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October 5, 1970

UNITED STATES of America ex rel. William EPTON, Petitioner,
Albert NENNA, Warden, Manhattan House of Detention for Men, Respondent

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

This habeas corpus proceeding comes on for decision after a long, unusual and, possibly, edifying procedural history.

 The petitioner was indicted by a New York grand jury on June 7, 1965, upon charges of riot (former N.Y. Penal Law, McKinney's Consol. Laws c. 40, § 2090), conspiracy to commit riot (former N.Y. Penal Law §§ 2090, 580), criminal anarchy (former N.Y. Penal Law §§ 160, 161), and conspiracy to commit criminal anarchy (former N.Y. Penal Law §§ 160, 161, 580). The first of these charges was dismissed for lack of evidence by the trial judge. Petitioner was found guilty by the jury on the rest, and sentenced to one year on each count, the sentences to be served concurrently.

 Appeals through the New York courts resulted in affirmances. People v. Epton, 19 N.Y. 2d 496, 281 N.Y.S. 2d 9, 227 N.E. 2d 829 (1967), aff'g 27 A.D. 2d 645, 276 N.Y.S. 2d 847 (1966). Epton petitioned for a writ of certiorari and appealed, urging, inter alia, the unconstitutionality of New York's criminal anarchy statute. *fn1" On January 22, 1968, certiorari was denied and the appeal was dismissed for want of a substantial federal question. 390 U.S. 29, 88 S. Ct. 824, 19 L. Ed. 2d 808, rehearing denied, 390 U.S. 976, 88 S. Ct. 1057, 19 L. Ed. 2d 1198 (1968), petition for leave to file a petition for rehearing out of time denied, 398 U.S. 944, 90 S. Ct. 1832, 26 L. Ed. 2d 282 (June 1, 1970). Two Justices wrote brief opinions on this disposition, one dissenting, one explaining the grounds for his concurrence, and these are factors of some interest now, as will be discussed below.

 On February 5, 1968, after serving some three months of his one-year sentence, petitioner brought the present application for habeas. He presented again the several constitutional claims that had been before the Supreme Court. In addition, he attacked the composition of the grand jury that had indicted him, pointing out that the facts underlying this contention had never been heard in the state courts. It was evident that at least the last of these arguments presented a problem of substance, probably requiring some considerable time for its resolution. See Chestnut v. People of State of New York, 370 F.2d 1, 6-8 (2d Cir. 1966), cert. denied 386 U.S. 1009, 87 S. Ct. 1355, 18 L. Ed. 2d 439 (1967). It seemed evident, moreover, that full consideration of this subject could probably not be accomplished before most or all of petitioner's sentence had been served. Furthermore, it was agreed that the proper place for at least the initial consideration of this matter was the state rather than the federal court. See id. at 6.

 Reasoning together upon these considerations, counsel and the court agreed that the matter should properly go before a state tribunal for decision upon the merits; that suitable procedures were available for such handling; and that the State ought, with the consent of the prosecutor, to release petitioner on bail pending the determination of his claims. This court concluded that it would hold the petition pending such steps in the state court. Then, with what proved to be premature enthusiasm, this court recorded the history of what was then thought to be an instance of effective and agreeable comity. United States ex rel. Epton v. Nenna, 281 F. Supp. 388 (S.D.N.Y. 1968).

 On Friday, February 16, 1968, the petitioner appeared with counsel in the Supreme Court of New York County to institute a coram nobis proceeding and have himself released on bail. This court is informed that the State Judge on that morning announced his willingness to permit the release on bail, instructing counsel for petitioner to proceed with the procurement of a bondsman and the accomplishment of other necessary details. On the afternoon of the same day, for reasons which have never been spread upon any record known to this court, the state tribunal revoked its determination of the morning and announced that bail would not be allowed. In these circumstances, this court ordered petitioner's release the following morning on bail of $25,000 pending completion of his state coram nobis proceedings. He has been free on this order ever since.

 The parties then went forward with petitioner's state post-conviction proceeding. It was agreed that Epton's claim concerning the composition of the grand jury would be determined substantially on the basis of a record already made in People v. Chestnut et al., where a pre-trial motion challenging New York's method of selecting grand jurors had been denied after a hearing. *fn2" N.Y.L.J., April 5, 1967, p. 18, c. 6. On June 4, 1970, the Court of Appeals for the State of New York affirmed, as modified, the Chestnut convictions, including the grand jury ruling, 26 N.Y. 2d 481, 311 N.Y.S. 2d 853, 260 N.E. 2d 501 (1970). Accordingly, the Supreme Court of New York County denied Epton's coram nobis petition on June 18, 1970.

 Returning here, where the habeas petition had been held in abeyance, the parties filed extensive briefs and were heard orally. The application for federal relief is finally ready for decision. It must be denied.


 Petitioner's main point here, as has been noted, is his attack upon the composition of the grand jury that indicted him. His arguments are not without substance. See Chestnut v. People of State of New York, 370 F.2d 1, 7 (2nd Cir. 1966). *fn3" They have been rejected, however, by a large and unanimous array of New York State Judges. While that, in the nature of the habeas jurisdiction, does not bind a single federal judge at nisi prius, it is of interest. At any rate, this court reaches the conclusion that the state judgment must be sustained.

