton: No, sir; he was called in 1965.
The Court: All right.
Who do you want!
Mr. Newton: At this time, Your Honor, we would
like to offer some depositions previously taken in
this case with counsel for the defendants present.
—5 3 -
Deposition of canvassers who work for the Jef
ferson County Jury Board and the deposition of
Mrs. Mary R. Blackwell marked Plaintiff’s Exhibit
7 for identification; the deposition of Mrs. Ruth P.
Cummings, marked Plaintiff’s Exhibit 8 for identi
fication; the deposition of Mrs. Betty Jo Harbinson
marked Plaintiff’s Exhibit 9 for identification; the
deposition of Mrs. Grace M. Hicks, marked Plain
tiff’s Exhibit 10 for identification; and the deposition
of Mrs.—Miss Edna Earl Jolly marked Plaintiff’s
Exhibit 11 for identification; the deposition of Miss
Patsy Ann Jolly marked Plaintiff’s Exhibit 12 for
Transcript of Hearing of January 16, 1968
Rev. J. A. Salary— for Plaintiff—Redirect
115
identification; the deposition of Miss Joy Ann Lance
marked Plaintiff’s Exhibit 13 for identification; the
deposition of Mrs. Mary Prances Myrex marked
Plaintiff’s Exhibit 14 for identification, and the dep
osition of Georgia S. White marked Plaintiff’s Ex
hibit 15 for identification, and we offer all of these
depositions into evidence.
Mr. Hall: We have no objection.
The Court: Admitted without objection.
Mr. Amaker: Call Mr. McAdory.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
Elmore McA dory, being duly sworn, was examined and
testified as follows:
Direct Examination by Mr. Amaker:
Q. State your name, please? A. Elmore McAdory.
Q. Mr. McAdory, you are the clerk—you are the deputy
clerk of Jefferson County Circuit Court; is that correct?
A. Of the Bessemer Division, yes, sir.
Q. Bessemer Division? A. Yes.
Q. Yon are also a defendant in this action! A. No. Not
that I know of.
Q. Well, the records will so show, Your Honor, Mr.
McAdory is one of the defendants. A. I wasn’t served
with anything in it.
The Court: I don’t know; I do not believe—
Mr. Hall: He is a defendant.
Mr. Amaker: He is a defendant.
A. Well, I didn’t know that.
116
The Court: All right, go ahead.
Q. Your official title is Deputy Circuit Clerk, Tenth Ju-
—55—
dicial Circuit at Bessemer, is that correct! A. That’s
right.
Q. And that part of the Tenth Judicial Circuit at Bes
semer is the jurisdiction of that court over what is com
monly called the Bessemer Cut-off! A. That’s right.
Q. Mr. McAdory, do you recall having had your deposi
tion taken in this action sometime ago! A. I never have
had a deposition taken.
Q. Well, let me refresh your recollection, Mr. McAdory.
A. All right.
Q. All right.
Mr. Amaker: I am showing the witness a copy
of his deposition taken on May 5, 1966.
Q. I will ask you if you will look at—do you now recall
that I deposed you on that occasion! A. No, I don’t.
Q. Don’t remember! A. Don’t remember this.
Wait a minute. Let me read a little further and
see. Is this the one we were up here in court about!
Q. Yes. A. Oh, yes, sir, I was up here in court.
—56—
Q. Do you remember that I was questioning you on that
occasion? A. Yes.
Q. And Mr. Zegarelli here was the reporter? A. That’s
right.
Q. All right. A. I didn’t know that was what you had
reference to.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
117
Mr. Amaker: Mr. Clerk, is the original of that
deposition in the file?
The Clerk: Yes.
The Court: I think it is.
Mr. Amaker: Fine.
Q. Mr. McAdory, are the juries in the Bessemer Division
of the Circuit Court, Civil side of the Court, are they pres
ently being organized into separate numbered juries? A.
That’s correct.
Q. Let me direct your attention, Mr. McAdory, to page
35 of your deposition.
Do you recall stating at that time that Judge Ball had
previously stopped the practice of organizing the separate
numbered juries? A. I believe that’s right, at that time,
yes, sir.
—57—
Q. Now, this deposition was taken in May, 1966? A.
That was up here in Judge Lynne’s Court?
Q. That’s right. A. At that time.
Q. That’s right.
At that time you testified that Judge Ball had stopped
the practice of separate number of juries, were you mis
taken with that testimony at that time? A. No.
Q. Is it your testimony that as of that occasion, that
practice had been stopped? A. Using the entire venire as
one jury and striking from that, not organizing them into
juries.
Q. That was in May, 1966? A. Yes.
Q. Now, you just testified, however, that the present
practice is to organize the juries into separate numbered
juries? A. That is right.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
118
Q. When was that practice resumed"? A. I don’t remem
ber; a short time after that.
Q. It was a short time after— A. After this other trial.
—58—
Q. I see.
How many such separate numbered juries are there in
the Bessemer Division! A. Depends on how many were on
the Bessemer Venire.
Q. I see.
And as of the present moment, what is the average num
ber of jurors who are on a given venire? A. Around 5.
Five juries would be around sixty people.
Q. In other words— A. Sometimes a few more and
sometimes a few less, depends on how many are excused.
Q. I see.
Now, Mr. McAdory, did you furnish the counsel for de
fendants in this case a list of names of persons who were
on the juries in the Bessemer Division from the period of
September 11, 1967, to December 11, 1967? A. Was that
the time you all were down there looking at the list?
Q. No, sir; I am referring to the information that was
supplied to the District Attorney’s Office. Do you remem
ber giving the District Attorney’s Office some information
with respect to the number of Negroes who wrere on the
- 5 9 -
venires who were in court during that period? A. I don’t
recall.
Q. Let me show you this document and ask you if that
refreshes your recollection? A. I don’t remember furnish
ing that list to anyone; I may have though.
Q. Do you remember whether anyone in your office fur
nished that list? A. Not to my knowledge. We mail out—
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
119
we make a list of all the jurors and give them to the at
torneys.
Q. No. I am—I understand that. But the document
which I showed you which is a listing of Negro Jurors for
the Bessemer Division for the period of September 11,
1967, and—
Mr. Wilkerson: Just a moment.
The Court: Would you straighten that out?
Mr. Wilkerson: Yes, sir. There was a young lady
in the District Attorney’s office out there and I have
forgotten her name; I didn’t have anything to do
with it; the District Attorney’s office in Bessemer,
an employee there at our request, went and counted
the number of Negroes who came to the courthouse
—60—
with each panel and who were on each Grand Jury.
Now, she did that for us at our insistence and she
was the District Attorney’s employee, as I under
stand it.
Mr. Amaker: I didn’t know that at the time.
The Court: All right. Go right ahead.
Q. Mr. McAdory, as Deputy Clerk of the Tenth Judicial
Circuit at Bessemer, are you the custodian of the records
of the criminal convictions that have occurred in the divi
sion? A. I am.
Q. You were asked in your subpoena, Mr. McAdory, to
bring with you all the records of criminal convictions of
persons 21 years or older for the years 1965 to 1967; did
you bring those records with you, sir? A. I did not.
Q. May I ask you why, sir?
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
120
The Court: I excused him from bringing them.
Mr. McAdory called me and explained to me that
the records were quite bulky. That it was a physical
impossibility for him to bring all of those records
into the court on the notice that he had. Mr. Mc
Adory, like myself, is getting to be quite an elderly
gentleman; he has been out there many years. I told
him that we would work it out some way if you
— 61—
could show the court the necessity for those records
and why you want them.
Mr. Amaker: Well, I think we can make that show
ing, Your Honor.
The Court: I, at the time, could not see that the
information would be material to this case at all.
We will go into it; I would like to see your view
point on it and see what you propose to show by
those records.
I don’t know, of course, but I would imagine that
during the years that you have requested those rec
ords, there have been literally thousands of convic
tions in criminal cases in the Bessemer Cut-Off.
What did you propose to show by it?
Mr. Amaker: Your Honor, my pre-trial discov
ery, the clerk of the jury board testified that after
the canvass was made, the cards were returned to
the clerk’s office.
The Court: Speak up a little bit.
Mr. Amaker: Excuse me.
The cards were returned to the clerk’s office and
at that point someone in the office purged the names,
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
121
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
—62—
that’s the term used, on the basis of whether or not
the persons they had selected in the initial canvass
had criminal records; so, therefore—and he indi
cated that this was the only kind of purging that
they made after they made a selection of persons of
the requisite, residency and age; it is important on
the matter of qualification to show the relative num
ber of Negroes and whites who have been criminally
convicted in the period when this jury roll was se
lected.
Since the testimony is already to the effect—
The Court: Do you have the figures?
Mr. Amaker: I don’t have the figures, that is why
I asked those records be brought here.
The Court: Let me ask Mr. McAdory a question.
Mr. McAdory, the subpoena called for the records
for what years, do you remember?
Do you have them with you?
A. Yes, sir, I have it with me.
The Court: 1965 through ’67 is what you asked
for?
Mr. Newton: Yes, sir.
Mr. Amaker: Yes, sir.
—63—
A. Judge, there is a book of five hundred to the book, and
they are just sandwiched in there regardless of when they
were convicted. It would entail a person going through
those books leaf by leaf and taking the Judge’s orders and
finding out what was done.
122
The Court: How long would it take, physically,
to do it?
A. Well, I expect it would take about two or three days
with nothing else to do to sift through and count them out.
He had specific ones he could name and so forth, that
wouldn’t be any trouble to go get, but the other is difficult;
you might have been convicted or indicted before and had
a mistrial and come back and tried you after this time.
The Court: Don’t answer me, there may be an
objection.
A. All right.
The Court: Could you give me an educated guess,
you have been right there on top of that court most
all of your life, you were certainly there in 1965,
1966 and 1967?
A. Yes, sir.
—64—
The Court: Could you give me an educated guess
as to the number of criminal cases over all handled
in the cut-off by your court?
A. By the year?
The Court: Total it, if it will be easier, or by the
year?
A. Well, approximately, I would say, six or seven hundred
criminal cases a year.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff— Direct
123
The Court: Six or seven hundred a year!
A. Yes, sir.
The Court: Any objection to that statement!
Mr. Amaker: No, I have no objection.
The Court: Now, of course, could you give me
another educated guess as to how many of those
cases resulted in convictions, and you might put it
on a percentage basis if you have it!
A. I don’t have it.
The Court: Would you guess from your experi
ence and long years there in the court!
A. I would be afraid to guess.
The Court: All right.
Now, don’t answer this question until counsel has
had an opportunity to object to it. Could you give
—65—
me another educated guess as to how many of these
defendants, six or seven hundred a year, give me
a number or percentage, would be Negro and how
many would be white!
A. No, sir.
The Court: You don’t have any way of knowing!
A. No, sir.
The Court: And you wouldn’t guess!
Transcript of Rearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
124
A. No, sir.
The Court: All right.
Q. May I ask you, Mr. McAdory, the records of the
criminal convictions would indicate, would they not, the
race of the person convicted? A. No.
Mr. Amaker: Your Honor, I have had occasion
to examine criminal records of convictions in the
courts in Alabama, and I think that the witness is
mistaken in that again from the fact he is unable
to even hazard a guess in response to your two
questions, indicates a necessity of some kind of
search of the records, should be made.
The Court: I am not going to spend three days
going through those records; I will just tell you that
— 66—
right now. I haven’t got any idea of doing it ; I don’t
think that it is material to this case. I don’t think
it is that material to the case, and you say, Mr.
McAdory, that those records do not show whether
the defendants are white or whether Negro.
A. My dockets don’t show either one. The indictments that
are returned by the Grand Jury will show whether they
are white or black.
The Court: That would be the only place?
A. That’s right.
You have to go through the indictments to get that.
Transcript of Rearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
125
The Court: You have to go through the indict
ment to search the whole record; I think you are
creating an almost impossible situation for what
benefit the court might get out of the information.
Now, if you have searched those records out there,
I am sure that counsel might, for the record—or the
defendants here, might stipulate with you on what
they are. They indicate that they would.
Mr. Amaker: I am sorry, I didn’t hear you; they
indicate that they would stipulate?
The Court: They would if you have that informa-
—67—
tion.
Mr. Amaker: We don’t have it, and neither do
they.
The Court: Of course, the records are perfectly
open to you.
Mr. Amaker: I understand that.
The Court: I am not going to require Mr. Mc-
Adory personally to bring all of those records into
this court and spend three days going through them.
This should have been done prior to the trial of
this case if you wanted to go into those records; and
they were available to you, and the court would have
made them available to you just like I have other
records.
Mr. Amaker: That may not be necessary, Your
Honor.
A. Those records are open to the public.
The Court: Oh, yes. Sure they are. They are pub
lic records.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
126
Go ahead and further examine him, if you like.
Mr. Amaker: Just a minute, please.
Q. The City Appeals, Mr. McAdory, is the race of the
person involved identified on those! A. I don’t think so;
I don’t remember about the City Appeals, because that is
- 68-
just a quasi appeal, and I just don’t know, because they
are sent over to us from the City Appeals, and we just
make a docket out of it and it goes ahead.
Q. Have you looked at these records! Do they have
black male or white male or white female or black female!
A. They do on the indictment.
The Court: On the indictment.
A. Yes.
Q. All right.
You say you are unable to hazard a guess as to the rela
tive percentage of Negro versus white convictions in the
cut-off! A. I wouldn’t guess what it is.
Mr. Amaker: Your Honor, there is—part of the
problem with this—
The Court: Aren’t you going to have both of the
Judges from the cut-off as witnesses later on!
A. Yes, sir.
The Court: I think they could answer that ques
tion for you.
Mr. Amaker: All right.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
127
Transcript of Hearing of January 16, 1968
Elmore Me A dory—for Plaintiff—Direct
—69—
The Court: And probably far better than be could.
Let me ask you this.
When was this subpoena served on you, Mr. Mc-
Adory?
A. One day last week. I don’t remember. It was about
Thursday or Friday.
The Clerk: January 9th.
The Court: Served on January 9th?
A. I think so.
The Court: All right.
I take the responsibility for it. You called me,
when was it?
A. I called you, I think it was Friday.
The Court: Friday?
A. Yes.
The Court: At that time I thought the case—we
were going to be able to get into the case on Mon
day and I told Mr. McAdory to come on to court
and not bring his records, that we would work it
out some other way, if necessary.
Mr. Amaker: Mr. Clerk, would you mark the orig
inal of Mr. McAdory’s deposition.
(Exhibit 16 for the Plaintiffs marked for iden
tification.)
128
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
—70—
Mr. Amaker: Your Honor, I would like to offer
Mr. McAdory’s deposition in evidence.
Mr. Wilkerson: No objection.
The Court: Admitted without objection.
Mr. Amaker: That’s all the questions we have.
C ross E xa m in a tion b y M r. W i lk e r s o n :
Q. We have just a couple of questions.
Mr. McAdory, you testified that now, sir, when a venire
or group of people are summonsed to the Bessemer County
Courthouse to serve on juries, that they are, the whole
group is divided into a number of different juries; is that
correct? A. Yes, sir, after the Judge qualifies them.
Q. All right, sir.
Who does the dividing and how is it done, do you know?
A. Yes, sir; after the venire is called to see who is there
and then Judge has taken his excuses, the cards then are
given to the Judge.
Q. Who gives them to the Judge? A. I give them to the
Judge. The Judge shuffles the cards and counts out twelve
—71—
for jury number one, two, three, four, five or however it
might be.
Q. All right. A. He gives me back jury number one and
I called—I then call jury one and place them in the box
and then jury two in various places. The Judge selects
the jury.
Q. And, Mr. McAdory, is there anything on those cards
to indicate the race of the person whose name appears on
the card? A. None whatever.
129
Q. Nothing! A. No, sir.
Q. And it is your testimony then that the Judge shuffles
those cards and deals them into a number of different
stacks, and that is what determines who is on which; is
that correct? A. Yes.
Q. You have observed that happen, have you? A. All
the time.
Mr. Wilkerson: That’s all.
Thank you.
The Court: Any further questions?
Mr. Amaker: No, sir; no redirect, Your Honor.
—72—
The Court: May Mr. McAdory be excused tem
porarily subject to being on call if you need him?
Mr. Wilkerson: Certainly.
Mr. Amaker: I think so.
Mr. Newton: Yes, sir.
The Court: All right.
You may he excused, and if we need you, we will
call you later on and give you time to get up here.
Mr. Amaker: Your Honor, the questions that I
was asking Mr. McAdory originally—about the list
that was furnished was simply designed to elicit
information as to how that ratio of identification
was made on that list.
Mr. Wilkerson has explained it to me, I did not
know that; I was just wondering if he would be kind
enough to state it for the record, how that identity
is made.
Mr. Wilkerson: Yes; I would be happy to do it
for the record.
Transcript of Hearing of January 16, 1968
Elmore McAdory—for Plaintiff—Direct
130
T ra n scr ip t o f H ea r in g o f J a n u a ry 16, 1968
C olloq u y
A young lady who is employed in the District At
torney’s Office out in Bessemer at the Courthouse at
our request, I have forgotten her name, but I can
get it, at our request, each time a jury panel was
—73—
summonsed to the Bessemer County Courthouse, she
went where the panel was assembled and actually
went to each individual Negro Juror and got his
name and occupation, as I understand it, from him.
The Court: I see.
Mr. Wilkerson: She counted the total number of
people on the panel and counted the number who
were Negro, and at that time she made notes and
we have her notes available; and subsequently she
gave us a typewritten summary of how many were
summonsed each week, how many of them were Ne
groes, and the names and occupations of the Negro
Jurors; and in addition, she gave us the number of
Negroes on each jury, that is to say, Mr. McAdory
has testified the whole panel is divided into juries
one, two, three, four, five, she would tell us which
jury they were on and how they were divided ac
cording to that, and we read all of that into the rec
ord.
The Court: Correct me if I am wrong. My notes
and my memory is at the pre-trial hearing, that was
so stated to the court?
Mr. Wilkerson: Yes, sir.
The Court: It was stipulated or agreed that you
—74—
would furnish those figures to counsel and that you
all would stipulate on those figures!
131
Mr. Amaker: And we have.
The Court: All right.
Mr. Amaker: I just wanted to have the procedure
cleared for the record.
The Court: All right.
Mr. Amaker: Did she make that count before ex
cuses?
Mr. Wilkerson: It was my understanding that she
just counted the people that were there, that was
after excuses were granted, I am sure. She had them
divided into juries, jury one, two, three, four. So,
I assume those were people who actually were sum
monsed later on as petty jurors after the excuses
were granted. I am reasonably sure that is the case,
because that is the point she gave them to us.
Mr. Amaker: That’s the information I wanted to
get.
The Court: All right.
Mr. Newton: I would like to call Arthur J. Jones.
Transcript of Hearing of January 16, 1968
Arthur J. Jones—for Plaintiff—Direct
—75—
A rthur J. Jones, having been first duly sworn, was ex
amined and testified as follows:
Direct Examination By Mr. Newton:
Q. State your name, please, sir? A. Arthur J. Jones.
Q. Where do you live? A. 5705 Court E, Fairfield.
Q. Mr. Jones, you are the Arthur J. Jones who is Plain
tiff in this suit? A. Yes, I am.
Q. Mr. Jones, how long have you lived in Fairfield? A.
Since ’47.
Q. Since 1947? A. Since 1947.
132
Q. How old are you, Mr. Jones? A. 46.
Q. Have you ever been summonsed for jury duty in the
Bessemer Cut-Off? A. No, I haven’t.
Q. Is Fairfield your place of residence where you have
lived since 1947, a part of what is commonly known as the
Bessemer Cut-Off? A. It is.
—76—
Q. Have you ever been convicted of any crimes involving
moral turpitude? A. No, I haven’t.
Q. And you have not ever been called for duty—for
jury duty? A. No, I haven’t.
Mr. Newton: I believe that’s all.
Cross Examination by Mr. Wilherson:
Q. You say you were never called for jury duty.
Were you aware of the fact that on 10-21-57 there was
an attempt to call you for jury duty, but you were not
found? A. No.
Q. Did you know that? A. No.
Q. Did you know that you were on the jury roll from
1961 to 1963? A. No, I didn’t.
Q. Did you know that you were on the jury roll from
1957 to 1959?
The Court: Let me get the figures. He was on the
- 77-
jury roll from when?
Mr. Wilkerson: ’57 to ’59, that list or roll that was
used for those two years and ’61 to ’63, I don’t know
about currently, and was attempted to be served on
October 21, 1957, but was returned not found.
Transcript of Hearing of January 16, 1968
Arthur J. Jones—for Plaintiff—Cross
133
Transcript of Hearing of January 16, 1968
Arthur J. Jones—for Plaintiff—Redirect
The Court: All right.
Q. You say you are not aware of that? A. No, sir.
Mr. Wilkerson: All right, that’s all.
R e d ir e c t E x a m in a tion b y M r. N ew ton-.
Q. One other question.
On October 21, 1957, where did you live? A. 701 57th
Street, Fairfield.
Q. How long had you lived there? A. Since 1947.
Q. From 1947 to 1957, a period of ten years you had
lived at that very same address? A. At the same address.
Q. Were you married at that time? A. I was married
at that time.
Q. Your wife live there with you at that time? A. My
wife lived there with me.
Q. And you lived there for about ten years on October
—78—
21, 1957? A. That’s right.
Mr. Newton: I believe that’s all.
Mr. Wilkerson: That’s all.
The Court: You may be excused.
Mr. Newton: Thank you for coming.
Mr. Amaker: Mr. Cheatwood.
134
J ames F. C h e a t w o o d , having been first duly sworn, was
examined and testified as follows:
Direct Examination toy Mr. AmaJcer:
Q. Mr. Cheatwood, would you state your full name
please? A. James F. Cheatwood.
Q. All right.
What is your present occupation? A. Senior Court
Clerk with the Probate Court, Jefferson County, Alabama.
Q. Prior to that time, Mr. Cheatwood, did you serve as
Clerk of the Jury Board of Jefferson County? A. Yes.
Q. What years were you so employed? A. I was em-
—79—
ployed with the jury board from 1948 to 1964.
Q. At what date did you terminate your employment with
them? A. July 1, 1964.
Q. What was the date of the last jury roll that was filled
by the Clerk’s office during the time you were the clerk,
what years would that jury roll have been called for? A.
I believe from 1961 to 1963.
Q. Are you entirely certain of it? You say you were—
A. I am not sure, but I think so.
Q. That would have been 1963 to 1965.
You say you were terminated in 1964? A. It would be—
the box that was filled in August, 1963, I would have filled
it, 1963, 1965.
Q. All right.
So, that box would have been in service from 1963 to
1965; is that right? A. Yes.
Q. Now, as Clerk of the Jury Board, during that time
and directing your attention to the very last jury box
Transcript of Hearing of January 16, 1968
James F. Cheatwood—for Plaintiff—Direct
135
Transcript of Searing of January 16, 1968
James F. Cheatwood—for Plaintiff—Direct
— 80—
that was filled while you were the clerk, do you recall your
office sending any letters out to Negroes in the County ask
ing them to supply the names of jurors? A. Yes.
Mr. Hall: Now, may it please the court, I would
like to object to any other questions of Mr. Cheat-
wood with regard to what happened when he was
chief clerk of the jury board of Jefferson County,
because this matter has been thoroughly explored
as far as his functions were concerned in Billings
ley versus Clayton. And the suit now before the
court involves what has been—what has taken place
since that time. Mr. Cheatwood has not been clerk
of the jury board for almost four years, or three
and a half years at least. And the present clerk of
the jury board, Mr. Bill Ray Whitley is here, he
is party to this suit, and he is going to testify, and he
can testify as to what has taken place subsequent to
Billingsley versus Clayton.
Mr. Amaker: I called Mr. Cheatwood, Your Honor,
for the very specific limited purpose in connection
with the filling of the present jury roll as testified
to by Mr. Whitley in his deposition.
— 81—
I can introduce Mr. Whitley’s deposition at this
time, if the court prefers.
The Court: Well, temporarily I will overrule the
objection and see where you are going. Go ahead for
the limited purpose.
Mr. Amaker: I don’t recall the witness’ answer to
the last question, Your Honor.
136
The Court: You are going to have to speak up a
little bit.
A. I don’t recall the last question.
Mr. Amaker: What was the last question?
Read the last question, Mr. Reporter.
(Question and answer read.)
Q. Where did you get the list of the names that you
sent the letters to? A. As I recall, I think most of the
names came out of the City Directory, Birmingham and
Bessemer City Directories.
Q. No, I am—- A. Some of them may have come out of
the telephone book, and then some of them were—especially
the ministers that were written to, the names came off the
church bulletin that they have in the front yard of the
— 82-
church.
Q. No, let me make myself clear; let me ask you this.
When you terminated your employment and you were
succeeded by Mr. Whitley, did you give him that list that
you had made for the purpose of sending out these letters
to Negroes? A. I am sure it was left in the office.
Q. All right.
Because Mr. Whitley has so testified.
Now, let me recapitulate.
Do you know approximately how many names you got
in the manner you have indicated ? I am talking about
the names of Negroes to whom letters were sent?
Transcript of Hearing of January 16, 1968
James F. Cheatwood—for Plaintiff—Direct
137
Mr. Hall: If it please the court, all that testimony
was before Judge Grooms in the Billingsley case,
and it is available to the court, part of the court’s
records in the court.
Mr. Amaker: Mr. Hall—of course, the witness can
answer, if he knows.
The Court: I will let him answer. I don’t see
that any of this is material so far to this case, but I
will let him go ahead.
A. I think it averaged around 100, 120, somewhere between
—83—
80 and 120. It was continually being taken away and added
to, someone had died, and so forth.
Q. You say a total between 80 and 120 names! A. I
would make that guess.
Q. And you testified you got those names from princi
pally the City Directory, the telephone directory and the
directory, did you say, of the churches! A. Yes.
Q. Do you know how many churches! A. No.
Q. Do you have any judgment as to the approximate
number of ministers whose names were on that list! A.
I think they were all ministers at that time. Now, this is the
’63 to ’65 box.
Q. All right.
Mr. Amaker: The point, Your Honor, is that that
same list is being used as Mr. Whitley testified to;
Mr. Whitley indicated that Mr. Gheatwood would be
in a better position to indicate the source of the
letters on that list than he would. That list is in fact
Transcript of Hearing of January 16, 1968
James F. Gheatwood—for Plaintiff—Direct
138
Transcript of Hearing of January 16, 1968
James F. Cheatwood—for Plaintiff—Direct
the very same list that is being used in the current
box.
The Court: All right.
Q. But were those the only ways, did you talk to any-
—8 4 -
body to secure those names? A. The names of the ones
that the letters were sent to?
Q. Yes. A. I don’t recall; I could have.
Q. You say—but you say they were all ministers? A.
Yes, sir.
At one time, say ten years ago, the list was much larger
and letters were written to Negro attorneys and business
men and we were advised to strike out the attorneys be
cause they didn’t think it was right to request attorneys
to furnish names where they may be interested in a case.
Q. Now, one final question, Mr. Cheatwood.
Do you recall of the approximately 100, that’s striking
a balance between 120 and 80 names, on that list, do you
recall how many persons were names of persons in the
Bessemer Cut-off? A. No. I would hazard a guess, maybe
ten, fifteen, or twenty.
Q. Ten or fifteen out of a total of perhaps 100? A. I
would say maybe twenty; somewhere between ten and
twenty.
—85—
Q. Somewhere between ten and twenty? A. Yes.
Q. All right.
Mr. Amaker: I have no further questions.
Mr. Hall: We have no questions.
139
T ra n scr ip t o f H ea r in g o f J a n u a ry 16, 1968
C olloq u y
The Court: Thank you, Mr. Cheatwood. You may
be excused. I am going to recess at this time for
lunch.
Now, you state that, I believe, that Judge Good
win will be here at 2 o’clock.
Mr. Newton: Yes, sir.
The Court: Now, do you have a relatively short
witness that we could put on at 1:30?
Mr. Amaker: If Mr. Clayton is here, we do.
The Court: Let’s have that witness at 1 :30. I will
recess for lunch, it looks like a long way from getting
through; I will recess for lunch until 1 :30. At that
time we will put the witness on and if the Judge
shows up early, we will put him on and take the
other witness off.
Mr. Amaker: All right, sir.
(Whereupon, proceedings were in recess from 12
o’clock p.m., until 1:30 p.m., following which the
following occurred:)
— 86—
1:30 P.M.
A fternoon Session
January 16, 1968
The Court: Now, you say you have a witness
that we can get rid of before 2 o’clock?
Mr. Amaker: Yes, sir.
The Court: I believe I see Judge Ball.
Mr. Newton: Yes, sir. That is.
The Court: All right.
Let’s just go ahead with the Judge. Which one
would you like to hear? Do you want Judge Good
win or Judge Ball?
140
Mr. Newton: Judge Ball is already in.
The Court: Come around, Judge.
Judge E dwabd L. Ball, having been first duly sworn,
was examined and testified as follows:
Direct Examination by Mr. Newton:
Q. Will you state your full name, Your Honor, please,
sir? A. Edward L. Ball.
Q. You are Judge of the Tenth Judicial Circuit, Bes
semer Division; is that right? A. Yes, sir.
—87—
Q. Now, Judge Ball, how long have you been Judge
in that Division? A. Since October 1, 1957.
Q. All right, sir.
Now, Your Honor, have you in the last—between Sep
tember, 1967, and December, 1967, handled primarily crim
inal or civil cases? A. Civil Division.
Q. All right.
Beginning, sir, if you know—strike that. You never
organized grand juries during that period of time, did
you, sir? A. No, sir.
Q. All right.
During the week of September 11th and subsequently
the week of September 25th, there was a jury organized
in the Bessemer Division? Would that week of September
25th be a Civil week, if you recall? A. I don’t remember;
ordinarily from month to month, Judge Goodwin or
ganizes the criminal jury and I try civil cases by taking
them out and the next jury week I will organize for civil
Transcript of Hearing of January 16, 1968
Judge Edward L. Ball—for Plaintiff—Direct
141
purposes, and if he has criminal matters, he takes the
- 88-
venire and tries his criminal cases or did at that time.
Q. During this period of time, now, would you organize
your juries from the venires that you called there into
several juries; one, two, three, four, five! A. On the
civil division, I did, yes.
Q. And, now, Judge, once those juries were divided into
juries, all excuses and so forth, you had already excused
everybody that you were going to excuse before you
divided them into juries; is that correct! A. Any of
them disqualified, or who have been excused, they were
excused before we designated jury one, two, three and
four as the case may be.
Q. All right.
Now, Your Honor, do you have any recollection of the
week of September 11, 1967, of the number of Negroes
that may have sat on your juries! A. No, I couldn’t—
I would be more interested in seeing how many females
we had since the advent of women to the jury. I couldn’t
give you an idea or even an estimate; if I had a jury list
here, I might be able to refresh my recollection, but not
by any other way.
—89—
Q. Sir, I am going to show you a list that has been
previously offered into evidence here; this was a jury
organized the week of September 11, 1967; those pur
port to be Negroes that served on that jury broken down
into— A. If you can tell me whether this was a criminal
week or not, or whether this was a civil week!
Q. It says civil, sir! A. I remember this name here,
because it is kind of unusual name, Levenia Williams; I
Transcript of Hearing of January 16, 1968
Judge Edward L. Ball—for Plaintiff—Direct
142
remember she sat on one or more petty juries during
that week.
Q. All right.
Have you had, Your Honor, from just your seeing
knowledge, Negroes included on all your recent panels
and again I am talking about roughly for the last four
or live months? A. You mean on the entire jury panels
or on the trials?
Q. On the trials? A. Yes, I can’t remember a single
petty jury finally selected, they have no Negroes on it
but one, and in that case I believe it was Eddie Mills
against Southern Railroad, tried it about two weeks ago;
— 90—
but I can’t remember any jury—any panel that we struck
from, that is, at least twenty-four jurors, that we didn’t
have both races on the jury.
Q. Do you have any idea what the maximum number
that actually may have sat in a trial of a case that you
may have had? A. I was just talking to Judge Goodwin
about that on the way up here, either four Negro women
or three Negro women and could have been five and two
Negroes or five and four whites on the jury, and ordinarily
though, they would run maybe eight to four; really been
more interested in the women to see how many the lawyers
will select, regardless of race, and I have been a little bit
surprised how many Negro women are selected for actual
trial of cases.
Mr. Newton: I believe that’s all I have.
Cross Examination by Mr. Wilkerson:
Q. Judge Ball, I believe you testified that on the civil
side the panel is divided into jury one, two, three and
Transcript of Hearing of January 16, 1968
Judge Edward L. Ball—for Plaintiff—Direct
143
four; is that right? A. Whatever is left over of jury-
five, you have seven or eight jurors, we just designate
them that way.
Q. How is that division done, do you do that your-
—9 1 -
self? A. Well, as you—if I may tell you exactly how
we do it?
