Jackson v. United States Brief for Appellants

    I n  THE

•Untteii States ©ourl of Appeals
F or the F ifth Circuit

No. 21,345

E lza Leslye J ackson, R obert T homas, S amuel B. W ells, 
Slater H unter K ing, and T homas C. Chatmon,

Appellants,

U nited S tates of A merica,
Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

, J ack Greenberg

Constance B aker Motley 
10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell

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

C. B. K ing

211 South Jackson Street 
Albany, Georgia

Attorneys for Appellants
D orothy K enyon 
F rank H. H effron 

Of Counsel



-31121—2 Pr oofs—1M0-G4
I n the

TUnxttb Stairs dnurt of Appeals
F ob the F ifth, Circuit 

No. 21,345

E lza Leslte J ackson, Robert T homas, S amuel B. W ells, 
S later H unter K ino, and T homas C. Chatmon,

— y . —

Appellants,

U nited S tates of A merica,
Appellee.

appeals from the united states district cou&t

FOR THE MIDDLE DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

Statement

The appellants in these five cases were indicted and con­
victed for violation of 18 U. S. C. §1621, the perjury statute. 
The cases arose from testimony given by the appellants 
before the grand jury of the United States District Court 
for the Middle District of Georgia on August 5, 1963 con­
cerning an alleged meeting in the office of Attorney C. B. 
King in Albany, Georgia, on July 30, 1963. Appellants 
Thomas and Wells were charged with having testified 
falsely that they did not attend the meeting (R. 404, 561). 
Appellants Jackson and Slater King were charged with 
having testified falsely that they did not recall attending 
the meeting (R. 1, 824). Appellant Chatmon was charged



2

in two counts, for having testified falsely that he did not 
recall attending and that he did not attend (1097).

The appellants were indicted August 9, 1963. All pleaded 
not guilty September 30, 1963 (R. 2, 405, 562, 825, 1099). 
On the same day identical motions to dismiss were filed 
in all cases alleging inter alia that the

. . . indictment was found by a Grand Jury whose 
members were selected on a basis which violated the 
due process clause of the Fifth Amendment of the 
Constitution of the United States, and Section 1863 
of Title 28 United States Code in that race was a 
factor used in the selection of the members of the 
Grand Jury.

Hearing on this portion of the motions to dismiss was 
held in the Macon Division on October 17, 1963 (R. 217) 
before Judge Bootle. It was stipulated that certain testi­
mony given at a similar hearing before Judge Elliott of 
the District Court for the Middle District of Georgia 
in the case of United States v. William G. Anderson, Crim­
inal No. 2222, Albany Division, on October 3, 1963, would 
be adopted as a part of the record in these five cases (R. 
219-20). This testimony is printed in the record at pages 
99-182. A stipulation concerning participation of Negroes 
on state court juries in counties comprising the Macon 
Division (R. 71), which had been entered in the Anderson 
case on October 3, 1964 was made a part of the record 
in these five cases (R. 221-22), as was a similar stipula­
tion of October 17, 1963 (R. 85) prepared specifically for 
these cases (R. 221-22). At the hearing before Judge 
Bootle, reference was also made to the government’s re­
sponse to the motion to quash in the Anderson case (R. 
2 2 3 - 2 4 response and^ accompanying exhibits are 
printed infra as Aft Appendix to this brief. Judicial notice

A  *



3

was taken of the 1960 United States Census figures relating 
to adults of both races in the counties comprising the Macon 
Division (R. 224).

The motions to dismiss \tare denied October 22, 1963 (R. 
64). On November 18, 1963, the five defendants filed a mo­
tion to quash the petit jury panel on the ground that 
Negroes were systematically excluded from jury service 
in violation of constitutional and statutory rights (R. 257). 
The motion was overruled in open court on the same day 
(R. 1112).

Each case was tried separately before a jury. At the 
close of the government’s evidence in each case, the de­
fense moved for an acquittal on the ground that the evi­
dence was insufficient to sustain a guilty verdict (R. 348, 
490, 713, 974, 1317). Each motion was overruled (R. 349, 
490, 728, 976, 1317). In each case the jury rendered a ver­
dict of guilty (R. 2, 405, 562, 825,1100), and in the Chatmon 
case on both counts (R. 1100). On December 23, 1963, 
appellants King (R. 1088) and Wells (R. 814) were sen­
tenced to imprisonment for a year and a day; appellants 
Thomas (R. 547) and Chatmon (R. 1446) were given sus­
pended sentences, with five years probation. On February 
28, 1964, appellant Jackson was given a suspended sen­
tence, with three years probation (R. 391). Notice of 
appeal was filed on the same day as judgment and sen­
tence in all five cases (R. 393, 554, 820, 1093, 1451).

The facts in these cases are closely related, but because 
there were significant variations in the evidence at the five 
trials, detailed discussion will await analysis of the evi­
dence in the Argument. Only the background is supplied 
here.

-— July and August^the Grand Jury of the United 
States D istncr^m rrrT orthe Middle District of Georgia



4

was investigating the activities of the Albany Movement, 
a well known civil rights organization, with respect to the 
picketing of Carl Smith’s} store in Albany. Smith had been 
a member of a jury which decided a case adversely to a 
Negro. The grand jury was investigating the possibility 
that the picketing constituted an obstruction of justice un­
der 18 U. S. C. §1503 (R. 475). Several persons associated 
with the Albany Movement were subpoenaed to appear be­
fore the grand jury on July 31, 1963. The five appellants 
were among these persons.

On July 30, 1963, a number of those who had been sub­
poenaed appeared at various times in the office of Attorney 
C. B. King between 4:00 and 6:30 p.m. Attorney King’s 
law clerk, Miss Elizabeth Holtzman, gave a talk on federal 
grand juries, and some discussion of the subject followed. 
On August 5, 1963, the appellants appeared before the 
grand jury and were asked, with varying degrees of 
specificity, about their participation in this gathering. 
These indictments followed.

