299 F. Supp. 772 | S.D. Miss. | 1969
This is a class action seeking injunctive relief to preclude discrimination on the basis of race and sex in the jury selection system of Issaquena County, Mississippi. In its racial discrimination aspect, this action is similar to the ones with which this Court has recently been concerned in Raiford v. Dillon, 297 F.Supp. 1307 (S.D.Miss., March 10, 1969) and Love v. McGee, 297 F.Supp. 1314 (S.D.Miss., March 17, 1969), except that here plaintiffs rely on alleged discrimination in the drawing of names for petit and grand jury panels, in addition to discrimination in the selection of names which are put into the jury box.
The 1960 Census reflects the adult population of Issaquena County to be 1,721, of which 1,081 — or approximately 62% — were Negroes. Dr. Laurence B. Morse who testified for the plaintiffs as a statistical expert estimated the Negro adult population of Issaquena County to be 61.3% and 61.8% of the county’s total adult population in 1966 and 1967, respectively. The Court will assume for the purposes of this opinion that the adult population of Issaquena County is approximately 61% to 62% Negro.
Since Issaquena County is a very small county the Board of Supervisors until April 1968 followed the practice of putting into the jury box the names of all persons in the county qualified for jury service. Voter registration lists are the sole juror source in Issaquena County;
Date Total in Jury box Whites Unknown Negro Percentage Negro
April 1966 320 223 6 91 28%
April 1967 460 283 2 175 38%
April 1968 568 250 16 302 53%
July 1968
Issaquena County holds two Circuit Court terms each year. The following table reflects the racial composition of the jury panels drawn from the jury box for terms subsequent to April 1966:
Court term Number Drawn Negroes Whites Percentage Negro
Aug. 1966 62 10 52 16%
Feb. 1967 62 15 47 24%
Aug. 1967 62 11 51 18%
Feb. 1968 62 6 56 9.6%
Aug. 1968 62 18 44 29%
Feb. 1969 62 17 45 27%
The voter registration lists in Issaquena County do not contain racial identification, and persons registered to vote by federal voting examiners are considered in the jury selection process in the same manner as persons registered by the county registrar.
The plaintiffs rely heavily on the “probability” involved in the selection of the jury panels here to prove discrimination.
When questioned as to the cause of the disparity between the percentages of Negroes in the jury box and those pulled from the box for the jury panels between August 1966 and February 1969, Mrs. Mary Vandevender, Issaquena County Circuit Court Clerk, offered no explanation. She testified that names for the jury panel were drawn from the jury box at random in open court in the presence of herself, a justice of the peace and a deputy sheriff. She testified that only when the persons whose names were drawn were known to be dead were such persons not placed on the panel. She recalled only one instance in which a name drawn was that of a dead person.
I.
The Court finds no problem concerning the question of discrimination during the process of selecting names to be placed in the jury box. Here, as in Raiford v. Dillon, the defendants and their predecessors in office were without power to increase the percentage of Negroes placed in the jury box in Issaquena County prior to 1966. Mississippi law allows use of only two sources for jurors names — voter registration lists and land assessment rolls.
Undoubtedly the lack of Negro voter registration prior to 1966 might be attributable to some of the defendants or their predecessors, but since 1966 Negroes have been freely registered in Issaquena County and once registered their names have been placed in the jury box. As to this phase of the jury selection process, the Court finds that any discriminatory practices which may have existed have ended. Although an injunction may issue even though the acts complained of have ceased,
The Court finds that any underrepresentation of Negroes on the jury wheels since 1966 is solely attributable to the failure of Negroes to register to vote in Issaquena County. Such under-representation because of failure to register to vote does not constitute discrimination. See Grimes v. United States, 391 F.2d 709, 709-710 (5th Cir. 1968): “a group of persons who have failed to register to vote has never been considered to constitute a ‘cognizable group’ ” within the meaning of those decisions holding it a denial of equal protection if such a group is inadequately represented in the jury selection process. Any underrepresentation here, moreover, is minimal. In the two most recent instances the Issaquena County jury wheel has contained Negro representation of 53% as compared to an adult Negro pop
II.
As to the claim of discrimination ‘in selection of jury panels, the plaintiffs urge that the Court apply the branch of mathematics known as statistical decision theory.
The burden is on the plaintiffs to prove discrimination in the selection system. Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903). The testimony of Mrs. Vandevender was very strong to the effect that there was no exercise of discretion whatsoever in the drawing of names from the jury box for service on the jury panels. She testified that the jury wheel was spun, names were drawn from the wheel at random and that once a name was drawn that person was placed on the panel unless he was known to be dead. She recalled only one instance in which a person’s name had not been placed on the panel because of death. The Court accepts this uncontroverted testimony of Mrs. Vandevender as to the jury selection procedure employed, and is not willing to find discrimination in a wholly random selection procedure. As noted above, the burden is on the plaintiffs to establish discrimination and the plaintiffs have come forth with no convincing evidence whatsoever to indicate impropriety or discrimination in the selection process.
