Brief of the petioner — Whitus v. Georgia

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IN THE SUPREME COURT OF THE

SPATES avis, cuerk |

OCTOBER TERM, 1966

No. 253

Pam Wuitus and Leon Davis,

Petitioners,

v.

Tue State or GeorGIA,

2 Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR PETITIONERS

CHARLES MoraGan, JR.

Counsel for Petitioners

5 Forsyth Street, N.W.

Atlanta, Georgia 30303

Of Counsel :

P. Water JONES

505 Park Avenue

Albany, Georgia 31702

B. CLARENCE MAYFIELD

910 West Broad Street

Savannah, Georgia

Morris Brown

1122 Healey Building

Atlanta, Georgia 30303

M. Lav@Huin McDonaLp

5 Forsyth Street, N.W.

Atlanta, Georgia 30303

Meitvin L. Wor

156 Fifth Avenue

New York, New York 10010

INDEX

SUBJECT INDEX

PETITIONERS’ BRIEF ®

Opinion Below

Jurisdiction

Questions Presented

Statutes Involved

Statement of the Case

1, Proceedings Below

2. Statement of the Facts

oar PF OD SF

ARGUMENT:

I. The Use of Tax Digests Containing Racial

Designations as the Source for Names of

Grand Jurors Provided the Opportunity

for Discrimination .Rendering the Indict-

ments of Petitioners Unconstitutional ...... no

1. History of the statutes involved ........ 8

2. Racial identification coupled with

vague and subjective standards of

juror selection affords an unconstitu-

tional mechanism for racial discrimi-

nation ...> 13

II. Negroes Were, in Fact, Systematically Ex-

cluded From the Grand Jury Which In-

dicted Petitioners ; Vas

III. The Judgments Should Be Reversed and

Rendered and the Petitioners Freed ........ 19

ConcLusion 23

li INDEX

Tasie oF AuTHorITIEs CITED

Page

CASES :

Anderson v. Martin, 375 U.S. 399 (1964) -........... 15,17

Arnold v. North Carolina, 376-U.S. 773 (1964) .. 18

Avery v. Georgia, 345 U.S. 559 (1952) -............... 14, 18

Brookins v. State, 221 Ga. 181, 144 S.E.2d 83

(1965) 13

Brown v. Allen, 344 U.S. 443 (1952) 16

Bush v. Kentucky, 107 U.S. 110 (1883) ................ 17

Cassell v. Texas, 339 U.S. 282 (1950) ................. 18

Davis v. State, 112 Ga. App. 328, 145 S.E.2d 83

(1965) 1

» Eskridge v. Washington, 357 U.S. 214 (1958) ... 16

Eubanks v. Louisiana, 356 U.S. 584 (1958) ........ 18, 19

Gideon v. Wainwright, 372 U.S. 335 (1963) ........ 16

Griffin v. Illinois, 351 U.S. 12 (1956) -.............. 16

Hale v. Kentucky, 303 U.S. 613 (1938) -............... 17

Hamilton v. Alabama, 376 U.S. 650 (1964) ........ 15-16

Hamm v. Virginia State Board of Elections, 230

F. Supp. 156 (B.D. Va. 1964), aff’d per curiam .

sub nom. Tancil v. Woolls, 379 U.S. 19 (1964) 16-17

Harper v. Virginia State Board of Elections, 34

L.W. 4305 (1966) 16

Harvey v. Mississippi, 340 F.2d 263 (1965) ........ 16

Hernandez v. Texas, 347 U.S. 475 (1954) .......... 18

Hill v. Texas, 316 U.S. 400 (1942) 18, 19

Hollins v. Oklahoma, 295 U.S. 394 (1935) -........... 17

Johnson v. Virginia, 373 U.S. 61 (1963) 0... = 16

Lame v. Brown, 372 U.S. 477 (1963) 16

Louisiana v. United States, 380 U.S. 145 (1965) 15

Mapp v. Ohio, 367 U.S. 643 (1961) 15

Neal v. Delaware, 103 U.S. 370 (1881) ................ 17

Norris v. Alabama, 294 U.S. 587 (1935) ......... 17, 18

Page

Patton v. Mississippi, 332 U.S. 463 (1947) ..... 18,19

Pierre v. Louisiana, 306 U.S. 354 (1939) ...... 17

Plessy v. Ferguson, 163 U.S. 537 (1896) ........... 18

Reece v. Georgia, 350 U.S. 85 (1955) 18

Smith v. Texas, 311 U.S. 128 (1940) 15, 17

Speller v. Allen, 344 U.S. 443 (1952) 16

Steele v. Louisville & N. R. Co., 323 U.S. 192 -

(1944) 15

Strauder v. West Virginia, 100 U.S. 303 (1880) 17

Texas v. United States, 34 L.W. 3376 (1966) ... 16

Whitus v. Balkcom, 299 F.2d 844 (5 Cir. 1962) .. 4

Whitus v. Balkcom, 370 U.S. 728° (1962) ............ 5

Whitus v. Balkcom, 333 F.2d 496 (5 Cir. 1964),

cert. den. 379 U.S. 931 (1965) 5, 19

Whitus v. State, 112 Ga. App. 328, 145 S.E.2d

83 (1965) 1,5

Williams v. Georgia, 349 U.S. 375 (1955) ...... 14

U.S. v. Mississippi, 380 U.S. 128 (1965) -.......... 15

US. ex rel. Goldsby v. Harpole, 263 F.2d 71

(1959) cert. den. 361 U.S. 838 (1959) ................ 5

U.S. ex rel. Seals v. Wiman, 304 F.2d 53 (5th

Cir. 1962) cert. den. 372 U.S. 975 (1963) ........ 5

CONSTITUTIONAL PROVISIONS CITED:

