Rabinowitz v. United States Motion for Leave to File and Brief Amicus Curiae in Support of Appellants

    United States Court of Appeals 
for the Fifth Circuit

No. 21256
JONI RABINOWITZ,

Appellant,
vs.

UNITED STATES OF AMERICA. 
Appellee

No. 21345
JACKSON, THOMAS, WELLS, KING AND CHATMON,

Appellants,
vs.

UNITED STATES OF AMERICA,
Appellee

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE IN SUPPORT 

OF APPELLANTS 
and

BRIEF OF NATIONAL LAWYERS GUILD 
AMICUS CURIAE IN SUPPORT 

OF APPELLANTS

ERNEST GOODMAN,
3220 Cadillac Tower,
Detroit 26, Michigan?

SAMUEL ROSENWEIN,
220 No. California Street,
Burbank, California 842-5667,

Attorneys for National Lawyers 
Guild Amicus Curie.

Interstate Brief 6  Record Co., 356 Congress St, E.. Detroit 26, Michigan



SUBJECT INDEX

Page
Motion for Leave to File Brief Amicus Curiae in

Support of Appellants........................................  1
Brief of National Lawyers Guild Amicus Curiae in

Support of Appellants........................................  3-13
Interest of the National Lawyers Guild... . 3-4
Statement ..................................................... 4
Argument ..................................................... 5-13

I. The historic role of the Grand Jury 
is that of guardian against oppres­
sive governmental action. ...............  5-8

II. The Grand Jury serves in its his­
toric role because of its representa­
tive character................................... 8-10

III. The Constitution and our historical 
heritage are particularly under­
mined by the practice of racial ex­
clusion from Grand Juries............... 11-13

INDEX TO AUTHORITIES CITED 
Cases

Beck v. Washington, 369 U.S. 541, 582-83, 82 S. Ct.
955 [dissenting opinion]......................................  8

College’s Case (1681) 8 How. St. Tr. 550..................  6
Earl of Shaftesbury’s Case (1681) 8 How. St. Tr. 759' 6
Hale v. Henkel, 201 U.S. 43, 59.................................  8
Smith v. 'Texas, 311 U.S. 128,130, 61 S. Ct. 164,165.. 10
Thiel v. Southern Pac. Co., 328 UJS. 217, 2!20‘, 66 S.

Ct. 984, 985..........................................................  10
United States v. Wells, 163 F. 313, 324...................... 8



XI

Miscellaneous Page

Burnstein, Grand Jury Secrecy, 22 Law In Transi­
tion 93 [1962]....... ,.............................................  9

Edwards, The Grand Jury 27 (1906).........................  5
Edwards, The Grand Jury 1-44 ([1906]....................  6
Kennedy & Briggs, Grand Jury ‘System 10 [1955]... 6
Kuh, The Grand Jury “ Presentment” : Foul Blow or

Fair Play? 55 Colum. L. Rev. 1103, 1108 [1955] 6
Weinstein and Shaw, Grand Jury Reports—-A Safe­

guard of Democracy, 1962 Wash. TJ.L.Q1 191
[1962] ....................*............................................ 10

Younger, The People’s Panel, 74-75...........................  9



IN THE

United States Court of Appeals 
for the Fifth Circuit

— f—

No. 21256
JONI RABINOWITZ,

Appellant,
vs,

UNITED STATES OF AMERICA,
Appellee

-------- f _ — .

No. 21345
JACKSON, THOMAS, WELLS, KING AND CHATMQN,

Appellants,
vs.

UNITED STATES OF AMERICA,
Appellee

----- ♦-----

MOTION FOE LEAVE TO FILE BRIEF 
AMICUS CURIAE IN SUPPORT 

OF APPELLANTS
-----*---- -

The National Lawyers Guild moves for leave to file the 
attached Brief Amicus Curiae. The interest of the Guild 
in the ease is set forth in the brief.

ERNEST GOODMAN,
SAMUEL ROSENWEIN,

Attorneys for National Lawyers Guild.



3

IN THE

United States Court of Appeals
for the Fifth Circuit

— +— -

No,, 21256
JONI RABINQWITZ,

Appellant,
vs,

UNITED STATES OF AMERICA,
Appellee

-----+---- -

No. 21345
JACKSON, THOMAS, WELLS, KING AND CHATMON,

Appellants,
vs,

UNITED STATES OF AMERICA,
Appellee

— — 4 ---- -

BRIEF OF NATIONAL LAWYERS GUILD 
AMICUS CURIAE IN SUPPORT 

OF APPELLANTS
---- #----

INTEREST OF THE NATIONAL LAWYERS GUILD

The National Lawyers Guild is a national bar associa­
tion which, throughout its history, has supported the in­
dependence of the institutions of bar, bench and jury as 
bulwarks in the struggle to preserve the civil liberties of 
all. It was the first national bar association to admit all 
members of the bar without regard to color. It also ac-



4

lively engages in the legal arena for the elimination of dis­
crimination and segregation in all forms.