In this regard it should be noted that Issaquena County is a very small county. Relatively large percentage differences between Negro representation in the jury box and on the panels may involve a difference in representation of only a •very few persons. The small population of Issaquena County also explains the large number of repeaters on the jury panels, which counsel for plaintiffs made much of at trial.
Since the plaintiffs have wholly failed to establish racial discrimination in the jury selection process, an injunction on that basis will not lie. It remains, therefore, only to consider the question of alleged discrimination on the basis of sex.
III.
The 1968 regular session of the Mississippi legislature passed a statute making women eligible for jury service.
Of course, should the defendants fail to place women’s names in the jury box in numbers fairly commensurate with their population in the county, the doors of this Court are open and the plaintiffs are free to come forward and malee a showing of discrimination. However, this Court does not feel that an injunction should issue before the defendants have had a real opportunity to implement the Mississippi statute passed less than a year ago when there has been no showing of any effort or intent on the part of the defendants to subvert or undermine the purposes of that statute. “Relief by injunction is discretionary and may be denied when the court does not deem there is danger of a repetition of unlawful conduct.” Walling v. Florida, Hardware Co., 142 F.2d 444 (5th Cir. 1944), quoted with approval in United States v. Board of Education of Greene County, Mississippi, 332 F.2d 40, 46 (5th Cir. 1964). Not only does this Court find that there is no danger of repetition of underrepresentation of women in the Issaquena County jury selection procedure, but it also observes that the jury box as constituted in July 1968 was not necessarily “unlawful conduct.”
Accordingly, the Court will refuse the plaintiffs’ request for an injunction since there is no showing of either racial discrimination or differentiation on a basis of sex to warrant such relief. A judgment to that effect may be presented to the Court.
. Miss.Code Ann. sec. 1762 (Supp.1966). That section also qualifies resident freeholders for jury service but a court order must be entered under Miss.Code Ann. sec. 1762-01 (Supp.1966), before such persons are eligible for jury service. No such order has been entered in Issaquena County.
. Mrs. Mary Vandevender, Issaquena County Circuit Court Clerk, testified that the names of nearly all of those persons qualified for jury service were placed in the jury box again in April 1968. The parties stipulated that as of March 31, 1968, there were 416 qualified white male electors and 331 qualified Negro male electors — a total of 747. Of this number, 567 names were placed in the jury box — 302 Negro, 250 white and 16 unknown. When women were qualified to vote by the Mississippi legislature, House Bill No. 895, General Acts of the 1968 Regular Legislative Session, the Issaquena County Board of Supervisors added the names of 47 women to the jury box — 23 Negro and 24 white. This was done in July 1968. The parties stipulated that as of July 1, 1968, there were approximately 381 Negro females and 332 white females registered to vote in Issaquena County.
. The parties stipulated that the names of registered voters whom the defendant circuit court clerk knew to be delinquent in the payment of poll taxes and not entitled to an exemption certificate were not placed in the jury wheel in 1966. At that time a person’s right to vote in Mississippi was conditioned on the payment of a poll tax. See Mississippi Constitution, Sections 241, 243; Miss.Code Ann. sections 3130, 3160, 3235 (1942). Although Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, ruled the Virginia poll tax unconstitutional on March 24, 1966, the Court will not infer intentional discrimination on the part of Issaquena County officials in continuing to observe
. The Board of Supervisors added the names of 47 women to the jury box after passage of the statute making women eligible for jury service in Mississippi. See Note 2, supra.
. It should be noted that only four juries were required for trials during this period. These juries were composed of 9 whites and 3 Negroes, 8 whites and 4 Negroes, 6 whites and 6 Negroes, and 5 whites and 7 Negroes, respectively.
. This Court held both of these factors to be indicative of discrimination in Love v. McGee, 297 F.Supp. 1314 (S.D.Miss., March 17, 1969).
. The plaintiffs draw their argument primarily from Finkelstein, The Application of Statistical Decision Theory to The Jury Discrimination Cases, 80 Harv.L. Rev. 338 (1966).
. No order has been entered in Issaquena County authorizing the use of land assessment rolls. See Note 1, supra.
. These percentages are derived from the figures given in Note 2, supra.
. See, e. g., United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) ; Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968) ; United States v. Atkins, 323 F.2d 733 (5th Cir. 1965).
. See the thorough discussion of this matter in Raiford v. Dillon, 297 F.Supp. 1307 (S.D.Miss., March 10, 1969).
. This theory is fully discussed in the Finkelstein article cited in Note 7, supra.
. As Mr. Finkelstein terms the process by -which courts have resolved jury discrimination cases.
. House Bill No. 895, General Acts of the 1968 Regular Legislative Session.