Jackson v. Morrow Brief for Appellees

    IN THE

UNITED STATES

COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 23.617

ARTHUR L. JACKSON,
Appellant,

versus

WILLIAM L. MORROW, ET AL.,
Appellees.

Appeal from the United States District Court for the 
Northern District of Alabama

BRIEF FOR APPELLEES

Guy Sparks
409 Commercial National 
Bank Building
Anniston, Alabama - 36201 
Attorney for Appellees



IN D E X
P ag e

ST A T E M E N T  O F TH E CASE ....................................  1

A RG U M EN T

I. The D istrict Court Did Not E r r  in O verruling 
A ppellant’s Motion to Challenge the A rray 
and Quash the V e n ir e .................................................  6

A. N egroes w ere not excluded from  the list
from  which the ju ry  was drawn and the 
ju ry  lis t did not for this reason  fa il to be 
rep resen tative of a cross section of the 
population of the N orthern D istric t of 
A labam a ..................................................................  6

B. Women w ere not excluded from  the list
from  which the ju ry  w as drawn and the 
ju ry  list did not for this reason fa il to be 
rep resen tative of a cross section of the 
population of the N orthern D istric t of 
A labam a ..................................................................  12

C. N either the clerk  of the Court nor the
ju ry  com m issioner violated the federal 
statutory schem e in com piling the ju ry  
lis t by applying statu torily  in co rrect 
standards to prospective ju ro rs ...................  15

CONCLUSION ......................................................................  20

C E R T IF IC A T E  ......................................................................  21



T A B L E  O F C A SES
II

P ag e

11, 14Akins v. T exas, 325 U. S. 403 (1945)

Billingsley , et al., v. Clayton, 359 Fed  2d 13 (1966) 
Cert, denied, S.Ct. U.S., Oct., 1966 . . .  7, 8, 10, 11

C assell v. T exas, 339 U.S. 282 (1950) ........................ 8, 11

G lasser v. United S tates, 315 U.S. 60 (1942) ........... 16, 17

Hoyt v. F lorid a, 368 U.S. 57 ................................................. 11

Rabinow itz v. United S tates, No. 21256
(1966) ................................................. 11, 13, 16, 17, 19, 20

Sw ain v. A labam a, 380 U.S. 202 (1965) ............... 7, 10, 11



IN TH E
U N ITED  ST A T E S COURT O F A P P E A L S 

F O R  TH E F IF T H  C IRC U IT

No. 23,617

A RTH U R L. JACKSON ,
Appellant,

versus

W ILLIA M  L. MORROW , ET AL.,
Appellees.

Appeal from  the United S ta tes D istrict Court for the 
N orthern D istrict of A labam a

B R IE F  FO R A P P E L L E E S

STATEMENT OF THE CASE

The appellees adopt the S tatem en t of the Case con­
tained in the brief of the appellant. In addition, appel­
lees subm it the following.

Evid ence that the appellant w as intoxicated in­
cluded the fa ct that he was convicted of the crim inal 
offense of driving while intoxicated in the City Court 
of the City of Anniston, which conviction he unsuccess­
fully appealed to the C ircuit Court of Calhoun County, 
A labam a. He was also convicted at the sam e tim e



2

in the sam e court of resisting  arrest, which convic­
tion was also unsuccessfully appealed. In the tria ls  
and appeals of those cases he was represented by 
counsel of his choice (R . 133, 134). The evidentiary 
conflicts presented to the ju ry  and referred  to in ap­
pellant’s S ta tem en t w ere resolved by a ju ry  verdict 
in favor of the appellees (R . 30).

Mr. W illiam  E . D avis was called as a witness by 
the appellant in support of appellant’s Motion to Chal­
lenge the A rray and Quash the V enire (R . 89). Mr. 
D avis is c lerk  of the United States D istrict Court for 
the N orthern D istrict of A labam a (R . 69). In that 
cap acity , he and the ju ry  com m issioner are  in charge 
of selecting  the persons whose nam es will be used 
to fill the ju ry  box (R . 70). Mr. D avis testified  that a 
total of six thousand nam es are placed in the box. He 
also testified  that there are  thirty-one counties in the 
N orthern D istrict of A labam a; that each of these has 
allocated to it the num ber of ju ro rs to which it is en­
titled based upon the 1960 census, on the population 
ration of each  county to the total population of the 
district. He stated that the ju ro rs allocated for each 
of the respective counties are divided into four ca te ­
gories — farm ers , m erch ants, bankers and others, 
in accordance to the percentage of such category as 
set out in the census (R . 90).

