Jury Exclusion

Racial discrimination in the administration of justice finds expression inpractices other than police brutality and connivance in violence. Whereofficial policy denies participation in the instrumentalities of justice toone class of citizens because of race, color, or national origin, there isalso a denial of the equal protection of the laws. 1 This "white-collar"discrimination is more elusive than unlawful official violence. But insome communities the results may be that a whole class of citizens isdenied participation in the agencies of justice.

This report deals with only one of the many instrumentalities ofjustice 2 2014juries. The jury is perhaps the most important instrumentof justice. For jury service is the only avenue of direct participationin the administration of justice open to the ordinary citizen. Moreover,the function of the jury can be a solemn one. It is the jury, not thejudge, who must pronounce a man "guilty" or "not guilty"2014an awesome responsibility.

The exclusion of persons from juries by reason of race has been aFederal crime since iSys, 3 and for 80 years the Supreme Court hasheld it to be a denial of the equal protection of the laws. 4 Such exclusion violates the right of the accused, who is entitled to trial by a juryselected without regard to race, 5 and it also violates the right of members of the excluded racial group to sit on juries. 6 So clear is this rulethat in its most recent decision on the subject, the Supreme Courtmerely cited prior cases and reversed a conviction without discussion. 7

"FAMILIARITY" AND "CONCERN"

In 1959 the United States Court of Appeals for the 5th Circuit said: *

.. . we have long known that there are counties not only in Mississippi but in the writer's own home state of Alabama, in whichNegroes constitute the majority of the residents but take no part

in government either as voters or as jurors. Familiarity with sucha condition thus prevents shock, but it all the more increases ourconcern over its existence.

The Court's concern is well-founded. For the problem of racial exclusion from jury service is relatively widespread and, in certain areas,deeply entrenched. The serious and continuing nature of the problemis revealed by the frequency of cases in which the issue of jury exclusionis raised and by local situations which the facts in those cases disclosed;by the plain statements of judges and official observers; and by variousfield studies conducted by the Commission's staff.

The circumstances underlying the most recent Supreme Court decision 9 are in point. In 1959 an all-white grand jury indicted Rev. LewisL. Anderson, a Negro of Selma, Dallas County, Alabama, for seconddegree murder. According to the State, 10 on January 20, 1959, Rev.Anderson was driving his car at between 60 and 70 miles per hour alongan unpaved street in a well populated section of Selma. He collidedwith a car that had stopped at an intersection; his car then careeneddown the street, struck and killed a pedestrian, "hit a tree, bounced 4feet in the air and turned over." " According to the defense Rev. Anderson was driving at only 15 miles an hour when he collided with theother car; the impact knocked Rev. Anderson unconscious while his footwas pressed against the accelerator, thus causing his car to speed out ofcontrol. 12

Because of his leadership in encouraging Negroes to vote, white citizens of Selma, according to information received by the Commission,regarded Rev. Anderson as a "trouble maker." 18 An all-white petit juryconvicted him of first degree manslaughter, and the State judge sentencedhim to 10 years' imprisonment. 14

Rev. Anderson made appropriate motions during the proceedings,

charging that members of his race were systematically excluded fromgrand and petit juries in Dallas County, and that such exclusion violatedhis constitutional rights. 15 The trial court heard the evidence and denied the motions.

Both sides agreed 16 2014

. . . that the 1950 Federal census showed 6,940 white males and

7,956 colored males over the age of twenty-one years in DallasCounty. ''

But the other evidence was conflicting. On behalf of Rev. Anderson,the circuit solicitor testified that no Negroes had served on a grand juryin Dallas County for 5 years. 17 The secretary to the jury commissionersstated that none had served on the grand jury for 3 years. 18 Negrocitizens testified that neither they nor, to their knowledge, any Negroesthey knew had ever served on any juries. 18

The State, on the other hand, attempted to show that its valid requirements for jurors disqualified a high proportion of Negroes. TheSheriff of Dallas County and the Chief of Police of Selma stated that amuch higher proportion of colored than white persons were involved hicrimes that disqualified citizens from jury duty. 20 The State also introduced evidence that more Negroes than whites asked to be excused fromjury duty. 21 One of the State's witnesses testified that a Negro hadserved on a grand jury 5 years earlier. 22

The Court of Appeals of Alabama held that Rev. Anderson had not

succeeded in proving his claim of discrimination. 23 The Supreme Courtof Alabama then upheld the Court of Appeals with no discussion of theevidence. 24 The United States Supreme Court found it equally unnecessary to discuss the evidence and reversed the State courts, apparentlybecause the State failed to refute the defendant's proof that Negroeshad been systematically excluded from jury service. 25

Negroes are not the only minority excluded from juries. In 1959 the

Colorado Supreme Court cited the following undisputed facts as primafacie evidence of unconstitutional discrimination: Logan County,Colorado had a total population of somewhat more than 17,000, of whom719 (4.2 percent) had Spanish-sounding surnames. 28 During an 8-yearperiod not one of the 719 persons had served on a grand or petit jury; 27

from 1955 through 1957 not one Spanish-sounding surname appeared

among the 5,400 names on the "gross jury lists;" 28 and in 1958 asimilar list of 1,600 names contained only 2 persons with such surnames(neither of whom served) , 29 The State attempted to rebut this evidenceby verbal denials of deliberate racial discrimination by jury officials,but the Court reversed the conviction of the Spanish-American defendant. 80

A question of the exclusion of persons of Puerto Rican ancestry from

juries in New York City has recently been raised in the appeal of amurder conviction. In affirming that conviction, the New York Courtof Appeals rejected the claim as not supported by the evidence. 81 The

attorney for one of the defendants is currently preparing a petition forcertiorari to the United States Supreme Court, on the grounds of juryexclusion. 82

A more striking example of racial exclusion occurred when Robert

Lee Goldsby, a Negro, was indicted by an all-white grand jury in CarrollCounty, Miss., for a murder that occurred on September 4, I954. 88 Anall-white petit jury later convicted him, and he was sentenced to die. 84

After a series of appeals and petitions for habeas corpus, 86 Goldsby

finally obtained a reversal of his conviction in 1959 when the UnitedStates Court of Appeals for the 5th Circuit found that he had established"a strong prima facie case that Negroes were systematically excludedfrom the grand jury and from the petit jury", 86 which the State had notrefuted. The evidence revealed that in 1950 more than 57 percent of

the 15,448 persons residing in Carroll County were Negroes. 87 Of thisnumber there were 1,949 nonwhite males over 21, who thus met thequalifications of age and sex for jury service. 38 Yet, as the Court noted: 89

. . . none of the officials called as witnesses2014the Circuit Clerk,

the Chancery Clerk, the Sheriff, the ex-Sheriff who had served fortwenty years, the District Attorney, or the Circuit Judge2014 couldremember any instance of a Negro having been on a jury list ofany kind in Carroll County.

This situation was apparently due to the failure of Negroes to meeta third qualification for jury service in Mississippi2014the necessity of beinga registered voter. 40 The Court noted that: "The only Negroes everproved registered as electors [and thus even eligible for jury service]in Carroll County were two who had died before 1954." 41

Even more recently the conviction of a Negro in Pulaski County,

Arkansas, was reversed because of the systematic exclusion of Negroesfrom jury lists. 42 But the number of cases is not an accurate index of theproblem's prevalence...

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