 On its face at least, the most serious claim in this regard is that the court should infer a pattern of unconstitutional discrimination from the low representation of black people and Puerto Ricans on the New York County grand jury. It is not necessary to labor the point that in our constitutional scheme invidious racial classifications are fundamentally and uniformly intolerable. Recognizing that, the court concludes nevertheless that petitioner fails in this branch of his argument. There is no showing of purposeful or intentional discrimination against any racial or ethnic group. The facts and the governing legal principles are amply reviewed in the opinion of Chief Judge Fuld for his unanimous Court of Appeals. See also United States v. Bennett, 2nd Cir., 409 F.2d 888, 892, aff'g United States v. Leonetti, 291 F. Supp. 461 (S.D.N.Y. 1968); United States v. Flynn, 216 F.2d 354, 378-389 (2nd Cir. 1954), cert. denied, 348 U.S. 909, 75 S. Ct. 295, 99 L. Ed. 713 (1955); United States v. Greenberg, 200 F. Supp. 382, 386-387 (S.D.N.Y. 1961); United States v. Bowe, 2nd Cir., 360 F.2d 1, 7, cert. denied, 385 U.S. 961, 87 S. Ct. 401, 17 L. Ed. 2d 306 (1966); cf. United States ex rel. Torres v. Mancusi, 427 F.2d 168 (2nd Cir. 1970); United States ex rel. Fein v. Deegan, 410 F.2d 13, 22 (2nd Cir. 1969). Recognizing that the statistics alone comprise evidence that might (with other evidence) help to prove purposeful discrimination on forbidden grounds, see, e.g., Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970), this court finds no ground for rejecting the reasoned views on this subject of the State Court of Appeals.

 Related to the argument about racial discrimination is petitioner's claim that the New York system of grand jury selection is infirm because of its voluntary nature. It is accepted for this purpose -- indeed, it is hardly doubtful -- that the racial disparities result at least in part from this factor. Petitioner's argument fails none the less. It is not shown that the system of volunteers was designed or has been administered as "an exclusionary device * * *." Hoyt v. Florida, 368 U.S. 57, 61, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961). The State's Legislature could rationally have concluded that volunteers for the solemn responsibilities of grand jurors would be more reliable, devoted and effective than compelled members. There is no ground in reason or authority for holding that coercion is a constitutional requirement in this area any more than it is in connection with voting -- though we may readily accept that some defendants, like some candidates, might fare better if higher proportions of certain groups were produced by a compulsory system than by a system of choice. *fn4" At least on the record here, New York's volunteer system is no more vulnerable than the selectively voluntary system upheld in Hoyt v. Florida, supra.

 On another front, while the governing state statute, New York Judiciary Law, McKinney's Consol. Laws, c. 30, § 596(2), makes people aged 21 to 70 eligible for service, it is undisputed that at the time in question those administering the law excluded persons younger than 35 or over 65. Petitioner attacks the exclusions of those below 35. This court need not (and does not) applaud the wisdom of this exclusion to sustain its constitutionality. *fn5" It is pertinent here, as elsewhere on this subject, that the state (1) is not required to proceed by grand jury indictment at all, Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232 (1884); Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962), and (2) may assign the decision to prosecute to highly selected and specially qualified people -- e.g., law-trained prosecutors. Lem Woon v. Oregon, 229 U.S. 586, 33 S. Ct. 783, 57 L. Ed. 1340 (1913); Gaines v. Washington, 277 U.S. 81, 86, 48 S. Ct. 468, 72 L. Ed. 793 (1928); Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962). This does not mean, of course, that the State, in making up grand juries or otherwise, may employ arbitrary, irrational or otherwise lawless discriminations. It does suggest, however, that the latitude for judgment by the State is broader than petitioner would have it.

 On the specific subject of age, the State justifies the minimum age of 35 on the grounds that grand jurors ought to have had petit jury experience, and that the powers of grand juries are broad, potentially drastic and relatively unfettered, requiring people of mature years and other qualities that give promise of stability. Reasonable people could differ about this judgment, just as they might about the prescription in the Constitution of minimum age requirements for high federal office -- 35 for the Presidency (Art. II, § 1), 30 for the Senate (Art. I, § 3), 25 for the House of Representatives (Art. I, § 2). Without pursuing strained comparisons between the White House and the grand jury room, we note that age qualifications have been included among an array of others deemed permissible as criteria for both grand and petit jury service. See Carter v. Jury Commission, 396 U.S. 320, 332-333, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970).

 Coming to what is for this court the most difficult issue of all, though it appeared to be of only passing concern for the State Court of Appeals, we note the undisputed fact that welfare recipients were excluded from New York County grand juries at the time here in question. If they do not share the almost inexorable condemnation visited upon racial classifications, invidious distinctions in terms of wealth or poverty are not in markedly greater favor. Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S. Ct. 1079, 16 L. Ed. 2d 169 (1966); Turner v. Fouche, 396 U.S. 346, 361-364, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). It would be difficult today to justify as an ongoing practice the discrimination against both welfare recipients ...

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