Mr. D avis outlined the use of the “key m an ” sys­
tem  in the N orthern D istrict of A labam a. He testified  
th at various organizations throughout the d istrict are 
utilized as sources for “key persons” , the “key per­
sons” being asked to recom m end nam es of prospective 
ju ro rs. (R . 71). These organizations include white and 
Negro A m erican  Legion posts, white and Negro V.F.W .



3

posts and others (R . 72). He testified  that ninety- 
nine le tters  w ere sent to white A m erican  Legion posts 
when the ju ry  box w as last filled in D ecem ber 1963, 
from  which there w ere tw enty-eight replies; that twen­
ty  letters w ere sent at that tim e to Negro A m erican 
Legion posts with four replies (R . 74). He testified  
that fifty-seven le tters  w ere sent in 1963 to white 
V .F .W . posts with nineteen replies, six  letters to 
Negro V.F.W . posts with one reply (R . 75). He testi­
fied that fourteen le tters  w ere sent to Je a n e s  teachers, 
these being all Negro, with eight replies received (R . 
78). Sixty-tw o letters were sent to white county and 
hom e dem onstration agents in 1962, with th irty-six  
replies. Twenty-two le tters  w ere sent to Negro County 
and home dem onstration agents at the sam e tim e with 
nine replies (R. 76). He also testified  that he did not 
know the color of a num ber of persons used as “key 
people” (R. 82).

He stated that no standard had ever been set that 
excluded or included any person because of his race  
or sex (R . 84). He said that neither he nor Mr. Jones 
had ever put or failed to put any person in the ju ry  
box because of their race , color or sex (R. 85). He testi­
fied that in filling the box, the ratio  of Negro to white 
w as not taken into account, that it w as not known 
what the color of the individual was that w as put in­
to the box and that there was nothing on the ju ry  cards 
that indicated the color of any individual selected 
(R . 91). He stated that since his em ploym ent as clerk  
in 1953, he had seen N egroes serving on ju ry  panels 
in nearly  every session of court (R . 93). He also stated 
that he had seen Negro women as w ell as Negro m en on 
ju ry  panels (R . 94).



4

Ja m e s  H. Jon es testified  as a witness for the appel­
lant (R . 305). Mr. Jo n es is the ju ry  com m issioner for 
the N orthern D istrict of A labam a and has been since 
1952 (R . 306). His testim ony w as p rim arily  concerned 
with the “key m an ” method and the selection of 
prospective jurors as it re la tes to race . He stated that 
questionnaires, in the form  of requests for the nam es 
of prospective ju ro rs are  sent to different clubs, white 
and Negro, veterans organizations, white and Negro, 
other Negro organizations, Je a n e s  teach ers  schools and 
teach ers, colored and white (R . 309, 310). He stated that 
in carry in g  out their duties in resp ect to filling the box,
he and the D istrict court clerk  w rote, “ ------to lots of
N egroes and their organizations and the]/ are sup­
posed to send us nam es in.” (R . 311). He testified that 
“key m en” are all over the thirty-one counties in the 
N orthern D istrict of A labam a (R . 320). He stated that 
he and M r. D avis did not pay any attention to w hether 
prospective ju rors w ere colored or not (R. 319) and 
th at the people selected  were from  all w alks of life 
without regard  to race , color, religion or politics (R. 
310). He nam ed R everend Brown of St. Clair County, 
A labam a as being one of the “key m en” who was a 
Negro (R. 324). He testified  that there was no dis­
crim ination w hatsoever betw een the w hites and blacks 
(R . 325) and “ - - - a m an ain ’t got nothing but a 
shirt, he can m ake a ju ro r .” (R . 330).