Constitution of the United States:

Article ITI, Section 2 6

Fifth Amendment 6

Sixth Amendment .. 6

Seventh Amendment 6

Fourteenth Amendment 6;17

_ ae INDEX

«=

\ Page

Constitution of the State of Georgiayel 868 :

Article 5, Section XIII, 781, IT 12

Constitution of the State of Georgia, 1877:

Article VI, Section XVIII, 997 n, Ga. Acts

1878-9, p. 34 12

STATUTES CITED: |

United States Code: aa \

Title 28 U.S.C. Section 1257(3) 2

Code of Georgia (1861):

Article 2, Section 3882, pp. 721-722 }........... ae

Georgia Code (1933) :

Section 24-4525 6

. Section 59-106 2,3

Section 92-6307 2, 4, 8, 13

Judiciary Act of 1799, Vol. 1, 292-294, Section

: XXXVIII 12

OTHER AUTHORITIES CITED:

Cooper, Walter G., The Story of Georgia, Vol.

III, 1938 13

Lester, Anthony, Justice in the American South,

Amnesty International, 1 Mitre Court Build-

ings Temple, London, E.C. 4 (1965) ............ 20

Justice, 1961 U.S. Commission on Civil Rights

Report 21

Nelson, Jack, Los Angeles Times, June 13-17,

1965, p. 1 20

U.S. Bureau of the Census, U.S. Census of Popu-

lation: 1960. Vol. I, Characteristics of the —

Population. Part 12, Georgia. U.S. Govern-

ment Printing Office, Washington, D.C., 1968 .. 7

Woodward, C. Vann, A History of the South,

Origins of the New South IX, 1877-1913,

L.S.U. Press, Baton Rouge, La., 1951 ............8, 9, 10

Woodward, C. Vann, Tom Watson, Agrarian

Rebel, The Macmillan Company, New York,

1938 _-4...10, 11, 12

~

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1966

No. 253

Pam Warrvs and Leon Davis,

Petitioners,

v.

THe State or Georais,

Respondent.

¢>

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF GEORGIA

BRIEF FOR PETITIONERS

Opinion Below ws

The Opinion of the Court of Appeals of Georgia is re-

ported at 112 Ga. App. 328, 145 S.E. 2d 83 (1965).

=i

(pmo Jurisdiction ,

The judgment of the Court of Appeals of Georgia was ,.

entered on September 8, 1965. Rehearing was denied on x

September 22, 1965. The Supreme Court of Georgia denied

timely applications for writs of certiorari on November 9,

1965, motion for reconsideration in the case of Phil Whitus

on November 16, 1965 and motion for reconsideration in

the case of Leon Davis on November 29, 1965. The juris-

r

tN I AB an A A an thematic fi

2

diction of this Court is invoked under 28 U.S.C., Section

1257(3), petitioners having asserted below and asserting

here the deprivation of their rights, privileges and immuni-

ties claimed under the Constitution of the United States,

and since the validity of a State statute is drawn in ques- |

tion on the ground of its being repugnant to the Constitu- ° |

tion of the United States.

Questions Presented

1) Whether a Negro criminal defendant can be indicted |

conformably with the Constitution of the United States

when State law requires the jury commissioners of a county

to select the names of prospective grand jurors from the

county tax receiver’s tax digest, and the state law requires

the tax receiver to maintain his tax digest on a racially

segregated basis; and as subsidiary questions thereto,

whether the mechanics of selection of grand jurors required

by state law make discrimination probable, and whether a

grand jury selected under such requirements of state law

would be unconstitutionally composed; and

2) Whether Sections 59-106 and 92-6307, of the Code of

Georgia, when construed together are repugnant to the due

process and equal protection clauses of the Fourteenth

Amendment of the Constitution of the United States; and

3) Whether a Negro criminal defendant can be constitu-

tionally indicted by a grand jury selected from a grand

jury list which was made up, with reference to a pre-exist-

ing grand jury list admitted to have been unconstitutionally

composed, of names selected pursuant to state law from a

tax digest maintained pursuant to state law on a racially

segregated basis; and

3

4) Whether from the evidence adduced at the hearing in

the trial court below there was shown a systematic exclu-

sion of Negroes from the grand jury which indicted the

petitioners, Negro criminal defendants, they being thereby:

deprived of rights secured to them by the equal protection ‘

and due process clauses of the Fourteenth Amendment of

the Constitution of the United States.

Statutes Involved

The statutes involved are the i.!!owing sections of the

Code of the State of Georgia (1933), as amended:

59-106. (816, 819 P.C.) Revision of jury lists. Selec-

tion of grand. and traverse jurors.—Biennially, or, if

the judge of the superior court shall direct, triennially

on the first Monday in August, or within 60 days there-

after, the board of jury commissioners shall revise

the jury lists.

