Carter v. Jury Commission of Greene County, Alabama Jurisdictional Statement

    -/69

I n t h e

(Emtrt ni tin Btutvs
October Term, 1968 

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

W illie Carter Sr., J ohn Head, R ev. P ercy McShan,
Appellants,

---y.---

J ury Commission oe Greene County, A labama, et al.,

Appellees.

ON APPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  N O R T H E R N  D ISTRICT OF ALAB A M A

JURISDICTIONAL STATEMENT

Jack Greenberg 
Norman C. A maker 
James N. F inney

10 Columbus Circle 
New York, New York 10019

Orzell B illingsley, J r.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



I N D E X

Opinion B elow .........................................................................  1

Jurisdiction ........ ........ ................................ -.............. -..... -  2

Constitutional and Statutory Provisions Involved....... 3

Questions Presented.............................-........... ....... — ....  4

Statement ......... .......... -...... - ....................... .............. -.......  5

A. Introduction..............................................   5

B. Selection Process of Jury Commissioners and
Jurors .................................................................... -  7

T he Questions Presented A re Substantial..................  9

I. Code of Alabama, Title 30, §21 Is Unconstitu­
tionally Vague Because It Permits the Arbitrary 
Exclusion of Negroes From Service as Jurors 
in Violation of the Fourteenth Amendment to 
the Constitution of the United States...................  10

II. The Jury Commission of Greene County Is Un­
constitutionally Constituted Because It Per­
petuates Racially Discriminatory Juror Selec­
tion in Violation of the Fourteenth Amendment 
to the Constitution of the United States............. 16

Conclusion......... .................... -..................................... ...........  18

A ppendix :

Opinion and O rder......................................................  la

Final Judgment .........................-................................  25a

Statutory Provisions Involved (Text) ....................  29a

PAGE



11

Table of A uthorities

Cases: page

Baggett v. Bullitt, 377 U.S. 360 (1964) .......................  11
Banks, et al. v. Holley, C.A. 735-E (MJD. Ala. 1967) 14
Bokulich, et al. v. Jury Comm, of Greene Co., No.

1255 Misc., O.T. 1968 .............................................. 2n, 6
Board of Supervisors v. Ludley, 252 F.2d 372 (5tlx

Cir. 1958), cert, denied, 358 U.S. 819 (1958) ...........  11
Bostick v. South Carolina, 386 U.S. 479 (1967) .......  11
Brooks v. Beto, 366 F.2d 1 (5th Cir. en banc, 1966)

16,17
Bush, et al. v. Woolf, C.A. 68-206 (N.D. Ala. 1968) .... 14

Coleman v. Alabama, 377 U.S. 129 (1964) ................... 5
Coleman v. Alabama, 389 U.S. 22 (1967) ...................5 ,12n
Coleman v. Barton, C.A. 63-4 (N.D. Ala. June 10, 

1964) ............................................................................ 12,13

Dennard, et al. v. Baker, C.A. 2654-N (M.D. Ala.
1968) ...................................................  14

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), a ffd  
336 U.S. 933 (1949) ....................................................  11

Good, et al. v. Slaughter, C.A. 2677-N (M.D. Ala. 
1968) ..............................................................................  14

Hadnott, et al. v. Narramore, C.A. 2681-N (M.D. Ala.
1968) ..............................................................................  14

Herndon v. Lowry, 301 U.S. 242 (1937) .......................  11
Huff, et al. v. White, C.A. 68-223-N (M.D. Ala.) .....  14

Idlewild Bon Voyage Liquor Corporation v. Epstein,
370 U.S. 713 (1962) ............    3

Jones, et al. v. Davis, C.A. 967-S (M.D. Ala.) ...........  14
Jones, et al. v. Wilson, C.A. 66-92 (N.D. Ala.), on ap­

peal sub nom. Salary v. Wilson (No. 25978, 5th 
Cir.) _..............- ............................................................... 14



I l l

Labat v. Bennett, 365 F.2d 698 (5th Cir. en banc,
1966) ..............................................................................  13

Louisiana v. United States, 380 U.S. 145 (1965) .....11,17

McNab, et al. v. Griswold, C.A. 2653 (M.D. Ala. 1968) 14
Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala. 

1966) .........................    14

Palmer, et al. v. Davis, C.A. 967-S (M.D. Ala.) .......  14
Palmer, et al. v. Steindorff, C.A. 2679-N (M.D. Ala.

1968) ..............................................................................  14
Preston, et al. v. Mandeville, C.A. 5059-68 (S.D. 

Ala.) ..... .......... -........................................... -................  14

Rabinowitz v. United States, 366 F.2d 34 (5th Cir.
en banc, 1966) ....................................................... 13

Reese, et al. v. Pickering, C.A. 3839-65 (S.D. Ala.
1968) ..............................................................................  14

Richardson, et al. v. Wilson, C.A. 68-300 (N.D. Ala.) 14

Smith v. Texas, 311 U.S. 128 (1940) ..............................  13
South Carolina v. Katzenbach, 383 U.S. 301 (1966)

11,17
Staub v. City of Baxley, 355 U.S. 313 (1958) .............  11

Turner v. Spencer, 261 F. Sapp. 542 (S.D. Ala. 
1966) .......................................... ...... -...........................  14

Umted States v. L. Cohen Grocery Co., 255 U.S. 81 
(1921) ......................................... -.................................  10

White v. Crook, 241 F. Supp. 401 (M.D. Ala. 1966)
12n, 14

Whitus v. Georgia, 385 U.S. 545 (1967) ..................... 11
Winters v. New York, 333 U.S. 507 (1948) ............... 11

PAGE



IV

Federal Statutes:

28 U.S.C. §1253 ......................................    3
28 U.S.C. §1331 ................................................................  2
28 U.S.C. §1343 ................................................................  2
28 U.S.C. §1865 ................................................................  15n
28 U.S.C. §2201 .......   2
28 U.S.C. §2202 ..............    2
28 U.S.C. §2281 ................................................................  2, 5
28 U.S.C. §2283 ............... ....... ....... ............... ....... ..........  2
28 U.S.C. §2284 ................................................................  2, 5
42 U.S.C. §1973 ................................................................  15n
42 U.S.C. §1981 ................................................................  2

State Statutes-.

Ala. Code Tit. 30, §4 ......................................................  2
Ala. Code (Supp. 1967) Tit. 30, § 9 ...........................2,4,16
Ala. Code Tit. 30, §10 .............................................2, 4, 9,16
Ala. Code Tit. 30, §15 ....................................................  7
Ala. Code Tit. 30, §18 ....................................................  4, 7
Ala. Code Tit. 30, §20 .............................................. 2, 4, 6, 7
Ala. Code Tit. 30, §21 ............................ 2, 4 ,10 ,12n, 14,17
Ala. Code Tit. 30, §24  ......................................... .........  2, 4
Ala. Code Tit. 30, §30 ....................................................  2,4

Other Authorities

Kuhn, “ Jury Discrimination: The Next Phase” , 41 
U.S.C. Law Rev. 235 (1968) ....................,..................  15n

Note, “ The Congress, The Court and Jury Selection”,
52 Va. L. Rev. 1069 (1966) ........................................  15n

PAGE



I n  t h e

g>upremi> ©Hurt ni %  'MnxUb Bt&tzs
October Term, 1968 

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

W illie Carter Sr., J ohn H ead, R ev. P ercy M cShan,

Appellants,
— y.—

J ury Commission of Greene County, Alabama, et al.,

Appellees.

ON A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  N O R T H E R N  DISTRICT OF ALABAM A

JURISDICTIONAL STATEMENT

Appellants appeal from the final judgment of the United 
States District Court for the Northern District of Alabama 
entered September 13, 1968, refusing to declare Alabama 
Code, Title 30, Sections 4 and 21 unconstitutional on their 
face because of vagueness and as applied and to enjoin 
their operation and enforcement, and further refusing to 
declare the all-white jury commission of Greene County, 
Alabama unconstitutional. This statement is submitted to 
show that this Court has jurisdiction of the appeal and 
that substantial questions are presented.

Opinion Below

The opinion of the District Court for the Northern Dis­
trict of Alabama is as yet unreported and is set forth in



2

the Appendix, p. la, infra. (Hereinafter, references to the 
Appendix will be designated by A.)

Jurisdiction

This is an action for injunctive and declaratory relief 
in which the jurisdiction of a District Court of three judges 
was invoked under 28 TJ.S.C. §§1331, 1343, 2201, 2202, 2281, 
2283 and 2284, and under 42 TJ.S.C. §1981 to vindicate and 
enforce rights of the plaintiffs guaranteed by the due 
process and Equal Protection Clauses of the Fourteenth 
Amendment alleged to be violated by a statute of the State 
of Alabama (Title 30, §21) governing the qualifications of 
jurors and by the practice of selecting only white jury 
commissioners by the State’s Governor pursuant to Title 
30, §§9 and 10, Code of Alabama (1958), as amended.

The final judgment of the Court below entered Septem­
ber 13, 1968, inter alia, adjudged that there is systematic 
exclusion of Negroes from jury rolls of Greene County, 
Alabama, by reason of purposeful discrimination and en­
joined the jury commission, its clerk, and agents from such 
exclusion. However, the Court upheld the constitutionality 
of the challenged statutory provisions against plaintiffs’ 
prayer that they be declared unconstitutional on their face.

Notice of Appeal on behalf of appellants Carter, Head, 
McShan, and the class they represent was timely filed on 
November 7, 1968. A  certified copy of the record from the 
district court was filed in this court on December 16, 1968 
and the Clerk has been advised that it will serve as the 
basis for this appeal and the separate appeal of three other 
plaintiffs in the district court relating to other issues.1

1 That appeal was docketed here on Dee. 11, 1968 as BoTculich v. 
Jury Commission of Greene Co., No. 1255 Misc. O.T. 1968.



3

Receipt of the record was acknowledged by the office of the 
Clerk of the Court December 17, 1968.