Mr. Dan Strong, deputy clerk  of the United States 
D istrict Court for the N orthern D istrict of A labam a 
since 1940, testified  for the appellant. He outlined 
his assistance with the preparation of ju ry  lists and 
what he knew of the m ethods to be in existence in pre­
paring those lists (R. 41, 58). He stated that no stand­
ards were applied in selecting ju rors which excluded



5

any ra c ia l group of people (R . 58). He stated that “ key 
m en ’’ w ere taken from  groups that included school 
principals (R . 44) and labor organizations (R . 60). He 
stated  that the labor organizations had Negro m em bers 
and that there w ere Negro school principals and teach ­
ers (R . 61). He testified  that no “key m en ” w ere 
selected  or excluded because they w ere w hite, because 
they w ere Negro, because they w ere m ale or because 
they w ere fem ale  (R . 61, 62). He testified  that county 
agents who w ere N egroes w ere sent “key m an ” 
questionnaires (R . 43, 44), that Negro women have 
served on jury  panels from  tim e to tim e (R. 50, 51), 
th at two women and three Negro m en w ere on the 
panel present for the tr ia l of this case (R. 52). He 
testified  that of the eighteen ju ro rs actu ally  im paneled 
for the tr ia l of this case , there w ere two Negro men 
and one white wom an (R . 55, 56). He also testified that 
N egroes have served in the tr ia l of cases over the 
course of years and that there w as one case in which 
at least three N egroes served as ju ro rs in the trial. He 
stated  that it w as not unusual for N egroes to serve in 
the tr ia l of cases, that it depended on the type of case, 
the occupation of the ju rors and the striking by the 
law yers (R. 53).

Mr. David W. B u ttram  testified  for the appellant. 
Mr. B u ttram  has been court crier for Judge Groom s 
in the D istrict Court for the Northern D istrict of A la­
bam a for nine years (R . 292). He stated that he fre ­
quently saw women on the jury panel in that court 
(R . 295). He testified that there w ere “- - - alw ays 
som e on there. One, two, three, four or five. But the 
last two or three years there have been m ore women 
than u su al.” (R . 296). He further testified  that the 
rough average num ber of women he had seen on a



6

ju ry  panel w as four or five and about the sam e num­
ber of N egroes (R . 296). He stated that, “ ----- N egroes
average four or five, som etim es m ore, but around 
that a v e ra g e .” (R . 297). He testified  that in the tria l 
of a case there would usually be one wom an actually  
serving (R . 301). He furth er testified that the average 
panel w as fifty  in num ber, though som etim es forty- 
six or forty-seven or forty-eight (R . 301).

The D istrict Court on the above evidence held that 
the ju ry  list w as represen tative of the population as 
a whole of the N orthern D istrict of A labam a by over­
ruling the appellant’s Motion to Challenge the A rray 
and Quash the Venire. It  is this ruling that the appel­
lan t specifies as error and which your appellees con­
tend was correct.

A R G U M E N T

I

TH E D IST R IC T  COURT DID NOT E R R  IN O V ER ­
RU LIN G  A P P E L L A N T ’S MOTION TO C H A LLEN G E 
T H E  A RRA Y AND QUASH TH E V E N IR E .

A. Negroes w ere not excluded from  the list which the 
ju ry  was drawn and the ju ry  list did not for this 
reason fa il to be rep resen tative of a cross section 
of the population of the N orthern D istrict of A la­
bam a.

D em ocracy  cannot long survive if the role of the 
ordinary citizen is lim ited because of his race , his 
color or his sex  to voting. If  his in itiative is throttled, 
if  he is otherwise denied the opportunity to influence



and to contribute to the political, the econom ic and 
the social stru ctu res surrounding him , such dem oc­
ra cy  as rem ains will be but pomp and circu m stan ce — 
signifying nothing. F o r this reason am ong others 
there is and should be ju d icial protection of the oppor­
tunity of both sexes and all races  to fully p articipate 
in the ju ry  system . There is no difference in principle 
betw een the Negro appellant and the white appellees 
as to this. The difference is w hether or not the jud i­
cia lly  protected opportunity to influence and to con­
tribute through service on ju ries  has in fa c t been de­
nied. The appellant says it has. The appellees say it 
has not.

This case  arose from  a dam age suit brought by a 
Negro plaintiff against white defendants. It is a civil 
proceeding. The claim  that the ju ry  list was not repre­
sentative of a cross section of the population is found­
ed on the assertion  that N egroes are discrim inated 
against by being excluded from  that list, either in­
tentionally or otherw ise. To sustain such claim  the 
burden of proof is upon the appellant. Sw ain v. A la­
bam a, 390 U .S. 202 (1965); Billingsley, et al v. Clayton, 
359 Fed  2d 13 (1966), C ertiorari denied, S. Ct. of U. S., 
October, 1866. The appellant has failed to carry  that 
burden.

