Don Jelinek was a civil rights lawyer who defended my father (Paul Bokulich) when he was charged with stealing a welfare check from an elderly black man in Alabama. Jelinek was able to use the case to have the U.S. district court rule against all-white juries and require that blacks be allowed to serve on juries as well.
I believe my dad is the only 100% Croatian person in the world to be declared black in a court of law. The judge responded to Jelinek’s complaint about the all-white jury with the retort, “But your client is white!”
“Your Honor,” Jelinek replied, “for the purposes of this case, my client is black.” And the judge left it at that.
The case was appealed to the U.S. Supreme Court, but as far as I can tell, that decision only dealt with the question of whether the striking down all-white juries should also block criminal charges being brought against my father.
Jelinek’s recollections of the episode can be found here. It’s part of a larger interview conducted by Bruce Hartford. I’m hoping that Don won’t mind if I paste in this part of the interview below the fold, just so it’s saved if for any reason donjelinek.com should disappear.
Don Jelinek: My work reflected the civil rights split: one day, a black militant; the next, a Christian volunteer. The first time I had visited the friendly Selma church, I met Paul and Pat Bokulich, a religious white couple in their twenties, who had come South from Detroit to join Dr. King’s 1965 summer program in Alabama. They had remained and moved to Greene County, Alabama — a black majority county — where the black potential vote still had little potency. The Bolulich’s were the poorest folk in their county, their shack the worst in town, their diet worse than that of the poorest sharecropper — their limited income derived in part from an acre of land they tilled with a borrowed mule. They bathed by standing in a large basin, water heated on a wood stove, was poured by one over the other. They shocked local blacks who could not fathom why anyone, especially whites, would choose to live in such squalor, but they were loved all the more for it. It was said, with only a little exaggeration, that if Paul and Pat left before the next census, the economic level in Greene County would rise significantly, but some white civil rights workers also felt that it was unfair for the pregnant Pat to raise a newborn under these conditions.
Paul told me he had led an almost-successful campaign to unseat the incumbent Sheriff, William Lee, in the May, 1966 primary. I repeated information about myself and soon we were talking about the multitude of civil rights workers and who worked for who. . . and that the Bokulich’s were attached to SCLC. I told them about my Black Power experiences in those first days; Paul said he got along great with everyone and expected no Black Power problems . . . and besides he worked for Dr King, not SNCC.
Pat wanted to know if I worked only for SNCC, or could they call on me for help. I explained that I worked for all civil rights groups. “Good,” she said, “’cause the word is they are after Paul now that Sheriff Lee kept his job.” Paul snorted his skepticism.
Within a few days after meeting them, I got a call that “Paul’s in jail”; that a sharecropper he was most friendly with had signed a complaint charging him with stealing money (pennies) from his home.
Bruce Hartford: From who?
Don Jelinek: From the black sharecropper, from his home. I drove down to the jail and asked for bail. The judge said, No bail. I said, “With capital offenses, sometimes there’s no bail, but petty theft always carries bail.” He repeated, No bail. I decided I’d been in Selma less than a week and I’d like to make my mark early. I remembered a plan where you could go through the entire court circuits in a given day. I was already turned down by the lowest court at 9 a.m., I could be turned down by the middle court by 11 a.m., and the Alabama Supreme Court by 1 p.m. I could then make the U.S. District Court by 3 p.m. and, if unsuccessful, with a some lucky timing, the U.S. Court of Appeals in New Orleans by 5 p.m., or the next morning. I expected to lose all the way to New Orleans.
Bruce Hartford: When you say the entire circuits, what do you mean?
Don Jelinek: I had already been to the lowest judge and he said, No, then I went to the middle court, and some lady very nicely said she’ll present it before the judge, and I said, “Thank you, but I need a decision right now.” And she said, “Well, if you need one right now, then it’s denied.” And I said, “Thank you very much.”
I walked out and headed for the Supreme Court, the State Supreme Court. Next I had an appointment already with U.S. District Court Judge Frank Johnson, right after I would be turned down in the Supreme Court. And I had a flight to New Orleans for the Fifth Circuit Court of Appeals, where I had an appointment, if Johnson turned me down. The idea was to go through all the courts quickly, to get to New Orleans, where we were usually most successful.
