Coleman v. Alabama Petition for a Writ of Certiorari to the Supreme Court of Alabama

    I n  t h e

Ihtprmp (Emtrt at tiu Hutted States
October Term 1966 

No. ______

J o h n n y  C o lem an ,

v.
Petitioner,

S tate oe A labam a .

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

J ack  G reenberg 
M ich ael  M eltsner

10 Columbus Circle 
New York, New York

O rzell  B illin g sley

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner



I N D E X

Citation to Opinions Below ...........................................-  1

Jurisdiction ....................................................................... 1

Questions Presented ................................... ... ...... ..........  2

Constitutional and Statutory Provisions Involved ..... 2

Statement ...........................................................................    3

How the Federal Questions Were Raised and Decided 
Below ...............................................................................  13

Reasons for Granting the Writ .......................................  16

I. Petitioner Has Established a Prima Facie Case 
of Racial Discrimination in Selection of Jurors 
Which the State Has Failed to Rebut ..............  20

A. The Decided Racial Variation on the Jury
Roll Makes Out a Prima Facie Case ........... 20

B. Vague and Subjective Standards for Selec­
tion of Jurors Establish a Prima Facie Case
of Discrimination ............................................... 25

C. The State Failed to Offer a Satisfactory
Explanation for the Gross Disparity Be­
tween Negro and White Jury Service ...........  28

II. Appellant Was Deprived of Due Process of Law 
and Equal Protection of the Laws in Violation 
of the Fourteenth Amendment Because Women 
Were Totally Excluded From the Juries Which 
Indicted, Convicted and Sentenced H im ..............  33

C onclusion  ........................................... ................................ -..........  36

PAGE



IX

A ppendix

Opinion of the Supreme Court of Alabama..............  la

Denial of Rehearing .............................    7a

Opinion of the Circuit Court of Greene County....... 8a

Judgment of United States District Court ..............  12a

Appendix of Statutes Involved ..........  15a

Appendix on Computation .........................................  26a

T able of A uthorities
Cases:

Allen v. State, 137 S.E.2d 711, 110 Ga. App. 56 (1964) 35
Arnold v. North Carolina, 376 U.S. 773 (1964) ........... 22

Baggett v. Bullitt, 377 U.S. 360 (1964) .......................... 27
Ballard v. United States, 329 U.S. 187 (1946) ............  35
Board of Supervisors v. Ludley, 252 F.2d 372 (5th Cir.

1958) ..................................................  27
Bostick v. South Carolina, 18 L.Ed. 2d 223 (1967) ....18, 25
Brown v. Allen, 344 U.S. 443 (1953) .............................  24
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .... 26

Cassell v. Texas, 339 U.S. 282 (1950) .... ......................22, 32
Cline v. Frink Dairy Co., 274 U.S. 445 (1927) ............. 26
Coleman v. Alabama, 377 U.S. 129 (1964) ........... ........ 3,15
John Coleman v. State of Alabama, 164 So. 2d 708 .....3,13
Coleman, et al. v. Barton, et al. (No. 63-4, N.D. Ala.).— 3, 7 
Commercial Pictures Corp. v. Regents of University of 

N. Y., reported with Superior Films, Inc. v. Depart­
ment of Education, 346 U.S. 587 (1954) ..................  26

PAGE



I ll

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.) aff’d per 
curiam, 336 U.S. 933 (1949) ....................................... . 27

Edwards v. South Carolina, 372 U.S. 229 (1963) ......... 27
Eubanks v. Louisiana, 356 U.S. 584 (1958) .....-............ 22

Fikes v. Alabama, 263 Ala. 89, 81 S.2d 303 (1955) re­
versed on other grounds 352 U.S. 191 ......................  5

Giaccio v. Pennsylvania, 382 U.S. 339 (1966)  .......... 27
Glasser v. United States, 315 U.S. 60 (1941) ..............  24

Harper v. Virginia Board of Elections, 383 U.S. 663
(1966) ...................... ....................................................... 34

Herndon v. Lowry, 301 U.S. 242 (1937) ........................ 26
Howard v. State,------A la.------- , 178 So, 2d 520 (1967) 15
Hoyt v. Florida, 368 U.S. 57 (1961) ..............................33, 34

Labat v. Bennett, 365 F.2d 698 (5th Cir. en bane 1966)
16,19, 24, 26, 35

Louisiana v. United States, 380 U.S. 145 (1965) .......26,27

Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966) 21

NAACP v. Alabama, 357 U.S. 449 (1958) ....................  15
Norris v. Alabama, 294 U.S. 587 (1935)  .............18,29,32

Pierre v. Louisiana, 306 U.S. 354 (1939) .............. 29,30,32

Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 
en banc 1966) ......................................... .................... 16, 24

Scott v. Walker, 358 F.2d 56 (5th Cir. 1966) ..............  21
Shuttlesworth v. Birmingham, 376 U.S. 339 (1964) .... 15
Smith v. Texas, 311 U.S. 128 (1940) ...........16, 22, 24, 26, 35
Speller v. Allen, 344 U.S. 443 (1952) ............................ 21

PAGE



IV

South. Carolina v. Katzenbach, 383 U.S. 301 (1966) ..... 27
Staub v. City of Baxley, 355 U.S. 313 (1958) ..............  27
Strauder v. "West Virginia, 100 U.S. 303 (1880) ......... . 21
Swain v. Alabama, 380 U.S. 202 (1965) _.......................5,19

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ..... 24

United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) .... 27 
United States v. L. Cohen Grocery Co., 255 U.S. 81

(1921) .............................................................................  26
United States v. Mississippi, 380 U.S. 128 (1965) ....... 26
United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th 

Cir. 1962) .......................................................................  21

White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) ....33, 34
Whitus v. Georgia, 385 U.S. 545 (1967) .............18,21,23,25,

26, 28, 32
Williams v. Georgia, 349 U.S. 375 (1955) ....................  15
Williams v. South Carolina, 237 F. Supp. 360 (E.D.

S.C. 1965) .....................................................................  33
Winters v. New York, 333 U.S. 507 (1948) ...................... 26

Statutes Involved:

Alabama Act No. 284 (Special Session, 1966) ..............2, 33
Alabama Act No. 285 (Special Session, 1966) ...............2,33
Ala. Code Tit. 15, §§382 et seq. (1958 Recompiled) ....... 15

Title 30 §20, Code of Alabama (1958 Recompiled) ....... 2, 5
Title 30 §21, Code of Alabama (1958 Recompiled) .......2, 5,

10,12,14,15, 25, 26, 
27, 28, 30, 31, 33, 34

Title 30 §24, Code of Alabama (1958 Recompiled) .....2, 5, 6
Title 30 §30, Code of Alabama (1958 Recompiled) .....   2
Title 30 §38, Code of Alabama (1958 Recompiled) ....... 2,8
Title 30 §72, Code of Alabama (1958 Recompiled) .......  2

PAGE



V

Arizona Rev. Stat. Ann. (1956) §21-201.......................... 17
Arkansas Stat. Ann. (1962): §39-101..  17

39-206 .......................    17
39-208 ....................    17

Connecticut Gen. Stat. Ann. (Supp. 1965) §51-217...... 17

Florida Stat. Ann. (1961) Tit. 5 §40.01...........................  17

Georgia Code Ann. (1965): §59-106 ...............................  17

Illinois Ann. Stat. (Smith-Hurd Supp. 1966) Tit. 78
§2 ....................................................................................- 17

Iowa Code Ann. (1950) §601.1 .......... ........ ..... .............. 17

Kansas Stat. Ann. (1964) §43-102 ................ ..... ........... 17
Louisiana Rev. Stat. Ann. (1950) §13-3041 ................... 17

Maine Rev. Stat. Ann. Tit. 14 §1254 (Supp. 1965) ....... 17
Maryland Ann. Code Art. 51 (Supp. 1966) §9  ......... 17
Michigan Stat. Ann. (Supp. 1965) §27A.1202 ..............  17
Miss. Code Ann. 1942 (Recompiled Vol. 1958) §1762 .... 33 
Missouri Ann. Stat. (Supp. 1966) §494.010 .................. 17

Nebraska Rev. Stat. (1964) §25-1601 ...........................  17
New York Judic. Law (Supp. 1966) §504(5) ........... 18
North Carolina Gen. Stat. (1953) §9-1 ............ ............. 18

Oklahoma Stat. Ann. Tit. 38 (Supp, 1966) §28 ............  18
South Carolina Code Ann. (1962) §38-52 ........... ...... 18, 33

Texas Rev. Civ. Stat. Ann. (1964) §2133 ......................  18
West Virginia Code Ann. (1966) §52-1-4 ...................... 18
Wisconsin Stat. Ann. (1957) §255.01(5) ........................ 18

28 U.S.C. §1257(3) ............................................................ 2
42 U.S.C. §1971 (c) ............ ...................... ........................ 30
42 U.S.C. §§1973 et seq............................... -......... ..... -.30, 32
42 U.S.C. §1983 ............. ...... ................. ......... ..... ..........  3

PAGE



VI

PAGE

Other Authorities:

Bureau of Census, 18th Decennial Census of the United 
States (1960) ....................................................... ........  4,5

Civil Rights Bill of 1966 (reintroduced as the Civil
Rights Bill of 1967) ....................................................  16

“ Civil Rights, 1966” Hearings before Subcommittee 
No. 5 Comm, on Judiciary, House of Representa­
tives, 89th Cong. 2nd Sess...........................................  18

“ Civil Rights” United States Civil Rights Commission 
report for 1963, p. 32 ..................................................  6

Department of Commerce, Bureau of Census, U.S. 
Census of Population: 1960, Vol. I, pt. 2 (Alabama) 30

Finklestein, The Application of Statistical Decision
Theory to Jury Discrimination Case, 80 Harv. L.
Rev. 338 (1966) ............................................................ 23

Moroney, Facts from Figures (3rd and revised edition, 
Baltimore, Md., 1956, Penguin Books) ....................  23



In t h e

Qkmrt of %  HmM Btu&s
October Term 1966 

No.............

J o h n n y  C olem an ,

v.
Petitioner,

S tate of A labam a .

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

Petitioner, Johnny Coleman, prays that a writ of cer­
tiorari issue to review the judgment of the Supreme Court 
of Alabama entered in the above-entitled case on Feb­
ruary 9, 1967, rehearing of which was denied March 9, 
1967.

Citation to Opinions Below

The opinion of the Supreme Court of Alabama is re­
ported at ------ - Ala. —-—, 195 So.2d 800 (1967) and is set
forth in the appendix, infra, p. la. The unreported opin­
ion of the circuit court of Greene County is set forth 
in the appendix, infra, p. 8a.

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered February 9, 1967 (R. 185-93). Application for 
rehearing was denied March 9, infra, p. 7a (R. 194-96). 
On April 10, 1967, Mr. Justice Black stayed execution of 
the death sentence pending disposition of this petition.



2

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1257(3), petitioner having asserted below and as­
serting here deprivation of rights secured by the Consti­
tution of the United States.

Questions Presented

1. Whether petitioner, a Negro sentenced to death, is 
denied due process of law and equal protection of the laws 
when indicted, tried, convicted, and sentenced by juries of 
a county where:

(1) approximately 80 percent of the population is Negro;

(2) Negroes rarely, if ever, serve on grand or petit 
juries;

(3) jurors are selected by means of good character 
tests; and

(4) the state did not offer a satisfactory explanation of 
the gross disparity in Negro and white representa­
tion on the jury rolls. 2

2. Whether petitioner is denied due process of law and 
equal protection of the laws when indicted, tried, con­
victed, and sentenced by juries chosen pursuant to statu­
tory exclusion of females from service.

Constitutional and Statutory Provisions Involved

This case involves the Due Process and Equal Protec­
tion Clauses of the Fourteenth Amendment to the Consti­
tution of the United States.

This case also involves Title 30, §§20, 21, 24, 30, 38, and 
72 of the Code of Alabama (1958 recompiled) and Ala­
bama Acts Nos. 284, 285 (Special Session, 1966) which are 
set forth in the appendix infra, pp. 15a-25a.



Statement

A. History of Litigation

This case is here for the second time. Johnny Coleman 
a Negro, was indicted March 22, 1962 and convicted April 4, 
1962 of murder by juries of Greene County, Alabama and 
sentenced to death.1 2 The Supreme Court of Alabama af­
firmed, 276 Ala. 513, 164 So.2d 704 (1963), but this Court 
unanimously reversed and remanded for an evidentiary 
hearing, holding: “Petitioner was not permitted to offer 
evidence to support his claim” of racial discrimination in 
selection of the grand and petit juries, Coleman v. Alabama, 
377 U.S. 129, 133 (May 4, 1964).