The only proof offered by the appellant as to the 
contents of the jury  list in resp ect to N egroes related  
to the method of selection and the average num ber of 
N egroes appearing in an average venire over the last 
ten or twelve years. The facts  appearing here in re ­
spect to the m ethods utilized and the average num ber 
of N egroes on an average venire do not prove exclu ­
sion. B illingsley v. Clayton, supra.



8

The key m an system  was the prim ary method 
utilized by the ju ry  com m ission to com pile the ju ry  
list. Various organizations throughout the D istrict 
w ere utilized as sources for key persons. These or­
ganizations included various Negro organizations such 
as Negro A m erican Legion posts, Negro V.F.W . posts, 
Je a n e s  teach ers, other Negro educators, labor or­
ganizations whose m em bership included N egroes, 
Negro county agents and Negro home dem onstration 
agents. In selecting  individuals from  nam es subm it­
ted by key persons no standard was ever used that in­
cluded or excluded any person becau se of his race  or 
sex. No individual w as ever placed or not placed in 
the ju ry  box because of their race , color or sex. Ju ry ­
m en, in accord  with jud icial requirem ents w ere “ ------
selected  as individuals on the basis of individual quali­
fication s, and not as m em bers of a r a c e .” C assell v. 
T ex as, 339 U .S. 282, 286, 94 L.ed. 839, 847, 70 S. Ct. 629 
(1950); B illingsley  v. Clayton, supra.

The appellant contends that the defect in the sys­
tem  used is to be found in the fa ct “ ----- that the m a­
jo rity  of the key people are  w hite.” A ppellant’s brief, 
page 9. Such fa c t is not itself a defect. F irs t , the over­
w helm ing m ajo rity  of the persons in the Northern 
D istrict of A labam a are white, 79.18% being white 
and 20.82% being Negro. With such a population ratio  
as betw een Negro and white it would be only natural 
for a m a jo rity  of the key people to be white if the 
system  was functioning as it should be. The record 
affirm atively  re flects  that m em bers of the Negro 
m inority w ere in fact utilized as key m en, though it 
does also re flect that the ju ry  com m ission had m ore 
difficulty in securing the cooperation of N egroes than 
they experienced with whites in securing prospective



9

nam es for the list. F o r exam ple, sixty-tw o key m en 
le tters  were sent to white county and hom e dem on­
stration agents in 1962, with th irty -six  replies. Twenty- 
two such le tters, over one-fourth as m any as to w hites, 
w ere sent to Negro county and home dem onstration 
agents with nine replies. Substantially  over fifty  per­
cent of the whites replied but substantially  less than 
fifty  percent of the N egroes replied. The sam e re la ­
tive lack  of cooperation by N egroes is to be found in 
key m an letters sent to veterans organizations. Twen­
ty-eight replies w ere m ade to ninety-nine le tters  by 
white A m erican  Legion posts; four replies were m ade 
by Negro A m erican Legion posts to tw enty le tters. 
N ineteen replies w ere m ade to fifty-seven le tters  to 
white V .F .W . posts, with one reply to six le tters  sent 
to Negro V .F.W . posts. The sending of key m an ques­
tionnaire le tters  to both white and Negro organiza­
tions and to organizations containing both whites and 
N egroes has been a consistent practice. The few er re ­
sponses by N egroes would indicate that,

“ F o r reasons not apparent from  the record,
- - - a large proportion of the Negro com ­
m unity is either uninterested in ju ry  service, 
or being interested, does not avail itse lf fully 
of the opportunity to render ju ry  service. The 
techniques used by the Ju ry  Board have m ade 
the opportunity av ailab le .” Billingsley v. Clay­
ton, supra.

D iscrim ination or exclusion is certain ly  not proved 
by the fa c t that a m ajority  of the key people used w ere 
white where the overw helm ing m ajority  of the popula­
tion is white, where bona fide efforts w ere m ade to en­
list m em bers of the m inority as key m en, with rela-



10

lively  less cooperation and response to those efforts 
by m em bers of the m inority. E ven  if the system  is 
im p erfect in that a lesser percentage of N egroes ul­
tim ately  serve on jury  panels, there m ust be som e 
proof or indication that there is a connection between 
that fa c t and the perform ance of their duties by the 
ju ry  com m ission. Sw ain v. A labam a, supra; B illings­
ley v. Clayton, supra.

