Rabinowitz v. United States Brief for Appellant

    IN’ TH E

dkmri nx Appals
For the Fifth Circuit

t

H

No. 21256

----------------o-----------------

Joni Rabinowitz,

versus
Appellant,

U nited States of A merica, 

---------------------- o-------------------
Appellee.

BRIEF FOR APPELLANT

Questions Presented

Where a white student from the North, working on 
voter registration as a Field Representative of the Stu­
dent Nonviolent Coordinating Committee in Albany, 
Georgia, was convicted for perjury before a Grand Jury in 
the Middle District of Georgia, Macon Division, in con­
nection with its investigation of a picket line in Albany, 
should the conviction stand when:

1. Negroes were systematically excluded from the 
Grand Jury which indicted her and the petit jury which 
convicted her;

2. Her motion for a transfer of trial was denied;
3. Two of the three witnesses whose identification led 

to her indictment and conviction, together with the United

ft



2

States Marshal, were present in the Grand Jury room 
during a portion of her testimony;

4. Her motion to waive a trial by jury was denied;
5 The United States Attorney inflamed and otherwise 

improperly influeneed the Grand Jurors against her an 
failed to warn her adequately as to the nature of the pro
ceedings; T

6. The trial coart quashed her subpoenas for F. R  i-
and other reports which would have prodded her with 
exculpatory evidence; _

7. The verdict was against the overwhelming weig 
of the evidence; and

8. One of the members of the petit jury was physically 
incompetent to serve 7

Statement of the Case

This is an appeal from a judgment of conviction on 
lhis is by tt o q <ji621) entered m the

three counts of perjury (18 U. b. ^  ) District of
United States District Court for the Middle M r  .  
Georgia, Macon Division, on December 2S, 1963 ttma,
812a).

On August 9, 1963, a Federal Grand Jury at Macon, 
Oeoroia returned two indictments against appellant The i t fa two^counts charged that on August 5,1963, she had 
t u i l l y  Ind fa le ^  fasUfled before the G » d  Jury 
stance that she “ did not remember seeing picketing g » 
on at Carl Smith’s Foodland Store, Albany, Georgia, o
on at . -r nn (r;ount 1) and that she did notSaturday, April 20,1963 (Count ai
observe the [said] picketing”  (Count 2) (7a). ^ e  seco
indictment, in one count, charged that on August 9, 1963
appellant had wilfully and falsely testified before the
Grand Jury, in substance, that she “ was not present at
the scene of the picketing”  of said store (9a).



4

to the violation of 4 6(d) of tie Federal Kules of Criminal 
Procedure (96a).

The motions were heard on October 1 4 ft ,^ th  and 6 
1963, and on some of ftenr te^hm y 347a).
motion was denied (178a, 2Wa, >

Several days prior to trial appellant subpoenaed the

November 12, 1963, the opening day of the 
lowing proceedings took place:

A. The United States moved  ̂to quash the subpoenas 
and the motions were granted (357a-361a).

R Appellant moved to dismiss the venire summoned

motion was denied (361a).
c  Appellant moved to waive her trial by jury. The 

United States objected and the motion was denied (361a-
364a). „ ,,

D. The appellant renewed her motion to transfer the
trial. The motion was denied (364a).

The jury was impanelled and the case was tried until 
the eve^ng of November 15th, when it was submitted to 
the jury. The jury returned a verdict of gui y 
counts (787a).

Subsequently, and within the time allowed by the 
Court motions were made by appellant under Rules 29(b)
33 and 34, incorporating the matters alleged above and 
other matters arising during the trial (801a) These
tions were denied on December 23, 1963 (813a).

On December 23, 1963, appellant was adjudged a youth 
offender pursuant to Title 18 XJ. S. C. $o010 b) (811a 
812a). On December 26, 1963, a notice of appeal was filed 
(814a), and appellant was released on bond.



5

Specification of Errors

Appellant relies on the following errors in the pro­
ceedings in the District Court:

1. Both the Grand and petit juries were drawn from 
a jury list which was compiled and selected in violation 
of law.

2. An unauthorized person(s) was present while the 
Grand Jury was in session, in violation of F. R. C. P., Rule 
6(d).

3. The prejudice against appellant in the middle Dis­
trict of Georgia was so great that a transfer of trial should 
have been ordered.

4. The court improperly denied appellant’s motion to 
waive her jury trial and to try the case to a judge.

5. The conduct of the United States Attorney before 
the Grand Jury was inflammatory.

6. Appellant was not advised as to the subject matter 
of the inquiry before the Grand Jury, she was not prop­
erly warned and the purpose of the inquiry before the 
Grand Jury was improper.

7. The court erred in quashing appellant’s subpoenas 
directed to the United States Attorney and the F. B. I.

8. The verdict was against the weight of the evidence 
and the motion for acquittal should have been granted.

9. The petit jury was incompetent because of the physi­
cal inability of one of the jurors to perform her services 
as juror efficiently.

Relevant Statutes

The relevant statutes and rules will be found in an 
Appendix hereto.



6

Facts

The facts will be discussed in some detail m Point VIII 
below, and will be summarized here briefly.

Appellant is a twenty-two year old white girl, a student 
at Antioch College in Yellow Springs, Ohio, and a resident 
of New Bochelle, New York. On or about April 3, 19bd, 
she came to Albany, Georgia, as a field representative o 
the Student Nonviolent Coordinating Committee (SNOG), 
assigned to work on voter registration (714a, 7-la, 7-6a).

In July, 1963, she was subpoenaed to appear before a 
United States Grand Jury sitting in Macon, Georgia. She 
appeared before the Grand Jury on August 1st, 5th, and 
9 1963 on five separate occasions. The proceedings be ore 
the Grand Jury will be discussed more fully m connection 
with Points II, V  and VI below (318a-344a).

Appellant’s testimony before the Grand Jury was that 
she did not remember having observed the picketing of a 
grocery store owned by Carl Smith, in Albany, on April 
20th; that she thought that if she had seen it she would 
have remembered it, and therefore she concluded that she 
had not in fact been present at the time of the picketing 
(341a-343a). When she was asked if she would admit hav­
ing been there if she were to be shown motion pictures, she 
answered: “ Well, if it was me, but I don’t believe I was 
there. In fact,—well, I know I wasn’t there”  (32oa). On 
August 9, she asked to see the pictures in the hope that she 
might recall the picket line (344a). She was never shown
the pictures.*

The indictments followed.
At the trial the United States presented three wit­

nesses who identified appellant as having been present 
across the street from the picket line. There was only one

* The United States Attorney, at trial, denied having any 
pictures.



7

white girl present (444a). They all testified that on April 
20th they had seen her standing 60 to 70 feet away across 
a crowded street for a short period of time. All of the 
prosecution witnesses were white (425a-484a; 488a-514a).

The defense presented 12 witnesses, all Negro, who 
testified that appellant was not present at the time of the 
picketing, and that Joyce Barrett, another SNCC field rep­
resentative was present (553a-649a). Joyce Barrett, a white 
girl, testified that she had been across the street from the 
picket line on April 20th (696a-713a). Appellant stated 
that, having seen pictures, both motion and still, of the scene 
of the picketing, she was now more certain than ever that 
she had not been present (714a-733a).

Appellant also called five character witnesses who testi­
fied that her reputation for truth and veracity was ex­
cellent (485a-487a; 521a-553a). Other witnesses called by 
appellant were the Chief of Police of Albany, the owner of 
the newspaper and television station in Albany, the F. B. I. 
agent in charge of the case, and the United States Attorney, 
all summoned in an effort to locate the photographs to 
which the United States Attorney had referred in the Grand 
Jury hearing (650a-696a). She believed such photographs 
would be exculpatory. At the trial no one would admit hav­
ing any such photographs.

On December 23, defendant was adjudged a youth of­
fender under 18 U. S. C.  ̂5010(b), and was committed to 
the custody of the Attorney General for treatment and 
supervision until discharged by the Board of Parole (811a, 
812a).



8

P O I N T  I

Both the Grand and the petit jurors were drawn 
from a jury list which was compiled and selected in
violation of law.

Facta

The master jury box from which both Grand and petit 
juries were chosen contained 1985 names. Of these, 117, 
or 5.8% were Negroes. By contrast, the 1960 census showed 
that the Macon Division of the Middle District of Georgia 
had a population of 211,306 persons over the age of 21, 
of whom 73,014, or 34.55% were Negro (90a, 315a, 316a). 
This imbalance has been true historically; to the extent 
to which there has been any change in recent years, it has 
been for the worse. Thus, out of a total of 1837 names 
on the 1953 list, 137, or 7.45%, were Negroes. The 1957 
census showed that 38.49% of the population of the Divi­
sion were Negroes (93a, 289a). The 1940 census showed 
that 45.11% of the population was Negro, whereas only 
3.21% of the jury list was Negroes (94a).

The statistics in each county are consistent with the over­
all results. There was not a single county among the eighteen 
within the Macon Division in which the percentage of 
Negroes on the jury list even approached the percentage 
of Negroes in the population at large (90a, 315a). In Peach 
County, where the population was almost 53% Negro, only 
eight Negroes were on the jury list out of a total of 123 
(6.5%). Twiggs County also has a population a majority 
of which is Negro; only one Negro from that county is on 
the jury list. Even Bibb County, in which the large city 
of Macon is located, supplied only 36 Negroes to the jury 
list, representing 5.4% of the total, although over 30% 
of the population of the county is Negro.

Such a disparity calls for an explanation. United States 
ex rel. Seals v. Wiman, 304 F. 2d 53, 66, 67 (C. A. 5, 1962). 
The Government made no attempt to supply the explana­
tion.



9

However, the appellant offered extensive evidence as to 
how the jury list was compiled. The evidence did indeed 
explain the disparity; it also made it abundantly clear 
that the system used in the Macon Division in compiling 
a jury list violated decisions of the Supreme Court and 
of this Court. See, infra, pp. 17-24.

The list currently in use was compiled in 1959 by the 
Jury Commissioner, the Clerk of the Court and his deputy, 
all of whom are, of course, white. The 1953 list was used 
as a starting point. Some names were taken off because 
of death, physical disability, age, removal from the District, 
or other reason (182a, 263a). Then additional names were 
collected and questionnaires sent to them. Since the 1953 
list was itself unbalanced, the procedure had an inherent 
vice, which no one made the slightest effort to correct; 
in fact, the contrary is true.

Mr. Simmons, the Jury Commissioner, secured many 
additional names from among his acquaintances. They 
were people active in “ civic life, a business way, some of 
them came from lists of church members”  (183a). An 
effort was made to see that the Negro race was repre­
sented (186a), but not “ to have any given percentage 
represented”  (187a). It did not occur to him “ to have any 
percentage [of Negroes] equal to the percentage of the 
population”  (188a). He only “ wanted to be sure that we 
had some Negroes on the jury list”  (188a). He did not 
use city directories, tax lists, telephone books or any other 
public lists to get the names of prospective jurors (193a 
209a).

He did not recall speaking to any Negroes in the school 
system, or to Negro ministers, or Negro businessmen, 
or Negro civil service employees outside his home county 
of Bibb, except possibly in Crawford County (193a-209a). 
While he considered it important to get Negroes from rural 
counties, such as Butts, Crawford, Houston, Jasper and 
Twiggs, he made no effort to carry out this obligation



12

Simmons, he did not know “ too many Negroes (242a). 
While he was able to identify some persons as Negroes 
during the hearing, he generally did so by making m er- 
ences from their addresses (253a, 254a). He did contact 
fraternal and church organizations for the names of 
prospective jurors but only white organizations. He got 
rosters of names from such organizations, but not from 
any Negro organizations (267a).