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1253 to review the judgment of the three-judge 
district court denying, after notice and hearing, interlocu­
tory and permanent injunctive relief against the enforce­
ment of the statutes of the State of Alabama on the ground 
that they violate the Federal Constitution. See, e.g., Idle- 
wild Bon Voyage Liquor Corporation v. Epstein, 370 TJ.S. 
713 (1962).

Constitutional and Statutory Provisions Involved

The primary statutory provision involved in this litiga­
tion is Code of Alabama Tit. 30, Section 21, as amended 
Sept. 12, 1966 which reads as follows:

“ The jury commission shall place on the jury roll and 
in the jury box the names of all citizens of the County 
who are generally reputed to be honest and intelli­
gent and are esteemed in the community for their in­
tegrity, good character and sound judgment; but no 
person must be selected who is under twenty-one or 
who is an habitual drunkard, or who, being afflicted 
with a permanent disease or physical weakness is unfit 
to discharge the duties of a juror; or cannot read 
English or who has ever been convicted of any offense 
involving moral turpitude. If a person cannot read 
English and has all the other qualifications prescribed 
herein and is a freeholder or householder his name 
may be placed on the jury roll and in the jury box. 
No person over the age of sixty five years shall be 
registered to serve on a jury or to remain on the panel 
of jurors unless willing to do so. When any female 
shall have been summoned for jury duty she shall



4

have the right to appear before the trial judge, and 
such judge, for good cause shown shall have the judicial 
discretion to excuse said person from jury duty. The 
foregoing provision shall apply in either regular or 
special venire.”

The following additional provisions are material to an 
understanding of the issues presented: Code of Alabama, 
Tit. 30, Sections 9, 10, 18, 20, 24 and 30. These enactments 
are set out in full in the Appendix at pp. 29a-32a, infra.

This action also involves the Fourteenth Amendment to 
the Constitution of the United States.

Questions Presented

1. Whether Code of Alabama, Title 30 §21 is unconsti­
tutionally vague in violation of the Fourteenth Amendment 
because its requirement that jurors be persons “who are 
generally reputed to be honest and intelligent and are 
esteemed in the community for their integrity, good char­
acter and sound judgment” provides Alabama jury officials 
with the opportunity to discriminate on racial and other 
grounds, an opportunity shown by the record to have been 
resorted to in this case?

2. Whether Alabama’s practice of appointing only white 
persons to serve as jury commissioners violates the Four­
teenth Amendment where the all-white jury commissioners 
customarily resort to the opportunity to discriminate pro­
vided by statute or are so unrepresentative of a cross- 
section of the community, particularly a community with 
a majority black population, that they fail to produce jury 
rolls reflecting that cross-section?



5

Statement

A. Introduction

This civil action challenging the constitutionality of 
Alabama’s juror selection statute on its face and as ap­
plied arises from Greene County, Alabama, the locus of 
Coleman v. Alabama, 377 U.S. 129 (1964) (Coleman I ) ; 
389 U.S. 22 (1967) (Coleman II). It was initiated by Paul 
M. Bokulich, Willie Carter, Sr., John Head, and Rev. Percy 
McShan. Paul Bokulich was in 1966 when he was arrested 
and charged with grand larceny, a white civil rights worker 
associated with the Southern Christian Leadership Con­
ference. Arrested at the same time as Bokulich and also 
charged with grand larceny were George Greene and 
Hubert G. Brown, both Negro civil rights workers. Before 
filing this action, Bokulich obtained an order from the 
Court of Appeals for the Fifth Circuit enjoining and re­
straining the prosecution of the criminal action. Since the 
action involved a claim of the unconstitutionality of stat­
utes of the state of Alabama, it was appropriately tried 
by a federal district court of three judges. 28 U.S.C. 
§§2281, 2284. George Greene and Hubert Brown subse­
quently joined in the civil action as plaintiffs-intervenors.

Appellants Carter, Head and McShan are Negro citizens 
and residents of Greene County, and joined in this action 
as plaintiffs on behalf of themselves individually and as 
representatives of a class consisting of all potentially 
eligible Negro jurors of Greene County who are excluded 
from such service because of their race.

As to plaintiff Bokulich, and plaintiffs-intervenors Greene 
and Brown, the Court below held that the discriminatory 
exclusion of Negroes from the grand jury constituted a 
violation of both equal protection and due process (A-20a).



6

In considering relief to be granted, however, the Court 
held:

The normal and most appropriate method for Bokulich, 
Brown and Greene to raise the composition of the 
jury roll and the operation of the jury selection sys­
tem is in criminal prosecutions in the state courts, if 
indictments issue. (A-22a).

The court thus refused to continue in effect the stay of the 
state criminal prosecutions. They have taken a separate 
appeal to this court from the district court’s refusal to 
enjoin their state court prosecutions. (Bokulich, et al. v. 
Jury Commission of Greene Co., Ala., et al., No. 1255 Misc. 
O.T. 1968.)

With respect to plaintiffs Carter, Head and McShan and 
the class they represent, the Court below held:

. . . that Negro citizens of Greene County are dis- 
criminatorily excluded from consideration for jury 
service, in violation of the equal protection clause of 
the Fourteenth Amendment, and Title 30, §21 has been 
unconstitutionally applied to as them. (A-20a).

They, the Court continued, “ . . . are entitled to an injunc­
tion against discriminatory exclusion of Negroes from con­
sideration for jury service in Greene County.” (A-21a). 
In the implementation of the holding, defendants were 
ordered to “take prompt action to compile a jury list for 
Greene County, Alabama . . . [and] to file with this [Dis­
trict] court within sixty days a jury list as so compiled, 
showing thereon the information required by Title 30, §20, 
Code of Alabama (1958), as amended, plus the race of 
each juror, and if available the age of each juror, and a 
report setting forth the procedures, system and method by 
which said list was compiled. . . . ” (A-27a).



7

But the Court refused to declare §21 unconstitutional 
on its face (A-26a) and refused to declare the county jury 
commission unconstitutionally constituted (A-27a), and it 
is from this portion of the order and judgment that this 
appeal is taken.

B. Selection Process of Jury Commissioners and Jurors

The standards and procedure for selecting jury Com­
missioners and Jurors are contained in Code of Alabama, 
Title 30.

Each county has a jury commission comprised of three 
members appointed by the Governor. The Commission is 
charged with the duty of preparing a jury roll containing 
the names of every citizen living in the county who pos­
sesses the prescribed qualifications and who is not exempted 
by law from serving on juries.

The selection process contemplated by the statute op­
erates in two stages. First there is the collection of names 
of substantially all persons potentially eligible for jury 
service. The clerk of the Circuit Court may be employed 
as clerk of the Commission, Title 30, §15, and in Greene 
County was so employed. Title 30, §18 directs the clerk 
of the commission to obtain the name of every citizen of 
the county over twenty-one and under sixty-five. Sources 
from which such names are to be collected are contained in 
Title 30, §24, which directs the commission, through its 
clerk, to scan the registration lists, the tax assessor’s lists, 
any city directories and telephone directories “ and any and' 
every source of information from which he may obtain 
information, and to visit every precinct at least once each 
year.”

The second stage involves application of the statutory 
qualifications to the general pool of potential jurors so



8

selected. “ The jury commission . . . shall make in a well 
bound book a roll containing the name of every citizen 
living in the county who possesses the qualifications herein 
prescribed and who is not exempted by law from serving 
on juries.” Title 30, §20.

A  qualified juror is one who is “generally reputed to 
be honest and intelligent . . . and esteemed in the com­
munity for [his] integrity, good character and sound 
judgment.” Title 30, Section 21.

In Greene County, the clerk of the commission did not 
obtain the names of all potentially eligible jurors as pro­
vided by §18. She testified below that she never prepared 
a list of all potentially eligible persons between the ages 
of 21 and 65 (T. 93).* Everyone on the jury roll is con­
sidered qualified and remains on the roll unless he dies or 
moves away (T. 148). New names are added to the old 
roll. Both the clerk and the jury commissioners secure 
names of persons suggested for consideration as new 
jurors.

In securing the new names, the clerk testified that she 
did not use the tax assessor’s list (T. I l l ) ,  that she did 
not use all available telephone directories (T. 100), and 
that she did not know the reputation of most of the Negroes 
in the county (T. 138). She visits each of the eleven beats 
in the county annually and talks with persons she knows 
to secure names (Yarborough, Deposition, p. 13). The 
names suggested to her and to the commissioners by 
Negroes in the community are accepted without further 
investigation to see that they meet the qualifications neces­
sary (T. 136-137).

The commissioners, who exercise their subjective judg­
ment in applying these qualifications, are appointed pursu­

* ( “ T.” references are to the transcript of the. trial below).



9

ant to statute. Title 30, §10 provides that they are to be 
appointed by the governor. Title 30, §9 requires the com­
missioners so appointed to “ be persons reputed for their 
fairness, impartiality, integrity and good judgment.”

In practice, the Jury Commissioners appointed in Greene 
County are now and, as far as appellants have been able 
to ascertain have always been, entirely white (T. 88). They 
share with the clerk the responsibility for adding new 
names to the general pool. Their procedures are even less 
formalized than the clerk’s. The commissioners “ ask 
around” for names of possible jurors usually in the area 
of the county in which they reside (T. 183). At the 
August 1966 meeting one commissioner was new and sub­
mitted no names (T. 143). Another had been ill and un­
able to seek many names at all (T. 142). The third could 
remember only one Negro name that he suggested (Gray 
Deposition, p. 17).

Thus in practice, as the court below noted, “ the system 
operate[s] exactly in reverse from what the state statutes 
contemplate.” (A-12a) It produces a small group of indi­
vidually selected or recommended names for consideration, 
provided by white administrators and citizens with limited 
contact with the Negro community. No meaningful pro­
cedure exists for the inclusion of Negro names.