The Supreme Court of Alabama remanded the case to 
the trial court on May 28, 1964, “ so that evidence may be 
taken” (164 So.2d at 708). At a hearing held April 27, 
1965 before the circuit court of Greene County, the parties 
stipulated that the transcript of trial in the case Coleman 
et al. v. Barton, et al. (No. 63-4, N.D. Ala.), would con­
stitute part of the record. This case, in which appellant 
Coleman was one of six Negro plaintiffs, was a civil action 
brought January 3, 1963 in a United States district court 
pursuant to 42 U.S.C. §1983 seeking to eliminate racial 
discrimination from the grand and petit juries of Greene 
County. The district court found that plaintiffs were en­
titled to declaratory relief and issued a judgment2 provid­

1 “ There were no witnesses to the killing and the evidence of guilt 
was circumstantial” Coleman v. Alabama, 377 U.S. 129, 130 (1964).

2 The judgment, dated June 11, 1964, is set forth in the Appendix, 
infra pp. 12a-14a and provides that:

(a) the jury commission is under a statutory duty to see that 
the name of every person possessing- the qualifications to serve is 
placed on jury rolls and in the jury box;

(b) the clerk o f the commission must visit each precinct in the 
county at least once a year;



4

ing for reorganization of the county jury system on a con­
stitutional basis.8 In addition, the circuit court considered 
testimony from the prosecuting attorney at Coleman’s trial 
and, despite a claim of attorney-client privilege, the white 
attorney who represented Coleman at his arraignment and 
trial. Coleman also took the stand to deny certain testi­
mony of his former lawyer.

The court denied Coleman’s claim that juries of the 
county which indicted and tried him were unconstitu­
tionally selected infra, pp. 8a-lla. On February 9, 1967, 
the Supreme Court of Alabama affirmed on the ground 
that there was no conflict between the evidence and the 
Fourteenth Amendment: the “figures would tend to indi­
cate a disparity and in fact do indicate a disparity” but 
it “can be explained by a number of other factors” (E. 190). 
However, the only factor mentioned by the court was that 
qualified Negroes migrated from the county. Application 
for rehearing was denied March 9, 1967 (R. 196).

B. Population Figures

Greene County is overwhelmingly Negro in population. 
Census figures compiled by the Bureau of Census in the 
18th Decennial Census of the United States (1960) were 3

(e) the commissioners are under duty to familiarize themselves 
with the qualifications of eligible jurors;

(d) no person otherwise qualified may be excluded from jury 
service because of his race;

(e) the commission could not “ pursue a course of conduct”  which 
operated to discriminate and could not accept symbolic or token 
representation of Negroes;

( f )  proportional limitations as to race are forbidden;
(g) the jury roll and box as presently constituted should be ex­

amined for compliance with constitutional standards.
3 The district judge denied a prayer for injunctive relief against county 

jury commissioners on the ground that Coleman’s criminal case was 
awaiting retrial of the jury issue in the courts of Alabama, making it 
“unseemly”  in the court’s view to decree injunctive relief.



5

introduced in evidence (R. 188).4 They show that approxi­
mately 8 out of every 10 males in the county over 21 are 
Negro:

N W
Total population 13,600 11,504 (85%) 2,546 (15%)

Total males over 21— 3,022 2,247 (78%) 775 (22%)

C. Compilation of the Jury Roll and the Jury Box

Alabama law requires that the three jury commissioners 
place on the jury roll “ the names of all male citizens of 
the county” over 21 “who, are generally reputed to be 
honest and intelligent men and are esteemed in the com­
munity for their integrity, good character and sound judg­
ment.” Habitual drunkards and those afflicted with per­
manent disease or physical weakness are excluded. Literacy 
is only required of those who do not own freeholds or 
households, Ala. Code, Tit. 30 §§20, 21 (1958 Recompiled).5 6 
Although the statutes aim at an exhaustive jury roll (Ala. 
Code Tit. 30, §24 (1958 Recompiled)), the practice of the 
commissioners is to place only a small proportion of the 
total number of male citizens over 21 on the rolls.*

The jury roll is reworked annually in August of each 
year (R. 89). Jury commissioners testified that there are 
approximately 12 precincts or beats in Greene County

4 United States Census of Population, General Population Character­
istics, PC (1) 2B Ala. p. 2-81 (1960).

6 One of the three commissioners was under the impression that only 
qualified voters were qualified for jury service (R. 74) but both the 
Ala. Code Tit. 30 §21 and testimony of other officials refute this belief.

6 The Supreme Court of Alabama has held that failure to include 
every qualified person on the roll is not a ground to quash an indictment 
or venire. See Fikes v. Alabama, 263 Ala. 89, 81 S.2d 303 (1955) re­
versed on other grounds 352 U.S. 191; Swain v. Alabama, 380 U.S. 202, 
207 N. 3 (1965).



6

from which qualified persons could be chosen for the roll 
but the precincts were visited only sporadically despite 
the requirement of Ala. Code Tit. 30, §24 (1958 Recompiled) 
that it be done every year (R. 72-74, 81, 84, 85, 145). To 
compile the jury roll, primary reliance was placed on 
telephone directories, voter lists,7 and consultation with 
officials, such as the sheriff, tax assessor and tax col­
lector. After complaints from Negro leaders (R. 145, 146) 
three Negroes in the county were asked to supply names 
for the first time when the roll was reworked in August, 
1962 (R. 85, 89, 90, 97, 98, 67, 70, 71). Coleman was in­
dicted March 22, 1962 and convicted April 4, 1962 and 
his grand and petit jury were chosen from the 1961 jury 
roll, prepared in August 1961, prior to use of the three 
Negro “key men” (R. 84-86, 89, 90).

D. Jury Box and Rolls

Both grand and petit jury venires are drawn from a jury 
box by lot. All the names on the jury roll are placed in 
this box and the present jury roll and jury box contain 
approximately 375 names, a number which has been fairly 
constant during the past ten years. Jury commissioner 
Durrick was unable to estimate the number of Negroes 
on the roll prior to 1962 but it was “a limited number” 
(R. 86, 87). After the 1962 revision, he estimated the 
Negro proportion to be “in the neighborhood of ten per­
cent” (R. 90). After Durrick, who knew most of the Negroes 
on the jury rolls, examined the rolls for the years 1961, 
1962, and 1963 he stated that the largest number of Ne­

7 The record does not reflect the number of Negro and white registered 
voters but according to “ Civil Eights,”  United States Civil Eights Com­
mission Report for 1963 (p. 32) only 6.4% o f eligible Negroes were 
registered while more than 100% o f the eligible whites were registered 
in Greene County.



7

groes that he was able to identify on any one jury roll 
was 28 (from a total of 377) for the 1963 jury roll (R. 89, 
90, 141). The number for the 1961 roll from which Cole­
man’s juries were chosen, was 16 (of 354) (R. 141). The 
increase in the total number of persons on the roll between
1961 and 1963 reflects inclusion of Negroes subsequent to 
the complaints of Negro leaders (R. 90, 91).

Durrick’s response with respect to the roll prepared in
1962 is disputed. The typed transcript of trial in Coleman 
v. Barton, supra, repeats “ sixty-two” after the year 1962s 
(R. 141) but Durrick testified that the 1963 roll contained 
the largest number of Negroes (R. 89-91). Judge Grooms, 
who heard the evidence, found that Durrick testified 26 
(of 374) Negroes were on the 1962 roll, and that no more 
than 10% of any roll was Negro even “allowing for those 
not identified.” It seems likely, therefore, that “ sixty-two” 
is a repetition of the year 1962 by the witness. The Su­
preme Court of Alabama did not dispute the finding that 
no more than 10% of the roll was Negro or testimony that 
there were more Negroes on the roll in 1963 than 1962, 
but, nevertheless, read the transcript to mean that the 
commissioner had testified to 62 Negro names for 1962 
(R. 188).8 9

8 The typed transcript shows the following interrogation of commis­
sioner Durrick (R. 141) :

Q. Would you indicate for each of those years how many Negroes 
you could identify are on those jury rolls? A. In 1961, Roll Number 
45, I picked out sixteen. Roll Number 46, 1962, sixty-two. Roll 
Number 47, 1963, twenty-eight.

Q. Did you, for each of those years, indicate the total number of 
persons on the jury roll? A. 1961 there was three hundred fifty- 
three; 1962 there was three hundred seventy-four and 1963, three 
hundred seventy-seven.

9 Petitioner called this inconsistency to the attention of the Supreme 
Court of Alabama in his application for rehearing. It was also urged 
that under the rules of that court it was bound to accept the facts as



8

E. Grand Jury Venires and Panels

Grand jury venires are drawn from the general jury 
roll and box and the circuit judge draws the panel of 
18 from the venire by lot, Ala. Code Tit. 30, §38 (1958 
Recompiled). The Supreme Court of Alabama found that 
“generally 8 to 10” Negroes served on the grand jury 
venires but the record only reveals the jury commission 
clerk’s testimony that she had observed about eight to ten 
(R. 153, 154, 189) Negroes on a grand jury venire of 50 
to 60 (R. 20). A  number of grand jury foremen testified 
that during the previous ten years Negroes had always 
served on the grand jury venires, but they put the maxi­
mum number at between two and four (R. 21, 50, 54, 56).

Aside from one occasion in 1963 (after Coleman had 
been indicted and convicted) when two to four Negroes 
served on a grand jury panel, no Negroes had actually 
served on the panel of 18 (R. 21, 38, 39, 44, 45, 48, 49, 53, 
54, 56, 58, 65, 176).10 On the other hand many whites testi­
fied who had each served repeatedly on the grand jury

stated in petitioner’s brief, because the state had failed to challenge 
petitioner’s interpretation of the evidence for the roll prepared in 1962.

The State had declined to file a brief in the Supreme Court of Ala­
bama which amounts to a concession of accuracy under Rule 9 of the 
rules of the Supreme Court o f Alabama:

The statements made by appellant under the headings “ Statement of 
the Case”  and “ Statement of the Pacts” will be taken to be accurate 
and sufficient for decision, unless the opposite party in his brief 
shall make the necessary corrections or additions. (Ala. Code Tit. 7, 
Sup. Court Rule 9)

In his brief before the Supreme Court of Alabama, Coleman stated that 
the number of names identified for 1962 was not reflected in the transcript 
but that the evidence showed that in no event was it greater than 28.

10 The clerk had seen 2 or 3 Negroes on a grand jury and one or two 
Negroes on a petit jury, but this has not occurred very often (R. 154). 
When asked if any Negroes served on the grand jury prior to 1962 she 
answered “ I couldn’t tell you because I cannot keep dates completely 
straight in my mind and I don’t want to say yes or no”  (R. 154).



9

(E. 20, 21, 42, 53). A witness who was present in court 
at the time testified that no Negro served on the panel 
which indicted Coleman (E. 137), and the Deputy Solicitor, 
who had been present at all criminal trials for eight years, 
was questioned as follows (E. 176):

Q. Now Mr. Banks, do you know of any Negro 
that ever served on a Grand jury in this county prior 
to the time that this defendant was tried? A. I can’t 
recall.

Q. You don’t recall any Negro that did? A. Not 
offhand I can’t.

Q. Do you recall any Negroes who served on the 
Grand Jury that indicted this defendant? A. I can’t 
recall whether there was one or not.

F. Petit Jury Venires and Panels

Although the Supreme Court of Alabama found that 
the venires of 50 to 60 “generally” include “6, 7 to 10 
members of the Negro race,” the testimony is only that a 
number up to eight to ten has been observed on a venire 
(E. 19, 20, 189). It is uncontradicted that there were 2 to 
4 Negroes on the venire of 56 from which petitioner’s 
petit jury was struck (E. 175-77), and that few Negroes 
have actually served on petit juries because they are struck 
by attorneys’ use of peremptory challenges (E. 15, 16, 
17, 101, 108, 154). The record as a whole suggests that 
one Negro actually served on a criminal jury prior to 
Coleman’s conviction (E. 102). For example, one of the 
prosecuting attorneys testified (E. 176-77):

Q. Do you recall any Negro who served on a petit 
jury on the trial of any case in this court prior to the 
time that this defendant was tried? A. I can’t say 
positively one did or did not.



1 0

Q. You don’t recall any, do you? A. I ’m just a 
little hazey (sic). I’m trying to think—yes.

Q. Which one was that? A. I can not recall the 
case.

Q. You mean actually served on a petit jury in this 
county? A. Yes. To the best of my recollection, it 
was a criminal case.

Q. When was that? A. I ’m not certain, but to the 
best of my judgment, it was a criminal case that I 
remember prior to. . . .

Q. Prior to the time this defendant was tried? 
A. The best of my recollection it was.

Q. Can you give us the name of that Negro? A. I 
can’t do it.

Q. Can you give us the name of the defendant who 
was tried at that time? A. No.

Q. Can you give us the name of the attorney who 
tried the case of the defendant at that time? A. I 
don’t know whether it was Mr. Hall or not.

