Billingsley v. Clayton Brief for Appellants
Public Court Documents
June 1, 1965

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Brief Collection, LDF Court Filings. Billingsley v. Clayton Brief for Appellants, 1965. 1aefbfde-c69a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d9264cbb-1e7e-4649-b3cd-c3b25c281bd6/billingsley-v-clayton-brief-for-appellants. Accessed June 17, 2025.
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In THE H m te b S ta te s ’ C o u r t of appeals; F o r t h e F i f t h C i r c u i t No. 22,304 O r z e l l B i l l i n g s l e y , Sr., C. H e r b e r t O l iv e r , J. S. P h i f e r a n d A b r a h a m W o o d s , Jr. f o r t h e m s e l v e s , j o i n t l y AND SEVERALLY, AND FOR ALL OTHERS SIMILARLY SITUATED, Appellants, - vs. - G e o r g e W . C l a y t o n , a s P r e s i d e n t o f t h e J u r y B o a r d o f J e f f e r s o n C o u n t y , A l a b a m a ; M r s . F r e d B a t s o n , a s V i c e P r e s i d e n t o f t h e J u r y B o a r d o f J e f f e r s o n C o u n t y , A l a b a m a ; W a l t e r E . P a l m e r , a s A s s o c ia t e M e m b e r o f t h e J u r y B o a r d o f J e f f e r s o n C o u n t y , A l a b a m a ; J a m e s F . C h e a t w o o d , a s C l e r k o f t h e J u r y B o a r d o f J e f f e r s o n C o u n t y , A l a b a m a ; a n d e a c h o f t h e i r s u c c e s s o r s IN OFFICE. Appellees. a p p e a l f r o m t h e u n i t e d s t a t e s d i s t r ic t c o u r t f o r t h e NORTHERN DISTRICT OF ALABAMA BRIEF FOR APPELLANTS O r z e l l B i l l i n g s l e y , J r . P e t e r A . H a l l J . M a s o n D a v is O s c a r W . A d a m s , J r . M e l v i n L. W u l f J a c k G r e e n b e r g N o r m a n A m a k e r C h a r l e s M o r g a n , J r . 5 Forsyth Street, N.W. Atlanta, Georgia 30303 Attorneys for Appellants 1 I N D E X PAGE STATEMENT.............................................................. 1 The Proceedings...................................................... 1 The Jury Board and its Selection Techniques . . . . 3 The Random Procedures Followed in the Selection of Names of Jurors from the Jury Box in Jeffer son County .......................................................... 7 The Results: Grand J u r ie s ..................................... 9 The Results: Petit J u r ie s ....................................... 12 The Population........................................................ 13 SPECIFICATIONS OF ERRO R................................. 14 ARGUMENT ................................................................ 15 I. A Survey or Canvass or Sample System of Juror Name Selection Is not only a Proper but Is also a Preferred Technique which Should end the Systematic Exclusion of Racial or other Groups from Jury R o lls ..................................................... 15 The Problem of the Selection of Sources of Names .......................................................... 15 The Survey or Canvass or Sample System Can Provide an Accurate Cross-section . . . . 19 Discretionary Power in the Hands of Jury Of ficials Must Be Elim inated......................... 20 XX Literary Digest Juries Do Not March in Step with American Life — or L a w .................. 23 The Results of Discrimination in Juror Name Selection ...................................................... 29 Segregated Ju s tice .......................................... 31 Remedies for the Systematic Exclusion of Ne groes from Jury Service............................. 34 The Negro Revolution and All White Courts 38 II. The Evidence Clearly Shows that the Jury Board Systematically Excluded the Names of Negroes from Jury Rolls in Both the Birming ham and Bessemer D ivisions............................. 45 Plaintiffs Proved a Prima Facie C a se ......... 45 The Laws of Probability Demonstrate the Likelihood of Exclusion............................... 51 III. Conclusion............................................................ 54 Certificate of Service..................................................... 57 APPENDIX A .............................................................. 58 The Opinion and Order of the court below, June 7, 1962 .................................................................... 58 The Order on Pretrial Hearing, July 20, 1964 . . . . 66 Additional Findings of Fact and Conclusions of Law in the Court below, December 2, 1964 . . . . 68 Ill APPENDIX B ............................................................ 71 Statutes Relating to the Operation of the Jury System in Jefferson County, A labam a............ 71 APPENDIX C Maxwell, N.A., “The Liuzzo Case,” The Wall St. Jrnl., May 4, 1965 ................................................ 83 T a b l e o f C a s e s Allen v. State, 110 Ga. App. 56, 137 S.E. 2d 711 (1964) ...................................................................... 34 Arnold v. North Carolina, 376 U.S. 773 (1964) . . . . 34 Avery v. Georgia, 345 U.S. 559, (1953) ................. 22 Bailey v. Wharton, Civil Action No. 3674 (j) (D.C.S.D. Miss.) .................................................... 36 Ballard v. United States, 329 U.S. 187 (1 9 4 6 )........ 19 Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954) .............................................. 39 Bush v. Kentucky, 107 U.S. 110 (1882) .................... 34 Brown v. Rutter, 139 F. Supp. 679 (D.C.W.D. Ky., 1956) ........................................................................ 35 Cameron v. Johnson, . . . U.S. . . ., 33 L. Week 3395 (1965) ...................................................................... 42 Clarence C. Walker Civic League v. Board of Public Instruction, 154 F.2d 726 (5th Cir., 1946)............. 50 Cobb v. Balkcom, 339 F.2d 95 (5th Cir., 1964) . . . . 46 IV Cox v. Louisiana, . . . U.S. . ., 33 L. Week 4105 (1965) .................................................... 40, 41, 42, 43 Cobb v. Montgomery Library Board, 207 F. Supp. 880 (M.D. Ala., 1962) ............................................ 46 Collins v. Walker, 335 F. 2417 ( ) cert. den. sub. nom. Hansley v. Collins, No. 407, . U.S. . . ., 33 L. Week 3171 (1 9 6 4 )......................................... 22 Cassell v. Texas, 339 U.S. 282 (1950) ................... 34, 36 Douglas v. California, 372, U.S. 353 (1963) 23 Draper v. Washington, 372 U.S. 487 ( ) 23 Eskridge v. Washington;'4i7^"U.S.-i^'(1958) 23 Eubanks v. Louisiana, 356 U.S. 584 (1958) 34 Ex Parte Virginia, 100 U.S. 339 ............................... 35 Gray v. Sanders, 372 U.S. 368 (1963) ................... 24 Gideon v. Wainwright, 372 U.S. 335 (1963) 23 Glasser v. United States, 315 U.S. 60 (1942) ......... 19 Griffin v. Illinois, 351 U.S. 12 (1956) ..................... 23 Hale v. Kentucky, 303 U.S. 613 (1938) ................. 34 Harper v. Mississippi, . Miss. . . ., 171 So. 2d 129 (1965) ..................................................................... 34 Harvey v. Mississippi, 340 F. 2d 263 (1 9 6 5 )........... 23 Hazlewood v. Aycock, Civil Action No. . . (1965). 36 Hernandez v. Texas, 347 U.S. 475 (1954) 34, 28 Hill v. Texas, 316 U.S. 400 (1942) ........................... 34 Hollins v. Oklahoma, 295 U.S. 394 (1935) ........... 34 Jackson v. United States, No. 21,345 (5th Cir.) 37 V Lane v. Brown, 372 U.S. 487 (1963) ....................... Louisiana v. United States, . . . U.S. . . ., 33 L. Week 4262 (1965) ............................................................ Neal v. Delaware, 103 U.S. 370, (1880) ................. Norris v. Alabama, 294 U.S. 387 (1935) ............. 34, Patton v. Mississippi, 332 U.S. 464 (1947) ............. Pierre v. Louisiana, 306 U.S. 354 (1 9 3 9 )................. Rabinowitz v. United States, No. 21,256 (5th Cir.) . . Reynolds v. Sims, 377 U.S. 533 (1964) ................... Reece v. Georgia, 350 U.S. 85 (1955) ..................... Repouille v. United States, 165 F. 2d 152 (2d Cir., 1947) ....................................................................... Shepard v. Florida, 341 U.S. 50 (1950) ................. Smith v. Texas, 311 U.S. 128 (1940) ............. 19, 20, Strauder v. West Virginia, 100 U.S. 303 (1880) . . Swain v. Alabama, . . U.S. . . ., 33 L.Week 4231 (1965) ............................................................22, 46, Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . . Wesberry v. Sanders, 376 U.S. 1 (1964) ............... Whitus v. Balkcom, 333 F.2d 496 (1964), cert. den. 379 U.S. 931 (1964) .................................... 31, 34, United States v. Mississippi, . U.S. , 33 L.Week 4258 (1965) ............................................................ United States ex. rel. Goldsby v. Harpole, 263 F.2d 71 (1959) cert, den., 361 U.S. 838 (1959) .............................................. 29, 31, 46, 50, 23 20 34 46 34 34 37 24 34 19 54 34 34 47 19 24 46 20 54 VI United States ex. re. Seals v. Wiman, 304 F.2d 54 (5th Cir., 1962) cert, den., 372 U.S. 924 Statutes: 28 U.S.C. Sec. 1343 (3) ......................................... 2 42 U.S.C. Sec. 1981 .................................................2, 36 42 U.S.C. Sec. 1983 .......................................... 2, 35, 36 28 U.S.C. Sec. 2201 .................................................. 2, 36 Title 30, Sec. 72, Code of Ala., 1940 — 1958 ......... 9, 41 18 U.S.C. Sec. 243 ......................................... 35, 36, 50 42 U.S.C. Sec. 1985 ............. ...................................... 36 42 U.S.C. Sec. 1988 .................................................... 36 28 U.S.C. Sec. 1343 .................................................... 36 28 U.S.C. Sec. 1331 .................................................... 36 28 U.S.C. Sec. 1863 (c) ............................................ 36 28 U.S.C. Sec. 1651 .................................................... 36 28 U.S.C. Sec. 1861-71 .............................................. 36 Title III, Civil Rights Act of 1964 ...........................36-37 (H.R. 5640, pending) 18 U.S.C. 1507 ............................................................ 41 Title 62, Secs. 199-200, Code of Alabama (recomp. 1958 .......................................................................... 15 Title 30, Sec. 34-6, Code of Alabama (recomp 1958) 50 Title 30, Sec. 51, Code of Alabama (recomp. 1958) 50 Title 30, Sec. 48-9, Code of Alabama (recomp. 1958) 49, 50 V ll Statutes (Cont’d.): Title 30, Sec. 21, Code of Alabama (recomp. 1958) 49 Economic Opportunity Act of 1964 ......................... 25 Criminal Justice Act of 1964 ..................................... 23 Title 30, Sec. 38, Code of Ala. (recomp. 1958). . .51, 53 Title 30, Sec. 72, Code of Ala. (recomp. 1958)........ 51 Other Authorities: Barksdale, The Use of Survey Research Findings as Legal Evidence (1957) .......................................19, 21 Bulletin, Criminal Division (July 17, 1950) ......... 38 Bulletin, Criminal Division (June 8, 1953) ........... 38 Cash, Mind of the South (1941) ........................... 30, 31 Conference on Bail and Criminal Justice (1965) . . 23 (Proceedings and Interim Report of the)de Tocque- ville, Journey to America (1960) ....................... 25 Frankel, The Alabama Lawyer, 1954-64: Has the Official Organ Atrophied?, Col. L. Rev., (Nov. 1964) ....................................................................... 39 Fenton, In Your Opinion, (1960) .........................17, 21 Gallup and Rae, The Rules of Democracy, (1940) .......................................16, 17, 18, 21, 52, 53 Ginzburg, 100 Years of Lynchings, (1962) ........... 29 Harrington, The Other America, (1 9 6 2 )........16, 24, 44 Jury Commissions for U.S. District Courts, Report of the Committee on the Judiciary, No. 261 . . . . 38 The Jury System in the Federal Courts (1960) . . . 26 vm Other Authorities (Coni’d.): Justice, (U.S. Civil Rights Commission Reports, 1961) ................................................ 24, 25, 35, 37, 38 Kennedy, Law and the Courts, in The Polls and Pub lic Opinion, Meier and Saunders, ed. (1949) .19, 23 Lester, Justice in the American South (1965) .32, 35 Maxwell, The Liuzzo Case, The Wall Street Journal, (June 2, 1965) .................................................... 29, 33 Morgan, A Time to Speak, (1964) ......................... 32 Morgan, Look, (June 29, 1965) ............................... 33 Nelson, “Jim Crow Justice,” Los Angeles Times, (June 13-17, 1965) ...................................... 15, 33, 35 Olshausen, Rich and Poor in Civil Procedure, 9 Sci ence and Society 11 (1947) ................................. 24 Racial Discrimination in the Southern Federal Courts, Southern Regional Council, (1965) ........ 32 Reed, Jury Deliberations, Voting and Voting Trends, in The Southwestern Social Science Quarterly, Vol. 45 No. 1 (1965) .......................................... 27, 28 Snead and Womack, Juries — Selection of Federal Jurors — Exclusion of Economic Class (Mar. 1961) ....................................................................26, 27 Southern Regional Council Reports, May 1963, June 1964, July 14, 1964 ................................................ 33 Trebach, The Rationing of Justice; Constitutional Rights and the Criminal Process (1964) ........... 24 Thoreau, Civil Disobedience, (1964) ..................... 44 United States Attorneys Bulletin, (January 6, 1956) 38 1960 U. S. Census, A labam a...................................... 14 I n t h e U n tte b S ta te s C o u r t of appeals F o r t h e F i f t h C i r c u i t No. 22,304 Orzell Billingsley, Sr., C. Herbert Oliver, J. S. Phifer and Abraham Woods, Jr. for themselves, jointly and severally, and for all others similarly situated, Appellants, v. George W. Clayton, as President of the Jury Board of Jefferson County, Alabama; Mrs. Fred Batson, as Vice President of the Jury Board of Jefferson County, Ala bama; Walter E. Palmer, as Associate Member of the Jury Board of Jefferson County, Alabama; James F. Cheatwood, as Clerk of the Jury Board of Jefferson County, Alabama; and each of their successors in office. Appellees. A PPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA BRIEF FOR APPELLANTS Statement The proceedings. On April 26, 1962, the plaintiffs,1 Negro residents of the Birmingham and Bessemer Divisions of Jefferson 1 P laintiff B illingsley was also p a rty to a civil action then pending in the C ircuit C ourt of the Tenth Judic ia l C ircuit (Jefferson County) A labama. (R. 8-9) 2 County, Alabama, filed this class action. The defendants are the members and clerk of the Jury Board of Jeffer son County, Alabama ( “Jury Board” ). Jurisdiction was invoked under Title 28 U.S.C. Section 1343 (3), Title 42 U.S.C. Sections 1981 and 1983 and the Fifth and Four teenth Amendments of the Constitution of the United States. (R. 3,4-5) The plaintiffs alleged that in the selection of names for jury service the Jury Board used irregular and arbi trary methods (contrary to the Constitution and laws of Alabama and the United States) and systematical ly excluded Negroes. (R. 8) They sought a declaration pursuant to 28 U.S.C. Sec tion 2201 that the Board’s policy, custom or usage in ex cluding qualified Negroes from jury rolls and boxes is in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States. (R. 11.) They also sought to enjoin the Jury Board “and all persons in active concert and participation with them” from failing or refusing to include in their selection the names of Negroes otherwise qualified for Jury duty and from using the names then used until the names of all quali fied Negroes had been included (R. 11-2). They sought a temporary restraining order (R. 10, 13-4) and preliminary (R. 10, 14-5) and permanent (R. 10) injunctions. A hearing was held on May 16, 1962 (R. 21), the court taking the matter under advisement (R. 22). On June 7, 1962, the Court declined — without preju dice to a final decree — to issue a temporary restraining order (R. 22) (See Opinion and Order, Appendix A, p. 58). 3 On November 2, 1964, a final hearing was held (E. 34). The court entered judgment against the plaintiffs on December 2, 1964 (R. 34-7 at 37) finding additional facts and adopting the opinion previously filed on mo tion for a temporary restraining order. (See Addition al Findings of Facts and Conclusions of Law; Appen dix A, p. 68) Notice of appeal was filed on December 31, 1964 (R. 37-8). The Jury Board and Its Selection Techniques. The three members of the Jury Board: a. Generally supervise the clerk (R. 150, 158, 60, 162, 186,187-9) b. Know few or no Negroes (R. 151, 155-6, 191, 478) c. The two male members are retired (R. 43,185) d. Have suggested the names of white persons for jury duty but have suggested the names of no Negroes (R. 149-50,190-2) e. Use the same juror selection techniques in the Birmingham and Bessemer Divisions of Jefferson County (R. 464-5) The Jury Board relies on a house-to-house survey to obtain the names of persons to be placed on jury rolls (R. 82-3, 92,149,152-3, 278, 283-4, 371, 436.) Phone books, the city directory, tax records, letters and visits to store- owners and postmasters are also sometimes employed (R. 45-48, 92-93, 337-9, 436). But primary reliance is placed on the personal canvass of neighborhoods (R. 371). The voter registration list has never been used (R. 91), tax rolls are relied upon rarely (R. 92) and the city directory is used for corrections and spelling (R. 92). 4 Store people and postmasters are consulted in rural areas (R. 304, 372). The conduct of the survey is in the hands of the clerk of the Jury Board. For a number of years J. F. Cheat- wood served in this capacity (R. 82, 277, 435). He utilized five to nine assistants to make the survey; each was a white woman (R. 89-90, 293, 342-3). The Jury Board at tempts by use of its techniques to obtain a fair repre sentation — an economic and racial “cross-section” of the population — for jury duty (R. 277, 284, 295, 311). Despite this neither Mr. Cheatwood nor his assistant (later his successor) (R. 367-8, 435) knew: a. What percentage of a precinct was surveyed (R. 294) b. The percentage of Negroes and whites on jury lists (R. 85, 312) c. The Negro communities he went to in Bessemer (R. 376) d. Negro people personally (R. 351, 381-2, 444) e. The time spent in a Negro community visited and remembered (R. 384) f. The amount of time spent in Negro and white neighborhoods (R. 442). Although work sheets employed by canvassers do not designate race (R. 290) they are not retained (R. 84). Jury rolls prior to 1953 have been burned (R. 54-5, 86). Present jury rolls contain no racial designations (R. 56- 7, 88, 447); nor do jury cards (R. 400, 406-7, 432-3). Names contained on past jury lists are brought for ward and used in succeeding lists (R. 55, 91). When a person has actually served his name is removed for two years (R. 90, 91). 