The jury commissioners shall select from the books

of the tax receiver upright and intelligent citizens to

serve as jurors, and shall write the names of the per-

sons so selected on tickets. They shall select from these

a sufficient number, not exceeding two-fifths of the whole

number, of the most experienced, intelligent, and up-

right citizens to serve as grand jurors, whose names

they shall write upon other tickets. Theventire number

first selected, including those afterwards selected as

grand jurors, shall constitute the body of traverse

jurors for the county, to be drawn for service as pro-

‘ vided by law, except that when in drawing juries a

name which has already been drawn for the same term

as a grand juror shall be drawn as a traverse juror,

a a ci ete aahlinanea et t A N

4

such name shall be returned to the box and another

drawn in its stead. (Acts 1878-9, pp. 27, 34; 1887, p. 31;

1892, p. 61; 1899, p. 44; 1953, Nov. Sess., pp. 284, 285;

1955, p. 247.)

92-6307. (1086) Entry on digest of names of colored

persons.—The tax receivers shall place the names of

the colored taxpayers, in each militia district of the

county, upon the tax digest in alphabetical order.

Names of colored and white taxpayers shall be made

out separately on the tax digest. (Acts 1894, p. 31.)

a

- —~

Statement of the Case

1. Proceedings Below.

Petitioners, adult Negro men, were indicted by the

Mitchell County, Georgia, Grand Jury (January Term,

1960) for the murder of James Eldridge “Peter” Glenn, an

adult white man. Trial juries returned verdicts of guilty

on January 13, 1960.

Petitioners subsequently filed unsuccessful motions for

new trials, appeals to the Supreme Court of Georgia, and

petitions for writs of certiorari in the Supreme Court of

the United States. Questions relating to the racial composi-

tion of the grand and petit juries of Mitchell County,

Georgia—except for a vague allusion in the petitions for

writs of certiorari in the Supreme Court of the United

States—were first raised in a petition for writ of habeas

corpus in the United States District Court for the South-

ern District of Georgia. The petition was denied on the

ground, among others, that a state remedy was available.

The United States Court of Appeals for the Fifth Circuit

affirmed. Whitus v. Balkcom (5 Cir., 1962), 299 F. 2d 844.

5

The Supreme Court, per curiam, vacated the judgment and

remanded the case. Whitus v. Balkcom, 370 U.S. 728 (1962).

Again the District Court dismissed the petition. On ap-

peal, the Court of Appeals reversed, stating:

[13] As in [U.S. ex rel.] Goldsby [v. Harpole, 263 F.

2d 71 (5 Cir. 1959), cert. den. 361 U.S. 838, 80 S.Ct.

58, 4 L. ed. 2d 78] and [U.S. ex rel.] Seals [v. Wiman,

304 F. 2d 53 (5 Cir. 1962), cert. den. 372 U.S. 975, 83

S.Ct. 741, 9 L. ed. 2d 729], the Court expresses its

present opinion that a period of eight months from and

after the entry of this judgment or its final test by

certiorari, or otherwise, will be sufficient to afford the

State an opportunity to take the necessary steps to re-

indict and retry the petitioners. Any such reindictment

must of course be by a grand jury from which Negroes

have not been systematically excluded, and any such

retrial must be before a jury from which Negroes have

not been systematically excluded, or before some court

or tribunal so constituted as not to violate the peti-

tioner’s constitutional rights. For the guidance of the

parties, thé Court expresses the present opinion that

if petitioners are reindicted and retried and if any

question should arise as to the legality or constitu-

tionality of such indictment or trial, that should be

decided not upon the present petition but in the¥égular

course by the Courts of the State of Georgia, subject

to possible review by the Supreme Court of the United

States. (Whilus v. Balkcom [5 Cir. 1964], 333 F. 2d

496, 510.)

Petitioners were reindicted by the Grand Jury of Mitchell

County, Georgia, on April 12, 1965 (R. 5-6, 67-68). Prior

to their indictment, however, and in accordance with

Neen En aaa

6

Georgia practice, Messrs. Whitus and Davis filed chal-

lenges to the array of grand jurors on the ground that

the grand jury was, in fact, and by state law had to be,

illegally and unconstitutionally composed and drawn and

was in derogation of the due process and equal protection

clauses of the Fourteenth Amendment of the Constitution

of the United States; and that the proceedings before,

and indictment by, the grand jury would deprive them of ,

- due process of law and equal protection of law guaranteed

them by the Fourteenth Amendment of the Constitution of

the United States and by Article III, Section 2, and the

Fifth, Sixth, and Seventh Amendments of said Constitu-

tion (R. 1-3, 69).

The Judge of the Superior Court of Mitchell County

heard the evidence and arguments on April 16, 1965, and

entered an order denying the challenges on April 19, 1965

(R. 7, 50). From that final judgment an appeal lay.

Petitioners’ appeal to the Supreme Court of the State of

Georgia was transferred to the Court of Appeals of Georgia

for hearing, pursuant to the provisions of Section 24-4525

of the Code of Georgia (1933), as amended. There the

judgment was affirmed on September 8, 1965 (R. 56-57).