Evidence produced at the trial below established that 
although approximately 74% of the male population of 
Green County over 21 years of age was Negro, at no time 
during the period from 1961 to 1966 did the percentage 
of Negroes on the jury roll exceed 19% (Summary of 
Evidence, E.132).

The 1961 jury roll was 95% white, 5% Negro. Before 
the extraordinary session of January 1967, it had become 
81% white, 19% Negro (Summary of Evidence, R.132).



10

After the extraordinary session, in which women were 
added to the roll for the first time, it was 68% white, 32% 
Negro (Summary of Evidence, R.132). This is to be con­
trasted with the estimate of population at that time of 
65% Negro and 35% white (A-15a).

Appellants contend that this gross disparity resulted 
not only from the discriminatory administration of the 
statutes as the district court found but principally from 
the vague statutory standards for juror qualification which 
invested the all white jury commissioners with sufficient 
discretion to permit them to discriminate on racial grounds.

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

I.

Code of Alabama, Title 30, §21 Is Unconstitutionally 
Vague Because It Permits the Arbitrary Exclusion of 
Negroes From Service As Jurors In Violation of the 
Fourteenth Amendment to the Constitution of the 
United States.

Alabama’s statutory standards for prospective jurors 
are vague. Jury Commissioners must select only those 
persons:

“ generally reputed to be honest and intelligent . . . 
and . . . esteemed in the community for their integ­
rity, good character and sound judgment.”  Code of 
Ala., Tit. 30, §21.

In numerous cases involving a variety of rights, this 
Court has declared similar statutory or regulatory language 
permitting public officials to make subjective decisions un­
constitutionally vague: United States v. L. Cohen Grocery 
Co., 255 U.S. 81 (1921); economic regulation legislation:



11

“Unreasonable Charges” ; Baggett v. Bullitt, 377 U.S. 360 
(1964), due process: “ subversive person” ; Herndon v. 
Lowry, 301 U.S. 242 (1937), free speech and assembly: 
“ insurrection” ; Winters v. New York, 333 U.S. 507 (1948), 
due process and freedom of the press: “ obscene” .

In Staub v. City of Baxley, 355 U.S. 313 (1958), the Court 
applied the rule to an ordinance which prohibited soliciting 
without a license from the mayor and city council who, in 
passing upon the application were to consider the character 
of the applicant. Similarly, a statute requiring a certifi­
cate of “ good moral character” as a prerequisite to college 
admission was invalidated by the Fifth Circuit. Board of 
Supervisors v. Ludley, 252 F.2d 372 (5th Cir. 1958), cert, 
denied, 358 U.S. 819 (1958).

Because Alabama’s statutory qualifications are vague, 
they furnish jury commissioners with an opportunity to 
discriminate on a variety of grounds. Cf. Whitus v. Georgia, 
385 U.S. 545, 552 (1967); Bostick v. South Carolina, 386 
U.S. 479 (1967).

In the hands of all-white jury commissioners, against 
the backdrop of the racial history of the state and region, 
Alabama’s vague statutory standards provide an oppor­
tunity to discriminate on racial grounds. Cf. Louisiana v. 
United States, 380 U.S. 145 (1965); Davis v. Schnell, 81 
F. Supp. 872 (S.D. Ala.), aff’d per curiam, 336 U.S. 933 
(1949). In South Carolina v. Katzenbach, 383 U.S. 301 
(1966), this Court, at pp. 312-313 said:

“ . . . the good morals requirements is so vague and sub­
jective that it has constituted an open invitation to 
abuse at the hands of voting officials.”

The record in this case shows that the opportunity to 
discriminate racially has been resorted to in Greene County. 
Statistics in the record show:



12

1960 Census, Greene County 
Persons over 21 Years of Age

White
%

White Negro
%

Negro
Male 775 26% 2,247 74%
Female 874 24% 2,754 76%

Total 1,649 5,001

Composition of Jury Bolls
1961-65 (Males Only)2

White Males 
Year on Jury Bolls

% of 1960 Pop. 
(White Males)

Negro Males 
on Jury Rolls

% of 1960 Pop. 
(Negro Males)

1961 337 43% 16 0.7%
1962 348 45% 26 1%
1963 349 45% 28 1%
1964 — —
1965 382 49% 47 2%
1966
(A-14a)

389 50% 82 4%

The statistics post-1964 are particularly pertinent for 
they reflect the jury commission’s performance subsequent 
to a declaratory judgment by the district court directing 
that the jury selection system be administered in a racially 
nondiscriminatory way. Coleman v. Barton, No. 63-4 (N.D. 
Ala. June 10, 1964 (A-3a).3 In 1967 the number of whites 
on the jury roll was increased to 810 or 49% of the 1960 
census figures for adult whites. Negroes on the roll in­

2 Until 1966 Alabama restricted jury service to males. See White 
V. Crook, 241 F.Supp. 401 (M.D. Ala. 1966); Code of Ala. (Supp. 
1967) Tit. 30, §21.

3 Subsequently, in a direct review of Coleman’s murder convic­
tion, this Court held that an unrebutted prima facie case of sys­
tematic racial exclusion in jury selection in Greene County had 
been established. Coleman v. Alabama, 389 U.S. 22 (1967).



13

creased to 388 or 7%% of the 1960 census figure for Negro 
adults.4

The Court below found that the practice of racial dis­
crimination in jury selection had continued but limited its 
relief to an injunction against discriminatory administra­
tion of the Alabama statute (A-27a), thus leaving un­
touched the vague statutory standards which, by lodging 
excessive discretion in the hands of the all-white jury 
commissioners, are chiefly accountable for the result of 
racially discriminatory jury selection in Greene County and 
elsewhere in the state.

This relief was clearly inadequate. As the Fifth Circuit 
has said: “ It is this broad discretion located in a non­
judiciary office which provides the source of discrimina­
tion in the selection of juries.” Labat v. Bennett, 365 F.2d 
698, 713 (5th Cir. en banc 1966); see also Smith v. Texas, 
311 U.S. 128 (1940); Rabinowits v. United States, 366 F.2d 
34 (5th Cir. en banc 1966). Just four years ago the selec­
tion practices of the Greene County jury commission were 
declared racially discriminatory and ordered discontinued, 
but as the record shows, the practices have persisted. They 
have persisted principally because Alabama’s statutory 
scheme permitted white jury officials to continue finding 
almost no Negroes who in their judgment could meet the 
intelligence and character standards of the statute. Cole­
man v. Barton, supra.

4 There was testimony at the trial below that by 1967, through 
migration of Negroes, the population ratio for all Negroes and all 
whites had decreased to 65%-35%. In its opinion, the Court said: 

“Assuming that this change was reflected in the numbers of 
adults as in non-adults, and that the number of adult whites 
remained approximately constant, then the approximate num­
ber of adult Negroes in the county (male and female) had 
declined from 5001 to 3065, of whom approximately 12%% 
were on the rolls in 1967 after the January special meeting.” 
(A-15a).



14

Because Title 30, §21 is of state-wide applicability, it is 
not surprising that the problem exposed in Greene County 
is not restricted to it, but is state-wide. Civil suits suc­
cessfully challenging racially discriminatory jury selection 
have been brought in federal district courts in counties 
throughout the state of Alabama. See, e.g,, Dennard, et al. 
v. Baker, C.A. 2654-N (M.D. Ala. 1968) (Barbour County); 
Hadnott, et al. v. Narramore, C.A. 2681-N (M.D. Ala. 1968) 
(Autauga County); McNab, et al. v. Griswold, C.A. 2653 
(M.D. Ala. 1968) (Bullock County); Palmer, et al. v. Stein- 
dorff, C.A. 2679-N (M.D. Ala. 1968) (Butler County); Bush, 
et al. v. Woolf, C.A. 68-206 (N.D. Ala. 1968) (Calhoun 
County); Good, et al. v. Slaughter, C.A. 2677-N (M.D. Ala. 
1968) (Crenshaw County); Banks, et al. v. Holley, C.A. 
735-E (M.D. Ala. 1967) (Tallapoosa County); Turner v. 
Spencer, 261 F.Supp. 342 (S.D. Ala. 1966) (consolidated 
from cases which arose in Perry, Hale and Wilcox Coun­
ties); Mitchell v. Johnson, 250 F. Supp. 117 (M.D. Ala. 
1966) (Macon County); White v. Crook, 241 F.Supp. 401 
(M.D. Ala. 1966) (Lowndes County); Reese, et al. v. Pick­
ering, C.A. 3839-65 (S.D. Ala. 1968 (Dallas County).

Similar cases have been initiated and are pending in 
the following counties: Huff, et al. v. White, C.A. 68-223-N 
(M.D. Ala.) (Bibb County); Palmer, et al. v. Davis, C.A. 
967-S (M.D. Ala.) (Dale County); Jones, et al. v. Holli­
man, C.A. 3944-65 (S.D. Ala.) (Mareng’o County); Preston, 
et al. v. Mcmdeville, C.A. 5059-68 (S.D. Ala.) (Mobile 
County); Richardson, et al. v. Wilson, C.A. 68-300 (N.D. 
Ala.) (Jefferson County); Jones, et al. v. Wilson, C.A. 66- 
92 (N.D. Ala.) (Jefferson County), pending on appeal sub 
nom Salary v. Wilson (No. 25978, 5th Cir.).

These cases impose a heavy burden on already crowded 
court dockets, however their necessity will continue until 
jury selection throughout the state is made on the basis of



15

objective standards. This has been the response of Con­
gress with respect to invidious discrimination in federal 
jury selection,5 and in the area of voting rights.6

Until there are objective standards to guide the discre­
tion of jury selectors in Alabama an effective cure to prob­
lems of racially disproportionate jury rolls is unlikely.7

5 28 U.S.C. §1865: Qualifications for Jury Service

(b) In making such determination [i.e., juror qualifica­
tions], the chief judge of the district court, or such other 
district court judge as the plan may provide, shall deem any 
person qualified to serve on grand and petit juries in the dis­
trict court unless he—

(1) is not a citizen of the United States twenty-one years 
old who has resided for a period of one year within the 
judicial district;

(2) is unable to read, write, and understand the English 
language with a degree of proficiency sufficient to fill out 
satisfactorily the juror qualification form;

(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirm­

ity, to render satisfactory jury service; or
(5) has a charge pending against him for the commission 

of, or 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.

