Pacific Legal Foundation v. Kayfetz Motion and Brief Amicus Curiae

    In th e

ISlmUb States (Laurt af Appeals
F or th e  E ig h t h  C ircuit  

No. 19065

Charles T ow nsend ,

—v.
Appellant,

E oy B. E oss, Chief of Police, Helena, Arkansas, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS 

HELENA DIVISION

APPELLANT’S BRIEF

J ack  G reenberg 
N orman  C. A m aker  
J ames N . F in n e y

10 Columbus Circle 
New York, New York 10019

G eorge H oward, J r .
329% Main Street 
Pine Bluff, Arkansas

Attorneys for Appellant



I N D E X

PAGE

Statement.............................................................................- 1

Statement of Points to Be Argued ..................................  6

A r g u m e n t :

I. The District Court Erred in Overruling Appel­
lant’s Motion to Quash the Jury List and Names 
in the Jury Box ......................................................  8

A. The Clerk of the Court and the Jury Com­
missioner in compiling the jury list violated 
the federal statutory scheme by applying 
statutorily incorrect standards for the selec­
tion of prospective jurors .......................    8

B. Appellant was entitled to inspect the jury 
list from which he sought to show that the 
proportion of Negroes on the jury list was 
so substantially below the percentage of 
Negroes residing in the district as to justify 
a holding of systematic exclusion of Negroes
on account of race ............................................  11

C onclusion  ................................................................  16

Certificate of Service..........................................................  17



11

T able op A uthorities

Cases: PAGE

Cassell v. Texas, 339 U.S. 282 (1950) .............................6,10
(/Coleman v. Alabama, 377 U.S. 129 (1964) ...............6,11,12

/ /T a y  v. People of State of New York, 332 U.S. 261
(1947) ....................................................... ........................6,12

t/tjla lser v. United States, 315 U.S. 60 (1940) ...............  6, 9

\/Moobley v. United States, 379 F.2d 768 (5th Cir. 1967)
6, 7,11,12,14

i/Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 
1966) ....................................................... ...... 6, 7, 9,10,11,15

Smith v. Texas, 311 U.S. 128 (1940) ............................. 6, 9

i/*Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) ..... 6, 9

United States v. Wiman, 304 F.2d 53 (5th Cir. 1962) ....7,12

Whitus v. State of Georgia, 385 U.S. 545 (1967) ...........7,12

Statute :

28 U.S.C. §1861 ......................... ............ ............................. 6, 9



In the

lUnlUb Status Gkmvt nf Appeals
F oe th e  E ig h t h  Circuit 

No. 19065

Charles T ow nsend ,

-v-
Appellant,

R oy B. R oss, Chief of Police, Helena, Arkansas, et al.,

Appellees.

ON A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT 
FOR T H E  EASTERN  DISTRICT OF ARKAN SAS 

H E L E N A  DIVISION

APPELLANT’S BRIEF

Statement

This is an appeal from the order of the United States 
District Court, Eastern District of Arkansas, Helena Divi­
sion, dated June 1, 1967 (R. 36), denying appellant’s mo­
tion to quash the jury roll and the names of prospective 
jurors in the jury box, and from the final judgment based 
on the jury verdict in favor of appellees (R. 37).

Appellant, a Negro citizen, filed suit in the United States 
District Court, Eastern District of Arkansas, Helena Divi­
sion on February 8, 1966, against Chief of Police Roy B. 
Ross, patrolmen Leroy Davis and “John Doe” (Royce 
William Finley), all members of the Helena, Arkansas 
Police Department, seeking money damages for personal 
injuries which they had inflicted upon the appellant. The



2

Home Indemnity Company, a corporation, was also made 
a defendant in the action because it was a joint obligee with 
Chief Ross on an indemnity bond of $3,000.00 which Ross, 
as Chief of Police, had been required by the City of Helena 
to post (R. 5, et seq.).