5 The procurement of names of Negroes and whites is handled differently. The methods employed are racial ly determined. For example: Letters. The Jury Board sent letters to Negroes asking them to suggest names for inclusion on jury lists but did not use letters to obtain the names of whites (R. 57, 61, 303, 339, 436). There was diffi culty obtaining Negro but not white names so let ters were mailed only to Negroes (R. 295, 303). Of 88 letters mailed to Negroes only 9 replies were re ceived (R. 322-3). The mailed form requests the pre cinct number, the name, and residence and business addresses, the occupation, place and date of birth of the person suggested for jury duty (R. 337-8). This technique was employed even though the Jury Board knew it was not effective in providing the names of Negroes (R. 340-2). At the first hearing (in 1962) a Negro attorney stated that the next time a letter came he’d send in 50,000 names, Mr. Cheatwood then stating that he thought the letters would now be ef fective (R. 346). At the time of the second hearing (in 1964) Negro attorneys were no longer on the mail ing list (R. 437). No question of the legality or il legality of attorneys suggesting names of prospective jurors had been considered. And the practice of mail ing letters to Negroes was continued — but not to Negro lawyers (R. 436-7). Volunteers. Thousands of whites have volun teered for jury duty by coming to the Jury Board office. Only 2 Negroes have done so (R. 349). White groups assist the Jury Board but Negro professional people have never been consulted nor has their as sistance been sought (R. 347). Publicity. Although articles appeared in the Bir- 6 mingham daily papers concerning jury service they did not appear in Negro papers the Jury Board seek ing no publicity there (R. 344). The house-to-house survey. The white ladies em ployed by the clerk to conduct the survey are ob tained from the Personnel Board of Jefferson County (R. 90). Thirteen to fifteen months are spent mak ing the survey (R. 293). There is more difficulty in obtaining the names of Negroes than whites (R. 303, 305-9, 327-9). In back alleys the canvasser may have to walk five or six blocks to obtain two or three names (R. 328-329). And Negroes are more suspicious and won’t come to the door (R. 305-6). “When they refuse to answer the question I say thank you and walk off,” said the clerk. “I am not out there to argue with any of the citizens” (R. 307). Fifty percent of the cards which are left with white people are returned; less than 5 percent of those left with Negroes are returned (R. 327-8). The white women employed by the Jury Board are not allowed to go into “back alleys” the clerk covering these areas himself (R. 343, 449-50). Indeed the clerk and one other white man cover the Negro areas (R. 343, 369-70, 380-1). None of the white ladies go into the Negro community (R. 369-70). They don’t go into rough areas, slum areas, where the homes are in bad repair, the porches are falling off and there are vicious dogs (R. 439, 440). Despite the difficulty encountered in obtaining the names of Negroes for jury service the entire staff of the Jury Board is white (R. 375, 440). The clerk did not know if Negro personnel would help (R. 7 339). And never tried to hire any Negro ladies (R. 442). Once a letter was sent to a Negro it was not felt necessary to call on him personally since “that would be a lot of trouble” and “costing double” (R. 59). Letters mailed to the Negro attorneys in this case resulted in “nair” a name back (R. 61-2). In the higher Negro income areas the personal survey is ef fective but names do not come back from the letters (R. 84, 308). Work sheets are checked by the clerk (there is no quota) some canvassers getting 30 to 40 names, others 70 to 80 (R. 311). In a congested area the clerk says he can cover 300 to 400 houses on foot per day (R. 345). When no one is home he leaves cards for the owner to fill out and return to the Jury Board (R. 441). The Jury Board employs the same policy in the Birmingham and Bessemer Divisions of Jefferson County (R. 441, 464-5). The Random Procedures Followed in the Selection of Names of Jurors from the Jury Box in Jefferson County, Birmingham Division. Cards on which are written the names of prospec tive jurors are drawn from the big jury box (a heavy steel box on rollers) (R. 111-2) by the presiding judge. The cards are then taken to the Circuit Clerk’s office, he draws up the list of jurors and gives it to the sheriff who executes subpoenas requiring prospective jurors to report to the jury assembly room on the 5th floor of the court house (R. 203, 231). The clerk and the judge who organizes the jury enter the jury assembly room and the judge swears them in. The jury is then in the charge of the jury room bailiff (R. 232). 8 Within an hour the cards containing the names of jurors are placed in “a small black tin box” (R. 112, 232, 235) and a mimeographed list of the names of per sons on the jury venire is drawn (R. 232). No racial designations are on the cards or the list and the names themselves are kept secret until 10:30 a.m. on Monday morning when they are made public (R. 232-3). At 9:00 a.m. on Mondays the docket is sounded, cases announced ready are sent to the case clerk and readied for trial (R. 233). The trial judge then sends to the jury assembly room for the “tin little box” and draws the names of 24 to 28 persons from it (R. 111-3). The partial panel — persons whose names have been drawn — are then brought to the courtroom where the lawyers pro ceed to “strike” (R. 113). Bessemer Division The clerk sets the docket. Thirty days before trial time the jury box is removed from the safe in the clerk’s office and taken to the courtroom. In the presence of the clerk the judge opens the box, shuffles the cards, pulls out a “handful” and counts out 20. Then he re shuffles the box. After selecting the names of 80 per sons the venire is sent to the sheriff for service (R. 397- 9). When grand juries are to be selected the clerk car ries the box to the courtroom the judge drawing 35 to 40 names from the box. The clerk then prepares an al phabetical list of the names drawn and delivers it to the sheriff for service. On the following Monday morn ing the prospective grand jurors arrive in court and 18 of them are selected for grand jury duty (R.R. 419- 20). 9 The Results — Grand Juries Birmingham Division. Since 1947 (R. 211) the larg est number of Negroes to appear on a grand jury which consists of 18 persons is 3 (R. 214). On others 2 Negroes have appeared. Almost all grand juries include at least 1 Negro (R. 213-5). Four grand juries are empaneled in the Birmingham Division each year (R. 214, 216-7). The names of grand jurors are selected at random from the jury box (R. 215, 226). Bessemer Division. On only one occasion (September 9,1957, when Caliph Washington was indicted) in the last 20 years has a Negro sat on a grand jury (R. 70, 357, 392-3, 415-6). The names of grand jurors are drawn from the jury box at random (R. 418-22) at least 4 times a year (Title 30, Sec. 72, Code of Alabama, 1940 Recomp. 1958). “The strange absence of Negroes from grand jury service” is unexplained (R. 422). The Results, Birmingham Division: A. Petit Jurors in the Jury Assembly Room. 1. The testimony of attorneys practicing in Bir mingham. Roscoe B. Hogan, 12 years practice — 8 to 12 of the 90 to 105 persons in the jury assembly room are Negroes (R. 167-8). Arthur D. Shores, 25 years practice — 7 of the 65 to 70 persons in the jury assembly room was the highest number he had ever seen (R. 128-9). David H. Hood, 14 years practice — often no Negroes in the jury assembly room (R. 100-1) sometimes 1 or 2 (R. 100). 2. The testimony of officials. J. Edgar Bowron, presiding judge and a Circuit Judge for 27 years —■ the number of Negroes varies but 10 there were 8 one week 2 or 3 another (R. 240). Of 240 persons called for jury duty 8 or .10 may be Negroes (R. 242-3). Julian Swift, Circuit Clerk, 14 years — '‘imagines” 10% or 12% of persons in the jury assembly room are Negroes (R. 210). Nine of 112 or 105 (R. 206) who appeared during the week he testified were Negroes (R. 205). He recalfe as many as 18 to 20 Ne groes reported for jury duty once but never as many as 30% (R. 209) and on further examination fixed 10 to 12% as the percentage of Negroes in the room (R. 210). 3. The testimony of Negroes called for jury duty. Frederick L. Ellis — 10 Negroes in room with him. There were 35 or 40 there he “imagined.” The room was full (R. 246). Hugh L. Lemon — 3 of 100 were Negroes (R. 122). Louis J. Willie — 10 of more than 100 were Negroes (R. 139). B. Partial panels called from the jury assembly room. 1. The testimony of attorneys practicing in Bir mingham. Jerry O. Lor ant, 12 years practice — no judgment of largest number of Negroes seen on a par tial panel (R. 76). Negroes had served on juries in cases he’d tried (R. 77), but he couldn’t remember how often or the name of a case (a criminal case) or the judge before whom it was tried (R. 78-80). David H. Hood — 14 years practice — no Negroes on panels prior to 1961 but he has seen 1 or 2 since then (R. 102-3). James G. Adams, 41 years practice — “occasionally, not often, but occasionally” he has seen Negroes on a partial panel apparently in the criminal courts (R. 115). He has seen 3 Negroes on a partial panel of 27 to 28 men but in the preceding year he saw no more than 1 or 2 Negroes (R. 117-9). Arthur D. Shores, 25 years practice — on 1 11 or 2 occasions he observed 1 or 2 Negroes on partial panels (R. 129). Matt Murphy, 15 years practice — once saw 6 to 8 Negroes on a partial panel (R. 144-5) but since 1960 he has seen no more than 3 or 4 on a panel of 40 and this in a criminal case (R. 145-7). John H. Lair, 10 years practice — once saw 7 Negroes on a panel but doesn’t remember the case and may have been in error (R. 220). 2. The testimony of officials. Emmett Perry, Circuit Solicitor since 1947 — he had seen Negroes on partial panels but never counted the number of them (R. 212-3). Wallace Gibson, Circuit Judge criminal courts since 1957 — once saw a partial panel of 24 jurors with 6 Negroes none of whom ac tually served (R. 223). Prior to this one occasion the largest number of Negroes in a partial panel was 2 or 3 (R. 224-5). J. Edgar Bowron, presiding judge and a Circuit Judge for 27 years — Negroes are on partial panels fewer times than they are not (R. 239) and infre quently have served on juries in his court. No more than 1 Negro has served on a petit jury at one time (R. 238). He often handles excuses from jury duty but there is no evidence that a higher percentage of Ne groes than whites sought excuses (R. 240-4). Negroes who are called for jury service seldom leave the jury assembly room and when they do are almost always struck and rarely serve (R. 125, 140, 174, 197, 228-9, 245, 247-54, 255-7). In the criminal courts agree ments not to include Negroes on partial panels called from the jury room have been abolished (R. 225). But exclusionary agreements exist in the civil courts (R. 115, 169-70, 198-9, 234, 237) although this was disputed (R. 220-1). 12 The Results: Bessemer Division A. Petit Juries 1. The testimony of attorneys practicing in Bes semer. H. P. Lipscomb, Jr., more than 40 years prac tice — 3 Negroes out of “quite a number” of whites; 4 or 5 juries were empaneled for the Washington case in 1957. Prior to 1962 this was the only time any Negroes were empaneled (R. 69-70). During the succeed ing 2 years he noted as many as 3 or 4 Negroes on the venire of 50 to 60 persons (R. 360-4). David H. Hood, 14 years practice — no observation of Negroes on the panel or venire (R. 97). William C. Smithson, 45 years prac tice — no Negroes seen on a jury panel (R. 109). Hugh McEniry, 52 years practice — last saw a Negro juror serve in the Caliph Washington case (R. 180-1). Edward Saunders, 32 years practice — no Negroes on a panel in 5 years (R. 183-5). 2. The testimony of officials. Edward L. Ball, Jr., Circuit Judge and at torney for 23 years — cannot recall a civil or criminal case when Negroes actually served on a petit jury (R. 390-1). Since 1957, 4 Negroes usually appear on a venire of 37 to 38 people, one week it was 5 Negroes in a venire of 48, and once there were 7 or 8 Negroes on a venire of 42 (R. 391-2). There have never been as many Ne groes as whites on a venire (R. 410). Although there are no racial markings on jury cards he knows by ad dresses which communities are predominantly or all white and which are Negro (R. 401-3). Elmore McAdory, Deputy Circuit Clerk and Registrar for 12 years — no Negroes have served on a petit jury in 20 years (R. 415). 13 Negroes first began to appear on the venire in 1953 (R. 424). Although he once observed 9 Negroes on a venire and once 8 he could recall no details of this except it happened in 1964 (R. 430-1). Several Negroes testified as to their own qualifica tions and the failure of the state to call them or their as sociates, neighbors, kinsmen and church members for jury service (R. 261-76). Indeed the clerk of the Jury Board had no opinion on whether “the incidence of quali fication for conviction of crime was higher among white than colored, or colored than white” when the Court asked (R. 444). There was no testimony concern ing Negro or white crime or illiteracy rates (R. 464). There is some vague testimony concerning more whites being qualified and more colored citizens asking to be ex cused or it “could be the sheriff didn’t serve Negroes” (see generally R. 467-74). But the presiding judge of the Tenth Judicial Circuit (Birmingham Division) did not testify that he excused more or a higher percentage of Negroes than whites (R. 240-4). Nor did the Deputy Clerk (Bessemer Division) know about this (R. 422). There was no testimony regarding the rates of lit eracy, householding, freeholding, honesty, intelligence, character, habitual drunkeness, disease or physical weak ness of either Negroes or whites. The population: Jefferson County as a whole. There are 120,205 (70%) white and 51,961 (30%) non-white males over 21 years of age in Jefferson County (R. 301). Of these 13,796 white and 7,097 non-white males are over 65 years of age and, consequently, ineligible for jury service (R. 302-3). Thus the total number of whites eligible for jury service in Jefferson County is 14 106,409 (70%). The total number of eligible non-whites, 44,864 (30%) (R. 302-3; see 1960 U.S. Census, Alabama p. 2-83). The total number of names listed on jury rolls is ap proximately 52,000 (R. 284). Bessemer Division. The Bessemer Division consists of Precincts 53, 33 and a small part of 9 (R. 364-5, 377- 9). There are 33,989 males over 21 years of age. Of these 20,449 are white, 13,540 are non-white. Of the 29,900 males in the 21 to 65 age bracket 18,313 (61%) are white, 11,587 (39%) are non-white. (See Exhibit 1: also R. 376-9). The total number of names listed on jury rolls in 1961-63 was 8,892 (R.379). Birmingham Division. There are 121,373 males eligi ble for jury service in the Birmingham Division. Of these 88,096 (73%) are white, 33,277 (27%) are non white. The total number (approximate) of names listed on jury rolls is 43,108. Specifications of Error 1. The District Court erred in ruling that the plain tiffs did not prove that the Jury Board systematically excluded from jury rolls the names of Negroes in the Birmingham and Bessemer Divisions of Jefferson Coun ty, Alabama in violation of the Fourteenth Amendment of the Constitution of the United States. 2. The District Court erred in refusing to enjoin the Jury Board from discriminating against the plaintiffs and others similarly situated in the selection of names of persons eligible for jury service, in violation of the Fourteenth Amendment of the Constitution of the United States. 15 Argument X A SURVEY OR CANVASS OR SAMPLE SYSTEM OF JUROR NAME SELECTION IS NOT ONLY A PROPER BUT IS ALSO A PREFERRED TECHNIQUE WHICH SHOULD END THE SYSTEMATIC EXCLU SION OF RACIAL OR OTHER GROUPS FROM JURY ROLLS. The problem of the selection of sources of names. The survey or canvass or sample system of juror name selection2 offers hope for federal and state courts across the nation. Selection techniques now dif fer from state to state and within states from court to court. The federal system differs from the state sys tem. Qualifications differ from state to state. Federal qualifications differ from state qualifications. Indeed former Assistant Attorney General Burke Marshall re cently noted: “A Justice Department survey in 1961 showed that the 92 federal district courts had 92 dif ferent systems of selecting juries.” 3 One jury commissioner’s telephone book is another’s city directory. A third may try voter registration lists. The Junior Chamber of Commerce, church membership lists (regardless of the First Amendment), lists of school teachers, American Legion posts or labor unions, lists of industrialists and lists of automobile owners, lists of 2 A lthough th e Jefferson County ju ro r nam e selection system is sometim es term ed a canvass (See T itle 62, Section 199, Code of A la bam a; Recomp. 1958) it is, in reality , a sam ple selection system upon the only “. . . six per cent of th e population of the county . . .” th e Ju ry B oard’s responsibility is discharged. (See T itle 62, Section 200, Code of A labam a; Recomp. 1958). (R. 285) The Ju ry B oard does not claim to canvass every dw elling in th e county. 8 Nelson, Jack. Jim Crow Justice, Los Angeles Times, Thursday, Ju n e 16, 1965. 16 householders or PTA members or registered voters or real property tax payers —* all are used. The dearth of truly cross-sectional lists is the plague of jury commis sioners. Some rely, especially in the federal courts, on the “key-man system,” key men suggesting their friends and associates for jury duty. One clear light shines through the forest of lists 4 — the United States in al most every one of its courts tries its citizens before Lit erary Digest juries.5 The inability of the Literary Digest list system and, for that matter, any other list system to obtain a eross- 4 “A sm all point: A m erica has a self-im age of itself as a nation of jo iners and doers. There are social clubs, charities, com m unity drives, and the like. Churches have always played an im portan t social role, often m ark ing off the status of individuals. And yet the en tire s truc tu re is a phenom enon of the m iddle class. Some tim e ago, a study in F ranklin , Indiana, reported th a t the percentage of people in the bo t tom class who w ere w ithout affiliations of any kind was eight tim es as g reat as th e percentage in the high income class. The poor person who m ight w an t to jo in an organization is afraid. Because he or she w ill have less education, less money, less com petence to articulate ideas th an anyone else in the group they stay aw ay.” H arrington, Michael, T he O ther Am erica, P enguin Books, Inc., Baltim ore, 1964, p. 130. 