Q. Yes, sir. A. We draw—the summons are sent out
by what we draw out of the jury box in cards, and then
we call the roll, all the jurors in the courtroom. And
then we accept excuses or we find out where the jurors
are who haven’t shown up; and then the clerk, after
we have gotten down to, say, we got forty-five jurors
in the court, then he hands me back, as he calls the
roll, and they answer present, he pushes them over
and then he gives me the cards of all those present.
Those cards are shuffled and I shuffle them, the clerk
shuffles them first and I shuffle them, and then I take
six off the top and six off the bottom without looking at
them and hand them to the clerk and he calls those names
out, and while he is calling them out, that first twelve is
jury number one, whoever it is, and the bailiff escorts
them over to the box; by the time he gets through with
those twelve, I have already counted out twelve more;
sometimes I intermittently reshuffle them and then the
next twelve is jury number two, and then we will shuffle
—92—
again and I will select twelve more and that jury is
number three, calling them all by name as the bailiff gives
them to the clerk from me. And then the next twelve
is jury number four, and whatever is left I just hand
those over to the bailiff and he gives them to the clerk,
Transcript of Hearing of January 16, 1968
Judge Edward L. Ball— for Plaintiff—Direct
144
and, of course, that is jury number five, as the ease may
be or could be we have five juries and the odd ones are
jury six.
Now, the reason we do that is we don’t try cases that
way but simply for organizational purposes; they—if I
strike from twenty-four jurors, I may have, say, I take
jury number one and jury number two, say we have
seven from jury number one selected for this trial and
five from jury number two. We do that so that you won’t
have to pick out and take time for the remaining jurors
on one and two to go down to the other court.
The bailiff announces all your jurors on jury number
one and two not in the box, follow me down to Judge
Goodwin’s court, plus three and four as the case may be;
then I try the next case to come up and try to give every
juror a chance to work. If I have a chance I will put
- 9 3 -
jury number three in one box and jury number four over
here, and we will strike from them to divide the work
up between all the people there. A. Yes, sir.
Q. Basically that is the way we put them in the box.
Mr. Newton: Thank you, Judge. That’s all.
Mr. Wilkerson: Thank you, Judge. That’s all.
Mr. Newton: I have nothing further, Your Honor.
The Witness: May I be excused, Judge ?
The Court: Yes, sir; thank you for coming,
Judge.
Mr. Newton: Judge Goodwin.
Transcript of Hearing of January 16, 1968
Judge Edward L. Ball— for Plaintiff—Direct
145
Judge Gardner F. Goodwin, Jr., being duly sworn, was
examined and testified as follows:
Direct Examination by Mr. Newton:
Q. Your Honor, will you state your full name for the
record, please? A. Gardner F. Goodwin, Jr.
Q. Your Honor, you are the presiding Judge in the
Bessemer Division of the Tenth Judicial Circuit? A.
Technical term is Senior Judge.
— 94—
Q. Senior Judge? A. Yes, sir.
Q. All right.
During this period of time that I recently asked Judge
Ball about, from about the 11th of September through the
end of December, did you primarily handle the criminal
division of the court; is that correct? A. At that time,
yes, sir.
Q. All right, sir.
Now, Your Honor, when—during this period of time,
you have any personal recollection of how many Negroes
may have set on your juries? A. I think that specifically
on the last Grand Jury we had, which was just last month,
I believe there were six.
Q. All right, sir.
And then you had a Grand Jury also about 11th of Sep
tember, I believe, somewhere along there? A. We may
have. We would have had one, in all probability, in the
first part of September, but I don’t remember specifically.
Q. Yes, sir.
Now, Your Honor, in the trial of these cases, as you
- 95-
have tried them over this approximately three months
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Direct
146
period of time, have you had Negroes sitting generally
in the trial of cases that have come before you! A. Yes.
Q. Do you have any recollection, sir, as to how many!
A. Not specifically in that period of time. I can’t seem
to focus my mind on any exact number in that period.
Mr. Newton: Judge, we are hack to this thing,
that you said that one of the judges could answer,
and Judge Goodwin is the only judge that handles
criminal cases—that handled them during that pe
riod.
The Court: Yes.
Q. Judge, do you have any idea about the percentage
we are talking about on the criminal matters now for this
period of time, about the approximate percentage of Ne
groes convicted of crimes as opposed to whites in the last
year or so?
The Court: I believe as the question was put this
morning to the other witness by me, your best judg
ment; I realize you wouldn’t have a definite figure,
but what would your best judgment be about that,
Judge?
— 96—
A. That is as to the percentage of Negroes who are found
guilty who are put to trial?
The Court: Well, that wouldn’t do any good un
less we went this far, first we have got an estimate
that the total number of criminal cases were be
tween six and seven hundred a year. Mr. McAdory
made that statement; does that sound about right?
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Direct
147
A. That sounds reasonable, yes, sir.
The Court: Now, could you give us an estimate
based on your best judgment from your experience
in trying these cases, how many of the original
cases, or what percentage would be Negro and what
percentage would be white!
A. That would be altogether based simply on my observa
tions without having kept any records.
The Court: That’s the way—
A. I kept no records on any of those matters and it would
be just my best judgment concerning those. In my opin
ion, more than half of the defendants are Negroes. I would
estimate about sixty percent, possibly, of the persons in
dicted by the Grand Jury or coming up on appeal from
the lower court in criminal matters; I would say approx
imately that.
—97—
Q. Now, Judge, then once we have talked about either
on appeal, on criminal appeal, or under indictment by
Grand Jury, of the convictions either by guilty pleas or
by jury trial, what percentage would you say, in your best
judgment! A. Well, nearly all of the docket goes off on
guilty pleas both white and colored defendants.
The Court: What percentage would you say,
eighty-five!
A. That seems to be about average. Let me see. Yes, sir.
That would be about average. If a Grand Jury indicted
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Direct
148
sixty or sixty-five during a Grand Jury, we would try
seven or eight of them. Probably have that many trials,
and the others would go off on pleas of guilty; some few
nol prosse judgments.
Q. Yes, sir.
Now, once you got this approximately 85% by guilty
pleas and so forth, what percentage of those would be
Negro?
The Court: Well, it would he relatively the same
percentage. Now, talk about the fifteen percent that
go to trial, that’s what you are interested in?
Mr. Newton: Yes, sir.
—98—
The Court: I will let you ask the question and
as I understand the question—you understand it?
A. Yes.
I notice no difference in the percentage between white
and colored as to convictions and acquittals before juries.
I notice no appreciable difference there.
Q. Most of them pleaded guilty and this is how most
of the cases would get off the docket, and then the per
centage would be about the same as those indicted, roughly,
in terms of Negro and white? A. That is correct.
Mr. Newton: I don’t have any further questions.
Cross Examination by Mr. Wilkerson:
Q. Judge Goodwin, there have been how many Grand
Juries since September of last year that you remember,
special and regular? A. We call usually four a year.
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
149
Q. All right, sir. A. But I believe—that’s the usual
number, each three months.
Q. All right, sir.
How many were there from September of last year until
the 1st of this year, how many Grand Juries? A. Well,
—99—
I think we had one in September and then one in December.
Q. All right, sir.
So, there were two regular Grand Juries? A. I believe
that is correct.
Q. I believe during the summer of last year there was
a special Grand Jury empanelled, wasn’t.there? A. There
is some question whether that was a special Grand Jury
or whether special matters were submitted to a Grand
Jury.
I don’t know whether I could designate that, it has been
referred to as both ways.
Q. Those Grand Juries that were empanelled on or sub
sequent to September 11th of last year, isn’t it a fact that
on each of the Grand Juries empanelled subsequent to that
date, there have been Negroes, whether four or five or six,
isn’t it a fact that there have been Negroes who have actu
ally served on those Grand Juries? A. There has been
only one Grand Jury, I think, since September; that was
the one in December. There was one in September, I be
lieve, but since then has been only one, the one in December.
— 100—
Q. On the September Grand Jury, the Grand Jury em
panelled in September, were there any Negroes who served
on that Grand Jury? A. In my recollection, yes. I can
say within my recollection in years there has been more or
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
150
less always some on every Grand Jury in recent years,
Negroes I am speaking of.
Q. All right.
Mr. Wilkerson: All right, sir, I think that is all,
Judge.
Mr. Newton: That’s all I have.
The Court: Judge, let me be sure I understood
the response made to one of the questions asked
you. I believe you stated that you have noticed no
difference, percentagewise, in the convictions ob
tained in jury trials as between Negroes and whites!
A. That is correct; I so stated that.
The Court: Say we have ten trials and five of
them are Negro and five are white people and we
get convictions in half the cases, would anything
about any of those cases that you have tried indi
cate to you the fact that the defendant was white
or Negro made any difference whatsoever as to the
- 101-
conviction by a jury?
A. No, sir; I have seen nothing that would indicate any
difference to my mind. I have seen nothing that would
indicate any difference in the outcome of the case.
The Court: I understood you to say also, I know
Judge Ball made the statement, that he had been
a little bit surprised at the number of women, both
Negro and whites, who had been selected to actu
ally serve on the juries; have you had that same
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
151
experience where yon have actually gone to trial
where there would he a number of women on the
jury?
A. No, sir, because with women for the first few months
on the juries in Alabama, frankly, I have noticed that the
defense attorneys are a little wary of them.
The Court: I have had that same experience.
A. And strike them nearly all off. I keep a list when juries
are struck just for my observations without keeping any
statistics, I look at a list when an attorney strikes, just
to see how many he strikes, and I have noticed that the
defense attorneys concentrate on women, both white and
colored.
The Court: And it is because of the fact that
— 102—
they are women?
A. There could he no other reason; yes, sir.
The Court: That has been my same experience.
Now, let me ask you this. What about the Negro
men, have you noticed any reluctance by counsel on
either side to accept them on the juries in recent
months or years?
A. I have seen no difference at all on them; they leave
them on.
Well, I will say this, truthfully, I have observed that
defense attorneys or Negro men will strike off a larger
percentage of Negro men than the prosecuting attorney
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
152
will strike o ff; I noticed that time and again when I would
take a list and would sometimes off the record in recesses
chide them about it. We have not had enough notice of
great deal of difference, but the only conviction that I can
ever remember having had in a criminal case in a bastardly
proceeding was one years ago in which there were several
Negro men on the jury and it was a Negro defendant. And
since then, somehow the feeling has gotten out among the
attorneys that they just don’t want a Negro man on a jury
trying a Negro Defendant.
—103—
And they strike off a much larger percentage of Negroes
when they are defending a Negro than otherwise.
The Court: Judge, when the clerk hands you the
cards to select the juries when you number juries
three or four or five, those cards do not—if you
looked at those cards, they would not indicate to you
whether or not that particular juror was Negro or
white, would they?
A. That is correct; there is nothing at all to indicate that.
Name, occupation, residence, I believe, is all that is on it.
Q. All right.
The Court: And both you and Judge Ball follow
the same procedure!
A. Yes.
The Court: When you do that, you shuffle the
cards at random, select twelve of the jury for number
one and another twelve for number two!
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
153
A. Yes, the clerk generally shuffles them before he hands
them to us and then we shuffle them after we get them and,
of course, if it is a Grand Jury, the particular wording of
—104—
the statute requires that they must he drawn from a hat.
So, I literally have always complied with that and bring
in some one’s hat and put all of the cards in it raising them
up and shuffling them up, again with Mr. McAdory holding
the hat above my eye level I draw eighteen names from
the hat, but that, is only in a Grand Jury that I will draw
them from a hat, because the statute uses the expression,
they must he drawn from a hat.
Otherwise, we shuffle them without looking at them and
then count them off the top and off the bottom until we
get twelve.
The Court: And I believe your box has recently
been refilled?
A. It has been refilled in August of each odd numbered
year; it was last refilled last August.
Judge Ball: Filled in May.
A. Wait, that’s the usual time, but because of women be
ing put in, that’s right, the usual rule is August of each
odd year, but because of the decision requiring women to
be in it, why, they did fill it earlier this time.
—105—
The Court: That is correct. It was May, I be
lieve.
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
154
A. It was some earlier, I don’t remember how much ear
lier.
The Court: Judge, would you say you noticed
any difference in the make-up of your jurors or
your jury venires drawn out of this box and that
drawn out of that box prior to this one!
A. Yes, a great deal of difference.
The Court: Would you state what that difference
in your opinion is!
A. Approximately half of all the venire appearing now
are female.
The Court: And what percentage of those females
would be Negroes!
A. About forty percent, forty-five.
The Court: What about the males!
A. About the same proportions.
The Court: Forty or forty-five percent would be
Negro!
A. Yes, sir.
Now, that’s of the venire that is finally selected
from which we try the cases; that is not necessarily
— 106—
the venire drawn because the venire we use is after
excuses are given and taken by the court.
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Cross
155
The Court: What is your experience there on ex
cuses ?
A. I believe that a slightly larger proportion of Negroes
ask to be excused before me.
The Court: All right.
Now, that’s all I wanted to ask Judge Goodwin.
Did you want to ask him anything?
Mr. Newton: Just one question.
Redirect Examination by Mr. Newton:
Q. I think just for clarity in my own mind, now, Judge,
when you organized the jury while you were handling the
criminal side of the docket, you didn’t divide them into
juries as Judge Ball testified on the Civil side, did you?
A. I did divide them as Judge Ball testified.
Q. On the criminal side also? A. That is correct, be
cause Judge Ball tries civil cases in the same week in
which I am trying criminal cases.
Q. All right. A. And the juries are interchangeable;
—107—
he will call for two juries and will use them, and then I
must use what’s left. The only difference is if I organize
a Grand Jury, I take only eighteen and then I do not or
ganize them into the numbered twelve man juries, because
I don’t try cases that week, or petty juries, I just let them
all go to Judge Ball and he then organizes them into num
bered juries.
The Court: Any further questions?
Mr. Newton: No, sir, that is all.
Transcript of Hearing of January 16, 1968
Judge Gardner F. Goodwin—for Plaintiff—Redirect
156
T ra n scr ip t o f H ea r in g o f J a n u a ry 16, 1968
C olloq u y
The Court: May Judge Ball and Judge Goodwin
be excused!
Mr. Newton: Yes, sir.
The Court: You may he excused.
Mr. Newton: Thank you so much.
Mr. Amaker: Ray Herron.
The Court: Ray Herron.
He may be in the witness room; I don’t know.
Mr. Newton: Was he served!
The Clerk: Herron was served on January 13th.
Mr. Amaker: He is not around?
The Bailiff: No, sir.
The Court: Someone say he was here this morn
ing?
Mr. Amaker: No, sir; said they hadn’t seen him
this morning.
— 108—
The Court: I see.
What does Herron do, what was he?
Mr. Newton: He was formerly, as I understand
now, up until a month or two ago, he was assistant
clerk to Mr. Whitley and he helped fill this box when
it was last filled.
We really called him primarily because in Mr.
Whitley’s deposition previously taken, Mr. Whitley
testified that it was Mr. Herron who checked out the
criminal record to determine those persons who
should not go into the box and that was the purpose
for which we issued the subpoena.
The Court: Well, go on and call your next witness
and if you feel you have got to have him, we will
157
attempt to get him this afternoon and send the
Marshall ont and see if we can find him; it is easy
for him to have gotten confused, due to the situa
tion yesterday.
Mr. Newton: Yes, sir.
The Court: Several witnesses called in the clerk’s
office, and I instructed the clerk’s office to tell every
body that we would start this morning at 10 o’clock.
Mr. Amaker: Let me call Mr. Whitley then, in
that event.
- 1 0 9 -
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
Bill R. W hitley, having been first duly sworn, was ex
amined and testified as follows:
Direct Examination by Mr. Amaker:
Q. Your name is Bill R. Whitley and you are the clerk
of the jury board of Jefferson County, are you not? A.
Yes, sir.
Q. Mr. Whitley, you recall that you have been on two
separate occasions since this suit was filed deposed by at
torneys in this case? A. Yes, sir.
Q. On one of those occasions you testified that the in
structions that you gave to the person who did the house
to house canvassing was to select persons between the ages
of 21 and 64, is that correct, or were those instructions that
you in fact gave? A. We attempt to get the persons be
tween 21 and 65 who will be in that age group at the time
the box is filled.
Q. I see.
158
At a meeting of June 1st, 1966, the Jefferson County—
— 110-
are you aware that at a meeting on June 1, 1966, the Jeffer
son County Jury Board voted to raise the age limit, from
65 to 70 years? A. Voted to recommend it, yes, sir.
Q. Did they in fact make such a recommendation? A.
Yes, sir.
Q. Was that recommendation approved? Recommended
to whom? A. This was in the form of a resolution, I be
lieve.
Q. Yes, it was. A. It was submitted to the Legislative
Delegation and I don’t believe any action was made on it.
Q. I see.
So, because of the non-action by the Legislative Delega
tion, you have restricted your canvass to persons up to
age 65? A. Yes, sir.
Q. All right.
Now, Mr. Whitley, you have testified, have you not, that
during the time the jury roll and the jury box for the Besse
mer Division was composed, that the person in your office
who was responsible for purging the list of names was Mr.
Ray Herron? A. Yes, sir.
— Ill—
Q. Do you know—did you at any time yourself take part
in the process of purging the names after they were brought
in? A. There were some borderline cases that he didn’t
want to make a decision on that I helped him with, and also
I think I submitted some few to the Board Members for
their decision.
Q. Well, in Mr. Herron’s absence, can you describe, and
do it only if you can, the manner in which those lists were
Transcript of Hearing of January 16, 1968
Bill R. Whitley— for Plaintiff—Direct
159
purged once they were brought in by the field canvassers?
A. Well, this is written out in the statute, who is qualified
and who is disqualified and he goes by that statute.
Q. Well, let me refresh your recollection with respect to
—did you—Mr. Whitley, in the deposition that was taken
of you on the 5th of May, 1966, do you recall testifying that
the only check that in fact was in practice was made with
respect to those statutory disqualifications was to see
whether or not the person whose name was originally
selected had a criminal record?
— 112—
Mr. Hall: May I ask what page you refer to?
Mr. Amaker: 67 of the first deposition.
A. By that do you mean the only check as to his character?
Q. I am sorry, I didn’t hear. A. Do you mean the only
check as to his character?
Q. Well, the question—let me read from the deposition:
What sort of things do you look for to make sure that a
person is qualified?
“A. This is the only check, by criminal records, that
is all we make.”
Now, is that in fact what you testified to on that occa
sion? Do you want to change that? A. That was—would
probably depend upon the question prior to that.
Q. Now, by purging the names, do you mean that when
you get a name, before that name goes on the roll, a check
is made to see whether that person is qualified in accordance
with the standards set down by Alabama law? Answer:
That’s right. Question: And you do that by resorting to
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
160
police records to see whether there is a criminal conviction f
Answer: Yes. Question: Now, there are other standards.
How would you know whether a person was an habitual
—1 1 3 -
drunkard or not? Answer: Well, of course, assuming that
our police department is efficient, he would have been ar
rested several times for drunkenness. Question: What sort
of things do you look for to make sure that a person is
qualified? Answer: This is the only check, by criminal
record, that’s all we make.
Now, I am reading from your testimony? A. I think I
meant to indicate that’s the only character check, yes, sir.
Q. Now, what other kinds of check then? A. Well, of
course, they are limited in age groups by law.
Q. Do, age and criminal record. I mean, do you in fact,
when the names are brought in, check for anything other
than a criminal record after they have been—because your
canvass picks them up with respect to your age and resi
dency in the first place, doesn’t it? A. Yes.
Q. So, when the names are brought in the office, what,
in fact, your office does, is check to see whether they have
a criminal record, is that it? A. Yes, sir, that is true.
—114—
Q. Do you do anymore than that? A. No, sir.
Q. How is that process actually done? What does Mr.—
you said Mr. Herron who was principally responsible for
this, and you helped him in only what you call borderline
situations.
Now, do you know the manner in which Mr. Herron
went about making this criminal check or purging the list?
A. Yes, sir, uses court convictions. We are mailed disposi
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
161
tion of cases from the clerk of the Circuit Court and he uses
these records to try to match up the prospective jurors
names, that we have against criminal records.
Q. Does he actually get the records from the court?
A. Yes, sir.
Q. I see.
When he finished the process of matching, what did he
do with those records! Answer only if you know? A.
What did he do with the jury cards ?
Q. No; I am talking about the criminal record. A.
Pardon?
— 115—
Q. Criminal record? A. We keep a file of criminal
records.
Q. In checking against the criminal records, was the
process to check each name to see whether there was a
criminal record? A. Yes, sir.
Q. All right.
Was this done prior to filling the jury box which was
filled last year? A. Yes, sir.
Q. Are the records that were used in that process,
are they on file in your office? A. The criminal records?
Q. Yes. A. Yes, sir.
Q. Who was the custodian? Do you know whether or
not Mr. Herron or someone else would be able to tes
tify—you say the records are on file in your office. That
means you are the custodian of them? A. Yes, sir.
Q. Have you had any occasion to look at the records
yourself closely to make any judgment as to the relative
amount of Negroes and whites who were disqualified by
— 116—
Mr. Herron or you or anyone in your office? A. No, sir;
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
162
most of the time he doesn’t even know whether or not
they are colored or white when he is checking them.
Q. Have you observed the record yourself? Do they
indicate whether the person is colored or white? A. I
was Circuit Clerk before I became clerk of the Board and
I am familiar with the files; there is no designation on
the files.
Q. So, is it your testimony then that the records them
selves would not disclose in the event of whether a person
was disqualified, what the race of that person was? A.
No, sir.
Q. That’s the records that you have been using? A.
That’s right.
Now, some of the records that we obtain from the
Sheriff’s office are marked, but we—in our transferral,
we do not make any designation.
Q. All right. Excuse me a moment. Now, Mr. Whitley,
in filling the jury box, when I say filling the jury box,
you understand that I am talking about the canvass which
made up the jury roll and the jury box? A. Yes, sir.
— 117—
Q. In filling the jury box, this most recent occasion
when it was done, I think you testified it was completed
in May of last year? A. Yes, sir.
Q. Did you send any letters out to Negro individuals
in the Bessemer Division asking their assistance in fur
nishing the jury board and the clerk with the names of
Negroes who might be potential jurors? A. Yes, sir.
Q. Do you have any recollection of how many such
letters that were sent only in the Bessemer Division?
A. There are some. I have a list of them and there are
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
some.
163
Q. All right.
You were asked to bring that information to court, were
you not? A. Yes, sir.
Q. And you have it with you? A. Yes, sir; I counted
at least fifteen addresses, there may be a couple more
that I didn’t recognize.
Q. All right.
Your testimony is then that there are approximately
— 1 1 8 -
fifteen letters that were sent in the Bessemer Division
alone? A. Yes, sir.
Q. And they were all to Negroes? A. Yes, sir.
As far as I know, that is right.
Q. Were any letters sent to any white individuals?
A. I really don’t know; I haven’t seen all these individuals.
Q. Well, how do you know that these—well, your tes
timony is that these persons are Negro; how do you
know that? A. Well, I assume that the Minister of
A. M. E. Church is a Negro and that is how I added
some of the names to the list.
Q. Were all of these names the names of Ministers?
A. Some of them are names of educators, principal of
schools and so forth.
Q. You testified in your last deposition that—not your
last, your first deposition that you were using primarily
the list of names that were furnished you by the prior
clerk, Mr. Cheatwood; it was he who furnished them to
you; is that correct? A. I don’t know primarily, about
— 119—
primarily, but I did get some that were still in the office
when he left; yes, sir.
Q. Did you add any names yourself? A. Yes, sir.
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
164
Q. Approximately how many? A. I don’t recall.
Q. All right.
Were the names you added, however, the names of Ne
groes? A. I attempted to secure names of Negroes, as
I mentioned a moment ago.
Q. So, then, am I correct in saying that your testimony
is that of the total of the names that were left from
Mr. Cheatwood’s list and those that you got, however
you got them, approximately fifteen letters were sent
to Negro individuals in the Bessemer Division? A. Yes,
sir.
Q. Now, how many letters all told were sent to Negroes
in the entire county? A. We had 78 in all.
Q. I see.
- 120-
May I see the letter that was sent, please, sir?
Mr. Wilkerson: I have it.
Mr. Newton: I think I have a copy of it.
Q. Approximately when were these letters sent out, Mr.
Whitley? A. In July, 1966, I believe.
Q. In July, 1966? A. Yes, sir.
Mr. Wilkerson: It shows on the top in the letter
the day it was sent out.
Mr. Amaker: Would you mark that please?
(Plaintiff’s Exhibit 17 for identification
marked.)
Q. I show you, Mr. Whitley, what has been marked for
identification as Plaintiff’s Exhibit 17 a form letter under
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
165
date of July 1, 1966, and ask you, sir, whether this exhibit
is a facsimile of the letter that was sent to the individuals
who you testified you sent the letters to? A. Yes, sir.
Q. Was the text of the letter the same in each case?
A. Yes, sir.
Mr. A maker : I see. Your Honor, I would like to—
— 121—
I direct your attention, Mr. Whitley, to the second
full paragraph of the letter, and would you read
what appears there, please, the first sentence?
A. “Please give your careful consideration to the matter
and select only such citizens as you would want to sit on
the jury which might he about to pass on a case involving
your own life, liberty or property.”
Q. Thank you.
Now, you testified in your first deposition that a similar
letter containing the exact language was sent the previous
year, did you not? A. Yes, sir.
Q. Is it a fact that on every occasion, to your knowledge,
that letters have been sent to these individuals that what
you just read has appeared in the letter? A. Since I have
been clerk of the board; yes, sir.
Mr. Amaker: Your Honor, I would like to offer
Plaintiff’s Exhibit 17 into evidence.
The Court: No objection.
Mr. Hall: No objection.
The Court: May I look at it just a second? Other
than sending the letters, Mr. Whitley, did you or
any other persons on your staff or who did this
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
166
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
- 122-
canvassing make any personal contact with the in
dividuals to whom the letters were sent?
A. As individuals?
Q. Yes, sir.
With respect to complying with the request that was
made in the letter? A. Not in connection with the letter;
no, sir.
Q. Well, I am not talking specifically about the letter,
but about the request for assistance that was contained in
the letter? A. To me that means the same thing; I don’t
understand.
Q. Well, I am just simply asking, in addition to sending
the letter, did you ask anybody on this list to help you get
Negroes on the jury? A. I don’t recall visiting any per
sonally, no, sir.
Q. May I see the list that you sent?
Mr. Whitley, did you ever have any occasion prior to the
filling of the jury box this last time to appear before the
—any person on the Civil Service Board to ask for addi
tional canvassers? A. Yes, sir; we had some additional
canvassers in addition to—
—123—
Q. You are not answering my question, sir.
I am asking whether you ever made any request for
additional canvassers prior to filling the jury box this last
occasion? A. All of our canvassers are temporary ap
pointments, yes; I have to ask for them each time.
Q. Do you recall Avhen you made the request this last
time? A. Well, the last request for canvassers was made
prior to December 1st, which was the date they began—
167
Q. Prior to December 1st, 1966? A. Yes.
Q. That’s the date that the canvassers began? A. No;
we began canvassing in August, maybe a little before
August. In the Fall of 1966, we began canvassing.
Q. Now, you say the last that—you testified the last
request for additional help was made in December, had
to be made before December of that year? A. There was
two separate requests for the temporary canvassers; one
was prior to, I would say, August, 1966, or maybe we
started in July; and then the next request was prior to
December 1st.
Q. I see.
—124—
On each of these occasions, to whom was the request
made? A. To the personnel board of Jefferson County.
Q. Did you personally request—make the request? A.
As an agent of the jury Board, yes, sir.
Q. On each occasion? A. Yes, sir.
Q. Do you know whether on one occasion in November
of that year, whether Mr. Clayton also went before the
board and asked for additional canvassers? A. Yes, sir,
I believe he was present at that request.
Q. So, you were there together? A. Yes, sir.
Q. Now, on each occasion, taking the first occasion, did
you make any request for the hiring of Negro canvassers?
A. No; we were not allowed to do that.
Q. That is not responsive. I just want to know did
you make such request? A. No, sir.
Q. Did you make such a request on the second occasion?
—125—
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
A. No, sir.
168
Q. Did Mr. Clayton make such a request? A. I think
not.
Q. Previous testimony established that there were no
Negro canvassers for this last filling of the jury box; is
that correct? A. That is correct.
Q. Have any been hired subsequently? A. No, sir.
Q. When is the next canvass, Mr. Whitley ? A. We will
hire temporary help beginning August of—let me think a
moment.
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Direct
The Court: It will be next year, won’t it, 1969?
Q. 1969? A. Yes, sir, we will begin in August, 1968
or of this year.
Q. August of ’68, this year? A. This year.
Q. Are there any plans to request hiring of additional
canvassers to assist in the forthcoming canvass? A. Yes,
sir.
—126—
Q. So, the plans are sort of a drawing board nature?
A. Well, we have been doing this for years, yes, sir.
Q. Doing what for years, sir? A. Hiring additional
temporary help to act as field agents in the house to house
canvass.
Q. The question I asked was do you know whether or
not the jury board has any plan to hire Negro canvassers
in the forthcoming canvass? A. I don’t know that they
have specified Negroes, yes, sir.
Q. And, of course, as an employee of the board, you
would follow their instructions in that respect? A. Well,
naturally we are governed by law; so, I would do as much
as I could in their behalf, yes, sir.
169
Mr. Amaker: If you will let me take just a mo
ment, Your Honor.
The Court: Surely.
Mr. Amaker: Mr. Clerk, do you have Mr. Whit
ley’s deposition?
The Clerk: Yes, sir, I have the May 5, 1966, depo
sition.
Mr. Amaker: Do you have attached to that the
- 1 2 7 -
five exhibits?
The Clerk: Yes, I do have.
Mr. Amaker: There should he a long sheet.
The Clerk: It is here.
Mr. Amaker: All right.
Before I introduce this, there are a handful of
typographical errors that I would like to point out
for correction.
The Clerk: We can do that later, Your Honor.
Mr. Amaker: All right.
The Court: Just be sure they are corrected be
fore I get them.
The Clerk: Do you introduce this?
Mr. Amaker: Your Honor, Mr. Whitley has testi
fied already that he was deposed on two occasions,
and I would like to have his depositions marked.
The Clerk: I have the original of the May 5,
I don’t have the other original.
Mr. Amaker: Don’t have the original of June 5,
1967?
Mr. Hall: June, you say?
Mr. Newton: That’s right.
Mr. Hall: What year?
Transcript of Hearing of January 16, 1968
Colloquy
170
Transcript of Hearing of January 16, 1968
Colloquy
—128—
Mr. Newton: ’67.
Q. Do you recall Mr. Newton taking your deposition in
June? A. Yes, sir.
The Court: When was that taken?
Mr. Amaker: June 5, 1967.
The reporter was Mr. Ray Wester; I assume that
the original would be filed with the clerk.
The Clerk: We have not had that filed, according
to the docket sheet.
The Court: Well, do you want it in the record?
Mr. Amaker: I want it in the record on the
assumption, of course, that the originals were in
the file.
The Court: You may have additional time to get
in there.
Mr. Newton: I have a copy of his deposition.
The Court: All right.
(Plaintiff’s Exhibits 18 and 19 marked for iden
tification.)
Mr. Amaker: I offer the depositions in evidence.
The Court: They are admitted without objection.
Mr. Amaker: Your Honor, I also would like to
—1 2 9 -
have the original of Mr. Wilson’s deposition.
The Clerk: Yes, May 5.
Mr. Amaker: May 5, 1966. Would you mark
that?
(Paintiff’s Exhibit 20 for identification marked.)
171
Mr. Amaker: We would like to offer Plaintiff’s
Exhibit 20.
Mr. Wilkerson: No objection.
Mr. Amaker: Mr. McAdory deposition already
in?
The Clerk: It has.
Mr. Amaker: All right.
Finally, do you have the original—no, I have the
original, I think. Let me look at this. Mr. Clerk,
do you have the original copy?
The Clerk: I don’t have any of the original
depositions.
Mr. Amaker: Mr. Hall, do you recall when we
had this record made?
Mr. Hall: I think so.
Mr. Amaker: I would like to have this introduced
in the record for whatever weight the court might
want to attach to it when we inspected the jury
box.
Mr. Hall: I have got a copy of it.
—130—
Mr. Amaker: Well, I apparently have the original
for some reason. I would like to have this marked,
if you will?
(Plaintiff’s Exhibit 21 marked for identifica
tion.)
Mr. Amaker: I would like to introduce it, Your
Honor.
The Court: No objections.
Mr. Wilkerson: No objections.
The Court: Also admitted without objection.
Transcript of Hearing of January 16, 1968
Colloquy
172
Mr. Amaker: We think that we don’t need to
insist on Mr. Herron’s testimony.
The Court: All right.