In his complaint, appellant alleged the following facts:

On the afternoon of December 24, 1965, appellant was 
sitting in his parked automobile in downtown Helena when 
he was approached by store detective and special police­
man Finley1 who ordered appellant out of the automobile 
and told him that he was under arrest (R. 7). When ap­
pellant asked the reason for the arrest, Finley struck him 
several times, detained him and handed him over to the 
regular police when they arrived (R. 138-9). The appel­
lees, Chief Ross, Davis and Nicholls transported appellant 
to the city jail and there, without cause, struck and beat 
appellant into a bloody condition, inflicting bruises, abra­
sions and contusions about his face, head, and body until 
appellant was rendered unconscious (R. 140).

Officer Finley testified that as he was making his rounds 
he observed appellant being disorderly and using profanity 
in public (R. 208); and that as he was placing appellant 
under arrest, appellant struck him (R. 210). He also testi­
fied that in his opinion appellant was intoxicated to the 
point of having lost physical control of himself (R. 208). 
Witnesses for appellant testified to having been with him 
throughout the morning prior to the incident and that he 
was sober and self-possessed (R. 117, 131).

Chief Ross and officers Davis and Nicholls testified that 
they transported appellant to the city jail and that appel-

1 Chief Ross testified that he had authorized Finley to perform the 
duties of a policeman whenever, in Finley’s judgment, circumstances dic­
tated (R. 276-7).



3

lant was silent and gave no trouble during the ride (R. 239, 
253, 268). Officer Nicholls further testified that after ap­
pellant had been “booked” and was being escorted to a 
jail cell, he suddenly struck Nicholls (R. 241). Chief Ross 
and officer Davis testified that they went to Nicholls’ aid 
and that physical force was necessary to subdue appellant 
(R. 255, 271).

Appellant was later confined to the Helena Hospital, 
from Friday, December 24, 1965, to Monday, December 27, 
1965, receiving medical treatment which included 16 sutures 
on his head (R. 141).

At the time of the arrest officer Finley accused appel­
lant of shoplifting (R. 120, 141). He was actually formally 
charged with being drunk, disturbing the peace, resisting 
arrest, and assaulting a policeman, which charges were 
lodged in the Municipal Court of Helena, Arkansas. Ap­
pellant unequivocally denied and continues to deny both 
the accusation and the formal charges. The appellant was 
arrested without a warrant and was not carried before a 
judge, court, or magistrate.

On February 8, 1966, appellant filed a civil damage ac­
tion in the District Court for the Eastern District of 
Arkansas, Helena Division, alleging that his rights, privi­
leges, or immunities secured by the Constitution and laws 
of the United States had been violated; and further al­
leging that the treatment accorded to him by the named 
policemen violated those requirements of decency, fairness 
and liberty secured to the appellant by the due process 
clause and equal protection clause of the Fourteenth 
Amendment to the Constitution of the United States.

Appellant alleged that he had been damaged in the sum 
of $75,000.00 and demanded recovery of an additional sum 
of $75,000.00 as punitive damages.



4

On May 16, 1966, appellant filed a motion to quash the 
jury roll, jury list, and the names in the jury box on the 
grounds that the procedure for jury roll compilation re­
sulted in the exclusion of Negroes from jury service on 
account of their race (R. 16).

At the pre-trial hearing of May 23, 1966, counsel for 
appellant, at the suggestion of the trial court, agreed to 
submit written interrogatories to the Clerk of the Court 
and the Jury Commissioner; a hearing was to be set at 
a subsequent date for the taking of oral testimony. Counsel 
for appellant stated that at some point the names of 
prospective jurors on the jury list or roll, as well as the 
names of “key men” would be required (R. 64).

The clerk of the court interjected that he would refuse 
to divulge the names of prospective jurors contained in 
the jury box, on the grounds of confidentiality (R. 62) ; 
further that he would refuse to divulge the names of “key 
men” on the same ground and also because he felt that to 
do so “might subject a number of innocent people to pretty 
severe harassment that occurs to me is not necessary in 
this.”  (R. 62) The court postponed a decision as to whether 
this information could be withheld from appellant (R. 63).

