Billingsley v. Clayton Brief for Appellants

    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.