The appellants were active participants in the struggle 
to assist those citizens denied their constitutional rights 
in the state of Georgia. They were indicted by a racially 
constituted Federal Grand Jury.

The Guild believes that justice can never be secured until 
racial considerations are eliminated as factors in the func­
tioning of every aspect of the judicial process—including 
the Grand Jury.

For these reasons it seems appropriate that the Guild 
submit its views as amicus curiae in this case.

STATEMENT
This brief is limited to the grand jury issue. On this 

question, amicus does not repeat the arguments briefed 
by appellant or other amici. The emphasis of the discussion 
which follows is on the historical development of the grand 
jury in England and in the United States as an institu­
tional device intended to assure the fair and impartial ad­
ministration of criminal justice. That history, it is sub­
mitted, casts significant light on the importance of main­
taining exacting standards in the selection of members of 
a grand jury to the end that the grand jury, as an instru­
ment of public justice, shall be truly representative of the 
community. On the record here, it does not appear that 
the grand jury was legally selected, and such an invalidly 
constituted jury, it is submitted, does not meet the con­
stitutional and democratic standards which history de­
mands.



5

ARGUMENT

L
THE HISTORIC ROLE OF THE GRAND JURY IS THAT 

OF GUARDIAN AGAINST OPPRESSIVE 
GOVERNMENTAL ACTION

The formative period in the history of the grand jury 
saw that body develop into the accusatory arm of the 
government. By the Fourteenth Century, the form of the 
grand jury, and its function of handing down indictments 
was much as it is today. [See, Edwards, The Gramd Jwy 
27 (1906).] This function of the grand jury was soon ex­
panded to include its more significant role—defender of 
the people’s liberty.

The history was summarized by Mr. Justice Field, sitting 
as Circuit Justice, as follows:

“The institution of the grand jury is of very an­
cient origin in the history of England; it goes back 
many centuries. For a long period its powers were 
not clearly defined; and it would seem, from accounts 
of commentators on the laws of that country, that 
it was at first a body which not only accused, but 
which also tried public offenders. However this 
may have been in its origin, it was, at the time of 
the settlement of this country, an informing and 
accusing tribunal only * * *. And in the struggles 
which at times arose in England between the powers 
of the king and the rights of the subject, it often 
stood as a barrier against persecution in his name; 
until, at length, it came to be regarded as an in­
stitution by which the subject was rendered secure 
against oppression from unfounded prosecution of 
the crown.”

(Charge to Grand Jury, 30 Fed. Cases 992, 993, 
No. 18,255.)



6

The independence of the grand jury was established by 
College’s Case, (1681) 8 How. St. Tr. 550, and the Earl of 
Shaftesbury’s Case (1681) 8 How. St. Tr. 759. In each 
case, the accused was charged with treason, but the grand 
jury found a bill “ignoramus” (the jury knows nothing 
of the charge). When the jurors in College’s case were 
asked why they had refused to indict, the answer was that 
they had acted “ ‘according to their consciences and that 
they would stand by it.’ ” (Kuh, The Grand Jury “ Present­
ment” : Foul Blow or Fair Play? 55 Colum. L. Key. 1108, 
1108 [1955].)

The true significance of these early cases can best be 
understood when it is realized that the grand jurors’ politi­
cal sympathies were with the accused, not with the king. 
In this sentiment they had the agreement of many people. 
(For an extensive discussion of the early history of the 
grand jury, see, Edwards, The Grand Jury 1-44 [1906]. 
See also, Kennedy & Briggs, Grand Jury System 10 [1955]; 
Kuh, op. cit., supra, 1108.) The action of the jury had a 
dual character: it was a demonstration of independence 
from the government and a reflection of popular support 
for the accused. The king’s solution to the action of the 
juries was the obvious: pick a new jury and get the desired 
indictment. This was done in the case of Stephen College, 
who was eventually executed. (Kuh, op. cit., supra, 1108; 
Edwards, op. cit., supra, 30.) But the grand jury had, 
by then, taken its place as protector of the people.

In Colonial America the grand jury was noted as an 
instrument of the people. The most celebrated example of 
the democratic role of the early American grand jury is 
in the case of John Peter Zenger. Zemger, editor and pub­
lisher of the Weekly Journal, a New York paper, used his 
paper to express anti-royalist sentiment. In 1735 a grand



7

jury twice refused to indict him for libel. (Edwards, 
op. tit., supra, 32.) Again, the grand jury acted as an in­
strument of the people; as a barrier against oppression. 
Its primary concern at the time of the Zenger trial was 
to insure liberty and freedom of the press for the people.