On May 29, 1967, a second pre-trial conference was held 
and counsel for plaintiff requested that the court set a 
date for a hearing on the motion to quash the jury list 
and require the clerk and the jury commissioner to appear 
at the hearing and bring with them the current jury list 
and information as to the identity of the key men (R. 68-9). 
Counsel stated that production of this information would 
be absolutely essential if appellant was to shoulder his 
burden of proof; and that the information had not been 
supplied by the clerk and the jury commissioner in their 
respective answers to the interrogatories (R. 73-74).



5

The court offered to allow plaintiff an opportunity to 
examine the clerk and the jury commissioner but refused 
to order them to produce the jury roll or information about 
the key men on the grounds: that the court did not believe 
that plaintiff was entitled to such production (R. 75); that 
the information sought could be obtained by questioning 
the clerk and the jury commissioner before the court (R. 
78) ; and that the discovery requested would be unduly time- 
consuming (R. 76).

Counsel for plaintiffs stated that the contention of racial 
discrimination in jury roll compilation could not otherwise 
be documented if the court would not allow plaintiff to 
study the jury roll and determine the number and per­
centage of Negroes on the list, and that without such in­
formation a hearing would be meaningless (R. 77-8).

The court, nevertheless, refused to order the clerk to 
produce either the jury roll or a list of key men. The 
motion to quash the jury roll was denied (R. 80).

Trial was held on June 13 and 14, 1967, and at its con­
clusion, the jury returned a verdict in favor of the appellees 
(R. 291). In accordance with the verdict of the jury, the 
court ordered the complaint dismissed (R. 37). Appellant 
filed a motion for judgment notwithstanding the verdict 
which was denied by the court on August 24, 1967. On 
September 23, 1967, appellant filed a notice of appeal from 
the final judgment of the district court.



6

STATEMENT OF POINTS TO BE ARGUED

I.

The District Court Erred in Overruling Appellant’ s 
Motion to Quash the Jury List and Names in the Jury 
Box.

A. The clerk of the court and the jury commissioner in 
compiling the jury list violated the federal statutory scheme 
by applying statutorily incorrect standards for the selec­
tion of prospective jurors.

Cases:

Cassell v. Texas, 339 U.S. 282 (1950);
Glasser v. United States, 315 U.S. 60 (1940);
Mobley v. United States, 379 F.2d 768 (5th Cir. 

1967);
Rabinowitz v. United States, 366 F.2d 34 (5th 

Cir. 1966);
Smith v. Texas, 311 U.S. 128 (1940);
Thiel v. Southern Pac. Co., 328 U.S. 217 (1946).

Statutes:

28 U.S.C. 1861.

B. Appellant was entitled to inspect the jury list, where 
he sought to show that the proportion of Negroes on the 
jury list was so substantially below the percentage of 
Negroes residing in the district as to justify a holding of 
systematic exclusion of Negroes on account of race.

Cases:

Coleman v. Alabama, 377 U.S. 129 (1964);
Fay v. People of State of New York, 332 U.S. 

261 (1947);



7

Mobley v. United States, 379 U.S. 768 (5th Cir. 
1967);

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

United States v. Wiman, 304 F.2d 53 (5th Cir. 
1962);

Whitus v. State of Georgia, 385 U.S. 545 (1967).



8

I.

ARGUMENT

The District Court Erred in Overruling Appellant’s 
Motion to Quash the Jury List and Names in the Jury 
Box.

A. The Clerk of the Court and the jury commissioner in com­
piling the jury list violated the federal statutory scheme 
by applying statutorily incorrect standards for the selec­
tion o f prospective jurors.

The United States District Court, Eastern District of 
Arkansas is comprised of five divisions. There are sepa­
rate boxes for each division, except for the Little Rock 
and Pine Bluff Divisions which share a common box. The 
venire for petit juries is drawn from the list for the par­
ticular division where the jury is to serve (R. 26).

There are 75,932 persons over the age of 21 and poten­
tially eligible for jury service in the Helena Division of the 
Eastern District of Arkansas; of these 40,484 persons, or 
approximately 54%, are white; 35,448 or approximately 
46% are Negro.2

Jury rolls are compiled by the Clerk of the District 
Court and the Jury Commissioner; the names of prospec­
tive jurors are secured by them for each of the five divi­
sions from personal acquaintances and from the recom­
mendations made to them by “key men” whom the Clerk 
and the Jury Commissioner designate in each county of 
the five divisions of the Eastern District of Arkansas (R. 
22, 30).

