Jackson v. United States Brief for Appellee

    IN THE

United States  Court of Appeals
FOR THE FIFTH CIRCUIT.

No. 21,256

ELZA LESLYE JACKSON, ROBERT THOMAS, SAMUEL 
B. WELLS, SLATER HUNTER KING, AND 

THOMAS C. CHATMON,
Appellants,

vs.
UNITED STATES OF AMERICA,

Appellee.

On Appeal from the United States District Court for 
the Middle District of Georgia.

BRIEF FOR APPELLEE.

Address:
P. O. Box 118, 
Macon, Georgia.

Floyd M. Buford,
United States Attorney,

W ilbur D. Owens, J r.,
Assistant United States Attorney, 

Attorneys for Appellee.

E. L. M endenhall, I nc., 1108 Oak Street, Kansas City, Mo. 64106, HArrison 1-3030
12- 29 - 64— 50



INDEX

I. Statement of the Case ......................................... 1
II. The Overwhelming Evidence of Guilt Supports 

the Denial of the Motions for Judgment of Ac­
quittal Made by Appellants Jackson and K ing......  2

III. A. Appellant Elza Leslye Jackson .. ..........- ........  2
1. The Indictment—Jackson  ......................... . 2
2. The Evidence—Jackson  .............. .......... . 3
3. The Evidence Supports the Verdict.............  5

B. Appellant Slater Hunter King ....................... . 6
1. The Indictment—King    ....... ................ . 6
2. The Evidence—King ..... ......................... ..... 7
3. The Evidence Is More Than Sufficient to

Support the Verdict of Guilty .... ................ 9
III. There Is No Basis for the Application of the At­

torney-Client Privilege in Appellant Wells’ Case .... 10
A. The Evidence—Reverend Wells .................... . 10
B. The Law Applied to the Evidence—Reverend

Wells ........ ................. ..................... .......... ......... 13
IV. The Jury List from Which the Grand and Petit

Juries Which Indicted and Tried Appellants, Were 
Selected, Was Composed in Accordance with the 
Civil Rights Act of 1957 and the Decisions of the 
Supreme Court of the United States ............ ......... 15
1. The Evidence Adduced Before the Trial Court __ 16

a. The 1959 Jury List ...................... ............... 16
b. The 1953 Jury List ................. ................. ...  20
c. Pre-1953 Jury Lists .... .................. ............... 21
d. Selecting Grand and Petit Juries .................  22



II Index

e. The Court in Overruling Defendant’s Motion
Stated: ............................................................  22

f. Statistical Information—1960 Census .......... 24
2. The Law .............................................................. 25

a. Statutory Law on Selection of Federal Jurors 25
b. Decisions of Federal Courts on State Jury

Composition Questions ........................    29
1. The Supreme Court ................................  29
2. Decisions of This Court on the Composi­

tion of State Juries .........................    33
c. Decisions on the Composition of Federal Ju­

ries .................................................................  36
1. The Supreme Court ................................... 36
2. The Circuit Courts of Appeal ......... ......... 38

d. The Jury System As Envisioned by the Judi­
cial Conference and the Justice Department _ 39

e. Burden of Proof..... ........................................ 40
3. The Law Applied to Our Case ...."„........ ,............  41

V. Conclusion _        45
Certificate of Service .... .............1—............................. 45
Appendices—

Appendix from Rabinowitz:
B. Excerpts from 1960 Census...............................  47
C. Department of Justice Proposal for Amending 

Section 1864, Title 18, United States Code .... 49

Cases Cited

Ah Ming Cheng v. United States, 300 F.2d 202 .... ..... 2
Akins v. Texas, 325 U.S. 398 ......................................  33
Arnold and Dixon v. North Carolina, 32 U.S.L. Week.

4340 .......... ............................ ...............................29, 31,32



Avery v. Georgia, 345 U.S. 559 __ ...______________  32
Ballard v. United States, 329 U.S. 187  .....................  37
Bennett v. United States, 285 F.2d 567  ....... ............ . 2
Brownfield v. South Carolina, 189 U.S. 426 .................  41
Cafritz v. Koslow, 167 F.2d 749 ...............................  . 14.15
Cassell v. Texas, 339 U.S. 282 .....................................-33, 44
Chance v. United States, 322 F.2d 201 ............. 28-29, 38, 39
Collins v. Walker, 329 F.2d 100......................................  33
Dow v. Carnegie-Illinois Steel Cor-p., 224 F.2d 414......  38
Eubanks v. Louisiana, 356 U.S. 584 ............................ 32
Gibson v. Mississippi, 162 U.S. 565 ........................... ...  30
Glosser v. United States, 315 U.S. 60 .................... 2, 36, 41
Gorman v. United States, 323 F.2d 51 ............................ 2
Hernandez v. Texas, 347 U.S. 475 .............................. T31, 32
Hill v. Texas, 316 U.S. 400 ......... .............................31,33
Hoyt v. Florida, 368 U.S. 57 .................. ............ ........ . 41
Johnson v. United States, 271 F.2d 597 .... ...................  2
Martin v. Texas, 200 U.S. 316 .... ................ ............ ....  30
Neal v. Delaware, 103 U.S. 370   ..........................—_ 30
Norris v. Alabama, 294 U.S. 587 ................ ........... 30, 31, 33
Pierre v. Louisiana, 306 U.S. 354 ...............................  32
Riggs v. United States, 280 F.2d 949 ______...______... 2
Rogers v. Alabama, 192 U.S. 226 _________ _______  30
Smith v. Mississippi, 162 U.S. 592 ___...________ __41
Smith V. Texas, 311 U.S. 128 _______________ 31,33,36
Strauder v. West Virginia, 100 U.S. 308 __________ 29, 30
Tarrance V. Florida, 188 U.S. 519 _______________  41
Thacker v. United States, 155 F.2d 90 ______ ______  2
Thiel v. Southern Pacific Co., 328 U.S. 217 _____36, 37, 38
Thomas v. Texas, 212 U.S. 278 _________________  33

Index h i



IV Index

United States v. Debrow, 346 U.S. 374 ______________ 5
United States v. Greenberg, 200 F. Supp. 382 .............  29
United States, v. Kovel, 296 F.2d 918 _.......................  14
United States ex rel. Seals v. Wiman, 304 F.2d 53___ 34, 35
Virginia v. Rives, 100 U.S. 313 _______________ __ 33
Walker v. United States, 301 F.2d 94 ____________  2

Miscellaneous

8 Wigmore, Evidence (McNaughton rev. 1961) 554 . 13
The Jury System in the Federal Courts—

26 F.R.D. 409, 421 __________  ________ 39-40, 41-43
28 U.S.C., Sections 1861-1864 .....................25,26,27,40,44
103 Cong. Rec. 13250, 13290, 13291 ............. ..... 27,28, 38



IN THE

United States  Court of Appeals
FOR THE FIFTH CIRCUIT.

No. 21,256

ELZA LESLYE JACKSON, ROBERT THOMAS, SAMUEL 
B. WELLS, SLATER HUNTER KING, AND 

THOMAS C. CHATMON,
Appellants,

vs.
UNITED STATES OF AMERICA,

Appellee.

On Appeal from the United States District Court for 
the Middle District of Georgia.

BRIEF FOR APPELLEE.

I. STATEMENT OF THE CASE.

Appellants’ Statement of the Case while generally 
accurate is nevertheless incomplete and written with a view 
towards Appellants’ argument. Appellee will therefore 
rely on its own Statement which will be presented as a part 
of each particular point of Appellee’s argument.



2

II. THE OVERWHELMING EVIDENCE OF 
GUILT SUPPORTS THE DENIAL OF THE 
MOTIONS FOR JUDGMENT OF ACQUITTAL 
MADE BY APPELLANTS JACKSON AND 
KING.

Only appellants Jackson and King question the suf­
ficiency of the evidence to support their convictions of 
perjury. In considering appellants’ denied motions for 
judgment of acquittal and the “sufficiency or insufficiency 
of the evidence to support the conviction, it is not . . . [this 
court’s] function to weigh the evidence or to pass upon 
the credibility of the witnesses. Judgment of conviction 
must stand if there is substantial evidence to support the 
judgment considering the entire record in a light most 
favorable to the United States. Glasser v. United States, 
315 U.S. 60 (1942); Walker v. United States, 5 Cir. 1962, 
301 F.2d 94; Ah Ming Cheng v. United States, 5 Cir. 1962, 
300 F.2d 202; Bennett v. United States, 5 Cir. 1960, 285 F.2d 
567; Riggs v. United States, 5 Cir. 1960, 280 F.2d 949; 
Thacker v. United States, 5 Cir. 1946, 155 F.2d 90; Johnson 
V. United States, 4 Cir. 1959, 271 F.2d 596, 597;” Gorman v. 
United States, 323 F.2d 51 (5th Cir., 1963).

The substantial evidence that supports the conviction 
of appellants Jackson and King is:

A. APPELLANT ELZA LESLYE JACKSON.

1. The Indictment—Jackson.

The indictment charges that appellant Jackson com­
mitted perjury on August 5, 1963, before a Grand Jury of



3

the United States District Court for the Middle District 
of Georgia in that she did:

. . testify in substance that she, the defendant, 
did not recall being present at the meeting held in 
the office of [sic] Attorney C. B. King, Albany, 
Georgia, on the afternoon of July 30, 1963 . .

2. The Evidence—Jackson.

Prior to Tuesday, July 30, 1963, a subpoena directing 
each person to be in U. S. District Court, Macon, Georgia, 
before a federal grand jury on Wednesday, July 31, 1963, 
at 9:30 a.m. was served on each of the following persons: 
Appellant Elza Leslye Jackson; Slater H. King; Samuel
B. Wells; Robert Thomas; Thomas Chatmon; Dora White; 
Emma Perry; Edward Bryant, Jr.; Howard Seay and Sego 
Thomas Gay. (G-2 through 11).

Attorney C. B. King has an office in Albany, Georgia, 
which consists of two rooms—an outer reception room where 
his secretary works and an inner private office which he 
uses. In July, 1963, Mrs. Ann Waller Butler was his 
secretary and Miss Elizabeth Holtzman, Mr. Frank Parker 
and Mr. Dennis Roberts, none of whom were admitted to 
the practice of law, were his law clerks. (R. 281-283).