It  should be noted that there is no proof in this case 
of the ra c ia l com position of the jury box. The appel­
lant seeks to infer the ra c ia l com position of the jury 
box as a whole from  the fa c t that an average of six  
N egroes have appeared in an average panel over the 
la st ten or m ore years, with the average panel ovQf 
those years being fifty  in num ber. This am ply ju sti­
fied the Court below in concluding that the plaintiff 
failed  in his burden of proof. B illingsley  v. Clayton, 
supra. E ven  if it be assum ed that the ra c ia l com posi­
tion of the entire ju ry  list is the sam e as the average 
ra c ia l com position of the average ju ry  panel over the 
past ten y ears, the plaintiff still fa ils  in his burden 
of proof. The evidence indicated th at the average 
ju ry  panel over the past ten years was fifty  
in num ber and th at the average num ber of Negroes 
on the panels w ere four or five or six. It  will be seen 
then th at N egroes constituted an average of from  eight 
to tw elve percent of the average ju ry  panel. Their 
population in the D istrict is 20.82%. This is not a per­
fec t m irror of the com m unity and does not exactly  
re flec t the precise proportionate strength of Negroes 
in relation to w hites but no such degree of perfection 
or exactness is required. The aim  and purpose of the 
law  is not proportional representation on ju ries  but 
overall representation. Sw ain v. A labam a, supra;



11

B illingsley  v. Clayton, supra; Rabinow itz v. United 
States, No. 21256 (1966); Akins v. T exas, 325 U .S. 403, 
89 L.ed 1892, 65 S.Ct. 1276 (1945); Hoyt v. F lorid a, 368 
U.S. 57.

While couched in other language it seem s to the ap­
pellees that the rea l effort of the appellant here is to 
secu re what am ounts to a ju d icial requirem ent of 
proportional representation on ju ries . The entire a r ­
gum ent of the appellant is that a cross section is 
lacking as a m atter of law  w hether the percentage of 
a given group is less on ju ry  panels than their p er­
centage of the population. To accep t this contention 
would be to require proportional representation of 
every identifiable group. Caution against the accep t­
ance of such an argum ent w as given by this Court 
as la te  as the sum m er of this year. Rabinow itz v. 
United S tates, supra. The Court repeated the language 
of Sw ain v. A labam a, supra, which pointed out that 
“Obviously the num ber of races and nationalities ap­
pearing in the ancestry  of our citizens would m ake 
it im possible to m eet a requirem ent of proportional 
representation.” Swain v. A labam a, supra, 208.

It  is not only the adm inistrative im possibilities in­
volved th at m ake proportional representation, couch­
ed in any language or called by any nam e, an im possi­
ble requirem ent. Proportional representation, how­
ever it is referred  to, would require the com pilation of 
ju ry  lists on the basis of race  and color rather than 
on the basis of individual qualification. Such a method 
of selection would run counter to the requirem ent that 
“ Ju ry m en  should be selected  as individuals on the 
basis of individual qualifications, and not as m em bers 
of a ra c e .” C assell v. T ex as, supra.



12

The record  in this case discloses that affirm ative 
efforts have been consistently m ade by the ju ry  com ­
m ission to secure participation in the ju ry  system  by 
an overall cross section of the com m unity, including 
Negroes. It  a ffirm atively  shows that no standards 
w ere intentionally or otherw ise used that would ex­
clude Negroes as key m en, as m em bers of the ju ry  
list, as m em bers of the ju ry  panel or as m em bers of 
the ju ry  selected  to try  individual cases. The oppor­
tunity to influence and to contribute to the ju ry  sys­
tem  is in fa ct available in the N orthern D istrict of A la­
bam a to m em bers of the Negro ra ce  on the sam e 
term s and conditions as it is availab le  to others. It 
is therefore respectfu lly  urged that the lower Court did 
not for this reason err in overruling the appellant’s 
Motion to Challenge the A rray and Quash the V enire.

B. W omen w ere not excluded from  the list from  
which the ju ry  w as drawn and the ju ry  list did not 
for this reason fa il to be representative of a cross 
section of the population of the N orthern D istrict 
of A labam a.

It is certa in ly  true that women m ay not be excluded 
from  ju ry  serv ice. Any such exclusion would prevent 
a ju ry  list from  being representative of a cross sec­
tion of the population. Here again the difference be­
tw een the appellant and the appellees is not one of 
principle but one of fact. As the appellant recognizes 
on page th irteen  of his b rief, the sam e points of law 
and issues applicable to a claim ed exclusion of 
N egroes are likew ise applicable to a claim ed exclu ­
sion of women. The legal approach is identical. The 
burden of proof to show an exclusion as to wom en 
rests  exactly  as it does when the claim  is an exclu ­



13

sion of Negroes. T hat burden is on the p laintiff c la im ­
ant.