Q. Mr. who? A. Mr. David Hall. It might have 
been him. I ’m not positive. I can’t say for sure.

Q. How long have you been practicing in this county? 
A. Seventeen years.

Q. And you have been present during the trial of 
all criminal cases, have you not? A. No, the last 
eight years I have.

G. Relative Qualifications of Negroes and Whites

The record contains general “opinion” evidence regard­
ing the relative qualifications of Negroes and whites for 
jury service. The circuit judge thought, for example, that 
only twenty per cent of the Negro community was quali­
fied under §21 (E. 24). A banker found it a “hard ques­
tion” but testified a “good number” more whites than Ne­



11

groes were generally reputed to be honest, intelligent men, 
esteemed in their community for their good character and 
sound judgment (E. 40, 41). On the other hand several 
Negro witnesses, including ministers, and property owners, 
testified to long-term residence in the county, and to 
knowledge of Negroes who met the statutory qualifications 
who had not been called to serve as jurors. One of the 
witnesses, Eev. Branch, pastor of two churches and a 
school teacher, who had lived in the county all his life, 
testified that no one had ever asked him to supply any 
names of qualified Negro residents but that if asked he 
could supply at least 1,500 names (E. 116, 118-20, 123-24, 
129, 134-39).

The circuit judge also testified generally that of Negroes 
“who receive an education . . . practically a hundred per 
cent” left the county in search of better economic oppor­
tunity (E. 24) while a Negro minister testified that quite 
a few migrated to the north but that in his opinion the 
more intelligent remain and “try to make it a good home 
to stay” (E. 120). The Supreme Court of Alabama stated 
in its opinion that “ . . . many of the Negroes who would 
otherwise be eligible are moving away from the county 
because of the lack of economic opportunity existing in 
Greene County for them and other young people. The 
members of the white and Negro races who would be a 
benefit to this community and whose loss is felt in the 
country leave and hence leave the community poorer for 
their loss” (E. 190-91).

The only specific evidence offered to explain the variance 
between the Negro proportion of the population and the 
Negro proportion of the jury roll concerned the crime rate 
and high school graduation.

The clerk of the jury commission testified that there 
were 325 felonies committed by Negroes in the county in



12

the last 10 years and 12 committed by whites (R. 151). 
Some of these were persons convicted more than once and 
her statistics were not broken down to show recidivism, age, 
sex or county residence of the offender (R. 151). The 
Supreme Court of Alabama expressly refused to consider 
crime statistics probative of the lack of qualified Negroes 
because of the high Negro proportion of the population 
(R. 190).

The county superintendent of education testified that 
he had examined the graduation records of Negro and 
white public school students (R. 155). He described the 
number of students who had enrolled and subsequently 
graduated between 1937 and 1952 (R. 156). In 1937, 63 
whites registered and twelve years later 36 graduated 
(R. 157). In 1947-1948 there were 50 white first graders of 
whom twelve years later 29 graduated high school (R. 158). 
In 1937-1938, 763 Negroes entered the first grade. Twelve 
years later 81 graduated. In the year 1947-1948, 874 
Negro children entered the first grade. Twelve years later 
119 graduated (R. 158, 159). The statistics were not 
broken down on the basis of sex. Nor did they reveal the 
number of children who had left the county and gone to 
school in another jurisdiction (R. 160, 161).

The statistics did not show the number of grades com­
pleted by students who had not graduated although the 
superintendent stated that whether or not a person who 
dropped out of school could read English (required only 
of non-property owners by Ala. Code Tit. 30 §21) depended 
on the point at which he dropped out. He also testified 
that children who dropped out of the 10th grade would be 
able to read English; that no particular level of education 
makes a man esteemed in the community for his integrity, 
good character and sound judgment or is proof against 
his being a drunkard or afflicted with a physical weakness;



13

and that a student who did not graduate could be a house­
holder or freeholder and thus eligible for jury service even 
if illiterate (E. 161-63). The record establishes that there 
are an “unusual” number of Negro property owners in 
Greene County (E. 35).

How the Federal Questions Were Raised 
and Decided Below

In 1964, this Court reversed the judgment of the Supreme 
Court in Alabama, and ordered a hearing of petitioner’s 
claims, initially made by motion and amended motion for 
new trial, that “ Negroes qualified for jury service in Greene 
County, Alabama are arbitrarily, systematically and inten­
tionally excluded from jury duty in violation of . . . the 
Fourteenth Amendment.. ” (377 U.S. 129; E. (C) — (E )). 
On remand, Coleman also filed in the trial court a motion 
for discharge seeking release from custody on the grounds 
that:

“1. The conviction of the defendant in this cause 
was in violation of the laws and Constitution of Ala­
bama and the Fourteenth Amendment to the Constitu­
tion of the United States;

2. this Honorable Court failed to grant the de­
fendant a speedy hearing in this cause (see John C. 
Coleman v. State of Alabama, 164 So.2d 708).

3. the laws and statutes of Alabama pertaining to 
the compiling, drawing and summoning of jurors are 
vague and unconstitutional” (E. F).

On June 29, 1965, the circuit court of Greene County 
held that, “there was no racial discrimination and that per­
sons of the Negro race was not arbitrarily or systematically



14

excluded or intentionally excluded from jury roll and from 
the jury box” (R. G-I), infra p. 10a.

Petitioner appealed to the Supreme Court of Alabama 
claiming, that he had been denied due process and equal 
protection of the laws in violation of the Fourteenth 
Amendment to the Constitution of the United States in 
that:

(1) The state had failed to satisfactorily explain 
the fact that at the time of his indictment Negroes had 
never served on the grand juries of Greene County;

(2) The state had failed to satisfactorily explain 
the fact that a decided variation existed between the 
proportion of Negroes on the jury roll and the Negro 
proportion of the population;

(3) Ala. Code Tit. 30 §21 on its face and as applied 
granted excessive discretion to the jury commissioners 
and was unconstitutionally vague and ambiguous.

The Supreme Court of Alabama rejected petitioner’s 
Fourteenth Amendment claims of racial discrimination in 
selection of jurymen holding that the disparity between 
Negroes and whites on the jury rolls was explained because 
“ . . . many of the Negro people remaining in the county are 
not qualified under the statute for jury duty. It was not 
shown that there was any discrimination against Ne­
groes . . .  as proscribed by our (sic) federal decisions” 
(R. 191). Application for rehearing was denied (R. 196).

The unconstitutionality under the Fourteenth Amend­
ment of the state’s exclusion of females from jury service 
was first raised by petitioner in his brief in the Supreme 
Court of Alabama. The court did not discuss this claim 
or suggest any state law ground for declining to consider 
it. Its opinion does state that “ The single issue in which



15

the Supreme Court of the United States reversed was the 
trial court’s refusal to permit proofs of systematic exclu­
sion of Negroes from the jury roll in Greene County . . 
(R. 186).

The Supreme Court of Alabama had, however, discretion 
to consider the claim of unconstitutional exclusion of fe­
males because the question was properly raised in peti­
tioner’s brief and also because the Supreme Court heard 
this case “under the enlightened procedure of its automatic 
appeal statute” which permits it in capital cases to consider 
issues even if not raised,11 Coleman v. Alabama, 377 TJ.S. 
129 (1964); Ala. Code Tit. 15, §§382 et seq. (1958 Recom­
piled) ; Howard v. State, ------  Ala. ------ , 178 So.2d 520,
524-25 (1967). Jurisdiction over the claim of unconstitu­
tional exclusion of females is premised, therefore, on the 
doctrines that this Court may consider a federal question 
(1) notwithstanding a state court’s discretionary refusal to 
do so, Williams v. Georgia, 349 U.S. 375, 389 (1955) (dis­
cretion to consider motion); Shuttlesworth v. Birmingham, 
376 U.S. 339 (1964) (discretion to consider petition filed 
on wrong size paper), or (2) unless a non-federal ground 
which independently and adequately supports the judgment 
is asserted. NAACP v. Alabama, 357 U.S. 449, 455 (1958).

11 In his brief in support o f application for rehearing petitioner called 
the attention o f the Supreme Court of Alabama to its failure to dispose 
of the challenged exclusion of females in §21. The petition was denied 
without opinion (R, 196).



16

REASONS FOR GRANTING THE WRIT

Introduction

The Public Importance of the Questions Presented

This capital case raises a claim of systematic racial dis­
crimination in jnry selection which merits granting cer­
tiorari. The decision below plainly conflicts with decisions 
of this Conrt. Moreover, the case involves two issues of 
transcendent importance to achieving nonracial jury se­
lection.12

First. To what extent may a state delegate to jury selec­
tion officials farreaching discretion to administer subjective 
characterlogical standards which operate to exclude far 
more Negroes than whites? The challenged statutory stan­
dards “define” the framework within which jury selection 
takes place and present, by their vagueness, a convenient 
mask for discrimination. The long history of jury discrimi­
nation makes clear that excessive discretion is the enemy 
of nonracial selection: “It is this broad discretion located 
in a no a-judicial office which provides the source of discrim­
ination in the selection of juries.” Labat v. Bennett, 365 
F.2d 698, 713 (5th Cir. en banc 1966) ; Smith v. Texas, 311 
U.S. 128 (1940); Rabinowitz v. United States, 366 F.2d 34 
(5th Cir. en banc 1966). The critical role of indefinite jury 
qualifications is acknowledged by the proposed Civil Rights 
Bill of 1966 (reintroduced as the Civil Rights Bill of 1967) 
which provides affirmative procedures to comply with the

12 “ In a transitionary period where jury commissioners are moving, but 
moving slowly, toward a nondiscriminatory system of selecting a cross- 
section of the community, sophisticated methods of token inclusion o f 
Negroes on venires have increased the defendant’s burden of proving a 
prima facie case of systematic exclusion.”  Labat v. Bennett, 365 F.2d 
698, 712 (5th Cir. en banc 1966.)



17

Fourteenth Amendment by authorizing district courts to 
require use of objective criteria for state jury selection.13

13 The following state statutes require jurors to be of good moral char­
acter :

Alabama Code tit. 30 §21(1959) : “all male citizens of the county 
who are generally reputed to be honest and intelligent men and are 
esteemed in the community for their integrity, good character and 
sound judgment. . . .”
Arizona Rev. Stat. Ann. (1956) §21-201: “ . . . sober and intelligent, 
of sound mind and good moral character. . .
Arkansas Stat. Ann. (1962) : §39-101 Grand Juror: . . temperate
and o f good character. . . §39-206 Other Jurors: “ persons of good
character, o f approved integrity, sound judgment and reasonably in­
formed. . . .”  See also §39-208: same as 206 and applies to grand 
jurors.
Connecticut Gen. Stat. Ann. (Supp. 1965) : §51-217: . . esteemed
in their community as persons o f good character, approved in­
tegrity, sound judgment and fair education. . . .”
Florida Stat. Ann. (1961) Tit. 5 §40.01: “ law abiding citizens of 
approved integrity, good character, sound judgment and intelli­
gence. . . .”
Georgia Code Ann. (1965): §59-106: “ upright and intelligent citi­
zens. . . .”
Illinois Ann. Stat. (Smith-Hurd Supp. 1966) Tit. 78 §2: “ of fair 
character, o f approved integrity, of sound judgment, well-in­
formed. . . .”
Iowa Code Ann. (1950) §601.1: “ of good moral character, sound 
judgment. . . .”
Kansas Stat. Ann. (1964) §43-102: “ possessed of fan,' character 
and approved integrity. . .
Louisiana Rev. Stat. Ann. (1950) §13-3041: “ of well known good 
character and standing in the community. . . .”
Maine Rev. Stat. Ann. tit. 14 §1254 (Supp. 1965) : “o f good moral 
character, o f approved integrity, o f sound judgment and well-in­
formed. . . .”
Maryland Ann. Code Art. 51 (Supp. 1966) §9: “ with special refer­
ence to the intelligence, sobriety and integrity of such persons.”  
Michigan Stat. Ann. (Supp. 1965) §27A.1202: “ of good character, 
o f approved integrity, o f sound judgment, well informed.”
Missouri Ann. Stat. (Supp. 1966) §494.010: “sober and intelligent, 
o f good reputation” .
Nebraska Rev. Stat. (1964) §25-1601: “ intelligent, o f fair char­
acter, of approved integrity, well informed” .



18

President Johnson emphasized the role in denying Four­
teenth Amendment rights of “officials [who] make highly 
subjective judgments of a jurors ‘integrity, good charac­
ter and sound judgment’ ” when he proposed the 1966 
Bill.14 Recently in Whitus v. Georgia, 385 U.S. 545 
(1967) and Bostick v. South Carolina, 18 L,Ed.2d 223 
(1967), this Court condemned statutes which injected race 
into the source of jurymen because they provided an “op­
portunity to discriminate.” The vague and subjective moral 
standards challenged here provide a similar opportunity to 
discriminate.