Mr. Doyle, the Deputy Clerk, concentrated his efforts 
on getting jurors from the rural counties. His procedure 
was simple and uniform. In each county he went to the 
County Courthouse and spoke to the Clerk of the Cou , 
to the Sheriff, to the Ordinary, to the tax officers and o 
others “ who worked in those places”  (260a). ^  each
county he spoke to half a dozen people or more ; in the 18 
counties he spoke to between 125 and loO people. In two 
or three counties he also spoke to businessmen and secre­
taries of lawyers (261a). Not one was a Negro (.60a,
261a).

In each county he asked for the names of qualified 
Negroes. Although there are Negro ministers, business­
men, school teachers and doctors in many counties, he did 
not know a single one nor did he speak to one (262a, 263a). 
He thought it unnecessary to ask Negroes for the names 
of possible Negro jurors because he thought his white 
“ sources”  were “ competent to give [him] the names o 
qualified people”  (263a).

Like Mr. Simmons, he had his “ own idea of what a 
qualified juror ought to be * * *; he ought to be a person 
that is of good character, a person that is intelligent that 
can understand the cases that are tried m court (263a).

In Macon Mr. Doyle assisted Mr. Cowart. He contacted 
the “ various civic groups, church groups”  (266a). He did 
not contact any Negro group. In fact, he did not com­
municate with a single Negro in Macon (266a). On cross-



15

When we examine how the list was made up, it becomes 
apparent that the strictures of the Supreme Court and 
of this court were completely ignored. A  long line of 
cases has made it abundantly clear that a heavy burden 
rests on those responsible for choosing a jury “  * * * 
to follow a procedure—‘ a course of conduct’—which would 
not ‘ operate to discriminate in the selection of jurors on 
racial grounds.’ Hill v. Texas, 316 U. S. 400, 404 (1942).”  
Avery v. Georgia, 345 U. S. 559, 561.
And as the Court said in Cassell v. Texas, 339 U. S. 282, 289:

“ When the Commissioners were appointed as 
judicial administrative officials, it was their duty to 
familiarize themselves fairly with the qualifications 
of the eligible jurors of the county without regard to 
race and color. They did not do so here, and the 
result has been racial discrimination.”

And Chief Justice Stone, in Hill v. Texas, 316 U. S. 400, 
404, said:

“ Discrimination can arise from the action of 
commissioners who exclude all negroes whom they do 
not know to be qualified and who neither know nor 
seek to learn whether there are in fact any qualified 
to serve. In such a case discrimination necessarily 
results where there are qualified negroes available 
for jury service. With the large number of colored 
male residents of the county who are literate, and 
in the absence of any countervailing testimony, there 
is no room for inference that there are not among 
them householders of good moral character, who 
can read and write, qualified and available for grand 
jury service.”

The language of this Court in United States ex rel. 
Seals v. Wiman, supra at 67, is directly applicable here.

“ Not only does the respondent fail to come for­
ward with an adequate justification to explain this 
long-continued, wide discrepancy between the num­
ber of qualified Negroes in the County and their rep­
resentation on the jury rolls, but the evidence is prac-



16

ticallv conclusive that the method of selection at the 
time of Seals’ trial and during the preceding years 
inevitably resulted in systematic exclusion of all but 
a token number of Negroes from the jury lolls

In this case, as in Wiman the court officials followed 
the oft-disapproved device of choosing persons for t e 
jury list from among their personal contacts, a procedure 
which made inevitable the result which we here attack.

Thus we see that the methods used by the state au­
thorities in Wiman and in Supreme Court cases like 
Akins v. Texas, 325 U. S. 398, Cassell v. Texas, supra, 
Eubanks v. Louisiana, 356 U. S. 584, Hill v. Texas, supra, 
and Avery v. Georgia,345 U. S. 559, are m essence the 
methods used by the District Court authorities here, i 
anything, the Commissioners in Wiman made a greater 
effort to get Negro jurors—at least they asked a few 
Negroes to make suggestions. United States v. Wiman, 
supra, at 60, 61. In other respects the methods used here 
and in Wiman were identical. See, for example, reliance by 
the Commissioners on personal acquaintances almost ex­
clusively white (Wiman, p. 60; this record, pp. 21oa 
242a) • use of the rosters of white organizations but not of 
Negro {Wiman, p. 60; this record, pp. 266a, 267a); failure 
to solicit the names of Negroes beyond the “ narrow circle 
of ordinary contacts of the Commissioners”  {Wiman, p. 60; 
this record pp. 210a, 262a). The failure of the Commis­
sioners to take the necessary steps to get a balanced jury 
list is easily understood; they did not understand that they 
were under any obligation to do so (187a, 188a, 228a, 241a). 
It was enough, they thought, that they had “ some”  Negroes 
(186a, 187a, 241a).

The respondent seems to rely entirely on the subjective 
“ good faith”  of the court officials and the learned court 
below seemed to feel that the lack of “ intentional dis­
crimination”  was “ a factor of considerable importance 
(293a). We must respectfully differ. We do not believe



17

that the subjective intent of the jury officials is a matter 
of any importance at all. Reece v. Georgia, supra, Her­
nandez v. Texas, supra, Hill v. Texas, supra. This court 
said in Wiman, supra, at page 65:

“  # * * Those same cases, however, and others, 
recognize a positive, affirmative duty on the part 
of the jury commissioners and other state officials, 
and show that it is not necessary to go so far as 
to establish ill will, evil motive, or absence of good 
faith, but that objective results are largely to be 
relied on in the application of the constitutional 
test * *

The court below seemed to be a bit uneasy about the 
imbalance in the list and pointed out that the list would 
be revised from time to time (293a). The Clerk also noted 
that there had been no revision of the list since this court’s 
decision in Wiman and he seemed to think that the next 
revision would be time enough to give “ consideration to 
that or any other case”  (230a). The court urged qualified 
Negroes to come forward and volunteer for jury duty 
(293a) and it also evidently felt that the matter of getting 
a better cross-section of the conununity was “ a matter for 
the future”  (293a). We have seen no suggestion in the 
cases that the burden is on prospective Negro jurors to fight 
their way into the jury box; every case on the subject that we 
have seen, including Wiman, puts the burden on the court 
officials who are charged with the duty of selecting a jury.

B. Constitutional issues aside, the method used to select 
Grand and petit juries violated accepted federal 

standards of jury selection as well as the 
relevant statutory standards.

This case differs from Hill, Avery, Reece, Brown, 
Akins, Eubanks, Wiman and other cases cited above in 
that it relates to a federal jury, not a state jury. The 
federal standard is determined, not only by constitutional 
requirements, but also by the supervisory power of the



18

Supreme Court “ to reflect [its] notions of good policy”  
(Fay v. N. Y., 332 U. S. 261, 287). Constitutional limita­
tions aside, the standards set by the applicable Federal 
statutes and the notions of good policy of the Supreme 
Court in choosing a federal jury have been violated here.

1. The jury did not represent a cross-section 
of the community.

The federal cases are clear that a federal jury in both 
civil and criminal cases must represent a cross-section of 
a community. In Glasser v. United States, 315 U. S. 60, 
at 86, the Court said that the jury commissioners

“  * * * nlUst not allow the desire for competent 
jurors to lead them into selections which do not 
comport with the concept of the jury as a cross- 
section of the community. Tendencies, no matter 
how slight, toward the selection of jurors_ by any 
method other than a process which will insure a 
trial by a representative group are undermining 
processes weakening the institution of jury trial, 
and should be sturdily resisted. That the motives 
influencing such tendencies may be of the best must 
not blind us to the dangers of allowing any encroach­
ment whatsoever on this essential right. Steps inno­
cently taken may one by one lead to the the irretriev­
able impairment of substantial liberties.”

Thus, a system of selecting jurors which eliminates 
women is invalid because it

“  * * * deprives the jury system of the broad 
base it was designed by Congress to have in our 
democratic society. It is a departure from the 
statutory scheme. As well stated in United States 
v. Roemig, D. C., 52 F. Supp. 857, 862, ‘ Such action 
is operative to destroy the basic democracy and 
classlessness of jury personnel.’ It ‘ does not accord 
to the defendant the type of jury to which the law 
entitles him. It is an administrative denial of a right 
which the lawmakers have not seen fit to withhold



19

from, but have actually guaranteed to him.’ Cf. 
Kotteakos v. United States, 328 U. S. 750, 66 S. Ct. 
1239. TheAnjuryis nut limited to the defendant— 
there is injury to the jury system, to the law as an 
institution, to the- cominnnity'atr'large, and to the 
democratic Ideal reflected in the processes of our 
courts.11 Ballard v. United States, 329 U. S. 187, 
1957

Perhaps the most comprehensive discussion by the 
Supreme Court on the subject can be found in Thiel v. 
Southern Pacific Co., 328 U. S. 217, where a civil verdict 
was set aside because daily wage earners were excluded. 
There the Court listed six groups in the community which 
must be recognized and given representation on a jury, 
namely, “ the economic, social, religious, racial, political 
and geographical groups of the community”  (p. 220). Com­
pare this with the statement of the clerk of the court here, 
who said that he did not recognize the Negroes as a class 
who required adequate representation (228a). It is true, as 
the Court pointed out in Thiel, that every jury need not 
contain representatives of each of these groups. But a 
method of choosing jurors is impermissible if it results in 
discrimination against any of these groups.

It will be noted that in the Thiel case there may not 
have been prejudice to the petitioner. But, said the Court:

“  * * * On that basis it becomes unnecessary to 
determine whether the petitioner was in any way 
prejudiced by the wrongful exclusion or whether he 
was one of the excluded class. See Glasser v. United 
States, supra; Walter v. State, 208 Ind. 231, 195 
N. E. 268, 98 A. L. R. 607; State ex rel. Passer v. 
County Board, 171_Minn. 177, 213 N. W. 545, 52 
A. L. R. 916. It is likewise immaterial that the jury 
which actually decided the factual issue in the case 
was found to contain at least five members of the 
laboring class. The evil lies in the admitted whole­
sale exclusion of a large class of wage earners in 
disregard of the high standards of jury selection.



20

To reassert those standards, to guard against the 
subtle undermining of the jury system, requires a 
new trial by a jury drawn from a panel properly 
and fairly chosen.”  (At p. 225)

As the Court said in the Ballard case, supra, “ the in ^  
jury is not limited to the defendant—there is injury to. the—  
jury system; * * * to the community at large an4 to the 
democratic ideal * * * ”  (p. 195).

The Court of Appeals for the Third Circuit faced the 
same problem in Dow v. Carnegie Illinois Steel Corp., 224 
F. 2d 414 (C. A. 3, 1955). The Court, sitting en banc, first 
noted that it is sufficient if appellant directs his attention to

*****  the general method of jury selection, with­
out showing that the particular jury that tried the 
case was deficient and, consequently, without estab­
lishing prejudice to the particular litigant usually 
prerequisite for invoking remedial action. 
Presumably a particular jury of the most desirable 
type might be drawn from a list that was on the 
whole selected by faulty methods. But, as a practical 
matter, it is so difficult to formulate and administer 
a system prescribing the composition of individual 
juries that the law has placed the emphasis on in- 
insuring a fair system of general juror selection 
which in operation will normally result in adequate 
individual juries. It is consequently the general 
system of selection that is susceptible to successful 
attack by a litigant. See Thiel v. Southern Pacific 
Co., 1946, 328 U. S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 
1181. Moreover, by allowing the general method of 
selection to be questioned in any case, the complain­
ing party serves as a helpful spur to the courts in 
their supervision of the administration of justice. 
See Ballard v. United States, supra, 329 U. S. at 
page 195, 67 S. Ct. at page 265.”  (At p. 422)

The Court then went on to point out that, whereas the 
courts, in passing on a state jury, are limited to considera­
tion of the constitutional requirements of the Fourteenth



23

Mr. President, we believe the amendment consti­
tutes a great step forward in the field of civil rights. 
We believe also that it can contribute significantly 
in forwarding the cause to which most of us are 
dedicated—the cause of enacting a civil-rights bill 
in this session of the Congress.”  103 Cong. Rec. 
13154 (July 31, 1957)

When the bill in its final version was before the Senate, 
then-Senator Lyndon B. Johnson commented on this change 
in the law in his summary of the important features to it. 
He said:

Seventh, and finally, the bill secures without 
discrimination the right of all citizens of all races, 
all colors, and all creeds, to serve on federal juries.”  
103 Cong. Rec. 13897. (August, 1957)

Despite the amendment of the law, it is obvious that the 
court officials in the federal court at Macon continued to 
apply the standards set by the Georgia statute. Georgia 
requires the jury commissioners to select “ upright and in­
telligent citizens to serve as jurors”  (Ga. Code Ann. Title 
59, ^106). And so the court officials here sought jurors 
who in their opinion were sufficiently intelligent to under­
stand what was going on in the courtroom. It is perhaps 
not surprising that the extra-statutory qualifications were 
discussed only in connection with prospective Negro jurors 
(196a, 207a, 208a, 209a, 232a, 233a).

