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UNITED STATES v. FOSTER

March 4, 1949

UNITED STATES
v.
FOSTER et al.



The opinion of the court was delivered by: MEDINA

Defendants, indicted for conspiracy to advocate the overthrow and destruction of the government by force and violence, 18 U.S.C.A. § 2385, have filed a challenge to the array and have moved to quash and dismiss the entire panel, venire and jury list and to dismiss the indictments on the ground that there has been a wilful, deliberate and systematic exclusion, in while or in substantial part, of the poor, the propertyless, persons of humble station, laborers, mechanics, craftsmen and other manual workers, persons who work by the day or hour, persons who by reason of lack of means are compelled to and do reside in low rent areas and persons who are not members of or closely allied with the upper strata of social life in the community; also Negroes and other racial and national minorities, including large numbers of Jewish citizens, those of Italian descent and Puerto Ricans; also women; and persons who are affiliated with the American Labor Party and the Communist Party. This charge necessarily relates to grand jurors and petit jurors as well. The claim is further advanced that the requirement of a $ 250 property qualification for jury service, as provided by 28 U.S.C.A. § 1861, subd. (4) and § 596 of the New York State Judiciary Law, Consol. Laws, c. 30, and the 'limitation' of $ 4 per diem jury fees provided by 28 U.S.C.A. § 1871 (recently increased to $ 5 per diem by Pub. L. No. 779, 80th Cong., 2d Sess., which became law on June 25, 1948), are discriminatory against the poor and members of the working class and that said statutes impose unconstitutional conditions in violation of the Fifth and Sixth Amendments of the Constitution of the United States. Other grounds are urged which it is unnecessary to specify.

In October, 1948 defendants made a similar motion to dismiss the indictments on the ground that there had been a systematic exclusion from the grand jury of people of the working class and members of the colored race. This motion was denied by Judge Hulbert on October 22, 1948, 80 F.Supp. 479. Thereafter and on November 15, 1948 defendants filed a challenge to the array and a motion to 'quash and dismiss the entire panel, venire and jury list.' This challenge and motion were withdrawn on November 16, 1948. At the commencement of the trial of the issues presented by the present challenge and motions, the United States Attorney moved to strike such parts thereof as concerned the grand jury, on the ground that a similar motion had already been made and denied, that the time within which to make the motion had expired and that no application had been made for leave to renew. Upon objection of counsel for the defendants to the striking out of this portion of the challenge and motions, I ruled that I would treat their objection as in effect a motion for leave to renew and decision was reserved on this motion, as well as on the motion of the United States Attorney to strike. In the interest of justice I think the entire matter should be determined on the merits and I therefore grant the defendants leave to renew and deny the motion of the United States Attorney to strike.

 The period involved extends from the early part of 1940, when the present Jury Clerk of this Court was appointed and assumed his duties as such, up to the time of the commencement of these proceedings. This coverage of something less than ten years seems for all practical purposes sufficiently broad. Such proof as has been received relating to any earlier period will be considered merely as background.

 The trial has consumed six weeks or more from January 17 to and including March 1, 1949. The defendants have called 42 witnesses, including the Chief Judge of this Court, 21 members of the grand jury which voted the indictments against them, 6 petit jurors called for service for January 17, 1949, the Director of the Administrative Office of the United States Courts and his Assistant, the Jury Commissioner, and a number of others. The government has called 4 officials who are charged with the qualifying and drawing of jurors for service in this District and 2 persons on the jury list. Many hundreds of exhibits have been received in evidence, chiefly offered on behalf of defendants in support of the challenge and motions. All this testimony and each of these exhibits have received careful consideration.

 In addition to the specific provision contained in 28 U.S.C.A. § 1863(c) that 'No citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color,' and the requirement of 28 U.S.C.A. § 1864 that the jury commissioner and the clerk shall place names in the jury box 'without reference to party affiliations,' and the basic requirement that both grand and petit juries shall at all times consist of a fair and impartial cross-section of the community, the statutory provisions which govern the case are to be found in 28 U.S.C.A. §§ 1861 and 1862 and in § 596 of the New York State Judiciary Law, which prescribes the qualifications of jurors in the cities having a population of one million or more, which is in effect made applicable by 28 U.S.C.A. § 1861(4). Other statutory provisions of the New York law relate to counties without the limits of the City of New York but within the Southern District of New York. See N.Y. Judiciary Law § 502.

 Eliminating from consideration the exemptions provided in 28 U.S.C.A. § 1862 and the disqualification for conviction of crime contained in 28 U.S.C.A. § 1861(1), it will be found that Section 1861 provides that any citizen who has attained the age of 21 years and resides within the judicial district is competent to serve as a grand or petit juror unless he is unable to read, write, speak and understand the English language or is incapable by reason of mental or physical infirmities to render efficient jury service.