Second. The judgment below rests on the validity of the 
state’s explanation of a gross disparity on the jury rolls 
which, if unrebutted, establishes a case of racial discrimi­
nation. This Court has never directly considered the proper 
standards to be applied in appraising whether the state 
has carried its burden once a prima facie case has been 
established. The rule of proof set out in Norris v. Alabama, 
294 U.S. 587 (1935) has been applied by this Court and 
the lower courts for over thirty years to measure discrim­

New York Judie. Law (Supp. 1966) §504(5) : “o f good character, 
o f approved integrity, o f sound judgment” .
North Carolina Gen. Stat. (1953) §9-1: “ o f good moral character 
and have sufficient intelligence to serve” .
Oklahoma Stat. Ann. tit. 38 (Supp. 1966) §28 “ o f sound mind and 
discretion, of good moral character” .
South Carolina Code Ann. (1962) §38-52: “ o f good moral char­
acter” .
Texas Rev. Civ. Stat. Ann. (1964) §2133: “ of sound mind and 
good moral character” .
West Virginia Code Ann. (1966) §52-1-4: “ of sound judgment, 
o f good moral character” .
Wisconsin Stat. Ann. (1957) §255.01(5) : “ esteemed in their com­
munities as of good character and sound judgment” .

14 “ Civil Rights, 1966”  Hearings before Subcommittee No. 5 Comm, on 
Judiciary, House of Representatives, 89th Cong. 2nd Sess., pp. 1050, 
1056, 1057.



19

ination in jury selection. As a consequence of a small in­
crease in Negro jury service from total exclusion to to­
kenism, however, there are increasing numbers of cases 
where attempts are made to “ justify” decidedly dispropor­
tionate selection of Negroes and whites. In Swain v. Ala­
bama, 380 U.S. 202 (1965), for example, the Court failed to 
find a prima facie case and, therefore, did not reach the 
state’s attempted justification for a disparity in rates of 
venereal disease, public assistance, and illegitimacy. In 
Labat v. Bennett, 365 F.2d 698 (5th Cir. en banc 1966), 
the state unsuccessfully sought to excuse a failure to call 
wage earners and laborers which resulted in a great under­
representation of Negroes.

In this case the Supreme Court of Alabama accepted 
the state’s “explanation” for the discrimination but failed 
to articulate clearly the manner in which it reached this 
result or the standard of proof applied. The question of 
what constitutes sufficient explanation to overcome a prima 
facie showing now assumes the same critical importance as 
the question of what constitutes a prima facie showing. 
Acceptance as rebuttal of the sort of inconclusive evidence 
of Negro disqualification produced below seriously affects 
the vitality of the prima facie rule.



20

I.

Petitioner Has Established a Prima Facie Case of 
Racial Discrimination in Selection of Jurors Which the 
State Has Failed to Rebut.

A. The Decided Racial Variation on the Jury 
Roll Makes Out a Prima Facie Case

The gross disproportion between the Negro population 
of Greene County and its representation on the county jury 
roll establishes a prima facie case of discrimination which, 
if not satisfactorily explained, requires that petitioner’s 
conviction be set aside. The state acted on this assumption 
as shown by its attempt to justify the disproportion by 
crime and high school graduation statistics. And the Su­
preme Court of Alabama rested its affirmance on the 
ground that the disparity between Negroes and whites “can 
be explained by a number of other factors” than race 
(R. 190, 191). The United States district judge who heard 
much of the testimony, which later served as the record 
before the Alabama courts, found discrimination, entered 
a declaratory judgment, and denied a prayer for injunctive 
relief only because of the pendency of this case in the 
state courts, infra, pp. 12a-14a.

The disparity on the jury rolls is simply too large to go 
unexplained. Although 8 of every 10 males in the county 
are Negro, at the most only 1 out of every 10 persons on 
the 1963 jury roll was Negro. The 10 percent estimate 
likely overstates Negro participation for a jury commis­
sioner familiar with the Negroes of the county could only 
identify 16 Negroes out of 354 persons on the 1961 roll 
from which petitioner’s juries were selected. Thus, be­
cause of the relatively few whites who reside in the county



21

approximately 1 of every 2 white males over 21 are listed 
for jury service,15 16 while accepting the 10 percent estimate, 
approximately 1 Negro male out of every 65 Negroes over 
21 is on the jury roll.16 Whites serve as jurors repeatedly 
while few, if any, Negroes serve at all.

A jury list which so distorts the racial composition of 
the community “strongly points” to discrimination, Whitus 
v. Georgia, 385 U.S. 545, 552 (1967). In Whitus Negro 
participation in the jury franchise was far greater than 
here (Negroes constituted 9.3% and 7.8% of the venires 
and only 27% of the taxpayers) and the court found a 
prima facie case. See also Speller v. Allen, 344 U.S. 443, 
481 (1952) (variance between 38% Negro population and 
7% on jury list must be explained); United States ex rel. 
Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962) (Negroes 31% 
of population and 2% of lists; prima facie case estab­
lished) ; Scott v. Walker, 358 F.2d 56 (5th Cir. 1966) (Ne­
groes 13% of population and 1% of lists; prima facie case 
established).

Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala. 1966) 
is instructive because it concerns an Alabama county where 
the Negro-white population ratio is similar to Greene’s. 
The Macon County jury list contained 732 whites and 406 
Negroes. Negroes constituted 35.7% of the names on the 
list and 82% of the population, a far more favorable rep­
resentation of Negroes than in Greene, but the court found 
that the underrepresentation established racial discrimina­
tion.

15 319 (90% of 354) whites on 1961 list of 775 whites over 21 in the 
population.

16 35 (10% of 354) Negroes on the 1961 list of 2247 Negroes over 21 
in the population.



22

The record also clearly shows that petitioner was in- 
dieted prior to empanelling of the first grand jury on which 
a Negro served, a circumstance which has always been con­
sidered sufficient by itself to establish a prima facie case.17 
This Court has consistently reversed convictions in cases 
where there has not been actual Negro grand jury service 
or where only a token number have served over the years 
in counties with far smaller Negro populations than Greene 
County, Alabama; Eubanks v. Louisiana, 356 U.S. 584 
(1958) (one Negro served in eighteen years); Arnold v. 
North Carolina, 376 U.S. 773 (1964) (one Negro served in 
24 years). Cf. Cassell v. Texas, 339 U.S. 282 (1950) (one 
Negro on each of 21 consecutive juries over a six year 
period); Smith v. Texas, 311 U.S. 128 (1940) (Negroes con­
stituted 20% of population; 10% of poll taxpayers but 
“very few” served on grand juries).

A scientific appraisal of the result confirms that there 
is racial discrimination in Greene County jury selection.

17 Nine white men who had been grand jury foremen usually on two, 
three or four occasions but in some cases even more often during the pre­
vious ten years testified that (1) two to four Negroes appeared on the 
grand jury venires of from 50 to 60; (2) with one exception, Negroes 
never served on the panel of 18 grand jurors; (3) the exceptions men­
tioned was the September, 1963 grand jury empanelled over a year after 
Coleman’s indictment. The Deputy Solicitor of the Circuit and one o f the 
attorneys who prosecuted Coleman, testified that he had been present for 
all criminal trials during the last eight years, had a “ fairly wide”  ac­
quaintance with Negroes in the community, and could not recall any 
Negro who had served on a grand jury of the county prior to Coleman’s 
trial (R. 175, 176).

A  witness, who was present in court at the time, testified that there 
were no Negroes on the grand jury which indicted Coleman, March 22, 
1962.

This testimony was not contradicted by the clerk of the jury commis­
sion, who when asked if Negroes served on the grand jury prior to 1962 
answered:

I couldn’t tell you because I cannot keep dates completely straight in 
my mind and I don’t want to say yes or not (R. 154).



23

Use of the techniques to determine the mathematical prob­
ability which were employed by Mr. Justice Clark, writing 
for the court in Whitus v. Georgia, 385 U.S. 545, 552, note 2 
demonstrates that the results here are even less likely to 
have occurred by chance than those condemned by the 
court in Whitus. Mr. Justice Clark used and referred to 
the method described in Finklestein, The Application of 
Statistical Decision Theory to Jury Discrimination Case, 
80 Harv. L. Rev. 338 (1966) which involves use of the 
Chi-Square test, Finklestein, supra at 365-373.18

By application of the Chi-Square test described in 
Finklestein, supra, to these facts we find that assuming 
there was a random selection from the eligible population 
of males over 21 (containing 2247 Negroes and 775 whites), 
the probability of getting (1) 26 or fewer Negroes on a jury 
roll of 374; (2) 62 or fewer Negroes on a jury roll of 374; 
(3) 16 or fewer Negroes on a jury roll of 353 are truly 
astronomical. (Note that the “62” figure assumes the cor­
rectness of a finding of the Supreme Court of Alabama 
which is not supported by the record.)

The probability of random selection of 26 or fewer Ne­
groes is a number which is written as a decimal point 
followed by 195 zeroes and then the number 8432. The 
probability of 62 or fewer Negroes is a number written as 
a decimal point followed by 143 zeroes and the number 
2076. The probability that 16 or fewer Negroes could be 
selected by chance is a number written as a decimal point 
followed by 197 zeroes and then the number 2873. Thus, 
under any formulation the probability of Negroes serving- 
on the jury lists being accounted for by chance is signif­

18 A readily available paperback book giving an explanation o f the 
statistical method and written for laymen without mathematical training 
is, Moroney, Facts from Figures (3rd and revised Edition, Baltimore, 
Md., 1956, Penguin Books) 246-270.



24

icantly less than one chance in a trillion. The computation 
of these results is set out in full in the appendix infra, 
pp. 26a, 27a.

The disproportion between Negro and white jury ser­
vice is also contrary to the idea that: “A jury is a body 
of men composed of the peers or equals of the person whose 
rights it is selected or summoned to determine; that is, 
of his neighbors, fellows, associates, persons having the 
same legal status in society as that which he holds.” 
Strauder v. West Virginia, 100 U.S. 303, 308 (1880). This 
standard, that a jury must fairly represent the community, 
was recently adopted by the Fifth Circuit in Labat v. Ben­
nett, 365 F.2d 698, 720-24 (5th Cir. en banc 1966) relying 
upon Smith v. Texas, 311 U.S. 128, 130 (1940); Glasser v. 
United States, 315 U.S. 60, 86 (1941); Thiel v. Southern 
Pacific Co., 328 U.S. 217 (1946); Brown v. Allen, 344 U.S. 
443, 474 (1953). See also opinion of Judge Bell joined by 
Judge Coleman concurring in the result and referring to 
the requirement of a “fair cross section of the community” 
(365 F.2d at 740, 741). The Fifth Circuit also decided 
that a “ fair cross section of the community was required 
in the selection of federal court juries” Rabinowits v. 
United States, 366 F.2d 34, 55, 56 (5th Cir. en banc 1966). 
Far from reasonably reflecting that approximately eighty- 
five percent of Greene County is Negro, the jury rolls in 
the county are rather the organ of a “special group or 
class”—the whites of the county—Glasser v. United States, 
315 U.S. 60, 86 (1941). The very legitimacy of the jury 
as the institution which passes judgment on the community 
as a whole is impaired by such a result.



25

B. Vague and Subjective Standards for Selection of 
Jurors Establish a Prima Facie case of Discrimina­
tion.

The marked disproportion between Negro and white jury 
service which could not have occurred by chance itself 
establishes a prima facie case of discrimination which the 
State must rebut. A prima facie case also is made out 
under the rule of Whitus v. Georgia, 385 U.S. 545 (1967) 
for jury selection in Greene County operates within a 
statutory framework which provides an “opportunity to 
discriminate.” Because of inherent vagueness and delega­
tion of unlimited, essentially unreviewable, discretion to 
the jury commissioners, the Alabama statutory scheme 
operates to provide the “ opportunity for discrimination” 
which the racially designated source of names supplied in 
Whitus at 385 U.S. 552. See also Bostick v. South Caro­
lina, 18 L.Ed.2d 223 (1967).