Between 4:45 p.m. and 6:30 p.m., Tuesday, July 30, 
1963, according to Mrs. Ann Waller Butler, secretary, a 
group representing a church came to Attorney C. B. King’s 
office. (R. 297). In addition to the church group, Mrs. 
Elza Leslye Jackson, appellant; Slater King; Samuel Wells; 
Thomas Chatmon; Robert Thomas; Mrs. Emma Perry; 
Howard Seay; Sego Gay and Mrs. Dora White came to 
Attorney King’s office. (R. 291-292). During that time



4

people were in both rooms of the office and the door 
between the rooms was open. As many as 18 to 20, and 
as few as 6 persons, were present together from 4:45 until 
6:30 p.m. Some were seated and some were standing. 
Slater King brought extra chairs to the office. At one 
time all the people were seated. (R. 293). Miss Elizabeth 
Holtzman talked to the entire group about the rights of 
witnesses appearing before a federal grand jury. (R. 292- 
293). Persons present asked questions. Appellant Jackson 
was present for 15-25 minutes. (R. 294).

Miss Elizabeth Holtzman, a Harvard law student work­
ing as law clerk, said that during the same time she saw as 
many as 15 and as few as 6 people in the office of Attorney 
C. B. King. Of those people she could name only Howard 
Seay, Thomas Chatmon, Samuel Wells and appellant Jack- 
son. For somewhat over an hour she stayed in Attorney 
King’s private office. During that hour she talked about 
the functions and the composition of the United States 
grand jury. Questions were asked. (R. 300-305). While 
in Attorney King’s private office she specifically saw 
appellant Jackson, Howard Seay, Samuel Wells, Slater 
King and Mrs. Butler. (R. 306).

Eddie Bryant, Jr., who had been subpoenaed to appear 
in Macon before the grand jury (R. 308), went to Attorney
C. B. King’s office around 5:30 p.m., Tuesday, July 30. 
Nine to 12 people were in the office when he arrived. 
(R. 310). Appellant Jackson was there on his arrival. (R. 
313). He heard a lady speak about coming to Macon to 
appear before a grand jury. (R. 312). Reverend Wells 
and appellant Jackson also had something to say about the



5

grand jury. (R. 314). He remembered only the following 
names of people he saw: appellant Jackson, Robert
Thomas, Sego Gay, Miss Emma Perry and Vincent Collier. 
(R. 312). He stayed in Attorney King’s office for about 
one-half hour (R. 310), and when he left appellant Jackson 
was still there. (R. 313).

Appellant’s grand jury testimony was read to the jury. 
(R. 332-345).

Appellant Jackson said that her answers to the grand 
jury were true when given. (R. 349). She also stated that 
she had received an A.B. degree from Benedict College. 
Otherwise appellant’s answers on cross-examination were 
evasive. (R. 351-355).

3. The Evidence Supports the Verdict.

The essential elements of perjury are:
(1) an oath administered and authorized by a law

of the United States
(2) taken before a competent tribunal
(3) a false statement
(4) wilfully made
(5) as to facts material to the hearing.

United States v. Debrow, 1953, 346 U.S. 374. Appellant 
Jackson questions only elements (3) and (4) and so just 
contends that there was no false statement wilfully made.

Appellant Jackson, as shown by her grand jury testi­
mony (R. 332-345), in sum and substance clearly told the 
grand jury she did not recall being present at the meeting 
held in the office of Attorney C. B. King, Albany, Georgia, 
on the afternoon of July 30, 1963.



6

The testimony of all three witnesses—Mrs. Butler, 
Miss Holtzman and Mr. Bryant—paints a vivid picture of a 
gathering of persons who had received grand jury sub­
poenas on the afternoon preceding the morning of their 
appearance before the grand jury. How many persons? 
According to Attorney King’s secretary as many as twenty. 
Chairs were brought; all were seated. Miss Holtzman 
talked about the rights of witnesses appearing before a 
federal grand jury. Appellant Jackson, a college graduate, 
according to Miss Butler and Mr. Bryant was present for 
25-30 minutes, and as related by Mr. Bryant appellant also 
had something to say to those present about the grand jury.

The only evidence that disputed the prosecution’s case 
was appellant’s mere statement that her grand jury testi­
mony was true.

It is thus apparent that the jury listened to practically 
uncontradicted evidence from three witnesses; that the evi­
dence was more than sufficient to support a finding of 
guilty and that the trial court correctly denied appellant’s 
motion for judgment of acquittal.

B. APPELLANT SLATER HUNTER KING.

1. The Indictment—King.

Appellant King was charged with committing perjury 
by testifying before a grand jury of the United States 
District Court for the Middle District of Georgia on August 
5, 1963, in substance that:

“he . . .  did not recall attending any type of meeting
during the week of July 29, 1963, through August 2,



7

1963, wherein he or others discussed the fact that this 
Grand Jury was in session here in Macon, Georgia.”
(R. 824-825).

2. The Evidence—King.

As of July 20, 1963, appellant King, Elza Leslye 
Jackson, Samuel Wells, Thomas Chatmon, Edward Bryant, 
Jr., Robert Thomas, Mrs. Emma Perry, Howard Seay, Sego 
Gay, Mrs. Dora White, and Eddie Brown had all received 
subpoenas to appear in U. S. District Court, Macon, Georgia, 
July 31, 1963, at 9:30 a.m. (R. 895; Gl-11).

Attorney C. B. King’s office in Albany, Georgia, con­
sists of two rooms—an outer for reception and his secretary 
and an inner private office. (R. 860). In July, 1963, Mrs. 
Ann Waller Butler, secretary, and Miss Elizabeth Holtz- 
man, Mr. Dennis Roberts, Mr. Frank Parker, law clerks 
but not lawyers, worked for Attorney King. (R. 860-863).

Around 4:30 on the afternoon of July 30, Attorney King 
telephoned his office and talked with Mrs, Butler, his 
secretary, and Miss Holtzman, his law clerk. (R. 881-882). 
Attorney King indicated he had a conference scheduled 
and asked Miss Holtzman “to speak to the group . . . when 
they came . . . [about] the functions and structure of the 
Federal grand jury.” (R. 926-927). After the phone call, 
the conference was held. (R. 884).

Between the phone call around 4:30 and when she left 
the office around 6:15-6:30 p.m., Mrs. Butler saw Mrs. 
Jackson, Samuel Wells, Thomas Chatmon, Robert Thomas, 
Mrs. Emma Perry, Howard Seay, Sego Gay, Mrs. Dora 
White and appellant Slater King come into the office of



8

Attorney C. B. King. (R. 861). According to Mrs. Butler, 
appellant King arrived around 5:15-5:30 p.m,, and was 
there 10 to 15 minutes. (R. 866). Mrs. Butler saw as many 
as 18 and as few as 6 people in the office during the almost 
two hour period. (R. 868). People were seated and 
standing, but around 5:30, when appellant King was there, 
they were all seated. (R. 866; 869). They were seated in 
both rooms. (R. 930, Holtzman). Miss Holtzman talked 
to the group as a whole about the rights of witnesses 
appearing before federal grand juries (R. 871), and 
Reverend Wells made remarks in the inner room about 
the same subject. (R. 872-873).

Miss Elizabeth Holtzman told of being asked by Attor­
ney C. B. King by telephone “to speak to the group, to these 
people . . . when they came . . . [about] the functions and 
structure of the federal grand jury . . .”. After the tele­
phone conversation people came to the office. (R. 926-927).

Miss Holtzman stayed in the inner room, the room 
usually used by Attorney C. B. King, from approximately 
4:30 to about 6:15 (R. 934) (the entire time during which 
the meeting took place). She “. . . discussed briefly the 
functions and the structure of the federal grand jury”. 
Questions were asked about her talk. (R. 931). In the 
inner room she saw appellant Slater King. (R. 934). The 
greatest number of people she saw was 15 and the least 
number was 8 or 9. (R. 929-930). “. . . For the most part, 
people were seated.” (R. 935). The defendant must have 
also been seated because according to Miss Holtzman, “I 
believe he did get up” to answer the telephone. (R. 941).

Eddie Bryant, Jr., was told by Robert Thomas that 
there was to be a meeting. (R. 916). He went to C. B.



9

King’s office around 4:45. . . Most everyone in there
was talking . . . about coming up here to appear before the 
jury . . . the grand jury.” (R. 899, 900). Eddie Bryant 
stayed about 40 minutes. Slater King was there when he 
got there (R. 904), during the time he was there (R. 902- 
903), and when he departed, he left appellant King there. 
(R. 904). Reverend Weils was also there the full time 
Bryant was. (R. 907). A white girl (Miss Holtzman) 
talked about coming up to Macon the next day. (R. 911). 
Reverend Wells and Mrs. Jackson also talked. (R. 913).

The appellant King, a graduate of Fisk University (R. 
995) admitted coming to the office of C. B. King, bringing 
chairs and sitting down in the inner room. (R. 984). He 
remembered seeing Mrs. Jackson, Mrs. Perry, Mrs. White, 
Reverend Wells, Mr. Bryant, and Mr. Seay in the office. 
(R. 998-999).

The appellant’s grand jury testimony consisting of 
more than the two isolated questions selected by appellant 
in his brief, p. 16, was read to the jury and introduced in 
evidence. (R. 957-962).

3. The Evidence Is More Than Sufficient to Support the 
Verdict of Guilty.

Like appellant Jackson, appellant King contends that 
of the five essential elements of perjury heretofore listed, 
the evidence fails to show (3) a false statement (4) wilfully 
made.

As shown by the transcript of appellant’s grand jury 
testimony the appellant clearly told the grand jury in sum 
and substance that he did not recall attending any type of



10

meeting during the week of July 29, 1963, through August 
2, 1963, wherein he or others discussed the fact that the 
Grand Jury was in session in Macon, Georgia.

Appellant King asks this court to believe what the 
trial jury would not believe—that together with other 
people who had also been subpoenaed to be in Macon the 
next morning before a grand jury, he was in the office of 
Attorney C. B. King for a minimum of 15 (Mrs. Butler) 
and maximum of 40 minutes (Mr. Bryant); he was seated 
in the inner private office; everyone was talking about 
coming to Macon to the grand jury; Miss Holtzman, Rever­
end Wells, and Mrs. Jackson talked to the group about the 
grand jury; he, a college graduate, did not know what was 
being discussed. The record and this summation of the 
evidence clearly shows that there was more than sufficient 
evidence on which to reach a finding that appellant knew 
the subject matter of the discussion in that office and to 
aid the grand jury in its deliberations could have told the 
grand jury of the meeting. The trial court correctly denied 
appellant’s motion for judgment of acquittal.