The District Court in Louisiana recently had occasion 
to consider a similar test in United States v. Louisiana, 225 
F. Supp. 353 (1963), where the state required that prospec­
tive voters “ be able to understand and give a reasonable 
interpretation of any section of [the] Constitution” . We 
cannot say that the requirement imposed by Mr. Simmons 
and Mr. Doyle on prospective jurors, i.e., that they be able 
to understand the cases being tried in a courtroom, is any 
easier to meet; many lawyers and even some judges some­
times have difficulty in this regard. All of the objections



24

to the Louisiana statute (225 F. Supp. at 381, 383, 387) are 
applicable here as well. As the court there said at p. 387:

“ The understanding and interpretation of any­
thing is an intimately subjective process. A  commu­
nication of that understanding is itself subject to the 
understanding or interpretation of the listener or 
reader. Even in an atmosphere of mutual coopera­
tion and good will, it is often very difficult for one 
person to know that the other actually understands 
what is being said or done. As appears from the 
evidence, however, in many registration offices in 
Louisiana the relation between the Registrar and 
Negro applicants can hardly be described as mutu­
ally cooperative. * * * ”

“  * * * the customs of generations, the mores of 
the community, the exposure of the individual to 
segregation from the cradle make it difficult, if not 
impossible, for a registrar to evaluate objectively 
what is necessarily a subjective test. We are sensible 
of the registrar’s difficulties—he must live with his 
friends—but we must recognize that his predilec­
tions weight the scales against Negroes and hinder 
fair administration of an interpretation test or a 
citizenship test. When neither the Constitution nor 
the statutes prescribe any standards for the admin­
istration of the test, the net result is full latitude 
for calculated, purposeful discrimination and even 
for unthinking, purposeless discrimination.”

We need not labor the point. The application of an “ under­
standing”  requirement in qualifying a juror is just as 
subjective as the application of such a test in registering 
voters. And all of the objections found by the Court to 
the Louisiana statute are equally applicable to the situa­
tion here.



25

P O I N T  I I

The presence of an unauthorized person(s) while 
the Grand Jury was in session violates F. R. C. P. Rule 
6(d) and requires dismissal of the indictment.

The appellant was subpoenaed to appear before the 
Grand Jury on August 1, 1963 (716a). She was sworn 
on her first appearance before the Grand Jury on that 
date (82a). At 12:30, during her testimony, the Grand 
Jury recessed and she was instructed to return at 1:30 
(339a). Later on in the same afternoon she was twice 
recalled before the Grand Jury. Each time the Marshal 
ushered her to the door of the Grand Jury room. Once 
Carl Smith was present in the Grand Jury room as a wit­
ness; the other time James Fritz was the witness. On 
each occasion appellant was asked if she was Miss Joni 
Rabmowitz. On each occasion she answered in the affirma- 
tive (273a-277a). Prior to her appearance Smith had not 
identified appellant, but he did so when she came into 
the Grand Jury room (449a-460a).

The inviolacy of Grand Jury proceedings is protected
by Rule 6(d) of the Federal Rules of Criminal Procedure 
which provides:

Who May be Present. Attorneys for the gov­
ernment, the witness under examination, interpreters 
when needed and, for the purpose of taking the 
evidence, a stenographer may be present while the 
grand jury is in session, but no person other than 
the jurors may be present while the grand jury is 
deliberating or voting. ”

This rule was first formulated when the Rules were 
adopted in 1946. Some consideration of its history and of 
the predecessor legislation is relevant.

. .The 1872 statute relating to the validity of a Federal 
indictment read:



26

“ No indictment found and presented by a grand 
jury in any district or circuit or other court of the 
United States shall be deemed insufficient, nor shall 
the trial, judgment, or other proceeding thereon be 
affected by reason of any defect or imperfection in 
matter of form only, which shall not tend to the 
prejudice of the defendant.”  (R. S. § 1025)

In May 1933 the statute was amended to read:
“ No indictment found and presented by a grand 

jury in any district or other court of the United 
States shall be deemed insufficient, nor shall the 
trial, judgment, or other proceeding thereon be 
affected by reason of any defect or imperfection in 
matter of form only, which shall not tend to the 
prejudice of the defendant, or by reason of the 
attendance before the grand jury during the taking 
of testimony of one or more clerks or stenographers 
employed in a clerical capacity to assist the district 
attorney or other counsel for the Government who 
shall, in that connection, be deemed to be persons 
acting for and on behalf of the United States in an 
official capacity and function.”  (48 Stat. 58, 18 
U. S. C. former § 556.)

It will be noted that both statutes spoke in terms of 
procedure which might “ tend to the prejudice of the 
defendant” . Such language was omitted in the 1946 revi­
sion. The omission was not an accident but was intentional. 
As the court said in United States v. Powell, 81 F. Supp. 
288, 291 (D. C. Mo. 1948), “ We recognize the law that the 
presence of unauthorized persons in the grand jury room 
results in a presumption of prejudice to the defendant 
* # *_>> ^ ncj see jjnited States v. Carper, 116 F. Supp. 
817 (D. C. D. C. 1953).

Not only was the language requiring a tendency to 
prejudice omitted from the 1946 Revision, but it will be 
noted that whereas the word “ interpreters”  in the statute 
appears in the plural, the word “ witness”  in the statute 
appears only in the singular. This too was not an accident.



27

It was explained by Judge George Z. Medalie, a member of 
the Supreme Court Advisory Committee and then As­
sociate Judge of the New York State Court of Appeals. A 
few days before the rules became effective he spoke before 
the New York University School of Law Institute on Federal 
Rules of Criminal Procedure. In discussing Rule 6(d), he 
said:

“ When I first heard of Federal criminal proce­
dure, I found that it was the practice to try to get 
rid of indictments by proving that someone was in 
the grand jury who had no right to be there, and 
usually it was some deputy marshal or somebody 
else, some unauthorized person, and then the great 
to-do was how to get a person authorized. One of 
the ways to get a stenographer authorized in those 
days was to have him sworn in as Assistant United 
States Attorney, when he really was nothing of 
the kind.

“ Now, cases have come up on motions to quash 
because of unauthorized persons in the grand jury 
room, so we drew up a little list as to who is au­
thorized. * * * We say * * * ‘ the witness under exami­
nation’—no one has ever moved to dismiss on account 
of his presence; ‘ interpreters when needed.’ Now, 
here is a little touch which we picked up because of 
the wide geographic distribution of the membership 
of our committee. We didn’t say ‘ an interpreter.’ 
We said ‘ interpreters.’

* # #
“ You have the same thing right here in New York; 

for example, a person who speaks only Turkish, a 
person who speaks only Greek and Turkish, a per­
son who speaks Greek and English. That is provided 
for.”

Before the adoption of the 1916 Rules this Circuit held 
that even under the 1872 statute, a nominal participation 
by an unauthorized person in the proceedings was sufficient 
to require the invalidation of an indictment. In Latham v. 
United States, 226 Fed. 420 (C. A. 5, 1915), this Court 
said at page 424:



28

“ The right of a citizen to an investigation by a 
grand jury pursuant to the law of the land is in­
vaded by the participation of an unauthorized person 
in such' proceedings, he that participation great or 
small. It is not necessary that participation should, 
he corrupt or that unfair means were used. If the per­
son participating was unauthorized, it was unlawful.
* * * We cannot therefore assent to the doctrine that 
the presence in the grand jury room of the steno­
grapher, and his participation m such proceedings 
to the extent of taking testimony of witnesses before 
the grand jury, is an informality, and unless pre­
judice is alleged and shown, the motion should be 
denied. It is in my judgment a matter of substance.
* * * We are therefore of the opinion that the assign- 
ment is sustained and the motion should have been 
granted, and the indictment quashed. (Emphasis 
supplied).

The court specifically approved the language of the District 
Court of Montana in United States v. Edgerton, 80 Fed. 
374, 375 (1897) when it said:

<< * * * The Court cannot know that this sugges­
tion [that there was no prejudice] represents the 
fact * * * The court cannot inquire as to the effect o± 
this conduct. There must not only be no impioper 
influence or suggestion in the grand jury room but 
as suggested in Lewis v. Commissioners, 74 C. 
174, there must be no opportunity. * * *”

See also United States v. Borys, 169 F. Supp. 366 (D. C. 
Alaska 1959); United States v. Rubin, 218 Fed. 245 (D. 
Conn. 1914); United States v. Amazon Industrial Chemical 
Corp., 55 F. 2d 254 (D. C. Md. 1931); United States v. Fall, 
10 F. 2d 648 (C.C.A. D.C. 1925).

In this case the Marshal was in the Grand Jury 
room together with two witnesses (Smith and the appellant 
in one case; and Fritz and appellant in the other). There 
is no authority in the statute for the Marshal to he present 
at all and as we have seen the Advisory Committee speci­
fically considered the problem in drawing the rule. Similarly,



29

there is no authority in the statute for two witnesses to be 
present before the Grand Jury simultaneously.

In fact, in the only case found in 'which two witnesses 
were present in the Grand Jury room at the same time, the 
Court, in dismissing the indictment, cited the Federal Rule 
and held:

. ,. think that historically and on principle an 
indictment should be dismissed when two witnesses 
have been presented together while the testimony of 
one or both was heard by the Grand Jury and that 

i? ^ecisl0n should not be made to depend upon 
whether or not a defendant was actually prejudiced 
thereby.”  Peo. v. Minet, 296 N. Y. 315, 321-322.

As we have already indicated, the court below in reading 
a requirement of prejudice into the rule (283a) clearly 
erred. In acutal fact, however, the appellant was prejudiced 
by the violation of Rule 6(d) here. The basic issue in this 
trial was identification of the girl who stood across the 
street from the picket line. Such identification was neces­
sary, not only at the trial, but also at the Grand Jury if 
an indictment was to be found. The identification was made 
by having appellant appear and confront Smith and Fritz 
before the Grand jury. Through that confrontation, identifi­
cation was made.

The court below, recognizing that "this question is not 
entirely free from difficulty”  (283a) relied on those cases 
which required a showing of prejudice before the indictment 
could properly be dismissed.

The court relied principally on what it found to be the 
■holding m United States v. Terry, 39 Fed. 355, 361 (D C 
CaHfi,_ 1889), quoting the phrase “ The mere presence of 
he District Attorney when the voting takes place is at 

most an irregularity” . In fact, the full quotation is:

,, me,r® presence of the district attorney when
the voting takes place is at most an irregularity, 
which, when there is no proof or averment of injury



30

or prejudice of the defendant, is a matter of form, 
and not of substance, within the scope of  ̂1025 Rev. 
Stat. U. S.”