The Supreme Court of the State of Georgia denied cer-

tiorari on November 9, 1965 (R. 66).

2. Statement of the Facts.

In February, 1965, the six white members of the Mitchell

County Jury Commission—there were no Negro commis-

sioners (R. 29)—met to revise the jury lists (R. 27, 33).

The commissioners had the tax digest and the old jury

roll with them (&,_21, 27) both of which they used (R. 48).

———————

7

Prior to 1965 tax returns were on different colored paper

—yellow for Negroes, white for whites (R. 44, 45). They

are still racially designated as are tax digests (R. 42).

Each commissioner testified he did not purposely exclude

Negroes on the-basis of their race (R. 26, 30, 36). They said.

racial designations on tax records did not influence them

in their selections (R. 45, 47, 48). The 500 to 600 persons

chosen (R. 32) were sought as the most intelligent, up-

right citizens of the community over 21 years of age (R.

30). But no intelligence tests were given them nor was

their educational background a factor (R. 31). Indeed,

a member of the jury commission could not describe the

mechanics of selection (Rz24), the conversations of the

commissioners (R. 22-23), or whether or not the old jury

lists were used, although he thought they were (R. 25).

After stating that he complied with constitutional require-

ments in the selection of jurors he didn’t know what the

requirements were (R. 25). Another commissioner had

no idea of the number of Negroes\on the rolls (R. 32).

Although only 3 of 90 jurors summoned were Negroes

(R. 40) the 1960 Census of Population, Vol. I Characteris-

tics of the Population part 12, Table 27, p. 12-123 dis-

closes that 10,206 people over the age of 21 years reside

in Mitchell County, Georgia of whom 4,706 were male,

2,004 (42%) of whom were Negroes.

Prior to the April Grand Jury which indicted Messrs.

Whitus and Davis the three serfior members of the Mitchell

County Bar (R. 14, 17) could recall only 1 Negro on a

grand jury and 2 Negroes on a petit jury list (R. 8-13, 14

15, 16-19). The first remembered Negro Mitchell County

Grand Juror (1 Negro of 19 men) served in this case (R.

38, 39, 41).

ARGUMENT

I,

The Use of Tax Digests Containing Racial Designations

as the Source for Names of Grand Jurors Provided the

Opportunity for Discrimination Rendering the Indictments

of Petitioners Unconstitutional.

1. History of the statutes involved.

It was from tax digests required to be racially segregated

by Section 92-6307 of the Georgia Code that the names of

grand jurors were selected. The progenitor of this section

was enacted in December of 1894 as part of a Voters’ Reg-

istration bill. The inherent design of the voter registra-

tion provision was disfranchisement of Negroes. A side

effect, since jurors were selected from the same tax lists

as those from which persons who had paid their taxes were

qualified as electors, was the exclusion of Negroes from

jury duty.

In one of the most plaintive of the appeals made to

President Cleveland by distraught Southern Democrats,

Governor William J. Northern of Georgia wrote in Sep-

tember, 1893, saying, “the conditions of this State are

fearful and threatening” and are engendering “a lack of

confidence in the party in power.” His greatest fear was

of the growing power of Populism. “Every election held

in this State for the past three (3) months has gone against

the Democrats and in favor of the Populists,” he wrote.

Woodward, C. Vann, A History of the South, Origins of

the New South, IX, 1877-1913, L.S.U. Press, 1951, p. 273.

That the Populist movement was a full scale assault

on the Democrats, heirs of the old Southern Bourbon

Dynasty, is self evident.

9

“The political strategy of Southern Populists was based

on combinations and alliances along regional, class, and

racial lines—first, an alliance between South and West;

second, a combination of farmers and city and factory

laborers; and third, a political union with Negro

farmers and laborers within the South. Every phase

of this strategy was a challenge to the new-South sys-

tem which had sought to divide all the elements Popu-

lists were trying to unite.” Ibid., p. 252.

“The bolder of them [i.e. Populists] challenged the cult

of racism with the doctrine of common action among

farmers and workers of both races. The very existence

of the third party, was, of course, a challenge to the

one-party system as well as to white solidarity.” Jbid.,

p. 249.

Even though the Populists had been defeated in the 1892

elections, their efforts through such men as Tom Watson

were being renewed and their cause advanced.

“Tom Watson spoke during the summer of 1893 in

thirty-five Georgia counties to crowds that he esti-

mated to total 150,000 people.” IJbid., p. 273.

- To meet the threat of a general Populist victory in the

elections of 1894, the various Southern states took their

separate steps.

“One refinement of old-party methods took the form of

changes in election laws—usually described as reforms.

The Sayre election law of Alabama, fot example, pro-

hibited assistance in marking ballots, thus providing

means of disfranchising thousands of illiterate voters,

white as well as black. (Clark, Populism in Alabama,

10

146; Montgomery Advertiser, August 10, 1894.) The

Walton law, passed by the Democrats of the Virginia

Legislature in 1893, likewise discriminated against the

unlettered voter. (Sheldon, Populism in the Old Do-

minion, 106-108.) A new registration law adopted in

Georgia the following year placed in the hands of a

Democratic registration committee the power to draw

up lists of qualified voters. The potentialities of this

law were demonstrated in Richmond County, in Wat-

son’s district, where more than one third of the Negroes

registered, (almost as many as whites) were listed as

‘just attained the age of 21.’” Ibid., p. 275.

