The opinion of the court was delivered by: CURTIN
Between November 14 and 17, 1972, 153 Selective Service cases were presented to the Grand Jury sitting in Buffalo, New York. The Grand Jury voted to indict in each case. During the last two weeks in November and early December, indictments were prepared, signed by the foreman of the Grand Jury and United States Attorney and formally handed up to the court, 98 on December 5, 1972 and 55 on December 12, 1972. Approximately 75 cases were assigned to each of the two judges sitting in Buffalo.
Arraignment of many defendants followed in late December and early January 1973. At arraignment, some defendants appeared with private counsel, some requested assigned counsel and some were represented by A.C.L.U. attorneys. Messrs. Gardner, Putrino and Collesano, who represent many defendants, have served as principal defense attorneys in bringing various motions during the course of this litigation. The court has received and considered affidavits and motions filed by other individual attorneys and at oral argument heard not only from the principal attorneys and the United States Attorney but also from any individual defense counsel who desired to be heard.
It became evident from studying defense counsel's discovery motions that there were many problems common to all the cases. To prevent the duplicative filing of papers and to conserve judicial time, both judges signed an order on January 29, 1973 setting forth the information the United States Attorney was to provide defense counsel and providing for the inspection of Selective Service documents. On March 20, 1973, upon application of the United States Attorney, the time for his office to submit answers and to make other information available for inspection was extended. After the United States Attorney provided the answers requested and defense counsel examined the Selective Service records, motions were made in many cases for examination of the Grand Jury testimony and for a bill of particulars. On July 5, 1973, the court entered a joint order directing the United States Attorney to "forthwith provide the counsel for each defendant the minutes of the grand jury testimony pertaining to said defendant." On July 25, 1973 after defense counsel had examined some of the Grand Jury minutes, the principal attorneys filed a motion requesting that a hearing be held on the manner in which the cases were presented to the Grand Jury and for dismissal of the indictments. Subsequently confusion arose as to the extent of the court's July 5 order and, when it became apparent that important information was not set forth in the Grand Jury transcripts, the court entered a further order on August 8, 1973 directing that all Grand Jury minutes be made available in the Clerk's office for inspection; that the government file (1) a table setting forth passage of time from referral to the United States Attorney until presentation for indictment in each case, and (2) an affidavit explaining the manner in which the cases were presented to the Grand Jury. In response to that order, the United States Attorney filed an affidavit explaining how the cases were presented to the Grand Jury and a table showing the time lapse from date of referral to date of indictment. He also filed affidavits of Roger P. Williams, the Assistant United States Attorney charged with the presentation of these cases to the Grand Jury, United States Army Colonel Williard I. Silverberg, who was employed as Regional Counsel for the Selective Service System, and Dorothy A. Wheeler and Dorothy A. Gourdin, employees of the Selective Service System, who appeared as witnesses before the Grand Jury.
After the United States Attorney filed his response in late August 1973, defense counsel renewed their motions for dismissal of the indictments, filed further affidavits and both sides filed briefs with the court. On October 4, 1973 the court, sitting jointly, heard oral argument from counsel. Defense counsel asserted that the indictments should be dismissed for a number of reasons: (1) the delay in presentation of the cases to the Grand Jury; (2) the unauthorized appearance of Colonel Silverberg before the Grand Jury; (3) improper reliance by the government on hearsay testimony before the Grand Jury; (4) the failure to record all the testimony before the Grand Jury; (5) the presentation of multiple count indictments was misleading; (6) the failure to present Selective Service files to the Grand Jury for inspection; (7) erroneous information about the files was given to the Grand Jury; (8) the Grand Jury did not examine the indictments in their final form, and (9) the precipitous manner in which the cases were presented to the Grand Jury, which prevented the Jury from a careful consideration of the facts in each case.
During oral argument, defense counsel conceded that the affidavits filed by the United States Attorney gave an accurate account of the manner in which the cases were presented to the Grand Jury and the request for a hearing was withdrawn. The court is satisfied that a hearing is not required. Because of the nature of the motions made by defense counsel and the history of this litigation, the court will deem this motion made on behalf of all the defendants in the 153 cases presented from November 14 through November 17, 1972 which have not already been disposed of by prior court action.
In late August or early September 1972 when it became apparent to Mr. Elfvin, the United States Attorney, that there was a large number of Selective Service cases pending but unindicted in the Western District of New York, he sought assistance from the Department of Justice and the Selective Service System. In response to his request, two attorneys from the Department of Justice came to Buffalo and reviewed the files during the week of September 11, 1972. Colonel Williard I. Silverberg, Selective Service Regional Counsel, with another Selective Service attorney from Albany, came to Buffalo on September 13, 1972 to devote that day to a general review of the files. In November of 1972, 300 Selective Service cases were given to the Assistant United States Attorney for presentation to the Grand Jury if warranted. During the week of November 13, 1972, Colonel Silverberg returned to Buffalo and arranged for the assistance of three reservist attorneys to assist the United States Attorney's office in its preparation for presentation to the Grand Jury. After review, 153 cases were selected for presentation to the Grand Jury and prosecution was apparently declined on the others.
