Charles Townsend, Appellant, v. Roy B. Ross, Chief of Police, Helena, Arkansas, et al., Appellees, 396 F.2d 573 (8th Cir. 1968)

Plaintiff, Charles Townsend, seeks redress under 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. 1983 against police officials of Helena, Arkansas, and the bonding company of Roy B. Ross, Chief of Police of Helena, for an alleged beating while under arrest. A jury composed of four Negroes and eight Whites heard the case and denied damages, finding generally in favor of the defendants. This appeal was filed asserting the plaintiff's right to a new trial on the sole ground that the trial court refused to quash the jury list, and more specifically refused to compel the Clerk of the United States District Court for the Eastern District of Arkansas, in the Helena Division, to produce the jury list for inspection before trial. Plaintiff claims that the "jury roll, jury list and jury box" are constitutionally invalid since Negroes have been "deliberately and systematically" excluded.¹ 

We hold (1) the trial court did not abuse his discretion in refusing inspection of the jury lists, at the time, and under the circumstances existing when the request was made, and (2) plaintiff has totally failed to sustain his burden of proof that there has been any deliberate or systematic exclusion of Negro jurors.

The chronological order of proceedings is relevant to our discussion:

(1) On May 16, 1966, plaintiff filed a motion to quash the jury roll, jury list and names in the jury box.

(2) On May 23, 1966, the trial judge, the Honorable Oren Harris, held a pre-trial conference with counsel representing both sides to consider the discovery procedure to be followed, and to allow plaintiff a full opportunity to gather evidence in support of his motion. The court made it clear that he would allow oral examinations of the Clerk of the Court and the Jury Commissioner. The Clerk, who was present, made known his objection to production of the jury lists on the alleged ground that the names were confidential. The court held the question was not before him at that time and that discovery should be pursued in an orderly fashion, with proper questions and objections. The parties left the pre-trial in full accord on the nature of the discovery to be pursued.

(3) On August 3, 1966, answers of Charles F. Cole, Clerk of the United States District Court, were filed in response to interrogatories filed by plaintiff. On September 8, 1966, Answers of J. J. White, Jury Commissioner for the Eastern District of Arkansas, Helena Division, were filed in response to interrogatories filed by plaintiff. Admittedly, none of the answers were helpful to plaintiff in proving discrimination. The answers revealed that jury lists and jury questionnaires did not disclose the race of the proposed veniremen.² 

(4) In December 1966 the case was called for trial, but counsel for plaintiff requested a postponement because of conflict in other trials.

(5) On May 29, 1967, about one year from the date the trial court originally discussed discovery, the case was again called for trial. Plaintiff's counsel then disclosed at pre-trial that they wanted further discovery orders to inspect the jury lists in order to investigate further their claim of racial discrimination. At that time, the record showed that no discovery had been undertaken by plaintiff other than the filing of interrogatories in August and September of 1966. For the first time plaintiff claimed that answers of the Clerk and Commissioner were evasive. No motions for more specific answers were filed (see Fed. R. Civ. P. 37), no motion for production of any jury lists had been filed, no attempt to depose orally the Commissioner or the Clerk was made (see Fed. R. Civ. P. 26), nor was any subpoena duces tecum served to obtain questionnaires or other jury records (see Fed. R. Civ. P. 45). And, there had been no attempt to investigate the racial makeup of prior juries in the Helena Division. Plaintiff's counsel in oral argument conceded they did not pursue this approach, since the case was a "civil" and "not a criminal proceeding." We know of no rule which allows a showing of discrimination to be by lessor proof in a civil case than in a criminal action.

(6) In the May 1967 pre-trial the trial court indicated that a jury had been called to consider several cases pending in the Helena Division at that time. Nevertheless, the court, in response to plaintiff's counsel's charge that "all the `key men' used were white," indicated a willingness to allow full and complete examination of both the Clerk and the Commissioner in his presence in order to determine this. Plaintiff's counsel re- fused this opportunity, saying that without the jury lists such an examination would be a useless gesture. If plaintiff's objection was to be pursued in good faith, this refusal is difficult to understand.³  Such an examination un- der the court's supervision might have produced names of recent "key men" used to obtain the present jury. These key men could have reviewed the lists and stated the approximate ratio of White and Negro citizens suggested. Plaintiff's counsel admitted that the jury lists themselves would be of little help without a much longer delay and ex parte investigation. The trial court made clear his concern for the orderly trial of his docket.

Under the above circumstances of plaintiff's refusal to follow orderly discovery under the court's supervision, but more particularly his long delay and neglect to pursue available further discovery, it would strain credibility to say that the court abused his discretion in his ruling denying access to the jury list. Apropos to this situation is Circuit Judge Bastian's observation in Chung Wing Ping v. Kennedy, 111 U.S. App.D.C. 106, 294 F.2d 735, 737 (D.C. Cir. 1961):

"Diligent prosecution of a cause of action which is dependent for success upon discovery demands that the plaintiff seek discovery in preparation of his case and not as a backdoor defense to a test of the merits of his claim."

See also Wray M. Scott Co. v. Daigle, 309 F.2d 105 (8 Cir. 1962). There can be no claim in this case that the court's limitation of discovery was "highly technical" or upon "wholly indefensible grounds." See First National Bank v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (J. Black dissenting) (1968). We cannot accept the argument, asserted for the first time one year after discovery was permitted, that the court has arbitrarily denied the plaintiff the right to discover the only source of evidence available to prove his claim. We realize we deal in a sensitive area of litigation and with sensitive constitutional rights. Yet, we must stand behind a trial judge who fairly and openly permits discovery rights for one year before trial, and who then offers, notwithstanding the lack of diligence by counsel, a further opportunity for oral examination in his presence of the pertinent court officials. Justice would be denied if we did not.

We have discussed the "key man" jury system in recent cases. Although the system can be abused, it is not impermissible per se. Hansen v. United States, 393 F.2d 763 (8 Cir., filed April 25, 1968); Pope v. United States, 372 F.2d 710, 723 (8 Cir. 1967); Mobley v. United States, 379 F.2d 768 (5 Cir. 1967). Plaintiff must sustain his burden of proof that there has been a deliberate and systematic discrimination. Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S. Ct. 402, 47 L. Ed. 572 (1903); Akins v. State of Texas, 325 U.S. 398, 400, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945). The burden is not a light one. Swain v. State of Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Akins v. State of Texas, supra. Here there certainly cannot be a prima facie charge based upon past discrimination (cf. Whitus v. State of Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967); Bailey v. Henslee, 287 F.2d 936 (8 Cir. 1961)), or total exclusion (cf. Cassell v. State of Texas, 339 U.S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950); Patton v. State of Mississippi, 332 U.S. 463, 68 S. Ct. 184, 92 L. Ed. 76 (1947); Coleman v. Alabama, 389 U.S. 22, 88 S. Ct. 2, 19 L. Ed. 2d 22 (1967)) of the Negro race from the jury list. Every known evidential circumstance here points to the contrary; (1) on June 12, 1967, the jury that was chosen to try the case was composed of four Negroes and eight Whites; (2) the panel of 44 jurors who reported for jury duty on June 12, 1967, had 18 Negroes on it; and (3) thirty-seven per cent of the 60 jurors drawn by the Clerk and Jury Commissioner for the term in which the above captioned case was tried were Negroes.

Judgment affirmed.