III. THERE IS NO BASIS FOR THE APPLICA­
TION OF THE ATTORNEY-CLIENT PRIVI­
LEGE IN APPELLANT WELLS’ CASE.
A. THE EVIDENCE—REVEREND WELLS:

Mrs. Ann Waller Butler, secretary to Attorney C. B. 
King, explained that of six particular people—appellant 
Samuel Wells, Thomas Chatmon, Robert Thomas, Mrs. 
Emma Perry, Slater King, and Mrs. Elza Jackson—only 
one, Thomas Chatmon, had an appointment with C. B. King



11

the afternoon of July 30, 1963. (R. 630-631). C. B. King
was absent; in his absence a discussion took place. (R. 
633). Twelve or 13 people attended the conference. Rever­
end Wells didn’t arrive until around 6:00. (R. 644).
After this Mrs. Butler testified on page 655:

“A. Rev. Wells did say something to the people 
that were sitting near him, but I don’t recall him having 
something to say to the entire group. However, you 
could hear what Rev. Wells was saying.”

Mr. Blasingame:
“Q. What was he saying?
“A. Now, as to what he was saying, I really 

couldn’t say. I believe—no—he explained the condi­
tions under which he felt that he had received his 
subpoena. (Emphasis added).

“Q. What subpoena?
“A. A subpoena that said United States versus 

Several.”

and the following objection was made:
“Mr. King: Now, if Your Honor pleases, I would

object to anything that Rev. Wells said in the office of 
Attorney King, responsive to a conference or alleged 
conference that was held in said office. The grounds 
of the objection are that anything that he might have 
said under these circumstances was a privileged com­
munication and such privilege can only be waived by 
the Defendant; and certainly this witness has no power 
to waive that privilege.”

Appellant did not attempt to prove the existence of the 
attorney-client privilege, and the court overruled the 
objection. (R. 656).



12

Mrs. Butler then told the jury that Reverend Wells had 
explained the conditions under which he felt that he had 
received his subpoena. (R. 655). “. . . Rev. Wells indicated 
to them [those present] to do just what Miss Holtzman 
had advised them before he got there.” (R. 657).

Attorney King represented Reverend Wells in two 
pending matters—a recent court matter in Albany and a 
Marine Base administration matter. (R. 662). Reverend 
Wells on this day came to the office, asked for Attorney 
King and after learning that he was not in just went on into 
the other office (where the other people were). (R. 665).

Miss Elizabeth Holtzman, a law student and law clerk, 
after advising that the gathering began about 4:30 and the 
doors between the two offices were open was asked on p. 
684:

“Q. Would you tell us the subject-matter of your 
conversation to the group?”

and the following objection was made;
“Now, if Your Honor pleases, I would object to 

any information being elicited from this witness with 
reference to any discussion or any talk or communica­
tion that she might have had with [114] persons in 
the office of Attorney King. The basis for the 
objection is that this would be privileged matter and 
such privilege would belong to those persons who were 
present; and certainly she is in no position to waive the 
privilege of others.”

Appellant did not attempt to lay an evidentiary foundation 
for the objection; the court overruled the objection, and 
the witness answered:



13

“A. Well, the subject matter of my conversation 
was the structure and function of the grand jury.” 
(R. 686).

Appellant Wells when testifying said he never made 
appointments with Attorney King. On this particular 
afternoon he didn’t think he had heard that a group was 
meeting in C. B. King’s office. He went to the attorney’s 
office to see him about personal business (R. 753)—Attor­
ney King had represented him on the base where he works 
and Rev. Wells had just gotten out of jail. (R. 745; 749; 
750). He definitely did not go to Attorney King’s office to 
attend any meeting. (R. 765). When he got into Attorney 
King’s office, Rev. Wells saw some people in Attorney 
King’s private office; and he just walked into the private 
office and spoke to one or two or them. (R. 754).

B. THE LAW APPLIED TO THE EVIDENCE- 
REV. WELLS.

“ (1) Where legal advice of any kind is sought (2) 
from a professional legal adviser in his capacity as such, 
(3) the communications relating to that purpose, (4) made 
in confidence (5) hy the client, (6) are at his instance 
permanently protected (7) from disclosure hy himself or 
hy the legal adviser, (8) except the protection he waived.” 
8 Wigmore, Evidence (McNaughton rev. 1961) 554. And 
as appellant contends, “it has never been questioned that 
the privilege protects communication to the attorney’s 
clerks and his other agents (including stenographers) for 
rendering his services.” ibid., p. 583.



14

Appellant, however, neglects to point out that the 
burden of showing that the relation giving rise to the 
attorney-client privilege existed, is on the person who 
invokes the privilege, United States v. Kovel, 296 F.2d 918, 
923 (2d Cir., 1961); and that “the mere relation of attorney 
and client does not, ipso facto, establish the principle. If 
the circumstances do not imply confidentiality to a com­
munication between the client and his attorney privilege 
does not attach . . Cajritz v. Koslow, 167 F.2d 749, 751 
(D.C. Cir., 1948).

The appellant’s own testimony best demonstrates that 
it was never his contention that he went to the office of 
Attorney C. B. King for legal advice concerning appearing 
before the federal grand jury. In fact not only did appel­
lant by his own testimony deny seeking legal advice about 
the grand jury, but appellant further testified that he got 
no legal advice. Appellant now asks this court to forget 
his contention that he got no legal advice and invoke the 
attorney-client privilege to exclude testimony of the legal 
advice he didn’t get. Clearly, even forgetting the incon­
sistency between Mrs. Butler’s, Miss Holtzman’s and 
appellant’s trial testimony, the evidence in this case does 
not establish circumstances implying confidentiality.

Going further and assuming that appellant had at­
tempted to establish the attorney-client relation by evi­
dence, appellee could have shown the presence of Edward 
Bryant, Jr., who was just told by Robert Thomas to be in 
Attorney C. B. King’s office for a meeting (R. 916) and 
was not there seeking legal advice from Attorney King or 
his law clerk. Upon such a showing the relation of



15

attorney-client and the privilege flowing therefrom would 
disappear for . . the presence of a third person (other 
than the agent of either client or attorney) generally 
rebuts the presumption of confidentiality . . Cafritz v. 
Koslow, supra.

Clearly there is no basis for appellant’s assertion of the 
attorney-client privilege.

IV. THE JURY LIST FROM WHICH THE GRAND 
AND PETIT JURIES WHICH INDICTED AND 
TRIED APPELLANTS, WERE SELECTED, 
WAS COMPOSED IN ACCORDANCE WITH 
THE CIVIL RIGHTS ACT OF 1957 AND THE 
DECISIONS OF THE SUPREME COURT OF 
THE UNITED STATES.

The jury list in question is the same jury list challenged 
by the appellant in Rabinowitz v. United States, Fifth 
Circuit, No. 21,256, already briefed and argued before this 
court. We agree with appellants that tKis court may take 
judicial notice of its own records. Brief for Appellants 
p. 5.

The evidence which appellant rely upon in challenging 
the jury composition was adduced on October 3, 1963. (R.
99). On October 14, 1963—almost two weeks later—the 
hearing on the identical question in the Rabinowitz case 
was held. (R. 141, Rabinowitz). Consequently all counsel 
in Rabinowitz had the opportunity to benefit from the 
initial exploration by Appellants on the jury composition 
issue, and the Rabinowitz record is naturally more com­
plete. Since the Rabinowitz record contains more, appellee



16

with the hope that it meets the court’s approval asks this 
court to consider the Rabinowitz record.

As was said in Appellee’s Brief in Rabinowitz:
1. The Evidence Adduced Before the Trial Court.

“The Macon Division, Middle District of Georgia,, 
comprises the counties of:

Baldwin, Bibb, Bleckley, Butts, Crawford, Hancock, 
Houston, Jasper, Jones, Lamar, Monroe, Peach, Pu­
laski, Putnam, Twiggs, Upson, Washington, and Wil­
kinson. 28 U.S.C. 90(b) (2).

a. The 1959 Jury List—

“In 1959, William P. Simmons, a Republican and out­
standing Georgia citizen and businessman whose home is 
Macon, was first appointed Jury Commissioner for the 
seventy (70) counties of the Middle District of Georgia. 
John P. Cowart—Assistant United States Attorney from 
March 12, 1934, United States Attorney from February 6, 
1945, and Clerk from December 1, 1952—and Jury Com­
missioner Simmons by direction of the court undertook 
to revise the jury box for each of the seven divisions of 
the Middle District of Georgia. (R. 181-182, 216, 227).

“The first indoctrination Commissioner Simmons had 
was from the Judge (W. A. Bootle); he instructed Mr. 
Simmons about his duties and responsibilities. From the 
Judge or the Clerk, Mr. Simmons received a large mimeo­
graphed publication. (R. 184). This publication, a manual 
from the Administrative Office of the Courts, was also used 
by the Clerk. (R. 228). Mr. Simmons and Mr. Cowart



17

became familiar with the jury qualifications set forth in 
the Civil Rights Act of 1957. (R. 185, 227).

“In revising the Macon Division jury list, the Commis­
sioner and the Clerk began with the existing prior jury 
list—1953—and removed from that list the names of those 
who had moved, were deceased, mentally infirm or physi­
cally not able to serve. (R. 182, 230). After names were 
removed, about 1,000 names were left from the 2205 names 
on the 1953 jury list. (R. 220-221, 238).

“Mr. Simmons as President, Southern Crate and Veneer 
Company, was traveling extensively throughout the Macon 
and other divisions. (R. 216). In securing names of 
prospective jurors he didn’t write to anybody asking them 
to provide a list of jurors, nor go and say, ‘give me a list 
of jurors’ to anybody. Commissioner Simmons, carrying 
a little book and pad of paper, made inquiries in all the 
counties and wrote down the names that he secured. (R. 
194). Some year and a half or two years ago, thinking he 
was through with his work as Jury Commissioner, Mr. 
Simmons threw out his file. (R. 184). Because of this it 
is difficult to recall specific instances and people. (R. 200). 
He inquired specifically for the names of Negroes who 
could serve on the jury (R. 205), recalled asking a few 
Negroes for names (R. 192-193), and in every instance 
where he talked to a white person, remembered that he 
suggested that the white person give him the names of 
competent Negro jurors. (R. 196).

