United States v. Tillman

Decision Date04 August 1967
Docket NumberCrim. No. 25009.
Citation272 F. Supp. 908
PartiesThe UNITED STATES v. John P. TILLMAN, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone, Michael W. Simmons, and Simuel Brant Schutz.
CourtU.S. District Court — Northern District of Georgia

Charles L. Goodson, U. S. Atty., Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff.

Howard Moore, Jr., Atlanta, Ga., for defendants.

SIDNEY O. SMITH, Jr., District Judge.

This is an indictment in which the defendants are charged with one count of violation of the Universal Military Training and Service Act (50 App. U.S.C.A. § 462) and one count of injuring government property (18 U.S.C.A. § 1361).1 Upon arraignment, leave was granted to file motions thereafter under Rule 12, and the defendants have now moved to quash the indictments and to challenge the array of jurors under the decision of Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966).

By agreement, after extensions, the motion was presented by written affidavit and brief and the matter is now before the court for determination.

Following Rabinowitz, which eliminated the traditional "key man" system of selecting federal jurors, each district concerned reexamined its own system of jury selection with a view toward compliance with that decision.2 In the summer and fall of 1966, the Northern District of Georgia revised its procedures in the Atlanta Division under order of the presiding judges. The system, the details of which will appear hereinafter, relies upon voter registration lists as the sole source of prospective jurors. This motion attacks the present jury lists obtained from such source as not complying with Rabinowitz, on the grounds:

(a) That voter registration lists are grossly inadequate to secure a representative cross-section of the community in that a significant number of qualified Negroes are not thereby considered for jury service.

(b) That the use of voter registration lists result in the imposition of standards in excess of those specified by 28 U.S.C.A. § 1861 and the Voting Rights Act of 1965.

(c) That, on information and belief, the use of voter registration lists results in the exclusion of a significant number of women and wage earners from consideration.

The last point was apparently an attempt to plead into Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966). However, this attack was abandoned and no evidence or argument was subsequently presented to the court on the lack of "women" or "wage earner" representation.

(a) At the outset it must be realized that there is not present here any claim of actual absence or exclusion of any group from the indicting grand jury or the prospective trial jury. That actual representation of any segment of the community on any particular jury is unnecessary has been put to rest by Swain v. State of Alabama, 380 U.S. 202, 203, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Scott v. Walker, 358 F.2d 561 (5th Cir. 1966). What is involved is the basic legal question of voter registration lists as a proper source. Counsel have chosen to contest the case only on the traditional basis of whether Negro members of the community are under-represented in the resulting jury wheel. More to the point is whether Negro members of the community, as well as all other groups, are given an adequate cross-section on jury lists obtained from such source. All of the defendants are negro so there is no problem here of standing to make such an attack.3

In brief, of course, Rabinowitz stands for the proposition that in the need for a fair cross-section of the community and for competency, the jury commission may not ordinarily impose standards in excess of those prescribed by statute. And, "the test is whether or not the use of such voter registration lists, or other sources results in an array which is a representative cross-section of the community or from which a cognizable group or class of qualified citizens is systematically excluded". Rabinowitz v. United States, 366 F.2d 34 at 57(18), quoting United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y. 1961). Thus there is an apparent affirmative duty to obtain an adequate cross-section and a negative duty not to exclude any group on a systematic basis.

Following the guideposts of this decision and influenced also by the jury provisions of the proposed "Civil Rights Act of 1966" (H.R. 14765, which passed the House, but failed in the Senate), this district instituted the new plan.

In brief,4 the court provided for the selection of every 50th name (or 2%) on the voter registration lists of each county in the Atlanta Division to be mailed questionnaires. The jury questionnaires5 were properly mailed, with a return of 50-60 per cent. Only those persons were disqualified by the Clerk and Jury Commissioner6 whose answers stated that they had not attained the age of 21 years; or had been convicted in a State or Federal court of record of a crime punishable by imprisonment for more than one year; or they could not read, write, speak and understand the English language; or they had a mental or physical infirmity which would prevent them from rendering efficient jury service (except that all females over 70 and all males over 75 were disqualified). All of this in accordance with 28 U.S.C.A. § 1861. On this basis, approximately 90% of persons returning questionnaires were found qualified, and all persons not disqualified were placed in the jury wheel. The result was an available juror pool of ½ to 1 per cent of the total names on voter registration lists in accordance with the court's amended order. The entire old jury wheel was emptied and the new names placed therein by December 20, 1966. Thus, the indicting grand jury here and all trial juries in the Division are taken from the reconstituted jury wheel.7 A similar revision is now in process in all other divisions in the District.