Mr. Amaker: In light of Mr. Whitley’s testimony.
The Court: All right.
Mr. Amaker: We pass the witness.
Cross Examination by Mr. Wilkerson:
Q. Mr. Whitley, is that your card there that you pre
pared there? A. Yes, sir.
Q. Keep it.
Mr. Whitley, would you check and see whether or not
—131—
the name of Miller Davis, I believe one of the plaintiffs
in this suit, did you check to see whether or not his name
had been on any jury roll since 1960? A. Yes, sir.
Q. Has his name been on any jury roll since 1960? A.
Yes, sir.
Q. Which ones, please, sir? A. He was on the roll from
1965 through 1967, and also from 1967 through 1969.
The Court: Let me get that. Wait just a minute.
That’s Miller Davis?
Mr. Amaker: Yes, sir.
Mr. Wilkerson: Yes, sir.
The Court: All right.
Now, he was on the roll when?
A. From 1965 through 1967 and 1967 through 1969.
Q. So, he is on the current jury roll then; is that cor
rect? A. Yes, sir.
Q. And he was on the last one? A. Yes, sir.
Transcript of Hearing of January 16, 1968
Bill R. Whitley— for Plaintiff—Cross
173
Q. All right, sir.
How about Arthur Jones, did you check his name to
- 1 3 2 -
see if he had been on any jury list or jury roll since
1960! A. Yes, sir; he was on the roll from 1961 through
1963.
Q. All right, sir. A. And from 1957 through 1959.
The Court: ’57 through ’59!
A. Yes, sir.
The Court: All right.
Q. How about the Rev. John A. Salary! A. Yes, sir;
he was on the roll in 1964, which would be the ’63 through
1965 box and also on the roll from—in the current box.
Q. He is in the current roll! A. Yes.
Q. All right.
How, about Lorenzo Cates, has he been on any roll
since 1960! A. I don’t believe he would be, because he
is elderly.
Q. How old is he! A. According to the records that
I could find, he was born June 18, 1890.
—133—
Q. So, at this time then, he is 75 years old, is that cor
rect, or more! A. Yes, sir, 77.
Q. 77. All right, sir.
So, he would not be eligible for jury service now! A.
That is correct.
Q. Now, you testified that you sent a number of letters
to Negro educators and ministers of the Bessemer Cut-Off
area; is that correct! A. Yes.
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Cross
174
Q. Does your list reflect whether or not you sent such
a letter to Rev. John A. Salary? A. Yes, sir.
Q. All right.
Does your list indicate whether or not you received
any response from Rev. Salary? A. I have the answers
here that I received, and there is no answer from Rev.
Salary.
Q. Now, you were also asked whether or not you had
made a specific request of the personnel hoard that there
be assigned Negro canvassers; is that correct? You were
asked that question, weren’t you? A. Yes, sir.
—134—
Q. I believe you said you had not; is that right? A.
That is right.
Q. Have you ever made any request that there not be
any Negro canvassers assigned to the jury board? A.
No, sir; to clear that up, we have to take what they give
us, because that’s their business.
The Court: Let’s get one thing straight there,
since you raised it.
These temporary people, do you—did they come
off the Civil Service Roll?
A. Yes, sir.
Mr. Hall: That’s my understanding, Judge.
The Court: You can’t go out and hire anyone
you want to?
A. No, sir.
Q. All right.
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Cross
175
The Court: You have to go through the Per
sonnel Board, or say you need five people to do
this type work?
A. Yes.
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Cross
The Court: And they send you five people; is
that the way it happens!
—135—
A. That’s right.
The Court: But they do have to come off the
Civil Service Roll?
A. Yes, sir.
Q. Now, of the names furnished you by the Civil Ser
vice Commission for canvassers, have any of those been
Negro, in your judgment? A. I didn’t understand that.
Q. You furnish a number of names of people that you
would attempt to hire them as canvassers; is that correct?
A. Yes.
Q. Have any of those persons been Negroes? A. I am
sure that I talked to one on the telephone.
Q. When was that? A. During or prior to August,
1966, 1966, and to my best recollection, the application
did say that she was Negro.
Q. I see.
And did you call her? A. Yes, sir.
Q. For what purpose? A. Called her to see when she
could come in for an interview.
—136—
Q. For a personal interview? A. Yes, sir.
Q. What response did you get, if any? A. She asked
176
me about the job and I told her about the job and she
declined the offer for an interview.
Q. She never came in for an interview then; is that
correct! A. No, sir.
Mr. Wilkerson: That is all, Mr. Whitley.
Thank you.
Redirect Examination by Mr. Amaker:
Q. Mr. Whitley, is it the practice of the jury board to—
is it the practice of the jury board to secure these can
vassers from the County Commission, Personnel Board
of the County Commission, or is that something that is
required by law! A. I understand it is required by law.
Q. Pardon me! A. I understand it is required by law
that all county employees are to be examined by the Per
sonnel Board.
Q. Does this also apply to persons who are hired tem
porarily! A. I think so, yes, sir.
— 137—
Q. This one applicant, did you see her application!
A. Yes, sir.
Q. Did you notice whether that application had a space
to indicate her race! A. To the best of my recollection,
it did.
Q. Was this applicant one that was furnished by the
Personnel Board! A. Yes, sir.
Q. Was that the only Negro applicant that was fur
nished by the Personnel Board! A. I don’t recall any
more ; I don’t really remember.
Q. Mr. Whitley, are you absolutely sure that the appli
cation from the Personnel Board has designation of race!
Transcript of Searing of January 16, 1968
Bill R. Whitley—for Plaintiff—Redirect
177
A. At the present time I don’t know, but the best I recall
they did at that time.
Q. What time was this? This was when? A. I don’t
know when the application was filed to the Personnel
Board, but the application that I looked at must have
been in the Springtime of 1966.
Q. And you are absolutely sure that there was a ques
tion asking for the race of the applicant? A. I am not
- 1 3 8 -
positive, no.
Q. You are not positive? A. No.
Q. You cannot testify to that? A. No.
To the best of my recollection, for some reason I knew
that she was a colored person.
Q. For what reason, you never met her, did you? A.
No, sir; she didn’t come in for an interview, but there
was a marked dialect over the phone that would indicate
that she was of the Negro race.
Q. Well, this was an assumption you made over a voice
over the telephone? A. I said that I didn’t really recall.
Q. All right. A. Also probably I recognized this by an
address, it was a negro neighborhood.
Mr. Amaker: That’s all.
Mr. Wilkerson: No further questions.
The Court: You may be excused.
Mr. Hall: Your Honor, may we have a short
recess?
The Court: Yes.
—139—
(Whereupon, proceedings were in recess from 2 :50
p.m., until 3 :05, p.m., following which the following
occurred:)
Transcript of Hearing of January 16, 1968
Bill R. Whitley—for Plaintiff—Redirect
178
Mr. Amaker: Your Honor, we have one additional
item of proof.
We deposed a witness who is more than a hundred
miles out of the district; in fact, in Philadelphia,
pursuant to the rule, and I checked with the clerk
this morning and the deposition has been filed in
court and I would like to offer that deposition in
evidence, the deposition of Dr. John S. deCani, who
is a statistician at the University of Pennsylvania.
The Court: That is the deCani deposition?
Mr. Amaker: Yes, sir.
The Court: I understand there are objections to
the deposition.
Mr. Hall: Yes, sir.
The Court: I have read the deposition and I have
read the objections to the deposition. I really do
not think that the deposition, if admitted, would
add anything to this case; I think that the objec
tions are well taken in that the questions are
hypothetical questions and it is a mathematical situa-
—1 4 0 -
tion that would not be—that was not reached in
the Billingsley case.
It is something that the court could consider
along with all the other evidence in the case, but I
will, for the purpose of the record, I will sustain
the objections to that deposition. You do renew
your objections, or do you not? It may be you
withdraw them, if you do, we will let them in.
Mr. Hall: No, sir, I still maintain the same
objections and renew them at this time.
Transcript of Hearing of January 16, 1968
Colloquy
179
The Court: It was interesting and I enjoyed it
and if he were here and available to testify I would
enjoy his testimony. However, I do not believe that
it would add anything to this case.
Mr. Amaker: Your Honor—
The Court: I am taking the position because
there is nothing been offered to cause me to take
any different position, and that is the Billingsley
case stands as good law, it grows out of a case that
grew out of this court and I am going to use it
as a basis and as a guideline for me to go along
and decide in this case.
Mr. Amaker: May I be heard on this, Your
Honor?
—141—
The Court: Yes, sir.
Mr. Amaker: First, on Dr. deCani’s deposition,
the objections were filed, were objected only to two
of the questions and not the entire deposition. Argu
ing the relevancy—
The Court: Let me see the objections. I glanced
at them briefly because I remember you stated that
you would offer them at the time—I think they may
be right in front of this file.
Now, let me see the objections. Do you have your
copy there?
Mr. Wilkerson: Yes, sir.
The Court: You object to fifteen?
Mr. Hall: Yes, sir.
The Court: Sixteen?
Mr. Hall: Yes, sir.
The Court: And that’s all, isn’t it?
Transcript of Hearing of January 16, 1968
Colloquy
180
Mr. Hall: That’s correct.
They were the meat, those particular interroga
tories were the meat in the whole thing; most of the
other interrogatories were qualifying or attempting
to qualify Dr. deCani.
The Court: All right. I will admit everything and
—142—
sustain the objection to Fifteen and Sixteen.
Mr. Amaker: If the court has already made its
ruling, I won’t argue the argument for inclusion or
admission.
The Court: You may do so for the record.
Mr. Amaker: It is contained on page 6 of our
memo.
First, the question as framed is the only manner
in which one can frame a question in order to get a
conclusion as to probability on the assumption of
chance and random selection. In Brooks versus Beto,
that is cited on page 6 of the memorandum we filed
this morning, which indicates the only way in which
a jury can be selected, is either through the exercise
of some relevant judgment or through the chance
operation. The record will show that the only rele
vant judgment in the terms of the Brooks case that
were exercised by the jury selectors here, was the
determination after the initial selection was made
of whether or not the persons whose names were
brought into the office had criminal records. The
record shows that the initial selection was in fact
made on the basis of a random survey conducted by
house to house canvass. So, the relevancy of the
Transcript of Hearing of January 16, 1968
Colloquy
181
Transcript of Hearing of January 16, 1968
Colloquy
- 1 4 3 -
question as to we—as to whether assuming this
selection was made according to the uncontrolled
caprices of chance on what that question is based,
is the only assumption, because to assume to the con
trary would be that there would be some discrimina
tory selection. What the question asks for is what
the statistician assumes if the selection were in fact
made without attempting to exclude Negroes, what
would be the probability of the results that did in
fact occur; also cited the Whitus case in our memo
randum, in which the Supreme Court held, even
though determined that question was unnecessary
to its decision, determined, apparently used its own
expert statistician, what the probabilities would be
of the number of Negroes that would appear on the
actual jury list as compared with that case.
We cited the case in which this mode of proof has
been used and endorsed; so, even if it is a question
going to the form, which I take it that is all that it
is, the cases indicate that this is the only form in
which the question would have any pertinency or
relevancy at all. We can’t assume discriminatory
selection and get the answer, and that is what the
- 1 4 4 -
whole notion of mathematical probabilities is all
about. And Judge Brown says, the statistics do
speak louder than any testimony with respect to
how something is done. We established in the record
that there was a random selection, and we are test
ing the results here mathematically to determine
182
what conclusions could be drawn, assuming the popu
lation data which is in the record.
The Court: Anything further, sir?
Mr. Amaker: Not now.
The Court: Do you want to respond for the rec
ord, or not?
Mr. Hall: No, sir.
The Court: I am not going to change my position;
I will sustain the objection.
Mr. Amaker: Your Honor, then I would like to
proffer the answers of the witness under Rule 43-C,
Federal Rules, and request that the court report the
evidence and—I assume you are familiar with that
that the court without a jury shall, upon request,
take and report the evidence, unless it clearly ap
pears that the evidence is admissible—excuse me, is
inadmissible on any ground, or that the witness was
—145—
privileged and I would submit that those do not
clearly appear and that—
The Court: I am sorry, I am not hearing you.
Mr. Amaker: I am simply asking the court under
Rule 43-C, I am making a proffer of the evidence con
tained in response to those questions and the text
of Rule 43-C is that an action tried without a jury,
the same procedure that is the procedure of proffer
ing something after it has been rejected, may be
followed, except that the court, upon request, shall
take and report the evidence in full; and unless it
clearly appears inadmissible, that the witness is
privileged, obviously we have no question of privi-
Transcript of Hearing of January 16, 1968
Colloquy
183
Transcript of Hearing of January 16, 1968
Motion to Exclude Testimony
lege, and I think it cannot be said that the testimony
is inadmissible, certainly in light of the cases that
I have cited to the court, on any ground; I am asking
that the court permit us to go in and proffer under
Rule 43-C, under the rules of Federal Civil Pro
cedure.
The Court: Let me see the rule you are quoting
from.
Now, what you are asking me to do-under the rule
is to report the answers to 15 and 16.
—146—
Mr. Amaker: Yes, sir.
The Court: It is all in the deposition, the answers
to 15 and 16, and I have noted at the side of these
that I have sustained an objection to 15 and 16. The
whole thing will go into the record since there is no
objection to any of the others.
Mr. Amaker: All right, Your Honor.
(Plaintiff’s Exhibit 22 marked for identification.)
Mr. Amaker: Thank you.
That is Plaintiff’s what?
The Clerk: 22.
Mr. Amaker: We have no further evidence, Your
Honor.
The Court: You rest?
Mr. Amaker: Yes.
Mr. Hall: Your Honor, at this time I would like
to renew our motion to exclude the testimony of the
principals of the schools who testified in the case
this morning. Counsel for the plaintiffs indicated
to the court that they would connect that testimony
184
Transcript of Hearing of January 16, 1968
Motion to Exclude Testimony
up at a later time, and as far as I can tell there has
been no effort to connect the testimony of the princi-
—1 4 7 -
pals with—as far as the relevancy is concerned.
The Court: The only thing that I say, and correct
me if I am wrong, would be that testimony—the only
effect it has is to show that there are that many
high school graduates who might be eligible to serve
on juries; I can’t see any other purpose for it; was
there any other purpose for it?
Mr. Newton: Generally that is correct, Your
Honor. The purpose of the showing, of course, was
that in the Bessemer Cut-off, there is a larger num
ber of Negroes who would be eligible for jury duty
and we chose the years, because those people would
be 21 years or over available for jury duty and to
satisfy the statute, we assume that the high school
graduate can read and write the English Language,
and I think for that purpose it is relevant.
The Court: I see. I will leave it in for what it is
worth.
Anything further?
Mr. Hall: No, sir.
Mr. Amaker: Not for us.
The Court: You have got nothing to put on?
—148—
Mr. Hall: We don’t have anything.
The Court: Don’t have any evidence you want to
put on?
Mr. Hall: No, sir.
185
The Court: You gentlemen amaze me; you all
told me to set aside three days for this case.
Mr. Hall: Sir?
The Court: I say, you gentlemen amaze me; told
me to set aside three days.
Mr. Newton: You realize we went into extensive
stipulation?
The Court: I will tell you, I thank counsel for the
stipulations, they have helped a great deal. I would
have, of course, had no opportunity to read all of
the stipulations or depositions. I will do so as quickly
as I possibly can and pin down a decision in this
matter.
You gentlemen don’t want to argue the case any,
do you?
Mr. Amaker: I put all my argument in the memo
randum.
The Court: All right.
Transcript of Hearing of January 16, 1968
Colloquy
F u r t h e k d e p o n e n t s a i t h n o t
186
Transcript o f Hearing o f January 16, 1968
Certificate
Certificate
- 149-
State of A labama |
Jefferson County ^
I, Carmen Zegarelli, Official Court Beporter, hereby
certify that I correctly reported in shorthand the foregoing
proceedings at the time and place stated in the caption
hereof; that I later reduced my shorthand notes into type
writing, or under my supervision; that the foregoing pages
numbered three through one hundred forty-eight, both in
clusive, contain a full, true and correct transcript of pro
ceedings had in said cause.
I further certify that I am neither of counsel nor kin to
the parties to the cause, nor in any manner interested in
the results thereof.
/ s / Carmen Zegarelli
Commissioner—Notary Public
187
IN THE UNITED STATES DISTRICT COURT
F oe the Northern District of A labama
Southern Division
Civil A ction No. 66-92
— 1—
Plaintiffs’ Exhibit 8
(Deposition o f Ruth P. Cummings)
Arthur J. Jones, et al.,
vs.
Plaintiffs,
John C. W ilson, Jr., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
STIPULATION
(Filed January 16, 1968)
I t i s s t i p u l a t e d a n d a g r e e d by and between the parties
through their respective counsel that the deposition of
Mrs. Ruth P. Cummings may be taken before Ray C. Wes
ter, Commissioner, at Birmingham, Alabama, on December
20, 1967, at 10:00 a.m.
It is further stipulated and agreed that the reading of
and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if full
1 8 8
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
compliance had been with all laws and rules of court relat
ing to the taking of depositions.
—2—
It is further stipulated and agreed that it shall not be
necessary for any objections to be made by counsel to any
questions, except as to form or leading questions, and that
counsel for the parties may make objections and assign
grounds at the time of trial or at the time said deposition
is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
189
In the
UNITED STATES DISTRICT COURT
F ob the Northern District op A labama
Southern Division
Civil Action No. 66-92
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
A rthur J. J ones, et al.,
—vs.—
Plaintiffs,
J ohn C. W ilson, Jr., Jefferson County Courthouse, Bir
mingham, Alabama, as President of the Jury Board of
Jefferson County, Alabama, et al.,
Defendants.
Birmingham, Alabama
December 20, 1967
B e f o r e :
Ray C. W ester, Commissioner.
A p p e a r a n c e s :
Mr. Demetrius C. Newton, Attorney at Law, 408
North 17th Street, Birmingham, Alabama, for the
plaintiffs.
Messrs. Joe C. Barnard and Ray W inston, Assistant
District Attorneys, Birmingham, Alabama, and Mr.
Leslie Hall, Assistant Attorney General of the State
of Alabama, Montgomery, Alabama, for the defend
ants.
190
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
—4—
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, and Notary
Public, State of Alabama at Large, acting as Commissioner,
certify that on this date as provided by the Federal Rules
of Civil Procedure of the United States District Court,
and the foregoing stipulation of counsel, there came on
before me at Birmingham, Alabama, beginning at 10:00
a.m., Mrs. Ruth P. Cummings, witness in the above cause,
for oral examination, whereupon the following proceedings
were had:
Mrs. R uth P. Cummings, being first duly sworn, was
examined and testified as follows:
Mr. Newton: Before we go into this deposition I would
like for the record to show this:
We have two people subpoenaed by me who were unable
to attend and I did excuse for good cause and in the event
that their testimony proves important at a later date I may
want to call them.
One of the two persons is Mrs. Dorothy L. Stephens,
310 Mountain Drive, Trussville, Alabama. Mrs. Stephens
contacted me and said she has a new baby and is unable
—5—
to get out at this time.
The second such person subpoenaed who was excused by
me is Mrs. Dovie L. Freeman, Route 1, Box 198, Warrior,
Alabama. Mrs. Freeman has the flu and under the care of
a physician at this time and she was excused from attend
ing.
Examination by Mr. Newton:
Q. State your name, please. A. Ruth P. Cummings.
191
Q. And your address! A. 4509 Clairmont Avenue, South,
Birmingham.
Q. You are a Caucasian female, are you not! You are
a white female, is that correct? A. Yes, sir.
Q. You see the record can’t see so we have to ask you
these questions. A. Yes, I am.
Q. Mrs. Cummings, did you on occasion sometime last
Spring or Summer work on a part-time basis for the Jury
Board of Jefferson County, Alabama? A. I did.
Q. Where, Mrs. Cummings, did you canvass for prospec-
—6—
five jurors? A. I canvassed where I was—where the su
pervisor carried us.
Q. And who was your supervisor? A. Mr. Bill Whitley,
and when we had to clear it by a certain time, Mrs. Char
lene Kitchens helped us.
Q. Is Mrs. Kitchens a regular employee of the Jury
Board? A. Yes, sir.
Q. Now, Mrs. Cummings, what areas did you work? A.
I worked all areas. Some part of all areas.
Q. When you say some part of all areas, do you mean
all over the county? A. Yes, sir.
Q. Did you work specifically in the Bessemer area? A.
Yes, sir.
Q. Did you work in the Fairfield area? A. Yes, sir.
Q. Did you work in the Hueytown area? A. Yes, sir.
Q. Did you work in the Midfield area? A. Yes, sir.
Q. Did you work that portion of Birmingham proper that
—7—
is Powderly and that area? A. I don’t know what that
area is.
Q. That would be the extreme southwest area such as
Powell Avenue, Southwest. A. I don’t remember.
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
192
Q. How many persons worked with you, Mrs. Cummings,
in your group or were you divided? First, I should ask
you, were you divided in groups while doing this? A.
When we first started we had one car and had to go to two
cars and we were divided at that time. There were five in
each group.
Q. Mrs. Cummings, is the neighborhood in which you
live a total and complete white neighborhood? A. I really
don’t know. I am not at home enough to know my neigh
bors.
Q. You live at 4509 Clairmont Avenue, South? A. That’s
right.
Q. To your knowledge, Mrs. Cummings, are there any
Negroes who live in your neighborhood? A. I don’t know.
Q. Are there any who live on your street, to your knowl
edge? A. I don’t know.
Q. What streets border your address? A. Linwood Road
and 45th Street.
Q. All right, would it be fair to say Clairmont Avenue
and Linwood Road and 45th Street is a white neighbor
hood? A. Like I said, I have been working and I don’t
know.
Q. How long have you lived at that address? A. Seven
years.
Q. And, of course, in the seven years you have not been
able to determine whether this was or wasn’t a white neigh
borhood? A. I don’t know.
Q. Do you have much of an acquaintance among Negroes
generally, Mrs. Cummings? A. I work with them every
day.
Q. And where is that? A. The Social Security Payment
Center.
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
193
Q. How long have you been working at the Social Secu
rity Payment Center? A. Since July 5.
Q. This year? A. Yes, sir.
Q. This work in canvassing for the Jury Board, this was
— 9 —
done prior to July 5, 1967? A. Yes, sir.
Q. At that time did you have any knowledge of very
many Negroes? A. I had worked with them last year,
January 1st through June.
Q. And where was that? A. Social Security Payment
Center.
Q. All right, is that your only contact with Negroes gen
erally, those people you have worked with at the Social
Security Payment Center? A. No.
Q. Ho you know many Negroes, Mrs. Cummings? A. I
know plenty of them.
Q. Do you know many Negro neighborhoods? A. Well,
I don’t know.
Q. Well, to be more specific, the neighborhoods you can
vassed when you were working for the Jury Board, did
you know any of the Negroes in those neighborhoods, peo
ple you already knew while doing the canvassing? A. Did
I know them when I went there?
Q. Yes, ma’am, when you were canvassing. A. No, be
cause—I had known some because there were some that I
— 10—
had worked with before that.
Mr. Barnard: Let me interrupt you just a second.
It is my understanding that our main inquiry is
directed toward the Bessemer Cutoff Division, is
that correct?
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
194
Mr. Newton: This is correct but these people did
canvass all over the county.
Mr. Barnard: May I ask her a question at this
point?
Mr. Newton: Yes.
Mr. Barnard: Mrs. Cummings, this address you
have given is in Birmingham?
A. Yes, on Southside.
Mr. Hall: I wasn’t here in the beginning, but did
you ask her if she did canvass in the Bessemer Cut
off?
Mr. Newton: Yes, I did.
Specifically, Mrs. Cummings, do you know many
Negroes living in the Bessemer area commonly
called the Bessemer Cutoff, Negroes who live in
Hueytown, Fairfield and Bessemer proper?
A. I don’t know their addresses.
— 11—
Q. I mean just Negroes generally whether you work with
them or not. Do you know many in those areas? A. No.
Q. Mrs. Cummings, what instructions did you receive as
a canvasser when you were first going out to canvass, and
I am referring to the last time the jury box was filled? A.
What instructions?
Q. Yes, ma’am. A. We were to get all the male and
female over 21.
Q. Any other instructions? A. We went from house to
house.
Q. Any other instructions? A. No, we were to get their
date of birth and their occupation, if possible.
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
195
Q. Did you receive any special instructions concerning
getting the names of Negroes? A. No.
Q. Did you make any particular effort to get names of
Negroes as opposed to anyone else? A. As opposed?
Q. Yes, did you make any particular effort to just get
the Negroes when you went into certain neighborhoods?
— 12—
A. If it was a Negro neighborhood we got all of them that
were at home that we could get. And they wouldn’t give
any information on their neighbors.
Q. Well, let’s go back to your instructions.
Were you instructed also then to get information from
neighbors about someone who lived next door? A. If we
could get it.
Q. Did you find, Mrs. Cummings, that it was easier to
get information about neighbors from white persons than
it was from Negroes? A. Yes, I did.
Q. Mrs. Cummings, were any of the people who worked
with you in this canvassing Negroes? A. No.
Q. There are certain areas in Negro communities, Mrs.
Cummings, and in white communities as far as that is con
cerned that are generally thought not to be desirable neigh
borhoods.
Did the men instead of the ladies canvass those neighbo-
hoods? A. What they did I don’t know because they did
do canvassing.
— 13—
Q. Did they do canvassing that you ladies didn’t par
ticipate in? A. I don’t know wThat canvassing they did.
Q. When you said they did canvassing I had in mind,
Mrs. Cummings, were there occasions where a certain area
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
196
had already been covered that your group didn’t cover!
A. I don’t know. All I did is just go where I was put out.
Q. Mrs. Cummings, in some areas where there might be
several adults in a house and—well, I am talking about
Negro homes, for instance, in Fairfield, Alabama, did you
canvass in Fairfield? A. Yes, I did.
Q. Where there might be a grown son or a grown daugh
ter, a husband and a wife, and did you get all four of those?
A. Got all we could.
Q. When you say all you could— A. All they would give
us.
Q. I would like to say in our examination of the jury
roll that we found instances where there were four adults
in a family and only one had—
—14—
Mr. Hall: We object to that. If you want to put
in testimony to that effect you can do that when the
case comes up for trial.
Mr. Newton: All right, I will withdraw that ques
tion and ask this one.
Are you saying, Mrs. Cummings, in each of the homes
you went to in the Fairfield area where you got informa
tion, that you included all the names of all the adults that
were living there if, in fact, they were given to you? A.
I did.
Q. Would you say that was true of—how many people
went with you? A. Didn’t anybody go with me to the
house.
Q. Just one person went to the house? A. Yes, sir, it
would have taken six years if everybody had gone together.
Q. When you were divided up you were divided into
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
197
groups of how many! A. Well, one would go on one side
of the street and one would go on the other.
Q. Who would bring you to that street! A. Whoever
was driving the car.
—15—
Q. Generally who would that be! A. Mr. Whitley or
Mrs. Kitchens.
Q. Was Mr. Whitley with you every occasion or did he
come to the area with you! A. He carried us there.
Q. And how many people would be with you! A. No
one.
Q. I mean when you got to the general area, how many
people would be there! A. We all worked. Five people.
Q. Five people! A. Yes, sir.
Q. There was a total of twelve part-time employees, is
that not true! A. Yes, sir.
Q. But you went in groups of fives, is that correct! A.
That is all a car would take, five and the driver.
Q. Then did you have another car with five more! A.
Yes.
Q. Then, where were the other two people! A. I don’t
know.
—16—
Q. All right. A. In the office, I guess. I don’t know
what you are referring to. I don’t know anything about
the hiring or anything.
Q. I have a list of twelve names and I would like to read
them, people who were part-time field agents during the
canvassing last year or this year. Their names are Mrs.
Betty Jo Harbison, Miss Patsy Ann Jolly, Mrs. Dovie L.
Freeman, Miss Edna Earl Jolly, Mrs. Buth P. Cummings,
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
198
Mrs. Barbara C. Clark, Mrs. Mary Frances Myrex, Mrs.
Grace M. Hicks, Mrs. Mary R. Blackwell, Mrs. Dorothy L.
Stephens, Miss Joy Ann Lance, and Mrs. Georgia S. White.
Now, is that all the twelve people who were part-time
employees! A. Yes, they were, but Georgia White went
to another job during the time and Joy Lance did.
Q. They left before the canvass was completed? A. Yes,
sir.
Q. Mrs. Cummings, after you divided yourself into these
groups of five, one group would take one street and one
another, is that correct? A. Yes.
Q. And you would each go from house to house, one
- 17-
person to a house? A. Yes, sir.
Q. And when you got to that house you would take in
formation from whoever was there? A. Yes, sir.
Q. If nobody was at home, what would you do? A.
Leave a card for them to mail.
Q. And if anybody was at home next door you tried to
elicit information from the person you found at home about
the person next door, is that right? A. That’s right.
Q. I believe your previous testimony was you had greater
success in getting that information from white persons
about their next door neighbors than from Negro persons
about their next door neighbors? A. I did.
Q. And you say you were not generally familiar with
the neighborhoods in the Bessemer area? A. No, I am not.
Q. And you were not familiar with Negroes generally
who live in that area? A. No, sir.
Mr. Newton: I believe that’s all I have.
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
—18—
Mr. Hall: I have no questions now. Did you in
quire about waiver of signature?
Mr. Newton: Yes, sir.
Examination by Mr. Barnard:
Q. May I ask a question or two?
Mrs. Cummings, in your going about there did you ask
the same questions of the white residents that you did of
the Negro residents? A. Yes, sir.
Q. And when you found a white family not at home did
you leave a card there? A. Yes, sir.
Q. And when you found a Negro family not at home
would you leave a card there? A. Yes, sir.
Q. And when you found a white family not at home did
you try to get certain information from the neighbor as
to who lived there and the status of them? A. Yes, sir.
Q. And did you do the same thing in Negro neighbor
hoods? A. Yes, sir.
Q. As far as your individual efforts were concerned, re-
—19—
gardless of the success obtained, as far as you were con
cerned, did you do the same thing in the Negro neighbor
hood as you would in the white neighborhoods? A. Yes,
sir.
Q. Same questions and same activity on your part alto
gether? A. Yes, sir.
Q. And you say you did canvass several of the Negro
neighborhoods wherever you were assigned? A. Yes, sir.
Q. And you went house to house? A. Yes, sir.
Q. And you have been asked were you familiar with the
Negroes in the neighborhood where you went in and can
2 0 0
vassed and you said you were not familiar with them. Were
you familiar with any white people in those neighborhoods
you went to? A. Just where I had previously lived.
Q. I am talking about in this area of Hueytown and
Bessemer and Fairfield? A. No, sir.
Q. Did you know any white individuals who lived out
— 20—
there? A. No, sir.
Q. And were you familiar with the white neighborhoods
you went into? A. No, sir.
Mr. Barnard: That’s all.
Re-Examination by Mr. Newton-.
Q. Did you find, Mrs. Cummings, that you had greater
rapport in dealing and talking with the white people when
you went to their homes? Did you find it easier to talk to
them? A. No, sir.
Q. You didn’t? A. No, sir. You mean easier for me to
get information?
Q. Both. A. I couldn’t get information from the Negro
families hut it didn’t bother me to talk to them.
Q. Did you have a great deal of problems in your indi
vidual efforts in getting information from Negroes? A.
Well, if they didn’t give me the answers, I didn’t insist.
Q. Did you find much of that? A. Well, I did.
— 21—
Mr. Newton: That’s all.
Mr. Barnard: That’s all.
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
Deponent
F urther Deponent Saith Not.
2 0 1
Plaintiffs’ Exhibit 8
Deposition of Ruth P. Cummings
Certificate
State oe A labama,
Jefferson County, s s . :
— 2 2 —
I, Ray C._ Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, do hereby
certify that I reported in shorthand the foregoing deposi
tion of Mrs. Ruth P. Cummings at the time and place
stated in the caption hereof; that said witness was first
duly sworn to speak the truth, the whole truth, and nothing
but the truth; that I later reduced my shorthand notes
to typewriting, or under my supervision, and the foregoing
pages contain a full, true and correct transcript of the
testimony of said witness on said occasion.
I further certify that I am neither of counsel nor of kin
to any parties to said cause, nor in any manner interested
in the result thereof.
Official Court Reporter
2 0 2
IN THE UNITED STATES DISTRICT COURT
F oe the Northern District of A labama
Southern Division
Civil A ction No. 66-92
— 1—
Plaintiffs’ Exhibit 9
(Deposition o f Betty Jo Harbison)
A rthur J. Jones, et al.,
vs.
Plaintiffs,
John C. W ilson, Jr., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
STIPULATION
(Filed January 16, 1968)
I t is stipulated and agreed by and between the parties
through their respective counsel that the deposition of
Mrs. Betty Jo Harbison may he taken before Ray C.