“John Cowart sent his deputy clerk, Walter Doyle, into 
each of the counties including those in the Macon Division 
to secure names. (R. 230). Mr. Doyle went first to each



18

of the county courthouses and spoke to the Clerk of the 
Court, the Ordinary, the Sheriff, Tax Officers and people 
who worked in those offices. These people in his judg­
ment knew the people in each community better than 
anyone else. (R. 260). Mr. Doyle did not talk to Negroes 
about prospective jurors, but did ask each person contacted 
to give him all of the names they could of prospective 
Negro jurors. (R. 261). The names secured by Deputy 
Clerk Doyle were turned over to Clerk Cowart.

“Mr. Cowart, in addition to sending his deputy clerk 
into the counties, wrote a good many letters to people. He 
knows a lot of people in the counties of the Macon Division 
and acquired probably more names in Macon than either 
Mr. Doyle or Mr. Simmons. Mr. Cowart used the telephone 
book some and talked to Negroes as well as white persons. 
He had a number of sources from whom he got names. 
(R. 230-232).

“Including the 1,000 names from the old 1953 list and 
the new names they had acquired, Clerk Cowart and 

/ Commissioner Simmons sent out between four and five 
; | thousand jury questionnaires to people in the Macon 

Division. (R. 237). The Clerk did not even have an idea 
of how many questionnaires went to Negroes. (R. 239). 
On the questionnaire, one of thirteen items to be filled out 
pertained to the individual’s race. (D-2).

“A population census table was used for only one 
thing—to prorate jurors according to counties and not in 
any other manner. (R. 259).

“Neither Commissioner Simmons, Clerk Cowart nor 
Deputy Clerk Doyle had any preconceived notion of how



19

many of the jurors should be Negroes. (R. 186, 241, 258, 
266).

“From the 2,500-3,000 jury questionnaires that were 
returned—all of which are on file in the Clerk’s office 
and were available to defense counsel—the Commissioner 
and the Clerk selected 1,985 names. (R. 237, 239). No 
calculation has been made by either the Commissioner or 
the Clerk of how many Negroes were selected. (R. 183, 
225, 237).

“Neither Mr. Cowart nor Mr. Simmons, as defense 
counsel has conceded (Appendix 104, Statement by Mr. 
Rabinowitz), systematically or intentionally excluded 
Negroes in selecting the 1,985 names. (R. 187, 259). They 
did look at and use the race designation on the jury 
questionnaire to make sure that Negroes were included, 
but they had no particular number in mind. (R. 186, 188, 
241). The only object was ‘. . . to get qualified Negroes 
it was rather hard to do . . . because they (Negroes) are 
just like women; they don’t want to be in the box and 
they don’t want to serve’. (R. 241, Cowart). Mr. Cowart 
and Mr. Simmons ‘attempted to be sure that all factions 
and groups within the community were represented, 
occupation-wise, sex and racially wise, but without at­
tempting to measure it by the population precisely or to 
have any given percentage represented by any vocational 
or occupational group or by race or sex’. (R. 187, 
Simmons).

“Using the race information on the 1959 jury question­
naire forms as a source, the United States Attorney had 
the following information about the 1959 jury list of the 
Macon Division prepared for this case:



20

County No. of Jurors No. of Nej
Baldwin 137 8
Bibb 666 36
Bleckley 72 2
Butts 58 2
Crawford 47 5
Hancock 64 3
Houston 99 7
Jasper 57 4
Jones 67 5
Lamar 84 7
Monroe 70 5
Peach 123 8
Pulaski 58 3
Putnam 61 4
Twiggs 37 1
Upson 130 6
Washington 95 6
Wilkinson 60 5

Total 1,985 117

Five jurors did not indicate race. (R. 315-316). These 
figures indicate 5.9% of the names on the 1959 jury list
are those of Negroes.

“The record does not show how many Negroes or whites 
are qualified for jury service.

b. The 1953 Jury List.
“The 1953 jury revision was in progress when John 

Cowart became Clerk. 1,897 names were on the 1953 list. 
In 1954 after the Georgia Legislature made women eligible 
for jury service (U. S. District Court jurors were then



21

governed by state qualifications), the names of 308 women 
were added to the 1953 list. (R. 220-221).

“On the original 1953 jury list, which is kept in the 
Clerk’s office and is available to and frequently used by 
the public, there are C’s made with a red crayon by the 
names of 40 jurors. (R. 249, 285-288). The entire jury 
list is typewritten. (R. 257). The Clerk keeps a copy 
for a check list and does not mark on the original. (R. 
225). In preparing defendant’s affidavit in support of this 
ground of the motion, Attorney Witt assumed that all 
Negroes on the 1953 jury list had C’s by their names. 
(R. 224, Rabinowitz). The defendant’s attorney, however, 
stated that was not the defendant’s contention. (R. 222- 
223). There is no record in the Clerk’s office to show 
how many of the 1953 jurors were Negro. (R. 225). The 
1953 jury questionnaire forms have been destroyed. (R. 
289). John Cowart, Clerk, identified the names of 22 
jurors on the 1953 list who are Negroes and do not have 
red C’s by their names. (R. 251-257). Using the race in­
formation on the 1959 accepted and rejected jury question­
naire forms for comparison, the secretary to the United 
States Attorney found an additional 97 Negro names with­
out red C’s by their names. (R. 285-287). It is not possible 
to say how many more Negroes there might be on the 1953 
list. (R. 288, 291).

c. Pre-1953 Jury Lists.

“No evidence was introduced concerning the compila­
tion of jury lists prior to 1953.



22

d. Selecting Grand and Petit Juries.

“The 1,985 names are placed and remain in a jury 
box. The Court goes into open court, the jury box is 
opened, and the judge picks name slips (containing only 
name, age, occupation and address) from the jury box, 
handing them in the order picked to a Marshal, who in 
turn hands each name to a typist. After the typist has 
prepared the jury list, the name slips are placed in a sealed 
envelope which is marked to be opened two years from 
date, and the sealed envelope is placed in the jury box. 
(R. 246).

e. The Court in Overruling Defendant’s Motion Stated:

“The Court: All right. I am going to overrule
this motion. The Wiman case pays some considerable 
attention to percentages, but there are other factors 
in the Wiman case in addition to percentages, and 
there are differences in the grand jury system of 
selection and the result and the percentages relating 
thereto in this case and in the Wiman case.

“Now just how far the Courts may go in the future 
in looking at certain percentages and saying that will 
do that won’t, and how much emphasis they are go­
ing to pay to the matter of Negroes and Whites and 
whether that is the controlling [590] element in the 
percentages and in the ratio of representation on the 
list I can’t say but I am satisfied, as counsel very com- 
mendably concedes here, that there was no intentional 
discrimination on the part of the Jury Commissioners 
in this District. And while that is not controlling in 
this case it is a factor of considerable importance.



23

“There are, perhaps, some practical difficulties in 
selecting juries. For instance, in this case I don’t 
know now how many questionnaires were sent out 
to either White or Negroes. I don’t know what the 
answers were to those questionnaires. I don’t know 
how many Whites or many Negroes said ‘please don’t 
put me on the list, please excuse me, my job will 
interfere’, how many of them expressed a desire to 
serve, how many expressed an unwillingness to serve.

“I may say this, that this jury list will be revised 
from time to time. If the Negroes in this district 
want to serve they can cooperate by giving to the 
Jury Commissioners some reliable information about 
themselves so that they can receive beyond any per- 
adventure of a doubt all consideration that they are 
entitled to receive. But that is a matter for the future.

“Taking this case as the facts present it and as 
the law reads, I think I can not do anything except 
overrule this motion.

“Now, do you have another one, perhaps a short 
one? And I may just add to what I have been say­
ing, I have heard a good bit of evidence about school 
teachers. That might be a good [591] place to go for 
information, probably would be, but it is a mighty 
bad place to go to get a juror. The school teachers are 
so busy that they will offer an excuse if you happen 
to get one and he is summoned to court to serve. I 
don’t doubt that they have an excuse. They ivant 
to go back to the class room. I have had that ex­
perience over and over and, of course, their excuse 
would generally be honored if you had enough jurors 
to serve without them.” (R. 293-294) Emphasis 
added).



f. Statistical Information—1960 Census.

“Neither the Clerk nor the Jury Commissioner used 
the 1960 census for any purpose other than the apportion­
ment of the total number of jurors by counties. Neverthe­
less, in looking at the Macon Division realistically and in 
evaluating the evidence on jury selection, one must realize 
that according to the 1960 census and in particular ex­
cerpts therefrom—Appendix B, the Macon Division is 
situated in the State of Georgia, a State whose people 
have completed the following median years of education:

The eighteen (18) Macon Division counties contain 373,594 
people of whom 39% are non-white. Of the total number, 

„~204,321 are over 21 and 35% of those are non-white. 
I 38.9% of the white and 11.6% of the non-white persons 25 
J years and older have completed four years of high school 
| or more.

“Even though its citizens are constantly working to 
improve the economic status of all, we must realize that 
in 1960 the Macon Division on an individual county for 
county basis had a low of 20.6%, high of 67.2% and average 
of 45.4% families whose total income was under $3,000. 
All persons, including both white and non-white, had a 
county by county median individual income ranging from 
a county high of $3,418 to a low of $1,537, whereas just 
the non-white individual income ranged from a county 
high of only $1,036 to a low $657. All families—white 
and non-white—including non-related individuals, had a

Urban Rural
(a) White persons 11.7 years
(b) Non-white persons 6.8

8.8 years 
5.1



25

median income by county ranging from $5,051 to $1,907, 
whereas the same for non-whites alone ranged from only 
$2,174 to $1,204.

“It was in this State and Division—where all people 
have less than a desired education and small incomes, 
where the Negro population has the smallest share of edu­
cation and income, and where the same comparative dif­
ferences exist in all areas of life—that the jury box in 
question was composed.

“2. The Law.

a. Statutory Law on Selection of Federal Jurors.

“Congress, as of 1959, had prescribed the following
criteria for federal jurors:

28 U.S.C. 1861. Qualifications of Federal jurors:
“Any citizen of the United States who has at­

tained the age of twenty-one years and who has re­
sided for a period of one year within the judicial dis­
trict, is competent to serve as a grand or petit juror 
unless—

“ (1) He has been convicted in a State or 
Federal court of record of a crime punishable by 
imprisonment for more than one year and his civil 
rights have not been restored by pardon or amnesty.

