Fay v. People of State of New York Bove v. Same, Nos. 377 and 452

CourtUnited States Supreme Court
Writing for the CourtJACKSON
Citation332 U.S. 261,91 L.Ed. 2043,67 S.Ct. 1613
Decision Date23 June 1947
Docket NumberNos. 377 and 452
PartiesFAY v. PEOPLE OF STATE OF NEW YORK. BOVE v. SAME

332 U.S. 261
67 S.Ct. 1613
91 L.Ed. 2043
FAY

v.

PEOPLE OF STATE OF NEW YORK. BOVE v. SAME.

Nos. 377 and 452.
Argued and Submitted April 3, 1947.
Decided June 23, 1947.

Rehearing Denied Oct. 13, 1947. See 68 S.Ct. 27.

[Syllabus from pages 261-263 intentionally omitted]

Page 264

Mr. Harold R. Medina, of New York City, for petitioner Fay.

Messrs. Moses Polakoff and Samuel Mezansky, both of New York City, for petitioner Bove.

Mr. Whitman Kanpp, of New York City, for respondent.

Mr. Justice JACKSON delivered the opinion of the Court.

These cases present the same issue, a challenge to the constitutionality of the special or so-called 'blue ribbon' jury as used by state courts in the State and County of New York.

Such a jury found Fay and Bove guilty of conspiracy to extort and of extortion. Bove was Vice-President of the International Hod Carriers, Building and Common Laborers' Union of America. Fay was Vice-President of the International Union of Operating Engineers. The City of New York awarded contracts for construction of an extensive project known as the Delaware Water Supply system to several large construction concerns. It was not denied that Fay and Bove collected

Page 265

from these contractors upwards of $300,000. But it was denied that payment was induced by threats to do unlawful injury to person or property. The defense claimed that the payments were voluntary bribes, perhaps, but no extortion—that these men were paid merely for undertaking to assist the contractors to avoid labor trouble, to prevent jurisdiction or unauthorized strikes, and to 'handle the labor situation,' and that Fay and Bove rendered service as agreed.

The indictment charged the crimes in seven counts. One was dismissed by the court; the remaining six were submitted to the jury. The jury acquitted the defendants on three of the counts, disagreed on another, and convicted on two counts. The convictions were affirmed on appeal by the Appellate Division of the Supreme Court,1 which reviews both law and fact,2 and by the Court of Appeals.3 No federal question is raised as to the merits of the finding of guilt and we are to assume that the convictions were warranted by the evidence and, except for questions as to the special jury, were regular. While there was challenge to the panel from which this jury was drawn, on ground of denial of federal due process and equal protection, each individual juror was accepted by the defendants without challenge for cause. The challenge to the special jury panel was not discussed by either of the appellate courts of the State but the federal questions were sufficiently and timely raised throughout and were overruled by all state courts. A dual system of juries present easy possibilities of violation of the Fourteenth Amendment and we took these cases by certiorari to examine the charges of unconstitutionality. 329 U.S. 697, 67 S.Ct. 92.

Page 266

The question is whether a warranted conviction by a jury individually accepted as fair and unbiased should be set aside on the ground that the make-up of the panel from which they were drawn unfairly narrows the choice of jurors and denies defendants due process of law or equal protection of the laws in violation of the Fourteenth Amendment to the Federal Constitution. If answered in the affirmative, it means that no conviction by these special juries is constitutionally valid, and all would be set aside if the question had been properly raised at or before trial.

The defendants raise no question as to the constitutionality of the general statutes of New York which prescribe the qualifications, disqualifications and exemptions for ordinary jury service. Neither is any question raised as to the administration of these general statutes by which the population of New York County, numbering some 1,800,000, is sifted to produce a general jury panel of about 60,000, unless it be that there is discrimination against women.4 It is from this panel that defendants insist, apart from any objection they may have as to improper exclusion of women even from the general panel, they had a constitutional right to have their trial jury drawn. The statutes advanced as a standard may be roughly summarized:

To qualify as a juror, a person must be an American citizen and a resident of the county; not less than 21 nor more than 70 years old; the owner or spouse of an owner of property of the value of $250; in possession of his or her natural faculties and not infirm or decrepit; not convicted of a felony or a misdemeanor involving moral turpitude; intelligent; of sound mind and good character;

Page 267

well-informed; able to read and write the English language understandingly.5 From those qualified the following classes are exempt from service; clergymen, physicians, dentists, pharmacists, embalmers, optometrists, attorneys, members of the Army, Navy or Marine Corps, or of the National Guard or Naval Militia, firemen, policemen, ship's officers, pilots editors, editorial writers, sub-editors, reporters and copy readers.6

Women are equally qualified with men,7 but as they also are granted exemption,8 a woman drawn may serve or not, as she chooses.

