The defendants are charged with the crime of murder under section 125.25 of the revised Penal Law. An order for separate trials, heretofore granted, directed that the trial of the defendant, William Wright, proceed first.
After the case was called for trial, and immediately prior to the selection of a trial jury, a challenge to the panel of prospective jurors, sent from the Central Jury Part, was made on behalf of the defendant, William Wright, a Negro, pursuant to section 363 et seq. of the Code of Criminal Procedure.
Matters pertaining to census and population are the subject of judicial notice. (Trustees of Union Coll. v. City of New York, 65 App. Div. 553, affd. 173 N. Y. 38.)
The court takes judicial notice that the population of Nassau County is in excess of one million and that the procedures relating to the qualification and selection of jurors set forth in article 18 of the Judiciary Law are applicable in this case.
It is his contention that, because of the insufficient number of Negroes being selected for jury duty in general, and because of discriminating practices employed by which Negroes were excluded from this particular panel of prospective trial jurors, there is not such a proper proportion of Negroes on this panel of prospective jurors, empaneled for use on this trial, as relates to the population as to afford this defendant a trial by a jury of his peers.
A hearing on this question was conducted by the court at which the only witness called was Honorable Joseph Dowler, Commissioner of Jurors of the County of Nassau.
From his testimony, the court finds that from about 300 to 400 persons from all parts of Nassau County are summoned each business day to the office of the Commissioner of Jurors for the purpose of qualifying as jurors. The names and addresses of these prospective jurors are obtained from the voter's registry, telephone book, assessment rolls, lighting company lists and the lists of automobile owners from the Bureau of Motor Vehicles.
The Commissioner estimated that the total population of the county is about one million and a half, of which about 4% are Negro. He also estimated that after eliminating those under 21 years of age, and over 72 years of age, together with certain professional people, and women, of whom 90% claim the statutory exemption, from which it may be concluded that a rather small percentage of the total population ever serve on juries.
The Commissioner also testified, and the court finds, that no particular area of Nassau County is chosen to seek out qualified trial jurors, nor does he issue any general or specific orders to systematically exclude persons of any particular race, religion or creed from the jury rolls. Those receiving qualifying summons are chosen by lot from rolls made up from the various lists above mentioned, and sent in equal numbers to every area of the county regardless of the concentration of whites or blacks residing there. There is no attempt to send a smaller number of summons into an area populated by more blacks than white individuals.
The qualifying procedure involves a written questionnaire to be answered by the person summoned. (Judiciary Law, § 661.) Nowhere on this paper is there any reference to race, religion or national origin.
The Commissioner of Jurors also testified, and the court finds, that although there are questions to be answered in relation to schooling and educational attainment, the answers thereto are given no weight and are not used in any way in the qualification of the prospective jurors. If the person summoned is unable to understand the questionnaire because of his not being able to read or write English, he is not accepted. Ability to read and write the English language understandably is a requisite for qualification as a juror. (Judiciary Law, § 662.)
The prospective jurors are drawn by lot when they are summoned for qualification determination, and again when they are drawn for the respective jury panels, including the one assembled for this case.
There are no records, marks or devices employed on the ballot or anywhere else to differentiate as to the race, religion, national origin, educational or socio-economic circumstances of any of the prospective jurors, and the Commissioner and his employees who perform the various tasks connected with ...