Wester, Commissioner, at Birmingham, Alabama, on De
cember 20, 1967, at 10:00 a.m.
It is further stipulated and agreed that the reading
of and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if
full compliance had been had with all laws and rules of
court relating to the taking of depositions.
203
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
—2—
It is further stipulated and agreed that it shall not
be necessary for any objections to be made by counsel
to any questions, except as to form or leading questions,
and that counsel for the parties may make objections and
assign grounds at the time of trial or at the time said
deposition is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
204
—3—
IN THE UNITED STATES DISTRICT COURT
F or the Northern District of A labama
Southern Division
Civil A ction No. 66-92
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
A rthur J. J ones, et al.,
vs.
Plaintiffs,
J ohn C. W ilson, Jr., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
Before :
A ppearances :
Birmingham, Alabama
December 20, 1967
Ray C. W ester,
Commissioner.
Mr. Demetrius C. Newton, Attorney at Law, 408
North, 17th Street, Birmingham, Alabama, for the
plaintiffs.
Messrs. Joe C. Barnard and R ay W inston, Assistant
District Attorneys, Birmingham, Alabama and M r,
Leslie Hall, Assistant Attorney General of the State
of Alabama, for the defendants.
205
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
- 4 —
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, and Notary
Public, State of Alabama at Large, acting as Commis
sioner, certify that on this date as provided by the Fed
eral Rules of Civil Procedure of the United States Dis
trict Court, and the foregoing stipulation of counsel, there
came on before me at Birmingham, Alabama, beginning
at 10:00 a.m., Mrs. Betty Jo Harbison, witness in the
above cause, for oral examination, whereupon the fol
lowing proceedings were had:
M bs. B etty Jo H arbison, being first duly sworn, was
exam ined and testified as fo llow s :
Examination by Mr. Newton:
Q. State your name. A. Betty Jo Harbison.
Q. Where do you live, Mrs. Harbison? A. Mount Olive.
Q. And what is the address! A. Route 1, Box 613.
Q. Mrs. Harbison, in the neighborhood where you live
would you say that is a Negro neighborhood, a white
—5—
neighborhood, or a mixed neighborhood? A. A white
neighborhood.
Q. And you are a white female? A. I am.
Q. Did you have occasion in 1966 and 1967 to work
with the Jury Board of Jefferson County? A. I did.
Q. Did you canvass for names to be put in the Jury
box in Jefferson County? A. I did.
Q. Did you have occasion, Mrs. Harbison, to work in
the area commonly called the Bessemer Cutoff? A. That’s
right, I did.
206
Q. Did you work in Hueytown? A. Yes.
Q. Did you work in Midfield? A. I did.
Q. Did you work in Fairfield? A. I did.
Q. Did you work in Dolomite? A. I did, I think.
Q. Near T.C.I. A. Yes.
—6—
Q. Did you work in Lipscomb? A. I did.
Q. Did you work in Bessemer? A. I did.
Q. Did you work in Brighton? A. I did.
Q. And did you work in Wenonah? A. I don’t know
where it is.
Q. That would be the area where the old red ore mines
are. A. I remember the red ore mines.
Q. Yes, ma’am. Mrs. Harbison, have you worked for
the Jury Board previous to this time? A. I did.
Q. When did you first work for the Jury Board? A.
The time before, the previous time they filled the box.
Q. That would be— A. In 1964, I believe.
Q. And Mr. Bill Whitley was Chief Clerk at that time?
A. He was.
Q. And Mr. Bill Whitley was Chief Clerk on this
—7—
occasion ? A. That’s right.
Q. When did you first start on this last occasion work
ing for the Jury Board? A. July 1, 1966.
Q. When did you end your employment? A. March 27,
1967.
Q. Now, then, you worked both the Bessemer area and
the Birmingham area? A. That’s right.
Q. Did you receive any special instructions from Mr.
Whitley or anyone else how to go about canvassing on
this occasion? A. Other than we had a regular form we
filled out, specific information we asked.
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
207
Q. Was this virtually the same one you used when
you worked for the Jury Board before! A. Yes.
Q. On this occasion you did include the names of women
and you didn’t do that before! A. Yes.
Q. Mrs. Harbison, did you receive any special instruc
tions as to how you would go about getting Negro names!
—8—
A. The same way we got the white.
Q. Did you put forth any special effort in getting Negro
names? A. We did it like we did for the whites, door to
door.
Q. Were you divided into groups? A. I don’t know
exactly what you mean by that. Mr. Whitley put us out
on the street and we worked—I had one side of the street
and another lady had the other side.
Q. Would you come in two different automobiles? A.
Yes, sir.
Q. Maybe four or five in that group and four or five
in another? A. Yes, sir.
Q. Do you recall who worked with your group? A.
Yes, Patsy Jolly and Mrs. Freeman and Mrs. Lance
worked with us to begin with and Mrs. White took her
place.
Q. Mrs. Georgia White? A. And Mrs. Cummings.
Q. Mrs. Harbison, were all of your canvassers white
—9—
female? A. Yes.
Q. Did you have or do you know of any occasions where
the ladies did not go to a neighborhood for some reason
and the men would, or did you go to all the neighborhoods ?
A. I didn’t quite understand that question, will you re
peat it?
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
208
Q. Do you know of any occasion where the ladies were
not sent to a certain neighborhood and the men them
selves canvassed that neighborhood? A. No, I don’t.
Q. To your knowledge, you canvassed all the neighbor
hoods? A. That’s right.
Q. Mrs. Harbison, did you go from door to door in
each neighborhood? A. Yes.
Q. If there was nobody at home what would you do?
A. We left a card for them to fill out and had a stamp
for them to return it with the information on it. If we
found someone at home next door we tried to ask about
that house.
— 10—
Q. Did you have any difficulty with Negroes getting that
information? A. They were very reluctant to give it.
Q. Would you say you had greater success in getting
information about a neighbor from a white person than
from a Negro generally? A. Are you speaking about
the neighbor?
Q. Yes. A. Yes, we had—it was much easier to get
information from the whites.
Q. Do you have an acquaintance of many Negroes that
you know personally? A. I work with them.
Q. Where is that? A. The Social Security Administra
tion.
Q. How long have you been there? A. Two months.
Q. You were not employed then when you worked for
the Jury Board last? A. No.
Q. And prior to your employment at the Social Security
Administration did you have an acquaintance with any
- 11-
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
Negroes? A. Not too many.
209
Q. Would you say, Mrs. Harbison, your acquaintance
with Negroes at the time you worked for the Jury Board
was rather limited? A. Yes.
Q. When you went to Negro homes to get the informa
tion that was necessary for you to get for the Jury Board,
did you find on these occasions that—would you get all
the names of all the adults in the house? A. We tried
to of every one over 21.
Q. If you were given say four names out of the house
hold, would you say you turned in each one of those four
names? A. They were put down on the paper and turned
in.
Q. Then you would say at the taking of this deposition
that nobody gave you any names where there were multiple
numbers of adults in a family that you did not turn in?
A. That’s right.
Mr. Newton: I believe that’s all.
Examination by Mr. Hall:
Q. Mrs. Harbison, when you finished up at the end
— 12—
of one day did you go back the next day and start out
where you left off the previous day? A. That would be
hard to say because Mr. Whitley—I only worked one
street in five and I don’t know where he left off and where
he didn’t. As far as I am concerned, I worked the streets
he put me out on.
Q. Did you go back to the same neighborhood you
hadn’t completed the previous day? A. Yes, sir.
Q. And started from there? A. That’s right.
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
210
Mr. Hall: No further questions.
Mr. Newton: Normally you would have to come
back and read this deposition and affix your signa
ture. Would we have the permission to have the
court reporter sign it for you rather than have
you come back and read it and sign it?
A. What?
Mr. Hall: Instead of you coming back to read
your testimony over and sign it, it is customary, if
you don’t have any objection to give the court
reporter permission to sign your name to the depo
sition. We advise the people we represent to do that
— 13-
bo cause the court reporter is reliable.
A. I don’t much want people signing my name. If you
say it is all right, it is all right.
Mr. Hall: Well, he signs it with your permis
sion. Otherwise, you would have to come back and
read the testimony and sign it.
Mr. Newton: The record would indicate you
didn’t personally sign it but you are giving him
authority to sign it.
Mr. Hall: He is not forging your name but
signing it with your permission. If you have any
objection, you are entitled to come back and read
it over whenever he gets it ready.
Mr. Newton: The only problem is this is really
to speed it up and help you without having to come
back and read it over and sign it. Of course, if
you rather sign it, it is all right with us.
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
211
A. Well, maybe I am dumb but I will give my permission
so I won’t have to come back.
Mr. Hall: That is the purpose, to save you
trouble of coming back and there is no harm done.
That is a regular court procedure.
Mr. Newton: That’s all.
Plaintiffs’ Exhibit 9
Deposition of Betty Jo Harbison
D eponent
F urther D eponent S aith N ot.
Certificate
- 14-
S tate of A labama J
J efferson County ^
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, do hereby
certify that I reported in shorthand the foregoing deposi
tion of Mrs. Betty Jo Harbison at the time and place
stated in the caption hereof; that said witness was first
duly sworn to speak the truth, the whole truth, and nothing
but the truth; that I later reduced my shorthand notes to
typewriting, or under my supervision, and the foregoing
pages contain a full, true and correct transcript of the
testimony of said witness on said occasion.
I further certify that I am neither of counsel nor of
kin to any parties to said cause, nor in any manner
interested in the result thereof.
Official Court R eporter
212
IN THE UNITED STATES DISTRICT COURT
F ob th e N orthern D istbict op A labama
S outhern D ivision
Civil A ction No. 66-92
— 1—
Plaintiffs’ Exhibit 12
(Deposition o f Patsy Ann Jolly)
A rth u r J. J ones, et al.,
vs.
Plaintiffs,
J ohn C. W ilson , J r., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
STIPULATION
(Filed January 16, 1968)
I t is s t i p u l a t e d a n d a g r e e d by and between the parties
through their respective counsel that the deposition of
Miss Patsy Ann Jolly may be taken before Ray C. Wester,
Commissioner, at Birmingham, Alabama, on December 20,
1967, at 10:00 a.m.
It is further stipulated and agreed that the reading
of and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if
full compliance had been had with all laws and rules of
court relating to the taking of depositions.
213
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
—2—
It is further stipulated and agreed that it shall not be
necessary for any objections to be made by counsel to
any questions, except as to form or leading questions,
and that counsel for the parties may make objections
and assign grounds at the time of trial or at the time
said deposition is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
214
—3—
IN THE UNITED STATES DISTRICT COURT
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
F or the Northern District of Alabama
Southern Division
Civil A ction No. 66-92
A rthur J. Jones, et al.,
vs.
Plaintiffs,
John C. W ilson, Jr., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
Before :
A ppearances :
Birmingham, Alabama
December 20, 1967
Ray C. W ester,
Commissioner.
M r . Demetrius C. Newton, Attorney at Law, 408
North, 17th Street, Birmingham, Alabama, for the
plaintiffs.
Messrs. Joe C. Barnard and R ay W inston, Assistant
District Attorneys, Birmingham, Alabama, and Mr.
Leslie Hall, Assistant Attorney General of the State
of ^Alabama, Montgomery, Alabama, for the defendants.
215
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
—A—
I, Eay C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, and Notary
Public, State of Alabama at Large, acting as Commis
sioner, certify that on this date as provided by the Federal
Rules of Civil Procedure of the United States District
Court, and the foregoing stipulation of counsel, there came
on before me at Birmingham, Alabama, beginning at 10:00
a.m., Miss Patsy Ann Jolly, witness in the above cause,
for oral examination, whereupon the following proceed
ings were had:
Miss Patsy A nn J olly, being first duly sworn, was
examined and testified as follows:
Examination by Mr. Newton:
Q. State your name, please? A. Patsy Ann Jolly.
Q. What is your address? A. 322 Southwood Road,
Warrior.
Q. You are a white female? A. Yes.
Q. Miss Jolly, in the neighborhood in which you now
reside, were you residing in that neighborhood in all of
—5—
1966 and 1967? A. Yes.
Q. Is that a white neighborhood, Negro neighborhood
or a mixed neighborhood? A. Well, I guess you would
call it mixed. I mean just all mixed up. Some parts all
white but where I live there are about three or four
houses of Negroes.
Q. How far are they from you? A. From where I live.
Q. Yes. A. They don’t have blocks out there, but I
guess the nearest one is a block if they had blocks.
Q. Do you know those Negro people? A. I know some
216
of them. I have known them for years. Not personally
but know them when I see them.
Q. Did you work in what is commonly called the Bes
semer area of Jefferson County when you were canvassing
for the Jury Board? A. Yes.
Q. Did you work, Miss Jolly, in Hueytown? A. Yes.
Q. Did you work in Fairfield? A. Yes.
—6—
Q. Did you work in Midfield? A. Yes.
Q. Did you work in Lipscomb? A. I think, but I am
not too familiar with it, and some little places, you know,
would be there a day or two, but I don’t remember too
much about them.
Q. Did you work in Brighton? A. Yes.
Q. Did you work in Bessemer? A. Yes.
Q. Did you work in Jonesboro? A. Yes.
Q. Did you work in the Powderly-Grasselli area? A.
Yes, Grasselli Heights.
Q. Did you work Wenonah? There is a trade school
out there. A. The name is familiar but I can’t remember
anything definitely about it.
Q. Did you receive any special instructions, Miss Jolly,
from anyone on the Jury Board before you began your
canvassing? A. Well, what kind of instructions?
Q. Anything at all. Did Mr. Whitley or whoever was
— 7—
responsible for seeing you go out and do this canvassing,
did any of the people give you any instructions how to
do it? A. This last summer—I worked there before this.
This was the second time I worked there and I knew—
he gave us no particular instructions then because we
knew what to do but when I first started I didn’t know
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
217
what the job was all about and they gave us the forms
we had to fill out and—the first day we got there, I don’t
remember exactly where we started, but way out, and he
asked us did we know what we were going to say and
we said no, and he told us the questions and all we were
to ask and to get as much and complete information as
possible.
Q. Do you recall what the questions all were! A. Well,
we had—it was just a blank sheet of paper with lines
and had their name, full name, and address, and if they
had a mailing address other than that we would get that,
and I would ask where they worked and their occupation,
type of job they had and birthdate and place of birth and
if it was some place other than the United States we
asked if they were naturalized citizens.
—8—
Q. Did you go from house to house in these neighbor
hoods? A. Yes, sir.
Q. Did you work in groups? A. Do you mean we all
went to the same house?
Q. No, ma’am, were the canvassers divided into groups
of people? A. Usually he would put one out, you know,
on one corner on one side of the street and one out on
the other side of the street and we would go down the
street and sometimes we would have maybe—if it was a
long street he would have somebody at the other end work
ing up to meet us.
Q. Did you receive any special instructions in gathering
the names of Negroes? A. No, other than what we did
for anyone else.
Q. Did you make any special effort to get Negro names
other than what you did for anyone else? A. No, the
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
218
only thing I could say is lots of times if we didn’t find
anyone at home we would ask nextdoor to get information
and it seems to me we had more trouble in the Negro
areas. They didn’t say anything about their neighbors.
—9—
Q. You think you got, just your experience, you got
better results in getting information about neighbors from
the white persons you went to than you would from the
Negroes! A. We couldn’t—well, there were so many that
would say “I don’t know what his name is. We call him
so and so.”
Of course, we had that in the white areas too.
Q. You found more of it among the Negroes! A. Yes,
sir.
Q. Did you find a greater reluctance on the part of
Negroes even if they knew the nextdoor neighbor to tell
you his name! A. Yes, they seemed to think they would
get in trouble or something. A lot of people are like that.
They would hesitate to tell us but the main thing is you
couldn’t ever get the full name. They would say “We
call him so and so.”
Q. Miss Jolly, were all the canvassers who worked with
you white! A. Yes.
Q. In the event nobody was at home what did you do!
— 10—
A. If no one was at home!
Q. Yes. A. We left a postcard addressed to the Jury
Board to be filled out and they had the same questions
that we asked. Then we would ask the neighbor and if
we got the information we would usually know because
e didn’t have the birthdate on them and they would check
through the cards to see if the cards sent back had the
complete information.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
219
Q. Would you say, Miss Jolly, that you know a lot
of Negroes? A. A lot?
Q. Yes. A. I don’t know what you consider a lot.
Q. As you know people generally, I assume you know
many white people? A. I would say this: The only ones
I know are the ones living around me and I met several
working at the Courthouse. I don’t know them personally
but I know them as working with them.
Q. And when you say working with them, has your
only experience working at the Courthouse been with the
Jury Board? A. No, sir.
— 11—
Q. Where else did you work? A. I worked in the De
partment of Revenue and worked with the Board of
Registrars.
Q. And those Negroes you met were part-time employees
like yourself? A. When I worked at the Board of Reg
istrars a couple of years ago we had about fifteen from
Booker T. Washington Insurance Company that worked
up there extra.
Q. And also on the Board of Revenue? A. The De
partment of Revenue. Well, it has been five or six years
since I worked there. I don’t think any worked there then.
Q. Other than the two occasions you met Negroes who
worked with you in the Board of Registrars and those
you know who live in your general community, is that
the extent of your personal contact with Negroes? A.
Yes.
Q. When did you begin on the last canvass? I am talk
ing about late ’66 and ’67 with the Jury Board on this
- 12-
occasion? A. I believe I started the first of July.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
2 2 0
Q. The first of July and that would he 1966? A. Yes.
Q. And you worked until when? A. I think the 24th
of March. I started another job the 28th of March and
if Friday was the 24th that is when it was.
Q. Did you work, Miss Jolly, both the Bessemer Cutoff
and the Birmingham area? A. Yes.
Mr. Newton: That’s all.
Examination by Mr. Hall:
Q. Miss Jolly, I gather from your testimony you worked
for the Jury Board more than one time, is that correct?
A. Yes, twice.
Q. When was the first time you worked for the Jury
Board? A. It would have been two years prior to that.
I must have started August 1st and that would be 1964.
Q. Do you recall who was Clerk of the Jury Board the
first time you worked? A. Bill Whitley.
—13—
Q. And Mr. Whitley is still Chief Clerk of the Jury
Board? A. As far as I know. He was when I last worked
there.
Q. You never did work with the Jury Board when Mr.
Cheatwood was Chief Clerk? A. No, I think it was Bill’s
first year.
Q. And by Bill, you mean Mr. Whitley? A. Yes, sir.
Q. And Mr. Whitley gave you instructions and gave
you the forms to fill out? A. Yes, sir.
Q. Is he the one that took you out to the various neigh
borhoods? A. Yes, sir.
Q. And told you which side of the street and which
streets to work? A. Yes, sir.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
2 2 1
Q. Now, is Edna E. Jolly any relation to you! A. My
sister.
Q. And you live at the same place in Warrior! A.
Yes, sir.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
Mr. Hall: That’s all.
Examination by Mr. Barnard:
—14—
Q. Miss Jolly, when you went to work in one area and
ended the day’s work, did you go the next day and pick
up where you left off and continue on! A. You mean
when we ended one whole section!
Q. Well, did you finish every section in a day! A. No,
we worked from—according to how far we were out. We
had to he back to the office at five.
Q. But if you finished in the middle of a block one day
would you— A. We would pick up there the next day
and finish that section.
Q. You say you worked two years ago. From the time
you worked there two years ago were you given any
additional instructions or changes in the operation you
had done from the previous time? A. No. You mean
the same kind of forms we filled out and—
Q. Did you have the same instructions how you would
operate? A. Yes.
Q. They were the same basically? A. Yes, sir.
—15—
Q. No changes you can remember? A. No.
Q. What about women? A. Oh, that was different.
When' we first started the second time they weren’t defi
nitely sure they would take women or not. I think it was
later on when it was passed hut when we started we did
take some.
2 2 2
Q. Was there any other change in instructions or proce
dure you followed other than taking women’s names?
A. None I can recall.
Mr. Barnard: That’s all.
Examination by Mr. Hall:
Q. Two years ago you didn’t take any women but the
last time you worked you did take the names of women?
A. Yes, sir.
Q. Because of the change in the law? A. Yes, sir. You
may call this a change, before we always had to have a
definite job a man did, where he worked, and on this there
were so many women that don’t work until we just had
— 16—
to put in their occupation as being a houeswife. A lot of
people think it isn’t an occupation.
Re-Examination by Mr. Newton:
Q. Miss Jolly, did you ever get to any neighborhoods
where Mr. Whitley or whoever was in authority on that
occasion decided that maybe some men should do it rather
than ladies? A. I don’t know. He sent us to some awful
places that we thought they should. Over on Bush Boule
vard and places like that. Most of them would have drive
ways cut way down and you couldn’t cut across the
lawn and we would have to go up the stairs and down
and he always started there in the summer. The first
time I worked I never thought I would do it again after
the first day.
Q. You don’t recall any neighborhoods that for any
reason the ladies didn’t go to? A. No, he always sent us.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
223
Mr. Newton: In order to avoid having to come
back and read this deposition, would it be all right
if we have the court reporter taking your deposition
sign it for you?
A. Yes, sir.
Plaintiffs’ Exhibit 12
Deposition of Patsy Ann Jolly
Deponent
F urther Deponent Saith Not.
Certificate
- 17-
State of A labama ^
Jefferson County ^
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, do hereby
certify that I reported in shorthand the foregoing depo
sition of Miss Patsy Ann Jolly at the time and place
stated in the caption hereof; that said witness was first
duly sworn to speak the truth, the whole truth, and nothing
but the truth; that I later reduced my shorthand notes
to typewriting, or under my supervision, and the foregoing
pages contain a full, true and correct transcript of the
testimony of said witness on said occasion.
I further certify that I am neither of counsel nor of kin
to any parties to said cause, nor in any manner interested
in the result thereof.
Official Court Reporter
224
IN THE UNITED STATES DISTRICT COURT
P oe the Northern District oe A labama
Southern Division
Civil A ction No. 66-92
— 1—
Plaintiffs’ Exhibit 13
(Deposition o f Joy Ann Lance)
A rthur J. Jones, et al.,
vs.
Plaintiffs,
J ohn C. W i l s o n , J r ., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
STIPULATION
(Filed January 16, 1968)
I t i s s t i p u l a t e d a n d a g r e e d by and between the parties
through their respective counsel that the deposition of
Miss Joy Ann Lance may be taken before Ray C. Wester,
Commissioner, at Birmingham, Alabama, on December 20,
1967, at 10:00 a.m.
It is further stipulated and agreed that the reading of
and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if full
compliance had been had with all laws and rules of court
relating to the taking of depositions.
225
Plaintiffs’ Exhibit 13
Deposition of Joy Awn Lance
—2—
It is further stipulated and agreed that it shall not be
necessary for any objections to be made by counsel to any
questions, except as to form or leading questions, and that
counsel for the parties may make objections and assign
grounds at the time of trial or at the time said deposition
is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing of
the deposition by the Commissioner is waived.
226
—3—
IN THE UNITED STATES DISTRICT COURT
P oe the Northern District of A labama
Southern Division
Civil A ction No. 66-92
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
Arthur J. Jones, et al.,
vs.
Plaintiffs,
John C. W ilson, Jr., Jefferson County Courthouse,
Birmingham, Alabama, as President of the Jury
Board of Jefferson County, Alabama, et al.,
Defendants.
Before:
A ppearances:
Birmingham, Alabama
December 20, 1967
R ay C. W ester,
Commissioner.
Mr. Demetrius C. Newton, Attorney at Law, 408
North, 17th Street, Birmingham, Alabama, for the
plaintiffs.
Messrs. Joe C. Barnard and R ay W inston, Assistant
District Attorneys, Birmingham, Alabama, and Mr.
Leslie Hall, Assistant Attorney General of the State
of Alabama, for the defendants.
227
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
—4—
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, and Notary
Public, State of Alabama at Large, acting as Commissioner,
certify that on this date as provided by the Federal Rules
of Civil Procedure of the United States District Court, and
the foregoing stipulation of counsel, there came on before
me at Birmingham, Alabama, beginning at 10:00 a.m., Miss
Joy Ann Lance, witness in the above cause, for oral ex
amination, whereupon the following proceedings were had:
Miss Joy A nn Lanoe, being first duly sworn, was exam
ined and testified as follows:
Examination by Mr. Newton-.
• Q. State your name, please. A. Joy Ann Lance.
Q. Where do you live! A. 620 Tomahawk Circle, Bir
mingham, Alabama.
Q. Miss Lance, would you say the neighborhood in which
you live is a white neighborhood, a Negro neighborhood or
a mixed neighborhood? A. White.
—5—
Q. And you are a white female? A. Yes, sir.
Q. Miss Lance, did you have occasion during 1966 and
1967 to work for the Jury Board of Jefferson County? A.
Yes, sir.
Q. Did you work the area commonly called the Bessemer
Cutoff? A. Yes.
Q. Did you work Hueytown? A. Yes.
Q. Did you work Fairfield? A. Yes.
Q. Did you work Bessemer? A. Yes.
Q. Did you work Midfield? A. Yes.
Q. Did you work Brighton? A. Yes.
228
Q. Wenonah? A. No.
Q. That would be the area where the red ore mines are.
— 6 —
A. I don’t know exactly where that is. I think I have been
there but I am not sure.
Q. Did you work the Lipscomb area? A. Yes.
Q. When did you first start working for the Jury Board?
A. July 1, 1966.
Q. And you worked until when? A. November 28th or
29th, 1966.
Q. You didn’t work until the full canvass was completed?
A. No.
Q. Are you now employed? A. Yes.
Q. Where are you employed? A. Public Health Build
ing, Jefferson County.
Q. Miss Lance, were all of the canvassers that worked
with you on that occasion white females? A. Yes.
Q. Did you have occasion to receive any special instruc
tions either from Mr. Bill Whitley or any other person as
to how you would do the canvassing? A. Yes, we were
given instructions.
— 7 —
Q. What were those instructions? A. We had a sheet
of paper, a long sheet of paper we would put their names
and if they could give us their birthdate and address and
employer.
Q. Date of birth? A. Well, most of the time but some
times they didn’t know.
Q. Their age or date of birth? A. Age.
Q. Did you receive any specific instructions on getting
Negro names, Negro people on the canvass? A. We were
instructed to go wherever they sent us.
Plaintiffs’ Exhibit 13
Deposition of Joy Ann La/nce
229
Q. I mean were instructions any different as related to
Negroes than white persons? A. No.
Q. In other words, you did the same thing wherever you
went, is that correct? A. That’s right.
Q. Did you make any particular effort to get Negroes as
opposed to anybody else? A. Yes, I did.
Q. You did? What particular special effort did you make?
A. Most of the time they didn’t understand what it was
all about and I would explain it to them. Some of them
didn’t know how to read and I would explain it to them.
Q. Did you find—what did you do if you went to a house,
Miss Lance, and nobody was at home? A. I left a card
at the door.
Q. What if the next door neighbor was at home, did you
do anything? A. If they were at home—you mean infor
mation on the ones not at home?
Q. Let’s say you went to House No. 212 and nobody was
at home and then you went to house No. 214 and somebody
was there next door. Would you make any inquiry at 214
about the people living in 212 ? A. Most of the time I did.
Q. Did you get information generally from the people
next door about their neighbor? A. I would only ask if
they were over 21.
Q. Would you ask their names? A. Sometimes I did.
Q. In other words, you didn’t—how did you go about
adding them to your list if you didn’t know their names?
—9—
A. I wouldn’t add them to the list. The card would take
care of that.
Q. So you didn’t try to fill your list by getting informa
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
230
tion from persons next door? A. Most of the time when I
would ask information it wasn’t a refusal but they didn’t
want to give that information.
Q. Was that true of both white and Negro neighborhoods?
A. Yes.
Q. Would you say you ran into the same amount of
difficulty in the white neighborhoods in giving out that in
formation as you did with the Negro neighborhoods? A.
No, not altogether. There were several of the colored ones
that wouldn’t give us information.
Q. But you found you met with more success in getting
that information from the whites? A. Yes, they under
stood, I think.
Q. And when you say they understood, are you saying
that the Negroes you talked to didn’t understand? A.
— 10—
They didn’t understand and they were afraid. I don’t mean
that personally but they were—someone strange coming
into their neighborhood there and not knowing exactly what
they wanted—I don’t know how to explain it.
Q. In other words, Miss Lance, would you say that a
person who obviously doesn’t live in the neighborhood, a
white person coming up to the door and asking questions
sort of a personal nature, are you saying you feel you were
met with reluctance for that reason? A. No, I asked them
for the information.
Q. But you got a reluctance in them giving you answers?
A. Yes, sir.
Q. Have you ever before this occasion, Miss Lance,
worked for the Jury Board before? A. No, I haven’t.
Q. Were you divided in groups in the way you rode in
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
231
the cars? A. We would get off like on one street and two
of us would be on each side of the street.
Q. You worked in pairs? A. Well, there were five of
— 11—
us that went out and two went on each side of the street. I
mean one across the street from each other.
Mr. Hall: One on each side?
A. Yes, sir, but most of the time I worked by myself.
Q. Were there some people that—two of you never went
to the same house? A. Oh, no.
Q. Were all the canvassers that worked the Bessemer
area white females? A. Yes.
Q. Were there ever occasions you recall where the ladies
didn’t go to neighborhoods to canvass and that Mr. Whitley
and one of the men from the office, his assistant, went and
did it? A. No.
Q. Then you think you ladies covered each and every
area, each and every house? A. Yes.
Q. Did Mr. Whitley go to some of the houses himself?
A. No, not when I worked. He would only drive us to our
- 12-
destination.
Q. Do you have a personal acquaintance of very many
Negroes? A. Yes, I do.
Q. Where did you make those acquaintances ? A. I work
with some.
Q. Where? A. The Public Health Building of Jefferson
County.
Q. How long have you been working there? A. One
year and three weeks.
Q. You have been working at the Public Health Service
since December, 1966? A. November 28, 1966.
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
232
Q. November 28, 1966? A. Yes.
Q. But you were no longer working for the Jury Board
at that time? You worked there until early November?
A. Yes.
Q. When you started with the Public Health Service
you had completed your work with the Jury Board? A.
Yes.
Q. At the time of the filling of the jury box did you have
—13—
an acquaintance with Negroes? A. I have had acquaint
ance with them before.
Q. Where did you make those acquaintances? A. The
first one was when I worked at the Jefferson County Court
house.
Q. Where was that? A. The Eevenue Department.
Q. Did you work there on a part-time basis during tag
buying time? A. Yes.
Q. And what year was that? A. 1965.
Q. And roughly how many Negroes worked there at that
time? A. Just one.
Q. Is that the only acquaintance you made there? A.
The first one, yes.
Q. You didn’t make any other acquaintances of Negroes
until you began working for the Public Health Department?
A. No, I went to wrork for the government, Internal Reve
nue.
Q. When did you work for I.R.S.? A. Somewhere in
- 14-
May. Then before that I worked in another department
called—
Q. Where was that? A. The Revenue Board. No, that
was the Board of Registrars.
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
233
Q. How many Negroes were there? A. I don’t know.
But I did have acquaintance with—they were all temporary
but there were three or four.
Q. So the Internal Revenue, the Department of Revenue,
The Board of Registrars, and the Health Department were
the only areas where you had Negro acquaintances? A.
Yes.
Q. Would this total number of Negro acquaintances
number more than twenty? A. Yes.
Q. How many? Are you saying one worked for the De
partment of Revenue? A. Yes.
Q. And how many did you say worked for the Board of
Registrars? A. Anywhere from three to four.
— 15—
Q. All right, let’s see, that is five. How many worked for
the Internal Revenue? A. There were a whole lot. There
were more than twenty who worked for the Internal Reve
nue.
Q. Did you make the acquaintance of all twenty of them?
A. Yes. We went to breaks on the same time but didn’t go
to the same places.
Q. So how many of these more than twenty at the Inter
nal Revenue would you say you made their acquaintance?
A. Well, I talked to everybody.
Mr. Hall: I think you are getting far afield but
if you want to go ahead and put it in the record, that
is your affair.
Mr. Newton: I don’t think I am far afield. I would
like to pursue this just a little bit. I think it is im
portant.
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
234
All right, five plus everybody you knew at the
Internal Revenue you had an acquaintance with,
would that he more than thirty?
A. I don’t believe so.
Q. So it would not be a total of more than 35 people, is
— 16—
that correct? A. That’s right.
Mr. Newton: Miss Lance, it would be customary
for you to return to read this deposition and affix
your signature, however, the rules of the court will
allow the court reporter who is here now taking your
deposition to sign it for you with your permission.
Mr. Hall: That is to save you the trouble of com
ing hack and reading it over if you give the court
reporter permission to sign your name to the deposi
tion.