The facts regarding jury selection, brought out at the 
hearing of October 17, 1963, are as follows:

The Macon Division of the Middle District of Georgia 
covers 18 counties with an adult population in 1960 of 
211,306, of whom 73,014 or 34.5 per cent were Negro (App. 
2a, App. B). The federal jury list, from which all grand 
and petit jurors are taken (R. 108), contains 1,985 names, 
including only 117 Negroes, or 5.8 per cent (R. 223, App. 
2a).1 This list was compiled in 1959 and has not been 
revised significantly since then (R. 111). On the previous 
federal jury list, there were 1,837 names including 137 
Negroes, or 7.45 per cent at a time when Negroes repre-

1 Of the 1,985 persons on the jury list, the race of only 5 is 
unknown (App. 16a).



5

scnted approximately 38 per cent of the population.2 In 
1940, 45.1 per cent of the population of the Division was 
Negro, but only 3.21 per cent of those on the federal jury 
list were Negroes.3

The federal figures correspond closely to those of iurg- 
lists of state courts in the same -eightee^counties. Among 
the 13 counties for which complete figures are available, 
there are 3,889 persons on grand jury lists, including only 
57 Negroes or 1.5 per cent (R. 96). In 11 counties no 
Negro ever served on a grand jury (R. 87). In the 10 
counties from which figures were obtained, there '^©rjp'^103 
persons on the traverse jury lists, but only 182 Negroes, 
or 2.56 per cent (R. 94-95).

Q j^

The 1959 federal jury list was compiled by Mr. John P. 
Cowart, Clerk of the Middle District, Mr. Walter Doyle, 
Deputy Clerk, and Mr. William P. Simmons, Jury Commis­
sioner, all of whom are white. The starting point was the 
1952 federal jury list (R. 112), which had been revised 
only in 1957 to add some women’s names (R. 111). On the 
1952 list, red c’s appeared after the names of some Negroes 
(R. 112). The 1959 revision was accomplished in the same 
manner as previous revisions. Mr. Doyle went into each 
county with a copy of the 1952 list and checked with local 
court officials on the status of jurors on that list (R. 109, 
141-142). Those who were no longer eligible for jury ser­
vice because of death, disability, change of residence or

2 Brief for Appellant, Rabinowitz v. United States, Fifth Cir­
cuit, No. 21,256, 1964, citing pp. 93a, 289a of the record. This 
Court may take judicial notice of its own records. Lunsford v. 
Comm’r of Internal Revenue, 212 F. 2d 878, 881 (5th Cir. 1954); 
Tucker v. National Linen Service Corp., 200 F. 2d 858 (5th Cir. 
1953), cert, denied, 346 U. S. 817; Ellis v. Cates, 178 F. 2d 791 
(4th Cir. 1949), cert, denied, 339 U. S. 964. The Rabinowitz case 
was heard in the same district court as these cases (R. 223).

3 Brief for Appellant, Rabinowitz v. United States, Fifth Cir­
cuit, No. 21,256, 1964, citing p. 94a of the record.



6

some other reason were crossed off (R. 139). Mr. Doyle 
also sought new names from county officials and the records 
shown to him (R. 142). Independently, Mr. Cowart and 
Mr. Simmons sought new names from various sources. 
Questionnaires were sent to all persons whose names had 
been obtained by these three men (R. 130, 160). Each new 
person’s qualifications were checked according to his an­
swers on the questionnaire, and those found qualified were 
added to the remaining names on the previous list (R. 134, 
174). The questionnaire .jPreparBiijith the aid o f  Judge 
Bootle (R. 134), asked tne race of each prospective" juror 
(R. 115, App. 8a).

Mr. Doyle, the only official who systematically travelled 
from county to county, customarily spoke with persons “in 
the Clerk’s office, the Sheriff’s office, the Ordinary’s office, 
the tax office, any group I could find” (R. 141), in his search 
for new jurors. The local clerk “in ’most every case” would 
go through the local jury list with Mr. Doyle (R. 142). 
In at least 17 of the counties, the lists of property owners 
in the Tax Receivers’ offices are either segregated by race 
or contain c’s after the name of Negroes (R. 91-92). Mr. 
Doyle also spoke to businessmen and “ladies who work in 
offices” in the counties (R. 145). He claimed that he made 
“a particular effort” to obtain Negro names as well as white 
(R. 144), but when asked to “explain in detail how you have 
gone about getting these Negro names for the jury list,” 
Mr. Doyle failed to mention that he had spoken to a single 
Negro (R. 144-45).

Mr. Cowart stated that the state court jury lists were 
basic sources of new names for the federal list (R. 108). 
He added names by asking people he knew (R. 110), but 
“other than my own friends, I didn’t make any contacts 
out of [Bibb] County. I sent Mr. Doyle to make those 
contacts” (R. 110). Mr. Cowart could not remember the



7

name of the only Negro from who he had ever sought names 
of prospective jurors outside of Bibb County (R. I l l ,  120). 
He did list five Negroes from whom he asked names in 
Bibb County, all of whom he knew in a business capacity 
(R. 121-22). He also claimed that he had white friends in 
other counties who supplied him by mail and telephone with 
the names of both whites and Negroes (R. 131, 134-135). 
When asked why it was that most of his sources were 
connected with the legal profession, Mr. Cowart said, “I 
know more people amongst that walk of life than I do 
amongst the Negro race and so that’s where I have to get 
my information” (R. 135).

Mr. Simmons, the Jury Commissioner, also added names 
which he received from his acquaintances (R. 157). He said:

I inquired, naturally, of people that I knew and 
whose reputation I knew. So quite undoubtedly I was 
confining myself to people whose integrity and char­
acter I respected and whose judgment I would have 
respect for. They were people mostly whose paths 
I happened to cross occasionally in a business way . . . 
including civic work and various things of that sort.

* # • • •
. . . my contacts were heavier, of course, with the 

white race because my association was greater with 
that particular group, but there certainly was no effort 
to concentrate exclusively on any one segment of the 
population (R. 158).

Mr. Simmons claimed that he asked both whites and Negroes 
for the names of persons of both races (R. 158), but he did 
not mention by name any Negro to whom he had spoken 
on this matter. Mr. Simmons set very high standards of 
reputation, integrity, and intellect for prospective jurors 
(R. 157, 158, 159, 161, 166, 172, 173). “We wanted an out-



8

standing blue ribbon jury list . . . ” (R. 173). When asked 
if he had spoken with any Negroes in Hancock (R. 166-67), 
Peach (R. 167-68), Crawford (R. 171), Twiggs (R. 170) 
or Jasper (R. 171) Counties, all having a high proportion - 
of Negroes, Mr. Simmons stated that he had not. “Unfortu­
nate as it may be, I think the Negro community in those 
counties does not qualify on the grounds that we set up, 
of intelligence, integrity and ability to serve on those 
grounds alone” (emphasis added) (R. 177).