 The qualifications of jurors as set forth in § 596 of the New York State Judiciary Law which are made applicable by reference require, in addition to citizenship, residence, age and ownership of property of the value of $ 250, that a person must:

 '4. Be in the possession of his natural faculties and not infirm or decrepit.

 '5. Not have been convicted of a felony or a misdemeanor involving moral turpitude.

 '6. Be intelligent; of sound mind and good character; well informed; able to read and write the English language understandingly.'

 The characteristics of this District, disregarding for the moment the rural and semi-rural counties to the north, and considering only New York and Bronx Counties, are too well known to require extended comment. With a heterogeneous population of several millions, a vast number of foreign born individuals of varied races and backgrounds, a large and indeterminate underworld and every conceivable gradation in economic status and general manner of life, there is imposed upon the officials charged with the duty of selecting duly qualified grand and petit jurors a task of substantial magnitude, which is necessarily increased by the fluidity of the population and those changes which take place in times of depression, of war, or of prosperity. No single man or group of men, utterly determined in good faith to obtain, so far as the exercise of purely human qualities might permit, a body of qualified jurors constituting a fair and impartial cross-section of this vast community, would proceed to the task in the same way as any other man or group of men selected for the purpose. Thus it is that the law wisely imposes a wide discretion on the officials charged with the duty of selecting and qualifying grand and petit jurors here. Such discretion is of the essence of any jury system in the Federal or State Courts in the United States. But in the Southern District of New York the statutory provisions above quoted impose an even greater duty of careful selection than is true by statute, by rule of court or by custom in some other sections of the country, where the problems are less complicated and the likelihood of danger to the administration of justice from the inclusion of unfit persons as jurors is less manifest.

 Not merely is it essential that there be a fair and impartial cross-section of the community, but the jurors residing in New York and Bronx Counties must be found to be intelligent, well informed and of good character. As to those residing in the other counties to the North, they must among other qualifications be found to be 'free from all legal exceptions; of fair character; of approved integrity; of sound judgment; and well informer.' N.Y. Judiciary Law § 502. Much latitude in the choice must necessarily be placed upon the officials who administer the jury system.

 The problem, accordingly, and by all the authorities, is to determine from the evidence whether the defendants have sustained the burden of proving the wilful, deliberate and systematic exclusion, in whole or in part, of Negroes, women, Jews, manual workers, poor persons and members of the Communist and American Labor Parties. Not only have defendants failed to prove this charge but the evidence, largely adduced by them, conclusively refutes it.

 In support of their allegations defendants put in evidence various maps, charts and schedules purportedly based for the most part on material found in the office of the Clerk of this Court and on statistics published by the United States Bureau of the Census. In one series of charts the purpose of the defendants was to compare the representation of various occupational groups in this District with the representation of the same groups on the jury panels. For this purpose 28 sample panels of jurors called in the years 1940-1949 were selected and studied. The occupations of these jurors were purportedly discovered from the occupational information found on the jury panels, which information had been copied from the history cards, which in turn were based upon answers written out by each juror in his or her original questionnaire, at the time of qualification, and from other 'collateral evidence.' Then these occupations were purportedly translated into the Census classification of occupations. Thus was it sought to compare the representation of occupations in the District as a whole (as shown by the Census Reports of 1940) with their representation on the sampling of jury panels. In another series of maps or charts it was sought to show the geographical location of the residences of the various jurors on the selected panels. Another series of charts or schedules purported to deal with: (1) the voting population in the various Congressional districts in this District, to which was sought to be compared the number of jurors from said districts on various selected panels; and (2) the percentage of the Republican and American Labor Party vote in the Congressional districts in Manhattan in 1948 compared with the percentage of the jurors on certain selected panels residing in said districts. Many other maps, charts or schedules were received in evidence which I shall not enumerate or describe.

 These charts, maps, and schedules were supported by the testimony of two witnesses, Doxey A. Wilkerson and Dorothy H. Rodman, who worked on their preparation and who said they were in all respects accurate and had been carefully checked.

 The demeanor of both Mr. Wilkerson and Mrs. Rodman on the witness stand, various circumstances, some of which will be hereafter adverted to, and the errors and discrepancies discovered and disclosed by the United States Attorney, leave me with no confidence in the credibility of their testimony, or the accuracy of the maps, charts and schedules.

 During the course of the trial it was brought out that there were numerous errors. In determining a juror's occupation it turned out that the occupation as given by the juror on the card in the Clerk's office was not always used, but that 'collateral evidence' was resorted to, such as telephoning, or taking information from the telephone directory and so on. It appeared furthermore that use had not been made of a Supplement issued by the Census Bureau changing the classification of numerous types of workers. Moreover, in some instances the Census classification was disregarded and a different classification employed. While Mr. Wilkerson testified on direct examination that all the charts, maps and schedules were prepared under his supervision, it turned out on cross-examination that there were anywhere from 36 to 48 other persons who worked on data incorporated in the charts. His lack of knowledge of the identity or qualification of these persons, many of whom were volunteers and ...


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