“ (2) He is unable to read, write, speak, and 
understand the English language.

“ (3) He is incapable, by reason of mental or 
physical infirmities to render efficient jury service. 
As amended Sept. 9, 1957, Pub. L. 85-315, Part V, 
§ 152, 71 Stat. 638.”



26

28 U.S.C. 1862. Exemptions:
“The following persons shall be exempt from jury- 

service:
“ (1) Members in active service in the armed 

forces of the United States.
“ (2) Members of the Fire or Police depart­

ments of any State, District, Territory, Possession 
or subdivision thereof.

“ (3) Public officers in the executive, legisla­
tive or judicial branches of the government of the 
United States, or any State, District, Territory, or 
Possession or subdivision thereof who are actively 
engaged in the performance of official duties.’'

28 U.S.C. 1863. Exclusion or excuse from service:
“ (a) A district judge for good cause may ex­

cuse from jury service any person called as a juror.
“ (b) Any class or group of persons may, for 

. the public interest, be excluded from the jury panel 
or excused from service as jurors by order of the 
district judge based on a finding that such jury 
service would entail undue hardship, extreme in­
convenience or serious obstruction or delay in the 
fair and impartial administration of justice.

“ (c) No citizen shall be excluded from service 
as grand or petit juror in any court of the United 
States on account of race or color.”

and the following manner of drawing the names of grand 
and petit jurors:



27

28 U.S.C. 1864. Manner of drawing; jury commis­
sioners and their compensation:

“The names of grand and petit jurors shall be 
publicly drawn from a box containing the names 
of not less than three hundred qualified persons at 
the time of each drawing.

“The jury box shall from time to time be refilled 
by the clerk of court, or his deputy, and a jury com­
missioner, appointed by the court.

“Such jury commissioner shall be a citizen of 
good standing, residing in the district and a well 
known member of the principal political party in the 
district, opposing that to which the clerk, or his 
deputy then acting, may belong. He shall receive 
$5 per day for each day necessarily employed in the 
performance of his duties.

“The jury commissioner and the clerk, or his 
deputy, shall alternately place one name in the jury 
box without reference to party affiliations, until the 
box shall contain at least 300 names or such larger 
number as the court determines.

“This section shall not apply to the District of 
Columbia.”

“In amending § 1861-4 in 1957 to eliminate state jury 
qualifications from federal jurors, those who opposed the 
[Church] amendment as enacted contended that the pro­
vision does not go far enough:

“As Senator Douglas stated:
‘I may say that there are certain weaknesses in 

the Church amendment. Although it removes the



28

disqualification that those who are incompetent to 
serve on State grand and petit juries are incompetent 
to serve on Federal juries it is still a fact that the 
general procedure practice of selecting Federal juries 
will not be changed in all probability. Nothing in 
the amendment compels an affirmative change in the 
practice of selecting juries, so that the likelihood is 
that few Negroes will actually be called to serve on 
juries.’ (Emphasis added). 103 Cong. Rec. 13250.

“Senator Clark went a step further and suggested the 
affirmative action that was needed, Id., p. 13290:

‘It should require the nondiscriminatory selection 
of jurors in proportion to the, population within the 
district, without discrimination on account of race or 
color.’ (Emphasis added).

and on pp. 13290-13291:
‘I suggest that unless strong mandatory language 

is written into the proposed jury-trial amendment, 
preferably in connection with section 1864, we shall 
have done nothing more than to remove a qualifica­
tion. That is good, but unless we put in place of that 
qualification a requirement for the equitable, fair, and 
just selection of jurors in proportion to their repre­
sentation throughout the district, without concern for 
race or color, I fear that we shall have done very 
little to help the situation.’ (Emphasis added).

“Congress not only failed to include strong mandatory 
language and a requirement for affirmative action, but as 
indicated failed through its debates to even indicate that 
it had any such intent. Chance v. United. States, 322 F.2d



29

201 (5th Cir., 1963); United States v. Greenberg, 200 F. 
Supp. 382, 395 (S.D. N.Y. 1961).

b. Decisions of Federal Courts on State Jury Com­
position Questions.

( 1 )  T h e  S u p r e m e  C o u r t.

“The Supreme Court of the United States beginning 
in 1879—Strauder v. West Virginia, 100 U.S. 308 and con­
tinuing through recent decisions such as Arnold and Dixon 
v. North Carolina, 32 U.S.L. Week. 4340 (U.S. Apr. 6, 1964), 
in numerous cases has considered the deprivation of the 
constitutional rights of Negro petitioners arising from the 
exclusion of Negroes from state grand and petit juries.

“In Strauder v. West Virginia, supra, in considering 
the case of a colored man and recently emancipated slave 
who in 1874 having been indicted, tried, convicted and 
sentenced for murder, complained that by state law only 
white men could be grand and petit jurors, the Supreme 
Court ‘observed that the first of these questions is not 
whether a colored man, when an indictment has been pre­
ferred against him, has a right to a grand or petit jury 
composed in whole or in part of persons of his own race 
or color, but it is whether, in the composition or selection 
of jurors by whom he is to be indicted or tried, all per­
sons of his race or color may be excluded by law, solely 
because of their race or color, so that by no possibility 
can any colored man sit upon the jury.’ (page 305, supra). 
The Court reviewed the history of the adoption of the 
Fourteenth Amendment and concluded that ‘its aim was 
against discrimination because of race or color. As we



30

have said more than once, its design was to protect an 
emancipated race, and to strike down all possible legal 
discriminations against those who belong to it.’ Quoting 
further from the Slaughter-House cases, 16 Wall. 36, ‘In 
giving construction to any of these articles [amendments], 
it is necessary to keep the main purpose steadily in view. 
It is so clearly a provision for that race and that emer­
gency, that a strong case would be necessary for its ap­
plication to any other.’ (page 310, supra). And the Court 
decided ‘Any State action that denies this immunity to 
a colored man is in conflict with the Constitution,’ con­
cluded the jury selection law discriminates against Ne­
groes because of color and reversed in favor of petitioner, 
(page 310, supra).

“Fifty-five years later the Supreme Court in Norris v. 
Alabama, 1934, 294 U.S. 587, 589, was still saying:

‘Whenever by any action of a State, whether 
through its legislature, through its courts, or through 
its executive or administrative officers, all persons of 
the African race are excluded, solely because of their 
race or color, from serving as grand jurors in the 
criminal prosecution of a person of the African race,, 
the equal protection of the laws is denied to him, con­
trary to the Fourteenth Amendment of the Constitution 
of the United States. Strauder v. West Virginia, 100 
U. S. 303; Neal v. Delaware, 103 U. S. 370, 397; Gibson 
v. Mississippi, 162 U. S. 565. This statement was re­
peated in the same terms in Rogers v. Alabama, 192 
U. S. 226, 231, and again in Martin v. Texas, 200 U. S. 
316, 319.’



31

“And today the principle is the same. Hernandez v. 
Texas, 347 U.S. 475 (1954); Arnold and Dixon v. North 
Carolina, supra.

“In the application of this basic constitutional principle 
the Court has always been confronted with the question of 
what it considers to be a prima facie evidentiary showing 
of purposeful exclusion because of race. The evidence set 
forth in each of the following cases where the court decided 
there was a prima facie showing of purposeful racial ex­
clusion, best illustrates what the Supreme Court deems 
to be a sufficient prima facie showing:

Norris v. Alabama, supra, where the uncontradicted 
testimony of men 50 to 76 years old showed that with­
in their memory no Negro had served on any grand or 
petit jury in the county in which the defendant was 
indicted.

Smith v. Texas, 311 U.S. 128 (1940). From 1931 
through 1938 of 384 grand jurors, 5 were Negroes; of 
512 persons summoned for grand jury only 18 were 
Negro; the custom being to take the first 12 names of 
a 16 name list, of those 18 the names of' 13 appeared 
last on the 16 name list; of the other five, 4 were num­
bered between 13 and 16 and one was numbered 6; 
only 5 Negroes ever served, one on each of 5 out of 32 
grand juries; of those 5 the same individual served 3 
times, so only 3 different individuals served; no 
Negroes were on petitioner’s grand jury; the jury com­
missioners admitted they did not select any Negroes.

Hill v. Texas, 316 U.S. 400 (1941). Two of the 
three jury commissioners whose duty it was to sum­
mon 16 men, of whom 12 are selected for grand jury,



32

said they summoned white men known by them. An 
Assistant District Attorney who had lived in Dallas 
County 27 or 28 years and served as judge 16 years said 
he never knew of a Negro being called to serve on 
a grand jury.

Avery v. Georgia, 345 U.S. 559 (1953). No Negroes 
were on the jury panel. The evidence showed that in 
the jury box names of qualified Negro jurors were 
on yellow tickets and of white qualified jurors were 
on white tickets.

Pierre v. Louisiana, 306 U.S. 354 (1938). The evi­
dence showed the general venire to contain no Negro 
names, and one-third of the population was Negro.

Hernandez v. Texas, 347 U.S. 475 (1954). It was 
stipulated that Tor the past twenty-five years there 
is no record of any person with a Mexican or Latin 
American name having served on a jury commission, 
grand jury or petit jury in Jackson County’.

Eubanks v. Louisiana, 356 U.S. 584 (1957). An 
all-white jury indicted the Negro defendant. Accord­
ing to the evidence only one Negro had ever been 
picked for grand jury duty within memory.

Arnold and Dixon v. North Carolina, supra. The 
clerk of the trial court testified that ‘. . . in his 24 
years as clerk he could remember only one Negro 
serving on a grand jury, another having been selected 
but excused’.

“In explaining the reasoning that supports such de­
cisions, it was stated: ‘Our directions that indictments
be quashed when Negroes, although numerous in the com­
munity, were excluded from grand jury lists have been



33

based on the theory that their continual exclusion indicated 
discrimination and not on the theory that racial groups 
must be recognized. Norris v. Alabama, supra; Hill v. 
Texas, supra; Smith v. Texas, supra. The mere fact of in­
equality in the number selected does not in itself show 
discrimination. . .’. Akins v. Texas, 325 U.S. 398 (1944). 
(Emphasis added).