If anything, the Terry case is authority for appellant. 
The court there considered the statute in California, which 
was similar in purport to the present Rule 6(d). It dis­
agreed with the policy of that statute and then said, at 
p. 361:

“ The provisions of the Penal Code of California 
are not binding on the federal tribunals * * * . The 
United States Statutes contain no such provision.”

But now, the United States rules do contain such a 
provision, and the appellee can gain little comfort from 
Terry.

The court below also relied upon three state cases: 
State v. Canatella, 72 A. 2d 507 and State v. Krause, 50 
N. W. 2d 439, where those courts suggested that, in the 
absence of a statute (there being none in those cases), there 
must be a showing of prejudice, and Rush v. State, 45 So. 
2d 761, where the court held that a defendant must show 
injury. This court has before it a clear rule which by its 
terms requires no showing of prejudice, and a situation in 
which actual prejudice of a most substantial kind did 
occur.

Finally, the court below cites Hale v. United States, 25 
F. 2d 430 (C. C. A. 8, 1928) for the proposition that the 
presence of a stenographer did not depart from the statu­
tory rule. The stenographer in that case was in fact an 
Assistant United States Attorney General, authorized by 
order of the court to conduct Grand Jury proceedings, and 
therefore within the letter of the statute; furthermore, the 
1872 statute, requiring a tendency to prejudice, was appli­
cable there.



31

P O I N T  I I I

. The P^iudice against the class of which aooeliant 
is a part was so great as to have required a transfer 
of trial to a less hostile district.

3 h!  ^  Fu°Vide f° r tte trans,cr of a trial “ otterdistrict when there exists, where the prosecution is pondim. 
great prejudice against the defendant, F.R.C.P 21(a) In 
actuai fact in most instances, the prejudice is not directed 
at the particular defendant, but rather at a group or class 
of persons with which the defendant is identified in the 
minds of prospective jurors. United States v. Mesarosh,

a, ' ' 80 J i ’ D' Pa-’ 1952)—Communists; United
Mates v. Dioguardi, 28 F. R. D. 33 (S. D. N. Y. 1956)—
ra f ; Pne°Ple V' Ryan’ 123 Misc- 450> 205 N. Y. Supp

4 a925)—Cathohcs; People v. Lucas, 131 Misc. 664, 228
V w ’ ^iUe7 ' i 3A  m928)~ Negroes; People v- Sanches, 181 S. W. 2d 87, 147 Tex. Cr. 436 (1944)-Mexicans.

The affidavits and testimony of each of appellant’s 
twenty-one witnesses (12a-86a) in support of the applica­
tion for transfer of trial to a district where the prejudice 
*as not present have a common theme. Each recognized 
the ccmipkx nature of the basis of prejudice in the context 

ere presented, and each analyzed in detail the cultural
l n s l S0C1t  v01̂  at W° rk throuShout recent Southern lstoiy which militated against the likelihood of potential
veniremen meeting the required standard of impartiality.
Without exception, the appellant’s affiants indicated that in
• er Person.and by her activities, appellant placed herself
of thhepP° Sltl0n 0ne 011 whom tlie tensions and prejudices
Thp f  ,  T t 7 Zl™  f0Cused with greatest intensity, llie facts speak for themselves:

1. The appellant is a white student participating in 
the organizational work of a group (SNCC) which is and 
as been publicly vilified m the district with regularity 

and intensity. One of the avowed aims of the organization



32

is to register eligible Negro voters, challenging, by this 
activity, the political structure of county and state (14a, 
32a, 81a, 85a).

2. The appellant is a white girl living in proximity to 
Negro males as part of her daily work. The uncontro­
verted testimony accurately reflects the community’s deeply 
ingrained negative view of persons who violate the sexual 
taboos widely prevalent in the South. The testimony is 
that the reaction of a white Southerner would be to infer 
that the appellant had sexual relations with Negro males 
merely because of such proximity (35a, 41a, 82a, 85a).

3. The appellant is from the City of New York; this 
fact alone heightens the prejudice already present towards 
one who is situated as the appellant has been. The appel­
lant would be:

“  * * # tried under a special handicap, because a 
white person from the North who comes South to 
work for racial integration becomes the object of 
a powerful prejudice against ‘ outside agitators’. 
This prejudice is deeply rooted in Southern history, 
going back to Reconstruction days, and has been 
reinforced in the recent years of racial tension. It 
is well established in socio-psychological analysis 
that xenophobic attitudes are intensified under con­
ditions of tension. Such conditions have pervaded 
the Albany area, and the South in general, in the 
last few years. Suspicion and hostility directed 
against the outsider are not just random in the 
population, but under the particular circumstances 
of the South have become embedded in the culture of 
the region.”  (Affidavit of Howard Zinn, 14a-15a). 
See also 17a, 32a, 38a, 40a, 43a, 44a, 49a, 65a, 78a, 
83a, 143a.

The affidavits submitted in opposition to the motion 
for transfer of trial (100a-138a) failed to meet or even 
to acknowledge the existence of this deep-seated feeling 
among citizens in the district and in the South generally; 
indeed they made no effort to answer appellant’s evidence.



33

This condition has been described by such illustrious 
deponents as Dr. Harold J. Lief, Professor of Psychiatry 
at Tulane University (34a-36a); Harry S. Ashmore, former 
editor of the Arkansas Gazette and now director of research 
of the Encyclopedia Britannica (84a-86a); Kenneth Clark, 
Professor of Psychology at the College of the City of New 
York (71a-72a); Warren Breed, Professor of Sociology 
at Tulane University (66a-70a); and John Kenneth 
Morland, Chairman of the Department of Sociology at 
Randolph-Macon Women’s College, as an inability to 
recognize the prejudicial effect of the cultural and social 
environment on white Southerners for the last hundred 
years.

It is not suggested that affiants for the prosecution in 
any way misrepresented their understanding of the situa­
tion. Rather, it is that the nature of the social-cultural 
structure render them unable to perceive the effect which 
the appellant or anyone else so situated has upon them.

As pointed out by Professor Breed:

“ (b) Given this tradition, and the fact that it 
is found to be difficult for an individual to maintain 
attitudes which oppose the views of liis parents, 
friends and associates, and which are institutional­
ized in the community life, one can conclude with 
a high degree of assurance that any panel of 
Southerners would be predisposed to reflect this 
shared attitude. It is not only deeply lodged -within 
the individual, but is reinforced by the attitudes of 
the relevant others. Furthermore, on an occasion 
such as a jury trial involving a civil rights issue 
which becomes known to the public, one would expect 
psychological pressures on the jury member in the 
form of anticipating the consequences of a verdict 
which fails to uphold this tradition, and perhaps 
also certain objective pressures as well. By ‘ con­
sequences’, I mean the consequences of his action 
for the individual juror, that he may anticipate 
would befall him in the event of a jury verdict of



34

acquittal. I wish to stress the notion of ' anticipa­
tion’ ; it is quite possible that no serious harm would 
come to the juror in such an event; what is signifi­
cant is the kind of consequences he may imagine 
while in the process of decision. Having lived among 
his fellows for many years, he will consider these as 
well as the pure justice of the case, and the objective 
facts adduced during the proceedings.”  (68a-69a)

The United States Justice Department and the Attor­
ney General have time and again recognized the prejudicial 
nature of juries in the race relations context, and have 
made it the basis of their decision not to bring actions on 
behalf of civil rights advocates (21a-30a).

The appellant does not suggest that a Negro can never 
obtain a jury trial free from prejudice in this division. 
In those circumstances where the mores of the community 
are not placed in jeopardy by the activities of a defendant, 
such as prosecutions pursuant to 26 U. S. C. 5601 et seq. 
for “ moon-shining” , the paternalistic attitude toward the 
Negro felt by many white Southerners might even be 
helpful to a Negro defendant. It is only where, as here, 
there is a direct confrontation between the social structure 
of the community and the acts of an individual, that the 
prejudice is so great as to warrant a transfer of trial to 
a jurisdiction where the social conditions do not make 
almost inevitable a finding of guilt unrelated to the facts 
as presented.

Where there is presented to the court, as there was to 
the court below, uncontroverted and well documented scien­
tific analyses of the facts which, taken together, demon­
strate substantial prejudice, the standards by which courts 
determine whether the conditions exist for transfer of trial 
must be enlarged to include such factors. For a court to do 
otherwise would be to ignore the realistic considerations 
which make a fair trial impossible here.



35

As Mr. Justice Holmes said many years ago:
“  * * * This is not a matter for polite presump­

tion; we must look facts in the face. Any judge who 
has sat with juries knows that, in spite of forms, 
they are extremely likely to be impregnated by the 
environing atmosphere. * * * ”  Frank v. Mangum, 
237 U. S. 309, 349 (dissent).

More recently, this was expressed in Delaney v. United 
States, 199 F. 2d 107, 112 (C. A. 1,1952):

“  * * * One cannot assume that the average juror 
is so endowed with a sense of detachment, so clear in 
his introspective perception of his own mental proc­
esses, that he may confidently exclude even the un­
conscious influence of his preconceptions as to prob­
able guilt* * *.”

Where it appears that community prejudice will prevent 
a fair and impartial trial, relief under Rule 21a must be 
granted. United States v. Rositer, 25 F. R. D. 258 (P. R. 
1960); United States v. Parr, 17 F. R. D. 512 (S. D. Tex., 
1955); United States v. Florio, 13 F. R. D. 296 (S. D. N. Y. 
1952).

P O I N T  I V

Appellant had a right under the Constitution and 
the federal rules to waive a jury trial under the circum­
stances of this case.

The method of selecting petit juries, the nature of the 
issues in this case, and the attitude of the community toward 
“ interfering Northerners”  raised substantial questions as 
to the possibility of a fair trial in the Macon Division. Ap­
pellant had attacked the composition of the jury list in the 
pre-trial proceedings; she had also moved for a transfer 
of trial. Those motions having failed, she sought to waive 
her jury trial and to try the case to the court. Her counsel



36

made that proposal to the United States Attorney during 
the week before the trial (361a). In return, counsel received 
a telegram from the United States Attorney saying In 
view of trial being set for November 12 and jury having 
already been subpoenaed this office will not consent to de­
fendant waiving trial by jury”  (362a).

Prior to the trial, appellant moved for a waiver of jury 
urging first that the right to waive a trial by jury is a con­
stitutional right of the defendant (362a), and second, that 
even if Government consent is required for a waiver, such 
consent was here unreasonably and arbitrarily withheld 
(363a). The court denied the motion, stating:

“ Well, I think I ’ll overrule that motion. We have 
here the question of knowledge and intent, do we not, 
in this case, intent to violate the law. That iŝ  the 
charge is knowingly testifying falsely. That’s a 
proper issue to have 12 people pass on rather than 
one, I think”  (364a).

Appellant’s reasons for wishing to waive a jury are 
clear enough. Jurors are more prone to bias than judges; 
they are less likely to be affected by decisions of the appel­
late courts in the series of cases since Brown v. Board of 
Education, 347 U. S. 483; they are less likely to be affected 
by the profound changes in our social and legal philosophy 
which have taken place in the past ten years with respect 
to the racial problems in the South. Therefore, with the 
denial of the appellant’s motions addressed to the jury list 
and to the place of trial, the appellant’s motion for a trial 
by a judge rather than a jury raises problems not only 
under Article III,  ̂2, and the Sixth Amendment to the 
Federal Constitution, but also under the Due Process 
Clause of the Fifth Amendment.

