# Billy Guice and Howard Claxton, Sr. v. Ray Fortenberry, Superintendent, East Carroll Parish Prison Farm,respondent-Appellee

> Court of Appeals for the Fifth Circuit · November 18, 1981 · 661 F.2d 496

URL: https://www.frixlaw.com/law-library/cases/9468479

## Case

- **Full name:** Billy GUICE and Howard Claxton, Sr., Petitioners-Appellants, v. Ray FORTENBERRY, Superintendent, East Carroll Parish Prison Farm, Respondent-Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 18, 1981
- **Citations:** 661 F.2d 496; 1981 U.S. App. LEXIS 15893
- **Precedential status:** Published
- **Opinion:** Concurring in part by Brown
- **Judges:** Godbold, Brown, Ainsworth, Clark, Roney, Gee, Tjoflat, Fay, Rubin, Vance, Kravitch, Johnson, Garza, Henderson, Reavley, Politz, Hatchett, Anderson, Randall, Tate, Williams
- **Cited by:** 92 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JOHN R. BROWN, Circuit Judge,
with whom TJOFLAT, Circuit Judge, joins, concurring and dissenting in part:
I concur in the result reached in Judge Rubin’s opinion and all that is said with the exception of that portion contained in Part *514 VI expounding a statistical basis 1 for the result achieved.
Although I have long, ardently urged 2 the full development and use of statistics in demonstrating discrimination — usually racial — that method is not comparable and hence is not appropriate here. As to this I think the analysis of Judge Reavley in his dissent is unanswerable. These statistical constructs — by whatever name described— are based oh the assumed fact that choice is determined wholly at random by chance.
Here, grand jury foremen — whether for good, acceptable or bad reasons — are to be selected deliberately by the Judge as a matter of individualized principled choice. The Judge does not — as the statistical model contemplates — draw at random a single name out of forty.
It flaws the opinion to stress this inapplicable statistical improbability as a basis for the result requiring remand to the Federal District Court to ascertain all of the facts concerning the process of selecting grand jury foremen which so far is only sketchily revealed in an incomplete, inadequate, State record.
. This encompasses the following from the last part of the opinion, 661 F.2d 508 , that reads:
That, from a venire selected in a racially nondiscriminatory manner in a parish where the population is approximately 60% black, there would bé no racial discrimination in the selection of white foreman thirty-one successive times is so unlikely as to demand at least exploration [and is] an event whose occurrence is statistically implausible [which] occurs repeatedly, . . .?
. State of Alabama v. United States, 304 F.2d 583 (5th Cir. 1962) aff'd per curiam 371 U.S. 37 , 83 S.Ct. 145 , 9 L.Ed.2d 112 :
In the problem of racial discrimination, statistics often tell much, and Courts listen. Rowe v. General Motors Corp., 457 F.2d 348, 357 (5th Cir. 1972); Brooks v. Beto, 366 F.2d 1, 9 (5th Cir. 1966), cert. denied, 386 U.S. 975 , 87 S.Ct. 1169 , 18 L.Ed.2d 135 (1967):
Figures speak and when they do, Courts listen.” United States v. Hinds, 417 F.2d 852, 858 (5th Cir. 1969):
Statistics are not, of course, the whole answer, but nothing is as emphatic as zero.
United States v. T.I.M.E.-D.C., 517 F.2d 299 , 313 (5th Cir. 1975); Smith v. Liberty Mutual Ins. Co., 569 F.2d 325 (5th Cir. 1978).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468479. Public record. Not legal advice.