“Percentage figures alone will not establish that 
Negroes or any other cognizable class has been left off of 
a jury panel to such an extent as to prima facie establish 
intentional and systematic exclusion, Cassell v. Texas, 339 
U.S. 282, 286 (1949), for ‘Fairness in selection has never 
been held to require proportional representation of races 
upon a jury. Virginia v. Rives, 100 U.S. 313, 322-323; 
Thomas v. Texas, 212 U.S. 278, 282;’ Akins v. Texas, supra.

“The constitutional prohibition of purposeful exclusion 
has also been expanded to mean that ‘An accused is en­
titled to have charges against him considered by a jury in 
the selection of which there has been neither [purposeful, 
limited] inclusion nor exclusion because of race.’ Cassell 
v. Texas, supra.

( 2 )  D e c i s io n s  o f  T h is  C o u r t  o n  t h e  C o m p o s it io n  

o f  S t a t e  J u r ie s .

“On March 11, 1964 this court decided in Collins v. 
Walker, 329 F.2d 100, that there was discrimination against 
the accused because of his color where instead of present­
ing his case to an all-white grand jury which was in session 
at the time of his arrest, the accused was kept in jail for 
six months at which time the same jury commissioners



34

purposely placed six Negroes on a list of twenty names 
from which the district judge drew a grand jury of five 
Negroes and seven whites. The case of the accused was 
the only case presented to this grand jury.

“Before that this court considered the state jury com­
position question in United States ex rel. Seals v. Wiman, 
(5th Cir. 1962) 304 F.2d 53, where the evidence showed 
and the court considered that:

‘(a) The Grand Jury which indicted relator 
included eighteen persons, none of whom were Negro,

‘(b) The petit jury of twelve persons which 
tried and convicted relator included no Negroes.

‘(c) From October 5, 1948, through June, 1956, 
there were twenty-eight grand juries of eighteen per­
sons each. One Negro sat on each of three grand 
juries and since January 6, 1953 (relator indicted in 
1958 and tried in 1959) no Negro had been on a grand 
jury.

‘(d) The jury rolls for the county contained 
the following distribution of names by race and per­
centage:

Total Negro
Sept. 30, 1955-Sept. 30, 1956 7,435 120
Oct. 1, 1956-Sept. 30, 1957 7,349 99
Oct. 1, 1957-Sept. 30, 1958 8,433 99 Negro
Oct. 1, 1958-Sept. 30, 1959 9,713 109 Percent’ge

32,930 427 1.3%
‘(e) Jury panels for the county contained the 

following distribution of names by race and percent­
age:



35

Total Negro
:Oct. 3, 1948-July 1, 1949 2,463 40
Oct. 2, 1949-July 1, 1950 2,343 29
Oct. 1, 1950-July 1, 1951 2,467 28
Sept. 30, 1951-July 1, 1952 2,456 16
Oct. 5, 1952-July 1, 1953 2,417 21
Oct. 4, 1953-July 1, 1954 2,401 16 Negro
Oct. 3, 1954-July 1, 1955 2,251 29 Percent’ge

16,798 139 0.82%
‘ (f) Prior to 1954 race was indicated on the jury 

cards but no cards had racial marks after 1956. The 
Jury Commissioners selected cards from the jury rolls 
and thereby made up a jury box each time a judge 
needed a jury box to select a jury from by lot.

‘(g) On the jury roll of approximately 9,000 
names, about 600 names were replaced each year. 
Therefore from the time racial marks were eliminated 
(after 1956) until the grand jury which indicted re­
lator was selected, at the most 1200 new names out 
of 9,713 were added to the jury rolls. In reality the 
jury rolls were only minutely changed from the time 
when race was indicated on the jury rolls so that in 
effect the Jury Commissioners were still discriminat­
ing because of race.’

“The question T. Whether the all-white grand jury 
. . . and the all-white petit jury . . . reflected a continuous 
pattern of discrimination against Negroes . . .’ Id. p. 55, 
was answered in the affirmative, the Court concluding 
‘that the presence of no Negroes on the 18-man grand jury 
which indicted Seals, and of two Negroes on the venire 
of 110 persons from which came the petit jury which



36

convicted Seals and condemned him to death was not 
a mere fortuitous accident but was the result of systematic 
exclusion of Negroes from the jury rolls.’ Id. p. 67.

c. Decisions on the Composition of Federal Juries.
( 1 )  T h e  S u p r e m e  C o u r t .

“ ‘The deliberate selection of (all women) jurors from 
the membership of (only one) particular private organiza­
tions definitely does not conform to the traditional re­
quirements of jury trial . . said the Court in comment­
ing upon but not deciding one of the early challenges to 
the composition of a federal jury. Glosser v. United States, 
315 U.S. 60, 86 (1942).

“Dealing exclusively with a challenge to a federal jury 
was the case of Thiel v. Southern Pacific Co., 328 U.S. 217 
(1945). There ‘both the clerk of the court and the jury 
commissioner testified that they deliberately and inten­
tionally excluded from, the jury lists all persons who 
work for a daily wage’. Id. p. 221. In deciding that ‘the 
evil lies in the admitted wholesale exclusion of a large class 
of wage earners in disregard of the high standards of jury 
selection,’ Id. at 225, the Supreme Court stated:

‘The American tradition of trial by jury, consid­
ered in connection with either criminal or civil pro­
ceedings, necessarily contemplates an impartial jury 
drawn from a cross-section of the community. Smith 
v. Texas, 311 U.S. 128, 130; Glasser v. United States, 
316 U.S. 60, 85. This does not mean, of course, that 
every jury must contain representatives of all the 
economic, social, religious, racial, political and geo­
graphical groups of the community; frequently such



37

complete representation would be impossible. But it 
does mean that prospective jurors shall be selected by 
court officials without systematic and intentional ex­
clusion of any of these groups. Recognition must be 
given to the fact that those eligible for jury service 
are to be found in every stratum of society. Jury 
competence is an individual rather than a group or 
class matter. That fact lies at the very heart of the 
jury system. To disregard it is to open the door to 
class distinctions and discriminations which are ab­
horrent to the democratic ideals of trial by jury.

‘The choice of the means by which unlawful dis­
tinctions and discriminations are to be avoided rests 
largely in the sound discretion of the trial courts and 
their officers.’ Id. at 220.

“Bottoming its decision on Thiel v. Southern Pacific 
Co., supra, a reversal was ordered in Ballard v. United 
States, 329 U.S. 187 (1946), because women were excluded 
from grand and petit federal juries, the court saying again, 
‘The evil lies in the admitted exclusion of an eligible class 
or group in the community in disregard of the prescribed 
standards of jury selection’. Id. at 195. ‘The gist of our 
ruling is contained . . .’ in the portion of Thiel quoted in 
the preceding paragraph of this brief. Id. at 192. And 
for the first time the Court held specifically that ‘. . . re­
versible error does not depend on a showing of prejudice 
in an individual case’. Id. at 195.

“Like the cases pertaining to state juries, the Supreme 
Court as to federal jury questions requires evidence of 
systematic and intentional exclusion.



38

( 2 )  T h e  C ir c u it  C o u r t s  o f  A p p e a l .

“Appellant and many others have urged upon this and 
other courts that Thiel should be interpreted like it was 
interpreted by the Third Circuit, to mean that more is re­
quired of federal jury officials than that they not inten­
tionally and systematically exclude any groups. They de­
sire that Thiel also mean, as the Third Circuit Court stated 
(we think erroneously), that what is required is that jury 
officials not exclude “through neglect as well as through 
intentional conduct”. Dow v. Carnegie-Illinois Steel Cor­
poration, 224 F.2d 414 (3rd Cir., 1955). Such an argu­
ment, of course, is founded upon the theory that federal 
jury officials are guided affirmatively, as well as neg­
atively, in their selection of jurors.

“The statutes (in 1955 and now) provide no affirma­
tive requirements of the officials in gathering names for 
the jury box. . . .  In fact, some standard system to be fol­
lowed was advocated by certain of the senators in the 
debates over the Civil Rights Act of 1957, and the criticism 
of the present system advanced was that there was no 
such requirement. See Congressional Record, Vol. 103, 
Pt. 10. The Congress did not, however, adopt these argu­
ments and the law as it now stands places the officials 
under no mandatory or positive commands; they are, on 
the contrary, controlled by one negative requirement: 
they may not discriminate, directly or indirectly.” (Em­
phasis added). Chance v. United States, 322 F.2d 201, 205 
(5th Cir., 1963).



39

“This court also answered the contention that accord­
ing to Thiel exclusion results when juries do not represent 
£a literal cross-section, of the community’ by stating:

‘At the most, the notion of a jury as a cross-sec­
tion of the community is a conceptual one. A literal 
cross-section is neither required nor desired. Those 
persons who have been convicted of a crime and not 
pardoned, those not competent in the English language, 
and those mentally or physically infirm are disquali­
fied under 18 U.S.C.A. § 1861. Many people and classes 
are granted exemptions and exclusions under 28 
U.S.C.A. §§ 1862, 1863. In many sections of this coun­
try, a Spanish-speaking community is predominant. An 
English-speaking jury is certainly not a “cross-section” 
of such a community.’ Chance v. United States, supra, 
Id. at 204.

d. The Jury System As Envisioned by the Judicial 
Conference and the Justice Department.

“Among the twenty-one recommendations concerning 
the selection of jurors and operation of the jury system, 
made by a committee of district judges and approved by 
the Judicial Conference of the United States in 1960, 
were the following which are significant to our case:

T. In order that grand and petit jurors who 
serve in United States district courts may be truly 
representative of the community, the sources from 
which they are selected should include all economic 
and social groups of the community. The jury list 
should represent as high a degree of intelligence, mo­
rality, integrity, and common sense as possible.

‘II. The choice of specific sources from which 
names of prospective jurors are selected must be en-



40

trusted to the clerk and jury commissioner, acting 
under the direction of the district judge, but should 
be controlled by the following considerations: (1)
the sources should be coordinated to include all groups 
in the community; (2) economic and social status in­
cluding race and color should be considered for the 
sole purpose of preventing discrimination or quota 
selection; . . The Jury System in the Federal 
Courts, 26 F.R.D. 409, 421.