The last paragraph of Article III, § 2, of the Constitu­
tion and the Sixth Amendment guarantee the appellant the 
right to a trial by jury in a criminal case. It is clear that 
these provisions of the Constitution were adopted for the



37

benefit of the defendant in a criminal case and not for the 
benefit of the Government. See Annals of Congress, 452, 
458, 783-85, 787-89 (Gales ed. 1834); Rutland, The Birth 
of the Bill of Rights 1776-1791 (1955), passim; 3 Story, 
Commentaries on the Constitution of the United States, 
^§ 1773-74 (1833). A  “ trial by jury was considered solely 
a defendant’s safeguard against arbitrary government 
prosecution when the Constitution and the Bill of Rights 
were adopted” . United States ex rel. Toth v. Qu-arles, 350 
U. S. 11, 16.

Article III, § 2, as the Supreme Court has said, is not 
jurisdictional in the sense that a court without a jui’y is 
an incompetent tribunal. Patton v. United States, 281 
U. S. 276. It “ was meant to confer a right upon the ac­
cused which he may forego at his election”  (281 U. S. at 
298). In Adams v. United States ex rel. McCann, 317 U. S. 
269, the Supreme Court said, at 275, that there is “ nothing 
in the Constitution to prevent an accused from choosing to 
have his fate tried before a judge without a jury” .

Since the jury trial provisions were inserted to protect 
the defendant and since the court is competent to try a 
person accused of crime without a jury, there is in principle 
no reason why a defendant cannot waive a jury trial. 
Other constitutional rights designed to protect a defendant 
may be waived, such as the right to a speedy trial, Worthing­
ton v. United States, 1 F. 2d 154 (C. C. A. 7, 1924); the 
right to indictment, Barkman v. Sanford, 162 F. 2d 592 
(C. C. A. 5, 1947); the right to be confronted by witnesses, 
Diaz v. United States, 223 U. S. 442; Grove v. United States, 
3 F. 2d 965 (C. C. A. 4, 1925); the right to assistance by 
counsel, Adams v. United States ex rel. McCann, 317 U. S. 
269; Johnson v. Zerbst, 304 U. S. 458; the right to trial in 
the state and district of the crime, United States v. Jones, 
162 F. 2d 72 (C. C. A. 2, 1947); the right to a public trial, 
United States v. Sorrentino, 175 F. 2d 721 (C. A. 3, 1949); 
the right to protection against double jeopardy, Trono v.



38

United States, 199 U. S. 521; and the right to protection 
against self-incrimination, Powers v. United States, 223 
U. S. 303. In none of these cases is there any suggestion 
that the consent of either Government or court is necessary 
to make the waiver effective, nor was such consent required.

The Government and the court, however, rely on Rule 
23(a) of the Federal Rules of Criminal Procedure, which 
seems to require court approval and Government consent 
before a jury trial may be waived. We urge that if this 
rule gives the prosecution an absolute right to veto the 
defendant’s waiver of a jury trial, it is unconstitutional, 
being in violation of Article III, the Sixth Amendment and 
the Fifth Amendment. Further, that the rule as applied 
here operated to deprive appellant of very substantial 
rights and hence did not come within the scope of the 
rule-making power of the Supreme Court under Title 18 
U. S. C. § 3371.

We suggest, however, that Rule 23(a) can be read con­
sistently with the applicable constitutional and statutory 
provisions. As so read it requires that the defendant’s 
waiver of trial by jury must be respected unless und£r the 
peculiar circumstances of the case such a waiver will oper- 
afp to deprive the accused of a fair trial. No such circum­
stances was presented here; the contrary is true.

A. Rule 23(a) as here applied is unconstitutional.

Rule 23(a) is said, by the Notes of the Advisory Com­
mittee, to be an embodiment of existing practice as illus­
trated by the Supreme Court holdings in Patton v. Umted 
States, 281 U. S. 276, and Adams v. United States ex rel. 
McCann, 317 U. S. 269. It is therefore appropriate to con­
sider these cases in some detail.

The sole issue in the Patton case was the right of the 
accused to waive a jury and the court held that he had that 
right. No issue was raised by either briefs or record as 
to approval and consent by court and Government and



39

none could have been raised since such approval and con­
sent had been given. The concluding paragraph of the 
Court’s decision, wherein appears the language relating to 
“ the consent of government counsel and the sanction of 
the court’ ’ (p. 312) is therefore dictum.

Furthermore, the language of the rest of the opinion 
and the decision itself makes it obvious that the dictum was 
never intended to give to either the court or the Govern­
ment an absolute right of veto of a waiver of a jury trial. 
Indeed, the tenor of the Court’s opinion is to emphasize the 
great significance of a jury trial as a protection to and a 
privilege of the accused. Thus, the Court quoted with ap­
proval, at p. 295, the dissenting opinion of Judge Aldrich 
m Dickinson v. United States, 159 Fed. 801, 820 (C C A 1 
1908): ' ‘ ’

“ It is_ probable that the history and debates of 
the constitutional convention will not be found to 
sustain the idea that the constitutional safeguards 
in question were in any sense established as some­
thing necessary to protect the state or the commu­
nity from the supposed danger that accused parties 
would waive away the interest which the govern­
ment has in their liberties, and go to jail.

There is not now, and never was, any practical 
danger of that. Such a theory, at least in its appli­
cation to modern American conditions, is based more 
upon useless fiction than upon reason. And when 
the idea of giving countenance to the right of waiver, 
as something necessary to a reasonable protection of 
the rights and liberties of accused, and as something 
intended to be practical and useful in the adminis­
tration of the rights of the parties, has been charac­
terized, as involving innovation ‘ highly dangerous,’ 
it would, as said by Judge Seevers in State v. Kauf­
man, 51 Iowa 578, 581, 2 N. W. 275, 277, 33 Am. Rep. 
148, ‘have been much more convincing and satisfac­
tory if we had been informed why it would be highly 
dangerous. * * * ”



40

The Supreme Court itself, said at p. 296:
“ The record of English and colonial jurispru­

dence antedating the Constitution will be searched 
in vain for evidence that trial by jury in criminal 
cases was regarded as a part of the structure of gov­
ernment, as distinguished from a right or privilege 
of the accused. On the contrary, it uniformly was 
regarded as a valuable privilege bestowed upon the 
person accused of crime for the purpose of safe­
guarding him against the oppressive power of the 
King and the arbitrarv or partial judgment of the 
court. # * *

“ In the light of the foregoing it is reasonable 
to conclude that the framers of the Constitution 
simply were intent upon preserving the right of 
trial by jury primarily for the protection of the 
accused. * * * ”

None of this reasoning can lead to any conclusion ex­
cept that the right of jury trial is, constitutionally, the 
right of the accused and that his interest is the interest the 
Constitution was meant to protect. Hence it would follow 
that even if the Government and court may withhold their 
consent to a waiver of jury trial, it may do so only to pro­
tect the interest of the accused. The convenience of the 
Government, of the jurors or of the court cannot under the 
language of Patton be a ground for withholding consent.

The Adams case, supra-, involved the right of a de­
fendant who was not represented by counsel, to waive a jury 
trial. Here, too, the consent of the court and the Govern­
ment had been given and hence the need for such consent 
was not an issue in the case. The Court did not consider 
the need for consent except to repeat in substance the 
language of Patton. Again, the Court made it clear that 
the test to be applied was the welfare of the accused, noting 
at page 276 that

“ procedural devices rooted in experience were writ­
ten into the Bill of Bights not as abstract rubrics in



41

an elegant code but in order to assure fairness and 
justice before any person could be deprived of ‘ life, 
liberty or property’

In citing Patton, the Court said, at page 278:

“ And whether or not there is an intelligent, com­
petent self-protecting waiver of jury trial by an 
accused must depend upon the unique circumstances 
of each case.”

The Court thus delimited the scope of the authority of the 
Government or the court to withhold its consent, making the 
test one of the protection of the defendant. This is true 
because, said the Court at page 279: “ What were contrived 
as protections for the accused should not be turned into 
fetters” . We are forbidden “ to imprison a man in his 
privileges and call it the Constitution”  (p. 280).

The dissenting judges felt that the accused in the Adams 
case had not made an intelligent and competent decision 
to waive a jury and that he should have had legal advice 
before his waiver was accepted. No such situation is pre­
sented here.

The application of the Adams logic to the case at hand 
requires reversal. Here neither the court nor the Govern­
ment withheld its consent because of any extraordinary 
desire to protect the appellant. The Government withheld 
its consent because the jury had already been subpoenaed, 
a totally irrelevant consideration. It is not at all clear 
whether the court exercised any independent judgment on 
the matter. Its remarks, at 364a, in denying the motion, 
are cryptic. At most it may be said that the court felt that 
a charge of “ knowingly testifying falsely [is] a proper 
issue to have 12 people pass on rather than one.”  No rea­
son is given for this conclusion.

Neither of these reasons for withholding consent can 
be said to comport with the language of the Supreme Court



43

We cannot blind ourselves to the facts of life. The 
prosecuting attorney, under normal circumstances, is anx­
ious to secure a conviction. He is unlikely to consent to 
any procedure which, in tactical terms, will make a con­
viction less likely. Particularly is this true in a case where 
the defendant is represented by counsel, thus relieving the 
prosecution of whatever obligation it may otherwise have 
to protect the accused. With all respect to the rules laid 
down by the Supreme Court in eases such as Berger v. 
United States, 295 U. S. 78 and Pyle v. State of Kansas, 317 
U. S. 213, the prosecution cannot realistically be expected to 
sacrifice its own chances of securing a conviction by per­
mitting a mode of trial which is less likely to secure that re­
sult, even if, in the informed and reasonable judgment of 
the defendant’s counsel, such a trial would be more fair. 
Indeed the prosecution should not be put in a position where 
it may be subject to conflicting interests.

Therefore, to place under the control of the Govern­
ment the determination as to whether the defendant may 
waive a jury is unsound, not only as a matter of law but 
as a matter of public policy as well.

As a matter of fact, on the basis of the record there is 
no reason at all to believe that the prosecution was in 
any degree whatsoever interested in protecting the rights 
of the defendant to a fair trial when it withheld its consent. 
No doubt, it was interested in securing a conviction. We 
do not think that was improper; the impropriety lies in 
the court’s apparent ruling that the prosecution should 
have the right to veto appellant’s determination to waive 
her constitutional rights.

The court in a criminal case likewise has a limited right. 
It has the duty ‘ ‘ of seeing that the trial is conducted with 
solicitude for the essential rights of the accused” . Glosser 
v. United States, 315 U. S. 71. The judge’s own personal 
desire that issues of fact be tried by a jury rather than by



44

himself is quite irrelevant to the matter at hand. The issues 
at stake are considerably more important than any con­
siderations of convenience or preference.

Ours is an adversary system of justice even in criminal 
cases and the primary obligation for the protection of the 
accused must rest, in our society, on the accused himself 
and counsel. This is not an obligation which ought to be 
delegated either to the court or to the Government; to do 
so on this record had the effect of depriving appellant of 
a fair trial.

Many state courts have faced this problem, and they 
have been met in a variety of ways. The most recent deci­
sion is People v. Duchin, 16 App. Div. 2d 483 (2d Dept.) 229 
N. Y. S. 2d 46 aff’d 12 1ST. Y. 2d 351, 239 N. Y. S. 2d 670 
(Ct. of App. 1963). The court there had before it a con­
stitutional provision which permitted waiver with the ap­
proval of the court. Defendant was charged with rape in 
a case that had received a great deal of publicity. Feeling 
that he could not receive a fair trial before a jury, and 
acting through competent counsel, he sought to waive his 
right to a jury trial. The prosecutor refused to consent 
but gave no reasons; the court denied the waiver. The 
Appellate Division held that the judge had abused his dis­
cretion in denying waiver. It said:

“ The constitutional provision conferred on the 
defendant the right to have trial by a jury, or with­
out a jury, at his option, unless for some compelling 
reason arising out of the attainment of the ends of 
justice his option might not be honored. A contrary 
determination would sap the force of the Constitu­
tion and render it meaningless save at the uncon­
trolled will of the court.”  16 App. Div. 2d at 485- 
299 N. Y. S. 2d at 49.