Prior to the elections of 1894

“the Democratic machine of Augusta, more desperate

than in 1892, determined to win the congressional elec-

tion in November, 1894, by any means possible. A

description of the methods used—the drunken Negro

repeaters, the ballot-box stuffing and burning, intimi-

dation, bloodshed, and bribery—is unnecessary, for the

scene was merely a repetition of that of 1892 on a

more extensive scale; much more was required to de-

feat Watson in 1894.” Woodward, C. Vann, Tom Wat-

son, Agrarian Rebel, N.Y. The Macmillan Company,

1938, pp. 269-70.

The “much more” that Woodward speaks of was a court

ruling that held registration unnecessary in congressional

elections. The Populists sought, unsuccessfully, an injunc-

tion restraining unregistered voting. Ibid., pp. 269-270.

Watson was defeated amid howls of “unfair” and “fixed”.

The Voter’s. Registration bill of 1894, the response to this

11

election, was a “final solution” to the problem of the Negro

vote. It was but one of the last entries on the journal of

white supremacy. Earlier, in June, 1890, Congressman

Henry Cabot Lodge introduced a bill for Federal control

of elections known popularly as the “Force bill.” The South

was outraged.

“The Lodge bill caused more alarm and excitement in

the South than any Federal measure since 1877. (For

example, Charleston News and Courier, September 24,

1890; Jacksonville Times-Union, July 25, 1890; Atlanta

Constitution, quoted in Richmond State, July 19, 1890;

Jackson Clarion-Ledger, December 5, 1890.) ‘Not for

twenty years has the public mind been so much dis-

turbed,’ declared the Richmond Dispatch in a five-

column, front page editorial on the subject! ‘The South

stood oné reconstruction,’ said a Mississippi paper,

‘It remains to be seen whether it will meekly submit

to another.’ The Atlanta Constitution called for a re-

vival of ‘that glorious era’ when ‘the indomitable spirit

of the freemen of Georgia was equal to the emergency

.... What we did twenty years ago we can do again’

(quoted in Richmond State, July 19, 1890). See also

Richmond Dispatch, July 24, 1890; Jackson Clarion-

Ledger, December 5, 1889.” Ibid., pp. 254-255. .

The old party Democrats could, however, put the Force

bill to good use.

“The practical uses of the alarm over the Force bill

were not lost on the old party. ‘Its effect will be to

draw the color line more intensely and to weld the

South more solidly together,’ observed a Richmond

Democrat (Captain Sol Cuthens, in Richmond Dis-

12

patch, July 24, 1890). ‘But for the Force bill,’ admitted

a Democratic paper, ‘the South might possibly have

listened to the appeals of some of the‘new parties.’ But

so long ‘as that bill threatens her with all the horrors

of reconstruction days,’ white solidarity was assured.

Ibid., October 8, 1892.” Ibid., p. 255.

The predecessor of § 92-6307 was the South’s final reply to

the Force bill, and its rhetoric harangued the Negro, the

poor and the unlettered until it was repealed in part in 1966.

The racially designated tax digest when used with the

subjective standards for jury selection established in Geor-

gia Law—“upright and intelligent citizens . . . serve as

jurors, ..., the most experienced, intelligent and upright

citizens .. . serve as grand jurors”—offers an almost fool-

proof system for legalizing racial discrimination.

Prior to the Civil War the names of jurors were fur-

nished by the tax collector (Judiciary Act of 1799, Vol. 1,

292-294, Section XXXVIII). By 1861 names were selected

from the books of the Tax Receiver by the justices of the

Inferior Court of the Counties. Grand jurors were to be

“able, discreet and qualified” (Code of Georgia 1861, Article

2, Section 3882, pp. 721-722).

In 1868 the requirement that jurors be “upright” and

“intelligent” was placed in the state constitution (Con-

stitution of the State of Georgia (1868), Article 5, Section

XIII, 781, II). By 1877 jurors were required to be “the

most experienced, intelligent and upright men” (Consti-

tution of the State of Georgia (1877) (Article VI, Section

XVIII 997 n, Georgia Acts 1878-9, p. 34). The 1877 conven-

tion had been concerned with Negro voting. Dr. Sam Small,

13

who reported the constitutional convention of 1877, put it

succinctly in an address to the Georgia Bar Association

in June of 1927. The convention’s purpose was “so—to

allocate the elective franchise as to secure white supremacy

and yet not fall into conflict with the newly attached Negro

suffrage amendments of the Federal Constitution in sup-

port of them” (Cooper, Walter G., The Story of Georgia,

Vol. ITI, 1938, p. 259). For three decades prior to 1894

the mind of the white south was made up. It intended to

deprive Negroes of their civil rights. By the year of adop-

tion of the statute questioned here lynching of Negroes

was reported weekly and often daily. Soon Plessy v. Fergu-

son, 163 U.S. 537 (1896) would brand segregation upon

the body politic. The statute in question was a part of

that program.

2. Racial identification coupled with vague and subjective

standards of juror selection affords an unconstitutional

mechanism for racial discrimination.