By the end of the Colonial period in American history, 
the grand jury had established itself as an indispensable 
arm of democratic government. Juries “ enforced or re­
fused to enforce laws as they sawT fit and stood guard 
against indiscriminate prosecution by royal officials.” 
(Younger, op. \dt., supra, 26.) The colonists were so firmly 
convinced that the grand jury was “a necessary and funda­
mental safeguard of individual rights against governmental 
oppression” (17 U. Miami L. Rev. 110 [1962]) that they 
overtly manifested such belief in the Fifth and Sixth 
Amendments of the United States Constitution.

The importance of the grand jury as an instrument of 
democracy did not end with the revolution. Grand juries 
supervised law enforcement activities of sheriffs and eon- 
stables, and watched the activities of public officials. “At 
the time of the Alien and Sedition trials Judge Harry Innes 
advised a Frankfort, Kentucky, grand jury that its proper 
place was ‘as a strong barrier between the supreme power 
of the government and the citizens,’ rather than an instru­
ment of the state * * * Innes told the grand jurors that 
their duty was to shield the innocent from ‘unjust persecu­
tions.’ ” (Younger, op. cit., supra, 54-55.)

From the early post-Revolutionary days to the present, 
grand juries have been thought of as a means of protect­
ing citizens from injustice. Again, in the words of Justice 
Field:

“ In this country, from the popular character of 
our institutions, there has seldom been any contest



8

between the government and the citizen, which re­
quired the existence of the grand jury as a pro­
tection against oppressive action of the government. 
Yet the institution was adopted in this country from 
considerations similar to those which gave it its 
chief value in England, and is designed as a means, 
not only of bringing to trial persons accused of 
public offenses upon just grounds, but also as a 
means of protecting the citizen against unfounded 
accusation, whether it come from government or be
prompted by partisan passion or private enmity # # #

“ [TJhere is a double duty cast upon the jurors of 
this district; one a duty to the government, or more 
properly speaking, to society, to see that parties 
against whom there is a just ground to charge the 
commission of a crime, shall be held to answer the 
charge; and on the other hand, a duty to the citizen 
to see that he is not subjected to prosecution upon 
accusations having no better foundation than public 
clamor or private malice.”

(30 Fed. Cases, supra, at 993;

See also :
Beck v. Washington, 369 U.S. 541, 582-83, 82 S.

Ct. 955 [dissenting opinion];
Hale v. Henkel, 201 U.S. 43, 59.)

II.
THE GRAND JURY SERVES IN ITS HISTORIC ROLE BECAUSE 

OF ITS REPRESENTATIVE CHARACTER

Two significant characteristics of the grand jury have 
made it possible for that institution to function “ as a safe­
guard against arbitrary or oppressive action.” (United 
States v. Wells, 163 F. 313, 324.) Secrecy is the first of



9

these. Briefly, it was necessary for jurymen to deliberate 
in secret in order to protect themselves from royal dis­
pleasure. It still remains an important safeguard against 
harassment of grand jurors. (See, generally, Burnstein, 
Grand Jwny Secrecy., 22 Law In Transition 93 [1962].) 
The other feature of importance is the grand jury’s repre­
sentative character. The earliest American grand juries 
were elected, usually by the town meeting. They reflected 
the revolutionary tenor of the colonists, and were in the 
lead in opposing the imperial government. (Younger, op. 
cit., s%pra, 27.)

The broad, popular character of the grand jury of the 
frontier is described by Younger (The People's Panel 74- 
75) as follows:

“ Jurymen were indistinguishable from other per­
sons gathered at the county seat to trade and enjoy 
themselves. The only thing that set them apart 
from their neighbors was the summons they had 
received from the sheriff, telling them to appear for 
grand jury duty at the approaching session of the 
court. In most western territories and states the 
clerk of the court chose the grand jurors by lot from 
the list of eligible persons * # * All qualified electors 
were eligible for jury duty in most western areas. 
In only a few states was land ownership a prerequi­
site. However, as in the Colonial period, the re­
quirements were not high. Preemption claimants 
and those who had made their first payment on gov­
ernment land were regarded as landowners.”

The relationship of the composition of the grand jury 
to its function was recognized by Chief Justice Shaw, Su­
preme Judicial Court of Massachusetts.

“ Coming from the various parts of the country, 
first designated by their townsmen, as persons well 
fitted by their capacity, integrity, and personal



10

worth of character, to discharge the important func­
tions of jurors, and then for each particular service, 
designated by lot, without regard to sect or party, 
rank or condition, the Grand Jury may justly be 
regarded as a fair representation of the county, 
participating in all the interests and feelings of the 
people, and well acquainted with their condition and 
circumstances. They bring with them all the local 
knowledge and information, which are requisite to 
enable them to perform their important duties with 
efficiency, impartiality, and success.”