Five Negroes served on the grand jury of 23 which 
indicted the appellants (R. 144). Mr. Doyle could recall 
no other grand jury since 1937 which included as many 
as 5 Negroes (R. 147). The testimony concerning service 
of Negroes on petit juries in the Macon Division was not 
definite. Mr. Cowart stated that he had seen at least one 
Negro on almost every jury that he had observed (R. 104), 
but he could recall only two specific instances since the 
1930’s (R. 107). In these jgt^'cases, ail Negroes^ were chafT""”"̂ 
lenged by the government, and appellants were tried by 5 
all white petit juries (R. 418).

dismiss the indictments and the motion to quash the petit 
jury panel on the ground that Negroes were systematically 

from jury service.

1 on the ground of insufficiency of the evide;

the Wells case, the district court erred in overruling 
is based on the attorney-client privilege.

Specifications of Error

1. The district court erred in denying the motions to

le district court erred in denying the motior



9

A R G U M E N T

' I.
The Grand Jury That Indicted These Five Negro Ap­

pellants and the Petit Juries That Found Them Guilty 
Were Drawn From a List Which Included Only a Token 
Number of Negroes and Was Compiled in a Manner In­
consistent With Due Process of Law and Other Rele­
vant Federal Standards.

Few principles of fundamental law have required judi­
cial application more often than the one controlling these 
cases—that systematic exclusion of Negroes from the grand 
or petit jury requires reversal of the conviction. See, e.g., 
Strauder v. West Virginia, 100 U. S. 303, Arnold v. North 
Carolina, 376 U. S. 773. Most of the cases have been de­
cided under the equal protection clause of the Fourteenth 
Amendment, which binds the states. These five cases come 
under the due process clause of the Fifth Amendment, 28 
U. S. C. §1863(c),4 and rules laid down by the Supreme 
Court governing the selection of juries in federal courts.

A. Constitutional Standards of Jury Selection Have Been  
Violated, Resulting in Only Token Inclusion of Negroes.

Appellants’ case begins with the wide disparity between 
Negro representation in the population of the 18 counties 
in the Macon Division and the token numbers of Negroes 
on the federal jury list. Negroes constitute 34.55 per cent 
of the adult population but less than 6 per cent of those on 
the jury list. In Speller v. Allen, 334 U. S. 443, where 38 
per cent of the population but only 7 per cent of those on

4 28 U. S. C. §1863 (c) provides, “No citizen shall be excluded 
from service as grand or petit juror in any court of the United 
States on account of race or color.”



10

the jury list were Negroes, the Supreme Court required an 
explanation by those who denied discriminating, and the 
Court affirmed only because a nondiscriminatory method of 
selecting jurors was shown to have been followed.

Even more shocking than the statistics, however, is the 
evidence on the methods used by the federal officials in the 
Macon Division to select persons for the jury list. One 
vice of the system sufficient to require reversal under 
Cassell v. Texas, 339 U. S. 282; Hill v. Texas, 316 U. S. 
400; and United States ex rel. Seals v. Wiman, 304 F. 2d 
53 (5th Cir. 1962), cert, denied, 372 U. S. 924, is the reliance 
of the Clerk, Deputy Clerk and Jury Commissioner on the 
recommendations of their white friends. Although these 
officials were responsible for finding eligible jurors in 
eighteen counties, none of them sought names from any 
Negroes, with one possible exception (R. I l l ) ,  in any of 
the ■ggwntean^counties outside of Bibb County. Surely, 
their claims that they always asked their white sources for 
Negro names as well as white names fall far short of ex­
cusing their dereliction of duty in not developing sys­
tematic methods of gathering the names of Negroes as 
well as whites. This Court is aware of conditions in segre­
gated, Deep South communities, see Whitus v. Balkcom, 
■333 F. 2d 496_X5th Cir._19^4); United States ex rel. Goldsby 
v. Harpole, 263 F. 2d 7 r (5th Cir. 1959), cert, denied, 361 
U. S. 838; it cannot be presumed that a white jury com­
missioner’s white friends will provide a fair distribution 
of white and Negro jurors.

Another practice of the federal officials that operated 
with particularly discriminatory effect against Negroes 
was the use of state court jury rolls in the 18 counties. 
These rolls contained so few Negro names, approximately 
2 per cent (R. 86, 94-95), that their use was as unaccept­
able as the practice condemned in Seals of taking names



11

from membership lists of white organizations. In fact, the 
grand jury lists in 6 counties were totally barren of Negro 
names (R. 86), and some of these counties had the highest 

' percentages of Negroes in their population (App. B). These 
state court jury rolls were considered by Mr. Cowart to be 
a basic source of names for the jury roll (R. 108).

All of the sources used by the federal officials were seri­
ously weighted against the Negro. The 1952 federal list, 
which formed the basis for the 1959 revision, had only a 
minimal percentage of Negroes. The county officials with 
whom Mr. Doyle checked were white. The county jury rolls 
were almost completely restricted to white persons. Mr. 
Cowart’s friends in the outlying counties, whom he con­
tacted by mail and telephone, were white; the Negro ac­
quaintances whom he contacted in Bibb County included 
only a doorman, funeral director, tailor, and home demon­
stration agent. Mr. Simmons, relying on his reputable 
friends in all 18 counties, acknowledged that he had to rely 
on white persons to supply names. No wonder there was 
a disparity between Negro representation in the popula­
tion and the incidence of Negro names on the jury roll I

Appellants established the existence of a discriminatory 
selection system producing discriminatory results. There 
being no need to prove intentional discrimination, but only 
a system operating in a discriminatory manner, Hill v. 
Texas, 316 U. S. 400, Akins v. Texas, 325 U. S. 398, United 
States ex rel. Seals v. Wiman, 304 F. 2d 53 (5th Cir. 1962), 
appellants have carried their burden. But that does not 
complete their case, for this record offers uncontrovertible 
proof that the opportunity for discrimination was built 
into the jury system.