So I go to the Supreme Court and tell the clerk, “I’d like to present this Writ of Habeas Corpus to the Justices,” and she says — lawyers are always shocked to hear this — she says, “Very well, I’ll go in and tell them you’re here.” I’d never met a Supreme Court justice in my whole career, I’d never even
Bruce Hartford: Now this is the State Supreme Court?
Don Jelinek: Uh huh. Apparently, they had been all sitting around the table, probably shooting the breeze. and now, I assumed, they are quickly putting on their robes. When I’m told to come in, I introduce myself and tell them about my status: that I’m from New York (before they tell me) and I said, “You may have trouble believing this, but a local judge is denying bail in a petty theft case.” But no one even cracks a smile.
Bruce Hartford: This is Alabama, of course.
Don Jelinek: I say, “I have a Writ of Habeas Corpus for you to sign if you would be willing.” One of them picks it up — I’ll never forget this — and he says, “Do you know that our paper for a Writ is one-and-a-half times the size of your Writ paper, has a red margin, and three holes punched in it — and that is the only paper that is accepted before the Alabama Supreme Court?” Which I learned is true. I say, politely, “No, I didn’t know.”
“Well, that’s the trouble when you’re a Yankee, not a member of the bar here, and you don’t likely connect with anybody.” I said “Well, I just been here a couple of days and this bail denial just happened.” No one spoke — and, assuming I’m going to lose anyhow — I said, “I’m not a big student of history, but it is my understanding that if I wrote a Writ of Habeas Corpus on a napkin, you would be required to honor it. There can’t be any procedural problem with a Writ of Habeas Corpus . . .”
The Chief Judge interrupted me, but I could see he was smiling at my answer. He asked a political question: “Are you trying to make civil rights points: we turn you down and you get some publicity — or do you really want to get your man out?” I say, “I want to get my man out, I’m ready to go to the other courts, but I don’t see this is as a civil rights issue. I just want to get him out.”
He asked me to step outside. I’m really stunned because this is supposed to be a “kangeroo court,” a way station on my way to my next court.
Bruce Hartford: Which would be New Orleans?
Don Jelinek: No, it would be Judge Johnson down the street. I had thought this was just a matter of an hour with a sure turndown, and I’m concerned I will be late for my next stop.
Then I’m asked to come back in. The Chief Justice says to me, “We’re not going to sign the Writ. However, we’ve had an informal telephone conversation with the [lower court] judge, and he decided he would like to have a bail hearing tomorrow morning at 9 am. So it’s now up to you.” Stunned, I thanked the Supreme Court and left.
Well, you can imagine the terror on that judge who denied bail, when he got that phone call, the same day. The next day, I go to the hearing, and there is this poor little black sharecropper. Oh, my God. They have mentally tortured him to sign this thing. I ask Paul, “Do you have an alibi for the time period of the alleged crime?” “Yes,” he says, “I was in Atlanta at an SCLC meeting and I was even on TV.” I say, “Great, except for one problem, you know most of the local folks can’t tell you one day from the next — there is no need for calendars here. We got to pin him down to the date.” So I said, “Was anything special about that date?” He says “No . . . wait. Yes. That’s when the candy man came.” I’d never heard about that before. Bruce, have you ever heard of the candy man? Local blacks buying candies, like on consignment, from a central candy man and then go door to door selling the candy. And that’s the candy man, and so it’s a big event, the kids are all waiting for him.
So we go into the court and the judge asks if I have any proposal for bail? I say, “Yes, $2,000 and we have a property bond ready (from a homeowner). “Sounds just fine,” says the Judge, “but, of course, we’ll have to have a hearing to make it official.” I said I understand. And he says, “I assume you don’t have any witnesses?”