5 T he L iterary D igest by 1895 had collected lists of nam es of m id dle and upper economic class persons who m ight subscribe to the m agazine and purchase its advertised products. In 1895, it had 350,000 names, by 1900, 685,000. In 1916 it entered the polling field. In 1920 it m ailed 11,000,000 ballots to residen tia l te lephone subscribers seeking th e ir preferences as to p residential nominees. It conducted polls on national prohibition and o ther m atte rs like th e M ellon tax reduction proposal. P rio r to the 1928 P residen tial election it m ailed 18,000,000 ballots and in 1932 20,000,000 ballots. I t correctly predicted the w inner each year. Jam es J. F arley considered the poll “conclusive evidence.” O thers hailed it as “uncanny,” “infallible,” “am azingly accurate.” Before it began its 1936 operations it was said, “the Digest poll is still the Bible of m illions.” To pred ic t the Roosevelt-Landon race it m ailed 10,000,000 ballots to its list of te lephone subscribers and autom obile owners. One of every four ballots was retu rned . (Gallup, George and Rae, S. F., The Pulse o f Democracy, Simon and Shuster, New York, 1940. pp. 39-43) 17 section of the population, was demonstrated in 1936. Prior to the Digest’s mailing of its ballots in 1936, George Gallup’s American Institute of Public Opinion made preliminary studies and discovered that although Landon would receive 59% of the votes of telephone subscribers and 56% of the votes of automobile own ers, he would receive only 18% of the votes of those on relief. Following this the Institute began in earnest a prediction not merely of the coming election results but also of the coming results of the Digest poll. It pre dicted that the Digest would predict 56% for Landon, and 44% for Roosevelt. The Institute also predicted that the Digest would be wrong in 1936. And it predict ed the Digest’s margin of error within 1%. The editor of the Digest retorted: “Our fine statistical friend . . . should be advised that the Digest would carry on with those old fashioned methods that have produced correct forecasts exactly one hundred percent of the time.” 6 Messrs. Gallup and Rae point out that in 1936 class alignments were drawn with a firmness; economics di vided America. The large sample used was of no help since the basis of sample selection was itself faulty: per sons in upper income brackets tended to respond to mail canvasses in greater proportion than the poor; the rich were so angry with Roosevelt they were moved to protest; and the entire sample was biased to older per sons. More than this the Digest system failed to capture changes in sentiment near the end of the campaign — an error Mr. Gallup was to make 12 years later.7 e Ibid,., p. 47. 'l B u t it should be noted th a t although G allup’s predictions in 1936 w ere correct and, coupled w ith the resu lts of other scientific surveys opened the field of scientific polling, his e rro r of 6.8% percentage points was g rea ter than the 4.8 percentage point e rro r m ade in 1948. Pollsters today would be ru ined by an erro r of 6.8 percentage points. Fenton, J. M., In Y our Opinion, L ittle Brown and Company, Boston, 18 Thus in 1936 when the cleavage of economic class was as pronounced as the racial cleavage in the South the Literary Digest failed spectacularly — as spectacu larly as Mr. Roosevelt succeeded with 60.7% of the votes. The use of lists — and no welfare, relief, or other lists of the visible or invisible poor were then used by the Digest or are now used by the courts — led to the Digest’s colossal error. And the death of the magazine. The jury system in America faces the same problem of error, the same continuing trial, of “those old fashioned methods that have” — fictionally — “produced correct forecasts exactly one hundred percent of the time.” “One fundamental lesson became clear in the 1936 election: the heart of the problem of obtaining an ac curate measure of public opinion lay in the cross section, and no mere accumulation of ballots could hope to elimi nate the error that sprang from a biased sample.” 8 Indeed, “less than one tenth of one percent of The Literary Digest’s 19 point error in 1936 could reason ably be due to the size of the sample. One tenth of one percent is the range of error which can be expected with practical certainty in a sample of 2,227,500 cases . . . where opinion divides in the ratio of 55 to 45. The Di gest’s final report, showing Landon with 57 percent to 43 percent for Roosevelt, was based on 2,376,523 ballots. Virtually all the Digest’s error was undoubtedly due to two other factors which determine accuracy in this field of opinion research — cross section and timing.” 9 I960, p. 9. In 1948 the public opinion polls w en t w rong because they stopped in terview ing too early (October 15) and did not catch last m inute trends, th e re was an “unusually high proportion of undecided vo ters” then and “the problem of vo ter tu rnou t was particu larly acute.” The 1948 errors have been rem edied in la te r surveys. (Ibid., pp. 71-3). 8 G allup and Rae, op. cit., pp. 54-5, emphasis supplied. 9 Ibid., p. 71. 19 The Survey or Canvass or Sample System Can Provide an Accurate Cross-Section. Juries are required to be drawn from a cross-section of the eligible population.10 The jury decides ultimate questions. Prior to its decision the jury is intensively ed ucated with facts and law. But the jury’s verdict can be accurate only to the degree that the jury itself is not drawn from a biased source. A jury venire drawn at random, is itself a sample of the names in the jury box. To the degree that the names in the box represent a cross-section of the population the jury’s verdict can be unbiased. To the extent that the names of jurors are not drawn from a cross-section of the population the venire is as biased as the verdict of the jury is inclined to be. Survey results are themselves used “as evidence in numerous cases and in various areas of litigation.” 11 10 Thiel v. Southern Pacific Co., 328 U.S. 217 (1946); see also Glas- ser v. United States, 315 U.S. 60 (1942). “The system atic and in ten tional exclusion . . . of a racial group, Sm ith v. Texas, 311 U.S, 128 . . . deprives the ju ry system of the broad base it was designed by Congress to have in our dem ocratic society. I t is a departu re from the sta tu to ry scheme. . . . The in ju ry is not lim ited to the defendant— there is in ju ry to th e ju ry system, law as an institution, to the com m unity a t large, and to the dem ocratic ideal reflected in th e processes of our courts.” Ballard v. United States, 329 U.S. 187, 195 (1946). 11 “Most frequen tly in trade-m ark , trade-nam e, and un fair com pe tition cases.” They are also em ployed in false and m isleading advertis ing cases and in cases involving “adulterated and m isbranded foods, drugs and cosmetics; design pa ten t infringem ent; and changes of venue.” Sam pling techniques have been employed “in an ti- tru s t lit i gation and public u tility ra te cases.” Barksdale, H. C., The Use of S u rvey Research Findings as Legal Evidence, P rin te rs’ Ink Books, P leasantville, N.Y., 1957, p. 141. A lthough Judge Learned Hand once reg retted th a t the courts have no Gallup poll to aid them in defining the “good m oral character” dem anded of a candidate fo r naturalization (Repouille v. United States, 165 F.2d 152, 153 (2nd circ. 1947)), Mr. Gallup had, in fact, conducted a survey on the problem w ith w hich the court was con cerned (Kennedy, F. R., L aw and the Courts, a C hapter in The Polls and Public Opinion, edited by M eier and Saunders, H. W., H enry Holt and Company, N ew York, 1949, p. 104, note 41.) The conduct of su r veys by an agent of the court has been suggested (Ibid., p. 106). 20 The introduction into evidence of survey results may be debatable. Questions arise regarding the relia bility of the survey, the partisanship of the research er, the admissibility of hearsay evidence and the prob lem of whether to judicially notice survey results. But the use of a survey system of jury selection poses only problems relating to the administration of the survey itself. Discretionary Power in the Hands of Jury Officials Must be Eliminated. President Johnson in his address to the joint session of Congress Monday, March 15,1965, stated: “Experience has clearly shown that the existing proc- cess of law cannot overcome systematic and ingeni ous discrimination. No law we now have on the books can insure the right to vote when local offi cials are determined to deny it.” The same may be said regarding the right to serve on juries. But techniques may be established in a sur vey system of jury selection to provide checks against a racially exclusionary administration. Discretion is an en emy of the selection of names of a cross-section of the population.12 As Mr. Justice Black has said. .. by rea son of the wide discretion permissible in the various steps of the plan, it is equally capable of being applied in such a manner as practically to proscribe any group thought by the law’s administrators to be undesira ble.” 13 12 Condem nation of discretion in the hands of sta te voting officials is a t the h ea rt of two recent decisions of the Suprem e Court. See United States v. Mississippi, ——• U.S. ------, 33 L.W.4258 (1965) and Louisiana v. United S ta te s ,------U .S .------- , 33 L.W.4262 (1965). is Sm ith v. Texas, 311 U.S. 128 (1940). 21 Survey research procedures may be adopted which eliminate the discretion of the canvasser.14 “Within the interviewing area, reporters work from prearranged se lection codes in determining which people to question — they are allowed no personal choice in the matter. The total process is designed to minimize the bias which might be introduced either by the home office statisti cians or the interviewer in the field. “It serves to remove from the interviewer’s hands the decision on where to start interviewing and whom to question, thus reducing the possibility of bias. If in terviewers were given a choice in this matter, human nature might inevitably work to turn up a sample of front-porch sitters or, in rural areas, a representative scattering of farms without fierce looking dogs.” 10 The elimination of discretion in the hands of jury commissioners seems essential — especially since such discretion no longer has any value. In urban unlike rural areas no jury commissioner’s circle of friends and knowl edge of the community-at-large is sufficient to enable him — by himself or with a clerk or another commis sioner — to select the names of persons he knows for jury service. Indeed in a pluralistic society with differ ent cultures and subcultures a jury commissioner may know no one in many segments of society to ask for names. He may have no knowledge to enable him to 14 Barksdale, H. C., op. cit., pp. 17-35; see also Roper, B. W., Public Opinion Surveys in Legal Proceedings, 51 A.B.A. Jm l. 44 (January , 1965) com m enting on Sherm an, E. F., The Use of Public Opinion Polls in Continuance and Venue Hearings, 50 A.B.A. Jrn l., p. 357, (A pril 1964). Fenton, J. M., op. cit., pp. 11-18. Gallup, George and Rae, S. F., op. cit., pp. 56-76. 15 Fenton, J. M., op. cit., p. 15. See also R. 439-40 regarding the problem of vicious dogs. 22 find lists of persons.16 The survey system of jury selec tion can eliminate this problem which has grown as have our cities. Criminal defendants ordinarily serve as challengers of the systematic exclusion of a class from juries. But the mass of names that must be examined and the ex pense of that examination are often economically pro hibitive. This difficulty of proof led the courts to sta tistical determinations of exclusion and standards of a prima facie case.17 Any survey system of jury exclu sion should meet the constitutional requirement that the procedure followed by jury commissioners — their “course of conduct” — “not operate to discriminate in the selection of jurors on racial grounds.” 18 Sampling techniques employed by pollsters rely on the laws of probability. And mathematical formulae ap plied to random drawings from jury boxes can prove with the smallest range of error — an infinitesimal range when compared with other techniques of proof — not only whether or not there has been systematic exclusion from jury rolls but also what group has been excluded and the extent of the exclusion. This tech nique is used later to show the extent of Negro exclu sion in Jefferson County. The Jury Board of Jefferson County, Alabama, em- 16 Indeed, is i t constitutionally perm issible to seek out lists of names of persons in racial o r o ther groups to include on a “general ven ire lis t?” A lthough Judge Rives reserved ru ling on th is question in Collins v. W alker, 335 F.2d 417 (1964) cert. den. sub. nom. Hanchey v. Collins, No. 407, ------ U.S. ------ , 33 L. W eek 3171 (1964) Judge Jones sta ted th a t Negroes “perhaps” m ust be included but, apparently , not purposefully. Cf. Sw ain v. Alabam a, ------ U.S. ------ , 33 L. W eek 423 (1965) and cases th e re cited. 17 See V.S. ex. rel. Seals v. W iman, 304 F.2d 53 (5th Cir. 1962). 18 A ve ry v. Georgia, 345 U.S. 559, 561 (1953). 23 ploys the proper technique of juror selection; the fact that it did not correctly use i t 19 should not detract from the basic soundness of the method itself, one that can and should be used in state and federal courts across the land. “The courts’ machinery and processes for dis covering truth are time-tested but they are not per fect.” And most of our judges recognize the value of availing themselves of all modern scientific aids in their search for truth as soon as their reliability can be es tablished. If the application of opinion research method ology can contribute to the discovery of truth in the courts of justice, it can serve no worthier purpose.” 20 Literary Digest juries do not march in step with the trends of American life or law. In the South the problem of jury selection is com pounded by the problems of poverty and race. The United States seeks to abolish class distinction in court. Although many legal problems remain for the poor advances have been made.21 As the federal government moved to protect the rights of the oppressed — whether defenseless because 19 See statem ent pp. 3-7, infra. 20 Kennedy, F. R., op. cit., p. 108. 21 G riffin v. Illinois, 351 U.S. 12 (1958)_.v0.he righ t of the poor to a free transc rip t); Eskridge v. W a s h in g tc A f^ I U.S. 214 (1958) (m ade Griffin re troac tive); Douglas v. California, 372 U.S. 353 (1963) (the righ t of the poor to counsel on appeal); Lane v. Brown, 372 U.S. 477 (1963) (the righ t of poor to free transcrip t for post-conviction rem edy); Gideon v. W ainwright, 372 U.S. 335 (1963) (the righ t of the poor to counsel in non-capital felony cases); H arvey v. Mississippi, 340 F.2d 263 (1965) (the righ t of the poor to counsel in m isdem eanor cases); See also National Conference on Bail and Criminal Justice, Proceedings and In terim Report of the, W ashington, D.C. (1965); C rim inal Justice A ct of 1964. 24 of poverty 22 or race or both—the Supreme Court moved to insure democracy on the state level. It declared the equal right of every man to an equal vote.23 But the exclusion of the poor and Negroes from the administration of justice continues. And it continues in those very institutions which are intended to protect the rights of the minority, the weak and oppressed against the demands of the majority, the wealthy and powerful. As the U.S. Commission on Civil Rights has said: “The victims of lawlessness in law enforcement are usually those whose economic and social status af ford little or no protective armour — the poor and racial minorities. Members of minority races, of course, are often prevented by discrimination in gen eral from being anything but poor. So, while almost every case of unlawful official violence or discrimina tion studied by the Commission involved Negro vic tims, it was not always clear whether the victim suffered because of his race or because of his lowly economic status. Indeed, racially patterned miscon duct and that directed against persons because they are poor and powerless are often indistinguishable. However, brutality of both types is usually a de privation of equal protection of the laws and of di rect concern to the Commission.” 24 22 See Trebach, A. S., The Rationing of Justice; Constitutional Rights and the Criminal Process, R utgers Univ. Press, New B runs wick, N.J., 1964. F or a sem inal trea tm en t see Olshausen, George, Rich and Poor in Civil Procedure, 11 Science and Society, No. 1 (1947). 23 Reynolds v. Sim s, 377 U.S. 533 (1964); W esberry v. Sanders, 376 U.S. 1 (1964); Gray v. Sanders, 372 U.S. 368 (1963). 24 Justice, U.S. Civil R ights Comm. Rep. 1961, pp. 2-3. 25 But if the poor and Negroes served on juries, would official oppression continue? Probably not, for juries es tablish standards of community conduct. By wrongful acquittals they endorse crime, 25 by proper convictions they contain it. The Commission has noted: “The jury is perhaps the most important instrument of justice. For jury service is the only avenue of di rect participation in the administration of justice open to the ordinary citizen. Moreover the function of the jury can be a solemn one. It is the jury, not the judge, who must pronounce a man ‘guilty’ or ‘not guilty’ — an awesome responsibility.” 26 Although the nation has declared a war on pover ty 27 it often seems that white southern justice has de clared a war against the poor. And there are many poor as Alexis de Tocqueville, in his notebook recording his journey in the U nited S tates recounts this conversation w ith a M ontgomery, A labam a law yer in 1832: De Tocqueville asks, “Is it then tru e th a t the ways of the people of A labam a are as v iolent as is said?” A. “Yes. There is no one here b u t carries arm s under his clothes. A t the slightest quarrel, knife or pistol comes to hand. These things happen continually; it is a sem i-barbarous sta te of society.” Q. “B ut w hen a m an is k illed like that, is his assassin not punished?” A. “He is always brought to trial, and always acquitted by the ju ry , unless there are greatly aggravating circum stances. I cannot rem em ber seeing a single m an who was a little known, pay w ith his life for such a crime. This violence has become accepted. Each ju ro r feels th a t he m ight, on leaving the court, find him self in the same position as the accused, and he acquits. Note th a t the ju ry is chosen from all the free-holders, how ever sm all th e ir p roperty m ay be. So it is the people th a t judges itself, and its prejudices in this m atte r stand in the w ay of its good sense.” De Tocqueville, Alexis, Journey to America, edited by J. P. Mayer, Yale U niversity Press, New Haven, translated by George Lawrence, 1960, p. 108). 26 Justice, ibid., p. 89. 27 Economic O pportunity A ct of 1964. 26 — 40,000,000 to 50,000,000 28 poor. They are invisible, “off the beaten track,” away from the suburbs. And it is in the suburbs where jurors live: “. . . the very develop ment of the American city has removed poverty from the living emotional experience of millions upon mil lions of middle-class Americans.” 29 The exclusion of the poor by Literary Digest jury selection systems by key-man 30 or other biased polling techniques is disastrous for the jury system — and for justice. “The poor are not like everyone else. They are a different kind of people. They think and feel differ ently; they look upon a different America than the mid dle class looks upon. They, and not the quietly desper ate clerk or the harried executive, are the main victims of this society’s tension and conflict.” 31 Michael Harrington also points out that “The mid dle class does not understand the nature of its judg- 28 H arrington, Michael, op. cit. p. 9. 22 Ibid., p. 12. 30 See generally The Jury System, in th e Federal Courts, W est P u b lishing Co., St. Paul, (1960). Snead, W. E., and Womack, J. E., Com m ent: Juries — Selection of Federal Jurors — Exclusion of Economic Class — N atural Resources Jrnl., p. 181 (Mar. 1961). “The character of the key-m an system itself m ight give rise to an inference of dis crim ination. If the key-m an is not acquainted w ith Negroes or la borers it is un likely h e w ill pick them fo r the a rray (Ibid., pp. 185-6). U nder the New Mexico D istrict key-m an system, an impossible b u r den of proof is placed on one w ho challenges the ju ry panel o r a rray on the ground of exclusion of an economic class (Ibid., 186). The prospects of successful a ttack are discouraging. The system itself in sulates ju ry selection from attack. The righ t to have a represen tative ju ry under these circum stances is a righ t w ithout a rem edy (Ibid., p. 187). 