2 Computed from data taken from U.S. Census of Population; 1960 
General Population Characteristics Arkansas Pinal Report PC(1)-2B 
published by the U.S. Government Printing Office, Washington, D C 
1965.



9

It is a settled constitutional principle that in compiling 
jury rolls all necessary steps must be taken to insure that 
it be a body truly representative of the community. Smith 
v. Texas, 311 U.S. 128 (1940); Glasser v. United States, 
315 U.S. 60 (1942); Thiel v. Southern Pac. Co., 328 U.S. 
217 (1946).

Any attempt to gain competent federal jurors that would 
result in a less representative cross-section of the com­
munity than selection drawn from statutorily qualified 
pool would destroy the right to serve on juries which 
Congress intended to confer as well as destroy the broadly 
based cross-section Congress has designed for federal 
juries.3 Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 
1966).

The record is silent as to the standards employed by 
the Clerk of the Court in compiling his own list, and as to 
the instructions he gives to the key men to guide them in 
their recommendations. His standards for the appoint­
ment of key men suggest that he is strongly oriented 
towards competency over diversity; key men he designates 
are persons of his acquaintance whom he believes to be of 
“good character, recognized integrity and sound judg­
ment” (R. 22). The Jury Commissioner in designating 
“ outstanding citizens” to act as key men instructs them to 
recommend the “names of substantial citizens” (R. 30). 
This standard presumably is also applied by the Jury Com­
missioner in compiling his own list.

A standard such as “ substantial citizenship” gives the 
key men too much subjective latitude and is strongly at 
odds with the federal statutory scheme. In Rabinowitz v.

3 28 U.S.C. 1861.



10

United States, supra, the Court of Appeals for the Fifth 
Circuit stated:

“But the change occasioned by the 1957 Civil Bights 
Act substantially altered the situation. The state stat­
utes with all their nebulous qualifications no longer 
applied. Therefore, the State statutes ceased to confer 
discretion on the court clerk and the jury commis­
sioner. The federal qualifications are objective and 
precise, requiring in their application no discretion on 
the part of the court clerk and the jury commissioner. 
Since Congress only conferred discretion on the clerk 
and the commissioner by implication from the State 
statutes, their discretion ceased to exist when the State 
qualifications were entirely swept away.” 366 F.2d at 
54.

It would appear from the record that the key men were 
not made aware of the fact that the jury list must repre­
sent a true cross-section of the community, and except for 
checking to determine the legal qualifications of the 
nominees, “whether they have served as jurors within one 
year; and whether exempt from jury service,” the lists 
submitted by key men are accepted uncritically by the Clerk 
of the Court and the Jury Commissioner (R. 22-3, 30). Mr. 
Justice Frankfurter, in Cassell v. Texas, 339 U.S. 282, 293 
(1950), made the following pertinent observation:

“If one factor is uniform in the continuing series of 
events that are brought to pass through human interven­
tion, the law would have to have the blindness of in­
difference rather than the blindness of impartiality not 
to attribute the uniform factor to man’s purpose. The 
purpose may not be of evil intent or in conscious dis­
regard of what is conceived to be a binding duty. Pro­
hibited conduct may result from misconception, of 
what duty requires. Such misconception, I believe to 
be the real situation on the record before us.”



11

Since the Clerk of the Court and the Jury Commissioner 
limited the source for the compilation of the jury list to 
persons of their acquaintance and to the recommendations 
of key men of their acquaintance or personal knowledge, 
given a basic source of more than 75,000 qualified prospec­
tive jurors and since the standard for nomination is statu­
torily impermissible, the district court should have upheld 
appellant’s motion to quash the jury list which this selec­
tion system produced. Mobley v. U.S., 379 F.2d 768 (5th 
Cir. 1967); Rabinowitz v. U.8., supra, p. 48:

“The line of demarcation is clear—a person need only 
be able to read, write, speak and understand English, 
he need not enjoy that degree of excellence found only 
among the more fortunate classes of our society. Any 
attempt to gain competent jurors that would result in 
a less representative cross-section than a selection 
drawn from the statutorily qualified pool would destroy 
the ‘right’ to serve on juries which Congress intended 
to confer, as well as destroy the board based cross- 
section Congress has designed for federal juries.”