But I do. I call the sharecropper to the stand. After a few questions, I ask him to tell me what happened. He tells the same terrible story: that Paul was in his house and he saw him taking some coins out of his little can of savings. I say, “What day was that?” He says, “I don’t know.” I say, “Was it the day the candy man came?” “Oh, yes, yes. It was the day the candy man comes, yes. I
bought lots and then sold it.” “Not the day before?” “No.” “Not the day after?” “No. I bought my candy that day. I remember that day very clearly.”
I then moved on in a way that would never be tolerated in the North. “You’ve known Paul and Pat and their baby a long time.” He nods. “They work really hard for you and your people, don’t they?” He nods again. “Do you really want to see Paul go to prison over your testimony? Did he really steal money from you?” The poor black sharecropper looks terrified. He stares at me, at Paul, at the sheriff . . . and he passes out on the stand. He literally faints on the stand. The Sheriff takes him out of the courtroom into a private room; when he comes back out, he testifies against Paul.
Bruce Hartford: They must have had something really bad on him.
Don Jelinek: Oh no, just fear. They didn’t have to have anything. After this day in court, Paul was indicted and I jumped into the grand jury world.
Bruce Hartford: He was out on bail and the grand jury indicted him on the basis of this guy’s testimony.
Don Jelinek: Right. Now I must go after the grand jury. Since 1880, it has been unconstitutional to systematically exclude blacks from juries, and though ignored, it is a strong point to raise on appeal — after conviction — in a federal court.
I had an edge. A jury challenge had been brought in this very county in 1964 but had ended merely with stern admonitions (which had been ignored), plus a slap on the wrist. Could I convince the federal court to intervene to enforce their own earlier order?
I drove to Birmingham to see U.S. District Judge H.H. Grooms who had issued the 1964 order. He was cordial, even stimulated by the concept, but he was not one to break new ground. He refused. I then flew to New Orleans to the 5th Circuit of Appeals, which said “No, but …” and issued a one-week injunction — with a hint to Grooms — to allow time for me to go back to Grooms. With the encouragement from the Appellate Court, he signed an unprecedented injunction that lasted almost two years, during which time the Greene County Grand Jury — and that of nearby counties — ground to a halt. Paul, of course, could not be indicted until the federal court reviewed the system.
More than a year later (I am jumping ahead!), the Federal Court in Birmingham heard evidence that the Greene County Grand Jury had discriminated against blacks since Reconstruction, not to mention since the 1964 federal court order.
I had to demonstrate how the Jury System was supposed to operate and how, in fact, it did. The Greene County Jury System was an example of discretionary segregation — a microcosm of all southern jury systems and southern institutions in general, which managed to keep down black majorities.
One of the most important examples of this surreptitious segregation was eligibility for juries, which Alabama restricted to those
“generally reputed [by whites] to be honest and intelligent and . . . esteemed in the community for their integrity, good character and sound judgment.”
The politics of jury exclusion was clear. No murderer of a civil rights worker would ever be convicted and no civil rights worker would ever be acquitted.
First a racist governor (then, George Wallace) appoints only whites as jury commissioners to run the system. They, in turn, choose a clerk whose job is to prepare in a “well-bound book” a list of every potentially eligible juror in the county, obtained by scanning voter registration lists, tax assessor lists, city directories and telephone directories, and by visiting each precinct at least once a year for names not covered by those lists. The jury commissioners make lists also. Later, from all the lists, those “generally reputed . . . “ are made eligible for the jury rolls. We knew that among whites, blacks were “generally reputed” to be just the opposite, or not reputed at all.
At the federal hearing, in response to my questions, the clerk of the jury commission even surprised cynics like me. She admitted that she did not obtain the names of the potentially eligible black jurors, at all. In fact, she didn’t even know it was required by law, nor did she know how it could be done if she wanted to. She admitted not using the tax assessor’s list and barely used the
Although she testified that she faithfully visited each precinct once a year, she spoke only with persons she knew, who she admitted were white. She said she knew few Negroes living in the city, did not know blacks outside the city, except those who have been “in trouble.” She knew no Negro ministers and sought no names from black churches or organizations.
Bruce Hartford: In Greene County, which was as I recall 70% black, 65% black.
