The opinion of the court was delivered by: TYLER
This memorandum treats motions in the above cases challenging the grand and petit jury systems in this district. Jury challenges of this type have frequently been before this court and the Court of Appeals for this Circuit. E.g., United States v. Flynn, 216 F.2d 354 (2d Cir. 1954), cert. denied, 348 U.S. 909, 75 S. Ct. 295, 99 L. Ed. 713 (1955); United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951); United States v. Greenberg, 200 F. Supp. 382 (S.D.N.Y.1961); United States v. Van Allen, 208 F. Supp. 331 (S.D.N.Y.1962), aff'd sub nom. United States v. Kelly, 349 F.2d 720, 777-779 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). Both the Court of Appeals and this court have suggested that principles of stare decisis should be dispositive of the frequent attacks on the jury systems of this court. United States v. Kelly, supra, at 778; United States v. Kenner, 36 F.R.D. 391, 392-393 (S.D.N.Y.1965).
The movants, however, urge that changes in the law - specifically the recent 5th Circuit decision in Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) (en banc) - require a reappraisal of the decisions of this Circuit sustaining the validity of the jury mechanism in this district. In addition, they claim that none of the past challenges to either our grand or petit jury systems was grounded in an adequate record. Specifically, they correctly point out that no broad-based analysis of the results of these systems had ever been conducted. In sum, the movants say that, in combination, these two factors rendered it improper to dismiss their claims without a hearing. A hearing has been granted, therefore, and its results will be discussed in this memorandum.
Because of the similarity of the issues raised, this court directed consolidation of these motions in an order dated October 26, 1967. Thereafter, the movants were allowed discovery of certain records reflecting the operation of the jury system; in addition, they were permitted to take the deposition of Mr. William Borman, the deputy clerk of this court who is responsible for administering the jury system. Discovery was finally completed in late December, 1967. The movants were then allowed time to assimilate and analyze the collected data, and to marshal their legal arguments. On February 21, 1968, they submitted, pursuant to direction, an "offer of proof", consisting of the facts which they believed they could establish, and the legal results which they held were required by such facts. The government then submitted comprehensive answering papers. Although the latter contained some supplemental statistical data, the government conceded the accuracy of most of defendants' factual materials. The United States strongly contested, however, the legal conclusions which the movants urged. With matters in this posture, this court set March 28, 1968, as the date for a final hearing. On that day and the next, the court heard evidence from twelve witnesses and oral argument of counsel. Both sides were then given additional time to submit final briefs, which were finally filed on May 6, 1968. The following shall comprise my findings of fact and conclusions of law.
The jury system in this court was described at length in United States v. Van Allen, supra, 208 F. Supp. at 332-334, and earlier in United States v. Greenberg, supra, 200 F. Supp. at 382-386. Nevertheless, because the deposition of Mr. William Borman discloses that there have been some significant changes, and because clarity is best served if there is a description of the system within the four corners of this opinion, I deem it advisable to include such a description.
The core source of prospective jurors for both the grand and petit jury systems in this district is voter registration lists for the most recent Presidential election year. The registered voter population for the entire district is not, however, drawn upon; considerations of efficiency and economy have dictated use only of the lists for the assembly districts in Bronx and New York Counties, and for those towns in Westchester County which lie, roughly speaking, south of White Plains. Other sources of names have been used from time to time. Being overly generous to movants and looking back even as far as twenty years, however, these additional names came only from real estate listings, a phone book in one instance, and recommendations which came in haphazardly.
These sources never amounted to more than 5% of the qualification notices sent out. The use of real estate listings - the principal collateral source - ceased in the late 1950's; hence the impact of these additional sources, clearly negligible at the Van Allen interlude, has now become de minimis.
Postcards summoning prospective jurors to appear for a qualification interview are prepared by taking each fifth or tenth name from one of these lists. Each week, 500 such notices are prepared and sent out to a given Manhattan or Bronx assembly district, and 100 to one of the Westchester County towns. The lists are used in strict rotation, with no assembly district or town getting a further mailing until all the other source areas have been tapped.
Responses of one form or another are received on some 97% of the notices. This figure includes, however, a large number of notices which are returned by the post office as undeliverable. Exactly what percentage of the return is accounted for in this manner cannot be ascertained, however, as the jury clerk does not keep a record of such figures.