In the selection of the jury lists the commissioners chose 
only “male citizens of the county who are generally reputed 
to be honest and intelligent men and are esteemed in the 
community for their integrity, good character and sound 
judgment” (Ala. Code, Tit, 30, §21 (Recompiled 1958).19

19 At the time the juries which indicted and convicted petitioner were 
selected Title 30, §21 stated:

Qualifications of persons on jury roll.— The jury commission shall 
place on the jury roll and in the jury box the names o f all male citi­
zens of the county who are generally reputed to be honest and intel­
ligent men and are esteemed in the community for their integrity, 
good character and sound judgment; but no person must be selected 
who is under twenty-one or who is an habitual drunkard, or who, 
being afflicted with a permanent disease or physical weakness is unfit 
to discharge the duties of a juror; or cannot read English, or who 
has ever been convicted o f any offense involving moral turpitude. I f  
a person cannot read English and has all the other qualifications pre­
scribed herein and is a freeholder or householder his name may be 
placed on the jury roll and in the jury box. No person over the age



26

It is settled, however, that when constitutional rights are 
involved officials may not exercise a discretion which con­
sists solely of their own subjective judgment. Require­
ments of specificity are necessary to a determination of 
the qualifications of jurymen in Greene County because 
“exclusion from jury service . . .  is at war with our basic 
concepts of a democratic society.” Smith v. Texas, 311 
U.S. 128, 130 (1940) and because (as with racial discrim­
ination in voting)20 excessive discretion in the hands of 
local officials thwarts nonracial selection. Smith v. Texas, 
supra; Labat v. Bennett, 365 F.2d 698, 712, 713 (5th Cir. 
en banc 1966).

The character and intelligence tests of §21 provide the 
“ opportunity for discrimination” condemned in Whitus, 
supra, because they are not described with sufficient preci­
sion to enable one to know where the statute draws the 
line between the qualified and the disqualified. The Court 
has declared similar language permitting public officials 
to make subjective decisions unconstitutionally vague: 
“unreasonable charges” United States v. L. Cohen Grocery 
Co., 255 U.S. 81 (1921); “unreasonable profits” Cline v. 
Frink Dairy Co., 274 U.S. 445 (1927); “reasonable time” 
Herndon v. Lowry, 301 U.S. 242 (1937); “sacrilegious” 
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); “ so 
massed as to become vehicles for excitement” (a limiting 
interpretation of “indecent or obscence” ) Winters v. New 
York, 333 U.S. 507 (1948); “immoral” Commercial Pictures

of sixty-five years shall be required to serve on a jury or to remain 
on the panel of jurors unless he is willing to do so.

In 1966, §21 was amended to permit females to serve as jurors, see 
infra, pp. 20a-25a.

20 Condemnation of discretion in the hands of state voting officials is the 
heart of two recent decision o f the Court. See United States v. Mississippi, 
380 U.S. 128 (1965) and Louisiana v. United States, 380 U.S. 145 (1965).



27

Corp. v. Regents of University of N. Y., reported with 
Superior Films, Inc. v. Department of Education, 346 
U.S. 587 (1954); “an act likely to produce violence” in 
Edwards v. South Carolina, 372 U.S. 229 (1963); “ sub­
versive person” in Baggett v. Bullitt, 377 U.S. 360 (1964); 
“reprehensive in some respect” ; “improper” ; and out­
rageous to “morality and justice” Giaccio v. Pennsylvania, 
382 U.S. 339 (1966). See also Staub v. City of Baxley, 
355 U.S. 313 (1958); South Carolina v. Katzenbach, 383 
U.S. 301, 312-313 (1966) ;21 Louisiana v. United States, 
380 U.S. 145, 153 (1965); see also United States v. Atkins, 
323 F.2d 733, 742-43 (5th Cir. 1963); Davis v. Schnell, 
81 F. Supp. 872 (S.D. Ala.) aff’d per curiam, 336 U.S. 933 
(1949); Board of Supervisors v. Dudley, 252 F.2d 372, 
74 (5th Cir. 1958).

The record here fully confirms the inherent vagueness of 
§21 and its capacity for arbitrary administration. The 
officials charged with selection of jurymen considered 
that Negroes as a class were overwhelmingly unqualified 
(although the state’s evidence showed more Negroes than 
whites graduated high school) but aside from unsatis­
factory crime and high school graduation statistics, see 
infra pp. 28-31, they offered nothing specific to explain 
why they believed Negroes as a class less honest, esteemed, 
or not of good character, integrity or intelligence. Faced 
with the conclusory statements of white officials regarding 
the relative qualifications of Negro and white residents, 
petitioner presented witnesses who refuted these general 
conclusions with those of their own to the effect that many

21 Dealing with voting qualifications imposed by South Carolina law 
which are similar to those of Tit. 30, §21, the Court declared in South 
Carolina v. Katzenbach, 383 U.S. 301, 312-313 (1966) :

“ The good morals requirement is so vague and subjective that it has 
constituted an open invitation to abuse at the hands of voting offi­
cials.”



28

Negroes were qualified. Nothing demonstrates the inherent 
vagueness of §21 more than the inability to appraise, and 
to review, the contrary perceptions of Negroes and whites 
as to the qualifications of members of the community. As 
the court said in Whitus, supra: “under such a system, 
the opportunity for discrimination was present and we 
cannot say on this record that it was not resorted to by 
the commissioners.”

C. The State Failed to Offer a Satisfactory Explanation 
for the Gross Disparity Between Negro and White 
Jury Service.

Petitioner’s prima facie ease placed a burden on the 
state of coming forward with evidence and a constitu­
tionally acceptable explanation for the facts creating the 
inference of discrimination. But the state relied on con- 
elusory “ opinion” evidence and high school graduation 
and crime statistics to argue that ninety percent of the 
Negro males of the county over 21 “were not fully quali­
fied” Whitus v. Georgia, 385 U.S. 545, 552 (1967).

The Supreme Court of Alabama affirmed petitioner’s 
death sentence on the ground that the state’s explanation 
of the large racial disproportion was satisfactory. The 
court did not, however, specify the evidence or the rea­
soning which supported its conclusion that the “disparity 
can be explained by a number of other factors” (R. 190) 
other than that “Negroes who would be otherwise eligible 
are moving away from the county because of lack of eco­
nomic opportunity” (R. 190-91). The court totally rejected 
the crime statistics (which did not reflect sex, residence 
or recidivism) because they showed “ simply that the great­
est number of crimes are committed by the race making- 
up the greatest part of the population” (R. 190).22

22 The Circuit Judge had testified that Negroes committed 95% of the 
serious crimes in the County and the Clerk of court testified that of 337



29

I f it were necessary to a decision of the case, this 
Court could undertake the “duty to make independent 
inquiry and determination of the disputed facts,” Pierre 
v. Louisiana, 306 U.S. 354 (1939), and “analyze the facts” 
to protect the federal constitutional rights involved. Nor­
ris v. Alabama, 294 U.S. 587, 590 (1935). But this is un­
necessary because the only specific evidence offered by the 
state totally fails to rebut the inference of discrimination. 
General denials of the presence of sufficient qualified Ne­
groes are insufficient to carry the state’s burden.

The testimony of the superintendent of schools as to 
relative numbers of Negroes and whites who entered ele­
mentary school between 1937 and 1948 and the numbers 
who graduated twelve years later does not explain why so 
few Negroes are selected as jurors. In the 1947-48 school 
year 50 whites and 874 Negroes entered first grade. Twelve 
years later, 29 whites and 119 Negroes graduated.23 One 
might expect that there would be four times as many Ne­
groes as whites on the rolls; four times as many Negroes 
as whites graduated.

No level of educational attainment, moreover, much less 
high school graduation, is a statutory prerequisite for jury 
service in Alabama. The state did not link graduation 
statistics to “intelligence” or “literacy” although proof of

felonies over the last 10 years, only 12 had been perpetrated by whites. 
As 85% of the total population of Greene County is Negro it is not sur­
prising that Negroes are convicted for about 9 out of 10 crimes. Indeed, 
the Negro conviction rate may be to some extent explained by the very 
jury discrimination which is asserted here, for a judicial system in which 
Negroes rarely serve is more likely to indict and convict Negroes unfairly 
than whites.

23 These statistics were not broken down on the basis o f sex and did 
not reflect change in residence. The superintendent conceded that many 
Negroes could have finished school in other jurisdictions and that this 
would not be reflected in the statistics offered.



30

such a relationship is necessary to meet it’s burden. When 
questioned as to the relationship between high school grad­
uation and intelligence, the superintendent of schools con­
ceded men can be and are “intelligent” , as well as esteemed 
in the community for their integrity, good character, and 
sound judgment without having graduated high school. As 
the literacy requirement of §21 is waived in the case of 
property owners, of which there are a great many Negroes 
in Greene County, it hardly serves as a statutory qualifica­
tion to which high school graduation might relate. Never­
theless, even if literacy were required unconditionally, high 
school graduation statistics, as the superintendent con­
ceded, would not establish a comparative literacy rate. 42 
U.S.C. §§1971 (c), 1973b(e) set a sixth grade education as 
a standard for presumptive literacy under the Voting- 
Rights Act of 1965. If the state could have established that 
insufficient numbers of Negroes were literate under this 
standard, or any other, it had the proof within its power 
to produce. Pierre v. Louisiana, 306 U.8. 354 (1939).

Reference to public documents shows, moreover, that 
even if the state had produced such evidence it would not 
have explained the disproportion. The Census Bureau has 
not reported how many Negroes in Greene County over 
the age of 21 have completed six years of school but the 
statewide average at the last census showed that about 
48% of adult male Negroes and 83% of adult male whites 
have had 6 grades of schooling.24 If any average remotely 
approaching this applies to Greene County, the rate of 
illiteracy cannot (even if literacy were required uncon­
ditionally as it is not under §21) explain the absence of 
Negroes from the rolls. The ratio of white-Negro literacy

24 Department of Commerce, Bureau of Census, U.S. Census of Popula­
tion: 1960, Yol. I, pt. 2 (Alabama).



31

is two-to-one not nine-to-one or less as represented on the 
rolls.

While the Supreme Court of Alabama found Negro un­
derrepresentation on the rolls justifiable, the court em­
ployed conclusory language to affirm aside from stating that 
many qualified Negroes left the county.25 This suggests 
that the court found dispositive conclusory statements by 
whites to the effect that few Negroes in the county were 
qualified. These whites failed however, to offer any reason 
why the Negroes who remained were as a class less honest, 
intelligent, or esteemed than whites or not of good char­
acter or integrity. As Negro witnesses testified that more 
Negroes than whites were qualified and that many qualified 
Negroes were never called to serve, the unsupported opin­
ions of the whites can only be decisive under a reading of 
§21 which necessarily accepts their subjective judgments. 
Such a construction confirms the vagueness of the statutory 
language and its capacity for arbitrary administration, see 
supra, pp. 25-28. As long as the state’s explanation is 
couched in general “opinion” terms it would be unthinkable 
to accept the enormous variation in jury service because 
this would be to accept without more the “ opinion” that 
Negroes in Greene County are not honest and intelligent or 
esteemed in the community for their integrity, good charac­
ter and sound judgment. The Court has never permitted

25 One of the factors the Supreme Court of Alabama found to explain 
the disparity was that “ many of the Negroes who would otherwise be 
eligible are moving away from the county because of the lack of economic 
opportunity existing in Greene County for them and other young people. 
The members of the white and Negro races who would be a benefit to this 
community and whose loss is felt in the country leave and hence leave 
the community poorer for their loss” (R. 190-91). It is difficult to under­
stand the manner in which this generalization explains the ineligibility 
of ninety percent of the Negroes because as “ members of the white and 
Ne°ro races . . . leave the community poorer for their loss”  it is not con­
tended that only eligible Negroes leave the county and no specific evidence 
was offered.



general denials of discrimination or of Negro qualifications 
to carry the state’s burden of overcoming a prima facie 
showing. Whitus v. Georgia, 385 U.S. 545, 555 (1967); 
Norris v. Alabama, 294 U.S. 587, 598 (1935); Cassell v. 
Texas, 339 U.S. 282, 289 (1949); Pierre v. Louisiana, 306 
U.S. 354, 360 (1939).

The slight evidence offered by the state must be con­
sidered in light of evidence which suggests that the com­
missioners knew that they were restricting Negro partici­
pation. For example, the commissioners relied on voter 
registration lists, a source which Congress legislatively 
determined to be discriminatory in Alabama by passage 
of the Voting Rights Act of 1965, 42 U.S.C. §§1973 et seq. 
In August, 1962, subsequent to selection of Coleman’s juries, 
Negro community leaders complained of lack of Negro 
service on the juries. As a result, three Negroes were 
asked to supply names and there was a modest increase in 
the number of Negroes who could be identified on the rolls 
from 16 to 28 (R. 91, 145).

Alabama has delegated the broadest possible discretion 
to those who select jurors. The results of this system, 
whether tested intuitively or by statistical analysis, con­
firm that the “opportunity for discrimination” was “re­
sorted to by the commissioners” Whitus v. Georgia, 385 
U.S. 545, 552 (1967). The evidence produced by the state 
simply fails to rebut petitioner’s showing that his Four­
teenth Amendment rights have been violated necessitating 
reversal of the judgment below.



33

II.

Appellant was Deprived of Due Process of Law and 
Equal Protection of tlxe Laws in Violation of the Four­
teenth Amendment Because Women Were Totally Ex­
cluded From the Juries Which Indicted, Convicted and 
Sentenced Him.