The constitutionality of Section 92-6307 of the Georgia

Code was upheld in Brookins v. State, 221 Ga. 181, 144

S.E. 2d 83, 89 (1965), the Supreme Court of Georgia

stating:

The fact that the names of Negroes were segregated

from those of whites on the tax digests, and the fact

that the names of female Negroes were not entitled

“Miss” or “Mrs.”, as were the names of white females

do not show that the Negroes were added to or ex-

cluded from the jury lists solely because of. their race.

The court decided that the evidence in its entirety did not

warrant the conclusion that Negroes had been excluded

from grand and petit juries on the basis of race.

i I EDEL LLL ADA AE

14

But Avery v. Georgia, 345.U.S. 559, 562 (1952) con-

demned the opportunity to discriminate. As Mr. Chief

Justice Vinson said:

Even if white and yellow tickets were drawn from a

jury box without discrimination, opportunity was

available to resort to it in other stages of the selection

process.

In Georgia the opportunity is still present. The yellow

and white slips in Avery have at least a kissing kinship

with yellow and white tax returns in Mitchell County. As

Avery holds, the opportunity for discrimination, coupled

with the history of exclusion of Negroes from the juries

of certain counties, suffices here.

In Avery at p. 562, Mr. Justice Frankfurter, concurring,

said: “We may accept the testimony of the judge who

drew the slips from the box as to the honesty of his pur-

pose; that testimony does not refute the fact that there

were opportunities to discriminate, as experience tells us

there will inevitably be when such differentiating slips

were used.” Id. at 564. Writing for the Court in Williams

v. Georgia, 349 U.S. 375, 382 (1955), he concluded that, “it

was the system of selection and resulting danger of abuse

which was struck down in Avery and not an actual showing

of discrimination on the basis of comparative numbers of

Negroes and whites on the jury lists.”

Racial records and subjectively vague standards—“up-

rightness,” “intelligence,” “experience”—make discrimina-

tory juror selection a near certainty. This Court is aware

of the inherent vice of the parochial jury commissioner.

Discretion itself flies in the face of the selection for jury

duty of a true cross-section of the population. Condemna-

15

tion of discretion in the hands of state voting officials is

at the heart of United States v. Mississippi, 380 U.S. 128

(1965) and Louisiana v. United States, 380 U.S; 145 (1965).

That same discretion coupled with racially separated lists

should be even more forcefully condemned here (cf. Smith

v. Texas, 311 U.S. 128 (1940)).

A state must not provide unnecessary “opportunities to

discriminate.” In Anderson v. Martm, 375 U.S. 399 (1964),

this Court ended the racial designation on the ballot.9f all

candidates for public office. There was, of course, no posi-

tive proof that these racial designations in any way influ-

enced the voting patterns of Louisiana citizens. None-

theless, the Court held that the designations were

unconstitutional because the state was indicating that race

was “an important—perhaps paramount—consideration”

in a voter’s choice. 375 U.S. 399, 402 (1964). The Court

added that a state cannot “encourage its citizens to vote for

a candidate solely on account of race. Cf. Steele v. Louis-

ville & N. R. Co., 323 U.S. 192, 203 (1944). And that which

cannot be done by express statutory prohibition cannot be

done by indirection.” 375 U.S. 399, 404 (1964). In the

jury situation it is clear that a state cannot encourage, or

even permit, its jury commissioners to select juries on the

basis of race. But the Georgia procedure both permits and

encourages selection along racial lines.

This practice is the more reprehensible because it affects

the appearance of fairness in the administration of justice,

the “imperative of judicial integrity” * and this Court has

held unconstitutional other burdens, similar to those im-

posed by Georgia, on Negro criminal defendants (cf. Hamil-

1 Mapp v. Ohio, 367 U.S. 643, 659 n.53 (1961).

16

ton v. Alabama, 376 U.S. 650 (1964) and Johnson v. Vir-

ginia, 373 U.S. 61 (1963)).

While the practice of selecting juries from racially seg-

regated tax lists has never been considered by the Supreme

Court of the United States, the practice of using unsegre-

gated tax lists has. In Brown v. Allen, 344 U.S. 443 (1952),

and in Speller v. Allen, 344 U.S. 443, 477 (1952), the court

held that the use of tax digests, silent as to designation of

race, in the selection of jurors in Vance and Forsyth Coun-

ties, North Carolina, satisfied the requirements of “due

process” and “equal protection” contained in the Fourteenth

Amendment.?

There was no evidence presented, nor were any charges

made, that the tax digests themselves contained any clas-

sification as to race as in the instant case, nor did the court

consider the issue.

“Petitioner offered no evidence to support his charge of

limitation against the jury service of Negroes, except the

fact that fewer Negroes than whites, having regard for

their proportion of the population, appeared on the jury

panels.” Brown v. Allen, supra, p. 467.

The practice of maintaining state records on a segregated

basis has been passed upon by the Supreme Court of the

United States. In the recent case of Hamm v. Virginia

2 Whether this practice would be upheld in a direct challenge

based upon economic discrimination was excluded from the Court’s

consideration and is questionable. Cf.: Griffin v. Illinois, 351 U.S.