31 Ibid., p. 135. “A fter one reads the facts, e ither th e re are anger and shame, or the re are not. And, as usual, the fate of the poor hangs upon the decision of the better-off.” (Ibid., p. 156) See also Gallup, George, op. cit., pp. 60-1. 27 ments. And worse, it acts upon them as if they were universal and accepted by everyone.” 32 But any system of jury selection which fails to af firmatively seek out jurors from all segments of society will almost inevitably be “predominantly male, middle- aged, middle-minded and middle class.” 33 And there is little doubt that jurors tend to vote in accordance with their consciences — and conscience may well be a creature of experience. What many lawyers have known, others are now submitting to study. One 34 stated: “In reality jury deliberations are often anything but rational and certainly never confined solely to the evidence . . . Figuring in deliberations were trial func tionaries . .. the evidence . .. and nontrial matter. Nontrial matter consisted of ‘weather,’ ‘people on the jury or in the community,’ ‘reputation of the parties in the case,’ ‘the famliy of the accused,’ ‘reputation of the lawyers,’ and ‘race and racial differences.’ ” 35 * ❖ ❖ “Voting by the jurors in East Baton Rouge Parish evidenced considerable uniformity. Among re sponding petit jurors, associations between birth place, previous jury service, socio-economic class, and a vote of guilty or not guilty were significant. . . . Individually, previous jury service and a birth- 32 Ibid., p. 125. 83 A com m ent of Mr. Justice Devlin appearing in M em orandum subm itted by the N ational Council for Civil L iberties to the D epart m ental Com m ittee on Ju ry Service, th e Home Office, October, 1963, p. 2. 84 Reed, J. P., Ju ry Deliberations, V oting and Voting Trends, Vol. 45, No. 1, The Southw estern Social Science Q uarterly 361 (1965). as Ibid., p. 364. 28 place in the Anglo-Saxon northern part of Louisiana produced proportionally a greater number of guilty votes than ‘fresh jurors’ (no previous jury service) and a birthplace in the French southern part of the state. The class based nature of the juror’s vote ap peared in associations between occupation, educa tion, and vote outcome. “. . . the higher the status of the individual juror the more likely he was to vote guilty; the lower the status of the individual juror the more likely he was to vote not guilty.” ❖ ❖ ^ “Petit jurors also differentially treated persons accused of a crime. Persons with high occupational status were much more frequently held not guilty than their low socio-economic counterparts. 38 ̂ ^ “Judgment by one’s peers has been running counter to holding the accused strictly accountable for his offense. Among jurors whose socio-economic status was low there were more not guilty votes for both low-and high-status violators of the criminal code than guilty votes. High status jurors were fewer in number and rarely, if ever, majorities on the juries in East Baton Rouge Parish.” * * * “On a national level, the long term trend in ver dict outcomes would seem to be quite similar. In writings by Koestler, Bok, and Martin and Swinney the implications are that ‘jury justice’ favors the accused. While the data are somewhat old and sparse, they lend support to the literature which has made the same claim for many decades.” 37 36 Ibid., pp. 365-6. 37 Ibid., p. 369. 29 The Results of Discrimination in Jury Name Selection. In the South the results of racial discrimination are often so apparent as to be assumed. Most of us have come to accept that which we have always known. “We have called the figures startling; but we do not feign surprise because we have long known that there are counties not only in Mississippi but in the writer’s own home state of Alabama, in which Negroes constitute the majority of the residents but take no part in government either as voters or as jurors. Familiarity with such a condition thus prevents shock, but it all the more in creases our concern over its existence.” 38 Lynchings were for years an extra curricular activity of the worst and best elements in the southern town. Ap proximately 5,000 Negroes have been reported lynched in the United States since 1859.39 The number not re ported and consequently not known must be staggering.40 “When a lynching took place, neither local nor state officials made any honest effort to apprehend and punish the criminals. The police either didn’t investigate at all 38 U.S. ex. rel. Goldsby v. Harpole, 263 F.2d 71, 78-79 (1959). 39 Ginsburg, R., 100 Years of Lynchings, L ancer Books, New York, 1962, p. 253. 40 As is the num ber and w hite/N egro ratio of legal executions for the crim e of rape. Betw een 1930 and 1963, 449 m en w ere executed for rape; 45 (10%) w ere white, 402 (89.6%) w ere Negroes, 2 w ere Indians. Of these executions the 11 states of th e Old Confederacy accounted fo r 393 (87%) of the total; two arose in federal courts and the rem ainder in border and adjoining states. Negroes fared better w ith m urder. Of a national to ta l of 3315 executions for m urder only 1625 (49%) w ere Negroes. Executions, N ational P risoner Statistics, U.S. Dept, of Justice, B ureau of Prisons, No. 34, May 1964. For a resum e of recen t civil rights killings see M axwell, Neil, The Liuzzo Case, The W all S tree t Journal, May 4, 1965, rep rin ted here as A p pendix C, p. 83. Since the M axwell article, O’Neal Moore, Negro D eputy Sheriff was slain (June 2, 1965) a t Varnado, Louisiana, 7 m iles no rth of Bogalusa. 30 or reported, tongue in cheek, that they were unable to identify anybody, though who the guilty parties were was commonly neighborhood knowledge. Judges, attorney- generals (sic), and governors almost never made any at tempt to spur them into active performance of their duty. When, for a wonder, they did, they got no co-operation or support from the body of ‘best citizens’ in the local community or the state; on the contrary, the ranks closed now as always, and all investigators got was grim warn ings to mind their own business under penalty of tar and feathers.” 41 “Contrary to wide-spread popular belief, which the South itself has fostered, the persistence of lynching in the region down to the present has not been due simply and wholly to the white-trash classes. Rather, the major share of the responsibility in all those areas where the practice has remained common rests squarely on the shoulders of the master classes. The common whites have usually done the actual execution, of course, though even that is not an invariable rule (I have myself known uni versity-bred men who confessed proudly to having helped roast a Negro). But they have kept on doing it, in the last analysis, only because their betters either consented quietly or, more often, definitely approved.” 42 Yesterday’s lynch mob may be tomorrow’s jury. As W. J. Cash said. “. . . the South was solidly wedded to Negro-lynching because of the cumulative power of habit, obviously.” 43 But more than that, he notes that in time of stress for “best” as well as the “sorriest crack er,” lynching was “an act of racial and patriotic expres- 41 Cash, W. J., M ind of the South, V intage Books, New York, 1941, pp. 309-10. 42 Ibid., pp. 310-11. 42 Ibid., p. 121. 31 sion,” of “chivalry,” an act of “ritualistic value in respect to the entire southern sentiment. . “It was not wrong but the living bone and flesh of right.” 44 After Reconstruction — when the courts were even tually returned to the white South — the Negro “was to become almost open game.” Negroes and racially mav erick white Southerners could find no justice — only oppression — in the halls of southern justice.45 Southern justice was and is as white as the marble on a courthouse facade. Often this court has been forced to take judicial notice of facts obviously true.46 This court knows the nature and extent of racial segregation in the South — and in Jefferson County, Alabama. Indeed the name Birming ham provided the world a pre-Selma symbol of intransi gence. This court also knows of the “grisly ‘Hobson’s Choice’ ” 47 much of the South provides a Negro criminal defendant on trial for his life. Segregated Justice. The county courthouse has always been a seat of pow er in the South. Yesterday Negroes rarely went there. When they went it was to pay taxes or purchase a license or be a witness or be tried. Tomorrow they may go there to vote or serve on juries or, perhaps, to work, or prac tice law, or see a friend. But that tomorrow — like so many of the South’s tomorrows — will never come if segregated justice continues. 44Ibid. « Ibid., p. 122-3. See also Ibid., 425. 46 Sometimes th a t the facts noticed are painful and an indictm ent e ither of a society or the law yers w ith in it. See U.S. ex. rel. Goldsby v. Harpole, 263 F.2d 71 (1959). « W hitus v. Balkcom, 333 F.2d 496, 499 (5th Circ. 1964). 32 Southern federal courts are themselves almost totally white;48 Jefferson County’s courts more so.49 In Jefferson County no Negroes work for the Jury Board (R. 136). In the Bessemer Division the names of Negroes called for petit jury service are placed on the bottom of the jury list (R. 397, 399). And they are segre gated and placed on jury number 4 (R. 360-1, 394-7). The courthouses, Birmingham and Bessemer, were segre gated. (See R. 385-7.) The courthouse segregation policy — drinking fountains and rest rooms — is in the hands of the county commission (R. 399). The court noted that there was a time when they used a “C” or some desig nation to show who was colored or white (R. 428). The names of jurors have been carried over from previous lists (R. 156). Voter lists in the county now designate color (R. 165). In this system of justice it should cause no wonder ment that when a Negro served on a jury with 11 white men (the defendant was a Negro) the whites allowed the lone Negro juror to decide the case (R. 116). During the trial of this case in a federal court a white witness used the term “nair” in making his point to a Negro attorney (R. 61-2). The solicitor himself referred to a Negro witness as “Arthur” (R. 130). When called 48 Racial D iscrim ination in the Southern Federal Courts, Southern Regional Council, A tlanta, 1965. 48 See Morgan, Charles, A Tim e to Speak, H arper and Row, pp. 113-122. Morgan, Charles, Integration in the Y ellow Chair, New South, Southern Regional Council, A tlanta, Feb. 1963, p. 11. “The Deep South rem ains tru e to its heritage. The segregation of th e m achinery of justice, police, judges, courts and juries, rem ains. “B ut rea lly s ta tistical evidence is unnecessary. One need only en ter a sou thern court room to see discrim ination a t w ork.” Lester, A nthony, Justice in the A m erican South, A m nesty In ternational, 1 M itre C ourt Buildings Temple, London, E.C. 4., (1965) pp. 12-3. 33 to task over his pronunciation of the word Negro he re sponded, “I can’t change my speech after 59 years.” The court stated: “We understand.” (R. 132-3). Although between 1960 and 1964, 145 Negroes applied to the City-County Civil Service System for the position of clerk-typist only 17 passed their examinations. Some of these 17 have been certified to county officers but the county officer need take only 1 of 3 names furnished to him (R. 452-6). Of course the Jury Board took none. Civil rights killings in the South increase. Convictions are few. And when convictions occur the sentences are wrist slaps — more an encouragement to murder than a guarantor of order.50 All-white justice as it exists in Jefferson County and other sections of Alabama and the South makes heroes of killers, rallying points of men accused of heinous crimes. Philadelphia and Jackson, Mississippi, law men and fer tilizer salesmen, Selma and Birmingham Klansmen, bombers, burners, and sharpshooters strike terror in the hearts of Negro citizens seeking to free themselves from the vestiges of slavery. Any consideration of the systematic exclusion of Ne groes from juries requires recognition of the totality of the system of segregated justice.51 And the cases which consider and condemn total ex clusion or token inclusion of Negroes on juries are le- 50 See M axwell, Neil, op. c i t , A ppendix C, and Morgan, Charles, Look, June 29, 1965 p. ------. See also Eighteen A ffidavits from A la bama, New South, Southern Regional Council, A tlanta, Ju n e 1964, p. 3; Southern Bombings, New South, Southern Regional Council, May, 1963, p. 8; Law Enforcem ent in Mississippi, a repo rt of the Southern Regional Council, A tlanta, Ju ly 14, 1964. 51 F or an excellent contem porary review of segregated justice in the South see Nelson, Jack, “Jim Crow Justice,” Los Angeles Times, June 13-17, 1965, p. 1. (a series of articles). 34 gion. See Strauder v. West Virginia, 100 U.S. 303 (1880) (Negroes prohibited by statute); Neal v. Delaware, 103 U.S. 370 (1881) (No Negroes for jury service); Bush v. Kentucky, 107 U.S. 110 (1883) (Negroes prohibited by statute); Norris v. Alabama, 294 U.S. 587 (1935) (No Negroes called within memory); Hollins v. Oklahoma, 295 U.S. 394 (1935) (No Negroes called for jury service); Hale v. Kentucky, 303 U.S. 613 (1938) (No Negroes called for 30 years); Pierre v. Louisiana, 306 U.S. 354 (1939) (One Negro called within memory); Smith v. Texas, 311 U.S. 128 (1940) (Eighteen Negroes called in 7 years); Hill v. Texas, 316 U.S. 400 (1942) (No Negroes called for 16 years); Patton v. Mississippi, 332 U.S. 463 (1947) (Three Negroes called in 30 years); Cassell v. Texas, 339 U.S. 282 (1950) (Twenty-one Negroes served in 6 years); Hernandez v. Texas, 347 U.S. 475 (1954) (No Mexicans served for 25 years); Reece v. Georgia, 350 U.S. 85 (1955) (Six Negroes called in 18 years); Eubanks v. Louisiana, 356 U.S. 584 (1958) (One Negro served in 18 years); Arnold v. North Carolina, 376 U.S. 773 (1964) (One Negro served in 24 years). Recent decisions of this court are equally strict. U.S. ex rel Goldsby v. Harpole, 263 F. 2d 71, cert, den., 361 U.S. 838 (1959); U.S. ex rel Seals v. Wiman, 304 F. 2d 53, cert, den., 372 U.S. 924 (1963); Whitus v. Balkcom, 333 F. 2d 496, cert. den. 379 U.S. 931 (1964). Some state appellate courts in the deep South also have responded to the challenges of racial exclusion.52 Remedies for the Systematic Exclusion of Negroes from Jury Service. In almost every instance the burden of challenging 52 See A llen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964) w here the rig h t to challenge was extended to a w hite civil rights w orker. See also H arper v . M ississipp i,------M iss .------- 171 So.2d 129 (1965). 35 the systematic exclusion of Negroes from juries has fallen to the shoulders of criminal defendants. Neither trial courts on their own motion, appellate courts with super visory power, prosecuting attorneys, nor the legal arms of state and federal government have moved to guaran tee that the clear mandate of the constitution will be car ried out at the local level. Since the usual challenge of exclusion involves a single criminal case the system of exclusion continues.53 The law has been clear for 85 years but “. . . the prob lem of racial exclusion from jury service is relatively widespread and, in certain areas, deeply entrenched. The serious and continuing nature of the problem is revealed by the frequency of cases in which the issue of jury ex clusion is raised and by local situations which the facts in those cases disclosed; by the plain statements of judges and official observers; and by various field studies con ducted by the Commission’s staff.” 54 Other remedies are available. But the criminal sanc tions of 18 U.S.C. Sec. 243 have not been enforced. Sec tion 243 sanctions have been invoked by the Department of Justice one time in 90 years.55 A third course is an action under 42 U.S.C. Sec. 1983. Prior to this case Section 1983 has been invoked once. In Brown v. Rutter56 a class suit was brought by Negroes to enjoin the practice of excluding Negroes from jury 53 “in m any parts of the deep south, Negroes have trad itionally been and rem ain system atically excluded from juries.” “. . . most sou thern ju ries are still predom inantly or en tirely w hite.” Lester, Anthony, op. cit., p. 22. See also Nelson, Jack, op. cit., generally. 54 Justice, 1961 U.S. Comm, on Civil R ights Report, p. 90. 55 Charge to G rand Ju ry —Civil Rights Act, 30 Fed. Cas. 1002 (No. 18,259) (C.C.W.D. Va. 1878); E x parte Virginia, 100 U.S. 339 (1880). 56 139 F. Supp. 679 (D.C.W.D. Ky„ 1956). 36 service in the county. The District Court held that the plaintiffs were entitled to an injunction. On the assur ances of the defendants that the practice would cease, however, the Court withheld the injunction but retained jurisdiction over the matter in the event a showing were made that the practice was being perpetuated. The Section 1983 remedy was first suggested by Mr. Justice Jackson dissenting in Cassell v. Texas.57 “I sup pose there is no doubt,” he said, “and if there is, this Court can dispel it, that a citizen or class of citizens un lawfully excluded from jury service could maintain in a Federal Court an individual or a class action for an in junction or mandamus against the state officers respon sible . . . . “If the order were evaded or disobeyed, imprisonment for contempt could follow.” 58 A fourth avenue lies in an action against Federal Court jury officials (the Clerk and Jury Commissioner) under the provisions of 42 U.S.C. Sec. 1981, 1985, and 1988; 18 U.S.C. Sec. 243: 28 U.S.C. Sections 1331 and 1343, 1863 (c) and 2201; and 28 U.S.C. Sections 1651 and 1861-71.59 A fifth remedy may rest in Title III of the Civil Rights 57 3 39 U.S. 282 (1950). 58 Ibid.., pp. 303-4. 69 A single class action of this natu re has been filed and is p end ing in the U nited S tates D istrict C ourt fo r the Southern D istrict of Mississippi; Sam uel Bailey et al., v. Loryce B. W harton, C lerk, e t al. Civil Action No. 3674 (J) . Two class actions against sta te ju ry officials are pending: concerning G reene County, A labama, Johnnie Coleman et al v. M arlin Barton et al., U nited States D istrict C ourt for th e N orth ern D istrict of A labama, Civil Action No. 63-4-W; concerning Macon County, A labam a, W illiam P. M itchell e t al. v. Edgar Johnson, et al., U nited States D istrict C ourt for the Middle D istrict of A labama, Civil Action No. ------. There is also presen tly pending in the U nited States D istrict C ourt for the N orthern D istrict of Mississippi an action seeking to restra in the enforcem ent, operation and execution of the Mississippi ju ro r qualification statu tes, W illie Hazelwood et al., v. C. B. Aycock, Civil Action N o .------. 37 Act of 1964. Although courthouses themselves are cer tainly covered by the provisions of Title III the Depart ment of Justice apparently questions whether or not coverage extends to jury rooms, juror seating in court rooms, jury lists, rolls and boxes or wheels. In 1961 the U. S. Commission on Civil Rights found: “The practice of excluding Negroes from juries on account of their race still persists in a few states. The burden of combating such racial exclusion from juries now rests entirely on private persons — almost in variably defendants in criminal trials. “Only criminal remedies are available to the Federal Government to combat unconstitutional jury exclu sion. The Federal Government has successfully in voked a criminal statute only once, in the late 1870’s. “Civil actions instituted in the name of the United States would constitute a more effective method of preventing discriminatory exclusion from juries.” 