The attack is focused upon the statutes and sifting procedures which shrink the general panel to the special or 'blue ribbon' panel of about 3,000.

Special jurors are selected from those accepted for the general panel by the county clerk, but only after each has been subpoenaed for personal appearance and has testified under oath as to his qualification and fitness.9 The statute prescribes standards for their selection by declaring ineligible and directing elimination of these classes: (1) All who have been disqualified or who claim and are allowed exemption from general service. (2) All who have been convicted of a criminal offense, or found guilty of fraud or misconduct by judgment of any civil court. (3) All who possess such conscientious opinions with regard to the death penalty as would preclude their finding a defendant guilty if the crime charged by

Page 268

punishable with death. (4) All who doubt their ability to lay aside an opinion or impression formed from newspaper reading or otherwise, or to render an impartial verdict upon the evidence uninfluenced by any such opinion on impression or whose opinion of circumstantial evidence is such as would prevent their finding a verdict of guilty upon such evidence, or who avow such a prejudice against any law of the State as would preclude finding a defendant guilty of a violation of such law, or who avow such a prejudice against any particular defense to a criminal charge as would prevent giving a fair and impartial trial upon the merits of such defense, or who avow that they cannot in all cases give to a defendant who fails to testify as a witness in his own behalf the full benefit of the statutory provision that such defendants' neglect or refusal to testify as a witness in his own behalf shall not create any presumption against him.10

The special jury panel is not one brought into existence for this particular case nor for any special class of offenses or type of accused. It is part of the regular machinery of trial in counties of one million or more inhabitants. In its sound discretion the court may order trial by special jury on application of either party in a civil action and by either the prosecution or defense in criminal cases. The motion may be granted only on a showing that 'by reason of the importance or intricacy of the case, a special jury is required' or 'the issue to be tried has been so widely commented upon * * * that an ordinary jury cannot withou delay and difficulty be obtained' or that for any other reason 'the due, efficient and impartial administration of justice in the particular case would be

Page 269

advanced by the trial of such an issue by a special jury.'11

This special jury statute is not recent nor is the practice under it novel. The progenitor of this statute, like it in all pertinent respects, was enacted in 1896 but was repealed and simultaneously reenacted in substantially its present form in 1901.12 It was soon attacked as on its face violating the State Constitution. The claim of one convicted by a special jury that it was an unconstitutional body because its restrictive composition denied due process of law, was rejected by the Court of Appeals in a well-considered opinion. People v. Dunn, 1899, 157 N.Y. 528, 52 N.E. 572, 43 L.R.A. 247. The attack then was made from the opposite direction. One convicted by an ordinary jury claimed that it was an unconstitutional body. This claim that the special panel had withdrawn twenty-five hundred 'men of presumably superior intelligence,' 162 N.Y. at page 362, 56 N.E. at page 759, too, was rejected by the Court of Appeals. People v. Meyer, 1900, 162 N.Y. 357, 56 N.E. 758.

Then, in 1901, an attack on the constitutionality of the statute was rejected by this Court. One Hall had been convicted of murder by a special jury and sentenced to death. He sued out a writ of habeas corpus which was denied below. He challenged the special panel and claimed that his conviction by its verdict was a denial of due process of law and of equal protection of the laws in violation of the Fourteenth Amendment because the jury was 'taken from a particular body of citizens and not from the general body of the county as was provided in all cases wherein such special jury was not drawn.' This Court affirmed, Hall v. Johnson, 186 U.S. 480, 22 S.Ct. 943, 46 L.Ed. 1259, citing

Page 270

among other authorities Brown v. State of New Jersey, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119, which upheld a state statute for a 'struck jury.'13

Since these decision, the special jury has been in continuous use in New York County in important cases. The District Attorney cites over one hundred murder convictions, on verdict of the special jury, considered by the Court of Appeals...