12 (1956) ; Eskridge v. Washington, 357 U.S. 214 (1958); Lane

v. Brown, 372 U.S. 477 (1963) ; Gideon v. Wainwright, 372 U.S. 335

(1963); Harvey v. Mississippi, 340 F.2d 263 (1965). No such

challenge is at issue here. See also Harper v. Virginia State Board

of Elections, 34 L.W. 4305 (1966) and Texas v. United States,

34 L.W. 3376 (1966).

17

State Board of Elections, 230 F. Supp. 156 (E.D.. Va.

1964), aff’d per curiam sub nom. Tancil v. Woolls, 379 U.S.

19 (1964), a three-judge District Court declared that Vir-

ginia statutes requiring that lists of voters and taxpayers

be kept in separate books according to race violated the

Fourteenth Amendment. The District Court stated that it

was now axiomatic that no State can directly or casually

promote a distinction in the treatment of persons solely on

the basis of their color. To be within the condemnation,

the governmental action need not effectuate segregation of

’ facilities directly. Cf. Anderson v. Martin, 375 U.S. 399,

402 (1964). The result of the statute or policy must not

tend to separate individuals by reason of difference in race

or color. No form of state discrimination, no matter how

subtle, is permissible under the guarantees of the Four-

teenth Amendment. 230 F. Supp. at 157-158.

II.

Negroes Were, in Fact, Systematically Excluded From

the,Grand Jury Which Indicted Petitioners.

This Court has vigorously condemned the outright ex-

clusion and mere token inclusion of Negroes on juries.

See Strauder v. West Virginia, 100 U.S. 303 (1880) (Ne-

groes prohibited by statute); Neal v. Delaware, 103 U.S.

370 (1881) (No Negroes for jury service); Bush v. Ken-

tucky, 107 U.S. 110 (1883) (Negroes prohibited by statute) ;

Norris v. Alabama, 294 U.S. 587 (1935) (No Negroes called

within memory) ; Hollins v. Oklahoma, 295 U.S. 394 (1935)

(No Negroes ¢alled for jury service); Hale v. Kentucky,

303 U.S. 613 (1938) (No Negroes called for 30 years);

Pierre v. Louisiana, 306 U.S. 354 (1939) (One Negro called

within memory); Smith v. Texas, 311 U.S. 128 (1940)

18

(Eighteen Negroes called in 7 years); Hill v. Texas, 316

U.S. 400 (1942) (No Negroes called for 16 years); Patton

v. Mississippi, 332 U.S. 463 (1947) (Three Negroes called in

30 years) ; Cassell v. Texas, 339 U.S. 282 (1950) (Twenty-

one Negroes served in 6 years); Hernandez v. Texas, 347

U.S. 475 (1954) (No Mexicans served for 25 years) ; Reece

v. Georgia, 350 U.S. 85 (1955) (Six Negroes called in 18

years); Eubanks v. Louisiana, 356 U.S. 584 (1958) (One

Negro served in 18 years); Arnold v. North Carolina, 376

U.S. 773 (1964) (One Negro served in 24 years).

That the 6 white jury commissioners systematically ex-

cluded Negroes from the Grand Jury here is clear. Three

of 90 jurors summoned were Negroes in a county where

Negroes comprised 42 percent of the over age 21 male

population. One Negro served on the grand jury, he ap-

parently being the first Negro to so serve. The source of

names was the segregated tax digest and the old jury list,

a list already condemned for its racial exclusiveness.

The state offered no evidence of the number of Negroes

eligible on tax rolls. The discrepancy was not explained

by educational differences, economic distinctions, criminal

records, a lack of intelligence, uprightness, or experience.

No explanation at all was offered by the state. The com-

missioners merely said that they did not discrizninate.

This unsupported allegation has been held insufficient for

rebuttal of a prima facie case. See Norris v. Alabama,

supra. See also Avery v. Georgia, supra, which focused on

opportunity to exclude rather than on exclusion or inten-

tion.

Here there was a history of exclusion coupled with actual

exclusion. The convictions must-be reversed.

19

Tir.

The Judgments Should Be Reversed and Rendered and

the Petitioners Freed.

Since 1959 the petitioners have awaited trial. The United

States Court of Appeals for the Fifth Circuit ruled that

Georgia might reindict and retry petitioners by a jury from

which Negroes had not been systematically excluded.

Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964). This

Georgia chose not to do. Ordinarily this Court will merely

set aside a conviction providing a new trial. As this Court

stated in Hill v. Texas, supra at 406:

“A prisoner whose conviction is reversed by this Court

need not go free if he is in fact guilty, for Texas may

indict and try him again by the procedure which con-

forms to constitutional requirements ....”

Similar language is contained in Patton v. Mississippi,

supra and Eubanks v. Louisiana, supra. And the Court

of Appeals for the Fifth Circuit certainly had this in mind

in its ruling in 1964. Georgia, not the petitioners, had the

burden of providing fairly selected juries for the retrial.

This Georgia did not do.

Justice in Mitchell County, Georgia is as white as the

marble on a courthouse facade. This court knows of the

“grisly ‘Hobson’s Choice’” (Whitus v. Balkcom, 333 F.2d

496, 499 (5th Cir. 1964)) much of the South provides a

Negro criminal defendant on trial for his life.