No juror is placed on the list until he has submitted a 
questionnaire containing a space for designation of race. 
This questionnaire was used in the 1959 revision, and the



12

questionnaires of all 1985 jurors on that list are presently 
on file in the clerk’s office (App. la). Only 5 failed to fill 
in the racial blank (R. 16a). This means that each pro­
spective juror’s race is known when his qualifications are 
being passed upon, and, further, that any juror’s race can 
be ascertained at any time. In Avery v. Georgia, 345 U. S. 
559, where pink and wffiite cards were used to differentiate 
Negro and white jurors, the Supreme Court reversed with­
out evidence that state officials availed themselves of this 
opportunity for discrimination. It was enough that the 
practice made “it easier for those to discriminate who 
[were] of a mind to discriminate.” 345 U. S. at 562.

Since the questionnaires cover all jurors, it is unneces­
sary to mention other racial markings, but their pervasive­
ness is revealing. Red c’s were found on the 1952 jury list. 
When confronted with this reality by defense counsel, Mr. 
Cowart explained that Negroes’ names were marked when 
they appeared in the courtroom and that he still followed 
the practice (R. 112). On cross-examination by friendlier 
government counsel, he expressed amazement at the mark­
ings and disclaimed any connection with them (R.> 124-25). 
It is also of some significance that state traverse jury rolls, 
which are used by Mr. Doyle to gather names, are required 
by Georgia law to be taken from tax lists, Ga. Code Ann. 
§59-106, which are kept on a segregated basis in at least 
17 counties in the Macon Division (R. 91-92). Under the 
recent decision in Hamm v. Virginia State Board of Elec­
tions, 230 F. Supp. 156 (E. D. Va. 1964), aff’d ----- U. S.
----- , 33 U. S. L. Week 3151 (October 26, 1964), the prac­
tice of keeping segregated tax and voting records violates 
the Fourteenth Amendment.

The appellants have established a prima facie case of 
discrimination, which the Government has not adequately 
rebutted. Its only evidence was the testimony of Jury



Commissioner Simmons, who stated that a smaller per­
centage of Negroes than whites were qualified for jury 
service (R. 176). From his reading of the newspapers and 
general knowledge he had concluded that there was in­
finitely more illiteracy amon£ the Negro group” (R. 174). 
Although he recited his educational credentials, member of 
the Bibb County Board of Education and the Governor s 
Committee on Efficiency and Economy and trustee of Wes­
leyan College (R. 175), Mr. Simmons offered no figures 
to support his generalized conclusions and acknowledge 
that he had made no serious study of the situation (R. 177). 
Moreover, his testimony is considerably weakened by the 
admission that he had not spoken with any Negroes con­
cerning jury service in many of the counties where the 
most Negroes resided (R. 166-72). He was satisfied that the 
“Negro community” did not qualify according to his stand­
ards (R. 172), which, incidentally, were considerably higher 
than the jury qualifications set forth in 28 U. S. C. §1861; 
he did not seem to be concerned about whether Negro indi­
viduals were qualified. Finally, in opposition to Mr. Sim­
mons’ vague statements was the testimony of Mr. William 
Randall, a contractor who knew many Negroes in the 18 
counties. He stated that many Negroes in those counties 
were qualified for jury service (R. 150-54).

Nor has the government justified the jury system in the 
Macon Division by showing that 5 Negroes were on the 
grand jury that indicted appellants (R. 144). A jury- 
system cannot be judged according to the racial composi­
tion of a single grand jury ; if it could, a Negro could claim 
discrimination whenever no Negroes were on his jury no 
matter how fairly the system was administered. The rele­
vant consideration is that only 5.89 per cent on the jury 
roll were Negroes as the result of a discriminatory selection 
process. In that situation the appearance of 5 Negroes on 
a grand jury of 23 could be expected to occur only very

13



14

rarely. In fact, Mr. Doyle, Deputy Clerk since 1937, could 
recall no previous instance in which there were 5 or more 
Negroes on a grand jury (R. 147). As this Court ruled in
Collins v. Walker, 329 F. 2d 100 (1924), cert, denied,-----
U. S. ----- , 33 U. S. L. Week 3169 (November 9, 1964),
the deliberate inclusion of Negroes is as discriminatory 
and invalid as systematic exclusion. See also Cassell v. 
Texas, 339 U. S. 282, 287.5

B. The Grand and Petit Juries W ere Not Selected in 
C onform ity W ith Standards of Procedural Fair­
ness A pplicable in Federal Courts.

This case, having been tried in a federal court, is gov­
erned by principles laid down by the Supreme Court in 
the exercise of its “power of supervision over the adminis­
tration of justice in the Federal courts.” Thiel v. Southern 
Pacific Co., 328 U. S. 217, 225. As Justice Jackson wrote 
in Fay v. New York, 332 U. S. 261, 287, “Over federal pro­
ceedings we may exert a supervisory power with greater 
freedom to reflect our notions of good policy than we may 
constitutionally exert over proceedings in state courts, 
and these expressions of policy are not necessarily em­
bodied in the concept of due process.”

Decisions of the Supreme Court have firmly established 
the principle that federal juries must be fairly drawn from 
a cross-section of the community. Thiel v. Southern Pacific 
Co., supra; Ballard v. United States, 329 U. S. 187; Glasser 
v. United States, 315 U. S. 60. There can be no exclusion 
of economic, social, religious, racial, political, or geo­
graphical groups. “Recognition must be given to the fact 
that those eligible for jury service are to be found in

v. Southern Pacific Co., 328 U. S. 217, a case tried in a 
federal court, held that the presence on the jury of 5 members 
of the working class could not defeat a challenge to the jury 
system orj thq ground that such persons were excluded.



every stratum of society.” Thiel v. Southern Pacific Co., 
328 U. S. at 220. The record in these f iw ^ se s  discloses 
a total disregard of this mandate. r* —----------