The grand jury which indicted petitioner and the trial 
jury which convicted and sentenced him were chosen pur­
suant to Ala. Code Ann., Tit. 30, §21 (1958 Recompiled), 
which confined jury service to males. Subsequent to a dec­
laration of the unconstitutionality of this provision by a 
three-judge district court in White v. Crook, 251 F. Supp. 
401 (M.D. Ala. 1966), §21 was amended. Females are now 
eligible jurors in Alabama although they may be excused 
for good cause in the discretion of the trial judge, Acts 
Nos. 284, 285 of September 12, 1966 (Special Session).26

Petitioner’s sentence of death turns, however, on the dis­
position of his obviously substantial claim that by excluding 
the female population of Greene County, Alabama has 
discriminated on the basis of sex in violation of his Four­
teenth Amendment right to a jury selected from the com­
munity without arbitrary exclusion. In Hoyt v. Florida, 
368 U.S. 57 (1961), the Court in affirming the conviction 
of a woman for second degree murder in the face of her 
claim that Florida excluded women from jury service in 
violation of the Fourteenth Amendment expressly reserved 
decision of whether a state may confine jury duty to males 
consistent with the Fourteenth Amendment (Id. at p. 60).

26 See infra, p. 20a. Similar provisions remain in force in Mississippi 
and South Carolina, Miss. Code Ann. 1942 (Recompiled Vol. 1958), 
§1762; South Carolina Code 1952, §§38-52. See Williams v. South Caro­
lina, 237 F. Supp. 360, 370 (E.D.S.C. 1965). (Exclusion of females con­
stitutional.)



34

The court found that Florida had not arbitrarily under­
taken to exclude women from jury service because the state 
granted women an automatic exemption, subject to service 
on a voluntary basis. The Chief Justice, Mr. Justice 
Black, and Mr. Justice Douglas concurred upon finding a 
“good faith effort to have women perform jury duty with­
out discrimination on the basis of sex.” (Id. at 69). In 
White v. Crook, supra, the district court declared Ala­
bama’s exclusion of females under §21 to be “ so arbitrary 
and unreasonable as to be unconstitutional.”

Petitioner respectfully urges the Court to adopt the 
holding in White v. Crook, supra. There is no apparent 
reason why women are any less qualified to render ser­
vice as jurors than men. Perhaps the only justification 
for their exclusion, one may suggest, is that women are 
more likely to have family responsibilities which make 
jury service a hardship, but the conclusion that women 
may be declared ineligible for jury service does not follow 
from this premise. The procedure approved in Hoyt v. 
Florida, supra, or the common practice of granting an 
exemption to women, subsequently adopted by the state, 
present appropriate means to meet the states’ interest in 
mitigating hardships flowing from jury service.

The answer to the argument that “the Fourteenth Amend­
ment was not historically intended to require the state 
to make women eligible for jury service” is that it “re­
flects a misconception of the function of the Constitution 
and this Court’s obligation in interpreting it” (White v. 
Crook, supra at 408), see Harper v. Virginia Board of 
Elections, 383 IJ.8. 663, 669 (1966) (“notions of what con­
stitutes equal treatment for purposes of the equal pro­
tection Clause do change” ) (emphasis in original).



35

Appellant, a male, lias standing to challenge the total ex­
clusion of women from jury service in Alabama, for he is 
entitled to a jury impartially drawn from the community 
as a whole. Smith v. Texas, 311 U.S. 128; Labat v. Ben­
nett, supra. See also Allen v. State, 137 S.E.2d 711, 110 
Ga. App. 56 (1964) (white may complain of Negro ex­
clusion from jury). As the Court; said in Ballard v. United 
States, 329 U.S. 187, 193-94 (1946) :

The truth is that the two sexes are not fungible; a 
community made up exclusively of one is different from 
a community composed of both; the subtle interplay of 
influence one or the other is among the imponderables. 
To insulate the courtroom from either may not in a 
given case make an iota of difference. Yet a flavor, a 
distinct quality is lost if either sex is excluded. The 
exclusion of one may indeed make the jury less repre­
sentative of the community than would be true if an 
economic or racial group were excluded.

A jury system which excludes women certainly is not 
chosen from a source which represents the attitudes and 
points of view of the community as a whole. Before he is 
condemned to death petitioner is entitled to face juries 
chosen without “arbitrary and unreasonable” exclusion.



36

CONCLUSION

W herefore , petitioner prays that the Petition for Writ 
of Certiorari be granted and the judgment reversed.

Respectfully submitted,

J ack  Greek  berg 
M ic h ael  M eltsner

10 Columbus Circle 
New York, New York

Orzell  B illin g sley

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner



A P P E N D I X



APPENDIX

Opinion of the Supreme Court of Alabama

(February 9, 1967)

T h e  S tate of A labam a— J udicial D epartm en t  

T h e  S uprem e  C ourt of A labam a  

O ctober T e rm , 1966-67 

2 Div. 487

J o h n n y  C o lem an ,

v.

S tate of A labam a .

A ppeal  F rom Greene Circu it  Court 

S im pso n , J u stice .

The appellant was indicted, tried and convicted of mur­
der in Greene County in 1962. From the original conviction 
the case was appealed to this Court under the automatic 
appeal statute, Title 15, § 382(1), et seq., Code, 1940. The 
judgment of the trial court was affirmed by this Court on 
May 9, 1963, 276 Ala. 513, 164 So.2d 704. On certiorari to 
the Supreme Court of the United States the judgment of 
this Court was reversed and the cause remanded.—377 U.S. 
129, 84 S. Ct. 1152, 12 L. Ed. 2d 190 (May 4, 1964).

The single issue on which the Supreme Court of the 
United States reversed was the trial court’s refusal to 
permit proof of systematic exclusion of Negroes from the 
jury roll in Greene County on a motion for a new trial



2a

made by the defendant. No offer to prove this assertion 
was made at any time until after the conviction and the 
point was raised for the first time on motion for new trial. 
In accordance with the opinion of the Supreme Court of 
the United States the cause was remanded to the Circuit 
Court of Greene County for a hearing on the point raised 
in the motion for new trial. The Circuit Court held a 
hearing on the express question of whether Negroes are 
or have been systematically excluded from the jury roll 
of Greene County in violation of the mandate of the Con­
stitution of the United States. The court after hearing 
denied the motion for new trial, specifically finding that 
there had been no exclusion, ■ systematic or otherwise of 
Negroes from the jury roll in Greene County. This appeal 
followed.

In the hearing on the motion for new trial it was 
stipulated that the transcript of the trial in Coleman, 
et al. v. Barton, et al. (Case No. 63-4, United States Dis­
trict Court for the Northern District of Alabama) would 
constitute a part of the record before the Circuit Court 
on the motion for new trial. That transcript makes up 
a large part of the record before us. The issue here is 
precisely the same as the issue before the trial court on 
the motion, i.e. the systematic exclusion, vel non, of Ne­
groes from the jury roll in Greene County. The United 
States District Court in that case entered a decree to the 
effect that the Jury Commission of Greene County is under 
a statutory duty to place on the jury roll all persons pos­
sessing the qualifications to serve as jurors without regard 
to race and that the Commission was not to pursue a 
course of conduct which would operate to discriminate in 
the selection of jurors. It is not questioned that the Four­
teenth Amendment to the Constitution of the United States

Opinion of the Supreme Court of Alabama



3a

forbids any discrimination against a race in the selection 
of grand juries, petit juries or the jury venire.—Cassel 
v. Texas, 339 U.S. 282; Eubanks v. Louisiana, 356 U.S. 
584; Arnold, et al. v. North Carolina, 376 U.S. 773 and 
many other cases.

The question is whether discrimination exists in the 
selection of jurors in Greene County, Alabama. To support 
his contention that Negroes are systematically excluded 
from the jury roll in Greene County the appellant offered 
a copy of the census figures from Greene County compiled 
by the Bureau of Census in 1960. The figures set forth 
the total population of the county at that time, of which 
some 11,500 were Negro and some 2,500 were white. There 
are approximately 2,200 Negro males over 21 and some 
775 white males. The jury roll is made by the Jury Com­
mission, the members of which are appointed by the Gov­
ernor. The testimony of these commissioners and others 
indicates that the jury roll (and by this was meant the 
entire list of qualified jurors as compiled by the Com­
mission) generally contained over 350 names (in 1961 it 
contained 353, of whom 16 were known to be Negro; in 
1962 it contained 374, of whom 62 were known to be Negro ; 
in 1963, 377, of whom 28 were known to be Negro). It 
should be noted that there is no evidence that the records 
kept by the Commission indicate the race of a qualified 
person enrolled so that it is not certain from the record 
that those identified as Negro from the roll constitute 
all the Negroes which might be included in the roll. There 
is testimony to the effect that generally in Greene County 
a Grand Jury venire is called twice a year and it involves 
approximately 50 to 60 persons, of whom 18 are selected 
by lot to sit as the Grand Jury. The evidence is that over 
the past ten years or so each venire of 50 to 60 persons

Opinion of the Supreme Court of Alabama



4a

has included several Negroes, generally 8 to 10 but the 
number is not constant. Petit jury venires generally num­
ber 50 to 60 persons and there was testimony to the effect 
that this 50 to 60 generally includes 6, 7 to 10 members 
of the Negro race.

The appellant insists that the very figures themselves 
suggest a systematic exclusion of Negroes from the jury 
rolls. However, there are other considerations. It is ad­
mitted that the mere fact of inequality in the number 
selected does not itself show discrimination.—Akins v. 
Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 839 and other 
cases. And further, that a proportional selection of mem­
bers of each race is not necessarily the criterion. The 
evidence in this case is that the members of the jury com­
mission contacted Negro leaders in the community for 
names of eligible Negroes for jury service. These included 
ministers, school teachers, and other leaders. There was 
no charge there was intentional discrimination. The U. S. 
District Court found that approximately 10% of the jury 
roll was comprised of members of the Negro race. It was 
admitted by the IT. S. District Court that not all members 
of the Negro race were qualified under the statute to serve 
as jurors. Persons having been convicted of felonies are 
not eligible. There was evidence to the effect that of all 
felony convictions in Greene County over the past 10 years, 
95% or more had been Negroes. This would certainly 
tend to render ineligible a greater number of Negroes than 
white people, but of course, this would be true in any 
community where the population is preponderantly one 
race over the other. That is to say that it does not indicate 
that Negro people are more prone to commit felonies than 
white people, but simply that the greatest number of crimes

Opinion of the Supreme Court of Alabama



5a

are committed by the race making up the greatest part 
of the population.

On the precise issue involved here and particularly with 
reference to appellant’s indictment and trial the evidence 
is that the venire from which the Grand Jury was drawn 
included members of the Negro race—at least four. That 
the venire from which the petit jury was struck included 
members of the Negro race. That this was not unusual 
and that for the past several years the proportions have 
been about the same. "We do not find that appellant has 
discharged his burden of showing a systematic exclusion 
of members of his race and that the evidence supports the 
finding made by the trial court. While the bare figures 
would tend to indicate a disparity and in fact do indicate 
a disparity, that disparity can be explained by a number 
of other factors. For example, it was shown that many 
of the Negroes who would otherwise be eligible are moving 
away from the county because of the lack of economic 
opportunity existing in Greene County for them and for 
other young people. The members of the white and Negro 
races who would be a benefit to the community and whose 
loss is felt in the county leave and hence leave the com­
munity poorer for their loss. It is further shown that 
many of the Negro people remaining in the county are 
not qualified under the statute for jury duty. It was not 
shown that there was any discrimination against Negroes 
in selection for jury duty as proscribed by our federal 
decisions. We believe the evidence indicates that every 
effort required has been made to select impartially from 
both races those wTho are qualified for this service and the 
trial court ruled correctly on the point considered.

It is noted that the record incorrectly describes the 
judgment as “decree” and also that the judgment is some­

Opinion of the Supreme Court of Alabama



6a

what incomplete in that it does not recite that the defen­
dant was asked if he had anything to say whether or not 
the judgment of the court should be pronounced upon him 
and given an opportunity to make a response thereto. 
This is probably a technicality since he had already been 
adjudged guilty and sentenced to electrocution in the first 
judgment, from which the appellant appealed and which 
the Supreme Court of the United States reversed. Never­
theless, to make more certain that which is already certain, 
the court is affirming the judgment but remanding the cause 
to the lower court for proper sentence.

All the Justices concur except Goodwyn, J., not sitting.

Opinion of the Supreme Court of Alabama



7a

Denial of Rehearing

(March 9, 1967)

THE SUPREME COURT OF ALABAMA 

T hu rsday , M arch  9, 1967 

T h e  C ourt M et P u rsu an t  to A d jo u rn m e n t  

P r e s e n t : A ll  th e  J ustices 

Greene C ircuit Court 

No. 823-A 

2nd Div. 487

J o h n n y  C olem an , alias,

v.