6 Voting Rights Act of 1965 (42 U.S.C. §1973 et seq.).
7 See Kuhn, “Jury Discrimination: The Next Phase,” 41 U.S.C. 

Law Rev. 235, 266-82 (1968); Note, “ The Congress, The Court and 
Jury Selection: A Critique of Titles I and II of the Civil Rights 
Bill of 1966,” 52 Va. L.Rev. 1069, 1140-56 (1966).



16

II.

The Jury Commission of Greene County Is Uncon- 
stitionally Constituted Because It Perpetuates Racially 
Discriminatory Juror Selection In Violation of the 
Fourteenth Amendment to the Constitution of the 
United States.

The non-objective standards of juror qualification are 
a crucial element in racially discriminatory juror selection, 
as appellants have urged. An equally crucial and inter­
related element is the racial composition of Alabama’s jury 
commissions.

Jury commissions are appointed by the Governor. (Code 
of Ala., Tit. 30, §10); members are required to be persons 
“ reputed for their fairness, impartiality, integrity and good 
judgment.” Code of Ala. (Supp. 1967) Tit. 30, §9.

The Court below held that “the attack on the racial 
composition of the commission fails for want of proof.” 
(A-20a). However, the record established by compelling in­
ference the causal relationship between the all-white char­
acteristic of the Greene County jury commission, the ex­
cessive statutory discretion and the resulting racial dis­
crimination in selection.

Assuming the sincere impartiality of all-white jury com­
missioners “ in the reality of the segregated world,” (Brooks 
v. Beto, 366 F.2d 1, 12 (5th Cir. en banc, 1966)), the likeli­
hood that they would normally be in a position to know 
very many Negroes who are “generally reputed to be 
honest and intelligent . . . and esteemed in the community 
for . . . integrity, good character and sound judgment,” 
is slight. Also, given the reality of that world, Negroes 
generally are regarded by white jury officials as incapable 
of meeting those standards.



17

The Clerk of the Greene County commission testified that 
for the previous eleven years all of the commissioners had 
been white (T.88). It is judicially noticeable that a Negro 
has never been appointed to a jury commission in the state 
of Alabama. There was also evidence that the clerk and 
the three members of the jury commission (one of whom 
was seriously ill and another who was new to the com­
mission and had not yet participated in selection) were 
almost totally unfamiliar with the Negro community and 
relied instead on only eight Negroes and fourteen whites 
for recommendations. In fact, the Clerk and one commis­
sioner used the same Negro for recommendations (T.182).

The too-discretion-giving provisions of §21 (Code of Ala. 
Tit. 30) are a vice no matter by whom administered,8 but 
certainly in the contest of racially segregated southern 
society, excessive discretion in the hands of all-white offi­
cials is fatal to Negro participation in jury service as it 
was in voting. Louisiana v. United States, supra; South 
Carolina v. Katsenbach, supra.

Thus so long as the statutory standards of selection re­
main unchanged, it is of crucial importance that a jury 
commission be representaive of the whole community in 
which it functions. Brooks v. Beto, supra. Particularly 
must this be so with respect to communities like Greene 
in which Negroes constitute so large a majority of the 
residents.

8 The provisions of §21 would allow the continued exclusion of 
most of the eligible Negroes by virtue of the fact that its provisions 
could be misapplied by Negro appointees deemed to be “safe” . 
Cf. Brooks v. Beto, supra, Judge Wisdom, concurring opinion.



18

CONCLUSION

For the foregoing reasons probable jurisdiction should 
be noted.

Respectfully submitted,

Jack Greenberg 
Norm an C. A maker 
James N. F inney

10 Columbus Circle 
New York, New York 10019

Orzell B illingsley, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Attorneys for Appellants



APPENDIX



APPENDIX

I n the

UNITED STATES DISTRICT COURT 

F oe the Northern D istrict of Alabama, 

W estern D ivision 

Civil Action No. 66-562

Opinion by Godbold, C.J.

Paul M. B okulich, W illie Carter, Sr., J ohn H ead, R ev. 
P ercy McShan, on their own behalf and on behalf o f 
all others similarly situated,

Plaintiffs,
—and—

George Greene and H ubert G. B rown,

Intervenors-Plaintiff s,

J ury Commission of Greene County, A labama, W alter 
Morrow, A lbert Gray, and Melvin D urrette, as mem­
bers of the Jury Commission of Greene County, Ala­
bama, Mary C. Y arborough, as Clerk of the Jury Com­
mission of Greene County, Alabama, E. F. H ildreth, as 
Circuit Judge for the 17th Judicial District of Alabama, 
T. H. B oggs, as District Attorney for Greene County, 
Alabama, R alph B anks, Jr,, as County Attorney for 
Greene County, Alabama, and L urlene B. W allace, as 
Governor of the State of Alabama,

Defendants.



2a

Before Godbold, Circuit Judge, and Grooms and Allgood, 
District Judges.

Godbold, Circuit Judge:

This suit is an attack on the jury system of Greene 
County, Alabama. The plaintiffs charge that there is 
systematic exclusion of Negroes from grand and petit juries 
by reason of purposeful discrimination, in violation of the 
Constitution of the United States and the Constitution of 
the State of Alabama. They charge that Tit. 30, §§4 and 21 
of the Code of Alabama (1958) establishing qualifications 
for jurors are, on their face and as applied, in violation 
of the Fourteenth Amendment to the Constitution of the 
United States. And they claim that the all-white jury com­
mission of Greene County is unconstitutionally constituted.

Both declaratory and injunctive relief are sought. Juris­
diction of this court is invoked under 28 U.S.C. §1343 and 
42 U.S.C.A. §1983. A three-judge court has been convened 
pursuant to 28 U.S.C.A. §2281. Notice of the suit has been 
given to the Attorney General and Governor of Alabama 
as required by 28 U.S.C.A. §2284(2).

The court has considered the evidence consisting of oral 
testimony, testimony by deposition, numerous exhibits, and 
stipulations of the parties, and pursuant to Fed. R. Civ. 
P. 52 makes and enters in this opinion the appropriate 
findings of fact and conclusions of law.

Each plaintiff sues on his own behalf and, pursuant to 
Fed. R. Civ. P. 23, on behalf of a class of those similarly 
situated. Plaintiff Paul Bokulich is a white civil rights 
wmrker associated with the Southern Christian Leadership 
Conference. He was arrested in Greene County and 
charged with two counts of grand larceny. His arrest 
followed soon after a sharply-contested primary election 
in which Negroes were successful candidates for county

Opinion by Godbold, C.J.



3a

office. Plaintiffs Willie Carter, Sr., John Head and Rev. 
Percy McShan are Negro residents of Greene County who 
allege that they are qualified under the laws of Alabama 
to serve as jurors in the Circuit Court of Greene County 
and desire to serve but never have been summoned for 
jury service. Plaintiffs-intervenors George Greene and 
Hubert G. Brown are Negro civil rights workers for the 
Student Non-Violent Coordinating Committee. While work­
ing in Greene County in connection with the general elec­
tion to be held in November 1966 they were arrested on 
charges of grand larceny.

Temporary restraining orders have been granted against 
presentation to the Greene County grand jury of charges 
against Bokulich, Greene and Brown.

The defendants are the members and the clerk of the 
Greene County jury commission, the Circuit Judge and 
District Attorney of the state judicial circuit in which 
Greene County is located, the County Attorney, and the 
then Governor of Alabama.

The claim of systematic exclusion of Negroes from the 
Greene County jury roll has been in the courts before. 
Coleman v. Barton, No. 63-4, N.D. Ala., June 10, 1964, was 
a suit against the members and clerk of the jury commis­
sion. The district judge granted a declaratory judgment 
but on grounds of comity declined to grant injunctive re­
lief. Pertinent extracts from the judgment then entered 
are as follows:

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

Opinion by Godbold, C.J.



4a

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

“3. The jury commissioners of Greene County, Ala­
bama, are under a duty to familiarize themselves with 
the qualifications of eligible jurors without regard to 
race or color.

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

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

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

“7. In making up and establishing the jury roll and 
in filling the jury box mere symbolic or token repre­
sentation of Negroes will not meet the constitutional 
requirements and that numerical or proportional limi­
tations as to race are forbidden.

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

Contemporaneously the same Coleman was making his 
way through the state courts, and the United States Su­
preme Court, on a direct appeal from a conviction of

Opinion by Godbold, C.J.



5a

murder in Greene County.1 The conclusion of the United 
States Supreme Court in its second opinion, 389 U.S. 22, 
88 S.Ct. 2, 19 L.Ed. 2d 22, was that Coleman had estab­
lished a prima facie case of denial of equal protection by 
systematic exclusion of Negroes from Greene County 
juries, and the state had not adduced evidence sufficient 
to rebut the prima facie case.

1. Standing.

Brown and George Greene are Negroes, charges against 
whom are proposed to be submitted to the grand jury. 
Their standing to sue is apparent. Bokulich does not lack 
standing because he is white. Rabinowits v. United States, 
366 F.2d 34 (5th Cir. 1966); Rabat v. Bennett, 365 F.2d 
698 (5th Cir. 1966); United States v. Hunt, 265 F. Supp. 
178 (W.D. Tex., 1967); Allen v. State, 110 Ga. App. 56, 137 
S.E. 2d 711 (1964); State v. Lowry, 263 N.C. 536, 139 S.E. 
2d 870 (1965).2

Opinion by Godbold, C.J.