Jury Commissioner Simmpns insisted on finding jurors 
who met high standards of reputation, integrity, and in­
tellect (R. 157, 158, 159, 161, 166, 172, 173). “We wanted 
an outstanding blue ribbon jury list . . . ” (R. 173). These 
standards bear virtually no relation to the qualifications 
of federal jurors set out in 28 U. S. C. §1861, as amended 
by the Civil Rights Act of 1957. Mr. Simmons was under 
the impression that it was his duty to seek only the “best” 
jurors (R. 172). This is understandable in view of the 
fact that Georgia jurors must be “the most experienced, 
intelligent, and upright citizens,” Ga. Code Ann. §59-106, 
and before 1957 federal jurors had to meet state require­
ments.6 However, it does not excuse the Jury Commis­
sioner. It was his job to select jurors representing a cross- 
section of the community. By failing to do so he excluded 
Negroes and probably a great many white persons of the 
lower social, economic and intellectual groups. Whether 
this exclusion was intentionally discriminatory or the re­
sult of misplaced conscientiousness, the harm to the jury 
system is the same. Glasser v. United States, 315 U. S. at 
86; Dow v. Carnegie Illinois Steel Corp., 224 F. 2d 414, 
424 (3rd Cir. 1955).

15

6 Since the 1959 federal jury list included all persons on the 
1952 list who had not become disqualified (R. 134, 174), it is 
evident that the present (1959) federal list consists in large part 
of names chosen according to the Georgia law on jury qualifica­
tion law. None of the federal officials indicated any change in 
their selection procedure following 1957. It may be concluded, 
then, that the present federal jury list reflects no effort to obtain 
a crpss-section of the community.

•hfiOATE-



16

II.
In the King and Jackson Case? the Evidence Was In­

sufficient to Sustain a Guilty Verdict.

A. Appellant Slater King

The statements of appellant Slater King before the grand 
jury which are alleged to have been false are the following:

Q. Have you attended any mass meeting or meet­
ing where one or more people were in attendance, 
where it was being discussed about the fact that cer­
tain ones were going to have to appear before the- 
grand jury in Macon, Georgia? A. I don’t recall 
(R. 960).

* • * # •
Q. I would like to ask you if you have attended any 

type of meeting or any type of get together during the 
week of July 29, 1963 through August 2, 1963 wherein 
or wherein others discussed the fact that this grand 
jury was in session here in Macon, Georgia? A. I 
don’t recall doing so (R. 962).

In order to convict there must have been sufficient evi­
dence for the jury to conclude beyond a reasonable doubt 
that there was a meeting of persons in the office of C. B. 
King on July 30, 1963 who discussed testimony to be given 
before the grand jury; that Slater King was present at that 
meeting and at the time thought of himself as being in at­
tendance at and participating in the meeting; that while 
testifying before the grand jury Slater King remembered 
having attended the meeting and falsely testified that he 
did not recall attending. In a perjury case, the govern- 
ment’s burden of proof is extremely heavy. Paternostro v. 
United States, 311 F. 2d 2 9 8 ^ rd  Cir. 1962). In a case of 
this type, where several elements of proof relate to the de-



17

fendant’s state of mind, the evidence must be particularly 
strong. Fotie v. United States, 137 F. 2d 831 (8th Cir. 
1943). The evidence before the jury in Slater King’s trial 
falls far short of that requirement.

The government presented three witnesses. The first was 
Mrs. Butler, the secretary of Attorney C. B. King. Mrs. 
Butler outlined the general situation in C. B. King’s office 
on the afternoon of July 30, 1963, describing the physical 
properties of the office 6 and stating how many persons were 
in the office and for what purposes, but she gave practically 
no testimony that in any way incriminated Slater King. 
She testified that Slater King arrived at the office between 
5:15 and 5:30 and remained there for a period of 10 or 15 
minutes (R. 866). Mrs. Butler stated that during the hours 
following 4:00 o’clock on that afternoon, there were between 
6 and 18 persons in the office of C. B. King, including some 
who had been subpoenaed to appear before the grand jury 
(R. 868). Mrs. Butler explained that she called Slater 
King, the brother of Attorney C. B. King, requesting him 
to bring some chairs to the office (R. 869) as she had done 
on occasions in the past (R. 886). In response to her call 
Slater King and others did take a number of chairs to C. B. 
Kings office (R. 869). Mrs. Butler stated that at the time 
Slater King was in the office appellant Jackson, appellant 
Thomas, one Emma Perry, one Sego Gay and Miss Holtz- 
man were present in the office, as were six or seven trustees 
of Mount Olive Baptist Church, including Mrs. Dora White 
(R. 877-880). Mrs. Butler also testified that during the 
afternoon, Miss Holtzman addressed a number of them in 
the inner office of C. B. King on the rights of witnesses ap­
pearing before federal grand juries (R. 871). She did not 
state that Slater King was present during this talk.

'  Attorney C. B. King’s office consisted of two rooms, a reception 
his secretary worked and Attorney King’s inner office



18

Mrs. Butler testified that two conferences had been sched­
uled for the afternoon of July 30, 1963, one with the trus­
tees of Mount Olive Baptist Church concerning recovery of 
money resulting from the burning of their church and one 
scheduled with Thomas Chatmon, the purpose of which she 
did not recall (R. 881). Attorney C. B. King had spoken on 
the telephone to Mrs. Butler and to Miss Holtzman asking 
Miss Holtzman about the research that she had done on 
grand juries (R. 883-84). Mrs. Butler also stated that Miss 
Holtzman’s research on grand juries was the subject of the 
afternoon conference which was held (R. 884).

On cross-examination, Mrs. Butler stated that she called 
Slater King at approximately five o’clock and requested 
him to bring the chairs, but had not discussed the subject 
matter of any meeting being held (R. 886). She also stated 
her belief that at the time Slater King arrived in the office, 
Miss Holtzman had finished her talk about grand juries 
(R. 886). Mrs. Butler twice repeated her testimony that 
Slater King was there from 10 to 15 minutes (R. 887, 892). 
She also stated that while in the office Slater King received 
three telephone calls (R. 890) and that he had spoken with 
a Mr. Edwards about the problems of the Mount Olive 
Baptist Church (R. 891). She also stated that she did not 
remember Slater King having said anything in particular 
to anyone in C. B. King’s inner office (R. 892).