The record here is not only short of such proof in 
resp ect to women in the e x act sam e ways in which it 
w as short as to the claim ed exclusion of Negroes. 
There is one im portant additional fa ct affirm atively  
appearing in the record th at m ust be taken into con­
sideration. T hat fa ct is the trend toward a greater 
num ber of women being present on panels. Rabino- 
witz v. United S tates, supra.

It should be noted that the only proof offered by the 
appellant as to the com position of the ju ry  list m ust 
be inferred from  evidence offered as to the com pila­
tion of ju ry  panels. The testim ony in this respect was 
th at in “ - the la st two or three y ears there have 
been m ore women than u su al.” (R . 29). F ro m  the 
record it is c lear that women have been serving in 
increasing num bers since the passage of the 1957 
Civil R ights A ct th at negated the qualification of state  
eligibility for ju ry  serv ice  as a condition for fed eral 
jury  service. In the Rabinow itz case, supra, the last 
revision of the ju ry  list added five hundred fifty  seven 
new nam es, only four, or seven-tenths of one percent, 
being N egroes. This was a d rastic percentage reduc­
tion of Negroes as com pared to the percentage of 
N egroes that had previously been on the list. The 
Court gave consideration to the fa c t that “ M oreover, 
as new lists were com piled the trend was toward the 
lists becom ing less representative of the com m unity.” 
H ere, women have been serving in ever increasing 
num bers, p articu larly  the last two or three years. A c­
cordingly, consideration m ust be given to the fact 
th at the trend as to women is toward the lists becom ­



14

ing m ore representative of the com m unity. Fu rth er 
im portance of this facto r arises from  the fa c t that the 
eligibility  of women in the N orthern D istrict of A la­
bam a to serve on fed eral ju ries  dates from  only 1957 
with the ju ry  box having been filled tw ice since that 
tim e, once in 1959 and once in 1963.

The record  here not only fails in facts  showing an 
exclusion of women. The record affirm atively  dis­
closes that women w ere not excluded. The organiza­
tions and groups used by the ju ry  com m ission as 
sources for key people included organizations with 
women in their m em bership. E xam p les of these w ere 
school principals, Je a n e s  teach ers, labor organiza­
tions, hom e dem onstration agents and others. The 
jury com m ission used no standards that would have 
selected  or excluded any person becau se they w ere 
m ale or fem ale. W omen in fa c t served on ju ry  panels, 
including women who w ere N egroes. They in fa c t 
served “ alw ays” and with increasing frequency, par­
ticu larly  in “ the last two or three y ears” . The d irec­
tions of the Suprem e Court of the United S ta tes that 
venires be quashed when identifiable groups are ex­
cluded from  ju ry  lists is based on the theory that from  
their continual exclusion discrim ination is indicated 
and not on the theory th at identifiable groups must be 
given recognition as such in resp ect to ju ry  service. 
Akins v. T exas, supra, 325 U.S. at 403.

It is respectfu lly  subm itted that there is no evidence 
in this record proving that the ju ry  list fa ils to be 
represen tative of a cross section of the population of 
the N orthern D istrict of A labam a because women are 
excluded from  th at list. To the contrary, the record 
affirm atively  shows that the opportunity is open to



15

w om en and that the ju ry  com m ission has taken affirm ­
ative steps to have that opportunity utilized by wo­
m en. The order of the lower court should not then 
for that reason be reversed .

C. Neither the clerk  of the Court nor the jury com ­
m issioner violated the fed eral statutory schem e in 
com piling the ju ry  list by applying statutorily  in­
co rrect standards to prospective jurors.

The clerk  of the D istrict Court outlined the m anner 
in which he and the ju ry  com m issioner utilized the 
key m an method. He testified  as to the broad cross se c ­
tion of the population from  which key people w ere 
sought, geographically  and otherwise. He then te sti­
fied concerning a le tter sent to the key people asking 
for the nam es of forty-five com petent people. (This 
le tter does not appear to be in the record.) He stated 
that they

“ — sent out with the letter the statem ent of 
qualifications of the ju ro rs (E x . 2, R. 31), and 
recom m endations w ere to be m ade to the 
c lerk  based upon these statutory qu alifica­
tions, plus the individual’s estim ate that that 
person, he or she is recom m ending, would 
be such a person m eeting these statutory 
qualifications, plus being a prospective ju ror 
that he or she would want to have on the jury 
to pass on his rights to his life or to his prop­
e rty .” (R. 79, 80).