A. That is all right with me.
Examination by Mr. Hall:
Q. Miss Lance, you went to various places in an attempt
to obtain information you were supposed to obtain and put
down on the information sheet and did you explain to the
persons there who you were working for and why you were
trying fo obtain that information? A. Yes.
Q. I believe you testified in some instances the Negroes
had difficulty understanding why you wanted that informa
tion, is that correct? A. Yes, sir.
— 17—
Q. You didn’t conceal your identity in any way? You
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
235
told them you were working for the Jury Board? A. Yes,
sir.
Q. And trying to get names of persons eligible to serve
on juries? A. That’s right.
Mr. Hall: That’s all.
Examination by Mr. Barnard:
Q. About the only problems you have had were when you
would go to a next door house where the—in a Negro
neighborhood and ask questions from the neighbors con
cerning the persons in the vacant house next door as to
whether they were over 21 or things of that sort, is that
right? A. Yes.
Q. You say sometimes you would do that and sometimes
you would not and more or less let the card take care of
that? A. Yes, when I would ask a person the question if
the people were over 21 and as to where they were em
ployed, they said they couldn’t give out that information.
Q. You mean where they were employed? A. Yes, sir,
— 18—
they would say we don’t give out any information like that.
Q. And they wouldn’t give you that information? A.
Yes, sir.
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
Mr. Barnard: Thank you.
Mr. Newton: That’s all.
Deponent
F urther deponent saith not.
236
Plaintiffs’ Exhibit 13
Deposition of Joy Ann Lance
Certificate
- 1 9 -
State of A labama j)
Jefferson County ^
I, Ray C. Wester, Official Court Reporter of the United
States District Court. Birmingham, Alabama, do hereby
certify that I reported in shorthand the foregoing deposi
tion of Miss Joy Ann Lance at the time and place stated
in the caption hereof; that said witness was first duly sworn
to speak the truth, the whole truth, and nothing hut the
truth; that I later reduced my shorthand notes to typewrit
ing, or under my supervision, and the foregoing pages con
tain a full, true and correct transcript of the testimony of
said witness on said occasion.
I further certify that I am neither of counsel nor of kin
to any parties to said cause, nor in any manner interested in
the result thereof.
Official Court R eporter
237
IN THE UNITED STATES DISTRICT COURT
F or the N orthern D istrict op A labama
S outhern D ivision
N o. CA 6692
Plaintiffs’ Exhibit 16
(Deposition o f Elmore M cAdory)
A rthur J. J ones, et cetera, et al.,
vs.
Plaintiffs,
J ohn C. W ilson, J r ., et cetera, et al.,
Defendants.
STIPULATION
(Filed August 5, 1966)
It i s s t i p u l a t e d a n d a g r e e d by and between the parties
through their respective counsel that the deposition of
Elmore McAdory, may be taken before Carmen Zegarelli,
Commissioner, at the Federal Building, Birmingham, Ala
bama, on the 5th day of May, 1966.
It i s f u r t h e r s t i p u l a t e d a n d a g r e e d that the reading of
and signature to the deposition by the Commissioner is
waived, said deposition to have the same force and effect
as if full compliance had been had with all laws and rules
of court relating to the taking of depositions.
238
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
It is further stipulated and agreed that it shall not he
necessary for any objections to be made by counsel to any
—2—
questions, except as to form or leading questions, and that
counsel for the parties may make objections and assign
grounds at the time of trial or at the time said deposition
is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
239
—3—
IN THE UNITED STATES DISTRICT COURT
F ob the N orthern D istrict of At.ahama
S outhern D ivision
No. CA 6692
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
A rthur J . J ones, et cetera, et al.,
vs.
Plaintiffs,
J ohn C. W ilson, J r ., et cetera, et al.,
Defendants.
Birmingham, Alabama
May 5, 1966
B efore :
Carmen Zegarelli,
Commissioner.
A ppearances :
Mr. N orman C. A maker, 10 Columbus Circle, New York,
New York and Mr. D emetrius C. N ew ton , Masonic
Building, Birmingham, Alabama, appearing on behalf
of the plaintiffs.
M r . L eslie H all, Assistant Attorney General, State of
Alabama, Montgomery, Alabama, and Mr. Hugh B.
Harris, Jr., Assistant District Attorney, Bessemer,
Alabama, appearing on behalf of the Defendants.
Mr. W illiam P. J ackson, Jr. of the firm Bishop &
Jackson, Frank Nelson Building, Birmingham, Ala
240
bama, appearing on behalf of Elmore McAdory,
individually.
—4—
* * * * *
—5—
I, Carmen Zegarelli, Official Court Reporter and Notary
Public, State of Alabama at Large, acting as Commissioner,
certify that on this date as provided by the Federal Rules
of Civil Procedure of the United States District Court and
the foregoing stipulation of counsel, there came before me
at the Federal Building, Birmingham, Alabama, beginning
at 1 :15 p.m., Elmore McAdory, witness in the above cause,
for oral examination, when the following proceedings were
had and done:
E lmore M cA dory, being duly sworn, was exam ined and
testified as fo llo w s :
Examination by Mr. Amaker:
Q. Will you state your full name and address for the
record, please? A. Elmore McAdory.
Q. Your address? A. 220 Deadrick.
Q. What was that address? A. Deadrick, D-E-A-D-
R-I-C-K.
Q. Bessemer, Alabama? A. Right.
—6—
Q. Are you a native of Bessemer, Mr. McAdory? A.
Yes, I am.
Q. Lived there all your life? A. Born and raised there.
Q. How old are you, sir? A. 71.
Q. What is your present occupation ? A. Deputy Circuit
Clerk, Tenth Judicial Circuit, at Bessemer.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
241
Q. Your responsibility includes only the Bessemer Divi
sion of the Circuit Court? A. That’s right.
Q. How long have you held that job? A. I am on my
14th year.
Q. What did you do before then, sir? A. Deputy Tax
Assessor.
Q. Out in Bessemer? A. Yes, in Bessemer.
Q. How were you chosen for the Deputy Clerk’s job?
A. Elected by the people.
Q. You ran for the office? A. That’s right.
Q. When were you last elected? A. Two years ago.
—7—
Q. When do you come up for re-election? A. Be four
more years.
Q. Four more years? A. Yes.
Q. You say you have been there fourteen years, that’s
around 1952? A. About ’52, I think that’s right.
Q. All right.
Who is your immediate supervisor, sir? A. The people.
Q. The people? A. Yes.
Q. But you said you were Deputy Clerk.
That is just a title, you are not under the Clerk of the
Circuit Court? A. No. We have a separate act that cre
ated the Bessemer Division separate from the Birming
ham Division, and designated that as the Deputy Clerk
to separate it from the Circuit Clerk, this is the Deputy
Circuit Clerk.
Q. Just for information for the record, who is the Clerk
for the Jefferson County Circuit Court? A. In Birming
ham, that part is Mr. Julian Swift.
Q. O.K.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
— 8—
242
Now, as Deputy Clerk, what do your duties consist of,
sir! A. All the duties pertaining to the Circuit Court of
the Tenth Judicial Circuit.
Q. Does that also include duties with respect to the
organizing of juries to sit on civil and criminal cases in
Bessemer, in the Bessemer Division? A. You would have
to explain that a little hit more, about your organizing.
Q. Well, let me ask you this. Let me ask you to tell me
what functions you perform in organizing the juries! A.
Well, let me go back a little hit and give you something
you haven’t asked for. The juries, when we are going to
have a jury, I ask the judge to draw a jury.
Q. You do what? A. Ask the Judge to draw the venire.
Q. Yes, sir. A. I am custodian of the jury box.
Q. Yes, sir. A. The Judge has the key to the jury box.
I do not have it. I carry it into the courtroom and the
—9—
judge unlocks the box and he draws out approximately 80
to 100 names out of the box he locks the box up, he gives
me the cards that he has drawn out. I make a list of those
and send it to the Sheriff for Summons to come to court
for that court week then I make a list of that and then
next thing is I call the roll Monday morning of those juries
and make up the ones that are present and the ones that
are absent; that is the extent of my organizing of the jury.
Q. Right.
Let me go back to the beginning. You say that you are
custodian of the jury box? A. That’s right.
Q. Now, at what point does that jury box come to you
and from whom? A. It comes from the jury commission
and it is about the first of October in the odd years.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
243
Q. You get a jurybox— A. Every two years.
Q. And all of the cards in that jury box are pertaining
only to the Bessemer Division of the court? A. That’s
right.
Q. Now, when you get that box, what do you do with
— 10—
it? A. Put it in a safe.
Q. Put it in a safe, and that safe is your office ? A. That’s
right.
Q. Is that box locked when it comes to you? A. It is.
Q. Now, after the box gets into the safe in your office,
when is the first time there is any occasion for you to go
get that box? A. When the Judge—when I have a docket
set for trial then I go to the Judge and ask him to draw a
jury. I get the jury box and take it into the courtroom in
open court and the venire is drawn.
Q. Is that the presiding Judge that you go to? A. If it
is a criminal jury, I take it to him, if it is the civil court, I
take it to the civil judge, but either one can draw the jury.
Q. I understand.
Now* will you give me the name, sir, please, of the Judge
of the Criminal Court? A. Judge Gardner F. Goodwin, Jr.
Q. Gardner F. Goodwin, Jr.? A. That’s right.
— 11—
Q. And his office is where ? A. On the second floor of the
courthouse.
Q. That is the Jefferson County Courthouse here in Bir
mingham? A. In Bessemer.
Q. In Bessemer? A. Yes, sir, has nothing to do with
Birmingham.
Q. I see.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
244
His office is in Bessemer? A. Yes.
Q. Do you know his address on hand beyond that? A.
No. He lives in Lakewood Estates, but I can’t tell you what
his address is.
Q. I see.
Now, is he the only judge in the criminal part of the
court? A. That’s right.
Q. Now, who is the Judge for the Civil Part of the court?
A. Judge Ball.
Q. Judge Ball? A. E. L. Ball.
Q. I see.
— 12—
Is he the only Judge? A. That’s right.
Q. They are the only two Judges in the entire Bessemer
Division? A. Yes.
Q. Judge Ball’s office is where, please, sir? A. Court
house, Bessemer.
Q. Courthouse at Bessemer? A. Yes.
Q. Do you happen to know his residence? A. He lives
in Sky view Estates.
Q. I see.
Now, are you the person who makes the determination of
when a jury is needed for the trial of civil or criminal case ?
A. They are set by law, I am designated to set the criminal
docket.
Q. All right. A. And I set that when we have it.
Q. All right. A. I determine that part.
Q. Now, would you give me some idea of when the crimi
nal and civil terms of the court are held? A. Well, the
- 13-
court is held all except the months of July and August.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
245
Q. That’s for both criminal and civil! A. That’s right.
Can be any time. The Judge, civil judge sets the docket
for civil cases.
Q. You don’t set that? A. No.
Q. All right.
Now, when is the criminal—do you have one week for
trying, or a period of time for trying criminal cases and
then an alternate period for civil! A. We have civil and
criminal going at the same time.
Q. Eight through the year? A. Yes, sir.
So we can use the venire for both of them.
Q. That’s right through the year except those two
months? A. Yes, sir, except those two months.
Q. Now, you say you set the criminal docket. How do you
go about doing that, and then determining how many juries
you need? A. I don’t determine how many juries, I have
nothing to do with that, that’s the Judge’s job.
— 14—
Q. The Judge determines how many juries? A. That’s
right.
Q. But you make up the docket, the criminal docket?
A. The criminal docket, yes.
Q. And then you do what with the docket? A. I cut a
stencil for it and then I mimeograph the copies and if you
have a lawyer, I send him a copy of the docket notifying
him of the setting of the case. If the man doesn’t have a
lawyer, why, then the Judge would have to appoint him a
lawyer.
Q. But it is your judgment alone which determines what
cases are set when; is that right? A. Yes.
Q. All right. A. Except now, capital cases, the Judge
sets them.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
246
Q. The Judge sets the capital cases? A. He sets all
capital cases.
Q. But you would then put them on the docket? A. Oh,
yes. I put them on there so you would be notified it would
be set.
Q. All right.
Now, let’s fix on the criminal docket for a moment. A.
— 1 5 -
All right.
Q. After the criminal docket is set, the docket is shown
to the Judge? A. Yes. He has a copy.
Q. You give him a copy and send a copy to the lawyers?
A. I give him a copy and a copy to all of the lawyers.
Q. What does he then tell you with respect to the jury?
A. Nothing.
Q. Well, what do you do, do you go get the box then?
A. No. When I tell him that I want to set the docket for a
certain week, why, we must draw that jury, oh, days before
that time; so, I go to him and we draw that before I set
the docket.
Q. All right.
Now, you have a jury drawn for just one week? A. At a
time, yes.
Q. One week at a time? A. Or maybe I might have, if I
got two weeks coming together or three weeks coming to
gether, I might have two venires coming.
— 16—
Q. Assume that you are drawing only for one week? A.
All right.
Q. How many names will you draw out of the box? A.
I don’t know, that’s up to the Judge.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
247
Q. Your function then is simply to take the bos out of
the safe in your office and take it to the Judge? A. That’s
all.
Q. Now, when you do that, what does the Judge then
do? A. He opens the box and draws out the jurors.
Q. He draws out the jurors? A. Eight.
Q. Now, who has made a determination before the draw
ing of how many names are to be drawn? A. He does.
Q. You mentioned some figure, about eighty names? A.
He usually draws from eighty to a hundred names, de
pends on how many cases—criminal cases, and so forth he
is going to have to try.
Q. That was just for one week? A. That’s right.
Q. Just the one week? A. Yes, sir.
— 17—
Q. Generally eighty to one hundred? A. That’s right.
Q. Now, is the drawing made in your presence? A.
That’s right.
Q. Anyone else present when the drawing is made? A.
Sometime. Anybody can be, it is done in open court.
Q. Done in open court? A. Yes.
Q. How many days in advance of trial is this? A. Twenty
days.
Q. Twenty days in advance of the time when the case is
going to be tried? A. Yes.
Q. All right.
Now, the drawing is made how, by the Judge? A. Well,
he picks up, a handful of cards and counts them out.
Q. And then counts eighty or a hundred out? A. Eighty
or a hundred, whatever he draws.
Q. After those are taken out of the box, what happens
— 18—
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
to the box? A. He locks it up.
248
Q. He locks it up! A. I take it back and put it in the
safe.
Q. All right.
Now, the cards that have been drawn out, what is the
next step with respect to them! A. He gives them to me.
Q. He gives them to you and you make up a list! A.
I type them or arrange them alphabetically, that’s for con
venience.
Q. Eight. A. Then I make a list of that, a duplicate
list. I send the original to the sheriff and I keep the cards
and my list. The Sheriff summons the jurors from this
list and makes a return on this list that I give him as to
the ones that’s been served, and the ones that have not
been found. Then he returns that list back to me and I
check on my books whether they were served or not found;
then that is all that is done to them until the morning of
the trial, Monday morning when the jury—when we go to
organize the jury.
Well, I will call that roll and sometimes some of them
don’t come up. See, they serve those summonses by mail
—19—
and sometimes people have moved and they don’t come.
They don’t get the notice, just like I like to have not been
here today, I didn’t have notice. But that brings you down
to the morning of the court.
Q. All right.
Now, let’s go back a bit. Now, those eighty to one hun
dred names that are taken out of the box and the Judge
gives you the card and you list them alphabetically, what
is that listing called, is that the venire! A. That is the
venire.
Q. For what ever week that is! A. That’s right.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
249
Q. Do you have any assistants working under you? A.
Oh, yes.
Q. Helping with your duties? A. Oh, yes, sir.
Q. Would you give me their names and addresses, please,
if you know them? A. Well, the entire office crew, if I
needed them, I would use them.
I have six girls.
Q. You have six girls? A. That’s right.
— 20—
Q. Do you have any males working under you? A. No.
Q. What functions do your six girls perform, are they
general clerical help? A. They are court clerks.
Q. Court clerks? A. That’s right.
Q. I see.
Would you give me their names, please? A. Mrs. Ber
tha Morris, Mrs. Frances Hand, Mrs. Kay Francis, Mrs.
Caroline Schinholster.
Q. How do you spell that? A. S-C-H-I-N-II-O-L-
S-T-E-R.
Q. All right. A. And Mrs. Evelyn Stewart, Mrs. Betty
Bretnell.
Q. Are all of those women white? A. Yes, sir.
Q. Now, do you know where Mrs. Morris lives? A. I
know, but I don’t know what her address is. She lives on
Clarendon Avenue, about 17th Street.
Q. Is that in Bessemer? A. That is in Bessemer.
Q. And what about— A. Hand lives in Midfield.
— 21—
Q. In Bessemer? A. Well, that’s in Midfield, City of
Midfield. I don’t know her street address. Then Mrs.
Francis Lives in Hueytown, that’s another city in our divi
sion, and Mrs. Schinholster, she lives at the lower end of
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
250
the County, down close to Kimbell, that’s in the county,
and Mrs. Stewart, she lives on 16th—on 15th Street be
tween 2nd and 3rd Avenue, and Mrs. Bretnell lives in Lips
comb, that’s another city.
Q. Now, what would you do if you were getting ready
to organize a jury for more than one week, would addi
tional names be drawn? A. Well, we know that organiz
ing the drawing of a jury to run it two weeks, we always
wind it up on one week; if we don’t, we pass it to another
docket. We don’t have one to extend over into the next
week.
Q. Let me see if I can clarify that answer.
Are you saying that the venire that is made up, that
those jurors will be, if they are chosen, they will serve no
more than twro weeks? A. No more than one week.
Q. No more than one week? A. That’s right. Wait a
- 22-
minute, now. Unless you have a case that would continue
on. We had one case that continued about twenty-four or
twenty-five days. We had one jury that we kept that long.
Q. But the typical venire? A. One week.
Q. Lasts one week? A. That’s right.
Q. So, then you—the next term or the next docket— A.
The next one would be a new outfit.
Q. A new one? A. Yes.
Q. And the procedure would be just the same? A. Same
thing.
Q. Now, how many juries are typically drawn in one
year?
Mr. Jackson: Let me ask you to clarify that. You
mean venires that are typically drawn?
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
251
Q. I said drawn, that’s all I could mean. A. We draw
possibly twenty-four.
Q. Twenty-four venires? A. Out of the twenty-four.
Q. Not more than twenty-four? A. That’s right.
—23—
Q. Now, you state, Mr. McAdory, that you did not re
ceive notice of the taking of the deposition. I want the
record to reflect that there is a certificate by one of the
attorneys in this case that a notice of this was sent to you
on the 26th day of April, 1966? Sent to your attorney of
record, Mr. Maurice Bishop, at the Frank Nelson Building
in Birmingham on April 26th.
Now, that notice asked you to bring with you the jury
organization list which would be the venires from 1960 to
date.
Now, do you have those records with you? A. No.
Neither do I have them in the office.
Q. What is the reason that you don’t have them in the
office? A. You see, you haven’t got that far along with
your case.
After the week is gone and the jury has been dismissed,
then we make the notation of that and write it up and re
turn that list to the jury board.
Q. To the jury board? A. That’s right.
— 24—
Q. All right. A. So I don’t have those, all you asked for.
Q. In other words, you are through with it after that?
A. Yes.
Q. And you don’t know what happens to that? A. No,
sir.
Q. The jury board has that? A. The jury board has
that.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
252
Q. What you are talking about is a jury venire? A.
Jury venire.
Q. Now, Item 3 of the notice asks that any racial iden
tification from the cards of the jury bos be brought with
you? A. There is none.
Q. The names that are listed on that jury venire, are they
identified by race? A. No. You have your name, your
address and your employer.
Q. And that’s all? A. That’s all that is on the cards.
Q. That’s all that’s on the card and the venire is made
from those cards? A. That’s right.
—25—
Q. Now, how many numbered juries are empaneled in
Bessemer in the Criminal Division each year? A. Well,
that I couldn’t answer, because sometimes you don’t—you
don’t empanel any of them. If they plead guilty, why, you
don’t empanel any of them.
Q. All right.
Would you then explain to me the system for numbering
juries when they are empaneled? A. Well, last year in the
criminal division, if a jury is empaneled, the lawyers for
the State and the Defendant has a list of the venire. The
judge, if it is a murder case, he will strike from the entire
venire.
Q. Not the Judge? A. The Judge will order that done
and the lawyers will strike.
Q. He orders the attorneys to strike from it? A. The
entire venire, that’s right.
Q. All right. A. Now, in some instances he will say take
the first forty names and strike your jury from that or
take the bottom forty names.
Q. That is if it is not a murder case? A. Yes.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
253
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
— 26—
Q. Is that right? A. That’s right.
Q. Because you said— A. He doesn’t do that all the
time, but then that’s his procedure, he determines what you
do.
Q. But in a murder case, he always says strike from the
whole list of names? A. Strike from the whole venire.
Q. Not just murder? A. Well, capital cases.
Q. Any capital cases? A. That’s right.
Q. Now, when these juries are empaneled, are they num
bered in some way? A. Each man is numbered, A is one,
B is two; like Arthur is one, and the next man there is
Calhoun, why, he would be two. We just number them
alphabetically.
Q. I am not talking about the panels. There is some
thing called Jury Number Four in Bessemer, isn’t there?
A. Not in the Criminal end of it.
— 27—
Q. That’s civil? A. That’s in civil.
Q. Now— A. In the civil, as a general thing, why, the
Judge after you have done the same procedure which you
have gone through before here, why, then the cards after
you call the roll, give the cards to the Judge and he shuffles
them up and draws out twelve names and gives me those
and I put them in the box and that’s jury number one; and
then the next twelve is jury two, and the next one is num
ber three, and the next one is number four, you see. The
Judge counts out the cards and gives them to me and I put
them in there as per his instructions.
Q. Now, let me clarify myself on that? A. All right.
Q. Let’s take the process. You take the box to the Judge
and he draws out the names? A. That’s right.
254
Q. We are talking about— A. Either one of them.
Q. The venire is the same for both civil and criminal?
—28—
A. That’s right.
Q. But you do know whether these juries are going to be
used to try a civil or criminal case? A. Oh, yes. That is
why we call it, Judge Goodwin will have the first one, he is
the criminal man. He gets his jury out of that venire before
anything else is done.
Q. O.K. A. Then he sends the other to Judge Ball.
Q. He sends the remaining names over to Judge Ball?
A. That’s right.
Q. Now, when those names are sent over to Judge Ball,
what does he do with them? A. Sometimes he—he will
organize it and make one, two, three and four juries out
of it, or sometimes he just strikes it from the whole jury,
or the first twenty-four, or the first thirty-six, or as the
case may be, he determines all of that.
Q. About how many names would he be drawing from?
A. Well—
Q. After the criminal names have been taken out? A.
We will say we had eighty-four men and the Judge took
twelve over there, that leaves 72. So, he would have 72
- 2 9 -
men.
Q. In other words, you are saying that a jury, a criminal
jury will be empaneled, that is, twelve people? A. That’s
right.
Q. Would have already been chosen after the process of
striking has gone on, and then the remaining names would
go to the civil side? A. That’s right.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
255
Q. When they get over there, Judge Ball takes them and
he—the cards are carried over to him? A. That’s right.
The cards wonld be carried over to him.
Q. Do the cards go along with the list? A. No. I carry
the cards to him so he can organize it ; I take out the other
jury.
Q. He already has a list that yon prepared? A. I made
a list of the whole thing; I have to make two lists, one over
here and one over here as the cases progress.
Q. All right.
Now, am I correct, and correct me if I am wrong, I just
want to get clear what the procedure is? A. That’s all
- 30-
right.
Q. Pick it up where you—the Judge has struck, had you
to bring the box to him, and he opens it up and he draws
at random eighty to one hundred names? A. That’s right.
Q. Now, the box is then closed and taken back to your
office? A. That’s right.
Q. And you— A. Locked.
Q. Pardon me? A. The box is locked.
Q. Locked and taken back to your office and you make
this full list? A. That’s right.
Q. That list is used for both civil and criminal cases?
A. That list won’t be used, because some of them won’t
be found; that list ŵ ent to the Sheriff, he comes back and
says, some of them wasn’t found. I marked them up on my
book as not found, and then I take what is left, and that is
what—then another thing, when we call the roll in the morn
ing, some of them will have an excuse and ask to be off,
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
— 31—
and the Judge will excuse some of them and then I take that
off and then I make a list of what is left.
Q. Of what is left! A. That’s right.
Q. That list of what is left, the first thing that happens
to it is that the lawyers strike—the lawyers who are trying
to criminal cases, strike from that list of names that is
left! A. That is right, after they are identified. You al
ways have them identified and then they strike from that
list.
Q. All right.
Now, they will strike down to twelve names! A. That’s
right.
Q. All right.
So, then, the remaining names then go to the civil side!
A. That’s right.
Q. Is that right! A. That’s right.
Q. Now, what I am asking is, you said you take the cards
over, do you go back into your office and pick out the cards
— 32—
corresponding with those names and take them to Judge
Ball! A. I will if the Judge is going to organize the juries
into juries.
Q. Into separate juries! A. That’s right.
Q. If he is not, then you don’t take the cards over! A.
No. I just make a new list and then take it over there.
Q. Now, what is the usual practice, doesn’t Judge Ball
usually organize them in four juries! A. He has been do
ing that up until this last year.
Q. Up until when! A. This last year.
Q. Up until the beginning of this year! A. I can’t tell
257
you what month he started in; he started taking from the
list just like you do in the criminal end of it.
Q. I see.
Now, how long has Judge Ball been Judge over there?
Has he been there as long as you have? A. No.
— 33—
Mr. Harris: Off the record.
(Off the record discussion.)
Q. So, the best of your recollection, Judge Ball has been
there since around 1957? A. That’s right.
Q. A matter of approximately nine years? A. Some
thing like that.
Q. Now, in all that period from the time—all that period
up until this year, what has his usual practice been? A. He
has been organizing venires into juries.
Q. Into juries? A. That’s right, and I believe the last
jury he had he organized into juries because we didn’t have
any criminal jury.
Q. All right.
Now, he organized—typically organized four juries,
twelve names in each jury?
Mr. Hall: I want the record to show an objection
at this point, because he is going into a matter that
is moot, been decided by the Fifth Circuit Court of
Appeals in Billingsley versus Clayton; trying to re
hash that old case, it looks like. Let the record show
— 34—
an objection on the part of the State.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
258
Q. Now, have you been—take the question this way.
During this period of time that he is organizing into
four juries, have you been present when he organized them?
A. All except maybe once or twice.
Q. Maybe once or twice! A. Just unless something kept
me from being there.
Q. Has there been one particular jury that Negroes have
typically been placed on! A. In that court, yes, sir.
Mr. Hall: Same objection applies.
Mr. Amaker: You want the same objection!
Mr. Hall: Yes, to all that line of questioning.
Q. What jury is that? A. Sometimes it is fourth, and
sometimes it is fifth.
Q. You have more than— A. Sometimes you don’t al
ways have the same number.
Q. I see.
But have they generally all been on one of the juries?
— 35—
A. That’s right.
Q. Now, you say that sometime this year Judge Ball
stopped the practice of organizing the separate number of
juries? A. That’s right.
Q. Now, can you tell me, Mr. McAdory, from your obser
vations over the years, that you have been the Deputy Clerk
in Bessemer, when—well, what is the largest number of
names of Negroes that you can recall being on a venire?
A. Well, I can’t tell you how many was on there because I
don’t know how many of them have been excused, but after
we organized the venire, we had from eight to ten on there,
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
259
sometimes we are going to have that many, hut I would say
ten is about the most.
Q. Ten is the most you have ever seen.
This is in what is called the jury assembly room? A.
That is the courtroom. We don’t have a jury assembly room.
Q. This is all done in open court? A. All done in open
court.
Q. All in one place? A. That’s right.
—36—
Q. And, now, the figure of ten, does that include right up
to the present time? A. That’s right.
Q. And this is, you say,.after some excuses have been
made? A. Sometimes they go to the Judge and ask to
be excused, and the Judge excuses them, and if he excuses
them, why, of course, they are not there. I don’t know who
he excuses or nothing about it, nor why.
Q. I see. A. That is his prerogative.
Q. I see. Let me ask you how you get your juries for
the Grand Jury? A. Just like we do this, only we don’t
draw that many.
Q. How many do you draw? A. From 35 to 50.
Now, we have a grand jury Monday and they will be
drawn out of 125 names, that is what was drawn. I don’t
know how many have been served yet, or how many been
excused.
Q. But the procedure is the same? A. Same thing.
—37—
Q. The box goes to the Judge who takes the cards and
locks them up and gives it back to you and puts it back in
the safe? A. That’s right.
Q. Now, you send out the summons? A. I send them to
the Sheriff and he does it.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
260
Q. How often is the Grand Jury empaneled? A. We
have about three or four a year.
Q. Three or four a year. And how many times is the
drawing made for names on the Grand Jury? A. Four
times or three times, whenever we have a Grand Jury.
Q. Everytime you have a Grand Jury, you have a sepa
rate drawing? A. That’s right.
Q. Now, can you tell me your—what your observation is
of the highest number of Negroes you have ever seen on a
Grand Jury? A. My best recollection is there was four.
Q. When was that, if you can recall? A. I believe it was
last year. The last Grand Jury we had three, in that one,
isn’t that right, Hugh?
Mr. Harris: Always three to four, sometimes more.
—38—
Q. Can you tell me, Mr. McAdory, when the last time the
jury box was filled? A. Last August.
Q. Last August, 1964? A. That’s right. No—
Q. All right.
Mr. Hall: ’65.
Q. ’65? A. Yes.
Q. And when was the previous time? A. Two years
before.
Q. Two years before? A. Yes.
Q. You have observed the jurors assembled in obedience
to the summons before any excuses were granted, have
you not? A. No.
Q. You have not? A. No.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
261
Q. Well, at what point do you normally observe the
jurors when they come in? A. When I call the roll Monday
morning.
—39—
Q. Well, when you call that roll, they haven’t had any
opportunity to ask for any excuses yet, have they! A. Yes;
nothing to keep them from going to the Judge, after they
were served with a summons and he can excuse them if he
wants to.
Q. Would you say that is typically done? A. That’s
been the practice ever since I can remember.
Q. Do most people go and get excuses before they get
to court before the roll is called? A. Most of them do,
yes, sir.
Q. I see.
You keep any minute books of any kind? A. Oh, yes.
We keep a minute hook; we write the minutes on every
case.
Q. Do those minute hooks indicate what jurors served
on the trial of the case? A. I think they do. Mrs. Morris
writes the minutes for them, and I don’t know just exactly
what she writes up, because I don’t observe that.
Q. Well, the Minute Books are kept in your custody?
A. Oh, yes.
That’s part of my duties, to write the Minutes of the
—4 0 -
Court.
Q. Now, those Minute Books go back to 1960? A. Oh,
yes.
Q. You have them going back about how far? A. I guess
they are there from the beginning of the Courthouse.
Q. And they are still preserved in your office? A. Yes.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
262
Q. And they would—would they show, for example,
would they show what jurors were struck? A. No, they
wouldn’t show who was struck. If they did that, they would
show what jurors served hut not the ones who were struck.
Q. They would show what juries served? A. I think
that’s right.
Q. And they would—now, when you say served, you mean
actually sat on a trial of a case? A. Yes.
Q. Not the jury that was summonsed? A. No.
Q. They would only show the twelve people? A. That
is the only ones you would be interested in that would be
on the case.
— 41—
Q. Let me ask you something else.
Q. What other court officials over in Bessemer have any
function in organizing these juries? A. Don’t anyone.
Q. Well, do you have—at the time—after the juries are
picked, is there a bailiff who sort of keeps them in tow,
or superintends them? A. The bailiff of the court looks
after them.
Q. The bailiffs of the court are there when you call the
roll, aren’t they? A. Yes.
Q. How many bailiffs do you have there? A. We have
two to each court.
Q. Would you give me their names, please, sir? A. Mrs.
Hillman and Mr. J. P. Vines is in the Criminal Court. Mrs.
Julia Armstrong and Wedaman, I don’t know his initials.
They are in Judge Ball’s.
Q. What is the last name? A. Wedaman, W-E-D-A-
M-A-N, Wedaman. He lives in Fairfield. Mrs. Armstrong
lives in Hueytown, Mrs. Hillman in Hueytown and Vines
is in Hueytown.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
263
Mr. Jackson: I am going to object to this line of
questioning on the grounds of relevancy and ask for
— 42—
a continuing objection along that line if you want
to continue it.
Mr. Amaker: For purposes of discovery. These
are people who might be able to give us some infor
mation.
Mr. Hall: About what?
Mr. Amaker: Purpose of discovery. I am trying
to get the names of people who might be able to give
testimony later on about their observations, it is
very obvious.
Mr. Jackson: If you don’t want to clutter the
record, that’s a matter of public record that you can
obtain at Bessemer.
Mr. Amaker: I can obtain it here.
