United States v. Gargan
| Decision Date | 10 July 1970 |
| Docket Number | 70-CR-16,70-CR-28 and 70-CR-36.,70-CR-11,69-CR-77,69-CR-87,No. 69-CR-73,69-CR-73 |
| Citation | 314 F. Supp. 414 |
| Parties | UNITED STATES of America, Plaintiff, v. Edward Augustine GARGAN, Defendant. UNITED STATES of America, Plaintiff, v. David Lee WALLER, Defendant. UNITED STATES of America, Plaintiff, v. David H. CLARKE, Defendant. UNITED STATES of America, Plaintiff, v. George Anthony LONSDORF, Defendant. UNITED STATES of America, Plaintiff, v. Robert Wesley WOODHULL, Defendant. UNITED STATES of America, Plaintiff, v. Patrick Carl GAST, Defendant. UNITED STATES of America, Plaintiff, v. Bruce Charles HEROLD, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
John O. Olson, U. S. Atty., John E. Clarke, James R. Mack, Asst. U. S. Attys., Madison, Wis., for plaintiff.
Thomas C. Eckerle, Madison, Wis., for defendants.
These criminal prosecutions under the Selective Service Act were consolidated for the purpose of an evidentiary hearing on similar motions to dismiss on the ground that the grand juries which returned the indictments against the defendants were selected in an unlawful manner. More precisely, it is contended that in the selection of the grand juries, persons who had reached their 18th birthday but had not yet reached their 21st birthday were automatically excluded, and that in the method of selection there was a substantial and inevitable underrepresentation of persons who had reached their 21st birthday but had not yet reached their 26th birthday. It is contended that this total exclusion of the 18-21 group, and the underrepresentation of the 21-26 group, violate rights secured to these defendants by the due process clause of the Fifth Amendment. It is urged that these defendants, as well as others charged with violations of the Selective Service Act, are within the age group which is either not represented or is underrepresented in the process of grand jury selection. In the cases of defendants Waller and Gast it is also alleged that they are members of Jehovah's Witnesses and that members of Jehovah's Witnesses are not fairly represented in the process of selection of grand jurors.
An evidentiary hearing has been held. My findings of fact and conclusions of law are embodied in this opinion.
I find that in the process of selection of the grand jury which indicted defendants Clarke and Herold in the Eastern District of Wisconsin, and in the process of selection of the grand jury which indicted each of the remaining defendants in the Western District of Wisconsin, persons who had reached their 18th birthday but had not reached their 21st birthday were systematically excluded.
I find that at all times during which the grand jury which indicted defendants Clarke and Herold in the Eastern District of Wisconsin was being selected, and at all times during which the grand jury which indicted each of the remaining defendants in the Western District of Wisconsin was being selected, persons in both districts of Wisconsin who had reached their 21st birthday but had not reached their 26th birthday tended to register to vote and to vote in public elections in a somewhat lesser proportion than persons who had reached their 26th birthday.
I find that only those who had registered to vote in Wisconsin voting districts in which registration is required, and only those who actually voted in Wisconsin voting districts in which registration is not required, were among the possible choices in the process by which were selected in the grand jury which indicted defendants Clarke and Herold in the Eastern District of Wisconsin and the grand jury which indicted each of the remaining defendants in the Western District of Wisconson.
I find, therefore, that in the process by which the said grand juries were selected, persons in the age group 21-26 were represented in a proportion somewhat less than the proportion that members of the age group 21-26 bear to the general population; I find and conclude that this discrepancy in no way approached a situation in which members of the age group 21-26 were excluded in the selection process.
I find and conclude that there has been no showing that in the process by which the said grand juries were selected, persons who were members of Jehovah's Witnesses were represented in any lesser proportion than those who were not members of Jehovah's Witnesses....
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