1 Coleman v. State, 276 Ala. 513, 164 So. 2d 704 (1963), rev’d, 
377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed. 2d 190 (1964), remanded after 
reversal to trial court for hearing on motion for new trial, 276 Ala. 
518, 164 So. 2d 708 (per curiam), 280 Ala. 509, 195 So. 2d 800 
(affirming trial court’s denial of motion for new trial), rev’d, 389 
U.S. 22, 88 S.Ct. 2, 19 L.Ed. 2d 22 (1967) (per curiam), judgment 
affirming trial court vacated, conviction annulled and. remanded 
with direction to quash the indictment, Nov. 27, 1967, unpublished 
order, Ala. Sup. Ct. (2d Div. 487).

2 Murphy v. Holman, 242 F. Supp. 480 (M.D. Ala. 1965), Blau- 
velt, v. Holman, 237 F. Supp. 385 (M.D. Ala. 1964), Hollis v. Ellis, 
201 F. Supp. 616 (S.D. Tex. 1961), and Alexander v. State, 160 
Tex. Crim. App. 460, 274 S.W. 2d 81, cert, denied 348 U.S. 872, 
75 S.Ct. 108, 99 L.Ed. 686 (1954), hold that a white, man may not 
raise the issue of exclusion of Negroes from the jury. In none of 
those cases was there shown to be substantial identity of interest or 
concern of the complaining party with the group alleged to be ex-



6a

Head was shown to meet standards for jurors established 
by Alabama law.3 We find that he represents the interests 
of a class composed of Negro citizens of Greene County 
qualified under state law for jury service, entitled to be 
considered for such service, and in such consideration to 
have applied to them non-discriminatory standards and 
procedures, and as such he has standing to sue. Billingsley 
v. Clayton, 359 F.2d 13 (5th Cir.), cert, denied 385 U.S. 
841, 87 S.Ct. 92, 17 L.Ed. 2d 74 (1966); White v. Crook, 
251 F. Supp. 401 (M.D. Ala. 1966); Mitchell v. Johnson, 
250 F. Supp. 117 (M.D. Ala. 1966); Brown v. Rutter, 139 
F. Supp. 679 (W.D. Ky. 1956).

2. The selection methods of the jury commission.

There is a jury commission of three members in each 
county appointed by the governor. The clerk of the Cir­
cuit Court may be employed as clerk of the commission, 
Tit. 30, §15, and in Greene County was so employed. The 
commission is charged with the duty of preparing a jury 
roll containing the name of every citizen living in the 
county who possesses the prescribed qualifications and 
who is not exempted by law from serving on juries. Tit.

Opinion by Godbold, C.J.

eluded. We are concerned with the essential realities of the situa­
tion. The case in which the complaining party is of the same racial 
group as that alleged to be excluded is the clearest instance of 
potential violation of equal protection, but it does not set the outer 
limits of equal protection guarantees or of the right to complain of 
violations thereof. Nor does the “same class” theory limit due 
process, the requirements of basic fairness of trial and the integrity 
of the fact finding process. In the exclusion of an identifiable class 
from jury service equal protection and due process merge. Labat 
v. Bennett, supra; United States ex rel. Goldsby v. Harpole, 263 
F.2d 71, 81 (5th Cir. 1959).

3 There was no such proof as to McShan and Carter.



7a

30, §§20, 21 and 24. Tit. 30, §21 prescribes the qualifica­
tions and is quoted in the margin.4 *

The statutory scheme for the selection process begins 
with the names of substantially all persons potentially eli­
gible for jury service and that group then is narrowed to 
exclude those not eligible. See. 18 provides:

The clerk of the jury commission shall, under the di­
rection of the jury commission obtain the name of 
every citizen of the county over twenty-one and under 
sixty-five years of age and their occupation, place of 
residence and place of business, and shall perform all 
such other duties required of him by law under the 
direction of the jury commission.6

This section, as well as §§20 and 21, was amended by Act 
No. 285, Acts of Alabama, Special Session 1966, p. 428, 
adopted September 12, 1966, so as to embrace all citizens 
rather than male citizens only.

4 “ Section 21. The jury commission shall place on the jury roll 
and in the jury box the names of all citizens of the county who are 
generally reputed to be honest and intelligent and are esteemed 
in the community for their integrity, good character and sound 
judgment; but no person must be selected who is under twenty-one 
or who is an habitual drunkard, or who, being afflicted with a per­
manent disease or physical weakness is unfit to discharge the duties 
of a juror; or cannot read English or who has ever been convicted 
of any offense involving moral turpitude. If a person cannot read 
English and has all the other qualifications prescribed herein and 
is a freeholder or householder his name may be placed on the. jury 
roll and in the jury box. No person over the age of sixty-five years 
shall be required to serve on a jury or to remain on the panel of
jurors unless willing to do so. When any female shall have been 
summoned for jury duty she shall have the right to appear before 
the trial Judge, and such Judge, for good cause shown, shall have 
the judicial discretion to excuse said person from jury duty. The 
foregoing provision shall apply in either regular or special venire.”

6 Under §21 persons over the age of 65 are not required to serve 
but may do so if willing.

Opinion by Godbold, G.J.



8a

The commission is directed to require the clerk to scan 
the registration lists, the tax assessor’s lists, any city di­
rectories and telephone directories “ and any and every 
source of information from which he may obtain informa­
tion, and to visit every precinct at least once each year.” 
Tit. 30, §24.

Necessarily there are two steps in the selection of jurors 
for the jury roll. First there must be a selection of per­
sons to be considered, i.e., the persons to whom the com­
missioners are to apply the statutory qualifications. Then 
the criteria of the statutes must be applied to those who 
are up for consideration.6* The end product of the system 
established by the Alabama legislature is placing on the 
jury roll the names of all adult persons who are qualified 
and not exempted. “ The jury commission * * * shall make 
in a well bound book a roll containing the name of every 
citizen living in the county who possesses the qualifica­
tions herein prescribed and who is not exempted by law 
from serving on juries.” Tit. 30, §20. “The jury commis­
sion shall place on the jury roll and in the jury box the 
names of all citizens of the county who are generally re­
puted (etc.).” Tit. 30, §21. “ The jury commission is 
charged with the duty of seeing that the name of every 
person possessing the qualifications prescribed in this chap­
ter to serve as a juror and not exempted by law from jury 
duty, is placed on the jury roll and in the jury box.” Tit. 
30, §24. These directions of the statute have been re­
affirmed by the Supreme Court of Alabama:

5a “ The sole purpose of these requirements [of the full list di­
rected by §18, and use of the sources of information directed by 
§24 to be considered] is to insure that the jury commissioners will 
have as complete a list as possible of names, compiled on an ob­
jective basis, from which to select qualified jurors.” Mitchell v. 
Johnson, 250 F. Supp. 117, 123 (M.D. Ala. 1966).

Opinion by Godbold, C.J.



9a

The first step [in obtaining jurors to serve on grand 
and petit juries] is to get only qualified men on the 
jury roll. That is those having the qualifications pre­
scribed by law and not exempt. The names of all 
such men in the county should be placed on the roll 
and in the jury box each year.

Fikes v. State, 263 Ala. 89, 95, 81 So. 2d 303, 309 (1955), 
rev’d on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed. 
2d 246 (1957), and by the Court of Appeals of Alabama, 
Inter-Ocean Casualty Co. v. Banks, 32 Ala. App. 225, 23 
So. 2d 874 (1945). Failure to put on the roll the name of 
every qualified person may not be the basis for quashing 
an indictment or venire absent fraud or a denial of con­
stitutional rights, Fikes v. State, supra, at 96, 81 So. 2d at 
309, but substantial compliance with these legislative safe­
guards established to protect litigants and to insure a fair 
trial by an impartial jury is necessary in order to safe­
guard the administration of justice. Inter-Ocean Casualty 
Co. v. Banks, supra.

The manner is which the system, actually works in Greene 
County is generally as follows. The clerk does not obtain 
the names of all potentially eligible jurors as provided by 
§18, in fact was not aware that the statute directed that 
this be done and knew of no way in which she could do it. 
The starting point each year is last year’s roll. Everyone 
thereon is considered to be qualified and remains on the 
roll unless he dies or moves away (or, presumably, is con­
victed of a felony). New names are added to the old roll. 
Almost all of the work of the commission is devoted to 
securing names of persons suggested for consideration as 
new jurors. The clerk performs some duties directed to­
ward securing such names. This is a part-time task, done

Opinion by Godbold, G.J.



10a

without compensation, in spare time available from per­
formance of her duties as clerk of the Circuit Court, She 
uses voter lists but not the tax assessor’s lists. Telephone 
directories for some of the communities are referred to, 
city directories not at all since Greene County is largely 
rural.

The clerk goes into each of the eleven beats or precincts 
annually, usually one time. Her trips out into the county 
for this purpose never consume a full day. At various 
places in the county she talks with persons she knows and 
secures suggested names. She is acquainted with a good 
many Negroes, but very few “ out in the county.” She does 
not know the reputation of most of the Negroes in the 
county. Because of her duties as clerk of the Circuit Court 
the names and reputations of Negroes most familiar to 
her are those who have been convicted of crime or have 
been “ in trouble.” She does not know any Negro ministers, 
does not seek names from any Negro or white churches or 
fraternal organizations. She obtains some names from the 
county’s Negro deputy sheriff.

The commission members also secure some names, but 
on a basis no more regular or formalized than the efforts 
of the clerk. The commissioners “ask around,” each usu­
ally in the area of the county where he resides, and secure 
a few names, chiefly white persons.6 Some of the names 
are obtained from public officials, substantially all of whom 
are white.

Opinion by Godbold, C.J.

6 The commissioner who concentrates on four precincts in the 
south of the county could not say that he visited each of those 
precincts in the year August 1965-August 1966. The commissioner 
who had been concentrating on the northern precincts had been 
ill in August 1966, and his participation in affairs of the commis­
sion around that time is acknowledged to have been nominal.



