# Brief of the petioner — Whitus v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief of the petioner
- **Published:** January 1, 1966
- **Citation:** 385 U.S. 545

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0063%3A4. Public record. Not legal advice.