60 The Commission then recommended “that Congress consider the advisability of empowering the Attorney General to bring civil proceedings to prevent the ex clusion of persons from jury service on account of race, color, or national origin.”01 Unless Title III is an answer to the Commission there has been no Congressional answer. Congress has recognized problems of Federal juror selection as has the Attorney General.62 In a letter to the Speaker of the House of Representatives, February 11, 1965, he stated, in part: “. . . there appears to be a serious need for the strengthening the method of jury selection 60 Justice, op. cit., pp. 111-2. Also see Rule 6 (b) (1) F. R. Cr. Proc. regarding challenging the a rray of grand jurors. 61 Ibid., p. 113. 62 P resen tly pending in this court are tw o F ederal ju ry selection challenges. See Jackson v. United States, No. 21,345 and Rabinow itz v. United States, No. 21,256. 38 in the Federal Courts. In recent years the Department has experienced difficulties in connection with the selec tion of jurors in certain cases.”63 The Attorney General noted the dismissal of indictments due to the failure of juries to be representative of a cross-section. He noted one list of jurors had been selected from a list of regis tered voters and women who volunteered. In another case 90% of the trial jurors came from lists of members of the P.T.A. The Attorney General’s answer to the problem — one concurred in by the Judicial Conference of the United States and the House of Representatives — is no answer at all. H.R. 5640, now pending in the Committee on the Judiciary of the Senate of the United States does not seek to standardize the selection techniques for Federal court juries, let alone those for state courts. It merely provides for one or more full-time jury commissioners, requires that the names of persons selected for jury duty be re tained for two years, and places responsibility for select ing sources of names on the chief judge of the District Court. In short, no change is made; this is especially true since many chief judges presently exercise that authority. The Negro Revolution and All-White Courts. Courts technically rid the nation of legally enforced segregation in public education and public life. But racial 63 Ju ry Commissions for U.S. D istrict Courts, R eport of th e Com m ittee on the Judiciary, No. 261, p. 3. This problem is not new to the D epartm ent. See (B ulletin) Criminal Division, Vol. 9, No. 14, pp. 1-2 (Ju ly 17, 1950); (B ulle tin ) Crim inal Division, Vol. 12, No. 9, p. 1 (June 8, 1953); U nited States A ttorneys Bulletin , Vol. 4, No. 1, p. 4 (Jan . 6, 1956). R eprin ted in Justice, U.S. Civil Rts. Comm. Rept. 1961 at pp. 251-252. Several com m unications regarding th e selection of ju ries and seek ing inform ation regarding selection techniques have also been m ailed to clerks and U nited States attorneys by the A dm inistrative Office U.S. Courts and the D epartm ent of Justice, respectively. 39 segregation dies hard — as hard in court as in schools. And litigation is by its nature slow, much slower than a march from Selma to Montgomery or a few weeks on the streets and sidewalks and in the jails of Birmingham. The Negro revolution in the South has been remark ably non-violent. Protected by the First, Fourteenth and Fifteenth Amendments of the Constitution of the United States, The Movement petitions peacefully, assembles and speaks to the conscience of the nation. It has been met by brutality — the brutality of those charged with the preservation of law and order. Thus the struggle in the South since the 1954 Brown64 decision has not been a struggle for law and order. It has been a struggle of law against order — new law against a harsh, entrenched old order. Criticism of the Department of Justice, the Executive and Congress has been coupled with criticism of the courts. There is avoidance of law by white intransigents, disillusionment with law by Negro activists. Negroes in the South have always feared state courts. Today they view them merely as places to avoid, or, if unavoidable, to appeal or remove cases from. Their fear of state legal processes is based upon experience. No government can repeal experience. It will die hard. Lawyers and judges know — or, at least hope — that the conflicts of men can be best settled in court. But it is their duty to make certain courts are open and fair — and above suspicion. In the Deep South, courts and the Bar65 have failed miserably but not irretrievably to per- 64 Brow n v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954). 66 See F rankel, M. E., The A labam a Law yer, 1954-1964; Has the Official Organ A trophied?, 64 Col. L.R. 1243 Nov. 1964). 40 form their duties under the Constitution and to make state courts instruments for peaceful social change rather than repression. Perhaps no man better knows the nature of freedom and, at the same time, the fabric of Jefferson County, Ala bama, than Mr. Justice Black. In Cox v. Louisiana66 he said: “Those who encourage minority groups to believe that the United States Constitution and federal laws give them a right to patrol and picket in the streets whenever they choose, in order to advance what they think to be a just and noble end, do no service to those minority groups, their cause or their country . . . the history of the past 25 years if it shows nothing else shows that his [appellant’s] group’s constitutional and statutory rights have to be protected by the courts, which must be kept free from intimidation and coercive pressures of any kind. Government un der law and as ordained by our Constitution is too precious, too sacred, to be jeopardized by subjecting the courts to intimidatory practices that have been fatal to individual liberty and minority rights wher ever and whenever such practices have been allowed to poison the streams of justice. I would be wholly unwilling to join in moving this country a single step in that direction.”67 Cox68 considered the application of a Louisiana stat ute that forbade picketing and parading to influence “. . . any judge, juror, witness, or court officer, in the discharge of his duty” . . . in or near a courthouse. The 66 67 68 u.s. u.s. u.s. 33 L. Week, 4105 (1965). 33 L. W eek 4110, 4113 (1965). 33 L. W eek 4105 (1965). 41 statute was patterned after a federal statute,69 and each Justice upheld its validity. The court split 5 to 4 on its application. The majority stated that there is a “. . . dan ger that some judges, jurors, and other court officials wil be consciously or unconsciously influenced by dem onstrations in or near their courtrooms both prior to as well as at the time of the trial. A State may also properly protect the judicial process from being misjudged in the minds of the public.”70 But the majority reversed the conviction. Mr. Justice Black noted that the demonstration under review was carried out: “. .. for the express purpose of influencing court house officials in the performance of their official duties . . . % % “This statute. . . was enacted to protect courts and court officials from the intimidation and dangers that inhere in huge gatherings at courthouse doors and jail doors to protest arrests and to influence court officials in performing their duties. * * * “The streets are not now and never have been the proper place to administer justice. Use of the streets for such purposes has always proved disastrous to in dividual liberty in the long run, whatever fleeting benefits may have appeared to have been achieved. And minority groups, I venture to suggest, are the ones who always have suffered and always will suf fer most when street multitudes are allowed to sub stitute their pressures for the less glamorous but «0 18 U.S.C. Sec. 1507. 70------u .S . -------, 33 L. W eek 4105, 4107 (1965). 42 more dependable and temperate processes of the law. Experience demonstrates that it is not a far step from what to many seems the earnest, honest, patriotic, kind-spirited multitude of today, to the fanatical, threatening lawless mob of tomorrow. And the crowds that press in the streets for noble goals today can be supplanted tomorrow by street mobs pressur ing the courts for precisely opposite ends.”71 As recently as June 7, 1965, Mr. Justice Black again dissenting72 noted: “Every person who has the slightest information about what is going on in this country can understand the importance of these issues. The summary disposi tion the Court makes of this case fails properly to enlighten . . . in this field of activities which encom passes some of the most burning, pressing, and im portant issues of our time.” Mr. Justice Black wanted made clear the extent to which streets and passages and entry and exits to public properties could be blocked in demonstrations. He felt that “Perhaps at no time in the Nation’s history has there been a greater need . . .”73 to clarify rights in this field. This is a day of demonstrations. Men and women march for peace in the North and West, for civil rights across the land, and to protest governmental activity as diverse as a House Committee on Un-American Activities hearing in Chicago and the cutting of beautiful trees in a New York suburb. Men and women, young and old alike, have sat-, stood-, lain-, knelt-, slept-, and taught-in. 71 ___u .S . -------, 33 L. W eek 4110, 4112-3 (1965). 72 Cameron v. Johnson ,------U .S .-------, 33 L. W eek 3395 (1965). 73 Ibid., p. 3397. 43 Perhaps out of their striking at the order — out of “dis order” in the non-legal sense of the word — gains have been made. To Negroes their right to a cup of coffee in a previously all-white Jackson, Mississippi, hotel was brewed in marches in the streets of Birmingham, the na tion’s other cities and then Washington. To Negroes the Civil Rights Act of 1964 was passed in the Birmingham jail as certainly as the Voting Rights Bill of 1965 when passed will have been written by marching men in Selma and Montgomery, Alabama. No lawyer in the field of civil liberties and rights has to my knowledge “encourage [d] minority groups to be lieve . . . [they have] a right to patrol and picket in the streets whenever they choose .. .”.74 The Negro revolution, although protected by the Con stitution, has not lately waited for legal advice and plan ning. Lawyers are called when arrests are made, in junctions issued, or walls of troopers erected. The march to equal protection of the law and the emancipation of a former slave people must be re-chan neled into the courts. But if the courts themselves stand as enemies, as all-white citadels of power, who can ex pect men who daily risk their lives to worry over dem onstrations at the courthouse or the words of a nearby lawyer or a far-away judge? White man’s justice comes more and more into focus in the eyes of the Negro American. With each unpunished murder, each beating by a sheriff, each judicially uttered racially derogatory remark, each criminal prosecution for harassment, each trial by all-white juries, the court- 74 u .S . a t -------, 33 L. W eek a t 4113 (1965). 44 house becomes less justice’s temple, more the Negroes’ target.75 This movement has lived in the words of Thoreau: “If the injustice is part of the necessary friction of the machine of government, let it go, let it go. Per chance it will wear smooth — certainly the machine will wear out. . . . if it is of such a nature that it requires you to be the agent of such an injustice to another, then, I say, break the law. Let your life be the counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn. “As for adopting the ways which the state has pro vided for remedying the evil, I know not of such ways. They take too much time, and a man’s life will be gone. * * * “It is not my business to be petitioning the Governor or the Legislature any more than it is theirs to pe tition me; and if they should not hear my petition, what should I do then? But in this case the state has provided no way. Its very Constitution is the evil.”76 In Alabama as in much of the South it is the courts themselves — the battleground to which we urge the civil rights movement — that have within them the very evil; all-white justice, Negro exclusion, Negro repression. 75 “The m an is w hite. He has m any guises: as policeman, as judge, as ren t collector—as au tho rity m ade tangible.” * * * “H arlem , fo r all its brashness, fo r all the ubiquitous rhy thm s of rock ’n roll, is afraid. And fo r good reason. The w hite has been the Man, and in m any cases he still is.” H arrington, Michael, op. cit., pp. 65-66. 76 T horeau, H. D., C ivil Disobedience, F lem ing H. Revel Co., W est- wood, N.J., 1964, pp. 28-9. 45 It is white juries and white justice the Negro strug gles against. Can he be long expected to heed the coun sels of the cautious? Or can demonstrations be expected soon on the steps of the courthouse, in the halls of justice, in the courtroom and then the jails? The Evidence Clearly Shows That The Jury Board Systematically Excluded The Names Of Negroes From Jury Rolls In Both The Birmingham And Bessemer Divisions. Plaintiffs Proved a Prima Facie Case. Evidence of systematic exclusion of Negroes from the jury assembly room in the Birmingham Division and from petit jury venires in the Bessemer Division is — in the absence of any explanation by the Jury Board — con clusive.77 In the Birmingham Division estimates of the number of Negroes present in the jury assembly room ranged from none to 12 out of panels of more than 100 persons. Resolving all reasonable doubts in favor of the Jury Board an average of 10 per cent or less of those present in the jury assembly room were Negroes. A lower per centage is supported by the Record. In the Bessemer Division, resolving all reasonable doubts in favor of the Jury Board, an average of 5 per cent or less of those on venires were Negroes. But there was some testimony indicating as many as 10 per cent of those appearing on venires were Negroes. The number of Negroes appearing on partial panels or petit juries in the Birmingham Division seems unim portant in light of peremptory challenges, exclusionary agreements by attorneys with the knowledge of the 77 See statem ent, pp. 9-14. 46 court, and the failure to call Negroes from the jury as sembly room to the courtroom. Of course, “all persons in active concert and participation with” the Jury Board (R. 11) can be enjoined by the District Court. Consequently the rarity of Negroes on partial panels in the Birmingham Division, on venires in the Bessemer Division, or on trial juries in either Division need not be relied upon by plaintiffs. Swain v. Alabama78 erects new barriers to the eradi cation of exclusionary practices in jury selection. Because of Swain no great reliance is placed on the absence of Negroes from actual service on petit juries. But that ab sence — and the absence of Negroes at every other stage of the juror selection process — is relied upon in invoking the rule of exclusion.79 As this court said in U.S. ex rel Seals v. Wiman, supra, at 67: “. . . very decided variations in proportions of Ne groes and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued furnish sufficient evidence of systematic exclusion of Negroes from jury service.” Under Swain when the token participation of Negroes on jury venires — before the exercise of peremptory chal lenges and before exclusionary agreements take effect — is greatly disparate from the percentage of Negroes eligi ble for jury service (a variance of more than 10 per centage points) a prima facie case is established. 78------ U .S .------- , 33 L. W eek 4231 (1965). 78 Norris v. A labama, 294 U .S. 587 (1935); H ernandez v. Texas, 347 U.S. 475 (1954); U.S. ex. rel. Goldsby v. Harpole, 263 F2d 71; U.S. ex. rel. Seals v. W iman, 304 F2d 53 (1962); W hitus v. Balkcom , 333 F2d 496 (1964). See also Cobb v. M ontgom ery L ibrary Board, 207 F. Supp. 880 (M.D. Ala., 1962); Cobb v. Balkcom, 339 F.2d 95 (5th Circ. 1984). 47 A 10% inclusion of Negroes in the Birmingham Divi sion (or for that matter all other inclusions that may be gleaned from the Record) falls far short of the 27% of the eligible population that is Negro. A 10% or less in clusion in the Bessemer Division falls shorter still for there 39% of the eligible population is Negro. The Swain 10 percent rule (33 L.W. at 4233) has no effect here ex cept, perhaps, to strengthen plaintiffs’ case. The court below seemed somewhat bewildered by the exclusion of Negroes in the Bessemer Division. Although it found .. that the Cut-Off [Bessemer Division] jury rolls are made up in the same manner as the rolls in Bir mingham,” (R. 31) the court asked, at one point: “I believe there has only been one instance on which there has been a Negro called on the panel in Bes semer. Can you account for that?” “No, sir,” the witness replied. “I can not.” (R. 292) And at the conclusion of the plaintiffs’ case the court again asked: “There is some question in my mind about the Bes semer Cut-off. I don’t understand why they don’t get the same proportion of jurors, colored jurors, that they do in Birmingham. “Do you have any evidence on this matter?” “Yes, Mr. Clayton I believe,” the defense attorney replied, “I would like to hear from him.” (R. 458) George W. Clayton, Vice Chairman of the Jury Board, then became the only witness called by the state. He twice testified that the same techniques were used in selecting names in the Birmingham and Bessemer Di visions (R. 459, 464-5). He was asked by his attorney: 48 “Do you have any explanation you can offer to the Court as to the reason why it appears that fewer Ne groes were called for service on the grand juries in the Bessemer Cut-off and are called on the jury venire in the Bessemer Cut-off than compares with the pop ulation ratio in the Bessemer Cut-off?” “I have served on the state grand jury many years ago myself,” he replied, “and usually when they get them, they get them out of the jury box.” (R. 462). Again the court tried: “Do you have any explanation, I don’t know, maybe the Court has something to do with the drawing of the grand juries.” (R. 465) Again to no avail. Again the court tried: “Do you have any explanation why there would be a discrepancy in the number of Negroes?” (R. 465-6) Again to no avail. Again, the court: “The chance of getting more Negroes on a petit jury is considerably enhanced over the grand jury?” “They have the same drawing when they organize a grand jury in this courthouse and the Bessemer court house,” Mr. Clayton responded. (R. 467) Again: “It could be in the service of process on the men?” “It could be,” Mr. Clayton responded. “I am not saying what it could be, I am just saying . . . ” and he was interrupted. (R. 467) 49 Again: “I am concerned with finding if it is the fault of the jury board. You are the only one before us at this time, and if there is a fault here .. At last an answer. “If I knowed any fault or anything we could do, I am ready, but I believe we have men in there and they are hard to get. A lot of them don’t want to serve on the jury.” (R. 467-8) A moment later the court asked: “Have you found it harder to find colored people than it is white people?” Mr. Clayton responded: “Some of them, they don’t seem like — seems like more don’t know — don’t much want to serve on the j u ry .. .”80 Finally the court asked: “Do more colored citizens ask to get off than white?” and got a type of affirmative answer. (R. 469-70). But, of course, Mr. Clayton doesn’t excuse jurors from service (R. 469) and the judge who does knew of no racial disparity in the excusing of jurors (R. 240-4). As a matter of fact it would be a crime for Mr. Clayton to ex cuse someone from jury service.81 Mr. Clayton finally testified that a higher percentage of Negroes than whites would be disqualified for jury service (R. 474). Of course, he did not testify as to why or as to the percentage of disparity for he did not know literacy rates (R. 464), nor did he or anyone else testify about crime rates, the number of householders, free-holders, honesty, intelli gence, sound judgment, character, integrity, habitual drunkeness, permanent disease or physical weakness of Negroes or whites.82 But he did know that more Negroes 80 Cf. V.S. ex. rel. Seals v. W iman, 304 F.2d 53, 65 (1962). 