46

there have been so many sensational newspaper 
stories about cases about to be tried that a defend­
ant honestly and sincerely could say that he would 
prefer the judgment of a single judge and not be 
tried by a jury of his peers. I don’t have to cite 
instances. You’re all aware of many of these cases. 
I have given some thought to the problem and bar­
ring compelling authority—my judgment is that the 
Rule that we presently have which requires the con­
sent of the prosecution conflicts with a defendant’s 
constitutional right to waive any constitutional right 
accorded him by the Federal Constitution, and that 
he does not require the consent of government to 
give up his right to a trial by jury * * *. So my 
answer to you is, and my own opinion is, that there 
is no requirement, constitutionally, that a defendant 
in order to give up his right to a trial by jury re­
quires the consent of the prosecution—that he has 
such a right, provided of course, that it be freely 
and voluntarily exercised.”  (34 F. R. D. 205).

An aspect of the issue presented here is now before 
the United States Supreme Court in Singer v. United 
States, 326 F. 2d 132 (C. A. 9, 1964); certiorari granted 
April 20, 1964, No. 898, October Term, 1963. There the 
accused sought to waive a jury trial “ for the purpose of 
shortening the trial” , the indictment containing 29 counts. 
(See Brief for the United States in Opposition to Petition 
for a Writ of Certiorari, p. 6.) His application to try the 
case to the court was denied by both prosecution and the 
court without assigning any reason therefor.

In our view of the law the Singer case requires re­
versal. Singer was represented by counsel and there is no 
suggestion that he did not knowingly waive his right to a 
jury trial. Similarly, there is no suggestion that his 
attempted waiver was in anything other than good faith. 
There seems to be no interest of the public which requires 
that he be compelled to proceed before a jury and thus, as 
Mr. Justice Frankfurter pointed out in the Adams case,



47

become imprisoned in his constitutional rights. The in

i^ th eT o lV t a fr F ° ne- Jt may weI1 have
nf ^  i S t° r „Genera S mmd when> in opposing a writ 
of certiorari m Singer, he suggested that a different result
m;ght have followed if d e f ia n t  had argued t £ “ l ? u r v

O p p o X n  ^  b<5 " nfair”  <Brief Sta‘ eS “

li»n0 nD S . I ™ > i ° f  !hiS SU,latl0n re«uires considera- 
mea’t and the l *  ," ,C? rel<'d as b’ ™ g  to the Govern- 
ft de™ ^  ™ absokte veto over appellant's right
beetTe u k ' ^ 7  f  “ S CaSe> “  is " “ constitutional because it is m excess of the power of the Supreme Court
under both the Constitution and 18 U. S. C. § 3771.

Supreme Court f t ° '   ̂3771( deleSates ‘ ° the United States supreme Court the power to prescribe “ rules of pleading
practice and procedure • • * in criminal cases” . Obviously
the power of the Court can extend only to matters of
procedure. Not only does the enabling statute so limit

e court s authority in express language, but any other
inclusion would violate the fundamental concep/of our

to p t s t w s  SySte“  W“ Cl r6SerVeS ‘ °  C° n«ress ‘ ba tight 

i 139 F' 2d 721 (C- a  «■

Co ^ ? d i n r e 4 :“ Lfrtat ^
giv7en USrb y yiawP” CCd" ral r“Ie “ sabstakiaI tight

In Barltman v. Sanford, 162 F. 2d 592 (C C A 5 1947 \ 
this court said: ’

posedbv t Ct, that then Ule Was aPProved and pro- P y  he Supreme Court also supplies it with an
f£ V  f  reat,’ but not complete, invincibility. The 
act that a rule was promulgated by the Supreme



48

Court does not raise it above the Constitution, never­
theless, the source of the rule is such as to suggest 
strongly that all who enter into its forum of con­
troversy should tread lightly even though we con­
sider it merely as a congressional enactment.”  (593)

And, in United States v. Sherwood, 312 U. S. 584, 589, 
the Supreme Court, in considering its analogous power to 
make rules in civil proceedings, said:

“ An authority conferred upon a court to make 
rules of procedure for the exercise of its jurisdiction 
is not an authority to enlarge that jurisdiction and 
* * * 28 U. S. C. § 723b * * * authorizing this court 
to prescribe rules of procedure in civil actions gave 
it no authority to modify, abridge or enlarge the 
substantive rights of litigants or to enlarge or dimin­
ish the jurisdiction of federal courts.”

See also, Mississippi Publishing Corp. v. Murphree, 326 
IT. S. 438.

It can hardly be said that the question of whether appel­
lant was to be tried by a court or a jury was a mere proce­
dural matter. The right of jury trial has always been 
recognized as one of the foundation stones of the legal 
system; the right to waive the protection of a jury trial 
when exercised knowingly, with the assistance of diligent 
counsel and in a setting in which such waiver is reasonable, 
is equally fundamental. To hold that Rule 23(a) subjected 
that right to a veto by the prosecution—a veto to be exer­
cised for any reason or for no reason at all—certainly 
affects appellant’s fundamental rights in this case. If 
Rule 23(a) takes on the meaning given it by the court below, 
it goes far beyond the right to set “ rules of procedure”  
delegated to the Supreme Court by § 3771.



49

B. Rule 23(a) may be interpreted to avoid 
constitutional invalidity.

The Supreme Court has held that a ruling on the con­
stitutionality of a statute will be avoided “ if a construc­
tion of the statute is fairly possible by which the question
may be avoided” . Rescue Army v. Municipal Court, 331 
U. S. 549, 569.

It is implicit in everything we have said before that 
such a construction is possible here. The rule may fairly 
be construed to mean that the accused has a right to waive 
his trial by jury and that the consent of the Government 
and court are required only to protect the defendant who 
has no counsel, or who may, for other reasons, be acting 
unwittingly and without a full awareness of what he is 
doing. Such a construction is consistent with the language 
m the Patton and Adams cases, as well as with the best 
reasoned of the state court cases. It is not inconsistent 
with the holdings of most of the lower federal court deci­
sions which, in most part, merely repeat the Patton dictum, 
t reduces the rule to the level of a procedural device for 
he protection of a helpless defendant, hence bringing it 

within the power of the Supreme Court under § 3771. °
And most of all, it protects the constitutional rights of 

a defendant who is represented by counsel to make her 
own determination as to what is best for her instead of 
leaving that determination to be made by others.



50

P O I N T  V

The conduct of the United States Attorney before 
the Grand Jury was inflammatory and required dis­
missal of the indictments.

The United States Attorney’s interrogation of appel­
lant before the Grand Jury included the following:

“ Q. Now, where did you say you were presently 
living? A. 504 South Madison.

Q. Is that in Albany, Georgia? A. Yes.
Q. Is that in what they call, refer to in Albany, 

as the Harlem area, section of town? A. Harlem?
Q. It is the Negro residential area? A. Yes, sir. 

(319a) * # *
Q. Why was it that you decided to go to Albany, 

that is what I am questioning you about now. Did 
you go of your own volition or did someone— A. Of 
course, I went on my own volition.

Q. Did someone suggest or direct or ask you to 
go there? A. No, of course not. I decided that I 
wanted to work in voter registration, and that is 
where there was work being done in voter registra­
tion, so I went.

A Juror: I didn’t understand her answer.
A. Voter registration; that is, you know, asking 
people if they want to register to vote. I t ’s voter 
registration.

Q. Did you do that type of work in New York 
State before you came to Georgia? A. No.

Q. You decided you would come down and help 
the Georgia people vote? A. Excuse me, could you 
restate that question?

Q. I was trying to find out where you got the idea 
that you wanted to help Georgia people vote; you 
said you didn’t help the New York people vote? A. 
Well, I wasn’t worldng in voter registration in New 
York City. As a matter of fact, I wasn’t even living 
there. I was going to school in Ohio to college. (321a)

* # *



51

9 ; You say you are working for SNCC in voter 
registration: where are you registered to vote ? A

i - f f teref  I was out of the Country on 
my lis t  birthday.' ““  “ le la8‘  ele0ti° n a(,er
bntQvnI°U are hf Iping °-ther People register to vote,
T ^ t-s  r i S r (°S37a)r<iglStere<i T° ter y0Urself? A '

A. ? d S t a o ® ^  Sam We‘iS’ busiMSS in AIba^ !
Q. Well, how do you know him? Do you know 

him on a social basis or business basis or how do 
you know him? (333a) 0

* * *
A S ’ , ^ 1S f .uany to y°u> what is going on here? 
A - y,0>lt. ls not funny. It is very sad.

Q. Is it funny in New York State? A. No. (330a)
*  *  *

A S' N̂ V’ do you know a man by the name of 
Arthur Clarence Searies? A. Mr. Searles, you mean 
from the Southwest Georgian ♦

Q. That’s right? A. Yes.

talk? heard Mm ^  4 SPe“ h ° r
Q. In public or private or in secret? (337a)

* * *
yo? r connection with Colbert and Woodall; is it social? (338a)

* * »
nml% S ss. Rabinowitz, it was reported to me—
and if I m in error you correct me—it is my under-

that a mtr you aPPeared in this grand jury,
lu I T t h N  n Tj ursda5' or Friday, that you (vent out m the hall and someone placed a black arm-band
around your arm; is that true? A. Someone?

bl. 1 11 ask you if a black arm-band was put on 
your arm after you testified before this grand jury?
A. Yes sir, I put it on myself. J y

Q. You put it on yourself? A. Yes.



52

Q. Do you have that black arm-band with you? 
A. No.

Q. What was it you suggested to the people out 
there in the hall and what was that symbolic of, that 
black arm-band? A. Well, we wear it sometimes in 
Albany when we feel that an injustice is being com­
mitted, and it signifies that justice is dead. And I 
was rummaging through my hand-bag and I found 
it there, so I put it on.

Q. Well, you wasn’t in Albany, Georgia, when you 
put it on here last week; this is Macon, Georgia? 
A. That’s right.

Q. Well, what explanation do you have for put­
ting it on your arm out there in the hall of the United 
States Courthouse outside this grand jury? A. I 
don’t have any explanation.

Q. Were you suggesting to the people out there 
in the hall and to the other ones that were in sight 
of you that this grand jury was committing an in­
justice for investigating matters concerning viola­
tions of the Federal laws? A. I wasn’t suggesting 
anything.

Q. And that’s the only explanation you have for 
putting it on? A. That’s right.”  (340a-341a)

The foregoing lines of questioning were calculated to 
suggest that appellant, a young white woman lived in the 
“ Harlem”  or “ Negro residential area”  of Albany and that 
she maintained social relationships with Negro men. The 
questions mocked her motives in coming to Albany, ques­
tioned her sincerity and in asking about the episode of the 
black arm-band suggested that she was accusing the Grand 
Jury of committing an injustice.

Clearly none of these questions had any relevance to 
the Grand Jury’s investigation. Equally clearly, as the 
record and the brief show elsewhere, these questions were 
addressed to matters which would shock the average white 
Southerner and stir up hostile feelings against appellant.



53

The Fifth Amendment requirement that felonies be 
prosecuted by indictment carries with it a requirement 
ttiat the prosecution do nothing to prejudice the Grand

ltS dellberati011- United States v. Wells, 163 Fed 313 (Ida., 1908).