11a

One commissioner testified that he asked for names and 
that if people didn’t give him names he could not submit 
them.7 He accepts pay for one day’s work each year, stat­
ing that he does not have a lot of time to put on jury 
commission work. The same commissioner considered that 
Negroes are best able to judge which Negroes are good 
and outstanding citizens and best qualified for jury ser­
vice, that the best place to get information about the Negro 
citizen is from Negroes. He takes the word of those who 
recommend people, checks no further and sees no need to 
check further, considering that he is to rely on the judg­
ment of others.7a He makes no inquiry or determination 
whether persons suggested can read or write, although §21 
excludes persons who cannot read English. Neither com­
missioners nor clerk have any social contacts with Negroes 
or belong to any of the same organizations.

Through its yearly meeting in August, 1966, the jury 
commission met once each year usually for one day, some­
times for two, to prepare a new roll.8 New names pre­
sented by clerk and commissioners, and some sent in by 
letter, were considered. The clerk checked them against

7 A  portion of his testimony was as follows:
Q. And these are the four precincts you provided names 

for? A. That I sort of worked around.
Q. Am I also correct you could not find any list that you 

submitted to the jury commission? A. I couldn’t find them 
when they wouldn’t submit them to me.

Q. Pardon A. They were not submitted; there was no 
way for me to find them: I asked for them, and that is all 
I could do ; if they don’t send them, I can’t submit them.

7a The clerk testified that if one recommending another for jury 
duty did not know the reputation of the person recommended there 
was no way for her to find it out.

8 An annual meeting is required to be held between August 1 
and December 20. Tit. 30, §20.

Opinion by Godbold, C.J.



12a

court records of felony convictions. New names decided 
upon as acceptable were added to the old roll. The names 
of those on the old roll who had died or moved away were 
removed.

At the August, 1966 meeting one commissioner was new 
and submitted no names, white or Negro, and merely did 
clerical work at the meeting. Another had been ill and 
able to seek names little if at all. The third could remember 
one Negro name that he suggested. This commissioner 
brought the name, or names, he proposed on a trade bill 
he had received, and after so using it threw it away. All 
lists of suggested names were destroyed. As a result of 
that meeting the number of Negro names on the jury roll 
increased by 37. (Approximately 39 were added but it is 
estimated that two were lost by death or removal outside 
the country.) Approximately 32 of those names came from 
lists given the clerk or commissioners by others. The testi­
mony is that at the one-day August meeting the entire 
voter list was scanned. It contained the names of around 
2,000 Negroes.

Thus in practice, through the August, 1966 meeting the 
system operated exactly in reverse from what the state 
statutes contemplate. It produced a small group of indi­
vidually selected or recommended names for consideration. 
Those potentially qualified but whose names were never 
focused upon were given no consideration. Those who pre­
pared the roll and administered the system were white 
and with limited means of contact with the Negro com­
munity. Though they recognized that the most pertinent 
information as to which Negroes do, and which do not, 
meet the statutory qualifications comes from Negroes there 
was no meaningful procedure by which Negro names were 
fed into the machinery for consideration or effectual means

Opinion by Godbold, C.J.



13a

of communication by which the knowledge possessed by 
the Negro community was utilized. In practice most of 
the work of the commission has been devoted to the func­
tion of securing names to be considered. Once a name has 
come up for consideration it usually has been added to the 
rolls unless that person has been convicted of a felony. 
The function of applying the statutory criteria has been 
carried out only in part, or by accepting as conclusive the 
judgment of others, and for some criteria not at all.

Testimony that most of the emigration out of the county 
is by younger and better educated Negroes, tending to 
leave in the county those older and illiterate, proves little 
in the overall picture. In late 1966 there were at least an 
estimated 2,000 Negroes on the voting rolls.9 The minimum 
voting age in Alabama is 21. It cannot be presumed that 
all of these adults, or anywhere near all, were over age 
65, which in any event is a basis for excuse and not ex­
clusion, or were unable to read English and not free­
holders. (In any event it appears that the requirement of 
ability to read English has been the subject of little in­
quiry.)

The grand jury panel which met and would have con­
sidered the charges against Bokulich had it not been en­
joined consisted of ten whites and eight Negroes. The 
racial composition of a single drawn jury panel cannot 
cure the disparity on the roll or the deficient system by 
which the roll is set up and maintained.

In January, 1967, after this suit was filed, an extraordi­
nary session of the jury commission was held. Part of its 
work was to add females to the jury list, as a result of

9 Between November 8, 1965 and August 16, 1966 federal voting 
registrars registered approximately 1800 to 1900 Negroes as voters 
in Greene County.

Opinion by Godbold, G.J.



14a

the September, 1966, amendments by the Alabama legis­
lature extending jury service to women. The procedure 
for obtaining names to be added to the list, including the 
names of Negroes, was the same as that previously em­
ployed. There is evidence that more persons, including 
more Negroes, were asked for suggestions than in the past, 
but the system remained the same.10

3.

We turn to consideration of the statistical results pro­
duced by the operation of the system.

1960 Census, Greene County,
Persons over 21 Years of Age

Opinion by Godbold, C.J.

% %
White White Negro Negro

Male 775 26% 2,247 74%
Female 874 24% 2,754 76%

Total 1,649 5,001

Composition of Jury Rolls,
1961-65 (Males Only)

White Males % of 1960 Pop. Negro Males % of 1960 Pop.
Year on Jury Bolls (White Males) on J ury Bolls (Negro Males)
1961 337 43% 16 0.7%
1962 348 45% 26 1%
1963 349 45% 28 1%
1964 — —
1965 382 49% 47 2%
1966 389 50% 82 4%

10 “ [T]he mere change in state law, whose previous commands
had already been consciously ignored, did not remove the central



15a

The January, 1967 meeting of the jury commission in­
creased the number of whites and Negroes, a substantial 
part of the increase coming from inclusion of females for 
the first time. Whites on the roll increased to 810, which 
was 49% of the 1960 census figure for adult white males 
and females. Negroes on the roll increased to 388, which 
was 7% %  of the 1960 census figure for adult Negro males 
and females. There was testimony that by 1967, through 
migration of Negroes, the population ratio for all Negroes 
and all whites had decreased to 65%-35%. Assuming that 
this change was reflected in the numbers of adults as in 
non-adults, and that the number of adult whites remained 
approximately constant, then the approximate number of 
adult Negroes in the county (male and female) had de­
clined from 5001 to 3065, of whom approximately 12%% 
were on the rolls in 1967 after the January special meeting. 
Recognizing the assumptions and approximations involved 
that prevent exact figures, the disparity is nevertheless 
evident, for at the same time approximately half of the 
adult whites (male and female) were on the rolls, a con­
tinuation of the previous practice of maintaining on the 
roll approximately half of the eligible white population.

In 1961 the jury roll was 95% white, 5% Negro. Before 
the extraordinary session of January 1967 it had become 
81% white, 19% Negro. After the extraordinary session it 
was 68% white, 32% Negro. This is to be contrasted with 
the estimate of population at that time of 65% Negro and 
35% white.

Opinion by Godbold, C.J.

issue of the pattern and practice of racial discrimination. The 
change of merely one of the sources or tools of the conduct did 
not demonstrate a change in the conduct itself.” Pullum v. Greene, 
5 Cir. 1968, 396 F.2d 251, 254 (5th Cir. 1968).



16a

The discriminatory administration of jury selection laws 
fair on their face achieving a result of exclusion of Ne­
groes from juries has been a violation of the Fourteenth 
Amendment for almost 100 years. Neal v. Delaware, 103 
U.S. 370, 26 L.Ed. 567 (1881). Discrimination in the selec­
tion of grand juries has been the basis for reversal of 
state criminal convictions since 1883. Bush v. Kentucky, 
107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).

It is 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. For 
racial discrimination to result in the exclusion from 
jury service of otherwise qualified groups not only 
violates our Constitution and the laws enacted under 
it but is at war with our basic concepts of a demo­
cratic society and a representative government. We 
must consider this record in the light of these impor­
tant principles. The fact that the written words of a 
state’s laws hold out a promise that no such discrim­
ination will be practiced is not enough. The Fourteenth 
Amendment requires that equal protection to all must 
be given—not merely promised.

Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 
L.Ed. 84, 86 (1940).

The Constitution does not require representation of a 
litigant’s race on the jury panel which tries his case, Bush 
v. Kentucky, supra. It does not demand that the jury roll 
or venire be a perfect mirror of the community or accu­
rately reflect the proportionate strength of every identifi­
able group. Sivain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 
13 L.Ed. 2d 759 (1965). It does require that there be no

Opinion by Godbold, C.J.



17a

systematic exclusion of Negroes on account of race from 
participation as jurors in the administration of justice.11

The statistical results produced by the system employed 
in Greene County, and the testimony of those who admin­
ister the system, establish that there is invalid exclusion 
of Negroes on a racially discriminatory basis. The modus 
operandi of the selection system, as described by those in 
charge of it, rather than satisfactorily explaining dispari­
ties reaffirms what the figures show, that there has been 
followed “a course of conduct which results in discrimina­
tion ‘in the selection of jurors on racial grounds.’ ” 12 
Davis v. Davis, 361 F.2d 770 (5th Cir. 1966); United States 
ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962); White 
v. Crook, supra.

The Constitution easts upon jury commissioners, as judi­
cial administrators, affirmative duties which must be car­
ried out in order to have a constitutionally secure system.

—Cassell v. Texas, supra, at 289, 70 S.Ct. at 633, 94 
L.Ed. at 848. “When the commissioners were appointed as 
judicial administrative officials, it was their duty to fa-

Opinion by Godbold, C.J.

