Rabinowitz v. United States, 21256

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation366 F.2d 34
Decision Date20 July 1966
Docket Number21345.,No. 21256,21256
PartiesJoni RABINOWITZ, Appellant, v. UNITED STATES of America, Appellee. Elza Leslye JACKSON, Robert Thomas, Samuel B. Wells, Slater Hunter King, and Thomas C. Chatmon, Appellants, v. UNITED STATES of America, Appellee.

366 F.2d 34 (1966)

Joni RABINOWITZ, Appellant,
UNITED STATES of America, Appellee.

Elza Leslye JACKSON, Robert Thomas, Samuel B. Wells, Slater Hunter King, and Thomas C. Chatmon, Appellants,
UNITED STATES of America, Appellee.

Nos. 21256, 21345.

United States Court of Appeals Fifth Circuit.

July 20, 1966.

366 F.2d 35
366 F.2d 36
366 F.2d 37
Victor Rabinowitz, Leonard B. Boudin, New York City, C. B. King, Albany, Ga., Melvin L. Wulf, New York City, amicus curiae, for appellant in No. 21256, Arthur Schutzer, Michael B. Standard, Henry Winestine, Eleanor F. Goldman, New York City, on the brief

Nathan Lewin, Andrew F. Phelan, Attys., Dept. of Justice, Washington, D. C., Floyd M. Buford, U. S. Atty., Wilbur D. Owens, Jr., Asst. U. S. Atty., Macon, Ga., Charles S. Conley, Montgomery, Ala., amicus curiae, for appellee, Gary B. Blasingame, Joseph W. Popper, Jr., Asst. U. S. Attys., Robert S. Erdahl, Atty., Dept. of Justice, Washington, D. C., on the brief.

Jack Greenberg, Constance Baker Motley, New York City, C. B. King, Albany, Ga., for appellants in No. 21345.

Before TUTTLE, Chief Judge, and RIVES,* BROWN, WISDOM, GEWIN, BELL, THORNBERRY and COLEMAN, Circuit Judges.

RIVES, Circuit Judge.

The appellants in both cases were indicted by the same grand jury, and were tried and convicted by petit juries drawn from the same box. In each case there was an attack on the grand jury by motion to dismiss the indictment, and an attack on the petit jury by motion to quash the petit jury panel or venire. Both cases present the question of whether the method by which the jury list was compiled resulted in the impermissible exclusion of Negroes.

No question is raised as to the standing of the appellants to raise that question.1 Joni Rabinowitz, the appellant in No. 21256, was a white Field Representative of the Student Nonviolent Coordinating Committee in Albany, Georgia, indicted and convicted of perjury before a federal Grand Jury. A group of demonstrators had picketed a store owned by a member of a federal petit jury which had returned a verdict against a Negro, and the Grand Jury was investigating this use of pressure tactics. The five appellants in No. 21345 were Negroes also indicted and convicted of perjury.

It is conceded that the clerk of the court, his deputy, and the jury commissioner appointed by the court,2 who compiled the jury list, were men of excellent character, and the charge is focused on the qualifications which they required of prospective jurors and on the method by which the jury list was compiled, rather than on any affirmative evil intent of the jury commissioners.

The jury list from which the grand and petit jurors were drawn was compiled in 1959. A list compiled in 1953 was used as a starting point. Those who had died, moved out of the district, or become too old or feeble to serve were eliminated. After the 1953 list was pruned, names of

366 F.2d 38
prospective jurors compiled separately by the clerk and the commissioner were added, and detailed questionnaires were sent to those on the combined list. One of the questions inquired as to race. The commissioner's recollection was that some 4,000 questionnaires were sent out, and the clerk estimated that the number was either 4,000 or 5,000. Of this number 2,500 or 3,000 were returned.3 From the questionnaires which were returned, 1,985 names were finally selected for the jury list. From a study of the questionnaires returned by those 1,985 persons whose names appear on the jury list, it was stipulated in the district court that Negroes comprised 117 or 5.9% of those on the list

On appeal, the Government, with commendable candor, concedes the results of a later and more detailed analysis made of all of the questionnaires returned, as follows:

"Of the 1,985 persons on the 1959 list, 1,428 are carry-overs from the 1953 list and 557 are new names. Of the 117 Negroes on the list, 113 are carry-overs and 4 are new. Of the 1,868 persons on the list who are white or who did not designate their race on their questionnaires (there are 5 of the latter), 1,315 are carry-overs and 553 are new. Hence, of the new names added to the list in 1959, 553 are white or of unknown race and 4 are Negroes.
"A total of 2,338 persons returned questionnaires in 1959, and of these, 353 were not placed on the list for one reason or another. Of these 353, 297 were white, 53 were Negro and 3 did not indicate their race (although one of the 3 has been unofficially identified as a Negro). Of the 353, 196 had appeared on the 1953 list, and 157 were new names. Broken down by race, 150 whites were new names and 147 had appeared on the 1953 list, 7 Negroes were new names and 46 had appeared on the 1953 list, and all 3 unknowns had appeared on the 1953 list. Hence, Negroes comprised 7 of the 157 new names in this group.
"Of the 2,338 questionnaires returned, 1,624 were carry-overs from the 1953 list and 714 were new contacts. Of the 1,624 carry-overs, 1,465 were whites or of unknown race and 159 were Negroes (taking account of the person unofficially known to be Negro, the count would be 1,464 and 160). Of the 714 new contacts, 703 were white and 11 were Negro. Hence, a total of 170 Negroes returned questionnaires in 1959, or 7.3% of those returned (171 taking account of the person unofficially known to be Negro), 159 (or 160) being carry-overs and 11 being new contacts.
"The 353 persons not placed on the 1959 list were omitted for the following reasons:

                 | White Negro Race Unknown
                 Questionnaires returned too late ..............................| 63 | 4 | 1
                 Business (i. e., teachers, school busdrivers, etc.) ...........| 26 | 9 | 1
                 Age or health .................................................| 188 | 24 | 1
                 Women having small children to care for .......................| 20 | 0 | 0
                 Other (felony conviction, illiteracy, civil service employment,| | |
                 etc.) .......................................................| 0 | 16 | 0
                 Total .....................................................| 297 | 53 | 3"
366 F.2d 39

The eighteen counties comprising the Macon Division of the Middle District of Georgia had an adult population in 1960 of 211,306 of which 73,014, or 34.5 per cent, were Negroes. As to each of the eighteen counties, the disparity between the proportion of Negroes whose names appear on the jury list and the proportion of Negroes aged 21 or over who reside in the county are shown on the following table:

 Adult Negro-Percentage
                 Persons on Negro Negro of Adult
                 Jury List Negroes Percentage Adult Population Population Population
                 County from County On List on List 1960 1960 1960
                 Baldwin 137 8 5.8% 23668 8744 36.9
                 Bibb 666 36 5.4% 81133 24894 30.5
                 Bleckley 72 2 2.7% 5230 1246 23.8
                 Butts 58 2 3.4% 4920 1878 38.1
                 Crawford 47 5 10.6% 2948 1435 48.6
                 Hancock 64 3 4.6% 4877 3237 66.3
                 Houston 99 7 6.0% 20438 3815 18.6
                 Jasper 57 4 7.0% 3404 1554 45.6
                 Jones 67 5 7.4% 4490 1983 44
                 Lamar 84 7 8.3% 5708 1925 33.7
                 Monroe 70 5 7.1% 5605 2392 42.6
                 Peach 123 8 6.5% 7398 3913 52.8
                 Pulaski 58 3 5.0% 4546 1697 37.3
                 Putnam 61 4 6.5% 3822 1988 52.
                 Twiggs 37 1 2.7% 4189 1997 47.6
                 Upson 130 6 4.6% 13835 3315 23.8
                 Washington 95 6 6.6% 10041 4925 49.
                 Wilkinson 60 5 8.3% 5054 2076 41.
                 Totals 1985 117 5.8% 211306 73014 34.55%
366 F.2d 40

The list of names placed in the jury box was revised periodically as ordered by the Court. The first jury list was compiled in 1926. Revisions occurred in 1930, 1936, 1938, 1940, 1943, 1947, 1953, and 1959. Names of women were added in 1954. The 1940 list contained 2,114 names, of which 68, or 3.21 per cent, were Negroes. At that time the adult population of the division was 169,343, of which 76,399, or 45.11 per cent, were Negroes. The 1953 list contained 1,837 names, of which the Clerk of the Court estimated that 137 were Negroes. That is approximately 7.44 per cent. According to the 1950 census, the adult population of the division was 193,387, of which 74,443, or 38.49 per cent, were Negroes. The other jury lists contain names of Negroes in proportions similar to those in the 1940, 1953, and 1959 lists.

Mr. Simmons, the Jury Commissioner, Mr. Cowart, the Clerk, and Mr. Doyle, the Chief Deputy Clerk, each testified as to the method and procedure he employed in adding names to those left on the 1953 list, as the names of the prospective jurors to whom questionnaires were mailed.

According to Mr. Simmons:

"A lot of the additional names were the result of my own acquaintance, insofar as they were a result of suggestions by my friends whose opinions and integrity I valued. They were names of people who were active in other capacities, some of them in a civic life, a business way, some of them came from lists of church members. I carried around in my pockets for the several months we were at work a little book and a pad of paper on which I could record peoples\' names as they happened to occur to me, or as I happened to see them to check and be sure that they were in the jury, on the jury list. Some of them came in personal conversations, and some of them I invited and received suggestions about, invited information from people who were residents in the county or counties involved."

Mr. Simmons was asked why they decided to ask the question concerning race, and replied: "I think perhaps our reasoning was, really, that we wanted to be sure that we had some Negroes on the jury list. I had no other reason. We asked for sex and age and race as well." Mr. Simmons went through a list of delegates to a conference of the Methodist Church held in Macon and used some of the...

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