Where questions of a less inflammatory nature were 
asked of a Grand Jury witness, a subsequent indictment

™2 ™  ’T m  S,a‘ W  D,Gnzia■ 213 R  s “ pp-. ' . ; 1 1963) because the questions were “ clearly
prejudicial and could only be calculated to discredit and 
impugn her m the eyes of the jurors” . 213 F. Supp. at 
33o. lhe court went on to say:

• i e7-erf asuminS *be presentation of other 
evidence which, m itself, would have warranted the
^  ™ust necessarily be pure speculation
S i  fSther that evidence or the prejudicial con­duct of the prosecutor or both prompted the Grand 
Jury’s action. * * * These principles are so well
elaboration.1* , f nSprudence as to require

Where the Government engages in prejudicial conduct, 
the test to be applied by the courts in safeguarding the 
rights of an accused is not the “ rock bottom requirements 
of the due process clause”  but the higher requirements of 

civilized standards”  which the court should invoke in the 
exercise of its supervisory power over the administration of 
Federal criminal justice. Delaney v. United States, 199 F

318 U/S1 3332-340.G A' 1952> ’ M a , M  V' U ' M e d

in the proper conduct of th r im n d T u iy -a n  interest 
the Court should protect. * * * And finallv tbo 
public interest demands that the Court’s processes 
be not used to defeat that fundamental fairness 
which must mark all judicial proceedings.”  Appli­
cation of United Electrical, Radio d  Machine Work-
1963°/ A m e r i c a ’  111 F' Supp- 858> §69 (S. D. N. Y.,



56

witness testifying about an incident of which the jury 
apparently felt she had information. On August 5 and 9, 
without warning, appellant was the subject of an inquiry 
into her own purported perjury. At no time did the jury 
or the prosecutor advise appellant that they had received 
evidence contrary to hers. They were, so far as she knew, 
simply continuing the inquiry which had earlier been in 
progress.

Thus, two vital changes had occurred after August 1: 
a new inquiry was commenced and appellant’s status became 
that of prospective defendant. Yet she was given no warn­
ing that she was in peril. Had she known, she could have 
protected herself by invoking her privilege against self­
incrimination. By losing that opportunity she was sorely 
prejudiced. Whether done in good faith or not, the failure 
to advise appellant of the subject of the inquiry, particu­
larly after it shifted, and to warn her that she was likely 
to be indicted, amounted to a deception which should not 
be countenanced.

Another fatal defect vitiates the indictments. The 
Grand Jury was without power to indict appellant for her 
testimony on August 5 and August 9. She had appeared 
and testified fully on August 1 to the effect that she had 
no personal knowledge or recollection concerning the picket 
line.

There was no purpose for her recall on August 5 and 9 
except to lay the groundwork for a perjury charge. The 
testimony on the latter days had nothing to do with the 
picketing itself; except for the inflammatory black arm- 
band questioning (340a-341a), the question was confined to 
appellant’s purported presence at Carl Smith’s. The jury 
did not learn, nor could it have learned because of the nature 
of the questions asked, anything it did not already know 
about the picketing.



57

Interrogation made for the purpose of prosecute f o r
perjury does not come within the competence of a G°rand

ry and testimony so obtained is not material within the meaning of Title IS TT q n *1001 1IicUeriai witnm the

$  ^ % t Z t : ; eCr7?
140 F. Supp. 383 (D. C. D. C. 1956).* V' Icardl>

Crfss°suvra a r T ^  ^  United States v-oss, supra are squarely m point. In the Brown case de

clcA for p,erjnry before a
gronnds tha^th. °  f P' alS reVersed his »n the
purpose of 8 WCre PUt ,0 defend“ >‘  for the
s ° H s i ° e t r ^ : tp„er y indirfm“ ‘ - The ««■ *the United States AHn Puipose on the fact that
W  'vhal defendant’s

swore differed '7 '“" ft defendant’ and ‘ hat these an-
b X e  C o l d T n r t  r ° “  f t 10" 8 ° f  ° th“  witnesses
at 5551 t b - i f y' ^ us’ the court said (245 F 
at 555) that the purpose of the United States Attorney W :

about thet°talktinCtwh[c°bmt his testimony
Louis on M a v l iq f  he- had taken part in St.
of it differed from thaZof'tf^  lllS reeollection
to get him indicted for perU v °{? f7  PrT nt’ and
of the parties to that 7i i- k? ew how each
membered it b e l t L c h  ;defald“ ‘ ’ re‘
ment to investigator Q+vni« d kls sworn state-
to the talk had already ” ; S  t ere<! ° f partiesit to the grand iurv bpfrA v*  tkeir, leeoHection of — ___ ° a 3ur^ before Few comb called defend-

tcCFofr-' t ? and ^  v.
mittees, the c „ urt 7 7 2 7 ? congressional com-
United States, supra treated the h iW  S  i  SUpra’ and M a^ i a  v. 
o f the issues o f  coSpetencv ,> ^  Cases as disP°*'tive
jury before a Grand Jury. ' I31ty m Cases mvolving per-



60

Law
The role of the prosecution in a criminal case is not 

simply to obtain convictions, but rather to insure that 
every element of a fair trial is present. The classic state­
ment is found in Berger v. United States, 295 U. S. 78, 88:

“ The United States Attorney is the representa­
tive not of an ordinary party to a controversy, hut 
of a sovereignty whose obligation to govern impar­
tially is as compelling as its obligation to govern at 
all; and whose interest, therefore, in a criminal pros­
ecution is not that it shall win a case, but that justice 
shall be done • *

It has long been held that where the prosecution, 
whether in a state or Federal case, deliberately suppresses 
evidence, there has been a denial of due process. Pyle v. 
Arkansas, 317 U. S. 213; United States ex rel. Thompson 
v. Dye, 221 F. 2d 763 (C. A. 3, 1955), cert. den. 350 
U. S. 875; United States ex rel. Montgomery v. Ragen, 
86 F. Supp. 382 (N. D. 111., 1949); Ashley v. Texas, 319 F. 
2d 80 (C. A. 5, 1963); United States ex rel. Almeida v. 
Baldi, 195 F. 2d 815 (C. A. 3, 1952), cert. den. 345 U. S. 
904; United States v. Zborowski, 271 F. 2d 661 (C. A. 2, 
1959); Application of Kapatos, 208 F. Supp. 883 (S. D. 
N. Y., 1962); Smallwood v. Warden, 205 F. Supp. 325 (Md., 
1962).

The suppression of such evidence is improper, even if 
done in good faith. In Griffin v. United States, 336 U. S. 
704, evidence known to the prosecution was not given 
to the defense because of the prosecuting attorney’s be­
lief that it was not admissible. On remand, 183 F. 2d 
990, a new trial was ordered, the court noting, at page 993:

“  * * * However, the case emphasizes the neces­
sity of disclosure by the prosecution of evidence that 
may reasonably be considered admissible and useful 
to the defense. * * * ”

In United States v. Cotisolidated Laundries Corp., 291 F. 
2d 563 (C. A. 2, 1961), the United States had been directed



61

by the court to turn over to defendants certain business 
tiles of the complaining witness in an antitrust prosecution. 
Because some papers had been misfiled, the defendants were 
not aware, until after the trial, that the disclosure was 
incomplete. The fault of the United States Attorney was 
simply negligence, and the omitted papers were useful only 
for impeachment. Nevertheless a new trial was directed.

A somewhat similar situation was presented in United 
States v. Heath, 147 F. Supp. 877 (Hawaii, 1957), appeal 
dismissed, 260 F. 2d 623 (C. A. 9, 1958). There, on a pre­
trial discovery motion, it appeared that papers useful to 
the defense had been lost by the United States Attorney, and 
tlm district judge suggested that a motion to dismiss the 
indictment be made. The motion was made and granted. 
The court expressly noted that the lack of any bad motive 
on the part of the prosecution was not of importance. The 
controlling element was the injury to the defendant in mak­
ing his defense.

The duty to disclose is not limited to documentary evi­
dence. It applies to information given to the prosecuting 
attorney verbally by a police officer. United States ex rel. 
Thompson v. Dye, supra. In the latter case, habeas corpus 
was granted even though the evidence withheld was merely 
cumulative.

The rule extends even to evidence not proved to be with­
in the prosecutor’s knowledge, if he should have known it. 
In United States ex rel. Montgomery v. Hagen, supra, the 
defendant discovered long after his conviction of rape, 
that a doctor’s examination and hospital report of the vic­
tim disclosed that she had in fact not been raped. The 
court stated, 86 F. Supp. at 387:

“  # # * It is repugnant to the concept of due 
process that a prosecutor introduce everything in his 
favor and igaiore anything which may excuse the 
accused for the crime with which he is charged. * * * ”

Because the medical reports were readily available to the 
prosecutor, he was charged with knowledge of them.



6 2

Most recently, the Court of Appeals for the Second 
Circuit, in United States ex rel. Meers v. Wilkins, 3-6 1.
2d 135 (C. A. 2, 1964) granted a writ of habeas corpus dlS‘ 
charging a state prisoner where the prosecution failed to 
disclose that police had interviewed two witnesses who 
stated the defendant was not the man they had seen commit
the crime.

Under the cases cited, it is unquestionable that appel­
lant would be entitled to habeas corpus after conviction be­
cause of the failure by the Government to disclose excu p 
tory evidence. The question is whether analogous relie 
is available before or at trial.

It would be absurd to hold that the appellant (as well 
as the court and prosecution) must proceed to trial and e 
convicted, knowing that ultimately she may well be re^ S 
on habeas corpus. This would be a mockery of efficient 
judicial administration. In most of the cases, of course 
the defendant did not learn of the exculpatory evidence 
until after conviction, although in Brady v. Maryland, 37 
U S 83, a request was made, as was done here, pnoi to 
trial.' To protect the rights of a defendant it may be neces- 
sarv to grant relief long after completion (In he Meers 
case a qnarter of a century had elapsed.) But the pre­
ferred course is to have all available facts presented at
trial.

It has been held that the only discovery available to a 
defendant in a Federal prosecution is that afforded by Rules 
16 and 17(c). That being the case, it must be by means o 
a Rule 17(c) subpoena that the defenadnt can obtain ex­
culpatory evidence in the possession of the prosecution.

It is true that Rule 17(c) has been given a rather nar­
row construction by some of the District Courts (see e g 
United States v. Iozia, 13 F. R. D. 33o (S. D. i . ., i  )•
But more persuasive are such cases as United States v.



63

O’Connor, 237 F. 2d 466 (C. A. 2, 1956) where the court 
said at page 476:

“  * * * Although these rules [16 and 17(c)] have 
different functions and applications, they serve a re­
lated purpose: to enable the accused to meet the 
charges presented against him. They should be 
liberally interpreted to carry out this purpose. * * * 
[The defendant] should not be denied information 
relevant to his defense by a restrictive interpreta­
tion of the Federal Buies of Criminal Procedure.”

See also United States v. Eissner, 206 F. Supp. 103 (N. D. 
N. Y., 1962), which notes with approval the trend toward 
broader disclosure exemplified by the O’Connor case.

We have seen that the Fifth Amendment requires ex­
culpatory matter be given by the prosecution to a defendant 
in a Federal case. And the imperative is so strong as to 
apply to state prosecution under the Fourteenth Amend­
ment. United States ex rel. Meers v. Wilkins, supra; Brady 
v. Maryland, supra. I f such a right is fundamental to a fair 
trial, then a trial, to be fair, cannot be conducted so as to 
deny a defendant access to exculpatory material. If, con­
trary to appellant’s belief, Eule 17(c) is not authority 
for the subpoenas, then the Constitution itself is authority.

The objections that compliance with the subpoenas 
would be burdensome and unreasonable is patently with­
out merit. As the argument on the motion to quash made 
clear, the appellant sought only exculpatory material. By 
its nature, relevant reports and statements of witnesses 
would be of limited volume and could be easily segregated 
from other papers and produced in court. To the extent 
some administrative burden would have been involved, it is 
far outweighed by the need to protect the constitutional 
rights of one accused of a crime.