After a new Grand Jury was chosen and sworn on the morning of Tuesday, November 14, 1972, it met with the United States Attorney, the Assistant United States Attorney assigned to these cases, and Colonel Silverberg. Mr. Elfvin spoke briefly to the Grand Jury and after that the work was turned over to the Assistant in charge and Colonel Silverberg. Prior to the witnesses' testimony, Colonel Silverberg appeared unsworn before the Grand Jury and made a statement concerning the general nature of Selective Service law. He extended to the Assistant United States Attorney general advice and information during the presentation of these cases. He returned to the jury room upon request of the jury to answer specific questions during the presentation of some cases and he also discussed the problems concerning Selective Service matters with the members of the Grand Jury during recess breaks.
The witnesses for the government were Dorothy A. Gourdin and Dorothy A. Wheeler, both executive secretaries for the local boards in the Western New York area. Before the witnesses appeared before the Grand Jury, summary sheets were prepared, some by the witnesses and some by other individuals, setting forth a summary of the information contained in the Selective Service files. The cases were presented to the Grand Jury in packages of five or six. After a witness testified on five or six files, she left the Grand Jury room and a vote was taken on whether to indict. In no cases did the jurors have proposed indictments before them and true bills were voted in each and every case.
Mr. Elfvin explains that after the cases were presented, "the witnesses' transcripts were obtained on an expedited basis and [he] and Mr. Williams consulted upon the preparation of the indictments; that 98 had been prepared and approved by [Mr. Elfvin] and by the foreman of the grand jury by December 5, 1972 and were on that day returned to the Court; that the remaining 55 indictments had been prepared and approved by [Mr. Elfvin] and the foreman by December 12, 1972 and were then handed up to the Court, . . .."
THE MANNER OF CASE PRESENTATION BEFORE GRAND JURY
The United States Attorney has filed a table setting forth the time and date of presentation of each case to the Grand Jury. At least 18 cases were submitted on November 14, 20 on November 15, 42 on November 16 and almost 60 cases were presented on November 17. On November 17, the presentation started at 10:15 A.M. and concluded at about 3:00 P.M., with a luncheon break. The United States Attorney admits that almost 60 cases were submitted to the Grand Jury on that day, during a three-hour period.
The fifth amendment guarantees that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ." The purpose of a Grand Jury indictment has historically been to charge individuals with serious crimes and to protect people from false accusations brought by others. See United States v. DeCavalcante, 440 F.2d 1264 (3d Cir. 1971), 62 Harv. L. Rev. 111, 114 (1948). "The Grand Jury is a safeguard designed to protect the reputation of the accused, to avert the stigma of prosecution unless there is reasonable ground for proceeding." 62 Harv. L. Rev. 111, 114 (1948).
The time given for consideration of each indictment demonstrates little regard for the rights of defendants. In a number of cases the witness was asked by a Grand Juror for details of a registrant's claim and received a brief, conclusory answer. In the case of Winkelsas, CR. 72-376, a Grand Juror asked about the nature of the registrant's conscientious objector claim and received the reply:
On his religious background, there is nothing in here that shows what his religion was at that appearance.
The answer leads the Grand Jury to believe religion is the relevant focus of inquiry on a conscientious objector claim, contrary to the legal requirements, see United States v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965); Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970).
An examination of the transcripts reveals that very little information was given to the Grand Jury. In almost every case, the transcript begins with the stock phrase which was not recited during the testimony of the executive secretary but was typed in afterward.
The total time of presentation was less than one-half minute in many cases. In Hart, CR. 72-292, the witness's explanation of the case was limited to three and one-half lines. It is difficult to find any evidence of willful misconduct spelled out in most of the testimony because the executive secretary merely stated "he failed to report." No other information about the failure is submitted to the jury. It is impossible to tell whether the failure to report was brought on by a willful act of the defendant, or because of carelessness, mistake or misunderstanding of the Board's order. Not untypical presentations are those of Mangione, CR. 72-300, eight lines; Bishop, CR. 72-298, seven lines; Bialaszewski, CR. 72-301, ten lines, and Burke, CR. 72-319, seven lines. In the case of Finch, CR. 72-316, the defendant's claim for ministerial classification was rejected by the Board and he was classified as a conscientious objector, but the complete explanation of this rather complex claim is given in six lines.
In some cases, the jury was misinformed because it was led to believe at the time of presentation that a defendant would be indicted on only one count when in fact he was indicted on two or more. This occurred in Stysick, CR. 72-293, Keith, CR. 72-404, and Donohue, CR. 72-441. Stysick was indicted for failure to "report for and submit to induction" on January 20, 1971 and for failure to "submit to induction" on March 15, 1971. The Grand Jury transcript reads:
On July 13th, 1970, he was mailed and ordered [sic] to report for induction. He transferred this induction to a local board in Los Angeles, California. However, he returned to the Buffalo area so the local board in Buffalo rescheduled him for induction to report October 14th, 1970, at which time he failed to report. He notified the local board that he was ill. On October 21, 1970, he was mailed another letter to report for induction November 4th, 1970. On this date he reported. However, his acceptability was undetermined. On November 23, 1970, he was found to still be fully acceptable. He was rescheduled to report for induction on January 20th, 1971. He failed to report for induction. On March 4th, 1971, ...