Don Jelinek: Correct. Having no list of blacks to work from, nor any means of judging those “generally reputed,” the jury commissioner simply took the previous year’s list.
The state protested that “younger and better educated Negroes” migrated North for job opportunities, leaving only the poorly reputed. Anticipating this approach, my chief assistant, Kathy Veit, had spent the previous six months conducting her own survey of the black community, asking jury eligibility questions of every household. Aided by SNCC workers and unhampered by local police, who never guessed the purpose of the seemingly innocuous survey, she compiled a list showing that approximately 1600 jury-eligible blacks had been ignored — which was very persuasive.
Our next attack was on the manner in which Governor George Wallace chose the Jury Commissioners, what blacks he had interviewed or consulted to make his choices. We obtained a subpoena and delivered it to an old-time Southern U.S. Marshall who advised us it was served on the Governor. But the next day, Wallace’s lawyer appeared in court to “quash” (throw out) the subpoena because it had been served on an aide, not personally served on Wallace. The Marshall acknowledged he had offered it to the Governor who said, “Hand it to so-and-so instead.” The court correctly ruled this was not proper service. The same U.S. Marshall was again dispatched to serve the Governor. Again Wallace’s lawyer appeared to quash the new subpoena because the few-dollar witness fee had not been given to the Governor. I exploded in court, demanded the Marshall take the stand, and got his admission that he had been serving subpoenas for years and knew all about the fees. I yelled at him, demanding he be held in contempt and then began yelling at the judges when they refused. One judge snidely noted: “You’re lucky the old fox [Wallace] isn’t on the stand making a fool of you.”
Chief Judge Godbold warned me to calm down. Kathy was pulling my sleeve trying to get me to sit and quiet down, but I was out of control. When the court refused me another try at the Governor, I accused them of rigging the hearing for the Governor. At this point Godbold warned me, “One more word . . . ” Kathy pulled me down and whispered, “We’re going to win the main case, don’t blow it on the Wallace part, which was always an extra.” I stood, chalk-faced, biting my lip till blood oozed out of my mouth. Godbold saw my struggle and called a recess asking me to calm down. I ran to the bathroom, and punched a tile wall I fantasized as George Wallace and the courts combined. Finally I calmed down, returned to the court, apologized and conceded that without Wallace, I could not prove that part of my case. The court held that part failed “for want of proof.”
We then rested the case and waited for a decision that was delayed for another nine months. The court ruled unanimously that the jury commissioner had followed “a course of conduct which results in discrimination in the selection of jurors on racial grounds,” enjoined such further discrimination, and ordered a 60-day report on progress to obtain a new list in conformity with the laws of Alabama and the U.S. Constitution. The court softened the blow by saying that the result applied whether the reasons were conscious, intentional, evil, or just innocent failure.
Bruce Hartford: Yeah, but how often does a grand jury really need to meet in Greene County?
Don Jelinek: Intermittently, as needed. But you can imagine how they felt about it, what a humiliation it was. And it really is humiliating not to be able to function.
Bruce Hartford: Yeah, I would imagine that was a big issue in that area of Greene County, Hale County, what’s up there, Choctaw, that area.
Don Jelinek: We lost our attack to abolish the “good character” law itself. On appeal, the U.S. Supreme Court noted:
This is the first case to reach the Court in which an attack upon
alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief [before conviction], rather than by defendants challenging judgments of criminal convictions . . . [i.e., after conviction by an illegal jury] . . . In sum, we cannot conclude, even on so compelling a record as that before us, that the guarantees of the Constitution can be secured only by the total invalidation . . .[of the law].
There was one dissenter . . .
Bruce Hartford: . . . Justice William Douglas?
Don Jelinek: You guessed it. By then the conscience of the Court, Douglas abandoned legal niceties and addressed himself to the practicalities of an all-white jury commission using the “good character” law:
There comes a time when an organ or agency of state law has proved itself to have such a racist mission that it should not survive a constitutional challenge. . . . In the Kingdom of Heaven, an all-white or an all-black commission could be expected to do equal justice to all races …
but not, he concluded, in the State of Alabama. He called for a required bi-racial jury commission.