A fter receiv ing nam es from  key people in response 
to this com m unication, a questionnaire is sent to those 
nam es rem aining after a screening. It too rec ites  the



16

b asic  statutory qualifications (R . 80). The appellant 
contends that the clerk  and the ju ry  com m issioner 
have thereby applied statutorily in co rrect standards 
in com piling the list of prospective ju ro rs.

This situation, in the view of the appellant, re la tes 
to the qualifications that m ay properly be applied 
to prospective jurors. The situation, in the view of the 
appellees, re la tes to the source of nam es of prospective 
ju rors. It  is a failu re to distinguish betw een the source 
of nam es and the setting of qualifications that m akes 
the argum ent of the appellant inapplicable to the facts 
of this case. The appellant takes the rules and require­
m ents controlling qualifications and attem pts to ap­
ply them  to a situation involving not the qualifications 
of ju ro rs but the sources of their nam es. The appel­
la n t’s b rief c ites the applicable rules concerning 
qualifications recently  pointed out by this Court. Ap­
pellant’s brief, P ag es 14-16; Rabinow itz v. United 
S tates, supra. The appellees do not differ with the 
appellant in resp ect to what those rules are. Appellees 
do say  that the rules applicable to qualifications of 
prospective ju ro rs are inapplicable to the sources of 
the nam es of prospective ju ro rs, w hether those sources 
be key m en, voting lists , city  directories, or telephone 
books.

It  should be noted at the outset that the key people 
m erely  suggest or recom m end prospective ju ro rs. They 
do not do the selecting. As repeated in Rabinow itz v. 
United S ta tes, supra, “ Ju ro rs  in a fed eral court are 
selected by the clerk  of the court and a ju ry  com ­
m issioner. This duty of selection m ay not be dele­
gated.” G lasser v. United States, 1942, 315 U.S. 60, 
85-86. The b rief of the appellant is based on the theory



17

that the key people are not m ere source m ateria l but 
actu ally  do the selecting , when in fa c t this is not the 
case. This theory arises out of the failure to distinguish 
source from  qualifications. It is in its essence an a t­
tack  on the legal validity of the key m an method.

Appellant argues that key m en “ ------are  delegates
of the court c lerk  and ju ry  com m issioner - - -” and 
“ - - - are not m ade aw are of the fa ct that the ju ry  
roll m ust represent a true cross section of the com ­
m unity .” A ppellant’s brief, P ag e 15, 16. It is the lack  
of knowledge by these key people that the jury  roll 
m ust represen t a true cross section th at m akes up a 
large part of the appellant’s com plaint. His theory is 
th at this lack  of knowledge results from  their not be­
ing m ade aw are of it and from  being requested to 
send in nam es of persons that they would want to have 
pass on their rights to their life or their property. A 
key man not having this knowledge is therefore unlike­
ly to send in the nam es of people that represent a true 
cross section.

The errors in this reasoning are several. F irs t, key 
people do not se lect nam es for the ju ry  list. They 
m erely  suggest. Second, key m en are not “ delegates” 
of the court clerk or the ju ry  com m issioner. The duties 
of the court clerk  and the ju ry  com m issioner in se­
lecting nam es that go to m ake up the ju ry  list m ay not 
be delegated. Rabinow itz v. United S tates, supra; 
G lasser v. United States, supra. Third, securing a 
ju ry  list under the key m an system  that represents 
a true cross section is in no way dependent upon the 
key people being aw are that the jury list as a whole 
m ust represent a true cross section of the entire com ­
m unity, com m unity here being the entire Northern



18

D istric t of A labam a. It  is the duty of the c lerk  and the 
ju ry  com m issioner to m ake a list from  all of the 
recom m endations of the key people that will in fa ct 
do this. Fourth , the key m an system  seeks to m eet the 
requirem ent of cross section in the ju ry  list not through, 
the recom m endation of each  key m an individually but 
through the com bined recom m endations of all of the 
key people.