11 Discrimination against Negroes is not the only factor produc­
ing imbalances in jury selection which may be unconstitutional. 
Prior to its recent amendment the provisions of Tit. 30, §21, quoted 
supra, denying women the right to serve on juries, was held un­
constitutional. White v. Crook, supra. Exclusion of persons of 
identifiable national origin (Mexican-Americans) has been struck 
down. Hernandez v. Texas, 347 U.S. 475, 74 St.Ct, 667, 98 L.Ed. 
866 (1954). Maryland has held invalid discrimination on religious 
grounds. Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). 
Those of low economic status have been kept off the rolls. E.g., 
Labat v. Bennett, supra. California has disciplined a prosecuting 
attorney who assisted the jury commissioner in eliminating defense- 
prone jurors from the jury rolls. Noland v. State Bar, 63 Cal.2d 
298, 405 P.2d 129 (1965).

12 Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 
1692, 1696 (1945).



18a

miliarize themselves fairly with the qualifications of the 
eligible jurors of the county without regard to race and 
color. They did not do so here, and the result has been 
racial discrimination. We repeat the recent statement of 
Chief Justice Stone in Hill v. Texas, 316 US 400, 404, 86 
L ed 1559, 1562, 62 S Ct 1159:

‘Discrimination can arise from the action of commission­
ers who exclude all negroes whom they do not know to be 
qualified and who neither know nor seek to learn whether 
there are in fact any qualified to serve. In such a case, 
discrimination necessarily results where there are quali­
fied negroes available for jury service.’ ”

—Avery v. Georgia, 345 U.S. 559, 561, 73 S.Ct. 891, 892, 
97 L.Ed. 1244, 1247 (1953): “ The Jury Commissioners, 
and the other officials responsible for the selection of this 
panel, were under a constitutional duty to follow a pro­
cedure— ‘a course of conduct’—which would not ‘operate to 
discriminate in the selection of jurors on racial grounds.’ 
Hill v. Texas, 316 US 400, 404, 86 L ed 1559, 1562, 62 
S Ct 1159 (1942). If they failed in that duty, then this 
conviction must be reversed—no matter how strong the 
evidence of petitioner’s guilt.”

—United States ex rel. Seals v. Wiman, supra, at 65 
(5th Cir. 1962): “Those same cases, however, and others, 
recognize a positive, affirmative duty on the part of the 
jury commissioners and other state officials. . . . ”

Conscious or intentional failure of jury commissioners 
to carry out their duties, or evil motive, or lack of good 
faith, is not necessary for a system to be unconstitutional 
in its operation.

—Vanleeward v. Rutledge, 369 F.2d 584, 586 (5th Cir. 
1966). “ It is not necessary to determine that any of the

Opinion by Godbold, C.J.



19a

commissioners, consciously or intentionally, failed to carry 
out the duties of their office, to conclude that the jury 
list from which the panel that tried Vanleeward was se- 
lected was totally defective.”

—United States ex ret. Seals v. Wiman, supra, at 65. 
“ [I]t is not necessary to go so far as to establish ill will, 
evil motive, or absence of good faith, but objective results 
are largely to be relied on in the application of the con­
stitutional test.”

The consequences of the discrimination resulting from 
failure to seek out and become acquainted with the quali­
fications of Negroes were described in Smith v. Texas, 
supra, at 132, 61 S.Ct. at 166, 85 L.Ed. at 87. “Where jury 
commissioners limit those from whom grand juries are 
selected to their own personal acquaintance, discrimina­
tion can arise from commissioners who know no negroes 
as well as from commissioners who know but eliminate 
them. If there has been discrimination, whether accom­
plished ingeniously or ingenuously, the conviction cannot 
stand.”

Alabama is among the most enlightened of the states in 
requiring that broadly inclusive community lists be con­
sulted and that all eligible persons be shown on the rolls.13 
The purpose of the Alabama system is to insure that the 
jury roll is a cross-section of the community. White v. 
Crook, supra; Mitchell v. Johnson, supra. Compliance with 
selection procedures set by a state legislature does not 
necessarily meet constitutional standards. But if a jury 
selection system as provided by the Alabama statutes is

13 See Note, The Congress, The Courts and Jury Selection: A  
Critique of Titles I  and II of the Civil Rights Bill of 1966, 52 Ya. 
L. Rev. 1069, 1079 n. 54 (1966).

Opinion by Oodbold, C.J.



20a

fairly and efficiently administered, without discrimination 
and in substantial compliance with the state statutes— 
which the state courts of Alabama already require—the 
odds are very high that it will produce a constitutional 
result of a jury fairly representative of the community. 
Failure to comply with state procedures does not neces­
sarily produce an unconstitutional exclusion. But the fact 
of, and the extent of, the failure in this case to comply 
with the procedures and the results contemplated by the 
Alabama system is strong evidence of unconstitutionality.

The selection procedures are not validated by the fact 
that traditionally the system always has been that way, 
or that the clerk and the commissioners are in effect per­
sons who as a public service contribute their time and 
effort, or that funds are not provided for the commission 
to operate in the manner directed by the state statutes 
and required by constitutional standards.

We hold that Negro citizens of Greene County are dis- 
criminatorily excluded from consideration for jury service, 
in violation of the equal protection clause of the Four­
teenth Amendment, and that Tit. 30, §21 has been uncon­
stitutionally applied as to them. We hold also that the 
discriminatory exclusion of Negroes is, as to the plain­
tiffs Bokulich, Brown and Greene, a violation of both equal 
protection and due process.

5.

The attack on racial composition of the commission fails 
for want of proof. No proof was adduced except that the 
commission in Greene County now is and for many years 
has been composed entirely of white men appointed by the 
governor.14

14 Cf. Clay v. United States, 5 Cir.,
May 6, 1968].

Opinion by Godbold, C.J.

F.2d [No. 24,991,



21a

The statutory criteria in §21 of good character, honesty, 
intelligence, integrity, sound judgment and sobriety are 
attacked as facially unconstitutional for vagueness. Many 
states join Alabama in some of these requirements and in 
excluding convicted felons.16 The Supreme Court has not 
held criteria such as these void for vagueness in the selec­
tion of jurors. And it has recognized the validity of wide 
discretion in jury commissioners. Cassell v. Texas, supra; 
Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 
L.Ed. 980 (1910). We decline to hold §21 unconstitutional 
on its face.

Sec. 4, providing, “Any person wTho appears to the court 
to be unfit to serve on the jury, may be excused on his 
own motion, or at the instance of either party,” also is 
alleged to be unconstitutional on its face. No reason, argu­
ment or authority is advanced in support of this allega­
tion, and we decline to hold it facially unconstitutional.

The prayer that prosecutors be required not to reject 
jurors in exercise of peremptory challenges on account of 
race is denied. Swain v. Alabama, supra.

6. Belief

The plaintiff Head and the class which he represents are 
entitled to an injunction against discriminatory exclusion 
of Negroes from consideration for jury service in Greene 
County. In Coleman v. Barton, supra, in 1964 the single 
district judge stayed his hand and entered only a declara­
tory judgment. His abstention from granting injunctive 
relief was based in part on the fact that the general relief 
sought of him by Coleman as one of the plaintiffs encom­
passed the specific relief contemporaneously sought by 15

Opinion by Godbold, G.J.

15 See Note, supra note 13, at 1073-74 n. 25-28.



22a

Coleman in state courts and the state courts should not 
be interfered with in their determination. In the judgment 
in that case the judge expressly left the door open for 
future injunctive relief, i.e., “ [R]elief by way of injunction 
be and the same is thereby denied, but without prejudice 
as to future injunctive relief by further application herein 
or in any other proceedings.” The declaration of rights 
and duties then made had not, as of January, 1967 pro­
duced a jury roll or a jury selection system meeting con­
stitutional standards or purporting in real substance to 
carry out the mandate of the Alabama legislature. Cole­
man’s litigation is now at an end. The plaintiffs in this 
case include Head as representative of the same general 
class as the plaintiffs other than Coleman in Coleman v. 
Barton. There is no occasion for further withholding of 
injunctive relief that will run to the benefit of other plain­
tiffs in Coleman v. Barton and in this case, and to which 
they are entitled.

The normal and most appropriate method for Bokulich, 
Brown and Greene to raise the composition of the jury 
roll and the operation of the jury selection system is in 
criminal prosecutions in the state courts, if indictments 
issue. Stefanelli v. Minard, 342 U.S. 117, 123, 72 S.Ct. 118, 
121, 96 L.Ed. 138, 144 (1951); Douglas v. City of Jeannette, 
319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Their 
requests for injunctive relief will be denied.

The motion of the defendants to dismiss and the objec­
tions to the intervention by Brown and George Greene 
are to be overruled and denied. Dismissal on the merits 
will be entered as to all defendants other than the members 
and the clerk of the jury commission.

The attention of the defendants is directed to Mitchell 
v. Johnson, 250 F. Supp. 117( M.D. Ala. 1966), and to the

Opinion by Godbold, C.J.



23a

recently decided case of Turner v. Fouche et al., C.A. No. 
1357, S.D. Ga., Aug. 1968. In Mitchell the jury commis­
sioners of Macon County, Alabama, were directed to aban­
don the jury roll,, and to compile a new jury roll in strict 
accordance with the law of Alabama and the applicable 
constitutional principles. The court pointed out the neces­
sity of the clerk’s compiling the master list directed by 
§18 and of the commission’s employing the sources of in­
formation which the Alabama statutes direct by employed, 
so as to compile on an objective basis a list as complete 
as possible, and then to apply thereto the subjective stan­
dards of §21—good character, sound judgment, ability to 
read English, etc.—fairly and objectively to all in a non- 
discriminatory manner and without regard to race.

In Turner the jury commissioners of Taliaferro County, 
Georgia, a predominantly rural county comparable to 
Greene County, were informed by the court that the jury 
was illegally constituted because of exclusion of Negroes. 
Without the necessity of further orders of the court the 
county officials recomposed the jury list and reported to 
the court the results. The jury commissioners gave sep­
arate consideration to the name of every potentially eligible 
juror. I f they lacked information about a particular in­
dividual they made inquiry in the community. Inquiries 
about Negroes were made of Negroes. Responsible Negroes 
were called upon to assist, and did assist, the jury com­
missioners. Specific eliminations were made based on poor 
health, citizens who were away from the county most of 
the time, persons requesting that they not be considered, 
persons about whom no information was available, and 
persons rejected as not conforming to the statutory stan­
dards of being intelligent and upright citizens. A Negro 
was appointed as clerk to the commission until such time

Opinion by Godbold, C.J.