“After receiving the endorsement of the Judicial Con­
ference of the United States at its September, 1962, meet­
ing a draft bill ‘to improve and strengthen as well as to 
provide uniformity in the jury selection process,’ was 
transmitted to the Congress on January 25, 1963, by the 
Honorable Robert F. Kennedy, Attorney General. Ap­
pendix C. The proposed bill provides: ‘The sources of
the names and the methods to be used by the jury com­
mission in selecting the names of persons who may be 
called for grand or petit jury service shall be as directed 
by the chief judge. The procedures employed by the jury 
commission in selecting the names of qualified persons 
to be placed in the jury box shall not systematically or 
deliberately exclude any group from the jury panel on 
account of race, sex, political or religious affiliation, or 
economic or social status. . . .’ Id. § 1864(b).

e. Burden of Proof.

“It is, of course, incumbent on the defendant as the 
moving party to offer distinct evidence in support of its 
motions. Where a defendant submits formal affidavits and 
there is no actual or implied stipulation by the prosecution



41

that affidavits may be accepted as proof, it is still incum­
bent on the defendant to produce distinct evidence. De­
fendant’s formal affidavits alone, even though in some in­
stances uncontradicted, are not enough. Smith v. Missis­
sippi, 162 U.S. 592; Tarrance v. Florida, 188 U.S. 519; cf. 
Brownfield v. South Carolina, 189 U.S. 426; Glasser v. 
United States, 315 U.S. 60, 87 (1941).

“Proportions are meaningless when the evidence does 
not show how many were qualified for jury duty. Hoyt v. 
Florida, 368 U.S. 57, 68 (1961).

3. THE LAW APPLIED TO OUR CASE.

“The Jury Commissioner and the Clerk in 1959 had the 
task of selecting 1,985 jurors from the 204,321 people over 
21 in the Macon Division—the difficult job of navigating 
an uncharted sea to find a ship containing less than 1% 
(.9%) of the population.

And the Appellant complains of:
—What was done 
—What was not done

“What did they do? The evidence shows clearly that 
having no affirmative statutory guides or duties, the Jury 
Commissioner and the Clerk using their best judgment 
and with no idea of how many persons—male, female, Ne­
gro, white, rich, poor or otherwise—should be included on 
the jury, went about securing names of prospective jurors 
from many varied sources throughout the division. They 
got white and Negro names from white people and. recalled



42

specifically asking Negroes for names of Negroes. Having 
no idea of how many names by race, job or any other de­
scription, they had, questionnaires were next mailed to 
between four and five thousand persons in the Macon Divi­
sion. 2,500-3,000 questionnaires came back. On the ques­
tionnaire was a place to indicate race—using the race 
designation only to make sure that Negroes were included 
and without any particular number of Negroes or whites 
in mind, 1,985 names were selected from the questionnaires. 
Four years later the Clerk and Commissioner still did not 
know how many of the 1,985 names were of Negroes. Re­
search for this case by the United States Attorney’s office 
first established that of the 1,985 names, 117 or 5.9% were 
Negro.

“Appellant, though contending . . . that there was a 
historical pattern of jury racial discrimination, proved 
nothing.

“The evidence shows . . . that the Jury Commissioner 
and the Clerk did not either in 1959 or years gone by 
purposely discriminate against Negroes in the selection of 
jurors.

“And now on appeal the appellant noticing the testi­
mony of the Jury Commissioner:

‘A. . . .  I undoubtedly recited the qualifications 
to them [persons furnishing prospective Negro jurors], 
including the statutory qualifications plus our desire 
here to have jurors of integrity and good character and 
intelligence.’ (R. 96, Simmons),

infers that this testimony indicates that contrary to the 
1957 amendment to the Civil Rights Act, which eliminated



43

state jury qualifications, the jury commissioner and clerk 
in searching for jurors of integrity, good character and in­
telligence have been guided solely by the Georgia law’s 
requirement to select ‘upright and intelligent citizens to 
serve as jurors.’ This is connected by argument to the 
selection of persons able to understand the cases being tried 
in the courtroom, and then the desire to have good jurors 
is alleged to be unconstitutional. To the contrary— ‘The 
jury list should represent as high a degree of intelligence, 
morality, integrity and common sense as possible.” The 
Jury System in the Federal Courts, supra, p. 421.

“The evidence also does not show purposeful inclusion 
of only a few Negroes because of race.

“Failing to find either the purposeful exclusion or in­
tentional inclusion because of race that is rightly con­
demned as unconstitutional, Appellant takes another tack 
and says, wait—what the commissioner and clerk failed 
to do, is the real constitutional complaint. The jury com­
missioner and the clerk, appellant thinks, should have used 
other selection methods and thereby insured an actual 
numerical cross-section of the community. Given the task 
of selecting 666 federal jurors from a Bibb County popu­
lation of approximately 85,000 persons over 21, undoubt­
edly each of appellant’s attorneys, appellee’s attorneys, the 
Judges on this Honorable Court and those who read this 
brief would choose a different manner and method of 
selection. Here the jury officials acted not unconstitu­
tionally, but merely differently from the way appellant 
personally thinks they should have acted.

*  *  *



44

“So it is that the United States respectfully submits 
that an application of the statutory and case law to the 
facts shows clearly that:

The jury commissioner and the clerk having no 
affirmative statutory duties, complied fully with 28 
U.S.C. 1861-4.

In the total absence of evidence of continual, his­
torical exclusion of Negroes from the jury because of 
race and in view of the clear evidentiary showing 
that the commissioner and the clerk were not moti­
vated by race to either purposely include or exclude 
Negroes, there is no deprivation of Appellant’s con­
stitutional privilege “to have charges against him 
(her in this case) considered by a jury in the selec­
tion of which there has been neither inclusion nor ex­
clusion because of race.” Cassell v. Texas, supra.

“It having never been the law that a jury must rep­
resent a literal, true cross-section of the community’s 
economic, social, religious, racial, political and geo­
graphical groups, Appellant in the absence of syste­
matic and intentional exclusion of any of these groups, 
has not had her constitutional rights violated.”

Appellants Jackson, Thomas, Wells, King and Chatmon, 
like Appellant Joni Rabinowitz, have not had their consti­
tutional rights violated.



45

V. CONCLUSION.

Wherefore it is prayed that the just, legal convictions 
of the appellants be in all respects affirmed.

Respectfully submitted,
F loyd M. Buford,

United States Attorney,
W ilbur D. Owens, J r.,

Assistant United States Attorney, 
Attorneys for Appellee.

Address:
P. O. Box 118,
Macon, Georgia.

CERTIFICATE OF SERVICE.

I, Wilbur D. Owens, Jr., Attorney for the Appellee in 
the foregoing cause, hereby certify that I have served Mr. 
Jack Greenberg and Mrs. Constance Baker Motley, 10 Co­
lumbus Circle, New York, New York, Mr. Donald L. Hollo- 
well, 859 1/2 Hunter Street, N.W., Atlanta, Georgia, and 
Mr. C. B. King, 211 South Jackson Street, Albany, Geor­
gia, Attorneys for Appellants, by mailing such copy to them 
at their post office address.

This the .............  day of December, 1964.

........................................................................................................................................ - ..............5

W ilbur D. Owens, J r.,
Assistant United States Attorney, 

Attorney for Appellee.





47

APPENDICES FROM RABINOWITZ

“APPENDIX B—Excerpts from 1960 Census.
T h e  1 9 6 0  C e n s u s ,  G -3 , s h o w s :

%
T o t a l  W h it e  N o n w h it e  N o n w h it e

( 1 )  T h e  e n t ir e  p o p u la t io n ,

M a c o n  D iv i s io n  

P o p u la t io n  2 1  a n d  o v e r

3 7 3 ,9 5 4  2 2 3 ,5 4 4  1 4 6 ,5 5 3  3 9

2 0 4 ,3 2 1  1 3 2 ,3 3 8  7 1 ,9 8 3  3 5

( 2 )  F o r  t h e  e n t ir e  S t a t e  o f  G e o r g ia ,  t h e  1 9 6 0  C e n s u s ,  G -3 , T a b le  

4 7  s h o w s :

( a )  M e d ia n  S c h o o l  Y e a r s  C o m p le te d — 1 9 6 0
E n t ir e U r b a n R u r a l
P o p u la t io n P o p u la t io n P o p u la t io n

A l l  p e r s o n s 9 .0 1 0 .3 8 .0

W h ite 1 0 .3 1 1 .7 8 .8

N o n w h it e 6 .1 6 .8 5 .1

( b )  P e r s o n s  2 5  a n d  O ld er  C o m p le t in g  4 Y e a r s  H ig h  S c h o o l  a n d  
A b o v e — 1 9 6 0  

A ll  P e r s o n s  3 2 .9 %

W h ite  3 8 .8 %
N o n w h it e  11 .6%

( 3 )  T a b le  8 2 — S in c e  1 9 5 5  a  l a r g e  p e r c e n t a g e  o f  M a c o n  D iv i s io n  
r e s id e n t s  h a d  c h a n g e d  r e s id e n c e  f r o m  o n e  c o u n t y  t o  a n o t h e r  a n d  

f r o m  o n e  s t a t e  t o  a n o th e r .



( 4 ) T a b le  3 6 T a b le  85 T a b le  8 8 T a b le  86 T a b le  86 T a b le  8 6 T a b le  88

% F a m il ie s T o ta l  # T o t a l  n o n - A l l  f a m i l i e s A l l  p e r s o n s N o n - w h i t e A l l  n o n - w h it e

w ith  in c o m e p e r s o n s w h it e  p e r s o n s ( w h i t e  &  n o n - ( w h i t e  & n o n - f a m i l i e s  & p e r s o n s  m e d ia n

u n d er  $ 3 ,0 0 0 L4 &  o ld e r 14 & o ld e r w h it e )  m e d ia n w h it e )  m e a n u n r e la t e d in c o m e

e m p lo y e d e m p lo y e d f a m i ly  & u n r e l . in c o m e in d iv . in c o m e

C o u n ty in d iv id u a l  in c o m e

B a ld w in 3 3 .5 8 ,7 0 5 3 ,1 6 3 $ 3 ,2 0 6 $ 2 ,0 4 3 $ 2 ,1 7 4 $  9 21
B ib b 2 7 .8 5 4 ,4 8 0 1 6 ,7 3 3 4 ,2 3 7 3 ,1 6 0 2 ,1 4 3 1 ,0 3 6
B le c k le y 4 7 .7 3 ,4 7 6 7 4 6 2 ,3 1 5 2 ,0 4 1 1 ,2 0 4 7 0 1