Under such a procedure there has been and could be no systematic exclusion of negroes or any cognizable group or class of qualified citizens represented on the voter lists. Thus, one of the qualifications of Rabinowitz is fairly met.

However, the defendants here insist that negroes are not fully represented by the results and that, therefore, there is no adequate cross-section of the entire community from such a system. According to the 1960 census, negroes comprised 20.48% of the population 21 years of age or over in the Atlanta Division and 15.77% of the qualified jurors in the revised wheel. Regardless of the statistical viewpoint, it is this variance on which the claim of inadequate cross-section is bottomed.

What is a "fair cross-section"? Rabinowitz apparently defines it as "drawn from every economic and social group of the community without regard to race, color, or politics and * * * possess as high a degree of intelligence, morality, integrity and common sense as can be found". "The sources from which they are selected should include all economic and social groups of the community. * * * and should represent as high a degree of intelligence, morality, integrity, and common sense as possible." "The line of demarcation is clear—a person need only be able to read, write, speak, and understand English, he need not enjoy that degree of excellence found only among the more fortunate classes of our society. Any attempt to gain competent jurors that would result in a less representative cross-section than a selection drawn from the statutorily qualified pool would destroy the `right' to serve on juries which Congress intended to confer, as well as destroy the broad based cross-section Congress has designated for federal juries." Rabinowitz v. United States, 366 F.2d 34 at 55 and notes 52 and 53 (5th Cir. 1966). "The aim and purpose of the law is to obtain juries which truly represent a cross-section of the community, but there is no constitutional requirement that such juries represent the proportional strength or exact percentage of various components of the population." "Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group." Billingsley v. Clayton, 359 F.2d 13 at 18 (5th Cir. 1966). "The `cross-section' contemplated is not an absolute. Frequently such complete representation would be impossible." * * * "But it does mean that prospective jurors shall be selected by court officials without the use of irrational or self-imposed standards." United States v. Henderson, 298 F.2d 522 at 525 (7th Cir. 1962). "At the most, the notion of a jury as a cross-section of the community is a conceptual one. A literal cross-section is neither required nor desired." "Nobody contends that to obtain a `cross-section' it would be required that names be taken at random from the totality of the inhabitants of the area in order to comply." Chance v. United States, 322 F.2d 201 at 204 (5th Cir. 1963). In short cross-section "means a fair sample." United States v. Dennis, 183 F.2d 201 (2nd Cir. 1950), aff'd 341 U.S. 484 (1951); United States v. Flynn, 216 F.2d 354 (2nd Cir. 1954). See, in general, also Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824 (1964); Cassel v. State of Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1949); Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414 (3rd Cir. 1955).

Based on these definitions, it is concluded that the jury wheel selected at random from the voter registration lists here constitutes a "fair sample" and satisfies the affirmative duty to produce an adequate cross-section.

In fact, the results produced 15.77% qualified negro jurors against 20.48% negro population over 21 years old (and incidentally, approximately 48% women). The grand juries empaneled since that time and returning the indictments in question were divided 19 white and 4 negro on February 13, 1967, and 18 white and 5 negro on May 15, 1967. Thus,...

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3 cases
  • United States v. Valentine
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • August 20, 1968
    ...have held that it is only in the pursuit of a racial cross-section that affirmative efforts are required. See United States v. Tillman, 272 F. Supp. 908, 913 n. 8 (N.D.Ga., 1967); United States v. Brown, supra, 281 F. Supp. at It is in any event clear that Rabinowitz purported neither to re......
  • Simmons v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 10, 1969
    ...discrimination in regard to the composition of the jury wheel from which prospective jurors were selected. In United States v. Tillman, N.D.Ga., 1967, 272 F.Supp. 908, 910-912, Judge Smith succinctly explained the method by which jurors were chosen in the Atlanta "In brief, the court provid......
  • Grimes v. United States, 24733.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1968
    ...in the Macon Division was revised on the basis of a random selection of names from voter registration lists. Cf. United States v. Tillman, N.D.Ga., 1967, 272 F. Supp. 908, for a similar system. The proof was that the result of the revision was an array which is a representative cross-sectio......

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