81 T itle 30, Sec. 48, 49, Code of A labam a 1940 (Recomp. 1958). 82 T itle 30, Sec. 21, Code of A labam a 1940 (Recomp. 1958). 50 were being called for jury duty since the filing of this suit. (R. 475). It was apparently on the basis of Mr. Clayton’s testi mony — which is barely comprehensible, giving it a most charitable interpretation — that the court felt the state had rebutted the plaintiffs’ prima facie case. A diligent search of the Record discloses no explana tion of the Negro juror to Negro population variation in the Bessemer Division. Nor was there any explanation of the variation in the Birmingham Division. About this the Court expressed no concern. The only way in which the Jury Board may be absolved from responsibility for the absence of Negroes is to presume that judges or clerks or the sheriff excluded Negroes at some stage of the drawing summoning or serving procedure. There is no evidence of this. And the criminal guilt of public officials should not be presumed.83 As this Court said in Harpole, supra, at 78: “We cannot assume that Negroes . . . had en masse, or in any substantial numbers, voluntarily abstained from registering as electors and, by such action, had rendered themselves ineligible for jury duty. If the registration officials freely and fairly registered quali fied Negroes as electors, that fact rested more in the knowledge of the state. The burden was on appellee, as the state’s representative, to refute the strong prima facie case developed by the appellant.” ss See 18 U.S.C. 243; also T itle 30, Sections 34-6, 48-9, 51, Code of A labam a 1940 (Recomp. 1958). See also Clarence C. W alter Civic League v. Board o f Public Instruction, 154 F2d 726 (5th Circ. 1946) cited by the court below. 51 The Laws of Probability Demonstrate the Likelihood of Exclusion.84 Grand juries in Jefferson County are empaneled four times a year.85 The testimony regarding Negro partici pation on grand juries is clear. Grand Juries are always composed of 18 men.86 In the Birmingham Division in 17 years, 1948 to 1964, inclusive, there were at least 68 separate random drawings of grand jurors. In the Bes semer Division during the same period there were at least 68 separate random drawings of grand jurors. There are no peremptory challenges of grand jurors, no ex clusionary agreements, no staying behind in the jury assembly room. They are drawn at random.87 Here the total number of names placed in jury boxes in the Birmingham Division was 43,108;88 in the Bes semer Division, 8,892.89 The ratio of Negroes to whites in the eligible popula tion in the Bessemer Division is 61 to 39;90 in the Bir mingham Division it is 73 to 27.91 The Jury Board testified that they sought ( “some times I lean over backwards trying to get as many as I can” (R. 295)) to include a cross-section of the popula tion on the jury rolls (R. 277, 284, 295, 311, 459, 462-3, 465-6, 470) and they “put them in the box. We have a 84 Com putations w ere supervised by John F. K raft, Inc., a national opinion research firm headquarte red in New York, N.Y. 85 Title 30, Sec. 72, Code of A labam a 1940 (Recomp. 1958). 86 T itle 30, Sec. 38, Code of A labam a 1940 (Recomp. 1958). 87 Idem 88 See S tatem ent, p. 13-4. 89 Idem 90 Idem 91 Idem 52 high percentage, we get a percentage in the box . . . but we know we have got them in the box like in this other part of the county” (R. 463). Taking the Jury Board at its word we assume that the cross-section of the names in the Bessemer Division box is truly a cross-section (39% Negro) and the cross-section in the Birmingham Division is truly a cross-section (27%) Negro.92 According to Messrs. Gallup and Rae:93 “The laws of probable error have long been known. These laws have been tested by a great variety of ex periments ranging from an analysis of height and weight data to throwing dice or tossing coins many thousands of times. They are laws which no govern ment can repeal,”94 The laws of probability have been widely used in many fields of study since the early speculations of Swiss mathematician, Jakob Bernoulli,. .. “demonstrate that a small number of cases chosen at random from among a very large group of the same kind of cases are almost 92 It- is, of course, know n th a t the num ber of nam es in each box declines a fte r each draw ing, declines over a period of tw o years un til the box is refilled, and the eligible population ratios of Negroes and w hites are based on 1960 U.S. census figures. These factors favor the Ju ry B oard since, a fte r each draw ing of a d isproportionately h igh num ber of nam es of w hite persons from the boxes the probability th a t the nam es of Negroes w ill be draw n increases. Also the ratio of Negro to to ta l population in Jefferson County has declined. A ccording to the 1940 U.S. census the to ta l Jefferson County population was 459,930 of w hom 179,150, (39%) w ere non-w hite. A ccording to th e 1950 census the to ta l Jefferson County population was 558,928 of w hom 208,459 (37%) w ere non-w hite. 93 Gallup, George and Rae, S. F., op. cit. 94 Ibid.., p. 69. Emphasis supplied. 53 certain to have the main characteristics of the whole group.”95 The laws of probability operate when the number of drawings is known, the number of names drawn is known, and the drawings are at random. This is exactly the case here. And there is no evidence that the judge who drew the names excused Negroes disproportionately or discriminated against or in favor of Negroes in the drawing, or excusing of persons whose names were drawn. Consequently it must be presumed that the 18 persons who served on each of four grand juries per year represent the racial composition of the total number of names in the box at the time of the drawing.96 In Bessemer in only one of the 68 drawings did the name of a Negro appear. In Birmingham in each drawing the name of one Negro appeared, sometimes the names of two Negroes appeared, sometimes three. (See statement, P-9) Bessemer Division probability computations based upon a ratio of 61 per cent white to 39 per cent Negro population in the box, 68 random drawings of names of grand jurors, 18 persons per drawing, fix the odds of drawing the name of one and only one Negro in those 17 years at less than one in a billion. In the Birmingham Division probability computations based upon a ratio of 73 per cent white to 27 per cent 95 G allup and Rae, op. tit., p. 57. The exam ple the authors use: “Im agine a wooden box filled w ith 1000 black and 1000 w hite m arbles, com pletely m ixed together.” They then provide a chart of the results of several random draw ings of black and w hite m arbles. “Thus, it m ay be seen, in the successive samples, there is a tendency for the proportions d raw n in the samples to cluster around the actual p ro portions of b lack and w hite m arbles in the box. If every m arble is given an equal chance to be draw n, the proportion of w hite o r the proportion of b lack in the sam ple tends to be the same as each in the to ta l.” (Ibid., p. 58). 96 T itle 30, Section 38, Code of A labam a 1940 (Recomp. 1958). 54 Negro population in the box, 68 random drawings of names of grand jurors, 18 persons per drawing, fixes the chance of drawing an average of two Negroes per grand jury in those 17 years at less than one in 20 million. CONCLUSION Concurring in Shepard v. Florida,97 Mr. Justice Jack- son said: “***I do not see, as a practical matter, how any Negro on the jury would have dared to cause a dis agreement or acquittal. The only chance these Ne groes had of acquittal would have been in the cour age and decency of some sturdy and forthright white person of sufficient standing to face and live down the odium among his white neighbors that such a vote, if required, would have brought. To me, the technical question of discrimination in the jury selection has only theoretical importance.”98 But Mr. Justice Jackson was probably wrong in 1950. He would certainly be wrong today. Two basic truths emerge from the recent history of the South. First, “sturdy and forthright white persons of sufficient stand ing . . . ” are too few. Those that will endure “the odium” are few indeed.99 Second, the Negro revolution has dem onstrated that Negroes will dare “to cause a disagree ment.” Tens of thousands have done so in the streets and jails of the South. More important than this the mere presence of a Negro often changes behavior, thought and word patterns. Perhaps white jurors—much like white men gathered in a restaurant tell Negro stories more 97 341 U .S. 50 (1951). 98 Ibid., p. 55. 99 Cf. U.S. ex. rel. Goldsby v . Harpole, op. cit. 55 softly or not at all when the Negro waiter appears—will think and act differently when Negroes serve on juries with them. Proper utilization of a survey system of jury selec tion will have far reaching effects. In Black Belt coun ties where the Negro population ranges upward to 80% jury lists will contain a high percentage of Negroes. White men riding shotgun on a lonely highway will think twice before shooting down innocent workers in the struggle for human rights. The Negro lawyer in the South may find his prac tice includes the personal injury cases that now find their way to the white lawyer on the other side of town. In deed, the racial political cavortings of white lawyers may become more subdued. A moderate newspaperman may be able to editorial ize on racial matters without fear of an all-white jury and a libel verdict in non-racial cases. The Negro workman may find that his broken leg is as valuable to an insurance company or a jury as the broken leg of the white man who works by his side. And most importantly the hundreds and thousands of Negro men and women who have entered guilty pleas rather than exercise a “grisly ‘Hobson’s choice’ ” may ex ercise their right to trial by jury. Negro neighborhood crime rates may decline for to Negro jurors the life and sanctity of the Negro neigh borhood will be important. Removal of civil rights cases from state courts will decline for, as state courts become fair tribunals, they will be used by Negro people. 56 The working of the Federal System will be enhanced for by strengthening state courts—by making them fair— the doctrine of Federalism is itself strengthened. Courts no less than state legislatures are an instrumentality of states rights’—or wrongs. The jury system is the bul wark of liberty. It has been weakened in a proportion that equals, almost exactly, the extent to which it has been perverted by the exclusion from it of racial and other groups. This court in the first case of its kind to reach an appellate tribunal has an opportunity to breathe new life into the jury system as an effective instrumen tality of a free people. The decision of the court below should be reversed. Instructions regarding the use of the survey system of jury selection should be given. An injunction should issue from the court below to require the fair administration of the Jefferson County jury system. Oscar W. Adams, Jr. 1630 4th Avenue North Birmingham, Alabama Melvin L. Wulf 156 Fifth Avenue New York, N. Y. Jack Greenberg Norman Amaker 10 Columbus Circle New York, N. Y. Respectfully submitted, Orzell Billingsley, Jr. Peter A. Hall J. Mason Davis Charles Morgan, Jr. 5 Forsyth Street, N.W. Atlanta, Georgia 30303 57 Certificate of Service This is to certify that I have served a copy of the foregoing Brief for Appellants upon the counsel of record for Appellees, by mailing copies to them at their office address, air mail, postage prepaid. This . . . . day of June, 1965. Attorney for Appellants. 58 APPENDIX A UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION O r z e l l B i l l i n g s l e y , Sr., C. H e r b e r t O l iv e r , J . S. P h i f e r , A b r a h a m W o o d s , J r ., f o r t h e m s e l v e s , j o i n t l y a n d s e v e r a l l y , a n d f o r a l l o t h e r s s i m i l a r l y s i t u a t e d , Plaintiffs, CIVIL ACTION vs. NO. 10136 G e o r g e W. C l a y t o n , as President of the Jury Board of Jefferson County, Alabama; M r s . F r e d B a t s o n , as Vice President of the Jury Board of Jefferson County, Ala bama; W a l t e r E. P a l m e r , as Associate Member of the Jury Board of Jefferson County, Alabama; J a m e s F . C h e a t w o o d , as Clerk of the Jury Board of Jefferson County, Alabama; and each of their successors in office. Defendants. OPINION AND ORDER (Filed June 7,1962) This matter is before the Court on application for preliminary injunction, following a hearing during which extensive testimony was taken. The jurisdiction of the Court is invoked under Title 28, U.S.C.A., § 1343(3). The suit is alleged to be author ized under Title 42, U.S.C.A. § § 1981 and 1983, and the Fifth and Fourteenth Amendments to the Constitution of the United States. Declaratory relief is sought un der Title 28, U.S.C.A. § 2201, 59 Plaintiffs are Negro citizens of Jefferson County, Alabama. Plaintiff, C. Herbert Oliver, is a resident of that part of the county known as the “Bessemer Cut- Off.” The other plaintiffs reside in the Birmingham di vision of the county. Defendants Clayton, Batson and Palmer are members of the Jury Board and defendant Cheatwood is Clerk of the Jury Board of Jefferson County. The action is filed on behalf of plaintiffs, as well as on behalf of all others similarly situated, pursuant to Rule 23(a) (3) of the Federal Rules of Civil Procedure. Plaintiff Billingsley now has a civil action pending in the Circuit Court of Jefferson County which is to be tried when reached in proper order. The plaintiffs charge that Negro citizens possessing all of the qualifications of jurors and none of the dis qualifications have been and are arbitrarily, intention ally, and systematically excluded from jury service in Jefferson County, Alabama, and discriminated against in the organization of juries in said county solely on ac count of their race or color; that since Reconstruction days and at the present time the jury rolls of said county contain less than five per cent of the names of the total number of Negro males eligible for jury duty, and that the method of the selection of names of Negroes to be placed on the jury rolls and in the jury boxes of said county by the defendant Board members is highly ir regular, arbitrary and contrary to the method prescribed by the Constitution and the laws of the State of Ala bama and of the United States of America. Plaintiffs pray that defendants be enjoined from fail ing or refusing to place the names of all qualified per sons on the jury rolls and in the jury boxes in said county 60 solely on account of their race or color, and from utiliz ing any names presently contained in the jury boxes or on the jury rolls for jury duty until such times as the names of all Negroes qualified for jury duty shall have been placed in the boxes and on the rolls. The evidence in this case reveals that in making up the jury rolls the Clerk of the Jury Board and his as sistants go through the telephone directories and tax records and make a personal survey of each precinct in the county at least once a year. In addition to the per sonal survey, the Clerk has yearly for many years mailed letters to some 80 to 100 or more prominent Negro citi zens, including ministers, requesting that they submit the names of individuals qualified for jury service. Re plies have been received from only about one out of nine or ten such requests for information. A check is made of the name submitted and those qualified are placed on the jury rolls and ultimately in the jury box. It appears that these letter requests are made because of the difficulty in obtaining information from prospec tive Negro jurors. The evidence reveals that the Clerk and his assistants have had difficulty in obtaining in formation from Negroes of the lower economic level and, as above indicated, prominent Negro citizens have been indifferent in respect to furnishing names of prospec tive jurors. In making the survey not every house is visited but if the occupant is not at home -where a visit is made a card is left by which the occupant may furnish informa tion as to his availability for jury service. Only five per cent of such cards have been returned from the area oc cupied by Negroes of the lower economic level, as con trasted to fifty per cent from whites and Negroes of the higher economic level. In short, the evidence reveals 61 that the Board has made extra efforts to procure infor mation with respect to prospective Negro jurors over and above that exerted to procure like information from prospective white jurors. The Board has not received the same cooperation from colored citizens as it has from white citizens, and the rank and file of the colored citi zens do not appear to be as interested in jury service as is the case with white citizens. The evidence reveals that in the course of the years the Clerk has been connected with the Board thousands of white persons have called or come into the office to find out why they had not been called for jury duty. During the same period, very few Negroes had called, and only two came by the of fice for like purpose. The records of the Jury Board do not reveal the racial identity of a juror. Plaintiffs content that there should be no such identification. The evidence wholly fails to reveal the percentage of Negro voters on the roll, but, judging from the number called for service, the number is substantial. The Circuit Court in the Birmingham division is in continuous session for the trial of jury cases, except dur ing the summer vacation and during brief periods of time in the spring and fall for the trial of non jury cases. The evidence reveals that, with rare exceptions, Negro jurors appear for duty on every panel, the number rang ing from three or four to as many as twenty. A number of Negro witnesses who testified stated they had been called on one or more occasions for jury duty. Others testified they had not been called, but, as above indi cated, many whites were not called. Some of those who are called for jury duty are used in the trial of cases. The evidence discloses that at times lawyers