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July 25, 1952

FLYNN et al.

The opinion of the court was delivered by: DIMOCK

Defendants' challenge to the array was disposed of from the bench adversely to the challenge. In view of the possibility of such challenges in future cases, however, I have thought best to record in this opinion the reasons for my action.

We are enjoined by the Supreme Court of the United States, in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181, that 'The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.' While the general principle undoubtedly is that the various classes of the population must be fairly represented in this cross-section, it need not be a mathematically correct proportional representation of every class, the rich and the poor, the illiterate and the educated, the young and the old, the dull and the bright. In the Thiel opinion itself, Mr. Justice Murphy said, 328 page 224, 66 S. page 987: 'It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship.' Similarly in United States v. Dennis, 2 Cir., 183 F.2d 201, the Court of Appeals relied upon state statutes which fixed property and character qualifications of jurors. When hereinafter using the term 'cross-section of the community', therefore, I shall refer to the result of a random selection tempered by such matters as releases on account of financial hardship or disqualifications for defect of estate or want of proper character.

 In support of their challenge to the array defendants stated that the 'essence of the challenge is that the method of jury selection is such as to discriminate against manual workers (and the poor) and against Negro and Puerto Rican citizens, and in favor of the owning, well-to-do classes in the community and their agents and representatives.'

 The subject is complicated and perhaps belongs philosophically in the realm of statistics rather than law. At the risk of oversimplification, therefore, I shall attempt to state in advance my conclusion and the method by which it was reached, in the hope that it will make the detailed statement which follows intelligible.

 My conclusion is that the list from which the panel of veniremen available for the choice of jurors in this case was drawn by lot constitutes a cross-section of the community. Defendants have, therefore, no tenable ground of complaint.

 That list was the subject of defendants' attack. The list was made up by selection in two steps: in the first step persons were selected to whom should be sent notices to call at the clerk's office for consideration of their qualifications; in the second step the qualifications of those who appeared were considered and those whose names were to be put on the jury list were selected.

 Objection was made that, in the first selection, names were chosen in such way as to discriminate against manual workers and non-whites and that, in the second selection, there was deliberate discrimination against manual workers and non-whites.

 To substantiate this charge, defendants offered to prove a discrepancy between the relative proportions of certain classes in the population and on the jury list. In examining the discrepancy the question arose whether it was the result of selection of those who were to receive notices in the first step or was the result of selection from among those who had received notices in the second step or was the result of both.

 The jury list from which the veniremen on the panels had been chosen by lot was made up in the past with no attempt to reach a cross-section of the population but in recent years notices have been sent out to persons selected at random and in accordance with the voting population of the various localities with a modification which I will mention later. Such a method of sending out notices satisfies me as an ideal system. Therefore, if the veniremen resulting from those notices could be separately ranged in classes, the relative proportions of the classes would constitute a norm for the result of an ideal system of selection in the first step combined with the actual practice of selection in the second step.

 Such a study proved possible and was made. In the norm resulting from the combination of this ideal first step selection with the actual second step selection the relative proportions of the various classes were substantially the same as on the jury list. It thus appeared that the disproportion between the representation in the population and in the panels arose as a result of selection in the second step.

 Accordingly the actual practice of selection in the second step was studied. It appeared that lawful standards of qualification were applied and that there was nothing improper in any of the procedures involved in selecting from among those who responded to notices persons whose names were placed upon the jury list. Rejection of the challenge followed.

 A few words should be said as to the modification mentioned earlier. While notices were sent to persons in Manhattan and the Bronx during the norm period in strict accordance with the voting population of of each assembly district, notices were going to Westchester without such a careful reference to voting population. This raised a problem with respect to the validity of the result as a norm since the raw figures may not have reflected an ideal system of selection in the first step. The attempt to solve this problem led to an analysis of the effect on the ideal system of the sending of the notices to Westchester and also to a method of adjustment to allow for it. A large part of the succeeding discussion is devoted to that attempt at solution. The problem was solved to my satisfaction and I concluded that, notwithstanding the treatment of Westchester in the data, I was justified in holding that the relative proportions of the classes which would have resulted from the combination of an ideal first step selection system and the actual second step practice would not have differed substantially from the relative proportions of the classes on the jury list.

 The Procedure.

 To substantiate their allegations, defendants made three written offers of proof. These were supplemented by the testimony of the jury clerk whose duty it is to obtain qualified veniremen in the Southern District of New York and of the deputy clerk who assists him. These two witnesses were examined by defendants and cross-examined by the Government. In addition, the Government submitted certain tables of analyses and testimony in explanation of them.

 The Government moved to dismiss the challenge on the ground that, even if defendants should establish the facts which they offered to prove, the sum total of those facts and the facts as to which oral testimony was given would not suffice to support the challenge.

 There was no direct evidence of any intention to discriminate against or in favor of any group, race or class. The claim was that the representation of manual workers, Negroes and Puerto Ricans was disproportionate to their numbers and that that disproportion was circumstantial evidence of discrimination against them.

 In support of that claim defendants offered to prove various facts as to the composition of the jury list from which the array was drawn and to prove the breakdowns of the last thirteen panels drawn from that jury list, and of certain portions of the jury list itself, as among various employment groups and geographical areas.

 History of the Current Jury List.