S tate of A labam a .

It Is Ordered that the application for rehearing filed, 
in the above styled cause, on February 14, 1967, be and 
the same is hereby overruled.



8a

Opinion of the Circuit Court of Greene County

(June 29, 1965)

I n th e  C ircu it  C ourt of Greene Co u n t y , A labama 

Case No. 823-A

T h e  S tate of A labam a , 

vs

J o h n  C o le m an ,
D efen d an t .

Defendant’s motion for new trial having heretofore been 
set down by the Court for hearing on April 27th. 1965, 
by agreement of the parties, and the Defendant being- 
present in open court with his attorney and with his wit­
nesses, and the State of Alabama being represented by 
the Circuit Solicitor, and both the Solicitor and Defen­
dant’s attorney having announced ready for the hearing, 
the Court did proceed with the taking of testimony, which 
was heard by the Court ore tenus.

The sole question presented for the consideration and 
determination of the Court being: Was there racial dis­
crimination in that persons of the Negro race were ar­
bitrarily, systematically, or intentionally excluded from the 
jury roll and jury box from which the grand and petit 
juries were drawn in Defendant’s case? That is the only 
issue raised in Defendant’s said motion for a new trial.

The Court heard and has given careful study and con­
sideration to all of the evidence presented on said hearing, 
including the transcript of the hearing in the case of



9a

Coleman et al. vs Barton et al., No. 63-4 in the Northern 
District of Alabama, United States District Court, which 
transcript in said case was admitted by stipulation of the 
parties. The transcript in said case, showing the popula­
tion of this county, the comparative number of white and 
Negro residents, the number of each race appearing on 
the jury roll, and giving the number of each race serving 
on the grand and petit juries of this county from time to 
time, constitutes the substance of the evidence offered by 
the Defendant in support of his allegations of discrimina­
tion.

To the contrary, the State offered evidence showing 
or tending to show that the Jury Commission of this county 
has constantly sought to ascertain and place on the jury 
roll the names of all qualified persons, white and Negro, 
who meet the statutory qualifications, and that inquiry has 
been and is frequently made by the members of the Jury 
Commission among the white and Negro teachers, min­
isters, merchants, farmers, public officials, and all others 
who have a wide acquaintance in the county, for the names 
of all persons who meet the statutory qualifications for 
jurors; and that the names of all such qualified persons 
presented to them, or which have come to their attention, 
have been placed on the jury rolls without discrimination 
of any kind whatsoever.

The evidence shows that this is a small county, both 
in area and in population, the total population being only 
approximately 13,600. The members of the jury commis­
sion come from different sections of the county, one being 
from the southern part, one from the central part, and the 
other from the northern part, or areas of the county, and 
they are generally well acquainted with the people through­
out the county. This knowledge and acquaintance, together

Opinion of the Circuit Court of Greene County



10a

with that of the other persons whom they contact from 
time to time, as shown by the evidence, explains why the 
members of the jury commission did not deem it necessary 
to make regular annual visitations into each beat of the 
county seeking the names of qualified jurors, and their 
failure to do so, does not in anywise constitute discrim­
ination against this defendant.

The drawing of the names from the jury box for jury 
service is by lot under the statutory provisions, and not 
by selection, so that no one can say in advance how many 
persons of any race or group will be drawn for any venire 
or jury panel.

The Court has judicial knowledge and the evidence shows 
that Negroes have served on the grand and petit juries 
in this county for many years prior to the time of De­
fendant’s case, and did so serve at the time of his case, and 
that there were several Negroes on the venire or panel 
from which Defendant’s jury was struck.

The Court finds and holds that there was no racial dis­
crimination and that persons of the Negro race were not 
arbitrarily, systematically, or intentionally excluded from 
the jury roll and from the jury box from which the grand 
and petit juries were drawn in Defendant’s case; and that 
Defendant’s motion for a new trial should be denied and 
overruled.

While it is not material to the Court’s findings in this 
hearing, the evidence, as well as the record, shows that 
the Court appointed Honorable Thomas F. Seale, a well 
qualified, capable and experienced attorney of many years 
practice, to represent and defend this Defendant, and that 
said attorney did properly and adequately perform his 
duties as the appointed attorney for the defendant, and 
that he spent much time, including many consultations

Opinion of the Circuit Court of Greene County



with the Defendant, in preparation for Defendant’s trial. 
The Defendant’s counsel admits and the evidence shows 
that Mr. Seale was “a very reputable and able attorney” .

Mr. Seale testifies that there were several Negroes on 
the venire from which the jury in Defendant’s case was 
struck, and that prior to the jury being struck, the Defen­
dant told him “he didn’t want any Negroes serving on 
his jury” . It was clearly the duty of the Defendant’s attor­
ney to follow his instructions, and then the question 
naturally follows: If so, can the Defendant now complain 
of or allege discrimination? Or is he estopped? This evi­
dence of Defendant’s instructions to his attorney relates 
to a procedural matter, and while it is not material to the 
Court’s ruling in this case, it does cast an interesting and 
provocative sidelight on the question of discrimination.

After a very careful and full consideration of all the 
evidence and pleadings, it is the Court’s opinion and judg­
ment that Defendant’s motion for new trial should be, 
and the same is hereby overruled and denied.

Done in term time, this 29th day of June, 1965.

/ s /  E. F . H ildreth

E. F. H ildreth

Judge of the Circuit Court of
Greene County, Alabama

Opinion of the Circuit Court of Greene County



12a

Judgment of United States District Court

(Filed June 11, 1964)

I n  t h e  U n ited  S tates D istrict  C otjet eoe t h e  N orthern  

D istrict  of A labam a , W estern  D ivision  

C iv il  A ction  

No. 63-4

J o h n n ie  Colem an , W ilson  J am es, T h om as  E arl G ilm o re , 
A lfred K en n ard , R oosevelt C oats, and A braham  K e n - 
nard , J r ., f o r  them selves, jo in t ly  and severa lly , and fo r  
a ll oth ers  s im ila rly  situated ,

Plaintiffs,
vs.

M arlin  B arton , F u lton  G. D urrett , and W alter  M orrow , 
individually and as members of the Jury Commission 
of Greene County, Alabama; M rs. M ary C. Y arborough , 
individually, and as Clerk of the Jury Commission of 
Greene County, Alabama,

Defendants.

Pursuant to the Opinion this day filed in this cause, 
the Court having found that an actual controversy exists 
as to the legality of the jury roll and the jury box in 
Greene County, Alabama, and that the plaintiffs, Johnnie 
Coleman, Wilson James, Thomas Earl Gilmore, Alfred 
Kennard, Roosevelt Coats, and Abraham Kennard, Jr., for 
themselves, jointly and severally, and for all others simi­
larly situated, are entitled to relief against the defendants, 
Marlin Barton, Fulton G. Durrett, and Walter Morrow,



13a

Judgment of United States District Court

individually, and as members of the Jury Commission of 
Greene County, Alabama, and Mrs. Mary C. Yarborough, 
individually, and as Clerk of the Jury Commission of 
Greene County, Alabama, to the extent therein indicated:

It is A djudged, Decreed and Declared that:

1. The Jury Commission of Greene County, Alabama, 
is under a statutory duty of seeing that the names of 
every person possessing the qualifications to serve as 
jurors, and not exempt by law from jury duty, be placed 
on the jury roll and in the jury box of said County.

2. The Clerk of the Jury Commission of Greene County, 
Alabama, is under a duty to comply with Section 24 of 
Title 30 of the Code of Alabama, 1940, to visit every 
precinct in Greene County at least once a year to enable 
the Jury Commission to properly perform its duties as 
commissioners as required by law.

3. The jury commissioners of Greene County, Alabama, 
are under a duty to familiarize themselves with the quali­
fications of eligible jurors without regard to race or color.

4. The jurors be selected and the roll made up and 
the box filled on the basis of individual qualifications and 
not as a member of a race.

5. No person otherwise qualified be excluded from jury 
service because of his race.

6. The Commission not pursue a course of conduct in 
the administration of its office which will operate to dis­
criminate in the selection of jurors on racial grounds.



14a

Judgment of United States District Court

7. In making up and establishing the jury roll and 
in filling the jury box mere symbolic or token representa­
tion of Negroes will not meet the constitutional require­
ments and that numerical or proportional limitations as 
to race are forbidden.

8. The jury roll and the jury box as presently consti­
tuted be examined for compliance with these standards 
and the declaration herein made.

It is further O rdered, A djudged and D ecreed that relief 
by way of injunction be and the same is hereby denied, 
but without prejudice as to future injunctive relief by 
further application herein or in any other proceedings.

Done and Ordered, this the 10th day of June, 1964.

H. H. G rooms 
District Judge



15a

(a) Alabama Code Tit. 30,
§20. Jury roll and cards.—The jury commission shall 

meet in the court house at the county seat of the 
several counties annually, between the first day of 
August and the twentieth day of December, and shall 
make in a well bound book a roll containing the name 
of every male citizen living in the county who possessed 
the qualifications herein prescribed and who is not ex­
empted by law from serving on juries. The roll shall 
be arranged alphabetically and by precincts in their 
numerical order and the jury commission shall cause 
to be written on the roll opposite every name placed 
thereon the occupation, residence and place of business 
of every person selected, and if the residence has a 
street number it must be given. Upon the completion 
of the roll the jury commission shall cause to be pre­
pared plain white cards all of the same size and tex­
ture and shall have written or printed on the cards 
the name, occupation, place of residence and place of 
business of the person whose name had been placed on 
the jury roll; writing or printing but one person’s 
name, occupation, place of residence and of business 
on each card. These cards shall be placed in a substan­
tial metal box provided with a lock and two keys, 
which box shall be kept in a safe or vault in the office 
of the probate judge, and if there be none in that office, 
the jury commission shall deposit it in any safe or vault 
in the court house to be designated on the minutes 
of the commission; and one of said keys thereof shall 
be kept by the president of the jury commission. The 
other of said keys shall be kept by a judge of a court

Appendix of Statutes Involved



16a

of record having juries, other than the probate or cir­
cuit court, and in counties having no such court then 
by the judge of the circuit court, for the sole use of 
the judges of the courts of said county needing jurors. 
The jury roll shall be kept securely and for the use of 
the jury commission exclusively. It shall not be in­
spected by anyone except the members of the commis­
sion or by the clerk of the commission upon the au­
thority of the commission, unless under an order of the 
judge of the circuit court or other court of record hav­
ing jurisdiction.

(b) Tit. 30,
§21. Qualifications of persons on jury roll.—The 

jury commission shall place on the jury roll and in 
the jury box the names of all male citizens of the 
county who are generally reputed to be honest and in­
telligent men and are esteemed in the community for 
their integrity, good character and sound judgment; 
but no person must be selected who is under twenty- 
one or who is an habitual drunkard, or who, being af­
flicted with a permanent disease or physical weakness 
is unfit to discharge the duties of a juror; or cannot 
read English or who has ever been convicted of any 
offense involving moral turpitude. If a person cannot 
read English and has all the other qualifications pre­
scribed herein and is a freeholder or householder his 
name may be placed on the jury roll and in the jury 
box. No person over the age of sixty-five years shall 
be required to serve on a jury or to remain on the panel 
of jurors unless he is willing to do so.

Appendix of Statutes Involved



17a

Appendix of Statutes Involved

(c) Tit. 30,
§24. Duty of commission to fill jury roll; procedure; 

etc.—The jury commission is charged with the duty of 
seeing that the name of every person possessing the 
qualifications prescribed in this chapter to serve as a 
juror and not exempted by law from jury duty, is 
placed on the jury roll and in the jury box. The jury 
commission must not allow initials only to be used for 
a juror’s name but one full Christian name or given 
name shall in every case be used and in case there 
are two or more persons of the same or similar name, 
the name by which he is commonly distinguished from 
the other persons of the same or similar name shall 
also be entered as well as his true name. The jury com­
mission shall require the clerk of the commission to 
scan the registration lists, the lists returned to the tax 
assessor, any city directories, telephone directories and 
any and every other source of information from which 
he may obtain information, and to visit every precinct 
at least once a year to enable the jury commission to 
properly perform the duties required of it by this chap­
ter. In counties having a population of more than one 
hundred and eighteen thousand and less than three 
hundred thousand, according to the last or any subse­
quent federal census, the clerk of the jury commission 
shall be allowed an amount not to exceed fifty dollars 
per calendar year to defray his expenses in the visit­
ing of these precincts, said sum or so much thereof as 
is necessary to be paid out of the respective county 
treasury upon the order of the president of the jury 
commission.



18a

(d) Tit. 30,
§30. Drawing grand and petit juries from jury box. 