Mr. Hall: I will tell you like I told one of these
Government Lawyers down there in Selma. If you
continue to build up a record unnecessarily, we may
ask the court to tax you with the cost.
Mr. Amaker: I guess you are entitled to ask for
anything you are entitled to.
Mr. Newton: Off the record.
(Off the record discussion.)
Q. Now, all those individuals that we just named, are
— 43—
they white? A. Are they what?
Q. Are they white? A. Yes, sir.
Q. Do you have any Negro persons who have anything
to do with organizing the jury? A. No, sir.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
264
Mr. Amaker: I am through.
Mr. Hall: You through?
Mr. Amaker: Yes.
Mr. Jackson: I will ask a few questions, what I
trust will be considered cross examination.
Examination by Mr. Jackson:
Q. Mr. McAdory, your office keeps no record as to the
race, creed of the members of the venire, does it? A. No,
sir.
Q. There is nothing in your record in your office which
would indicate the race of people who have served on juries
in the Bessemer Cut-off Area, is there? A. No, sir.
Q. You don’t make any observations officially as to
whether or not there are any Negroes on the Grand Jury
Venire, do you? A. No, sir.
—44—
Q. You don’t make any observations as to whether or
not there are any persons of the Negro race who are on
the petty jury venire, do you, sir? A. No, sir.
Q. There have in fact been Negroes on the Jury Venire
in the Bessemer Division of the Tenth Judicial Circuit,
haven’t there? A. Yes, sir.
Q. Both on Grand and Petty Juries? A. That’s right.
Q. Now, the Jury Commission in Jefferson County is
charged with filling the Jury Box? A. Bight.
Q. And the Judge is charged with drawing the names
from that jury box? A. Right.
Q. And you have nothing to do with either filling or
drawing the names from that box? A. No, sir. My duties
is all defined in the Code.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
265
Q. And the Code does not specify any duties to you con
cerning the selection of juries, does it? A. No, sir.
- 4 5 —
Q. Now, do your Minute Book entries show all the
jurors who have sat on a particular petty jury except
when some objection has been made to the venire? A.
No. We wouldn’t show that; that would be made in open
court, and that objection would be written in there by
your Court Reporter; in case of appeal, then it would go,
but it wouldn’t be in my record.
Mr. Jackson: I have no further questions.
Re-Examination by Mr. Amaker:
Q. Mr. McAdory, the list that you prepare from the
cards which you then give to the Sheriff’s Office for ser
vice of summons, do you—have you regularly during all
the years you have been a deputy clerk, given every name
on that list to the Sheriff? A. Oh, yes; we make a copy
of that and send it to him.
Mr. Amaker: That’s all.
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
F urther D eponent S aith N ot.
266
Plaintiffs’ Exhibit 16
Deposition of Elmore McAdory
Certificate
- 4 6 -
State of A labama ^
Jefferson County ^
I, Carmen Zegarelli, Official Court Reporter, hereby
certify that I correctly reported in shorthand the foregoing
deposition at the time and place stated in the caption
hereof; that I later reduced my shorthand notes into
typewriting, or under my supervision; that the foregoing
pages numbered five through forty-five, both inclusive,
contain a true and correct transcript of proceedings had
in said cause.
I further certify that I am neither of counsel nor kin
to the parties to the cause, nor in any manner interested
in the results thereof.
Carmen Zegarelli
Commissioner-N otary P ublic
267
IN THE UNITED STATES DISTRICT COURT
F ob the N orthern Distbict oe A labama
Southern Division
Civil A ction No. 66-92
Plaintiffs’ Exhibit 18
(Deposition o f Bill R. Whitley)
A rthur J. J ones, 5705 Court E, Fairfield, Alabama; M il
lard Davis, 250—52nd Street, Fairfield, Alabama;
L orenzo Cates, 304 52nd Street, Fairfield, Alabama;
Reverend J. A. Salary, 311 52nd Street, Fairfield, Ala
bama, on behalf of themselves and all other similarly-
situated,
Plaintiffs.
—-vs.—
John C. W ilson, Jr., Jefferson County Courthouse, Bir
mingham, Alabama, as President of the Jury Board of
Jefferson County, Alabama; W alter E. Palmer, as
Vice-President of the Jury Board of Jefferson County,
Alabama, Jefferson County Courthouse, Birmingham,
Alabama; G-eorge W . Clayton, as Associate Member of
the Jury Board of Jefferson County, Alabama; B ill R.
W hitley, as Clerk of the Jury Board of Jefferson
County, Alabama; E lmore M cA dory, as Clerk of the
Tenth Judicial Circuit, Jefferson County, Alabama, Bes
semer Division, Bessemer, Alabama, and each of their
successors in office,
Defendants.
268
Stipulation
It is stipulated and agreed by and between the parties
through their respective counsel that the deposition of Mr.
—2—
Billy Ray Whitley, may be taken before Carmen Zegarelli,
Commissioner, at the Federal Building, Birmingham, Ala
bama, on the 5th day of May, 1966.
It is purther stipulated and agreed that the reading
of and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if full
compliance had been had with all laws and rules of court
relating to the taking of depositions.
It is further stipulated and agreed that it shall not be
necessary for any objections to be made by counsel to any
questions, except as to form or leading questions, and that
counsel for the parties may make objection and assign
grounds at the time of trial or at the time said deposition
is offered in evidence or prior thereto.
It is further Stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
269
1st the
UNITED STATES DISTRICT COURT
F oe the N orthern District of A l a b a m a
Southern D ivision
Civil Action No. CA 66 92
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
—3—
A rthur J. Jones, et cetera,
—vs.—
Plaintiff,
John C. W ilson, Jr., et cetera,
Defendants.
Birmingham, Alabama
May 5, 1966
B e f o r e :
Carmen Zegarelli, Commissioner.
A p p e a r a n c e s :
M r . N orman C. A maker, 10 Columbus Circle, New
York, New York; and M r . Demetrius C. Newton, Masonic
Building, Birmingham, Alabama, appearing on behalf of
the plaintiffs.
M r . L eslie H all, Assistant Attorney General, State
of Alabama, Montgomery, Alabama, and M r . H ugh B.
H arris, Jr., Assistant District Attorney, Bessemer, Ala
bama, appearing on behalf of the Defendants.
270
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
—4—
I, Carmen Zegarelli, Official Court Reporter and Notary
Public, State of Alabama at large, acting as Commissioner,
certify that on this date as provided by the Federal Rules
of Civil Procedure of the United States District Court and
the foregoing stipulation of counsel, there came before me
at the Federal Building, Birmingham, Alabama, beginning
at 10 a.m., Mr. Billy Ray Whitley, witness in the above
cause, for oral examination, whereupon the following pro
ceedings were had:
Mr. B illy R ay W hitley, having been first duly sworn,
was examined and testified as follows:
Examination by Mr. Amaker:
Q. Will you state your full name, please! A. Billy Ray
Whitley.
Q. Your address, Mr. Whitley! A. 8111 2nd Avenue
South.
Q. That is in Birmingham! A. Birmingham.
Q. And where are you—what is your occupation! A.
Clerk of the Jury Board.
—5—
Q. That is Clerk of the Jury Board of Jefferson County,
Alabama! A. That’s right.
Q. How long have you been so employed! A. Beginning
July 16, 1964.
Q. Would you tell me who was your predecessor! A.
Mr. James F. Cheatwood.
Q. How were you selected as Clerk of the Jury Board!
A. By Civil Service Examination.
271
Q. O.K. A. And, of course, hired by the Jury Board
Members from a list submitted by the Civil Service Board.
Q. Who was your immediate supervisor, or what persons
are you responsible to? A. I am responsible to all three
Board Members, Jefferson County Jury Board Members.
Q. Did all three members have to agree unanimously to
your selection as Clerk? A. I think it takes two to make
the quorum, although they did unanimously agree on that.
Q. What duties do you perform as clerk of the jury
board? A. Supervisor of an office staff.
—6—
Q. How much staff do you have? A. We have two regu
lar typists and a Senior Clerk.
Q. Pardon me? A. Two regular typists and Senior
Clerk other than myself.
Q. Would you give me their names and addresses, please?
A. I am afraid I don’t know the addresses. The Senior
Clerk’s name is Bay Herron.
Mr. Newton: H-E-B-B-O-N?
A. Bight.
One of the clerk-typists is Charlene Kitchens, the other
is Elizabeth Shaw.
Q. Now, Mr. Herron, is he your principal assistant? A.
He has no authority over the others. They are all my
principal assistants.
Q. I see.
How long has Mr. Herron been employed? A. He
started in January, 1965.
Q. Was he hired by you directly? A. Yes, sir.
Q. His hiring was at your sole discretion? A. Yes, sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
272
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
— 7 —
Q. Is it Miss or Mrs. Kitchens? A. Mrs.
Q. When was she hired? A. August, 1964.
Q. And is it Miss or Mrs. Shaw? A. Mrs.
Q. And when was she hired, sir? A. January, 1965, I
believe.
Q. Now, in addition to—you say you supervise the office
staff. What duties are delegated by you to Mr. Herron?
A. Mr. Herron is responsible for purging the list brought
in by the field agents of people who have criminal records
or otherwise disqualified.
Q. Hoes he perform any other duties? A. He acts as a
field agent when I need him on a house to house survey.
Q. All right.
What specific duties does Mrs. Kitchens perform? A.
General Clerk-typist duties. She just types up information
from the survey sheets onto the jury cards and in the roll
book.
Q. Does she also act as a field agent on occasions? A.
Very seldom.
Q. O.K.
To your recollection, have you ever used her in that
capacity? A. Yes, I have.
Q. Do you recall when? A. I believe she did some sur
veying with me about a month ago.
Q. In your recollection, is that the only time ? A. Oh, no.
She was employed as a regular field agent before she took
the Clerk-typist job.
Q. I see.
273
Was that before you became clerk of the Jury Board?
A. No. Directly after I took Clerk of the Board.
Q. I see.
What about Mrs. Shaw. What duties does she perform?
A. Clerk-typist duties are the only things she does.
Q. Did she ever act as a Field Agent? A. No, sir.
Q. Now, tell me how does—what roll do you play in
— 9 —
preparing the jury roll that is used in the Bessemer Divi
sion? A. We make a house to house survey in the Bir
mingham Division as well as the Bessemer Division.
Make a survey of the whole county and these names are
brought into the office, of course, typed on cards, purged
or disqualified and then typed on the roll.
Q. Now, when you say we make a survey, would you tell
me how many persons are involved in making the survey?
A. In the course of the regular survey, we hired temporary
employees to do this, five Field Agents.
Q. Let me understand you.
You hired five additional field agents? A. That’s right.
Q. That is in addition to your office members ? A. That’s
correct.
Q. When is the regular survey, as you describe it, con
ducted? A. It usually lasts for a period of ten months
starting in the Fall before we fill the box the next Fall.
Q. Does this occur annually? A. Every other year.
— 10—
Q. Every other year? A. Yes, sir.
Q. In the Fall, around October or what month? A.
August.
Q. You start in August? A. Yes.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
274
Q. And yon conduct the survey until when? A. Some
where along about May.
Q. About May the following year? A. Yes, sir.
Q. And this process then is to be repeated not in August
of the year in which you have conducted that survey, but in
the following August, what I would call the regular survey;
is that right? A. We do a little additional work between
those periods of time to help out with the regular survey.
Q. Now, what does that consist of? A. We have some
areas where it is difficult to obtain information and Mr.
Herron and myself or others before us who held the same
position, make this supplementary survey.
Q. Would you be as precise as you possibly can about
— 11—
what that supplementary survey consists of? A. Well,
generally it is to help out on the regular survey and give
us something to do and we like to thoroughly work what we
call difficult areas in order to obtain more names; that is,
areas where we have had problems getting information in
the past.
Q. Well, now, how do you go about working these diffi
cult areas? A. We get out and make this survey together,,
house to house survey.
Q. Now— A. Then—
Q. Had you finished? A. Yes.
Q. I wanted to pinpoint when this occurs. This is after
the regular survey has been concluded that you make a sur
vey in the difficult areas? A. No, this is after the box is
filled, between that time and the time we start our regular
survey.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
275
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Q. Now, how much time elapses from the time you com
plete your regular survey until the box is filled? A. From
May until August, last Tuesday in August.
Q. So, that means that the last Tuesday in August of
— 12—
every year or every other year? A. Every other year.
Q. The jury box is filled for both Divisions? A. Yes.
Q. All right.
From that last Tuesday in August until you begin your
next regular survey, is this the period of time when you
conduct supplementary surveys in difficult areas? A. Yes.
Q. Now, you say that you and your senior clerk conduct
that survey? A. Yes.
Q. Do you two do it exclusively or do you have others
helping you? A. Once in a while we ask one of the Clerk-
Typists to go along but this is very seldom.
Q. All right.
Now, do you use the same method in the house to house—
strike that.
Do you use the same method in the survey, the supple
mentary survey that you do on the regular survey when
you get into difficult areas? A. Other than taking a little
longer time to do it, yes.
— 13—
Q. Now, would you be as precise as you can about ex
actly how that survey is conducted, the regular survey as
well as the supplementary ones?
Mr. Hall: Are you talking about the whole county
or are you talking about the Bessemer Division?
276
Mr. Amaker: My understanding of his testimony
is that the procedure is exactly the same. He re
sponded when I asked him a question about the
Bessemer Division by saying- he does the same thing
for both.
Mr. Hall: Of course, your suit relates to the Bes
semer Division.
Mr. Amaker: I understand, but I take it the pro
cedure you followed is a uniform procedure.
Mr. Hall: O.K. Is that right!
A. Yes.
Q. How do you conduct—now, you can, if you wish, limit
your response to what you do in the Bessemer Division,
but if it is easier for you to talk about the whole thing,
all right.
How is the survey in detail conducted with respect to
the Bessemer Division if it is the same for both and so on?
—14—
A. If I and a Field Agent both go out, take precinct 33,
Bessemer, for example, we go out and begin at one end of
the precinct and work to the other, making a house to
house survey of all the houses that we find and taking-
names which are listed on information lists containing
names, address, place of business, occupation, date of birth
and place of birth. These information lists are—are then
turned over to our clerk-typists in our office for process.
Q. This information is prepared in your office before the
survey is started? A. No. This information list is worked
out by the Field Agents in the Field at the door on a house
to house survey.
Q. What I am trying to do is visualize exactly what;—
when any of you leave your office, what do you take with
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
277
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
you to go out in the field? A. Clip Board containing in
formation and, of course, pencils to write with and post
cards to leave at places where the people are found not at
home.
Q. What is on this information list when you leave your
office, what information is listed? A. It is blank.
—15—
Q. Pardon me? A. It is blank when we leave the office.
Q. Does it have any space—does it have categories listed,
like name, age, residence, occupation, place of business to
be filled in when you get to the houses? A. That’s right.
Q. So, it is a form? A. Yes.
Q. Do you have one of those forms with you? A. I
didn’t bring one. Well, there is one here in the letter that
I brought with me.
Q. Let me see it.
Now, this is a completed information list for Precinct 9,
is that in Bessemer? A. No.
Precinct 9 is in Birmingham. I think I do have a Bes
semer one.
Q. Do you have one for Bessemer? A. The letter does
not specify any special precinct. They are all mixed to
gether.
Q. I see.
Would you explain to me, Mr. Whitley, what the num-
—16—
bers listed on the right of those names are? A. That is
the precinct number as determined by Mr. Cheatwood who
was clerk of the board at that time.
Q. Well, on the form, there is a place to fill in the num
ber of precinct in the upper lefthand corner.
278
Now, this particular one says, Precinct 9, but I see that
these numbers listed beside the names of individuals are
numbers other than 9. Can you explain why that is? A.
Evidently the person submitting this list started out with
a name and precinct 9, and just wrote this 9 at the top;
however, I see that there are two addresses in Bessemer
which would be in Precinct 33.
Q. And this is next to the name of Mr. William Penning
ton, number 45? A. That’s also a precinct number.
Q. Where is that? A. I believe that is in Ensley.
Q. At any rate, when the survey begins you go out with
a blank form like this? A. Yes, sir.
Q. And does a person normally fill in a Precinct number
at the top when they start out? A. Yes, sir. When we
—17—
arrive at a precinct or change in the precinct, I instruct
them which precinct they are in.
Q. I see.
Now, where is precinct 33? A. That is comprised of the
Bessemer Cut-off, 33 excluding Fairfield which is a differ
ent precinct, but also in the Bessemer Cut-off.
Q. What is the predominate racial population in pre
cinct 33?
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Mr. Hall: I didn’t hear that.
Mr. Amaker: I ask you what is the predominate
racial population in precinct 33?
A. I don’t know.
Q. Let me hang onto this.
All right, now, to let me back up a bit, you got out with
the—with what is here form two, which is the Jefferson
279
County Jury Board Information list, and when you go out,
there are no names on that list when you start out; is that
correct? A. That is correct.
Q. All right.
Now, each one of the Field Surveyors has several of
— 18—
these information lists with him? A. Yes, sir. with her.
Q. With her? A. Yes, sir.
Q. You say—we are talking about this regular survey,
these five additional people. Are they all women? A. Yes,
sir, they were last time.
Q. Any particular reason why that is? A. None that I
know of other than the list that we hired from was a
female list.
Q. What list did you hire from? A. They were taken
from a list of Civil Service Board of Jefferson County.
Q. Are you both restricted to hiring your surveyors
from that list? A. Yes, sir.
Q. And this list is submitted to you by the Civil Service
Board? A. Yes, sir.
Q. All right. A. Personnel Board, I meant to say.
Q. Personnel Board? A. Yes, sir.
—19—
Q. When was the last regular survey conducted? A. I
believe the Field Agents started the first day of August,
1964, and worked up until November, 1965.
Q. Now, those surveyors, were they all white or were
they Negro, or what were they? A. They were all white,
yes, sir.
Q. Now, what instructions did you give them before they
conducted the Survey? A. Actually the only instructions
they had was to work where I told them to work and obtain
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
280
the information that was asked for on the information list,
sir.
Q. And they were to obtain this information by going
to each home and knocking on the door and questioning
whoever answered the door? A. Yes, sir.
Q. Did you have some sort of area or map routed for
them? A. Well, generally we started at one end of the
County and worked to the other, that’s the general plan.
Q. Which end do you generally start from? A. We start
at the Bessemer End.
— 20—
Q. Bessemer end of the County? A. Yes, sir.
Q. That is the Southern end?
Mr. Hall: Southwest.
Q. Southwest? A. Yes, sir.
Q. All right. A. I believe the first precinct we work
is precinct 53.
Q. Do you know how many precincts there are alto
gether in the Bessemer Division? A. Primarily two
precincts. There is a very small area in Precinct 9 that
is, to the best of my knowledge, is still in the Bessemer
Cut-Off.
Q. So, there are three altogether? A. Yes, sir.
Q. What are those precinct numbers? A. 9, 33 and 53.
Q. Now— A. There is—that’s a partial precinct in
Precinct 9.
Q. What is that small area in Precinct 9? A. I don’t
remember what the area is called, I know where it is.
— 21—
Q. Where is it? A. In the general vicinity of the com
munity called Vinesville.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
281
Q. Called what? A. Vinesville.
Q. Is that immediately adjoining Fairfield? A. Yes, sir.
Q. All right. A. Almost. It is not far from it.
It is a little bit geographically separated by the way
the roads were built.
Q. In that Precinct 9 are the streets on one side in
Fairfield and the streets on the other side inside Birming
ham? A. Precinct 9, I don’t remember.
Mr. Amaker: Do you object to Mr. Newton shar
ing in part of the deposition?
Mr. Hall: Well, it is not customary.
Mr. Harris: Off the record for a moment.
(Off the record discussion.)
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Q. Are you familiar with Avenue H in Precinct 53? A.
Avenue H?
— 22—
Q. Yes, sir. A. I believe one side is 53 and the other
side—I am not sure whether it is 9, but I believe it is.
Q. Now, tell me, if you know, and if you don’t know,
give me your best estimate of the total population in each
of these three precincts? A. I have no idea.
Q. Would you say that 17,000 would be a fair estimate
of the population in Precinct 53? A. I don’t know.
Q. Have you canvassed each of these three areas? A.
Yes, I have.
Q. How often have you canvassed? A. Well, of course,
we work these areas every survey.
Q. Every survey? A. Yes.
Q. Well, how many times, Mr. Whitley, have you been
in Precinct 53 conducting a survey? A. I don’t remember.
282
Q. Has it been more than once? A. Certainly more
than once, I don’t remember how many though.
Q. Now, from your observations in conducting a sur-
—23—
vey, would you say that the population of that precinct
is predominately Negro? A. I couldn’t say.
Q. Well, is it about 50-50? A. I really don’t know. We
are not concerned with that, so I never notice it.
Q. Well, you have gone house to house in this precinct,
haven’t you? A. Yes.
Q. And you observed the race of the person who came
to the door, haven’t you? A. Yes, sir.
Q. Well, that is what I am asking, give me an esti
mate based on that observation whether most of the people
are Negro or white, or half and half? A. Well, it is a
fairly large and spread out precinct. It would—any esti
mate I could give I am afraid wouldn’t be very good.
Q. Well, I am asking for it, whatever it is. A. That is
extremely difficult.
It is difficult for the reason I know there is a large
colored area there, but how many people live in that area,
I don’t know.
—24—
Q. I wouldn’t expect you to give me numbers unless I
had some reason to believe that you actually counted, but
you state there is a large colored area in Precinct 53?
A. Yes, sir.
Q. Would you say it is larger than the number of
whites? A. I wouldn’t think so, I am not sure.
Q. Do you know where 52nd Street is in that area?
A. Yes, sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
283
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Q. Do you know where 65th Street is! A. I think it
runs up high, yes, sir.
Q. Do you know where Avenue D is! A. Generally,
yes, sir.
Q. Do you know where Terrance Avenue is! A. Yes,
sir.
Q. Would the area on those four streets be Negro!
A. If I had a map, I could tell you, otherwise, I couldn’t
he sure.
Q. Well, I am just asking you on your observations
unaided by a map, that area, including those four streets!
A. I think that would be pretty close.
—25—
Q. That would be predominately Negro! A. Yes.
Q. In Precinct 53, you have canvassed that area, have
you not! A. Yes, sir.
Q. You canvassed it at least once! A. Yes, sir.
Q. You canvassed it more than once either as part of
the regular survey or your supplementary survey! A. I
believe so.
Q. And you made house to house calls in that area! A.
Yes, sir.
Q. Over a period of several months! A. Yes, sir.
Q. And have you observed the race of the people who
have come to the door when you made your survey! A.
Actually I don’t do much survey as such on the regular
survey. I mean to keep up with where the Field Agents
are and assign them their territory.
Q. Well, the survey that you have done, based on that,
what would your observations of the racial distribution in
Precinct 33 be! A. I am afraid I would have no idea at
all.
284
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
—26—
Q. Do you know the area of 9th Avenue and 24th Street
on the Super Highway? A. Yes, sir—
Q. And Carolina Avenue South to the Stadium? A. I
am sorry, I lost you.
Q. You know where 24th Street is in Bessemer? A. I
could probably find it, yes, sir.
Q. You have been on that street, haven’t you? A. More
than likely.
Q. Do you know where 9th Avenue is? A. I know which
way the Avenues run; yes, sir.
Q. Carolina Avenue South to the stadium? A. I don’t
remember that; I don’t remember that one at the present
time.
Q. Do you know where the Bessemer Stadium is? A.
Yes, sir.
Q. All right.
Mr. Harris: Let me say this off the record.
(Off the record discussion.)
Q. Back on the record.
Are you familiar with the area of 9th Avenue to 24th
Street, East of Carolina Avenue and back west to the
—27—
Bessemer Stadium? A. I don’t remember a Carolina Ave
nue. I am not familiar enough with it to follow that.
Q. Do you know an Avenue in Bessemer that is replete
with Negro businesses? That is, just east of the railroad
tracks? A. I am sorry. I didn’t hear the question.
Q. Do you know an Avenue in Bessemer that is replete
with Negro businesses just east of the railroad tracks?
A. No. I couldn’t name one; no, sir.
285
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Q. Now, one of these questions was concerned with
Precinct 33. and I ask you initially if you have any judg
ment based upon your working in the area as to whether
the population is predominately Negro or white! A. I
haven’t made any records of that at all.
Q. I am not asking about any records. I am just asking
from your observations working in the area, could you tell
me! A. No, sir.
Q. That portion of Precinct 9 that is in the Bessemer
cut-off, is that predominately Negro! A. I think it is all
white.
Q. You think it is all white! A. Yes, sir.
— 28—
Q. Is Avenue I, Court H, and a part of Avenue H in
Precinct 9! A. There is an Avenue I, Court H and half
of Avenue H in Precinct 9; yes, sir.
Q. Now, isn’t that all Negro! A. I don’t remember.
It runs around Miles College there.
Q. That is in Precinct 9! A. On the eastern side of
Avenue H.
Q. And that area is Negro! A. I think about three
streets or three avenues.
# # # * #
— 32—
# * # # #
Q. Now, would you tell me, sir, we are at the point
where you have taken these jury information lists out
into the county and gone into these precincts, what hap
pens! I just want to know what you do and what these
assistants do when they start their survey when they get
to a house! How is the work actually done, that is? A.
286
I assign the streets to work. They get out of the car
and go up to the door. For instance, you take a block
and start at one end of the block and work down to the
other end where I would pick them up and assign them the
next street.
Q. Are all of you working together! A. Yes, sir.
All five of them, I try to keep all five working.
Q. You try to keep them together— A. Yes, sir.
Q. And the work is performed during what hours! A.
From 8 until 5.
Q. And that is Monday through Friday! A. Monday
through Friday.
—33—
Q. Is this a continuous period of doing nothing except
this from August to May! A. For the field agents!
Q. Yes. A. Yes, sir.
Q. Now, when they get to the door of a house, what do
they do or say! A. Well, they knock on the door, identify
themselves and ask the pertinent questions relating to the
information list. They take down the information and
then go on to the next house.
Q. I see.
Now, what happens if no one is at home who can give
the information! Well, let’s take a situation if no one
is at home altogether, what happens then! A. We have
post cards that we leave behind the door or stick under
the door for them to fill out and mail back to the office.
Q. You have one of those post cards with you! A. No,
sir, I don’t.
Q. Let me see.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
287
Mr. Hall: I think maybe if you want to, you can
refer to the record in the Clayton case, and there
—34—
is a copy of it. There is a footnote there on page
11, I believe.
Q. I will just ask him if this is the same thing. Mr.
Whitley, take a look at this footnote on page 11, Court
of Appeals, Billingsley versus Clayton, and tell me if that
post card is still what is being used by you in the Bessemer
Division? A. Yes, sir.
Q. The only difference would be that Mr. Cheatwood’s
name would not be on it, yours would be substituted?
A. That’s correct. On the new ones it would be. However,
we have been using all the cards with his name on it.
Q. You still are using the cards? A. Some of them,
yes, sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Mr. Hall: Now, may I interpolate something here
so we will be sure we know what we are talking
about.
Mr. Amaker: Sure.
Mr. Hall: For the record, you are referring to
the decision of the Fifth Circuit Court of Appeals,
the case of Orzell Billingsley, Sr. et al, versus George
W. Clayton, et al?
—35—
Mr. Amaker: I have already put that in the
record.
Mr. Hall: That case is designated as number
22304.
Mr. Amaker: O.K.
288
Q. Now, in that footnote which yon just looked at and
identified, is there any change at all in any of the lan
guage? A. No, sir. None except the name of the clerk
of the jury hoard.
Q. All right.
Now, you leave that post card if no one is at home?
A. Yes, sir.
Q. Now, what happens if you get someone who answers
the door, let’s say, who is unable to give you the infor
mation? That might occur if a child answers the door?
A. Well—
Q. Or perhaps a servant who was keeping the child and
couldn’t give you all the information, what do you do
then? A. That depends upon the circumstances. A lot
of times we try to get information at the next house
from the one we are—from the previous house, and we
- 3 6 -
ask if there is a man in that age group next door and
what his name is, and if we already have that informa
tion, there would be no need to leave a post card, we
merely look it up in the City Directory.
However, if we take down no address or have no in
formation at all, then in case a child answers the door
and no parent is at home, we leave the post card.
Q. All right.
Now, as you go from house to house, do you make a
notation that you have visited that particular house? A.
Not necessarily. Sometimes we run up on a neighbor who
will say there is no man living at the next three or four
houses. Then, of course, we merely skip those houses.
Q. I see.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
289
But in any event, you either talk to someone and fill out
the information or leave a post card after you determine
there was someone living in the particular house! A.
Yes.
Q. Now, after you leave the post card at the houses
where you leave those cards, are they ever resurveyed in
- 3 7 -
person! A. No, sir. We depend upon the return.
—37—
Q. You depend on the return of the post card! A. Yes,
sir.
Q. Now, do you record the race of the person either on
the information sheet or on the post card or when it is
returned! A. No, sir.
Q. Do you have any method of determining the race of
a person as canvassed! A. From a post card!
Q. From whatever manner you use to determine it! A.
Well, of course, we are not interested in that, hut we can
tell by looking at a person who answers the door, usually.
Q. In other words, you know then when you get the
information on the information list and you put down a
name, address, et cetera, whether that person is Nhgro or
white! A. Well, if it is in a Negro neighborhood, you
assume it is Negro. For example, if we talk to an em
ployee of a home, say in a white district such as Moun
tain Brook, we assume it is a white person living there,
although we talk to a colored employee, but, then there
—38—
is no record kept.
Q. But there is no record, there is no written record
anywhere of whether the people canvassed are white or
Negro! A. No.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
290
Q. You were asked to bring with you all letters sent
out to persons to serve on the jury of the Bessemer Divi
sion of Jefferson County from-—didn’t specify the date of
interest which was from 1960 to the present.
Do you have that information with you? A. I have all
the letters that were sent out by Mr. Cheatwood on the
last survey; yes, sir; although I do not have previous
letters, I have a record of the number of letters sent out
and answers received in prior years.
Q. Going back how far? A. 1955.
Q. Going back to 1955? A. Yes, sir.
Q. Where are the letters themselves? A. We didn’t
keep those letters.
Q. What letters have you kept? A. The ones that we
—39—
sent out last time.
Q. All the former letters have been destroyed? A. Yes,
sir.
Q. Tell me, though, the letters—though you don’t have
the letters going back as far as 1955, do you have a rec
ord of the addresses to which the letters were sent? A.
No, sir.
Q. Now, what does the letter say, do you have a copy?
A. Here is a carbon copy of one that was returned as
moved.
Q. Now, let me back up a minute.
Now, after you left the post cards, or have the infor
mation list filled out, these are called work sheets? A.
Yes, sir.
Q. Now, these are then taken back to your office at the
end of the day? A. Yes, sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
291
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
Q. And what happens to them after they get back? A.
Well, the field agents attempt to complete every name they
can from the City Directory of those whose names they
- 4 0 -
have taken without obtaining the occupation and where
they work.
Q. I am sorry, I didn’t hear the answer. A. The field
agents make an effort to complete the work sheets by
using the city directory by completing the worksheets. I
mean, in the event we get a name and address and were
not able to find out where they worked or whether they
did.
Q. I see. A. Then these are turned over to the typist.
Q. Well, what happens if you don’t have the date of
birth? A. The date of birth and place of birth is not
absolutely essential, because it is not listed on the jury
card itself. It g’oes into the jury box.
Q. Don’t you need the date of birth to determine whether
a person is within the statute or age of service? A. Well,
we usually depend on information from a neighbor. We
ask if he looks to be in the age group and if they say yes,
we take his name down.
Q. So, in other words, what you are saying is that you
use that city directory to supplement information that you
— 41—
didn’t get in the survey, but that you don’t necessarily pay
that much attention to the date of birth if your informa
tion from other sources indicates that the person is prob
ably within the right age? A. That is correct.
Q. Now, this continuous process goes on from August
to May.
292
Now, what else do you do to compile your list! A. In
the outlying areas, in the rural areas, we obtain names
from postmasters, general storekeepers, and—
Q. In the Bessemer Division—
Mr. Hall: Let him finish his answer.
Q. Had you finished? Excuse me, I thought he had fin
ished. A. I think that’s the only categories we check with
in the rural areas.
Q. Postmasters and storekeepers? A. Yes, sir.
Q. Now, how much of the Bessemer Division areas did
you say was rural? A. I have no idea as to how much is
rural.
Q. Could you give me an estimate, a percentage? A.
- 4 2 -
Yes, sir.
Q. Well, would you tell me then how much of—how many
names are on the list that you eventually put on the roll
comes from the rural areas? A. I have no such records.
Q. You have no judgment? A. No, sir.
Q. Are there any Negro postmasters in these rural
areas? A. I don’t remember any Negro postmasters.
Q. Have you ever consulted any Negro postmasters in
getting names from rural areas? A. Not that I remember.