in civil actions, upon ascertaining that certain Negroes were on 62 the panel, would agree, that as respects to the particular case up for trial, to avoid having to strike him, if a Negro juror’s name was drawn, he would not be brought from the jury assembly room. One of the Circuit Judges testified that this practice had been abandoned several years ago in his division of the court. The evidence does not indicate that the practice has been indulged in where there was a Negro lawyer or Negro party involved. The Court does not commend this practice, if present ly indulged in; nevertheless, these defendants are not to be condemned for something for which they are not re sponsible. Such matters should be addressed to the Court. Few Negroes appear to have been called for jury duty in the Bessemer Cut-Off. The evidence reveals that exactly the same standards were applied by the Jury Board in the selection of prospective jurors in the Bes semer Cut-Off as were applied in the Birmingham divi sion. Taking such evidence at face value, the real cause of complaint would appear to lie with others than the Board. There was a dearth of evidence with respect to the matter in the Bessemer Cut-Off as compared to that respecting the Birmingham division. Perhaps the mat ter will be clarified upon the final hearing of this case. The general provisions with respect to juries and the jury commissions of the several counties of the State are found in Title 30, § § 1 to 100, of the Code of Ala bama, 1940. Except for certain general provisions, the matter is largely regulated in Jefferson County by Sec tions 196 to 228 of Title 62, Code of Alabama, 1940. In Jefferson County the body charged with the selection of jurors is called a “Jury Board” whereas, in other counties it is called a “Jury Commission.” In Jefferson County, the law requires (§ 199) the Board to obtain the names of male citizens between the ages of 21 63 and 65. In other areas of the State a person over 65 is not required to serve on a jury (§ 21, Title 30), but is not mandatorily excluded. By virtue of Section 200 of Title 62, the Jury Board has “performed the duties required of it by law when they shall have prepared a jury roll . . . in compliance with the law consisting of the names of qualified jurors in number equal to at least 6 per cent of the population of the county in accordance with the last Federal census. . . .” When the roll is made up and the box is filled, the box is then delivered into the cus tody of the presiding judge of the Circuit Court. Under the general provisions of the law, the box is kept in the office of the Probate Judge and the president of the Jury Commission keeps one of the keys to the same (§20, Ti tle 30). In Jefferson County, the jury box is refilled ev ery two years, and the obtaining of information and the selection of jurors for the rolls is a continuous process, with a continuous purging of the same. More than 20 categories of individuals are exempt from jury duty, based upon the nature of the employment of the indi viduals involved ( §3 , Title 30). The qualifications of jurors are prescribed by Section 21 of Title 30. By virtue of Section 201 of Title 62, the Jury Board is charged with requiring the Clerk of the Board “to scan the registration lists, the lists returned to the Tax As sessor, any city directory, telephone directory, and any and every other source of information from which he may obtain information, and to visit every precinct at least once a year. . . . ” The Clerk stated that he did not regularly use the registration list, since a person could be a qualified juror without being a qualified voter, and could be a qualified voter and not a quali fied juror; that the registration list contained many in dividuals over 65 years of age and individuals incapaci tated for jury service. The voting list indicates those 64 who are colored, but do not give addresses, but only the precinct and the address of the box where the party is to vote. The 1960 Census reveals that there are 120,205 white males over 21 years of age and 51,961 non white males residing in Jefferson County; that between the ages of 21 and 65 there are 106,409 white males and 44,864 non white males. Roughly, the percentage is 71 white and 29 nonwhite. The jury rolls consist of 8,892 names in the Bessemer Cut-Off, 43,837 names in the Birmingham di vision. The Supreme Court, in Akins v. Texas, 325 U.S. 398, 403-4 (1945), has stated that “fairness in selection has never been held to require proportional representation of races upon a jury.” In that case it was further stated that “the mere fact of inequality in the number (of a racial group) selected does not in itself show discrimination. A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimina tion.” The law does not require that racial groups be recog nized in the composition of juries; however, their con tinual exclusion or mere symbolic representation will constitute discrimination. In Cassell v. Texas, 339 U.S. 282 (286-287), the Court stated: “Jurymen should be selected as individuals, on the basis of individual qualifications, and not as mem bers of a race. “We have recently written why proportional repre sentation of races on a jury is not a constitutional 65 requisite.1 Suceintly stated, our reason was that the Constitution requires only a fair jury selected with out regard to race. Obviously the number of races and nationalities appearing in the ancestry of our cit izens would make it impossible to meet a require ment of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color,2 proportional limitation is not permissible. That conclusion is com pelled by the United States Code. Title 18, §243,3 based on §4 of the Civil Rights Act of 1875. While the language of the section directs attention to the right to serve as a juror, its command has long been recog nized also to assure rights to an accused. Prohibiting racial disqualification of Negroes for jury service, this congressional enactment under the Fourteenth Amendment, § 5,4 has been consistently sustained and its violation held to deny a proper trial to a Negro accused.5 Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor ex clusion because of race.” 1 A kin s v. Texas, S upra (325 U.S. 398). 2 Neal v. Delaware, 103, U.S. 370; A kin s v. Texas, supra, 404. 3 “No citizen possessing all o ther qualifications w hich are or may be prescribed by law shall be disqualified for service as grand or p e tit ju ro r in any court of the United States, or of any S tate on ac count of race, color, or previous condition of servitude; and whoever, being an officer or o ther person charged w ith any duty in the selec tion or sum m oning of jurors, excludes or fails to summ on any citizen fo r such cause, shall be fined not m ore than $5,000.” 4 “Section 5. The Congress shall have pow er to enforce, by ap propria te legislation, the provisions of this article.” 5 See Neal v . Delaware, supra, 385, 386; Hill v. Texas, supra, 404 (316 U.S. 400); Fay v. N ew Y o rk supra, 284 (332 U.S. 261). 66 As observed, the Jury Board does not have posses sion of the jury box. The possession of the box is with the presiding judge of the Cut-Off and the presiding judge of the Birmingham division, and as further noted, the evidence reveals that the Cut-Off jury rolls are made up in the same manner as the rolls in Birmingham. Of ficers are presumed to act in good faith in discharging their duties. Bad faith is not to be imputed. Clarence C. Walker Civic League et al v. Board of Public In struction, 5 Cir., 154 F. 2d 726. From the evidence in this case, no reasonably exact comparison can be made between the white and Negro citizens as to the percentage of each race which is eligi ble for jury service which might tend to indicate dis crimination against eligible Negroes. On the evidence and in the light of the authorities referred to, the Court is of the opinion, acting in pur suance of a sound discretion, that this is not a case for the granting of a temporary injunction. It is, therefore, ORDERED, ADJUDGED and DE CREED by the Court, without prejudice to any final de cree to be entered herein, that the petition for tempo rary injunction be and the same is hereby denied, and that the motion to dismiss be and the same is hereby continued pending a further hearing of this action on the merits. Done and Ordered, this the 6 day of June, 1962. H. H. GROOMS DISTRICT JUDGE ORDER ON PRE-TRIAL HEARING (Number and Title Omitted) (Filed July 20,1964) This cause coming on to be heard on a regular pre- 67 trial hearing, and all parties being present in person or by counsel, the following action was thereupon taken: 1. The following pleadings and amendments were al lowed: Complaint and answer to be filed. 2. It was agreed by all of the parties that the follow ing are all of the issues in controversy in this cause: This is an action by the plaintiffs and those simi larly situated charging discrimination in the filling of the jury box and in the making up of the jury roll in Jefferson County, Alabama, both in Birmingham and in the Bessemer Cut-Off, all as more fully appears in the complaint filed herein. The defendants’ answer will be a general denial ex cept as otherwise admitted pursuant to Rule 8(b). The testimony which was taken on the hearing for a temporary injunction will be used in lieu of the retak ing of evidence contained in said transcript, and the Court will hear only additional testimony not covered by the transcript. It is therefore ORDERED by the Court that all of the above-named allowances and agreements be and the same are hereby binding upon all parties in the above- styled cause, unless this order be hereafter modified by order of the Court. Done this 20th day of July 1964. H. H. GROOMS UNITED STATES DISTRICT JUDGE 68 ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW (Number and Title Omitted) (Filed December 2,1964) On November 2, 1964, the above styled action came on for final hearing. It was stipulated that the evidence taken on the hearing for a temporary injunction be con sidered by the Court on this final hearing without any retaking of the same. Additional evidence was heard. The Court finds from the evidence: (1) That five persons are engaged in making surveys of white communities and two in Negro communities in Jefferson County. The Clerk of the Jury Commission and his assistant make the surveys in the Negro com munities. (2) That there are in the Bessemer Cut-Off, about which the chief complaint is here made, 29,900 males over twenty-one and under sixty-five years of age and that of this number 18,313, or approximately 62 per cent, are white and 11,587, or approximately 38 per cent, are non-white. The breakdown between Negroes and oth er non-whites is not disclosed by the evidence. (3) The percentage of non-whites eligible in relation to the whites eligible under Title 30, Section 21, of the Alabama Code is not disclosed, nor is the percentage of the non-whites claiming exemptions under Title 30, Sec tion 3, in relation to whites claiming exemptions shown. The number of non-whites actually “served” with sum monses for jury duty in relation to whites “served” is likewise not shown by the evidence. (4) Negroes appear regularly for jury service and the number is never less than four. There were five on the venire during the week of this hearing, and there 69 have been occasions when there were eight or nine on the venire, which averages about forty-eight men. (5) Negroes seldom sit on the trial of cases or serve on grand juries in the Bessemer Cut-Off. (6) In the organization of the jury week-by-week Negro jurors are assigned to jury 4. Once the jury box has been filled possession is sur rendered to the presiding judge of the court. These de fendants have nothing whatever to do with the sum moning of jurors for duty, drawing their names from the box, excusing them from service after they have been summoned, assigning them to numbered juries, or selecting those who shall serve on the grand jury or on the trial juries. The number of peremptory challenges in both civil and criminal cases is fixed by statute. The exercise of such peremptory challenges rests exclusively with the parties. Any disparity between Negro and white jurors re sulting from the summoning, drawing, excusing, assign ing or selecting of jurors cannot be attributed to these defendants. The court does not find evidence even in the pres ence of some disparity in numbers of those actually serv ing which is sufficient to establish discrimination against eligible Negroes in the formulation of the jury roll and in the filling of the jury box. It hardly need be said that the Court cannot grant relief against parties not before it or grant relief in areas over which these defendants have no jurisdiction or right to intervene, and their actions should not be con trolled by injunction when the right to redress appears to lie elsewhere. 70 For its further Findings of Fact and Conclusions of Law the Court here adopts the opinion filed in this cause on June 7, 1962, and the findings of fact and con clusions of law stated therein. Judgment will be entered in accordance with the foregoing. Done and Ordered, this the 2nd day of December, 1964. H. H. Grooms United States District Judge 71 APPENDIX B STATUTES RELATING TO THE OPERATION OF THE JURY SYSTEM IN JEFFERSON COUNTY, ALABAMA From Title 30, Code of Alabama 1940 (Recomp. 1958) §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 Au gust 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 nu merical order and the jury commission shall cause to be written on the roll opposite every name placed there on 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 prepared plain white cards all of the same size and texture and shall have written or printed on the cards the name, occupa tion, place of residence and place of business of the per son whose name has been placed on the jury roll; writ ing or printing but one person’s name, occupation, place of residence and of business on each card. These cards shall be placed in a substantial 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 72 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 anyone 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 rec ord having jurisdiction. (1939, p. 86; 1945, p. 496, appvd. July 7,1945.) §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 intelligent men and are esteemed in the community for their in tegrity, good character and sound judgment; but no per son 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 dis charge 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 he is willing to do so. (1939, p. 86; 1943, p. 309, appvd. July 1,1943.) §24. Duty of commission to fill jury roll; procedure; etc. — The jury commission is charged with the duty 73 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 commis sion 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 per sons of the same or similar name shall also be entered as well as his true name. The jury commission shall re quire the clerk of the commission to scan the registra tion lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every oth er source of information from which he may obtain in formation, 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 chapter. In counties having a population of more than one hundred and eighteen thousand and less than three hundred thou sand, according to the last or any subsequent federal census, the clerk of the jury commission shall be al lowed an amount not to exceed fifty dollars per calen dar year to defray his expenses in the visiting 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. (1939, p. 86.) §25. Separate rolls for courts in territorial subdi visions. — Whenever a court requiring grand and petit juries, or petit juries, is established for and held in a territorial subdivision of the county, the jury commis sion shall make and keep a separate roll and make a separate box for that court and territorial subdivision, on which roll and in which box only the names of jurors 74 residing in that territory shall be placed, which box shall be kept by the clerk of said court and the key thereof by the judge of said court, and all jurors for that court shall be drawn by the judge of said court as provided in this chapter from the separate jury box provided under this section, and shall be summoned as provided by law summoning jurors otherwise drawn. The names of jurors whose names are required to be placed on the roll and in the box in this section provided for, shall not be placed on any other roll nor in any other box nor shall any such person be authorized or required to serve as a juror in any court outside of said terri torial subdivision. If there is more than one court re quiring grand and petit juries, or petit juries estab lished for and held in such territorial subdivision of the county, all of such courts shall procure their juries from the box in this section provided for, and this section is intended to apply to any division of a court that is held in such territorial subdivision, including the probate court. It is not the object or effect of this section to re peal or affect any local law. (1939, p. 86.) §30. (8616) (7248) Drawing grand and petit juries from jurybox. — 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 session 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 re turned to the jury box, and there shall be no selection of names, and must seal up the names thus drawn, and 75 retain possession 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 ap pear and in what court they shall serve, and entering opposite every name the occupation of the person, his place of business, and of residence, and issue a venire containing said names and information to the sheriff who shall forthwith summon the persons named thereon to appear and serve as jurors. (1909, p. 305.) §33. (8619) Method of summoning jurors; returns — The sheriff shall execute every order to summon jurors, except as otherwise provided herein, by giv ing personal notice to every such person, or by leav ing a written notice at the place of his residence with some member of his family, or some person residing in the same house, at least two days before the day ap pointed for the service of the juror in court, which order must be returned to the clerk of the court when it is sued with the proper return thereon showing the man ner of service, by the sheriff, on or before the day appointed for the appearance of the juror. (1909, p. 305.) §34. (5060) (7468) (5101) (3924) (4121) (3565) (25) Packing jury — Any sheriff or other officer having a discretion in summoning jurors, who summons any per son with intent to produce a result favorable to any party having a cause in the court in which such person is summoned, must, on conviction, be imprisoned in the penitentiary for not less than two nor more than five years. 76 §35. (5061) (7469) (5102) (3925) (4123) (3570) (29) Connivance of sheriff.