Mrs. Butler’s testimony establishes at the most that a 
number of persons were in the inner office of C. B. King 
listening to a talk on federal grand juries by Miss Holtz­
man and discussing the subject and that for a short time 
Slater King was in some part of Attorney C. B. King’s of­
fice. Her testimony explains the reason for Slater King’s 
visit and in no way indicates that Slater King participated 
in the gathering in the inner office or that he did anything 
to lead him to believe that he had attended a meeting.



19

The government’s second witness was Edward Bryant, 
Jr. He testified that he arrived at C. B. King’s office at 
approximately 4 :45; that while he was there a white girl 
read something off a paper; that he remained forty minutes 
and that Slater King was present in the office during Bry­
ant’s entire stay (R. 899-904). He did not state specifically 
that Slater King was in the inner office where the confer­
ence was proceeding. Bryant remembered some persons 
talking during the discussion while he was there, but he 
did not remember Slater King’s having spoken with anyone 
(R. 913). An extremely nervous witness, Bryant had diffi­
culty making himself heard (R. 906).

Bryant’s testimony can be considered incriminating in 
only one respect; his statement that Slater King was in 
C. B. King’s office for at least forty minutes could tend to 
indicate that Slater King’s time was not taken up entirely 
with setting up chairs, speaking with trustees of the burned 
church, and receiving and making telephone calls. How­
ever, Bryant’s testimony conflicts very strongly, not only 
with King’s testimony in behalf of himself, but with the 
two chief witnesses of the government, Mrs. Butler and 
Miss Holtzman. Mrs. Butler testified three times that 
Slater King was in the office for 10 to 15 minutes (R. 866, 
887, 892). Miss Holtzman testified that Slater King was 
there for 15 to 20 minutes or possibly a few minutes more 
(R. 937-38). Certainly, the government is not at liberty to 
select bits and pieces from the conflicting testimony of its 
three witnesses in order to make out its highly circumstan­
tial case. See McWhorter v. United States, 193 F. 2d 982 
(5th Cir. 1952).

The third government witness was Miss Elizabeth Holtz­
man, law clerk to Attorney C. B. King. She stated that a 
conference or a series of appointments was scheduled for



*

20

'V>

< \0

the afternoon of July 30, 1963; that she had spoken on the 
telephone with Attorney C. B. King about her research and 
the subject of the conference, which was the functions and 
structure of the federal grand jury (R. 925-927). She did 
not state that any appointment had been made for Slater 

ing during that afternoon.
testified that Slater King arrived at apppomr 

p.m. She was constantly in C. B. King’s inner office 
at all relevant times and when she saw Slater King he was 
in the inner room (R. 933-934). Slater King was not in the 
office before he brought up the chairs pursuant to Mrs. 
Butler’s request (R. 940). Miss Holtzman remembered no 
conversation with Slater King. She stated that he probably 
was speaking to people around him, but that she could not 
definitely remember and she did not mention any subject 
of conversation (R. 940). She testified that Slater King 
was in Attorney C. B. King’s office (whether she meant the 
inner room as opposed to the office consisting of two rooms 
was not brought out) for a period of 15 to 20 minutes or 
possibly a few minutes more (R. 938, 940). She also stated 
that he received some telephone calls (R. 941).

Completely lacking from this case is any direct testimony 
that Slater King was in the inner office of Attorney C. B. 
King for any appreciablewlength of time or that he spoke 
with anyone concerning the appearance of witnesses before 
the grand jury or that he heard others discussing this sub­
ject. In fact, there iaTSroof that he was informed of the 

5ose of the gathering in Attorney C. B. King’s office on 
the afternoon of July 30, 1963. This alone, of course, suffi­
ciently demonstrates the utter inadequacy of the evidence 
presented by the government.

What makes the case even more suspect, of course, is the 
absence of specificity in the questions asked of Slater King 
before the grand jury. He was not asked whether he was

/■"i
. A



21

in the office of his brother during that afternoon, or why he 
had gone there, or for how long he had remained, or whom 
he had seen or with whom he had spoken. He was asked if 
he had attended a meeting during which it was discussed 
that certain persons werd going to have to appear before 
the grand jury. Neither of the relevant questions asked 
him before the grand jury made any specific reference to 
the afternoon of July 30, 1963.

Everything in the record is consistent with Slater King’s 
own testimony during his trial. He stated that he was in 
his brother’s office for between 15 and 23 minutes; that he 
had been called and requested to take some chairs; that he 
had done so, making two or three trips with chairs; that 
he engaged in perfunctory, casual conversation with vari­
ous persons in the office, including some trustees of the 
burned church; and that he received and made several tele­
phone calls (R. 979-81). He stated, “I have no recollection 
as to whether anyone discussed with me as to the grand 
jury hearing in Macon” (R. 981). When asked if he ever 
considered himself as being in attendance at any meeting 
in the office he responded:

No not at all, because there was no one who was keep­
ing minutes; there was no privacy; the door was com­
pletely open into the anteroom; there was people mov­
ing and getting up; and I did not consider myself at a 
meeting of any kind because I didn’t go for a meeting.
I went for one purpose, to take the chairs, to get back 
to the office because there were people waiting on me 
there (R. 983).

Slater King testified that he sat down in the inner office 
for a short time but did not consider himself participating 
in any meeting (R. 984-85). Several character witnesses 
testified as to his veracity (R. 1018-26).



The evidence presented by the government must exclude 
every other hypothesis than that of the defendant’s guilt. 
Paternostro v. United States, 311 F. 2d 298 (5th Cir. 1962); 
Beckanstin v. United States, 232 F. 2d 1 (5th Cir. 1956); 
United States v. Rose, 215 F. 2d 617 (3rd Cir. 1954); United 
States v. Neff, 212 F. 2d 297 (3rd Cir. 1954). The proof in 
this case does not exclude the possibility that Slater King 
was telling the truth both before the grand jury and the 
trial jury. The government’s case is in no way inconsistent 
with Slater King’s entirely plausible version of the events 
of July 30, 1963.