Q. All right.
What about storekeepers ? A. I do remember one store
keeper who was a Negro.
Q. Where was that? A. In a community called Booker
Heights, I believe.
Q. And where is Booker Heights? A. Near the Commu
nity of Maytown, which is on the Birmingport Road, I
think.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
293
Q. In the Bessemer Division? A. Yes.
—43—
Q. Did you personally get some names from this store
keeper? A. Yes, sir.
Q. Do you remember the storekeeper’s name? A. No,
I don’t.
Q. When was this? A. I don’t remember the date. It
went in to the last survey.
Q. Do you remember how many names you got? A. No,
sir, I don’t.
Q. Is this the only instance when you got any names
from a Negro storekeeper? A. I would say that. That is
the only one I remember.
Q. All right.
Would you know whether any of the other assistants
were able to obtain any names from the Negro storekeep
ers? A. Now, this rural survey is conducted by myself
usually.
Q. I see.
Then you remember only one Negro storekeeper that
gave you any Negro names? A. Yes, sir.
Q. You don’t remember how many names you got? A.
...44
No, sir, I don’t.
Q. How well acquainted are you with Negroes, gener
ally, in the Negro—in the rural areas of the Bessemer
Area ? A. I don’t understand the question.
Q. How many Negroes do you know in the rural area
in the Bessemer Division? A. Know in which way.
Q. How many Negro names do you know? A. I actu
ally don’t know how many I know that live in Precinct 33.
Q. Do you know any? A. I remember one that I used
to work with in Precinct 53.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
294
Q. Is that all! A. That’s all that I can recall at the
present time.
Q. 53 a rural area! A. No, are you speaking of a rural
area!
Q. Yes. A. I thought you said Bessemer Cut-off gen
erally. I don’t guess I am well acquainted with anybody
in the rural areas of Bessemer.
Q. And you remember just one Negro in Precinct 33!
—4 5 -
Excuse me, Precinct 53! A. Well, I recall him specifically
because I worked with him.
Q. Bo you know his name! A. His name is Walter Wal
lace.
Q. Walter Wallace! A. Yes.
Q. Did you get some names from him! A. No. I found
he was not home.
Q. All right. A. I got his name from a neighbor, as a
matter of fact.
Q. Was he placed on a jury roll! A. At this last sur
vey!
Q. Yes. A. I don’t know. This time I am speaking of
is recently, which would go into the box.
Q. Now, would you summarize that what you just told
me is in the rural areas where you consulted postmasters
and storekeepers, you consulted one Negro storekeeper
whose name you cannot recall, and other than that, you
do not recall knowing any Negroes in the rural areas; in
Precinct 53, you remember the name of one Negro because
—46—
you worked with him, Walter Wallace. Is that a fair sum
mary of what you just testified to! A. Well, that is not
exactly what I said. I know a lot of people that I don’t
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
295
know where they live, but as far as knowing people who
live in that precinct, I am not sure, because I know so
many people whom I don’t know their address.
Q. Have you made any special efforts to acquaint your
self with Negroes who live first in the rural areas of the
Bessemer Division! A. No, sir.
Q. Have you made any particular efforts to acquaint
yourself with Negroes who live in the non rural areas!
A. No, sir.
Q. Have you ever instructed any of your staff assistants
to make any efforts to acquaint themselves with Negroes
who lived in the Bessemer Division?
Mr. Hall: I want to interpose an objection at
this point; of course, I know that this merely goes
in for the record.
Mr. Amaker: Yes.
Mr. Hall: Based on the decision of the United
States Supreme Court in Swain versus Alabama in
— 47—
which the observation was made by the Court that
neither the jury roll nor the venire need he a perfect
mirror of the community or accurately reflect the
proportional strength of every identifiable group.
That goes in as an objection.
Q. Do you recall the question? A. Yes.
Q. Would you answer it?
Have you ever instructed any staff assistant to make any
effort to acquaint yourself with Negroes who live in the
Bessemer Division? A. No, sir.
Q. Where did you work with Walter Wallace, Mr. Whit
ley? A. At the warehouse delivery department of Love-
man’s.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
296
Q. When was this? A. Around 1955.
Q. Do you know Josephine Murray. A. Josephine who!
Q. Murray? A. I don’t believe so.
Q. Do you know a Lonnie Webb? A. I don’t think so.
- 4 8 —
Q. Do you know a Burt Whitaker? A. I don’t think so.
Q. Do you know whether Lonnie Webb and Burt Whit
aker worked at the warehouse at Loveman’s during the
time you testified you were working there? A. I don’t
remember the names.
Q. Now, what sources of names do you get other than
the canvassing and the names you get from the post
master and stores in the rural areas, what sources do you
use? A. That is the only way, except that—
Q. Keep your voice up? A. That is the only way and
the best way.
Q. Do you use the county registration list? A. Yes,
sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Mr. Hall: Talking about the voter registration?
Mr. Amaker: Yes.
A. No, sir.
Q. Do you use any list returned to the Tax Assessor?
A. No, sir.
Q. Now, what use do you make of the City Directory
beyond what you testified to? A. Sometimes when we
can’t—beyond what I have testified to—
Q. Yes. A. None.
Q. All right.
—49—
297
Do you make any use of the telephone directory? A.
We check name spelling and such as that by the telephone
directory, yes.
Q. But, those are names that have already been put
on the jury information list? A. Yes, sir.
Q. Do you happen to know, Mr. Whitley, how the pre
cincts are sub-divided, are they sub-divided by district?
A. I think so.
Q. Well, do you happen to know? A. By voting dis
tricts ?
Q. Pardon me? A. By voting district?
Q. Yes. A. I think so.
Q. Do you happen to know how many districts are in
Precinct 53? A. No.
—50—
Q. Or Precinct 33? A. No.
Q. Or Precinct 9? A. No, sir.
Q. Now, have you made any particular effort since you
have been clerk of the jury board to secure the names of
Negroes as such?
Mr. Hall: I want to interpose the same objection
I made to this previously with regard to the Swain
case.
Mr. Amaker: O.K.
Mr. Hall: No requirement and no—nothing in the
law that requires the proportionate representation
of any race on jury rolls or venire.
Q. Would you answer the question, please? A. We
mailed out these leters in an effort to obtain Negro names.
Q. Do you mail these letters to—only to Negroes? A.
Yes, sir.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
298
Q. Now, you say you mailed these letters only to Ne
groes; is that right? A. Yes, sir.
Q. Why do you not mail these letters to persons other
—51—
than Negroes? A. Persons other than Negroes?
Q. Yes, sir. A. This is in an effort to obtain more qual
ified Negro names than we can normally obtain on a survey.
Q. Now, you say that you can normally obtain on a sur
vey.
What problems do you have obtaining Negro names dur
ing the survey? A. I found that Negroes are suspicious
when I go to the door and it takes a good while to explain
why I am there, and what I am doing, and they become
vague and do not respond to the questions. Sometimes I
ask a question about the neighbor, and they don’t know
them.
And in most cases, I can’t find out any information about
neighbors from Negroes and they are just generally un
cooperative for some reason.
Q. Have you ever used any Negro survey workers? A.
Since I have been clerk of the Board?
Q. Yes. A. No, sir.
Q. Do you know whether any were used in the past? A.
—52—
I don’t know who canvasses the Negro neighborhoods.
Well, the most difficult areas are canvassed, as I testi
fied before, by myself and the senior clerk. The ones where
we do receive good co-operation, are worked by the regular
field agents.
Q. Well, when you say the most difficult areas, what kind
of difficulties are you referring to? A. Areas where we
have in the past found very little co-operation. Usually
in the low-income class.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
299
Q. I am sure you must have your record break down in
terms of the occupations on the jury roll. Has there ever
been any such compilation? A. Not that I know of.
Q. Could you give me an estimate of the occupations
that are normally on the jury rolls? A. Of course, they
vary according to the various occupations of people all over
the county; there is no generalization there whatsoever.
Q. What percentage of low income people would you say
were on the roll? A. I don’t know.
Q. What persons are exempt that you never put on the
roll, what occupation, that is? A. Persons who are exempt
— 53—
by occupation are put on the roll if they so desire; I would
have to read from a list; I don’t recall, but there are sev
eral of them.
Q. Are there some occupations that you never put on the
roll? A. By their own claiming of an exemption. Some
of them do and some of them don’t want to serve.
Q. I am not talking about those categories which are
exempt by law and which therefore may claim an exemp
tion.
I am asking you whether you ever don’t put any occu
pations on the roll that are not formally exempt? A. Does
this answer your question? We put all occupations on the
roll.
Q. Other than lawyers? A. We have had some lawyers
that want to serve.
Q. I would love to serve.
Now, getting back to these letters.
I think in response to number one where we ask for all
letters sent out, you say that you have the letters going
back only to what date? A. These letters were sent out
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
300
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
—54—
to obtain names for filling the last box. The letters were
mailed June 1, 1964.
Q. And how many letters? A. 63.
Q. 63? A. Yes, sir.
Q. Were all of those letters mailed to Negroes? A. Yes,
sir.
Q. Do you have the addresses who they were sent to?
A. The addresses are there and are identified on each let
ter; yes, sir.
Q. May I see those, please? A. Yes.
Mr. Amaker: Mark this as Exhibit 1 to the depo
sition.
Mr. Hall: Of course, it would be understood that
those are part of the official record of the jury board
and we would like to have the privilege of having a
duplicate made of it and withdraw the original.
Mr. Amaker: Of course.
(Document marked Plaintiff’s Exhibit 1 to Mr.
Whitley’s deposition and by agreement of
counsel photostatic copy of same will be at-
—55—
tached to the original deposition.)
Q. All right.
Now, Mr. Whitley, I show you what has just been marked
as Exhibit 1.
Would you state for the purposes of the record on this
deposition what appears on this exhibit? A. This is a list
of the number of letters sent out and answers received
from 1955 through today.
301
Q. Letters sent out to whom? A. The names of leaders
of the Negro Communities.
Q. Exclusively only to Negroes? A. Yes, sir.
Q. And, now, I see on this exhibit a notation made in
hand which says as follows:
Decided by jury board members: Not to include attor
neys in mailing list.
Would you explain that notation, please! A. There was
a feeling that we would probably get complaints to many
of these from attorneys to the effect that some attorneys
were being allowed to, in some way, participate in the selec
tion of their own jury.
—56—
Q. Now, when was that decision made? A. I don’t have
that down.
Q. Was it made since you became clerk of the jury
board? A. No, sir.
Q. Was it made— A. By the number there, I expect it
was made preceding 1955 to 1961 box.
Q. When was there compilation made of the number of
letters sent out and the answers? A. This page here?
Q. Yes.
I see it is just written on a blank jury board information
list. A. I think that is my writing.
Q. You wrote that yourself? A. Yes.
Q. It is not really an official record, is it ? Is it something
you need to retain? A. That is something I would like to
have, yes, sir.
Q. But you prepared it for the purpose of this deposi
tion in response to our request; is that right? A. Yes, sir;
—57—
this is the only copy I have.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
302
Q. All right. A. I just wanted to get that clear.
Q. Now, you have the letters to— strike that.
On this exhibit it shows 1963 through 1965 that 63 letters
were sent out and ten answers were received to those 63
letters.
Now, the letters that you have brought here with you,
are they only the 63 that were sent out during that period?
A. I have the letters and the answers.
Q. I see.
Of the 88 letters sent out from 1961 to 1963, those letters
are not available? A. No, sir.
# * * * *
Q. They are dated June 1, 1964, which was shortly before
—58—
you took office? A. Yes, sir.
Q. And you don’t know how these names were chosen?
A. No, sir.
Q. Mr. Cheatwood sent them out? A. Yes, sir.
Q. Now, can you take a look at the one, two, three, four,
five letters that I am handing you, and would you tell me
if the addresses on those letters are in the Bessemer Cut
off? A. I am sure that four of them are.
Q. Which one are you not sure of? A. Birmingham,
5400 Avenue I, Ensley.
Mr. Newton: That is that same address two blocks
from Miles College, Precinct 9.
Q. Can you identify that also as being in the Bessemer
Division? A. It is not in the Bessemer Division.
Q. Didn’t we have testimony previously about Avenue I?
A. Yes, sir. I is in Bessemer Division, and Avenue H is
the dividing line.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
303
Q. Where is this address? A. It is either one or two
—5 9 -
blocks east of City Limits which is the dividing line be
tween Birmingham and Bessemer.
Q. Names gotten from that street would be in what divi
sion of the Court? A. Birmingham Division.
Q. Birmingham Division? A. Yes.
Q. Is that a part of Precinct 9? A. Yes.
Q. That is a part of Precinct 9.
All right. Let me take that out. Now, how many—this
letter to Mr. Johnson which is Avenue I in Ensley, now,
when you take that out, how many letters were sent out to
individuals in the Bessemer Cut-off? A. Well, you have
handed me four here. I haven’t seen the rest of them.
Q. Would you examine the others and see if you can
find anymore?
Mr. Newton: Here is one over here.
Mr. Amaker: No, that is back in 1958.
A. That is all the Bessemer.
—60—
Q. Pardon me? A. That is all the letters that were
addressed to people in the Bessemer Cut-off.
Q. Just those four? A. Yes, sir.
Q. Now, of these four letters, is there any one addressed
to anyone in Precinct 53 ? A. I don’t see any. I think they
are all Precinct 33.
Q. They are all Precinct 33? A. Yes, sir.
Q. Now, let’s take the first of these letters. The first let
ter is addressed to Bev. James F. Steele, 4135 McClain
Street, Brighton, Alabama.
Did Rev. Steele respond to that letter? A. Some of the
letters came back in without any return address. So,
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
304
actually, we couldn’t be certain even if I couldn’t find it.
I will have to answer that I don’t know.
Q. Well, you say that all the letters you sent out, ac
cording to your Exhibit 1, only ten answers were received?
A. Yes, sir.
— 61—
Q. Were any answers received from the addressees of
any of these four letters? A. If I should find one in here,
I could answer yes, otherwise, I would have to say I don’t
know.
Q. May I see one of the replies? This all that came
back to you? A. Yes, sir.
Q. When you sent the letters, then you sent out the jury
information list too? A. Yes.
Q. And in some cases, they just wrote down the names.
Who put the names on this sheet? A. I assume that the
person who mailed it back in. Another assumption, that it
was the Negro leader whom the letter was mailed to.
Q. That is just an assumption.
Is it possible that the names were listed in some other
way and then they transferred by someone in your office
to this list? A. No. That is the actual list.
Q. This is the list that came back in the mail? A. Yes.
— 62—
Q. Is it true in all of the answers that you received?
A. Yes.
Q. Is it your testimony that you are unable to identify
receiving any reply from the addressees of the four letters
that were sent out to the Bessemer Division? A. I can
look through.
Q. Would you just check, please? A. I can look and see
if I can find any. There are some answers that are un
identifiable, which could or could not be.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
305
Mr. Amaker: Would you mark these as Plaintiff’s
Exhibits two through 5 to the deposition.
(Whereupon said documents were marked Plain
tiff’s Exhibit 2, 3, 4, and 5, respectively, and
by agreement of counsel photostatic copies
of same will be filed with the original deposi
tion.)
A. The answer is I don’t know.
Mr. Harris: Let me ask you off the record.
(Off the record discussion.)
Mr. Hall: I would like to have the same stipula-
—63—
tion as to the making of copies of those documents.
Mr. Amaker: All right.
Q. Now, Mr. Whitley, do you have the identity of the
total number of persons that live in Precinct 53? A. No,
sir.
Q. Let me ask you, after the jury information list is
returned to the office and the information recorded, what
happens to the list? A. Well, when we are finished with
them, we throw them away.
Q. You don’t keep them at all? A. No.
Q. Are you asked to bring the complete list of the per
sons and organizations to whom those letters are sent, the
letters that we have been referring to? Were they sent to
any organization, sent out letters to any organization? A.
I don’t remember. I would have to look through them
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
again.
306
Q. Well— A. I didn’t send out these letters, Mr. Cheat-
wood did.
Q. Have you sent out any since you have been clerk!
—64—
A. Not yet; no, sir.
Q. Now, let me ask you, to summarize, other than the
house to house survey, the securing of information and
names from postmasters and store owners and the sending
of these letters to people in the Negro communities, are
there any other sources of names that you get to prepare
the jury roll! A. No, sir.
Q. Now, do you know how many names, total number
of names are on the present jury roll! A. I can tell you
how many are on the Bessemer Division roll.
Q. In the Bessemer Division! That is what I want! A.
There is a total in the Bessemer Division of 9,546.
Q. And that roll was compiled as of when! A. Well, we
finished in time to fill the box in August, 1965.
Q. How many names are there from Precinct 9! A. I
have a total of 64.
Q. How many names are there from Precinct 33! A.
Total of 8,102.
Q. And how many names are there from Precinct 53!
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
Q. Now, do you have any means of identifying, among
those totals, how many of those names are the names of
Negro people! A. No, sir.
Q. You have no judgment then what the percentage of
Negroes would be in comparison to the total number of
names on the roll! A. No, sir.
307
Q. Who actually physically puts those names on the roll;
is it your staff? A. Types the names on the roll?
Q. Yes. A. One of our Clerk Typists.
Q. Who decides what names go on the rolls? A. Well,
she puts all of them on that are turned over to her from
Mr. Herron, our Senior Clerk.
Q. In other words, it is the Clerk’s Office that actually
prepares the roll? A. The office staff, yes, sir.
Q. Your office staff? A. Yes, sir.
Q. Does the jury hoard consult with you in what names
— 66—
go on the rolls, or is that function delegated to your office ?
A. Well, the decision is to he made, decisions of policy
are made by the Board Members. However, we have a law
to follow and our clerks are instructed according to the law
and there is no question which ones go on and which ones
do not.
Q. All right.
WTien you get the names from Agents in the field, from
the replies of these letters, the judgment about what names
are put on the roll, as a matter of fact, are made by you
and your agents—your staff assistant? A. In a way, yes.
Q. What do you mean in a way, they are or they aren’t ?
A. Well, there is no judgment involved other than the
checking of records.
Q. It is an automatic thing if they are within the cate
gories prescribed by law? A. That is right.
Q. Now, would you explain to me how the jury roll for
the Bessemer Division is purged and when it is purged?
A. Our Senior Clerk has the responsibility of purging all
- 6 7 -
names. This is done by a check of police records, court
records, criminal records.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
308
Q. Now, by purging the names, do you mean that when
you get a name, before that name goes on the roll, a
check is made to see whether that person is qualified in
accordance with the standards set down by Alabama law?
A. That’s right.
Q. And you do that by resorting to police records to see
whether there is a criminal conviction? A. Yes.
Q. Now, there are other standards.
How would you know whether a person was an habitual
drunkard or not? A. Well, of course, assuming that our
police department is efficient, he would have been arrested
several times for drunkenness.
Q. What sort of things do you look for to make sure
that a person is qualified? A. This is the only check, by
criminal record, that’s all we make.
Q. As a matter of fact, in the practice, the only check
you are concerned with is making sure that person doesn’t
- 68-
have a criminal record? A. That is correct.
Q. Now, you prepare a new roll every two years? A.
Yes, sir.
Q. Now, in preparing that roll, do you first make some
determination of the names that—the names on the pres
ent jury roll that will not be included on the one that you
are preparing? A. I am sorry, would you ask that again?
Q. Let me put it more clearly.
The names on the present jury roll, did they include
names of persons who are on the previous jury roll? A.
I am sure there are some, although we don’t use a previ
ous jury roll. We do not use this as a method of obtain
ing the names, we use it as a check.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
309
Q. What I am asking you is, you just add to the jury
roll? A. No.
Q. I am trying to get exactly what the process is? A.
Of course, the names of people on the jury roll corre
spond with the names that are on the jury cards in the
jury box. At the end of each period, each two year
— 69-
period, the names which are left in the jury box at that
time are dumped out or destroyed. It is a complete new
list, complete new tilling of the jury box that goes in.
There is no adding to this, it is just a matter of destroy
ing and already worked up a new one.
Q. But, now,, the names in the jury box and the names
on the jury roll are identical, aren’t they? A. Yes, sir.
Q. Now, you say that you dump out the names in the
old jury box and destroy them altogether? A. Yes.
Q. And that you make up a new roll on the basis of
your canvass, et cetera? A. Yes.
Q. But you say that some of the old names would still
get on the jury roll? A. Provided they still lived at the
same place and still live in Jefferson County and are
qualified.
Q. Do you exclude those people who have served on a
jury? A. Yes, people who served during one term on
the jury box are held in reserve out of the next box.
— 70—
Q. Are their names nevertheless put on the new roll
and just not called? A. Yes. They are put on the new
rolls.
Q. And not called until the other names are exhausted?
A. That is correct.
Q. Now, how often would the same names he selected,
from list to list? A. They are not carried over from list
to list at all, except as a matter of circumstance, of course.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
310
Q. Well, let me put it this way. I am reading to you
from the opinion of the United States Court of Appeals
in Billingsley versus Clayton, which we previously identi
fied in the record. At page 12 of that opinion, the Court
states in the first full paragraph, and I will ask you
whether this is an accurate reflection of what your prac
tice currently is: The Court states that names contained
on the past jury rolls are brought forward and used in
succeeding jury rolls; is that true? A. No, sir.
Q. All right.
Now, how does your practice vary? A. Of course, if
they still live in the same place in Jefferson County and
are still qualified jurors, they will get back on the roll
- 7 1 -
in the same manner, hut as far as being brought forward
from the roll and from the previous list, that is not correct.
Q. Well, then, I may be thinking—I am not just clear
as to how those same names get on the subsequent jury
roll? A. They are picked up on the new survey.
Q. They are picked up on the new survey? A. Yes.
Q. I see.
That would be because if they still lived at the same
place you would be making the survey in the same area?
A. Yes.
Q. That is how they get back on the jury roll? A. Yes.
Q. It is possible for an individual to have his name on
succeeding jury rolls for a fairly long number of years,
if he hasn’t changed his place of residence? A. Yes.
Q. All right.
Now, the court then says that when a person has actu
ally served on a jury, his name is removed for a two year
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
311
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
- 72-
period. Now, is that true? A. His card is withheld out
of the jury box.
Q. His card is taken out of the jury box for two years?
A. That’s correct.
Q. So that person in no event would serve on a jury
during that two year period! A. That is correct.
Mr. Hall: That is not taken off the roll, it is just
taken out of the box?
Mr. Harris: Let me ask this off the record.
(Off the record discussion.)
Q. All right.
Now, would you explain to me what your function is
and when I say yours, I am talking about your office and
the people that work for you, what your function is in
preparing the jury box and how this is done? A. Pre
pared,—
Q. The jury box, now, I am talking about the cards
that actually go into the box? A. The Board members
place the cards into the box and then it is turned over
to the presiding Judge which ends our connection with
the box.
— 73—
Q. But your staff physically puts the names in the box
working from the jury roll?
Mr. Hall: On cards?
A. On cards they are typed.
Q. I see.
312
The cards are what you type up first when you complete
your survey? A. That’s right.
Q. That is the jury box? A. Those go into it.
Q. Then you make the jury roll from the cards? A.
Yes.
Q. Do you make them both at the same time? A. No.
These cards are typed up and then alphabetized and then
typed on the roll in alphabetical order.
Q. Is that alphabetical order within each precinct? A.
Yes.
Q. Are the precincts broken down into districts? A.
No, sir.
Q. And when you finish transferring the names on those
cards to that jury roll, those cards are put in a box? A.
Yes, sir.
Q. Now, is that the point at which your function termi-
—7 4 -
nates? A. After we turn the box over then to the pre
siding judge, we are through with that.
Q. You are through with it? A. Yes, sir, the jury box.
Q. Let me just ask you a further question, just an in
formational one.
Since—are you familiar with the opinion of the United
States District Court for the Middle District of Alabama,
in White versus Crook? A. No, sir.
Q. Let me ask you whether since I believe January of
this year, any survey or regular kind of survey has been
conducted to get names? A. Since January of this year?
Q. Of this year, January, 1966? A. We haven’t yet
started.
Q. When was the last time you made any kind of sur
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
313
vey at all? A. We have been surveying some of the
difficult areas in the past few months.
Q. Well, now, in those past few months and in this
survey, have you been recording the names of women?
—75—
A. No, sir. We have no authority to do that, yet.
Mr. Hall: Off the record.
(Off the record discussion.)
Q. You said that you have personally canvassed some
difficult areas.
Is this in precinct 53? A. We have worked some in
precinct 53, yes, sir.
Q. What are those difficult areas that you are referring
to? A. The areas of old people around Miles College.
Q. Pardon me? A. The area around Miles College is
usually difficult to obtain names.
Q. Did you—when did you make a canvass of this
area? A. Well, it has been a couple or three months,
I guess. I don’t remember exactly.
Q. Now, how many names did you get? A. I don’t have
that information.
Q. Do you have that information in your office? A. I
can possibly count them, yes.
Q. You could count them from the roll or from— A.
- 7 6 -
No. This will go into a new roll starting August of ’67.
Q. Oh, I see. They are not on the present roll? A.
No.
This present roll was completed before August, 1965.
Q. I see.
Plaintiffs’ Exhibit 18
Deposition of Bill R. Whitley
314
Any other areas that yon canvassed difficult areas as
you described in Precinct 53? A. That’s all.
Q. What about Precinct 33? A. 33, we worked some out
around Wenonah and Muscoda, that’s all I can remember
right now.
Q. Do you have any idea how many names you got? A.
No, sir.
Q. Did you get any? A. Yes, sir.
Q. And will some of those go on the roll? A. Yes, sir.
Q. What about in Precinct 9? A. I haven’t worked any
of that yet.
Q. You haven’t worked any of that? A. No, sir.
—77—
Mr. Amaker: We have concluded, Mr. Hall.
You may ask him, if you like.
Mr. Hall: No questions.
Mr. Harris: No questions.
Mr. Hall: Mr. Whitley, is it satisfactory with you
for the Court Reporter to sign your name to the
deposition after it is typed up, rather than your
having to read it over and checking it and so forth.
That is customary.
The Witness: Yes, sir.
Mr. Harris: It is customary to let him certify it.
Mr. Hall: In other words, you waive signature ?
The Witness: Yes, sir, I have every confidence in
Mr. Zegarelli.
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
315
F urther deponent saith not
CERTIFICATE
State oe A labama
Jefferson County
Plaintiffs’ Exhibit 18
Deposition of Bill B. Whitley
— 78—
I, Carmen Zegarelli, Official Court Reporter and Notary
Public, State of Alabama at Large, acting as Commis
sioner, certify that on this date as provided by the fore
going stipulation, I reported in shorthand the foregoing
deposition at the time and place stated in the caption
hereof; that I later reduced my shorthand notes into
typewriting, or under my supervision; that the foregoing
pages numbered four through seventy-seven, both inclu
sive, contain a full, true and correct transcript of pro
ceedings had in said cause.
I further certify that I am neither of counsel nor kin
to the parties to the cause, nor in any manner interested
in the results thereof.
/ s / Carmen Zegarelli
Commissioner—Notary Public
316
— 1 —
IN THE UNITED STATES DISTRICT COURT
F oe the N orthern D istrict of A labama
S outhern D ivision
Civil Action No. 66-92
Plaintiffs’ Exhibit 19
(Deposition o f Bill R. W hitley)
A rth u r J . J ones, et al.,
—vs.—
Plaintiffs,
J ohn C. W ilson , J r ., et al.,
Defendants.
S t i p u l a t i o n
I t is stipulated and agreed by and between the parties
through their respective counsel that the deposition of
Bill R. Whitley, may be taken before Ray C. Wester,
Commissioner, at Birmingham, Alabama, on June 5, 1967,
at 1 :30 p.m.
It is further stipulated and agreed that the reading of
and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if
full compliance had been had with all laws and rules of
court relating to the taking of depositions.
It is further stipulated and agreed that it shall not be
necessary for any objections to be made by counsel to
any questions, except as to form or leading questions, and
— 2 —
that counsel for the parties may make objections and
assign grounds at the time of trial or at the time said
deposition is offered in evidence, or prior thereto.
It is further stipulated and agreed that notice of filing
of the deposition by the Commissioner is waived.
317
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
— 3 —
IN THE UNITED STATES DISTRICT COURT
F or the N orthern- D istrict op A labama
S outhern D ivision
Civil Action No. 66-92
Arthur J. J ones, et al.,
—vs.—
Plaintiffs,
J ohn C. W ilson, J r ., et al.,
Defendants.
Birmingham, Alabama
June 5, 1967
B efore :
R ay C. W ester, Commissioner.
A ppearances :
M essrs. O scar W. A dams, Jr., and H arvey B urg,
Masonic Temple Building, Birmingham, Alabama, and
M r . D emetrius C. New ton , 408 North, 17th Street,
Birmingham, Alabama, for the plaintiffs.
M r . J. D awson B ritton , Assistant District Attorney,
Jefferson County, Alabama, for the defendants.
—4—
I, Ray C. Wester, Official Court Reporter of the United
States District Court, Birmingham, Alabama, and Notary
Public, State of Alabama at Large, acting as Commis
318
sioner, certify that on this date as provided by the Fed
eral Rules of Civil Procedure of the United States Dis
trict Court, and the foregoing stipulation of counsel,
there came on before me at Birmingham, Alabama, begin
ning at 1:30 p.m., Bill R. Whitley, witness in the above
cause, for oral examination, whereupon the following
proceedings were had:
B ill R. W h itley , being first duly sworn, was exam ined
and testified as fo l lo w s :
Examination by Mr. Newton:
Q. You are Mr. Bill R. Whitley? A. That is correct.
Q. You are Clerk of the Jury Board of Jefferson County?
A. Yes, sir.
Q. Mr. Whitley, do you recall giving a deposition on or
about the 5th of May, 1966, in this case? A. Yes, sir.
— 5 —
Q. Now, since the time you gave this deposition on
May 5, 1966, has the Jury Board been working toward
refilling the current jury box in the Bessemer Division?
A. Yes, sir.
Q. Have you actually put in any new names in that
jury box? A. Yes, sir, it was refilled May 15.
Q. Was this in accordance with what you usually do
every two years? A. Basically the same, yes, sir.
Q. Wouldn’t normally the box be refilled in August of
this year? A. Yes, sir.
Q. Was there any special reason for refilling the box
prior to August? A. We were under Court decree to
have the box filled by June 1, 1967.
Q. Is that in order to include women in that? A. Yes,
sir.
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
319
Q. Did you empty the old box before refilling it! A.
Yes, sir.
Q. Take out all the old names? A. Yes, sir.
—6—
Q. And this box now represents a brand new box totally
different from the box that we previously examined you
about a year ago? A. Yes, sir.
Q. How many names do you now have in the new box?
A. In the Bessemer Division we had 12,050.
Q. And that was as of May of this year? A. May 15
of this year.
Q. How did you go about canvassing for your new
names? A. Much in the same manner we did before. We
travel by automobile through the various neighborhoods
and made a door-to-door canvass.
Q. Mr. Whitley, did you hire extra help in your office
in order to fill the box by May 15? A. Yes, sir.
Q. How many persons did you have assisting you and
who are they? A. We had two teams, temporary field
agents, consisting of five per team.
Q. You had a total of ten employees other than your
self? A. Yes, sir.
# # * * *
— 10—
# # * * *
Q. Were all of these persons whose names you have
called white? A. Yes, sir.
— 11—
Q. When your team went into the Bessemer Cutoff did
you go into Precinct 53, which is comprised of the City
of Fairfield? A. Yes, sir.
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
320
Q. Did you cover the entire precinct? A. We covered
the entire precinct. Not working each and every house but
covered the entire area.
Q. Did you cover Huey town? A. Yes, sir.
Q. Lipscomb? A. Yes, sir.
Q. Brighton? A. Yes, sir.
Q. The City of Bessemer proper? A. Yes, sir.
Q. Dolomite? A. Yes, sir.
Q. And did you cover each and every precinct in the
Bessemer Cutoff? A. Yes, sir.
Q. Did you cover that part of Precinct 9, which is really
in the city limits of Birmingham? A. Yes, sir.
— 12—
Q. Did the Jury Commissioners, those persons who
make up the Jury Board, did they submit any names to
you? A. They might have submitted a few. I would say
nothing substantial.
Q. Now, when the names were put in the box in the
Bessemer Division, were you present? A. Yes, sir.
Q. And where physically was that done? A. Room 311,
Courthouse, Birmingham.
Q. And who brought the box to you? A. That was my
job.
Q. You picked up the box from Bessemer from Mr.
McAdory’s office? A. Yes, sir.
Q. And you brought it to Birmingham? A. Yes, sir.
Q. Who else was present when the box was being filled?
A. The Jury Board members and the regular clerks of
our office.
Q. Were all members of the Jury Board, Mr. Wilson,
—13—
Mr. Palmer and Mr. Clayton, present at that time? A.
Yes, sir.