In the case  at b ar a wide geographic, econom ic, 
social, professional, ethnic and political cross section 
of the D istrict, or com m unity, wTas covered by the 
m any key m en whose recom m endations w ere sought 
by the c lerk  and the ju ry  com m issioner. There is no 
evidence that any su b jective standard of any kind 
w as used by the clerk  or the ju ry  com m issioner in 
th eir selection of key men. Under such a system  
u ltim ately  selectin g  a ju ry  list that represents a true 
cross section is dependent upon having key m en that 
rep resen t a true cross section. The key people here, 
taken as a whole, w ere not representative.

A ppellant’s theory here is that anyone who m akes 
a suggestion to those who do the actual selecting  of 
nam es for the jury list —  the clerk  and ju ry  com ­
m issioner — m ust be “ ------ m ade aw are of the fa ct
that the ju ry  roll m ust represen t a true cross section 
of the com m unity” , m ust know the statutory stand­
ards for prospective ju ro rs and m ust use no additional 
or sub jective standard in m aking this recom m enda­
tion. No such requirem ents ex ist as to m ere source 
m ateria l of nam es. Those requirem ents do exist as 
to the people actu ally  selecting the nam es, that is the 
c lerk  and the ju ry  com m issioner but not otherw ise. If  
it w ere otherw ise then no valid jury lis t could ever be



19

com piled by any system  that depended upon or m ere­
ly included having nam es recom m ended by other per­
sons to the clerk  and the ju ry  com m issioner. Such a 
requirem ent would m ake it virtually im possible if 
not altogether im possible for the clerk  and ju ry  com ­
m issioner to ever com pile a valid ju ry  list w hatever 
m ight be their source m aterial. The legal prohibition 
against the use of su b jective standards, or any stand­
ards other than the uniform  statutory ones, is not 
directed at source m ateria l. I t  is directed at those 
who do the actu al selecting. Utilizing a cross section of 
key people to suggest prospective ju ro rs, or securing 
suggestions by other m eans, actually  re la tes to the 
source of nam es considered by the ju ry  com m ission 
and not to the setting of general standards for pros­
pective ju ro rs. While no discretion is vested in the 
court c lerk  and the ju ry  com m issioner as to the se t­
ting of general standards, som e discretion as to the 
source of nam es does exist, Rabinow itz v. United 
S tates, supra, 43.

The appellant assum es that having nam es suggested 
to the clerk  and jury  com m issioner as prospective 
jurors relates to the setting of general standards for 
those u ltim ately  selected  or re jected  for the ju ry  list. 
If  this w ere so then of course all source m ateria l for 
the nam es of prospective jurors would be controlled 
by the sam e rules applicable as to qualifications when 
the selecting is done. It  is this theory and assum ption 
by the appellant that leads to his error in application 
of the controlling law  to the facts presented here. 
Having key people or other sources suggest nam es as 
prospective ju rors re la tes to the source of the nam es 
and not to the setting of general standards for those 
who m ay be selected or re jected  by the c lerk  and



20

ju ry  com m issioner. Rabinow itz v. United S tates, 
supra, 43, 45.

There is no evidence that any subjective standards 
or any standards of qualification other than the statu ­
tory ones w ere used by the clerk  and ju ry  com m is­
sioner in considering nam es that had been suggested 
to them  by their sources, the key people. There is am ­
ple affirm ative evidence throughout the record that 
the statutory standards or qualification w ere not in 
any w ay extended but w ere the only ones used.

C O N C L U S I O N

F o r the foregoing reasons, it is respectfu lly  sub­
m itted that the Orders, Judgm ents and D ecrees of 
the D istrict Court should be affirm ed.

R espectfu lly  subm itted,

G UY SP A R K S
409 C om m ercial Bank Bid
Anniston, A labam a - 36201



21

CERTIFICATE OF SERVICE

I, Guy Sparks, attorney for Appellees in this cause, 
hereby certify  that a copy of this b rief for the Appel­
lees and the Appendix thereto was served upon the 
Honorable O scar W. Adams, J r . ,  1630 Fourth  Avenue, 
North, B irm in gham , A labam a, Honorable D em etrius 
C. Newton, 408 North 17th Street, B irm ingham , A la­
bam a, Honorable J a c k  G reenberg and Honorable Nor­
m an C. A m aker, both at 10 Columbus C ircle, New 
Y ork, New Y ork, attorneys for Appellant, by United
S ta tes m ail, postage prepaid, t h i s ----------------- day of
________________________________ _ 1966.

GUY SPA R K S 
A ttorney for Appellees



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