Those people who appear in response to the notice are first interviewed by a deputy clerk. Each respondent is asked if he is aware of any factor rendering him unqualified or unable to serve. If the interviewee sua sponte asserts an exemption under state law, see New York Judiciary Law, McKinney's Consol. Laws, c. 30, § 599, and requests an excuse from jury service, the deputy clerk excuses him. This excuse, of course, eliminates this person from the jury system; he will not be called again unless by chance he receives another qualification notice. If the interviewee claims that jury service would entail financial hardship, the clerk, under current practice, will not disqualify him unless a clear showing of severe hardship is made. Instead, he will direct the person to present his plea, when he is actually called for service, to the Chief Judge or the Crime Part I judge. This marks a change from the practices employed in the period scrutinized in Van Allen. At that time, the deputy clerks possessed much broader discretion to grant hardship excuses by disqualifying a prospective juror.
A further change from the procedures passed upon in Van Allen is that the deputy clerks no longer selectively qualify individuals for either grand or petit jury service. This district has always operated with a split system, with one pool of prospective petit jurors, and another of prospective grand jurors. During the period scrutinized in Van Allen (1956-59), and undoubtedly before as well, the problem of allocating new prospective jurors to one system or the other was handled by the deputy clerk conducting the qualification interview. The decision turned exclusively on the convenience of the prospective juror. If an individual demurred to jury service on hardship grounds, he was frequently asked if grand jury duty, which entails a longer exposure, but only for part rather than all of each day, would be feasible. Additionally, if the grand jury wheel was low in a particular month, the clerks were instructed to qualify more grand jurors. Towards that end, they would suggest to individuals the possibility of grand jury service, and inquire which type of service would be more convenient. At times, the clerks also qualified individuals for grand jury service without such inquiry, particularly when it was clear that the individual's occupation rendered grand jury service more convenient.
This procedure was abandoned sometime around 1960. Now, when additions to the grand jury system are necessary, they are principally supplied by random transfers from the petit jury list. Seven hundred names have been transferred in this manner since 1960. Additionally, a small number of grand jury replacements come from requests for transfer, and from transfers made because an individual's petit jury service record indicates to the deputy clerks that he is capable of serving for the longer periods required by grand jury service. Currently, Mr. Borman keeps the grand jury system at the level of 2,500 names, and the petit jury system at around 23,000 names.
If the interview does not result in the individual being excused, the deputy clerk gives the prospective juror a questionnaire to fill out. The questionnaire seeks, inter alia, the individual's address, age, occupation, educational attainments, and criminal record. At this stage in the qualification process, only those standards set out in 28 U.S.C. §§ 1861-1863 are used to disqualify. Significantly, the practice in recent years has been to effectively ignore the data elicited on the individual's education in making the qualification decision. Individuals who cannot properly fill out the questionnaire are deemed unable to suit a reasonable standard of literacy and are disqualified.
Mr. Borman was questioned at some length on the yield of qualified jurors which this system has produced. Necessarily, the manpower limitations in his office have not permitted the type of elaborate record keeping which would give an accurate, sophisticated picture of the operation of each stage of the qualification process. The only records available are the numbers of qualified jurors yielded by each mailing to a source assembly district or town. These figures show yields of from 9 to 12 per centum, with the average yield between 11 and 12 per centum.
The questionnaires of qualifying prospective jurors are used to fill out history cards and wheel cards. The history cards are filed alphabetically; the wheel cards are collected in groups of 100 and placed in an inventory drawer. They are withdrawn, on a first-in, first-out basis, when additions to the petit jury wheel are necessary.
Mr. Borman's office keeps approximately 500 names in the master grand jury wheel and approximately 3,500 names in the master petit jury wheel. The cards in the master grand jury wheel principally are from one of two sources: (1) cards of veteran grand jurors, which are returned to the wheel two years after discharge from service; (2) cards recently transferred from the petit jury system. The cards in the master petit jury wheel come from four sources: (1) cards of veteran petit jurors, which are returned to the wheel three years after discharge from service; (2) re-transfers, on account of hardship, from the grand jury system; (3) cards of prospective jurors excused ...