The county courthouse has always been a seat of power

in the South. Yesterday Negroes rarely went there. When

they went there it was to pay taxes or purchase a license

or be a witness or be tried. Tomorrow they may go there

20

to vote or serve on juries or, perhaps, to work, or practice

law, or see a friend. But that tomorrow—like so many of

the South’s tomorrows—will never come if segregated jus-

tice continués. “The Deep South remains true to its heri-

tage. The segregation of the machinery of justice, police, --

judges, courts and juries, remains. But really statisiical

evidence is unnecessary. One need only enter a southern

courtroom to see discrimination at work.” Lester, Anthony,

Justice in the American South; Amnesty International, 1

Mitre Court Buildings’ Temple, London, E.C. 4 (1965), pp.

12-13.

All-white justice as it exists in sections of the South

makes heroes of killers, rallying points of men accused of

heinous crimes. Philadelphia and Jackson, Mississippi,

law men and fertilizer salesmen, Selma and Birmingham

Klansmen, bombers, burners, and ~-sharpshooters strike

terror in the hearts of Negro citizens seeking to free them-

selves from the vestiges of slavery.

Any consideration @f the systematic exclusion of Negroes

from juries requires recognition of the totality of the sys-

tem of segregated justice. For an excellent contemporary

review of segregated justice in the South see Nelson, Jack,

“Jim Crow Justice,” Los Angeles Times, June 13-17, 1965,

p. 1 (a series of articles).

The law has been clear for 87 years but “... the prob-

lem of racial exclusion from jury service is relatively wide-

spread and, in certain areas, deeply entrenched. The seri-

ous and continuing nature of the problem is revealed by

the frequency of cases in which the issue of jury exclusion

is raised and by local situations which the facts in those

cases disclosed; by the plain statements of judges and offi-

21

cial observers; and by various field studies conducted by

the Commission’s staff.” Justice, 1961 U.S. Comm. on Civil

Rights Report, p. 90.

Courts technically rid the nation of legally enforced seg-

regation in public education and public life. But racial

segregation dies hard—as hard in courts as in schools.

And litigation is by its nature slow, much slower than a

march from Selma to Montgomery or a few weeks on the

streets and sidewalks and in the jails of Birmingham.

Lawyers and judges know—or, at least hope—that the,

conflicts of men can be best settled in court. But it is their

duty to make certain courts are open and fair—and above

suspicion. In the Deep South, courts and the Bar have

failed miserably but not irretrievably to perform their

duties under the Constitution and to make state courts

instruments for peaceful social change rather than repres-

sion. But who could expect the relatives and friends of

Phil Whitus and Leon Davis to trust the law? And if they

are ever asked either, in the South or in some ne.. far away

city to take their struggle out of the streeis and into the

courts, who can blame them for cynicism?

If, and when, juries in the South reflect the broad base

required of them by the Constitution of the United States,

the Negro lawyer in the South may find his practice in-

cludes the personal injury cases that now find their way

to the white lawyer on the other side of town. Indeed, the

racial political cavortings of white lawyers may. become

more subdued.

A moderate newspaperman may be able to editorialize

on racial matters without fear of an all-white jury and a

libel verdict in non-racial cases.

«

22

The Negro workman may find that his broken leg is as

valuable to an insurance company or a jury as the broken

leg of the white man who works by his side.

And most importantly the hundreds and thousands of

Negro men and women who might have entered guilty pleas

rather than exercise a “grisly ‘Hobson’s Choice’” may ex-

ercise their right to trial by jury. ;

Negro neighborhood crime rates may decline, for to

Negro jurors the life and sanctity of the Negro neighbor-

hood will be important.

Removal of civil rights cases from state courts will de-

cline, for, as state courts become fair tribunals, they will

be used by Negro people.

‘The working of the Federal system will be enhanced, for,

by strengthening state courts—by making them fair—the

doctrine of Federalism is itself strengthened. Courts no

less than state legislatures are an instrumentality of states’

rights—or wrongs. The jury system is the bulwark of

liberty. It has been weakened in a proportion that equals,

almost exactly, the extent to which it has been perverted by

the exclusion from it of racial and other groups.

The freeing of these two defendants—and could they ex-

pect less for they have, after all, served 7 years in jail

without a fair trial—would accord with the mandate of the

Fifth Circuit. It could also move many Southern courts

to eliminate racial discrimination in the administration of

justice.

4

23

Conclusion .

The judgment of thé Court of Appeals of Georgia should

be reversed and rendered with instructions that the peti-

tioners be freed. ,

Respectfully submitted,

Cartes Morgan, Jr.

Counsel for Petitioners

5 Forsyth Street, N.W.

_ Atlanta, Georgia

Of Counsel: 3

P. WALTER JONES

-*505 Park Avenue

Albany, Georgia 31702

B. CLARENCE MAYFIELD

910 West Broad Street

Savannah, Georgia

Morris Brown

1122 Healey Building

Atlanta, Georgia 30303

M. LaveHury McDonaLp

5 Forsyth Street, N.W.

Atlanta, Georgia 30303

Metvin L. Woutr,

156 Fifth Avenue

New York, New York 10010

4

wet