(Charge to Grand Jury, 8 Am. Jurist 216.)

The modern grand jury is thought to be as much a 
representative of the people as it was in the past.

“A grand jury is a short-lived, representative, 
non-political body of citizens functioning without 
hope of personal aggrandizement. It comes from 
the citizens at large and soon disappears into its 
anonymity * * *”

(Weinstein and Shaw, Grand Jury Reports—A 
Safeguard of Democracy, 1962 Wash. U.L.Q. 
191 [1962].)

The historical position of the jury, in this case the grand 
jury, has been recognized by the Supreme Court. Thus, 
it has been said: “ It is a part of the established tradition 
in the use of juries as instruments of public justice that 
the jury be a body truly representative of the community.” 
Smith v. Terns, 311 IJ.S. 128, 130, 61 S, Ct. 164, 165. To 
the same effect is Thiel v. Southern, Pac. Go., 328 IJ.S. 217, 
220, 66 S. Ct. 984, 985.

Unless a grand jury has been selected in a manner which 
permits it to carry out its historic function—-people’s rep­
resentative and guardian against oppression—it is respect­
fully submitted it has been improperly selected.



11

III.
THE CONSTITUTION AND OUR HISTORICAL HERITAGE ARE 

PARTICULARLY UNDERMINED BY THE PRACTICE OF 
RACIAL EXCLUSION FROM GRAND JURIES

A n official policy which, denies participation in the in­
strumentalities of justice to one class of citizens because 
of race is, of course, a denial of the equal protection of the 
laws, and a subversion of the true administration of crimi­
nal justice. Such policy, moreover, strikes at the very heart 
of a grand jury system where fair representation of a 
cross-section of the community is integral to the historic 
function of the grand jury.

In the Southern States, the disparity between the quali­
fied Negro population and those Negroes who appear on 
grand and petit jury lists is so great as to make it plain 
that the requisite representative character of such juries 
is non-existent. In 1960, the twelve iSouthern States ( Ala­
bama, Arkansas, Florida, Georgia, Louisiana, Mississippi, 
North Carolina, Oklahoma, South Carolina, Tennessee, 
Texas and Virginia) had a total population of 45,781,599 
persons. Bureau of the Census, World Almanac (1962) 
255. Of this population, 10,180,688, or some 22%, were 
non-white, predominantly Negroes. Bureau of the Census, 
World Almanac (1962 ) 257. In the same year, these South­
ern States had a population of voting age (generally 21 
years, except Florida where the voting age is 18) totaling 
26,528,885. Statistical Abstract of the United States (1962) 
374. At the same time, there were 5,131,042 non-whites, or 
20%, of similar voting age in such Southern States. The 
Black Belt, which extends from Tidewater, Virginia down



12

the Coast of the Carolinas, and westward across Central 
Georgia and Alabama to the Mississippi Delta; up through 
Mississippi and Louisiana into Tennessee and Arkansas, 
touching Florida and 'Texas (1981 Report of United States 
Commission on Civil Rights, vol. 1, p. 143) has an even 
greater percentage of qualified Negro inhabitants. Swpra, 
331-341.

There is every indication that a substantial number of 
Negroes in the Southern States are eligible for service 
on grand and petit juries, but repeated investigations have 
demonstrated that in many sections of the South “ the 
only service rendered by Negroes in the courts of justice 
is janitorial”. 1961 Report of the United States Commis­
sion on Civil Rights, vol. 1, p. 179. There are counties in 
the Southern States in which Negroes constitute the ma­
jority of the residents but take no part in government 
either as voters or jurors, swpra, p. 179. It is common 
knowledge that Negro citizens are qualified educationally 
and by other legal standards but are excluded from serv­
ing as jurors solely because of their race or color. The 
inference is plain from long-continued exclusion of Negroes 
from any jury service in the Southern States that whole­
sale discrimination exists in law and in fact. “ The serious 
and continuing nature of the problem is revealed by the 
frequency of cases in which the issue of jury exclusion 
is raised and by local situations which the facts in those 
cases disclosed; by the plain statements of judges and of­
ficial observers; and by various field studies conducted by 
the Commission’s staff.” 1961 Report of the United States 
Commission on Civil Rights, vol. 5, p. 90.



13

It is plain, in the light of the aforesaid, that the grand 
jury system which functions in the Southern States is in 
large measure alien to onr historic traditions and to 
American concepts of even-handed justice.

Respectfully submitted,
ERNEST GOODMAN,

3220 Cadillac Tower,
Detroit 26, Michigan.

SAMUEL ROSENWEIN,
220 No. California St.,
Burbank, California 842-5667,

Attorneys for National Lawyers 
Guild Amicus Curiae.