The Government’s objection that the subpoenas called 
for non-evidentiary material might be well taken if this



67

(553a-650a). Many of them had participated in the picket- 
ing (555a, 587a, 615a, 644a); some had been arrested at the 
time of the picketing (587a); some of them were children 
(565a, 589a, 600a, 610a, 614a, 644a). All but one, knew 
both appellant and Joyce Barrett well and could easily 
distinguish between them; all of them testified that the 
white girl across the street from the picketing was Joyce 
Barrett and that appellant was not present (554a, 583a, 
601a, 611a, 613a, 622a, 627a, 634a, 636a, 639a, 645a, 648a). 
All of these witnesses were Is egro. One was an employee 
of Carl Smith and he saw the picket-line when he got back 
from dinner (600a).

Appellant then called the United States Attorney (650a- 
664a), the editor and publisher of the Albany newspaper 
(664a-667a), the agent of the Federal Bureau of Investiga­
tion in charge of the case (667a-689a), and the Chief of 
Police of Albany (689a-696a). They were called to ascer­
tain whether they had known or now knew of any photo­
graphs which might have been taken of the white girl stand­
ing across the street. All of them denied having any such 
photographs. The United States Attorney, who had ques­
tioned appellant concerning motion pictures when she was 
before the Grand Jury, testified that at the time of the 
questioning he had not seen the motion pictures; in fact, he 
did not see the photographs at all until months later (654a), 
and apparently had not been interested in viewing them 
prior to that date.

The defense next called Joyce Barrett who testified that 
from February 22, 1963 and for about nine months there­
after she was employed by the Student Non-Violent Co­
ordinating Committee in Albany (697a); that she was 
present at the Carl Smith picket-line on April 20, 1963, hav- 
ing arrived between one and two o ’clock in the afternoon 
(699a). She identified other persons who were there and 
said that she had been there for about one-half hour.

During the period of time that she was there, she did not 
see the appellant, and so far as she could see there was no



68

other white girl present (699a-700a). 8b . d. 
scene as a very busy one; there were a lot of ears drm  „  
back and forth; there were cars parked on both sides ot 
the street; there were pickets m front of t e s or®» 
there were people standing around on both sides of to 
store watching (700a). She described the scene at the Smt 
store in great detail on both direct and cross-examination
(696a-711a)

Finally, appellant was called as a witness. She denied 
having been near the picket-line and said that to the best o 
her recollection she was in the SNCC headquarters on he 
afternoon in question (722a). She had spent the morning 
work on voter registration but “ had been cautioned not to 
go near any pickets during that period”  because she had 
been in Albany only a very short time and was being ini­
tiated into the job (723a). She had, m fact, come to Albany 
on April 3, 1963 (714a).

Law

The rule of law followed in this Circuit in reviewing 
denial of a motion for a judgment of acquittal is set forth 
in Biggs v. United States, 280 F. 2d 949 (1960) and Lam­
bert v. United States, 261 F. 2d 799 (1958) and the cases 
therein cited.

The rule is thus succintly stated in Hopkins v. United 
States, 275 F. 2d 155 (CADC, 1959), quoting in a foot­
note Cooper v. United States, 218 F. 2d 394 (CADC, 19ol),

We must reverse a criminal conviction when
* * * a rea-it is clear to us that upon the evidence• I _ _ __1 L O TT A nsonable mind must necessarily have had a reason­

able doubt as to * * * guilt”
In the Riggs case this Court quoted with approval the 

language of Judge Prettyman in Curley v. United States, 
160 F. 2d 229, 232 (C. C. A. D. C. 1947):

“ The functions of the jury include the deter­
mination of the credibility of witnesses the weigh- 
ino- of the evidence, and the drawing of justifiable 
inferences of fact from proven facts. It is the 
function of the judge to deny the jury any oppor-



69

tunity to operate beyond its province. The jury 
may not be permitted to conjecture merely, or to 
conclude upon pure speculation or from passion, 
prejudice or sympathy. The critical point in this 
boundary is the existence or non-existence of a 
reasonable doubt as to guilt. I f  the evidence is 
such that reasonable jurymen must necessarily have 
such a doubt, the judge must require acquittal, be­
cause no other result is permissible within the fixed 
bounds of jury consideration * * *”

It is difficult to see how a reasonable juror could have 
avoided a reasonable doubt as to the guilt of the appellant. 
The only real question for the jury was one of identifica­
tion. Three witnesses, none of whom knew appellant per­
sonally, said that they had observed her for a short time, 
months before, at a distance of 50 to 60 feet across a 
crowded and busy street; 12 witnesses, 11 of whom knew 
appellant well, swore she was not at the picket-line but 
that another white girl, whom they also knew and who 
was about the same age, was there. Miss Barrett, con­
firmed their testimony. Appellant, backed by the forth­
right testimony of 5 reputable character witnesses, also 
took the stand.

Appellant was in the position of having to prove a 
negative. It is difficult to see what other kind of testimony 
could have been offered to prove her innocence. The only 
testimony missing was the photographs which appellant 
thought might have existed in view of her questioning 
before the Grand Jury. She made every possible effort to 
find such photographs, confident that they would exculpate 
her, but they were not to be found. She served subpoenas 
on the Government in the hope that some of these hundreds 
of Avitnesses might have produced exculpatory testimony, 
but on application of the Government, the subpoena Avas 
quashed.

To have reached the verdict of guilty the jury must 
have believed that every one of the 12 identification wit­
nesses committed perjury. The prosecution witnesses



70

mio-ht have been mistaken in their testimony; tlie def® 
witnesses were either telling the truth or deliberate y lying.
A vast conspiracy involving both children and adults must 
t r t e e n  M e m d  by the jury. Such a conclus.on rs 
inherently unreasonable.

We suggest that this is one of those cases about which 
Judo-e Prettyman warned in the Gurley case, supra: T
w V  he said, “ may not be permitted ;  * * to_ conclude 
L i n  pure speculation or from passion, prejudice or 
sympathy”  The result is in fact not surprising. T is 
« e i s e l y  what appellant was seeking to avord when 
she sought a transfer of the trial and when she tried to 
waive a jury trial.

The jury was compelled to choose between 3 white 
Southern witnesses on one side and 12 Negroes 
white Northern women “ carpetbaggers on 
They made the choice predicted in the motion to transfe . 
but on application of the Government, the subpoena was
quashed.

P O I N T  I X

The verdict should have been set aside oecause o f 
the deafness o f one o f the jurors.

When the jury brought its verdict in it was polled 
at the request of appellant (787a). It appeared to counsel 
for the appellant that one of the jurors Mrs. Allen, had 
not heard the court when the jury was polled The matter 
was immediately raised with the court (787a). After som 
discussion, a series of questions were put to three members 
of the jury, one of whom was Mrs. Allen. Again there was 
some question about her hearing ability. Although the 
judge spoke in a clear, loud tone, one of the questions had 
to be repeated to the witness (790a). The court refused 
to investigate the matter any fuithei.

Had the matter rested there, the record might have 
been quite unsatisfactory for appellate consideration. How-



71

ever, after the trial an affidavit was submitted by the 
prosecution with respect to Mrs. Allen’s bearing (808a). 
Strangely enough, the affidavit was submitted not by Mrs. 
Allen, but by her brother. He admitted that she suffered 
an impairment of her ability to hear out of her right ear. 
She had normal hearing, he said, in her left ear. He also 
said that she served as Deputy Clerk of the Superior Court 
of Upson County from 1925 to 1937 and as Clerk of that 
court until 1948.

This affidavit is of considerable significance. That Mrs. 
Allen suffered from a hearing disability is now conceded. 
The fact that she could hear out of one ear but not the other 
and that she sat close to the witness hardly seems to pro­
vide a satisfactory answer to the problem, since the closer 
she was to the witness, the further she necessarily was from 
counsel who was posing questions. It does very little good 
to hear an answer if the question is unknown.

Even more significant than the admission of her hear­
ing deficiency, however, is the disclosure that from 1925 
to 1948, a period of 23 years, she served as a court official 
On the voir dire she, together with all other members of 
the jury who were being questioned, was asked the fol­
lowing question: “ [Have] you or any relative or close 
triend ever been employed by the Government of the United 
States or the State of Georgia?”  (375a). Veniremen who 
had been so employed were asked to stand. Several per­
sons did stand. One said he had been employed by the 
Federal Government. Another raised the question of 
whether military service constituted employment. An­
other said he had been a clerk at a military air base 
Another was employed by the Rural Electrification Ad­
ministration. Still another was a state legislator and 
another a member of the Board of Education (375a-377a).

Yet Mrs. Allen did not stand. We have no reason to 
believe that she was seeking to conceal her employment 
and certainly she could not have forgotten an employ­
ment of such duration. The fact is that she probably did



72

not hear the question; it may therefore reasonably be 
inferred that she did not hear much of what went on in 
the courtroom during the trial.

There was prejudice to the appellant as a result of 
this. The appellant challenged most veniremen who had 
held government jobs and was generally anxious to avoid 
persons who had been closely connected with the state 
government, which was generally regarded by appellant 
as hostile. But quite aside from the fact that Mrs. Allen 
would have been challenged had her employment been 
known to appellant, the record shows that she was in­
capable of hearing much of what went on in the courtroom.

The statute requires that a juror, to be qualified, must 
be physically capable of performing efficient jury service. 
28 U. S. C. 1861. Mrs. Allen did not have that capability 
and her presence on the jury hence deprived appellant of 
the fair trial to which she was entitled under the law.

CONCLUSION

The judgment of conviction should be reversed and 
the indictments dismissed.

V ictor R abinowitz,
L eonard B. B oudin,

New York, N. Y.
C. B. K ing,

Albany, Ga.
Attorneys for Appellant.

A rthur Schutzer,
M ichael B. Standard,
H enry W inestine,
E leanor F. Goldman,

On the Brief.

June 15, 1964.



73

APPENDIX

United States Constitution, Article III, § 2, reads in 
part as follows:

“ The trial of all crimes, except in cases of im­
peachment, shall be by jury • * *”

Lnited States Constitution, Fifth Amendment, reads as 
follows:

“ No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a present­
ment or indictment of a Grand Jury, except in cases 
arising in the land or naval forces, or in the Militia, 
when in actual service in time of War or public 
danger; nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb; 
nor shall be compelled in any criminal case to be a 
witness against himself, nor be deprived of life, lib- 
erty, or property, without due process of law; nor 
shall private property be taken for public use, with­
out just compensation.”

United States Constitution, Sixth Amendment, reads as 
follows:

In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the 
crime shall have been committed, which district shall 
have been previously ascertained by law, and to be 
informed of the nature and cause of the accusation; 
to be confronted with the witnesses against him; to 
have compulsory process for obtaining Witnesses in 
his favor, and to have the Assistance of Counsel for 
his defence.”

Title 18 U. S. C. § 1621 reads as follows:
“ §1621. Perjury Generally

Whoever, having taken an oath before a compe­
tent tribunal, officer, or person, in any case in which 
a law of the United States authorizes an oath to be 
administered, that he will testify, declare, depose, or



77

than the jurors may be present while the grand jury 
is deliberating or voting.”
“ Rule 21. Transfer from the D istrict or Division 

for Trial

(a) F or Prejudice in the D istrict or Division. 
The court upon motion of the defendant shall trans­
f e r e e  proceeding as to him to another district or 
division if the court is satisfied that there exists in 
the district or division where the prosecution is 
pending so great a prejudice against the defendant 
that he cannot obtain a fair and impartial trial in 
that district or division.”

“ Rule 23. Trial by J ury or by the Court

(a) Trial by Jury. Cases required to be tried 
by jury shall be so tried unless the defendant waives 
a jury trial in writing with the approval of the court 
and the consent of the government.”