B. Appellant was entitled to inspect the jury list where he 
sought to show that the proportion of Negroes on the jury 
list was so substantially below the percentage of qualified 
Negroes residing in the district as to justify a holding of 
systematic exclusion of Negroes on account of race.

Appellant’s motion to quash the jury list and the names 
in the jury box on grounds of systematic exclusion of 
Negroes was timely made and he was entitled to prove 
his allegation. Coleman v. Alabama, 377 U.S. 129 (1964); 
Mobley v. United States, supra.

The burden of proof is on the person attacking the selec­
tion procedure to show that Negroes are excluded from



12

jury service on account of race. Whitus v. State of Georgia, 
385 U.S. 545 (1967); Fay v. People of State of New York, 
332 U.S. 261 (1947).

“Very decided variations in proportions of Negroes 
and whites on jury lists from racial proportions in the 
population which variations are not explained and 
are long continued, furnish sufficient evidence of sys­
tematic exclusion of Negroes from jury service.” 
United States v. Wiman, 304 F.2d 53, 67 (5th Cir. 
1962).

Evidence of the ratio of Negroes to whites on the jury 
list is pertinent to the question whether Negroes have been 
systematically excluded because of their race. And with­
out such evidence the record before the district court was 
insufficient for a final determination on the merits of ap­
pellant’s motion. Coleman v. Alabama, supra; Mobley v. 
United States, supra.

The record is silent on the subject of the ratio of white 
to Negro jurors in the Helena jury box from which the 
petit jury array was selected. At the suggestion of the 
Court made during the pre-trial hearing on May 23, 1966, 
appellant sought to develop evidence as to the racial com­
position of the jury list by submitting interrogatories to 
the Clerk and Jury Commissioner (R. 60-61). The Clerk 
was asked to state the total number of names of Negroes 
in the jury box. His reply stated that the question was 
“ fI]mpossible to answer as no record is kept which would 
indicate the race or color of prospective jurors” (R. 24). 
Asked whether the names of Negroes on the jury lists are 
identified as such, the Clerk replied: “ There is no way to 
determine the race or color of jurors from the records of 
this office” (R. 27). The answers of the Jury Commissioner 
were similar (R. 31-2).



13

The Clerk and the Jury Commissioner were equally 
reticent to supply information regarding the name, race, 
and occupation of their key men. The Clerk, as indicated, 
had stated to the court that he would refuse to divulge 
the information (E. 62); the Jury Commissioner in his 
answer to interrogatoi’y number 9, stated: “ I have no 
record of the name, address, occupation or race of the 
key man that I use for I use different ones each time 
and call or contact highly responsible citizens in each 
county” (E. 31).

The answers of the Clerk and the Jury Commissioner 
shed no light on what the ratio of whites to Negroes on 
the jury list was, nor supplied any indication as to what 
it might, on inspection, prove to be. The deficiencies of 
the answers substantiated appellant’s contention that the 
only practical way the ratios could be determined was 
through an inspection of the names on the list and the 
adduction of evidence of racial composition based on such 
inspection. Further, the answers clearly demonstrate the 
futility of questioning the Clerk and the Jury Commis­
sioner to establish the white—Negro ratio independently of 
an inspection of the jury list, as the court proposed that 
counsel for appellant do (E. 75, 77).

The method by which appellant intended to conduct his 
inspection and adduce facts as to the percentage of Negroes 
and whites on the list was designed to be inexpensive and 
expeditious. Appellant did not request an inspection of 
the jury box for each of the five divisions of the Eastern 
District; only the box or list from 300—1000 names for the 
Helena Division; nor did the appellant intend to subpoena 
each and every prospective juror whose name appeared 
on the list. As was stated to the court at the pre-trial 
hearing of May 29, 1967, appellant intended to employ 
the technique of calling witnesses qualified for their knowl­



14

edge of the races in the communities and counties which 
comprise the Helena Division and having them inspect the 
jury list (R. 73). Such a procedure would not have ex­
hausted an undue amount of the Court’s time.