24a

as a Negro or Negroes could be appointed to membership.
Attention also is directed to the personal survey method 

employed by the jury board of Jefferson County, Alabama. 
Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966). 

Judgment will be entered in accordance with this opinion.

D one this the 13 day of September, 1968.

, /s / J ohn C. Godbold
United States Circuit Judge

/ s /  H. H. Grooms
United States District Judge

/ s /  C. W . A llgood

United States District Judge

A  True Copt

W illiam E. Davis, Clerk 
United States District Court 
Northern District of Alabama

By: / s /  Margaret M. H oehn 
Deputy Clerk

Opinion by Godbold, C.J.



25a

I n the

UNITED STATES DISTRICT COURT 

F or the Northern D istrict op A labama, 

W estern D ivision 

Civil Action No. 66-562

Judgment

P aul M. B o k u l i c h , W i l l i e  Carter, Sr., J ohn H ead, R ev. 
P ercy McShan, on their own behalf and on behalf o f 
all others similarly situated,

Plaintiffs,
— and—

George Greene and H ubert G. B rown,

-v.-
Intervenors-Plaintiffs,

J ury Commission op Greene County, A labama, W alter 
Morrow, A lbert Gray, and Melvin D urrette, as mem­
bers of the Jury Commission of Greene County, Ala­
bama, Mary C. Y arborough, as Clerk of the Jury Com­
mission of Greene County, Alabama, E. F. H ildreth, as 
Circuit Judge for the 17th Judicial District of Alabama, 
T. H. B oggs, as District Attorney for Greene County, 
Alabama, R alph B anks, Jr., as County Attorney for 
Greene County, Alabama, and L urlene B. W allace, as 
Governor of the State of Alabama,

Defendants,



26a

Pursuant to the opinion filed in this case in lieu of 
formal findings of fact and conclusions of law under Buie 
52, Fed. R. Civ. P.,

It is Ordered, A djudged, Declared and Decreed as fol­
lows:

1. There is systematic exclusion of Negroes from the 
jury rolls of Greene County, Alabama, by reason of pur­
poseful discrimination, in violation of the Fourteenth 
Amendment to the Constitution of the United States.

2. Tit. 30, §21, Code of Alabama (1958), as amended, 
establishing qualifications for jurors, has been unconstitu­
tionally applied to Negroes of Greene County, Alabama.

3. The motion to dismiss by defendants is overruled 
and denied. The intervention of George Greene and Hubert 
G. Brown is allowed and the objections thereto are over­
ruled and denied.

4. The prayer of plaintiffs Paul M. Bokulich and 
plaintiffs-intervenors George Greene and Hubert G. Brown 
for injunction forbidding the grand jury of Greene County, 
Alabama, to consider criminal charges against them is 
denied.

5. The prayer that prosecutors in the Circuit Court of 
Greene County, Alabama, be enjoined from exercising 
peremptory challenges against jurors on account of race 
is denied.

6. The prayer that Tit. 30, §21, Code of Alabama (1958), 
as amended, and Tit. 20, §4, of said code, be declared un­
constitutional on their face is denied.

Judgment



27a

7. The prayer that the jury commission of Greene 
County, Alabama, be declared constituted in an unconsti­
tutional manner is denied.

8. This action is dismissed on the merits as to defen­
dants E. F. Hildreth, as Circuit Judge; Lurlene B. 'Wal­
lace, as Governor; T. H. Boggs, as District Attorney; and 
Ralph Banks, Jr., as County Attorney.

9. The defendants Walter Morrow, Albert Gray and 
Melvin Durrette, as members, and Mary C. Yarborough, 
as clerk, of the jury commission of Greene County, Ala­
bama, and their successors in office, are hereby restrained 
and enjoined from systematically excluding Negroes from 
the jury roll of Greene County, Alabama, and from apply­
ing Tit. 30, §21, Code of Alabama (1958), as amended, to 
Negroes in a manner other and different from the manner 
in which applied to whites. The said defendants are ordered 
to take prompt action to compile a jury list for Greene 
County, Alabama, in accordance with the laws of Alabama 
and the constitutional principles set out in this judgment 
and in the opinion of the court entered this date. They 
are ordered to file with this court within sixty days a jury 
list as so compiled, showing thereon the information re­
quired by Tit. 30, §20, Code of Alabama (1958), as 
amended, plus the race of each juror, and if available 
the age of each juror, and a report setting forth the pro­
cedures, system and method by which said list was com­
piled and by which in the compilation thereof the qualifi­
cations for jurors, and the exclusions from jury service, 
provided by the laws of Alabama were applied to adult 
citizens of the county.

Judgment



28a

10. The costs of this action to date are taxed against 
the defendants named in paragraph 9.

D one, this the 13 day o f September, 1968.

/ s /  J ohn C. Godbold
United States Circuit Judge

/ s /  H. H. Grooms
United States District Judge

/ s /  C. W. A llgood

United States District Judge

A  True Copy

W illiam E. Davis, Cleric 
United States District Court 
Northern District of Alabama

By: / s /  Margaret M. H oehn 
Deputy Clerk

Judgment



The following additional provisions are material to an 
understanding of the issues presented.

Code of Alabama, Tit. 30, § 9. Membership, etc., of com­
missions.—Each of said jury commissions shall be com­
posed of three members who shall be qualified electors of 
the county in which they are appointed and shall be men 
reputed for their fairness, impartiality, integrity and good 
judgment. Members of the commission shall not during 
the term for which they are appointed and during their 
tenure in said office hold any other office by appointment 
or election or perform any other public duty under the 
federal, state, county or municipal government, which car­
ries with it any compensation whatsoever. (1939, p. 86.)

Code of Alabama, Tit. 30, § 10. Members to be appointed 
by governor.—The governor shall appoint the members 
of the several jury commissions who shall constitute said 
several commissions during the governor’s tenure of office 
and until their successors are appointed and qualified, and 
thereafter the governor shall appoint the members of said 
jury commissions for and only during the tenure of office 
of the governor making the appointment and until their 
successors are appointed and qualified. (1939, p. 86.)

Code of Alabama, Tit. 30, §18. Duties of Clerk.—The
clerk of the jury commission shall, under the direction of 
the jury commission obtain the name of every male citizen 
of the county over twenty-one and under sixty-five years 
of age and their occupation, place of residence and place of 
business, and shall perform all such other duties required 
Of him by law under the direction of the jury commission. 
(1939, p. 86.)

Statutory Provisions Involved



Statutory Provisions Involved

Code of Alabama, Tit. 30, §20. Jury roll and cards.—
The jury commission shall meet in the court house at the 
county seat of the several counties annually, between the 
first day of August and the twentieth day of December, 
and shall make in a well bound book a roll containing the 
name of every male citizen living in the county who pos­
sessed the qualifications herein prescribed and who is not 
exempted by law from serving on juries. The roll shall 
be arranged alphabetically and by precincts in their nu­
merical order and the jury commission shall cause to be 
written on the roll opposite every name placed thereon 
the occupation, residence and place of business of every 
person selected, and if the residence has a street number 
it must be given. Upon the completion of the roll the 
jury commission shall cause to be prepared plain white 
cards all of the same size and texture and shall have 
written or printed on the cards the name, occupation, place 
of residence and place of business of the person whose 
name has been placed on the jury roll; writing or print­
ing but one person’s name, occupation, place of residence 
and of business on each card. These cards shall be placed 
in a substantial metal box provided with a lock and two 
keys, which box shall be kept in a safe or vault in the office 
of the probate judge, and if there be none in that office, 
the jury commission shall deposit it in any safe or vault 
in the court house to be designated on the minutes of the 
commission; and one of said keys thereof shall be kept by 
the president of the jury commission. The other of said 
keys shall be kept by a judge of a court of record having 
juries, other than the probate or circuit court, and in 
counties having no such court then by the judge of the 
circuit court, for the sole use of the judges of the courts 
of said county needing jurors. The jury roll shall be kept



31a

securely and for the use of the jury commission exclusively. 
It shall not be inspected by anyone except the members of 
the commission or by the clerk of the commission upon 
the authority of the commission, unless under an order of 
the judge of the circuit court or other court of record 
having jurisdiction. (1939, p. 86; 1945, p. 496, appvd. July 
7, 1945.)

Code of Alabama, Tit. 30, § 24. Duty of commission to 
fill jury roll; procedure; etc.—The jury commission is 
charged with the duty of seeing that the name of every 
person possessing the qualifications prescribed in this chap­
ter to serve as a juror and not exempted by law from 
jury duty, is placed on the jury roll and in the jury box. 
The jury commission must not allow initials only to be 
used for a juror’s name but one full Christian name or 
given name shall in every case be used and in case there 
are two or more persons of the same or similar name, the 
name by which he is commonly distinguished from the 
other persons of the same or similar name shall also be 
entered as well as his true name. The jury commission 
shall require the clerk of the commission to scan the regis­
tration lists, the lists returned to the tax assessor, any city 
directories, telephone directories and any and every other 
source of information from which he may obtain informa­
tion, and to visit every precinct at least once a year to 
enable the jury commission to properly perform the duties 
required of it by this chapter. In counties having a popu­
lation of more than one hundred and eighteen thousand 
and less than three hundred thousand, according to the 
last or any subsequent federal census, the clerk of the 
jury commission shall be allowed an amount not to exceed 
fifty dollars per calendar year to defray his expenses in

Statutory Provisions Involved



32a

the visiting of these precincts, said sum or so much thereof 
as is necessary to be paid out of the respective county 
treasury upon the order of the president of the jury com­
mission. (1939, p. 86.)

Code of Alabama, Tit. 30, § 30:

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

Statutory Provisions Involved



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