—Any sheriff who connives at the commission of the offense prohibited by the preced ing section, by any constable, bailiff, or deputy sheriff, must, on conviction, be imprisoned in the penitentiary for not less than two nor more than five years. §36. (8620) Sheriff failing to summon guilty of con tempt. — If the sheriff or any deputy shall negligently fail to summon any person to serve as a juror whom he is commanded to summon, he shall be held and deemed guilty of a contempt of court, and shall be fined not more than one hundred dollars in every case where the person is not so served, and he may also be imprisoned in the county jail for not more than five days. (1909, p. 305.) §37. (8621) Failure to summon; mistake of name not ground for quashing. — The return of any such person as “not found” shall be prima facie evidence of negli gence on the part of the sheriff, or deputy making the return and he shall be punished by the court unless the court is reasonably satisfied from evidence pro duced that he was not negligent. If the sheriff fails to summon any jurors drawn, or any person summoned fails or refuses to attend the trial, or there is any mis take in the name of any person drawn, or summoned, none or all of these grounds shall be sufficient to quash the venire, or continue the cause. (1909, p. 305.) §38. (8622) Hearing of excuses; empaneling and or ganizing grand and petit juries. — The court shall re quire all persons named in the venire to be called, and shall then hear all excuses and claims of exemptions and qualifications, 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 77 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 em paneled and sworn as the grand jury for the sessions of the court, provided that only one grand jury is au thorized 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, un less discharged sooner by the court, and may be re quired to serve till any case on trial is determined. 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 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 subsequent weeks, as will in the discretion of such judge or judges, be sufficient for the week for which same are drawn. (1919, p. 1039.) §74. (8689) (7307) (5046) Defaulting juror punished 78 for contempt; proceedings. — If any person summoned as a grand or petit juror shall fail to obey such sum mons without good excuse, to be determined by the court, he shall be deemed guilty of a contempt of court; and if no sufficient excuse be rendered for him at the time of his default, a rule shall issue to him to show cause why he shall not be adjudged guilty of such con tempt and punished accordingly; and if he shall fail at the next session after the service of such notice to ren der such excuse, he shall be fined by the court not more than one hundred dollars, and may be imprisoned in the county jail for not more than ten days. In courts hold ing sessions longer than thirty days the rule shall be made returnable twenty days after it issues, and the person in default shall have ten days after service in which to appear and render his excuse. §48. (4889) Unlawfully placing in or withdrawing names from jury box; penalty. — Any person who shall unlawfully place in or withdraw from the jury box, any name or names of persons, or destroy, conceal or re move such jury box, or place on or erase from the jury roll, the name of any person, or destroy, mutilate, con ceal or remove such jury roll, shall be guilty of a felony, and upon conviction, shall be sentenced to the peniten tiary, or to hard labor for the county for not less than six months, nor more than two years, to be fixed by the court. (1909, p. 305.) §49. (5070) (7478) (5098) (3921) Willful neglect of duty by jury commissioner or officer. — Any jury com missioner or other officer who willfully or negligently fails to discharge any duty required of him by law in the drawing or selecting of a juror or jury, or who draws or selects a juror or jury in any manner or order other than that prescribed by law, must, on conviction, 79 be fined not less than fifty nor more than one thousand dollars. §50. (5071) (7479) (5099) (3922) Corruptly influ encing jury commissioner or officer.—Any person who at tempts, otherwise than by bribery, to influence any jury commissioner, or any other officer charged with the execution of any duty concerning the selecting, draw ing, summoning, impaneling, or organizing of jurors or juries, must, on conviction, be fined not more than one thousand dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than twelve months. §51. (5072) (7480) (5100) (3923) (4766) (4093) (543) Drawing jury unfairly; penalty.—Any person who does an act calculated to affect the fair drawing of a jury, and with intent to affect the same, must, on conviction, be fined not less than two hundred, nor more than one thousand dollars, and may also be imprisoned in the county jail for not more than six months; and if such person is a judge of probate, sheriff, or clerk of the cir cuit court, or jury commissioner, or a member of a board of revenue, or a county commissioner, his office is thereby vacated, and must be filled as in other cases of vacancy, on such conviction being certified to the ap pointing power by the presiding judge or the clerk of the court in which it is had. §72. (8665) 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 complet ed their labors, in its discretion the court may permit them to take a recess subject to the call of the judge of 80 the circuit court, or chief justice of the supreme court, and may be reassembled at any place where the cir cuit court of the county is to be held. In all counties hav ing over fifty thousand population, there shall be em paneled not less than four grand juries in every year. (1915, p. 809.) From Title 62, Code of Alabama 1940 (recomp. 1958) §199. Duty to procure all names. — The jury board shall obtain as nearly as practicable the name of every male citizen over the age of twenty-one and under the age of sixty-five years together with their occupation and place of residence and place of business. (1931, p. 455.) §200. Where board meets; make roll, etc. — The jury board shall meet in the court house of the county and make in a well bound book a roll, carrying so far as is practicable, the name of every male citizen living in the county who possesses the qualifications herein pre scribed and who is not exempted by law from serving on juries. The roll shall be arranged alphabetically and by precincts in their numerical order and the jury roll, to take the testimony of witnesses, to require the production of any books, papers, or documents and gen erally to do and perform whatever acts necessary to es tablish to their satisfaction that the said jury roll con forms to all legal requirements. The jury board shall have performed the duties required of it by law when they shall have prepared a jury roll otherwise in com pliance with law consisting of the names of qualified jurors in number equal to at least six per cent of the population of the county in accordance with the last fed eral census. (1931, p. 455.) §201. Who on jury roll; etc. — The jury board is 81 charged with the duty of seeing that the name of ev ery person possessing the qualifications prescribed here in to serve as a juror and not exempted by law from jury duty, is placed on the jury roll and in the jury box and they may summon and cause to attend before them any person within the county and examine him on oath touching such name, residence, occupation and qualifications of any person residing in the county. The jury board must not allow initials only to be used for the 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 person of the same or similar name shall also be entered as well as his true name. The jury board shall require the clerk of the board to scan the registration list, the lists returned to the tax assessor, any city direc tory, telephone directory 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 en able the jury board to properly perform the duties re quired of it by law. (1931, p. 455.) §202. When refill box. — Whenever it shall appear to the judge of the circuit court or court of like jurisdic tion that the jury box is so nearly exhausted as to re quire refilling, he shall notify the jury board and the said board shall thereupon proceed to refill the box as herein provided. (1931, p. 455.) §228. Excuses of jurors. — Any person summoned for jury duty who is excused from serving as a juror during the period of time for which he has been sum moned to serve, may in the discretion of the judge ex cusing him and by his written order, be required to serve during some subsequent specified week of court. 82 If at the time of the organization of juries, it appears that a greater number of persons are available for jury- duty than the needs of the court require, the court may by lot excuse such number of jurors as are not needed, and may, in its discretion and by written order require such excused persons to serve during some specified sub sequent week of court. No juror who is excused pur suant to the provisions of this section shall be entitled to his mileage fee, and per diem fee for the day on which he originally appears and is excused; and for his services during the subsequent week in which he is re quired to serve he shall receive the same fees as if he had originally been summoned to serve during that week. The card bearing the name of an excused juror who has been required to serve during such subsequent week shall not be returned to the jury box, but shall be placed by the clerk with the cards bearing the names of persons drawn and summoned for such subsequent week, and thereafter dealt with the same as though such excused juror had been originally summoned for such subsequent week, except that no additional sum mons need be issued to such excused juror. (1936, Ex. Sess., p. 6.) 83 APPENDIX C The Liuzzo Case Chance for a Conviction in Civil Rights Slaying Is Slim 5/4/65 By N e i l A. M a x w e l l HAYNEVILLE, Ala. — The facts in the case seem simple. The aging Ford pulled alongside Mrs. Viola Liuzzo’s white 1963 Oldsmobile as it sped along a dark, lonely section of U.S. 80 and a barrage of bullets cut her dead. A witness in her car will testify to that. The next morning the FBI arrested four Ku Klux Klansmen and President Johnson went on TV to name them and denounce the acts of which they were accused. He didn’t say they were guilty, but most listeners got the idea. Since then, three of the accused have been twice in dicted — first by a Federal grand jury for depriving Mrs. Liuzzo of her civil rights, then here at the seat of Lowndes County on charges of murder. The fourth man named by President Johnson was not charged, for it de veloped that he was an FBI informer, eye-witness to the crime. Civil rights leaders say the evidence against the three defendants must have been strong, because the grand jury that indicted them for murder was all-white and civil rights crimes are looked on with a great deal of tolerance in these parts. Yesterday, in the musty, high-ceilinged courtroom of the spacious white courthouse here, the first of the three defendants went on trial. What are the chances that he or the two others implicated in the murder will 84 be convicted? Using the history of civil rights slayings as a guide, they are slim indeed. Moreover, there are in the Liuzzo case added pitfalls that convince many civil rights experts it is highly unlikely any of the accused will spend much time behind bars. The President’s Statement First, consider the elements peculiar to the Liuzzo case. Of most striking significance is the President’s bla tant statement on television; it is expected to provide the defense with excellent fodder for contending the Klansmen can’t get an impartial trial in Lowndes Coun ty — or anywhere else, for that matter. “There are going to be four defendants,” declares a Birmingham attorney who is following the cases, “the three Klansmen and President Johnson.” If a guilty ver dict should be returned, he explains, the defense can claim in appeal that the matter was pre-judged by the President. “If these cases go to the Supreme Court, part of the ruling will have to be on what the President did.” Just as damaging, observers insist, is the presence of the FBI informer in the car when the killing occurred. In many crimes, in many places, such a circumstance might clinch a guilty verdict — but not in a civil rights slaying in the Deep South in 1965. The fact that the in former was there, one attorney speculates, opens the door for the defense to paint in jurors’ minds a picture of entrapment of the three Klansmen, with Mrs. Liuzzo being offered as a sacrifice to make a case. Even if that isn’t done, the lawyer continues, “the testimony of anyone connected with the Federal Gov ernment hasn’t been worth a hoot in the South in the 85 past. After the defense shows this witness to be a stool pigeon as well, I don’t imagine his testimony will car ry much weight in Lowndes County.” There is also the possibility that the three defendants will claim that the informer, who wasn’t charged with the crime, was the one who actually did it, the lawyer adds. Composition of Jury Also working against conviction is the fact that the jurors, as selected yesterday, all are white and presuma bly strong segregationists, as are nearly all of the 2,000 whites who live along with the 12,000 Negroes in Lowndes County. There was nothing legally that says the jury had to be all white, but a Negro has never served on a jury hearing a civil rights slaying case. Alabama law calls for a jury roster to list the names of “all male citizens of the county who are generally re puted to be honest and intelligent men and are esteemed in the community.” In the box containing 100 names from which a jury was chosen for the first trial, there was the name of one Negro, but he was excused at his own request on grounds of health. The attitude toward the crime of many white citizens of Hayneville also argues against a conviction. The merit of their reasoning aside, many residents here abouts are convinced that MrSLiuzzo, an “outside agi tator,” got what she deserved. Whatever weight the various factors in the Liuzzo case may bring to bear, the outcome of other civil rights slayings suggests it would be difficult indeed for the state to get a conviction on a lesser charge, let alone on a murder charge. Since the civil rights movement began its present 86 phase in 1960 with lunch-counter sit-ins, 24 persons have been slain for reasons directly related to integration ac tivities, according to records at the Southern Regional Council, an Atlanta-based human rights organization. Up to the death of Mrs. Liuzzo, here is how these cases had been resolved: No arrests ............................................................. 12 Arrests but no t r i a l ............................................. 6 Acquittal .......................................................... . . 1 Hung j u r y ............................................................ 1 Guilty of m u rd e r ................................................. 0 Guilty of manslaughter ..................................... 3 The closest to a murder conviction that any of these slayings produced was the case of Byron de la Beck with, a Mississippian who was charged with the death of Medgar Evers, an official of the NAACP. Beckwith had two trials, both of which ended in hung juries. In the three cases that results in a finding of guilt, one involved the death of a white man in which three Negroes were sent to prison; a second involved the death of a Negro in which two white youths were found guilty but not sent to prison; in the third, a white man re ceived a sentence of 10 years. A brief review of the 24 slayings follows: 1965, THREE DEATHS MRS. VIOLA LIUZZO — The Detroit woman went to Selma to help in the march on Montgomery. She was killed the day the march ended as she drove through Lowndes County on her way to Montgomery to pick up a second load of marchers and ferry them back to Selma. THE REV. JAMES REEB — The Boston minister was beaten on a Selma street and died two days later. 87 Four Selma whites were arrested and three have been indicted on murder charges. They will come up for trial sometime later this year. JIMMIE LEE JACKSON — A Negro youth, he was killed in a voter demonstration at Marion, Ala. Officials said later that a state trooper did it. No arrest was made. 1964, SEVEN DEATHS JAMES E. CHANEY, ANDREW GOODMAN, MI CHAEL H. SCHWERNER — The three civil rights workers were slain shortly after being released from jail in Philadelphia, Miss. Later 18 whites, including the sheriff and his chief deputy, were arrested on Federal civil rights charges which later were thrown out. No prosecution. LEMUEL PENN — The Washington, D. C., edu cator was gunned down as he drove home from a tour of Army reserve duty at Fort Benning, Ga. Four Ku Klux Klansmen were arrested, three indicted for mur der, and two tried. Despite a confession by one which implicated the others, they were acquitted. HUBERT ORMSBY — A Mississippi Negro youth, he was found floating in the Big Black River, clad in a CORE T-shirt. The verdict was accidental drowning. LOUIS ALLEN — A Mississippi youth who report edly witnessed an earlier slaying of a Negro active in civil rights work was slain himself. No arrest was made. MRS. JOHNNIE MAE CHAPPELL — A Jackson ville, Fla., Negro woman, she was shot by a white youth from a car cruising a Negro neighborhood after demon strations there. The white youth was convicted of man slaughter and sentenced to 10 years. 88 1963, TEN DEATHS ADDIE MAE COLLINS, CYNTHIA WESLEY, CAROL ROBERTSON, DENIS McNAIR — The four Negro girls were at Sunday School in Birmingham when killed by an exploding bomb. No arrests. JOHNNY ROBINSON — The Negro was killed in rioting that followed the church bombing. No arrests were made. VIRGIL WARE — He was killed the same day by a pistol-toting white lad riding with a buddy on a motor- scooter. One of the white boys was convicted of man slaughter, and the other pleaded guilty. After a stern lecture, the judge sentenced them to seven months in the county jail, but then probated the sentence and set them free. JOHN L. COLEY — A Birmingham Negro, he was shot dead in rioting that followed another bombing of a home two weeks earlier than the one at the church. No arrests were made. WILLIAM MOORE — A Baltimore mailman making a lone protest march across Alabama, he was killed by a bullet from a passing car. A white man was arrested, but not indicted. MEDGAR W. EVERS — Mississippi field secretary for the NAACP, he was slain by an ambush sniper out side his home in Jackson. Byron de la Beckwith had two trials each ending in a hung jury. FRED W. LINK — A Lexington, N. C., white man, he was killed during a racial riot. Three Negroes were tried and convicted of manslaughter. Two were sen tenced to six months, the third to four to seven years. 89 1962, TWO DEATHS PAUL GUIHARD, RAY GUNTER — Both white, they were on the campus of the University of Missis sippi at Oxford during rioting over the admission of James Meredith. A rooftop sniper killed Mr. Guihard, a reporter from France, and Mr. Gunter, a local TV repair man. No arrests were made. 1961, ONE DEATH HERBERT LEE — A Negro active in civil rights ac tivities, he was shot by a white state legislator. The death was ruled justifiable. 1960, ONE DEATH MRS. MATTIE GREEN — The Ringgold, Ga., Ne gro woman was killed when a bomb blasted her home. No arrests were made. It’s always possible, of course, that one or more of the three defendants being separately tried in the Liuzzo case could be convicted. But, as the history of civil rights slayings in the South suggests, it must be considered un likely.