The importance of the question raised by appellant’s 
motion far outweighed the importance of protecting abso­
lutely the confidentiality of the jury list. The necessity of 
some breach of confidentiality was particularly underscored 
by the practical difficulty faced by appellant in producing 
the vital evidence as to the white—Negro ratio of the jury 
list in any other way.

The method of procedure proposed by appellant would 
have entailed only a minimal breach of confidentiality and 
the court could have imposed any further safeguards which 
it deemed appropriate.

The information which appellant sought from the jury 
list, e.g., the race of the persons named thereon, was not 
of a very sensitive nature. In Mobley v. United States, su­
pra, p. 11, appellant had requested an opportunity to in­
spect questionnaires which prospective jurors on the jury 
list were required to answer and return to the Clerk in 
order to determine the ratio of Negroes to whites on the 
jury list. The request had been denied on the ground that 
the questionnaires contained in addition to information as 
to race, other responses of a confidential nature which the 
court felt obligated to protect. In finding that the district 
court had erred in refusing to allow appellant to inspect 
the questionnaires on the grounds of confidentiality the 
Court of Appeals for the Fifth Circuit held:

“ This evidence, [of the race of prospective jurors on 
the jury list] designed to show the ratio of Negroes 
to white on the jury lists, is pertinent to an inquiry 
into the question of whether there has been a sys­



15

tematic exclusion of Negroes because of race. While 
this proof is not necessarily controlling, it is, never­
theless, an important factor of substantial value and 
should be considered by the court in connection with 
the other evidence pertaining to the method of selec­
tion of persons on the jury lists. Confidentiality of 
the jury questionnaires must accordingly yield to this 
major consideration. The court could have provided 
appropriate safeguards to the confidentiality of the 
questionnaires by requiring that nothing be taken 
from them except the declaration of race.” 379 F.2d 
at 773.

In refusing to permit appellant to inspect the jury list 
under any circumstances, the district court erroneously 
foreclosed to appellant any reasonable opportunity to 
develop and present evidence to support his allegation 
that Negroes are excluded from jury service.

The error is not cured by virtue of the fact that there 
were Negroes on the jury venire, a few of whom became 
jurors in this case.4

In Rabinowitz v. United States, supra, p. 59, the Court 
of Appeals for the Fifth Circuit said:

“ The focus of the law is on the list from tvhich the 
jury is drawn and not on the composition of a par­
ticular jury. . . . The efforts by Congress to broaden 
the base of the jury system in federal courts was an 
attempt to do more than improve the administration 
of justice at the point where it most directly touches 
members of the legal profession and litigants. It con­
stituted an effort to improve the judicial system where 
it most directly touches the lives of the average 
citizen.”

4 It appears that of 41 or 42 prospective jurors whose names were 
drawn from the jury box, sixteen were Negro (R. 98).



16

CONCLUSION

For the foregoing reasons the verdict should be set aside 
and a new trial granted after a new jury list has been drawn 
without discrimination, intentionally or through neglect, on 
the basis of race or color.

Bespectfully submitted,

J ack  G reenberg
N orman C. A maker
J ames N. F in n e y

10 Columbus Circle 
New York, New York 10019

G eorge H oward, J r .
329% Main Street 
Pine Bluff, Arkansas

Attorneys for Appellant



17

Certificate of Service

This is to certify that on the 26th day of January, 1968, 
I served a copy of the foregoing Appellant’s Brief upon 
W. G. Dinning, Jr., 538 Rightor Street, Helena, Arkansas, 
David Solomon, 215 Cherry Street, Helena, Arkansas and 
Roscopf & Raff, Helena National Bank Building, Helena, 
Arkansas, by mailing a copy thereof to each of them at 
the above addresses via United States mail, postage pre­
paid.

N orman C. A maker 
Attorney for Appellant



ME1LEN PRESS INC.