B u t t s 4 9 .8 3 ,1 8 2 1 ,3 5 8 2 ,6 9 4 1 ,9 5 1 1 ,7 2 6 70 9
C r a w fo r d 6 0 .8 1 ,7 4 1 9 41 2 ,1 4 0 1 ,5 3 7 1 ,5 3 4 6 7 4
H a n c o c k 6 7 .2 2 ,9 9 2 1 ,9 3 8 1 ,9 0 7 1 ,3 9 4 1 ,4 5 1 6 2 6
H o u s t o n 2 0 .6 1 2 ,4 5 2 2 ,7 9 4 5 ,0 5 1 3 ,4 1 8 1 ,8 1 7 8 5 0
J a s p e r 6 0 .0 2 ,0 6 1 1 ,0 4 3 2 ,1 0 4 1 ,6 6 5 1 ,4 6 6 6 7 4
J o n e s 4 8 .3 2 ,6 8 2 1 ,1 7 4 2 ,8 2 9 1 ,9 2 8 1 ,9 4 8 8 5 6
L a m a r 3 6 .1 3 ,8 9 5 1 ,3 9 1 3 ,5 0 3 2 ,2 8 9 1 ,8 3 6 7 9 6
M o n r o e 4 6 .6 3 ,7 0 1 1 ,6 2 1 2 ,5 4 4 2 ,1 2 1 1 ,7 6 2 8 3 7
P e a c h 4 1 .7 4 ,7 2 9 2 ,5 6 2 2 ,6 1 7 1 ,9 7 1 1 ,4 3 9 7 1 1
P u la s k i 4 8 .1 3 ,0 2 3 1 ,1 4 9 2 ,7 4 9 2 ,1 1 5 1 ,2 3 4 6 5 7
P u tn a m 4 8 .9 2 ,6 4 9 1 ,2 2 6 2 ,7 1 4 2 ,1 6 1 1 ,4 4 2 8 4 9
T w ig g s 5 2 .1 2 ,2 6 0 1 ,2 4 3 2 ,6 6 5 1 ,9 3 4 1 ,9 9 1 8 7 1
U p s o n 2 9 .8 9 ,9 2 7 2 ,4 7 7 3 ,9 5 3 2 ,5 6 9 1 ,6 0 6 8 5 6
W a s h in g t o n  5 5 .8 6 ,3 7 8 3 ,1 6 9 2 ,1 2 3 1 ,6 2 2 1 ,3 5 9 8 42
W ilk in s o n 4 3 .8 2 ,8 9 4 1 ,1 9 4 2 ,9 3 9 2 ,2 1 1 1 ,9 0 3 9 4 0

A v e r a g e 4 5 .4
H ig h 6 7 .2 $ 5 ,0 5 1 $ 3 ,4 1 8 $ 2 ,1 7 4 1 ,0 3 6
L o w 2 0 .6 1 ,9 0 ? 1 ,5 3 7 1 ,2 0 4 6 5 7
T o ta l 1 3 1 ,2 2 ? 4 5 ,9 2 2



49

“APPENDIX C.

Department of Justice Proposal for Amending 
Section 1864, Title 18, United States Code

Proposed Amendment

A BILL
To provide for a jury commission for each United States 

district court, to regulate its compensation, to pre­
scribe its duties, and for other purposes.
Be it enacted by the Senate and House of Representa­

tives of the United States of America in Congress as­
sembled, That section 1864 of title 28, of the United States 
Code is amended to read as follows:

1864. Jury commission: Duties, compensation, and
methods of selecting and drawing jurors.

‘(a) Appointment.—A jury commission shall be es­
tablished in each judicial district, consisting of the clerk 
of the court and one or more jury commissioners, appointed 
by the district court. The jury commissioner shall be a 
citizen of the United States of good character residing in 
the district of appointment who, at the time of his appoint­
ment, shall not be a member of the same political party 
as the clerk of the court or a duly qualified deputy clerk 
acting for the clerk. If more than one jury commissioner 
is appointed, each may be designated to serve in one or



50

more of the places \yhere court is held, and the clerk and 
the jury commissioner so designated shall constitute the 
jury commission for the part of the district. In the event 
that a jury commissioner is unable for any reason to per­
form his duties, another jury commissioner may be ap­
pointed, as provided herein, to act in his place until he is 
able to resume his duties.

‘Jury commissioners shall be appointed to serve on 
a part-time or full-time basis. If in the opinion of the court 
the efficient operation of the jury system requires the 
services of a full-time jury commissioner, the court may, 
with the approval of the Judicial Conference of the United 
States, appoint one or more full-time jury commissioners.

‘ (b) Duties.—In the performance of all its duties the 
jury commission shall act under the direction and super­
vision of the chief judge of the district.

‘The sources of the names and the methods to be used 
by the jury commission in selecting the names of persons 
who may be called for grand or petit jury service shall 
be as directed by the chief judge. The procedures em­
ployed by the jury commission in selecting the names of 
qualified persons to be placed in the jury box shall not 
systematically or deliberately exclude any group from the 
jury panel on account of race, sex, political or religious 
affiliation, or economic or social status. In determining 
whether persons are qualified as jurors under section 1861 
of this title, the jury commission shall use questionnaires 
and such other means as the chief judge may deem ap­
propriate, including the administering of oaths.



51

‘The names of jurors shall be publicly drawn by 
chance from a jury box, wheel or similar device which 
contains at the commencement of each drawing the names 
of not less than three hundred qualified persons selected 
by the jury commission in accordance with the provisions 
of this subsection.

‘The jury commission shall keep records of the names 
of persons placed in the jury box, wheel or similar de­
vice, the questionnaires returned by said persons, the 
names of the persons who are selected for jury service, 
the dates of service, and such other appropriate records 
as the chief judge may direct, all for a period of not less 
than two years. With the approval of the chief judge, 
the jury commission may designate deputy clerks and 
other employees in the office of the clerk of the court to 
assist the commission in the performance of its duties and 
to perform under its direction such of the detailed duties 
of the commission as in the opinion of the chief judge can 
be assigned to them.

‘(c) Compensation.—Each jury commissioner ap­
pointed on a part-time basis shall be compensated for his 
services at the rate of ten dollars per day for each day 
in which he actually and necessarily is engaged in the 
performance of his official duties, to be paid upon certif­
icate of the chief judge of the district.

‘Each jury commissioner appointed on a full-time basis 
shall receive a salary to be fixed from time to time by 
the Judicial Conference of the United States at a rate 
which in the opinion of the Judicial Conference corresponds 
to that provided by the Classification Act of 1949, as



52

amended, for positions in the executive branch with com­
parable responsibilities.

‘Each jury commissioner shall receive his traveling 
and subsistence expenses within the limitations prescribed 
for clerks of district courts while absent from his des­
ignated post of duty on official business.

‘(d) Any of the powers or duties conferred upon 
the chief judge under this section may be delegated by 
him to another judge of the district: Provided, however, 
that where part of a district by agreement or order of 
court is assigned to one particular judge and he custom­
arily holds court there, as to such part of the district he 
shall perform the functions and fulfill the duties conferred 
upon the chief judge in this section.

‘(e) This section shall not apply to the District of 
Columbia.’

Sec. 2. Section 1865 of such title is amended by 
striking out the words ‘and may appoint a jury commis­
sioner for each such place’ in the second sentence of sub­
section (a) thereof and inserting a period after the word 
‘district’ in such sentence.

Sec. 3. Each jury commissioner holding office on the 
effective date of this Act shall continue in office until his 
successor is duly appointed and qualified.

Sec. 4. There are hereby authorized to be appropri­
ated, out of any money in the Treasury not otherwise 
appropriated, such sums as may be necessary to carry the 
provisions of this Act into effect.



53

Sec. 5. The provisions of this Act shall take effect 
ninety days after the date of approval thereof: Provided, 
however, that no grand or petit jury sworn prior to the 
effective date of this Act nor any person called or sum­
moned for jury service, or whose name is on a jury list 
or has been placed in a box, wheel, or similar device, prior 
to that date, shall be ineligible to serve if the procedure 
by which the jury or the individual juror was selected, 
called, summoned, or by which his name was listed or 
placed in a box, wheel, or similar device, was in com­
pliance with the law in effect at the time of such action.

Letter of Transmittal to Vice P resident 
and Speaker of the H ouse of 

Representatives

Office of the Attorney General

Washington, D.C.

January 25, 1963 
The Speaker

House of Representatives,
Washington, D.C.

Identical Submission to the Vice President.
Dear Mr. Speaker: There is attached for your con­

sideration and appropriate reference a draft bill “To pro­
vide for a jury commission for each United States district 
court, to regulate its compensation, to prescribe its duties, 
and for other purposes.”

For a number of years the Judicial Conference of 
the United States and the Department of Justice have



54

recommended the enactment of legislation establishing a 
jury commission in each United States district court. Re­
cent difficulties experienced by the Department in con­
nection with the selection of jurors in certain cases have 
emphasized the need for strengthening the jury selection 
process. Information developed by the Department in the 
course of a survey of the methods of jury panel selection 
and qualification indicate that in many districts the judici­
ary exercises little, if any, control over the jury com­
mission in the selection of jurors and, in some instances, 
is of the opinion that it has no authority to do so.

The draft bill is designed to improve and strengthen 
as well as to provide uniformity in the jury selection 
process. The responsibility of overseeing the operation of 
the system would be lodged in the chief judge of the 
district who would direct and supervise the jury commis­
sion in the performance of its duties. In order to avoid 
discriminatory practices, the measure would provide that 
the procedures employed by the jury commission in select­
ing the names of qualified persons for jury service “shall 
not systematically or deliberately exclude any groups 
from the jury panel on account of race, sex, political or 
religious affiliation, or economic or social status.” Also, 
in order to aid in the selection of qualified persons for 
jury service the jury commission would be required to 
use questionnaires and such other means as the chief 
judge deems appropriate. The jury commission would 
be required to keep complete records pertaining to the 
selection of persons for jury service and to retain such 
records for not less than two years. The measure would



55

not make ineligible for service any jury sworn prior to 
the effective date of the proposal nor any person called 
for jury service or whose name had been placed in a jury 
box or wheel prior to such date, if the procedure by which 
such jury or individual juror was selected was in com­
pliance with the law in effect at the time of such action.

The Judicial Conference of the United States, at its 
September 1962 meeting, endorsed this proposal.

The Bureau of the Budget has advised that there is 
no objection to the submission of this recommendation 
from the standpoint of the Administration’s program.

Sincerely,
Robert F. Kennedy,

Attorney General



M