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
321
Q. Was any judge of any Circuit Court in either the
Birmingham district or the Bessemer district present?
A. Not during the entire filling.
Q. Any present at any time during the filling? A. I
think a couple of them dropped by to speak to the Board
members.
Q. Then after the box was filled was the box locked?
A. Yes, sir.
Q. Who actually and physically locked the box? A.
The president of the Jury Board, I assume. I didn’t
notice but he has the key.
Q. Then was the box subsequently delivered back to
Mr. McAdory’s custody in Bessemer? A. Yes, sir.
Q. Who took it out there? A. I did.
Q. How long a period of time, Mr. Whitley, did you
canvass in the Bessemer Division? A. I don’t know.
—14—
Q. Did you fill the box by May 15? A. Yes, sir.
Q. When did you begin? A. We began canvassing the
first Monday in July, 1966.
Q. Did you begin in Birmingham or Bessemer? A. Bes
semer.
Q. And were you through in Bessemer with your can
vassing a good deal of the time prior to May 15? A. Yes,
sir.
Q. After your canvass there I believe then did you—
your staff took the names you had and typed cards for
them and so forth? A. Yes, sir.
Q. This is the first time, of course, you have canvassed
both male and female? A. Yes, sir.
Q. When they did this canvass did they make cards out?
A. Yes, sir.
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
322
Q. Were they rechecked for any reason? A. Our law
disqualifies certain people and each name we brought in
is checked for a court record.
—15—
Q. Who checks those? A. One of our office staff, Mr.
Ray Herron.
Q. Mr. Herron? Does he just go through the Circuit
Courts or to the District Attorney’s office or wherever—
A. And the sheriff’s office, and anywhere he can find a
criminal record.
Q. Is this the only manner you would disqualify some
one, those who have a criminal record? A. Other than
physical disqualifications, yes, sir.
Q. And out of this Bessemer canvass you said your
figure was 12,050? A. Yes, sir.
Q. That is how many names you put into the new jury
box in Bessemer? A. Yes, sir.
Q. How many did you put into the new jury box in
Birmingham? A. 57,736.
Q. And those names also include both male and female?
A. Yes, sir.
Q. When these persons went out to canvass, did you
—16—
canvass only during daylight hours or normal working
hours? A. Yes, sir.
Q. When you were with your team while they were can
vassing in the Bessemer area, did you split up and take
certain streets and so forth? A. I tried to stagger the
assignments of each field agent so that they would be kept
working instead of waiting.
Q. Were you familiar with the Negro areas you can
vassed in the Bessemer Division? A. Not thoroughly.
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
323
Q. Were any of the persons that you had as extra help
familiar with those areas? A. I don’t know.
Q. Did your team or the team Mrs. Kitchens had
conscientiously make an effort to put Negroes on the jury
list? A. We made no difference in any way.
Q. Did you conscientiously make an effort to find women
to put on the jury list? A. We tried to get each name we
could from each house we visited.
—17—
Q. What standards did you and your helpers, those
persons who comprised those teams, use to determine who
would he eligible for jury service ? A. At each house they
asked for the names and additional information of each
person between 21 and 65 years of age. That is the only
qualifications made.
Q. And then you subsequently took those you found to
be ineligible off of this list? A. Yes, sir.
Q. If you went to a house and they gave you everybody
in the house between 21 and 65 but two of them had crim
inal records— A. That question wasn’t asked at the house.
Q. In other words, you just take their names? A. Yes,
sir.
Q. No matter what their qualifications and then you
would weed them out after you got back to the office? A.
Yes, sir.
Q. Did you use voting lists or city directories or tele
phone books? A. We used the telephone books and city
- 1 8 -
directories as a method of checking names but not as a
source.
Q. What do you mean by that? A. The spelling of
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
names.
324
Q. And you used the telephone book and the city direc
tory? A. Yes, sir.
Q. Did you use the voting list? A. No, sir.
Q. Do you know how many Negroes’ names are in the
jury box in the Bessemer Division? A. No, sir.
Q. Do you know how many women are in the jury box
in the Bessemer Division? A. No, sir.
Q. Do you know how many Negroes are in the jury box
in the Birmingham Division? A. No, sir.
Q. Do you know how many women are in the jury box
in the Birmingham Division? A. No, sir.
Q. Do you know what the ratio in terms of percentages
of Negroes to white in the Bessemer Division of Jefferson
County? A. No, sir.
—19—
Q. Do you know what the percentage is in the Birming
ham Division of the county? A. No, sir.
Q. Did you or your staff consult any Negro ministers
about people who could serve on jury duty? A. I wrote
some letters to Negro leaders including Negro ministers
in an effort to solicit the most qualified Negro citizens as
jurors.
Q. Did you—where did you get your list from that you
refer to? A. Mostly from the telephone book, I believe.
Q. How did you know—how were you able to conclude
they were leaders or whatnot? A. The pastors of the
churches were designated as C.M.E. or A.M.E. and I had
a list of people from the preceding clerk.
Q. You used to some extent the same list you already
had? A. Yes, sir.
Q. Did you consult any Negro school teachers? A.
Yes, sir.
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
325
Q. Do you know who they were? A. There were several
Negro school principals, I believe, on that same list.
— 20—
Q. The same list that someone else had previously given
you? A. Yes, sir.
Q. Did you contact any Negro lawyers? A. No, sir.
Q. Did you contact any Negro physicians or dentists?
A. I don’t know.
Q. Did you contact any Negro union representatives or
union leaders? A. I don’t know.
Q. What did your letter contain that you sent to those
persons? A. The letter was simply a note to return to
us the names and addresses and occupation of members
of the Negro race who they considered to be qualified as
jurors.
Q. These letters you sent you asked them to return to
you the names of other Negroes? A. Yes, sir.
Q. You said that in your letter? A. Yes, sir.
Q. Did you also say somewhere near the end or the
— 21-
bottom of the letter to send only those names of persons
whom you would like to sit on a case involving your own
life or property? A. I think a similar statement was on
the bottom.
Q. Now, when you sent letters to white people, leaders
in the community, did you send them that kind of letter?
A. We didn’t have a list we sent to white leaders.
Q. You didn’t send any white people any letters? A.
No, sir.
Q. None whatsoever? A. No, sir.
Q. Mr. Whitley, as a matter of fact, you concentrated
your canvassing in the white neighborhoods and you re
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
326
lied on the leaders in the Negro neighborhoods to help
you get people for the box? A. No, sir, these letters
are used as a supplement to a canvass purely because we
realized we were getting less cooperation out of the col
ored communities than we were of the white.
Q. Do you mean when you knocked on a Negro’s door
he wouldn’t tell you who was in the house who was over
21 or between 21 and 65? A. We found that to be true
— 22—
on a great number of occasions.
Q. You are saying to us when you knock on a white
person’s door and identify yourself—you do do that, do
you not? A. Yes, sir.
Q. And you tell the white person, “I am Bill Whitley
with the Jefferson County Jury Board and we are in the
process of filing the jury box and will you please give me
the names of those persons in your household, male and
female, between the ages of 21 and 65” , that white people
would generally give you this information and you find
Negroes won’t? A. To some degree.
Q. To how much degree is that? A. Well, I don’t have
any record of that.
Q. Have you ever had white people not to give you the
information? A. Sometimes, yes.
Q. But you say there were a great number of Negroes
who refused to tell you the names? A. I didn’t use the
word great.
Q. But would you say there were a great number of
- 2 3 -
Negroes who wouldn’t give you that information? A. It
depends on what you mean by great.
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
327
Q. Okay, let’s narrow it down. In the Negro section of
Fairfield starting at, say, 52nd Street and going due south
to 67th Street, which comprises the biggest—the majority
of the Negroes who live in the City of Fairfield, in my
best judgment, knowing that area, there would be ap
proximately four thousand Negroes, and how many of
those four thousand refused to give you the names and
addresses of those people living in the house between
those ages? A. I wouldn’t have any estimate about that
except we have found a good number of them to be sus
picious even though we explained what we were doing.
Q. Have you ever considered using Negroes to ask for
that information in your canvass? A. Have we ever con
sidered using Negroes?
Q. Have you ever used any? A. No, sir, not that I
know of.
Q. And this is the second time you have participated in
filling the box? A. Yes, sir.
—24—
Q. Well, knowing that Negroes would be suspicious when
you came to the door, did you suggest to the Jury Com
mission you hire Negroes to help in the canvassing? A.
Did I suggest it? No, sir.
Q. And is it your opinion, Mr. Whitley, the reason they
were suspicious of you is because you were white? A.
I don’t know.
Q. You have any idea why they might be suspicious?
A. No, sir, I think the main reason is they didn’t under
stand what we were doing.
Q. You mean when you would tell them “I am Bill Whit
ley with the Jefferson County Jury Commission and we
are filling the jury box,” you didn’t think they understood
that at all? A. A great number of them would ask me
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
328
when I was going to send their jewelry. That indicated
to me they failed to understand.
Q. When you were going to do what? A. Send their
jewelry.
Q. You mean like a watch! A. Yes, sir.
—25—
Q. Did you tell them you are talking about twelve people
who sit in a box and decide a case or eighteen people
who might sit on a Grand Jury to return indictments,
did you explain that to them! A. Yes, sir.
Q. Then did they understand what you wanted? A.
Yes, sir, but our problem is that I don’t believe they actu
ally mean to lie but they will tell me there is no one
living at that address between 21 and 65, and from all
appearances there should be.
Q. Did you find that among the whites too? A. Not as
often.
Q. Do you think if in your canvassing you had had some
Negro helpers your job in this respect might have been
done easier? A. I don’t know.
Q. You have any opinion? A. I can’t say whether or
not it would help any.
Q. In other words, you figure you could get as much
information as the Negro worker knocking on his door?
You are a man of experience and you have worked with
Negroes and do you believe you could knock on a Negro’s
door and get as much information from him as I could?
—26—
Neither of us knowing them? A. In my opinion, probably
not in some cases.
Q. Do you have any recollection how many times this
happened when people told you there was nobody there
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
329
in the age bracket 21 to 65 when there was actually—
there were actually people living there in that age bracket ?
A. No, sir, we don’t have any way of checking.
Q. Did you fill out a form of any kind for each house
you knocked on the door? A. The only information we
put down is when the question is answered.
Q. In other words, what about the houses you went to
where nobody was at home? Do you have any record of
having visited houses where you could find nobody? I am
sure that happens sometimes? A. Mot a record of that,
no, sir.
Q. Did you fill out the answers you got from the per
sons and who the person was furnishing you the informa
tion? For instance, if you ask me how many people in my
house were in the age group, would you have my name
as the person giving you the information and the names
of the persons I gave you? A. You mean with the person
—27—
identified who gave the information?
Q. Yes. A. No, sir.
Q. If for instance you went to a house where no one
was at home, would that person ever be on the jury list?
A. It depends on whether they return the postcard that
we leave in the event nobody is at home.
Q. You leave a postcard and this would be the only
method you had of getting their names if they were not
home? A. Sometimes we ask the neighbors. We do take
information from neighbors if they know it.
Q. Do you do that in the Negro community if you don’t
get any answers or they are not at home, do you try
to get that from the next door neighbor? A. Yes, sir.
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
330
Q. Have you many times got that information from
another person in the block? A. Very seldom.
Q. Do you know of any reason why you can’t get that
information? A. No, sir.
—28—
Q. Do you explain to the Negro who you are and what
your job is all about? A. Yes, sir.
Q. Do you do it in the same manner you do the whites?
A. Identical manner.
Q. Do you know when women first started serving on
juries in the Bessemer Division? A. I assume it was to
day.
Q. I believe prior to taking this deposition we heard
they were actually serving for the first time today? A.
Yes, sir.
Q. Do you know if any women served on the Grand Jury
prior to today? A. Probably not.
Q. How did you canvass Mountain Brook? A. In the
same manner as all the rest.
Q. You knock on doors and go from door to door? A.
Yes, sir.
Q. If nobody was at home you left a postcard? A. Yes,
sir.
—29—
Q. Did you give them any special instructions in the
Mountain Brook area? A. No special instructions. You
mean the field agents?
Q. Yes. A. No, sir.
Q. You say you sent no letters to white folks? A. As
far as I know, I didn’t.
Plaintiffs’ Exhibit 19
Deposition of Bill R. Whitley
331
Q. So all the white persons whose names you got, you
got them through your canvassing! A. Yes, sir, we have
a few who volunteered but no great number.
Q. Now, do you have any idea how many names were
returned to you by the ministers and the school personnel
that you sent the letters to! A. They are in a file in
the office but I don’t remember at the present time.
Q. Do you know if you—what percentage of them re
plied! Did all of them or a few of them to whom you sent
the letters to reply! A. I don’t know.
Q. Do you have any idea how many letters you sent
—30—
to Negroes! A. Probably 75 or 80.
Q. Any recollection of how many were returned with
names on them! A. I would estimate less than ten. I
just don’t know how many.
Q. In the past I believe you have sent—your office has
sent letters to Negro lawyers. Any special reason you
didn’t do that this time? A. The Jury Board recon
sidered that policy simply because the lawyers are di
rectly connected with the jurors and might somehow be
considered as picking their own jurors.
Q. Now, did you send any letters to any white attorneys?
A. I don’t believe so.
Q. Have you ever had occasion where you ever recom
mended to the District Attorney to take any action
against persons who deliberately tided to avoid jury duty?
A. No, sir.
Q. Was there any reason why you didn’t use the voter
list as you did the telephone and city directory in com-
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
332
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
- 3 1 -
piling the list? A. We didn’t use as a source the tele
phone directory or city directory. Merely as a check.
Q. Why didn’t you use the voter list for that same
reason? A. The voter list, as I understand, would not
be as up-to-date as a house-to-house canvass.
Q. But the checking, why didn’t you use it as you did
the city directory and telephone book? A. I see what you
mean. I didn’t think about it.
Q. And nobody in your office suggested it to you? A.
Nobody ever has.
Q. Mr. Whitley, during the entire period of time you
were canvassing which I believe you said started back in
July of last year, how much time actually did you spend
canvassing as such? A. I can give you the approximate
date the canvass was completed.
Q. All right. A. Around the first week in March.
Q. That would have been the first week of March, 1967 ?
A. Yes, sir.
Q. Now, then, from July to the first week in March,
—32—
1967, were you constantly canvassing? A. Yes, sir.
Q. Did you canvass everyday? A. Every possible day,
yes, sir.
Q. That would be five days a week? A. Yes, sir.
Q. And you went in every precinct and beat in the
county? A. So far as I know, yes, sir.
Q. How many hours a day would you spend canvassing?
A. Normally we began canvassing about nine a.m. and
continued until four or four-thirty.
Q. What about rainy days or inclement weather? A.
We stayed in the office.
333
Q. Do you have any notes or memoranda while you w'ere
doing the canvassing that you now have? A. Written
notes, no, sir.
Q. Would the names and addresses be made available
to us of those persons who did the canvassing? A. Yes,
sir.
Q. Do you have any record of those persons who were
rejected for jury service? A. No, sir.
—33—
Q. Now, who was manager of the office when you were
out canvassing? A. Mr. Herron, the Senior Clerk in the
office is in charge when I am out.
Q. Did you sometimes let Mr. Herron go out and you
stay in the office and take care of your duties? A. Once
in a while. Usually when I was sick or something like
that.
Q. How did you go about employing the extra persons
who assisted you in the canvass? A. They are submitted
to us by the Civil Service rules and regulations.
Q. Could you choose any persons you wanted from the
list submitted by the Civil Service? A. Yes, sir.
Q. Did they have any special qualifications for these
persons or did you make any requests for any? A. They
would naturally have to be physically well to stand up to
the canvassing. That is about all.
Q. Did you request, Mr. Whitley, some of the same
people who previously worked with you before? A. Yes,
sir.
Q. Were they also on the list submitted to you by the
—3 4 -
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
Personnel Board? A. Yes, sir.
334
Mr. Newton: I believe that’s all.
Mr. Britton: We have no questions.
Mr. Newton: Just one other question.
I believe you said earlier you didn’t canvass each and
every house. Was there some special reason, you didn’t
have time or what? A. That was largely the reason and
the box wasn’t big enough to hold all of them.
Mr. Newton: I believe that’s all.
Plaintiffs’ Exhibit 19
Deposition of Bill B. Whitley
F u r t h e r D e p o n e n t S a i t h N o t .
CERTIFICATION
- 3 5 -
S t a t e o f A l a b a m a
J e f f e r s o n C o u n t y
I, Ray C. Wester, Court Reporter of Birmingham, Ala
bama, do hereby certify that I reported in shorthand the
foregoing deposition of Mr. Bill R. Whitley at the time
and place stated in the caption hereof; that said witness
was first duly sworn to speak the truth, the whole truth,
and nothing but the truth; that I later reduced my short
hand notes to typewriting, or under my supervision, and
the foregoing pages, numbered four through 34, both in
clusive, contain a full, true and correct transcript of the
testimony of said witness on said occasion.
I further certify that I am neither of counsel nor of
counsel to any parties to said cause, nor in any manner
interested in the result thereof.
C o u r t R e p o r t e r .
335
Plaintiffs Exhibit 20
(Deposition o f John C. W ilson)
—1—
IN THE UNITED STATES DISTRICT COURT
F o b t h e N o r t h e r n D i s t r i c t o p A l a b a m a
S o u t h e r n D i v i s i o n
No. CA 66 92
A r t h u r J . J o n e s , et cetera, et al.,
—vs.—
Plaintiffs,
J o h n C. W i l s o n , J r ., et cetera, et al.,
Defendants.
S t i p u l a t i o n
It i s s t i p u l a t e d a n d a g r e e d by and between the parties
through their respective counsel that the deposition of
John C. Wilson, Jr., may be taken before Carmen Zegarelli,
Commission, at the Federal Building, Birmingham, Ala
bama, on the 5th day of May, 1966.
It i s f u r t h e r s t i p u l a t e d a n d a g r e e d that the reading
of and signature to the deposition by the witness is waived,
said deposition to have the same force and effect as if
full compliance had been had with all laws and rules of
court relating to the taking of depositions.
It i s f u r t h e r s t i p u l a t e d a n d a g r e e d that it shall not be
necessary for any objections to be made by counsel to
—2—
any questions, except as to form or leading questions,
336
and that counsel for the parties may make objections and
assign grounds at the time of trial or at the time said depo
sition is offered in evidence or prior thereto.
It i s f u r t h e r s t i p u l a t e d a n d a g r e e d that notice of filing
of the deposition by the Commissioner is waived.
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
—3—
337
IN THE UNITED STATES DISTRICT COURT
F oe t h e N o r t h e r n D i s t r i c t o f A l a b a m a
S o u t h e r n D i v i s i o n
No. CA 66 92
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
A r t h u r J . J o n e s , et cetera,
— -VS.'—
Plaintiff,
J o h n C. W i l s o n , Jr., et cetera,
Defendant.
Birmingham, Alabama
May 5, 1966
B e f o r e :
C a r m e n Z e g a r e l l i , Commissioner
A p p e a r a n c e s :
Mr. N o r m a n C. A m a k e r , 10 Columbus Circle, New York,
New York; and M r . D e m e t r i u s C. N e w t o n , Masonic Build
ing, Birmingham, Alabama, appearing for the Plaintiffs.
M r . TiF.RT.TF. H a l l , Assistant Attorney General, State of
Alabama, Montgomery, Alabama, and M r . H u g h B. H a r r i s ,
J r ., Assistant District Attorney, Bessemer, Alabama, ap
pearing on behalf of the Defendants.
—4—
I, Carmen Zegarelli, Official Court Reporter and Notary
Public, State of Alabama at Large, acting as Commis
sioner, certify that on this date as provided by the Fed
eral Rules of Civil Procedure of the United States Dis
338
trict Court and the foregoing stipulation of counsel, there
came before me at the Federal Building, Birmingham, Ala
bama, beginning at 2 :20 p.m., John C. Wilson, Jr. witness
in the above cause for oral examination, whereupon the
following proceedings were had and done:
John C. W ilson, Jr., being duly sworn, was examined
and testified as follows:
Examination by Mr. Amaker:
Q. Will you please state your full name? A. John C.
Wilson, Jr.
Q. And, Mr. Wilson, what is your address, sir? A. 420
South 18th Street, Bessemer.
Q. Have you lived in Bessemer for—for what length
of time have you lived in Bessemer? A. Since 1923.
Q. I see.
And how old are you, sir? A. 71.
—5—
Q. What is your present occupation? A. I am Presi
dent of the Jefferson County Jury Board.
Q. Are you an elected official? A. Appointed.
Q. What other appointment do you have? A. None.
Q. Are you retired? A. Retired.
Q. How long have you been President of the Jury Board?
A. President?
Q. Yes. A. Just been President since January of this
year.
Q. Since January of 1966? A. Yes, sir.
Q. How many total years have you been on the Jury
board? A. Started in January, 1964.
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
339
Q. Let me ask you if we have correctly named the other
members of the present jury board, Mr. Walter E. Palmer,
is he Vice-President of the Jury Board? A. Bight.
—6—
Q. Can you tell me how long he has been associated
with the Board? A. No, I don’t know.
Q. Was he there before? A. He was there when I was
appointed.
Q. Mr. George W. Clayton? A. He is an associate.
Q. And do you know how long he has been on the Board?
A. No. He was there when I came.
Q. He was? A. Yes, sir.
Q. But we have the names correctly? A. Yes.
Q. Just the three of you constitute the Board? A.
That’s right.
Q. How were you selected to be a member of the jury
board? A. I was appointed by the Governor.
Q. Appointed by Governor Wallace? A. Bight.
Q. Tell me how often the Board meets? A. Once a
month.
—7—
Q. Once each month? A. Once each month, the first
Friday in each month.
Q. The first Friday in each month? A. Yes, sir.
Q. Now, can you tell me what business is transacted
at the monthly meeting of the Board? A. It is just
routine business meeting and if any instructions are to
be given to Mr. Whitley and the operation of the office
and things like that.
Q. Does Mr. Whitley meet with the Board? A. He
meets with the Board.
Q. I see.
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
342
Do you make any suggestions to Mr. Whitley with re
spect to what source of names he should use? A. No.
Just to follow the law is all we require him to do.
— 11—
Q. In other words, you just generally meet each month
to just kind of supervise and see that the work is going
along? A. Eight.
Q. Now, Mr. McAdory, the Deputy Clerk of the Besse
mer Division stated that the jury venire lists are turned
over to the Board after he finishes with them? A. That’s
right.
Q. Now, what happens to those lists when they get back
to the Board? A. Mr. Whitley keeps them on file.
Q. Keeps them on file? A. That’s right.
Q. Do you know how far back they go? A. No. I don’t
know how far back. I just know they go back at least two
years. I don’t know how far he carries them or how far
back he keeps them.
Q. Now, do you know—you say you lived in Bessemer
all your life? A. Since 1923, a matter of forty years and
over.
Q. Are you familiar with Precinct 53? A. 53?
Q. Yes. A. Not much, no.
— 12—
Q. Do you have any familiarity with Precinct 33? A.
I know a good bit about Bessemer.
Q. All right.
Now, will you tell me whether people living in that
area are predominately Negro? A. I wouldn’t say pre
dominately.
Q. About how many would you say in percentages? A.
I wouldn’t estimate anything like that, I don’t know. I
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
343
can’t say anything about the percentages on that, because
I don’t know.
Q. All right.
Are you familiar with Precinct 9? A. I know very little
about number 9.
Just know it is part of it, that is in the Jefferson County
Cut-off.
Q. What precinct do you live in? A. 33.
Q. You live in 33? A. Yes.
Q. Do you know many Negroes who live in Precinct 33?
A. No.
Q. Could you give me an idea of about how many you
—1 3 -
know? A. How many colored people I know in Bessemer?
Q. Yes. A. I would say those over fifty years old, I
know at least fifty percent of them.
Q. And those under fifty, about how many? A. I don’t
know. I haven’t been in contact with too many of those,
I know a few.
Q. But those over fifty, you say you know about fifty
percent of them by sight? A. Because I was with the
Central Foundry Company with them about thirty years,
and Pullman Standard Company about seventeen years,
and came in contact with a good many colored people.
I know a lot of them personally.
Q. Do you get any materials from the court other than
the venire list? A. No.
Q. After the juries have—after the venires have been
drawn and the jury has been empaneled, does the Board
get any other material? A. Not until we are ready to fill
another box. We get a jury box with the balance of the
names left in.
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
344
Q. You get the box back from the court with the bal-
—14—
ance of names? A. That’s right.
Q. You get that about every two years? A. That’s
right.
Q. Now, of course, the members of the board see the
jury box before it goes to the Clerk of the Circuit Court?
A. Well, we fill it and lock it.
Q. You fill it? A. That’s right.
Q. And what members of the Board have keys to the
jury boxes? A. Just the President only.
Q. You are the only one? A. That’s right.
Q. And you keep the key with you in your office? A.
I have it in a safe place in my home.
Q. O.K.
Who keeps the key to the box in the Bessemer Division?
A. I think Mr.—I don’t know whether Judge Goodwin or
Mr. McAdory keeps that key.
Q. No member of the Board has a key? A. No.
—15—
Q. Do you have a key? A. I have a key to both boxes.
Q. You have a key to both boxes? A. That’s right.
Q. And you are the only member that has a key to both
boxes? A. Yes, I am the only member.
Q. Can you state anything with reference to—you have
been on the Jury Board since 1964, I believe? A. That’s
right.
Q. How many boxes have been filled during that period
of time? A. Just one.
Q. Just one? A. That’s right.
Q. That was filled when? A. Last August.
Q. August, 1965? A. Yes.
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
345
Plaintiff’s Exhibit 20
Deposition of John C. Wilson
Q. Do you know how many names were in that box?
A. I can give them to you.
In the Bessemer Box, 9,546.
Q. 9,546 names? A. Yes, sir.
—16—
Q. Now, of those 9,546, do you have any judgment as
to the amount of Negro names that were in that box? A.
No, not at all.
Q. Who was the previous President of the Jury Board?
A. Mr. Palmer.
Q. Mr. Palmer? A. No.
The previous President?
Q. Previous to you? A. That was Mr. Clayton.
Q. Mr. Clayton? A. That’s right.
Mr. Amaker: Mr. Wilson, I think that’s all the
information I need.
Mr. Hall: We have no questions.
Will you waive your signature to the deposition?
The Witness: Yes, sir.
Mr. Hall: All right, sir.
F ubtheb d e p o n e n t s a i t h n o t
346
Plaintiffs’ Exhibit 20
— 17—
CEBTIFICATE
State of Alabama
Jefferson County
I, Carmen Zegarelli, Official Court Beporter, hereby cer
tify that I correctly reported in shorthand the foregoing
deposition at the time and place stated in the Caption
hereof; that I later reduced my shorthand notes into type
writing, or under my supervision; that the foregoing
pages numbered four through sixteen, both inclusive, con
tain a full, true and correct transcript of proceedings had
in said cause.
I further certify that I am neither of counsel nor kin
to the parties to the cause, nor in any manner interested
in the results thereof.
/ s / Carmen Zegarelli
Commissioner—Notary Public
347
IN THE u n i t e d s t a t e s d i s t r i c t c o u r t
Notice of Appeal
F oe the Northern Distbict of A labama
Southern Division
Civil Action No. 66-92
A rthur J. J ones, et al.,
—v.—
Plaintiffs,
John C. W ilson, Jr., et al.,
Defendants.
Notice is hereby given that Rev. J. A. Salary, one of
the plaintiffs herein, hereby appeals to the United States
Court of Appeals for the Fifth Circuit from an order of
said United States District Court denying plaintiffs the
relief sought in the above styled matter. Said order from
the District Court was dated February 6, 1968.
Dated: February 8, 1968
Demetrius C. Newton
408 North 17th Street
Birmingham, Alabama 35203
348
I certify that I have mailed a copy of the foregoing
Notice of Appeal to the Honorable Louis Wilkinson,
Deputy District Attorney at his office at the Jefferson
County Courthouse, Birmingham, Alabama 35203 and the
Honorable Leslie Hall, Assistant Attorney General at his
office in the State Office Building, Montgomery, Alabama
by United States mail postage prepaid this 8th day of
February, 1968.
Certificate of Service
Demeteius C. Newton
Attorney for Plaintiffs
349
Clerk’s Certificate
United States of A merica
Northern District op A labama
I, W illiam E. Davis, Clerk of the United States Dis
trict Court for the Northern District of Alabama do hereby
certify that the foregoing pages numbered from one (1)
to ninety-one (91), both inclusive, comprise the original
pleadings in this action and are herewith attached as a
full, true and correct transcript of the record on appeal
in the Matter of Rev. J. A. Salary, Appellant, vs. John
C. W ilson, Jr., et al., Appellees, Civil Action 66-92,
Southern Division, as fully as the same appears of record
and on file in my office.
In w i t n e s s w h e r e o f , I have hereunto sub-
[ s e a l ] scribed my name and affixed the seal of said
Court at Birmingham, Alabama, in said Dis
trict, on this the 8th day of March, 1968.
W illiam E. Davis, Clerk
United States District Court
350
Comes now appellant, Rev. J. A. Salary, and through
his undersigned attorneys, herewith designates the fol
lowing portions only of the record on appeal to be printed:
1. Amended Complaint (filed—April 1, 1966)
2. Amended Motion for Preliminary Injunction (filed
—April 1, 1966)
3. Order of court denying motions to dismiss (filed—
May 16, 1966)
4. Answer of John C. Wilson, Jr., Walter E. Palmer,
George W. Clayton and Bill R. Whitley to Amended Com
plaint (filed—May 16, 1966)
5. Order of court granting plaintiffs’ motion to produce
(filed—July 6, 1966)
6. Plaintiffs’ Request for Admission of Facts (filed—
June 2, 1967)
7. Defendants’ Response to Request for Admission of
Facts (filed—June 9, 1967)
8. Order of court granting plaintiffs’ motion to produce
(filed —June 22, 1967)
9. Stipulation between plaintiffs and defendants (filed
—January 16, 1968)
10. Notice of Taking of Deposition of John S. deCani
upon Written Interrogatories with Interrogatories to John
S. deCani attached (filed—January 2, 1968)
Designation of Contents of Printed Record on Appeal
351
11. Notice of Motion for Protective Order, etc., with
Objections to Proposed Interrogatories attached (filed—
January 9, 1968)
12. Deposition on Written Interrogatories of Dr. John
S. deCani (filed—January 12, 1968)
13. Plaintiffs’ Pre-trial Memorandum, etc. (filed—Jan
uary 16, 1968)
14. Judgment (filed—January 16, 1968)
15. Findings of Fact, Conclusions of Law and Memo
randum Opinion (filed—February 6, 1968)
16. Final Judgment and Decree (filed—February 6,
1968)
17. Transcript of hearing of January 16, 1968 (filed—
March 4, 1968) (omit pp. 31-37, line 1)
18. Deposition of Ruth P. Cummings (Plaintiffs’ Ex
hibit 8—filed January 16, 1968)
19. Deposition of Betty Jo Harbison (Plaintiffs’ Ex
hibit 9—filed January 16, 1968)
20. Deposition of Patsy Ann Jolly (Plaintiffs’ Exhibit
12—filed January 16, 1968)
21. Deposition of Joy Ann Lance (Plaintiffs’ Exhibit 13
'—filed January 16, 1968)
22. Deposition of Elmore McAdory (Plaintiffs’ Exhibit
16—filed August 5, 1966)
23. Deposition of Bill R. Whitley taken May 5, 1966
(Plaintiffs’ Exhibit 18—filed August 5, 1966) (Omit pp.
28-32 as indicated)
Designation of Contents of Printed Record on Appeal
352
24. Deposition of Bill B. Whitley taken June 5, 1967
(Plaintiffs’ Exhibit 19—tiled ......................... , 1967) (Omit
pp. 7-10, line 21)
25. Deposition of John C. Wilson taken May 5, 1966
(Plaintiffs’ Exhibit 20—filed August 5, 1966)
26. Notice of Appeal (filed February 8, 1968)
27. This designation
N orman C. A maker
J ack Greenberg
10 Columbus Circle
New York, New York 10019
D emetrius C. N ewton
408 North 17th Street
Birmingham, Alabama 35203
Attorneys for Appellant
Designation of Contents of Printed Record on Appeal
Certificate of S ervice
This is to certify that on this 13th day of May, 1968, I
served a copy of the foregoing Designation of Contents
of Printed Becord on Appeal on Leslie Hall, Esq., Assistant
Attorney General, Administrative Building, Montgomery,
Alabama, and Louis Wilkerson, Esq., Assistant District
Attorney, Tenth Judicial Circuit of Alabama, Birmingham,
Alabama, attorneys for appellees, by United States Mail,
airmail, postage prepaid.
Attorney for Appellant
MEIIEN PRESS INC. — N. Y. C .= ^ p » 2 1 9