B. A ppellant Jackson

Appellant Jackson testified before the grand jury that 
after receiving her subpoena she did not remember discuss­
ing her prospective testimony before the grand jury (R. 
332, 338-39); that she did not remember going to the office 
of C. B. King on July 30, 1963 (R. 341); that she did not 
remember specifically going to the office on any given day 
although she may have been in the office from time to time 
(R. 344), and that she did not remember seeing Attorney 
King’s secretary on July 30, 1963 (R. 345).

The evidence against Mrs. Jackson is particularly weak. 
Mrs. Butler testified about the general circumstances of the 
gathering (R. 291-93); that Miss Holtzman spoke on the 
rights of witnesses appearing before federal grand juries 
(R. 2 9 ^  and that Mrs. Jackson was in the office of C. B. 
King for 15 to 25 minutes, having arrived between 5 :30 and 
6:00 p.m. (R. 294).

Miss Holtzman testified concerning her instructions from 
Attorney King (R. 303) and her resulting talk to a number 
of persons about the functions and composition of the 
grand jury (R. 303-305). She also stated that Mrs. Jackson

22



23

was in the office of C. B. King during part of the time (R.
306).

The only witness who testified directly that Mrs. Jackson 
actively participated in the,meeting Avas EdAvard Bryant,
Jr. He stated that in addition to Miss Holtzman, 3 persons, 
including Mrs. Jackson, spoke about prospective testimony 
before the grand jury (R. 314). Bryant’s testimony, how- 
eArer, was thoroughly destroyed on cross-examination.
After Attorney Hollowell confronted Bryant with prior
conflicting testimony about the time when he arrived at____
Attorney King’s office (R. 319-323); and further cross- 7 
examination exposing Bryant’s incredibly poor recollection 
of events, the folloAving colloquy occurred:

Q. I say you don’t remember anything that was ac­
tually talked about at any timet A. No, I don’t.

Q. At that meeting, do you! A. No (R. 330).

It is submitted that neither of the credible witnesses, Mrs.
Butler and Miss Holtzman offered any direct proof that 
Mrs. Jackson actively participated in a meeting concerning 
testimony before the grand jury to such an extent that Mrs. 
Jackson Avould probably haA’e remembered when she Avas 
asked about it before the grand jury. Neither testified that 
Mrs. Jackson was present during Miss Holtzman’s talk, nor 
that Mrs. Jackson engaged in any conversation with anyone 
on the subject. Bryant’s testimony must be discarded 
entirely. A conviction for perjury requires direct evidence 
by two witnesses or direct testimony of one witness cor­
roborated by trustworthy testimony of another. Wetter v.
United States, 323 U. S. 606; McWhorter v. United States,
193 F. 2d 982 (5th Cir. 1952). Moreover, proof in perjury 
cases must be of a highly convincing nature. Patemostro 
v. United States, supra; United States v. Neff, supra. The



24

government’s evidence did not meet these requirements and 
the motion for acquittal should have been granted. In the 
alternative, it is submitted that the presence in the case of 
Bryant’s testimony, extremely incriminating in nature but 
totally discredited on cross-examination, was highly preju­
dicial to the defendant, and a new trial should be granted.

III.
In the Wells Case the District Court Erroneously Overw 

ruled Objections to Testimony that Came Within the 
Attorney-Client Privilege.

The indictment against appellant Wells charged him with 
having “testified in substance . . . that he did not attend the 
meeting held in the office of Attorney C. B. King in Albany, 
Georgia, on the afternoon of July 30, 1 9 6 3 and that this 
statement was known to be false. At the grand jury hear­
ing, however, Rev. Wells was not asked specifically about 
the meeting at Attorney King’s office, but rather whether 
he had attended a meeting or had participated in a discus­
sion with anyone concerning the appearance before the 
grand jury (R. 700-705). Thus, in order to connect the 
questions as asked with the charge in the indictment, the 
government had to prove at trial, first, that Rev. Wells had 
gone to Attorney King’s office, second, that he had partici­
pated in a meeting or discussion of the grand jury investi­
gation while there, and third, that he considered himself as 
thus having participated when he answered “no” to the 
questions propounded.

That Rev. Wells did go to Attorney King’s office is not 
contested, and he never at any time denied that fact. The 
main question, therefore, is whether he participated in a 
discussion while there. Two government witnesses, Mrs. 
Butler and Miss Holtzman, testified as to the subject mat­



25

ter of the meeting at Attorney King’s office and Rev. Wells’ 
participation in it.7 In both instances an objection was 
made that the testimony was privileged as relating to con­
fidential communications between an attorney (here an at­
torney’s agent) and his clients. It is appellant’s contention 
that this testimony should have been excluded, and that had 
it been the government would have failed to have met its 
burden of proving that Rev. Wells had participated in a 
discussion of the grand jury. In the alternative appellant 
contends that even if there was other evidence that might 
support a finding that the meeting was attended, the admis­
sion of the privileged testimony, particularly that of Mrs. 
Butler, was so prejudicial as to require a new trial.

Mrs. Butler was first asked the subject matter of Miss 
Holtzman’s talk to the group assembled in Attorney King’s 
office. She answered that it was with reference to witnesses 
before the grand jury (R. 641). An objection to this testi­
mony was overruled on the ground that the subject matter 
of the attorney-client relationship was not privileged 
(R. 642). That such is the law is questionable, but since it 
is clear from the record that Rev. Wells was not present 
at the time the statement was made, and that Mrs. Butler 
did not know whether the statement of Miss Holtzman had 
been brought to his attention, this evidence does not prove 
Rev. Wells’ participation.

Similarly, Miss Holtzman was asked about the subject 
matter of her talk, and this question was objected to but 
allowed (R. 684-88). Miss Holtzman made it clear that 
Rev. Wells was not present when she made her talk 
(R. 695), and that she did not remember whether Rev. Wells

7 The testimony of Rev. Wells himself at his trial is inconclusive 
on this point. He said that he might have spoken to the people 
there about his subpoena, since he had mentioned it to nearly 
everyone he met, but his recollection was not clear (R. 760-64).



26

had said anything to the group, or what the substance was 
of any remarks he might have made (R. 690, 696). Again, 
this testimony only shows that Reverend Wells was at At­
torney King’s office; it fails to prove the crucial link, viz., 
that he participated in a discussion concerning the grand 
jury.