 On the matter of the make up of the jury list defendants offered to prove that the basic jury list was established as the result of a reorganization of the method of jury selection undertaken in about 1938 and continuing to about April, 1943. The purpose and methods of reorganization were said to be accurately described in the Report of Leland L. Tolman, of the Administrative Office of the United States Courts, dated January 2, 1941. The Report states that, prior to the reorganization, the juries were overcrowded with relief workers and housewives due to general economic conditions in New York City. Defendants said that the reorganization required (a) the 'requalification' of all then on the list, i.e., the elimination of all those failing to meet the standards of 'superiority', 'high class' and the like, reflected in the new sources of names referred to below and (2) the substitution of new names of those who met the standards.

 The new names were said to have been supplied from two sources: 18,291 names were furnished by the Federal Grand Jurors Association until April 1943, *fn1" and an unspecified number of names were obtained by the jury clerk himself.

 Both used similar sources of names. They were Who's Who in New York, Who's Who in Engineering, The Social Register, Poor's Register of Executives, the Directory of Directors, the alumni directories of Princeton, Columbia, Harvard, Yale and Dartmouth, the subscription edition of the telephone directory ('arranged by street numbers rather than alphabetically by names: and thus 'especially valuable, since it permits the jury clerk to select names from neighborhoods where he knows that persons who are most likely to be suitable material reside'), volunteers nominated by the Association and the like.

 After the reorganization the list was kept replenished by requalification of certain persons on the original list, by drawing for a time on the lists supplied by the Grand Juror's Association, by use of a list of selected Negroes, by accepting volunteers and recommended persons, and, to the largest extent, by the use of voting lists. It was charged that the choices from the voting lists were made in such a way as to favor the neighborhoods inhabited by whites and members of the higher income groups.

 That is the alleged history of the jury list up to December 31, 1948, when it was considered under a similar challenge in U.S. v. Foster, D.C., 83 F.Supp. 197, affirmed sub. nom. U.S. v. Dennis, 2 Cir., 183 F.2d 201.

 At that time there was in existence a backlog of qualification notices prepared by the clerks from voting lists under instructions to select the names at random. These notices were sent out for the purpose of bringing in candidates to qualify for the jury list. The backlog was exhausted in October of 1949. The breakdown of this backlog by assembly districts in Manhattan and the Bronx discloses a widely disproportionate distribution.

 Beginning on November 1, 1949, the voting lists were practically the only source of new names, the only exceptions being in the case of volunteers or recommended persons who, it was estimated by the jury clerk, did not run over 100 a year. The procedure employed was calculated to keep the number of notices sent to each voting district substantially equal and to make the choice of names haphazard.

 On April 14, 1950, in order to insure the haphazard character of the choice, the procedure for choosing the names from the voting lists was changed by the introduction of the 'punch system'. This method was to punch holes through each pamphlet voting list at points fixed on the top page by an arbitrary rule and then to take off the names on each page which had holes opposite them. This system has been employed since then for the selection of the names of persons to whom notices are to be sent in Manhattan and the Bronx.

 Continuously after November 1, 1949, the number of notices sent to each district has been substantially equal. In September 1950, it was, however, decided to send exactly the same number of notices to each district and thereby avoid even minor discrepancies between the numbers of notices that the respective districts received.

 A month before this, in August 1950, the jury clerk first started regularly sending notices to persons residing in Westchester County. These names were all taken from voting lists by use of a haphazard method of selection and an equal number of notices were sent for each voting list representing a Westchester municipal subdivision.

 Defendants conceded that an attack on the make up of the jury list up to December 31, 1948, was rejected by this court and the Court of Appeals in U.S. v. Foster, 83 F.Supp. 197, affirmed sub. nom. U.S. v. Dennis, 2 Cir., 183 F.2d 201, but they said that the attack was unsuccessful because (1) it failed to show that what they call the improper methods of selection employed up to 1943 had any effect on the panels in question and (2) because the methods of sampling were held to be capricious.

 Defendants proposed to show the relation between the 'improper' lists and the present panel and at the same time to avoid the criticism of capriciousness by analyzing the names on all of the last thirteen panels. *fn2"

 Content of the Current Jury List.

 Defendants had tabulated the home addresses and occupations listed on the cards of the 3,725 veniremen on the current panels. They had also tried to determine the initial qualification dates of veniremen on those panels but these dates appeared for only 3,381 of them.

 Of the 3,318 where dates could be obtained, they said that 924 qualified before July 1942, and they thus developed the proposition that more than one-quarter of the veniremen serving as the regular jurors in the court were the product of the methods used during the reorganization. They added that all but 1,086 were qualified before December 31, 1948, and were thus 'survivors of the selective and discriminatory pre-Dennis methods'.

 To support the charge that what they called discriminatory methods of selection had actually resulted in discrimination, defendants attempted to show that the veniremen from Manhattan and the Bronx in the current panels were drawn predominantly from the neighborhoods inhabited by whites and by the higher income groups and from the higher paid occupations. A specific example of their geographical charge is that the predominantly Negro 14th Manhattan Assembly District produced but 3/10 of 1% of the veniremen from Manhattan although it contained 3% of the voters in Manhattan. An example of their occupational charge is that laborers made up but a small fraction of 1% of the veniremen although they made up 6% of the population in the New York Metropolitan area.

 The defendants offered to prove numerous breakdowns showing the relationship between representation of geographical areas or employment groups on the jury list and the current panels, on the one hand, and on the voters' lists and in the population, on the other.

 While it is doubtful that general population or even voting population is a proper standard of comparison to determine whether the jury list constitutes a fair cross-section of the community, in view of the special standards of juror qualifications, I pass that point.

 Alleged Overweighting of White and Wealthy Neighborhoods in Sending Out Jury Notices in ...

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