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353 practice notes
  • Ramseur v. Beyer, No. 90-5333
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 1992
    ...61 L.Ed.2d 739 (1979); Strauder, 100 U.S. at 308. 4 See, e.g., Rose, 443 U.S. at 555-56, 99 S.Ct. at 2999-3000; Fay v. New York, 332 U.S. 261, 285, 67 S.Ct. 1613-16, 91 L.Ed. 2043 (1947); Strauder, 100 U.S. at 309. For an analysis of the conceptual problems presented by this reasoning, see ......
  • State v. Copeland, No. 21808
    • United States
    • United States State Supreme Court of South Carolina
    • November 10, 1982
    ...dissenting); Duncan v. Louisiana, 391 U.S. 145, 193, 88 S.Ct. 1444, 1472, 20 L.Ed.2d 491 (1968) (Harlan, J., dissenting); Fay v. New York, 332 U.S. 261, 296, 67 S.Ct. 1613, 1631, 91 L.Ed. 2043 (1947) (Opinion of Jackson, Imposition upon the states of a single design for proportionality revi......
  • State v. Griffin
    • United States
    • Supreme Court of Connecticut
    • December 21, 1999
    ...a State may not entrust the determination of whether a man is innocent or guilty to a tribunal `organized to convict.' Fay v. New York, 332 U.S. 261, 294 [67 S. Ct. 1613, 91 L. Ed. 2043 (1947)]. See Tumey v. Ohio, 273 U.S. 510 [47 S. Ct. 437, 71 L. Ed. 749 (1927)]. It requires but a short s......
  • State v. Avery, No. 34
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 1, 1980
    ...that the jury actually chosen must mirror the community and reflect various and distinctive population groups. Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). At the outset it must be noted " . . . (T......
  • Request a trial to view additional results
352 cases
  • Barber v. Ponte, No. 84-1750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 18, 1985
    ...statistically, a substantially true mirror of the community. See Duren v. Missouri, supra; Taylor v. Louisiana, supra; Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); United States v. Blair, 493 F.Supp. 398 (D.Md.1980), aff'd, 665 F.2d 500 (4th Cir.1981). While courts of......
  • Ramseur v. Beyer, No. 90-5333
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 1992
    ...61 L.Ed.2d 739 (1979); Strauder, 100 U.S. at 308. 4 See, e.g., Rose, 443 U.S. at 555-56, 99 S.Ct. at 2999-3000; Fay v. New York, 332 U.S. 261, 285, 67 S.Ct. 1613-16, 91 L.Ed. 2043 (1947); Strauder, 100 U.S. at 309. For an analysis of the conceptual problems presented by this reasoning, see ......
  • Cobbs v. Robinson, No. 322
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 1, 1976
    ...supra, 396 U.S. at 332, 90 S.Ct. 518; Brown v. Allen, 344 U.S. 443, 473--74, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947). It is not the function of the federal courts to scrutinize the state's grand jury list to insure that it statis......
  • Pope v. United States, No. 18272.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 14, 1967
    ...as an excuse not to serve. We get no impression that this was a "blue ribbon jury". See Fay v. People of State of New York, 372 F.2d 725 332 U.S. 261, 267-268, 270, 287-289, 67 S.Ct. 1613, 91 L.Ed. 2043 We also note that, on the other hand, among those excused by the trial court were three ......
  • Request a trial to view additional results
1 books & journal articles
  • The Supreme Court as Protector of Civil Rights: Criminal Justice
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 275-1, May 1951
    • May 1, 1951
    ...Murphy, JJ., 64 Thiel v. Southern Pacific Co., 328 U. S. dissenting. 217 (1946)-Frankfurter, Reed, JJ., dissenting, 69 Fay v. New York, 332 U. S. 261 (1947) ; Moore v. Jackson, J., not participating. While this is a New York, 333 U. S. 565 (1948)- civil case, it principles would clearly app......

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