The one piece of testimony that clearly said that Rev. 
Wells did talk about the grand jury hearing was given by 
Mrs. Butler. She was asked whether Rev. Wells talked to 
the group in Attorney King’s inner office. She said that he 
did say something to the people that were sitting near him, 
but not to the entire group. The government then asked 
what he was saying:

A. Now, as to what he was saying, I really couldn’t 
say. I believe—No—he explained the conditions under 
which he felt that he had received his subpoena (R. 655- 
56).

The question and answer were objected to, again on the 
ground of attorney-client privilege, but the court overruled 
the objection and allowed the witness to continue telling 
what Rev. Wells had said (R. 656-660).

The attorney-client privilege extends not only to com­
munications to the attorney himself, but to his agents, par­
ticularly his law clerks and secretaries. 8 Wigmore $2301 
(McNaughton rev. 1961). Thus, any communications to 
Mrs. Butler and Miss Holtzman would ordinarily be privi­
leged.

In most cases, however, the privilege is destroyed if 
third persons are present when the communication is made, 
since it is not then confidential. An exception to the rule 
is generally recognized when the other persons are also 
clients or other persons with an interest in the matter



27

under discussion. As to third persons, the communication 
made by them in the course of a conference with the attor­
ney (or his agent) do come within the scope of the privi­
lege. Baldwin v. Comm’r of' Internal Revenue, 125 F. 2d 
812 (9th Cir. 1942); see also Anno. 141 A. L. R. 548, 564- 
State v. Archuleta, 29 N. M. 25. 217 Pac. 619 (1923); State 
v. Emmanuel, 42 Wash. 2d 799, 259 P. 2d 845, 854-55 (1953).

Applying these rules to the facts in the present case, the 
following appears. The meeting in Attorney King’s office 
was for the purpose of giving those in attendance advice, 
hrough Mr. King’s agent, concerning their rights and du­

ties before the grand jury. Although it is not clear just 
who was in attendance when Reverend Wells was there, all 
m the inner office at that time were apparently clients of 
Mr. King or persons directly interested in the subject mat­
ter under discussion. Mrs. Butler testified that what was 
said could not be heard in the outer office (R. 644, 648) 
and she indicated that she was in the inner office when she 
did hear the remarks testified to (R. 657). Hence, there is 
no evidence that anyone in the outer office, i.e., third per­
sons not concerned with the grand jury discussion, over­
heard what was said. Wells therefore made the statements 
during the course of a conference between clients and other 
interested persons and the attorney’s agents.

The fact that Reverend Wells apparently addressed at 
least some of his Pemedm^to some of his fellow clients and 
notnecessanly to the agent, would not seem to put them 
outside the privilege. The policy of the attorney-client 
privilege is to encourage free discussion and disclosure 
between attorney and client so that the former will be fully 
apprised of all the facts and circumstances of the case 
Schwimmer v. United States, 232 F. 2d 855 (8th Cir. 1956)’ 
Where a number of clients are involved, the same policy 
should apply and allow them to confer among themselves



28

and their attorney. To raise the fear of forced disclosure 
of any remarks addressed to fellow clients would be to 
introduce a technicality that would only serve to stifle the 
freedom of discussion necessary for the obtaining of legal 
advice and the resulting furtherance of justice.

For these reasons, appellant urges that the failure to ex­
clude the testimony was error, and either that its proper 
exclusion would have meant that there was not sufficient 
evidence to connect his presence in Attorney King’s office 
with his knowingly having attended a meeting in which the 
grand jury appearance was discussed, or, in the alternative, 
that its inclusion was prejudicial and necessitates a new 
trial.

CONCLUSION

F ob the foregoing seasons the judgments below should 
be reversed.

Respectfully submitted,

J ack Gbeenberg

Constance B aker Motley 
10 Columbus Circle 
New York, New York 10019

D onald L. H ollowell

859y2 Hunter Street, N. W. 
Atlanta, Georgia

C. B. K ing

211 South Jackson Street 
Albany, Georgia

Attorneys for Appellants
D orothy K enyon 
F rank H. H effron 

Of Counsel



29

Certificate of Service

T his is to certify that I have served a copy of the fore­
going Brief for Appellants upbn Floyd M. Buford, Esq., 
United States Attorney and Wilbur D. Owens, Jr., Esq., 
Assistant United States Attorney, Macon, Georgia, Attor­
neys for Appellee, by mailing copies to them at the above 
address, air mail, postage prepaid.

T h is.......... day of November, 1964.

Attorney for Appellants



17a

a p p e n d ix  b

(

*{> ,/ i

< " >

County

Baldwin 
Bibb 
Bleckley 
Butts 

. Crawford 
Hancock 
Houston 
Jasper 
Jones 
Lamar 
Monroe 
Peach 
Pulaski 
Putnam 
Twiggs 
Upson 
Washington 
Wilkinson 

Totals

Federal Jury List— Macon Division 1959

s o n X  
ist< Neg

Persons
Jury List(f Negroes 

from County on List

137
666 

- 72 
58 
47 
64 
99
57 
67 
84 
70

123
58 ' 
61 
37

130
95
60

1985

8
36
2
2
5
3 
7
4
5
7
5
8
3
4 
1
6 
6
5

117

Negro 
Percentage 

on List
Adult

Population
1960

Adult
Negro

Population
1960

5.8% 2368 8744
5.4% 81133 24894
2.7% 5230 1246
3.4% 4920 1878

10.6% 2948 1435
4.6% 4877 3237
6.0% . 20438 3815
7.0% 3404 1554
7.4% 4490 1983
8.3% 5708 1925
7.1% 5605 2392
6.5% 7398 3913
5.0% •>> 4546 1697
6.5% 3822 1988
2.7% 4189 1997
4.6% 13835 3315
6.6% 10041 4925
8.3% 5054 2076
5.8% 211306 73014

Population figures based on 1960 United States Census, 
ury figures based on affidavits (App. 10a-16a).

Negro 
Percentage 

of Adult 
Populatidh 

1960

36.9
30.5 
23.8 
38.1
48.6 -11
66.3
18.6
45.6 ; 
44/' '*> -
33.7
42.6 &
52.8
37.3 '• 
52 /
47.6 ■
23.8 
49. > 
41. ' •' 
34.55%

I