—At any session of a court requiring jurors for the 
next session, the judge, or where there are more than 
one, then any one of the judges of the court shall draw 
from the jury box in open court the names of not less 
than fifty persons to supply the grand jury for such 
session and petit juries for the first week of such ses­
sion of the court, or if a grand jury is not needed for 
the session at least thirty persons, and as many more 
persons as may be needed for jury service in courts 
having more than one division for the first week, and 
after each name is drawn it shall not be returned to the 
jury box, and there shall be no selection of names, and 
must seal up the names thus drawn, and retain posses­
sion thereof, without disclosing who are drawn until 
twenty days before the first day of the session of the 
court for which the jurors are to serve, when he shall 
forward these names by mail, or express, or hand the 
same to the clerk of the court who shall thereupon open 
the package, make a list of the names drawn, showing 
the day on which the jurors shall appear and in what 
court they shall serve, and entering opposite every 
name the occupation of the person, his place of busi­
ness, and of residence, and issue a venire containing 
said names and information to the sheriff who shall 
forthwith summon the persons named thereon to ap­
pear and serve as jurors.

(e) Tit. 30,
§38. Hearing of excuses; empaneling and organiz­

ing grand and petit juries.—The court shall require all

Appendix of Statutes Involved



19a

persons named in the venire to be called, and shall then 
hear all excuses and claims of exemptions and quali­
fications, and after passing upon all of the excuses or 
claims, shall cause the names of all the jurors in at­
tendance upon the court on that day, and who have not 
been excused by the court, to be written on separate 
slips of paper, or cards and placed in a hat or box, 
and thereupon the judge of the court must, in open 
court, draw from the hat or box, at sessions requiring 
grand juries, the names of eighteen jurors who shall 
be empaneled and sworn as the grand jury for the ses­
sions of the court, provided that only one grand jury 
is authorized by law for that session; but if more than 
one grand jury is authorized by law for such session, 
then said jurors, so empaneled, shall be the first grand 
jury for said session, and any subsequent grand jury, 
or grand juries for such session as is now or may 
hereafter be authorized by law must be drawn, sum­
moned, sworn and empaneled, as provided in this chap­
ter during the said session, and the venire for same may 
contain such number of names as the judge may deem 
necessary. The judge must then proceed to draw from 
the hat or box, the names of twelve jurors who shall 
be empaneled and sworn as petit jury no. 1, and in like 
manner the judge must draw and empanel and swear 
petit jury no. 2, and when necessary, as many more 
jurors as the judge or judges of the court may deem 
proper, all of whom shall serve as petit jurors for that 
week, unless discharged sooner by the court, and may 
be required to serve till any case on trial is deter­
mined. If petit juries are needed for any week or 
weeks of the sessions, after the first week, the judge 
or any two judges of said court, if there is more than

Appendix of Statutes Involved



20a

one judge, shall, in like manner at such times as to 
him or them may seem best, draw from the jury box 
such number of names, not less than thirty, for each of 
such subsquent weeks, as will in the discretion of such 
judge or judges, be sufficient for the week for which 
same are drawn.

(f) Tit. 30,
§72. Grand juries; how and when empaneled.— 

There shall be empaneled in every county having less 
than fifty thousand population, not less than two grand 
juries in every year, and when they have completed 
their labors, in its discretion the court may permit 
them to take a recess subject to the call of the judge 
of the circuit court, or chief justice of the supreme 
court, and may be reassembled at any place where the 
circuit court of the county is to be held. In all counties 
having over fifty thousand population, there shall be 
empaneled not less than four grand juries in every 
year.
(g) Act No. 285 H. 173—Goodwyn

(Special Session, 1966)

AN ACT
To amend Sections 9, 18, 20 and 21 of Title 30, Code 

of Alabama 1940, which relate to the membership of 
jury commissions, duties of the clerk, and qualifica­
tions of persons on jury rolls.

Be It Enacted by the Legislature of Alabama:

Section 1. Section 9, Title 30, Code of Alabama 
1940, as amended is further amended to read as 
follows:

Appendix of Statutes Involved



21a

“Section 9. Each of said jury commissions shall be 
composed of three members who shall be qualified 
electors of the county in which they are appointed 
and shall be persons reputed for their fairness, im­
partiality, integrity and good judgment. Members of 
the commission shall not during the term for which 
they are appointed and during their tenure in said 
office hold any other office by appointment or election 
or perform any other public duty under the federal, 
state, county or municipal government, which carries 
with it any compensation whatsoever.”

Section 2. Section 18, Title 30, Code of Alabama 
1940, as amended, is amended further to read as 
follows:

“Section 18. The clerk of the jury commission shall, 
under the direction of the jury commission obtain the 
name of every citizen of the county over twenty-one 
and under sixty-five years of age and their occupa­
tion, place of residence and place of business, and 
shall perform all such other duties required of him 
by law under the direction of the jury commission.”

Section 3. Section 20, Title 30, Code of Alabama 
1940, as amended, is amended further to read as 
follows:

“ Section 20. The jury commission shall meet in the 
court house at the county seat of the several counties 
annually, between the first day of August and the 
twentieth day of December, and shall make in a well 
bound book a roll containing the name of every citizen 
living in the county who possesses the qualifications 
herein prescribed and who is not exempted by law from

Appendix of Statutes Involved



22a

serving on juries. The roll shall be arranged alphabeti­
cally and by precincts in their numerical order and the 
jury commission shall cause to be written on the roll 
opposite every name placed thereon the occupation, 
residence and place of business on each card. These 
cards shall be placed in a substantial metal box pro­
vided with a lock and two keys, which box shall be 
kept in a safe or vault in the office of the probate 
judge, and if there be none in that office, the jury 
commission shall deposit it in any safe or vault in the 
court house to be designated on the minutes of the 
commission; and one of said keys thereof shall be 
kept by the president of the jury commission. The 
other of said keys shall be kept by a judge of a court 
of record having juries, other than the probate or 
circuit court, and in counties having no such court 
then by the judge of the circuit court for the sole use 
of the judges of the courts of said county needing 
jurors. The jury roll shall be kept securely and for 
the use of the jury commission exclusively. It shall 
not be inspected by any one except the members of 
the commission or by the clerk of the commission upon 
the authority of the commission, unless under an order 
of the judge of the circuit court or other court of 
record having jurisdiction.”

Section 4. Section 21, Title 30, Code of Alabama 
1940, as amended, is amended further to read as fol­
lows :

“Section 21. The jury commission shall place on 
the jury roll and in the jury box the names of all 
citizens of the county who are generally reputed to 
be honest and intelligent and are esteemed in the com-

Appendix of Statutes Involved



23a

munity for their integrity, good character and sound 
judgment; but no person must be selected who is 
under twenty-one or who is an habitual drunkard, or 
who, being afflicted with a permanent disease or physi­
cal weakness is unfit to discharge the duties of a 
juror; or cannot read English or who has ever been 
convicted of any offense involving moral turpitude. 
If a person cannot read English and has all the other 
qualifications prescribed herein and is a freeholder or 
householder his name may be placed on the jury roll 
and in the jury box. No person over the age of sixty- 
five years shall be required to serve on a jury or to 
remain on the panel of jurors unless willing to do so. 
When any female shall have been summoned for jury 
duty she shall have the right to appear before the 
trial Judge, and such Judge, for good cause shown, 
shall have the judicial discretion to exctise said per­
son from jury duty. The foregoing provision shall 
apply in either regular or special venire.

Approved September 12, 1966.

Time: 11:05 A.M.

I hereby certify that the foregoing copy of an Act of 
the Legislature of Alabama has been compared with 
the enrolled Act and it is a true and correct copy 
thereof.

Given under my hand this 13th day of September, 
1966.

J o h n  W. P em bebto n ,
Clerk of the House

Appendix of Statutes Involved



24a

(h) Act. No. 284 H. 176—Goodwyn, Vacea, Bast

(Special Session, 1966)

AN ACT
To regulate further the preparation of jury rolls 

and the placing of names in jury boxes in all those 
counties in which a jury board has been established 
and its duties prescribed by a local or special law or 
in which the qualification of jurors or the procedure 
for preparation of jury rolls and the filling of jury 
boxes has been prescribed by local or special law, so 
as to provide for the placing of women’s names on 
the jury rolls and in the jury boxes in such counties.

Be It Enacted by the Legislature of Alabama:

Section 1. In all counties in this State in which the 
jury board was established and its duties prescribed 
by a special or local law or in which the qualification 
of jurors or the procedure for preparation of the jury 
rolls and the filling and refilling of jury boxes has 
been prescribed by local or special law, the names of 
female citizens of the county, possessing like qualifi­
cations to those qualifications prescribed in such laws 
for male jurors shall be listed and in all things handled 
and treated in the same manner prescribed for the 
listing, handling and treating of the names of male 
citizens of such counties to the end that both men 
and women shall be subject to jury duty under like 
conditions; and their names put on the jury roll and 
in the jury box without regard to sex.

Section 2. All laws, general, local or special, and 
all parts of any such laws, in conflict herewith are 
hereby repealed.

Appendix of Statutes Involved



25a

Section 3. The provisions of this Act are severable. 
If any part of the Act is declared invalid or unconsti­
tutional, such declaration shall not affect the part 
which remains.

Section 4. This Act shall become effective when 
H. 173 of the 1966 first special session of the Legis­
lature shall become effective or when it shall otherwise 
become mandatory that the names of women be placed 
in jury boxes for the State courts of the State of 
Alabama.

Approved September 12, 1966.

Time: 11:06 A.M.
I hereby certify that the foregoing copy of an Act of 

the Legislature of Alabama has been compared with 
the enrolled Act and it is a true and correct copy 
thereof.

Given under my hand this 13th day of September, 
1966.

Appendix of Statutes Involved

J o h n  W . P em berton ,
Clerk of the House



26a

Appendix on Computation

The steps in the computations discussed on pp. 23, 24 
supra were as follows:

1. The Formula used was:

Chi-squared =  
A =  Actual

(AW- E J 2 +  ( A „ - E j s
E. E„

E =  Expected1 
w =  White
n =  Negro 
X 2 — Chi-squared
P =  Probability

2. The arithmetic values were as follows:
A. (26 or less Negroes of a roll of 374)

Actual (A ) Expected (E)
White (W) 348 95.91
Negro (N) 26 278.09
Total 374 374.00
B. (622 or less Negroes of a roll of 374)

Actual (A ) Expected (E)
White (W) 312
Negro (N) 62
Total 374

95.91
278.09
374.00

C. (16 or less Negroes of a roll of 354)
Actual (A ) Expected (E) 

White (W) 337 90.53
Negro (N) 16 262.47
Total 353 353.00

1 The “ expected”  figures merely reflect the relative percentages of 
Negroes and whites in the population, i.e., eligible Negroes divided by total 
eligibles multiplied by the number o f jurors equals expected Negro jurors.

2 The number 62 reflects a finding by the Supreme Court o f Alabama 
of the Negro proportion of the 1962 jury roll which petitioner urges is 
not supported by the record, supra pp. 7, 8.



27a

O
O . Applying the formula, thus:

A. (26 or fewer Negroes on a roll of 374)

Appendix on Computation

Chi-squared
(348 -  95.91)- + (26 -  278.09)- 

9A91 + 278.09
X2 =  891.11453 
P =  8.432 X  10-196 ^

B. (62 or fewer Negroes of a roll of 374)

Chi-squared
(312 -  95.91)2 

95.91
(62 -  278.09)2 

278.09
X2 =  654.7743 
P =  2.076 X  10 -1 4 4  s

C. (16 or fewer Negroes of a roll of 354)
(337 -  90.53)2 + (16 -  262.47)2

Chi-squared 90.53 262.47
X2 =  902.4655 
P =  2.873 X  10 -198  e

3 To translate the chi-square numbers to determine probability we used 
the table published in the National Bureau of Standards Handbook o f 
Mathematical Functions (National Bureau of Standards, Applied Mathe­
matics Series, No. 55, June 1964, Govt. Printing Office), p. 982. The 
largest chi-square in the table is 21, and the probability with chi-squared 
21 is .00001. This represents a probability of less than one chance in 
one hundred thousand. But, as we have seen, the actual chi-square num­
bers are substantially larger than 21 and thus the probability is very 
much less than .00001. A professor of statistics contacted by petitioner’s 
counsel calculated the probability by an approximation method as con­
siderably less than one chance in a trillion that the result would be reached 
by chance in a random selection process.

4 The statement P ~  8.432 X  10~196 is a mathematical shorthand 
meaning that the probability is approximately a number which is written 
as a decimal point followed by 195 zeroes and then the number 8432. 
In other words, the expression “ X  10—196” means that the decimal point 
should be shifted 196 places to the left.

5 Ibid.
6 Ibid.



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