People ex rel. Fein v. Follette

• Decision Date: 19 January 1970
• Citation: 306 N.Y.S.2d 789,61 Misc.2d 826
• Parties: The PEOPLE of the State of New York ex rel. Mark FEIN, Relator, v. Harold W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent.
• Court: New York Supreme Court

Page 789

306 N.Y.S.2d 789

61 Misc.2d 826

The PEOPLE of the State of New York ex rel. Mark FEIN, Relator, v. Harold W. FOLLETTE, Warden of Green Haven Prison Stormville, New York, Respondent.

Supreme Court, Dutchess County.

Jan. 19, 1970.

Weisman, Celler, Allan, Spett & Sheinberg, New York City, for petitioner; O. John Rogge, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., Frank S. Hogan, Dist. Atty., New York County, New York City, for respondent; Vincent A. Marsicano, Asst. Atty. Gen., William C. Donnino, Asst. Dist. Atty., of counsel.

W. VINCENT GRADY, Justice.

This writ of habeas corpus raises two issues concerning the illegality of relator's sentence of thirty (30) years to life imposed by Mr. Justice Culkin for Murder in the Second Degree after a jury trial in the Supreme Court, New York County.

I DID NEW YORK JUDICIARY LAW 597 AS APPLIED IN NEW YORK COUNTY VIOLATE THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT AND THE RIGHT TO TRIAL BY AN IMPARTIAL JURY UNDER THE SIXTH AMENDMENT BY SYSTEMATICALLY EXCLUDING FROM GRAND AND PETIT JURIES INDIVIDUALS WHO HAD CONSCIENTIOUS SCRUPLES AGAINST CAPITAL PUNISHMENT?

This issue was raised by Relator for the first time before the 2nd Circuit Court of Appeals which stated:

'In his reply brief, Fein for the first time also argues that the blue ribbon statute was unconstitutional on its face because its object was

'* * * to effect the exclusion * * * of all those individuals who had conscientious scruples against capital punishment. * * * Thus this statute assured the state of a jury whose members were partial to the prosecutor on the issue of guilt or innocence.'

'This argument in Fein's reply brief came after (and no doubt in light of) the grant of certiorari by the Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In that case the Court held unconstitutional the imposition of the death penalty in cases where persons with scruples against capital punishment were excluded from jury service, a holding explicitly limited to death penalty cases and then only to sentence rather than conviction. Id. at 52i--523, 88 S.Ct. 1770 n. 21; see Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The Court in Witherspoon did consider the argument that exclusion of jurors with scruples against capital punishment precludes an impartial trial on the issue of guilt. The majority there said, Id. at 517--518, 88 S.Ct. at 1774:

'We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.'

'While it is true that Witherspoon does hint, as the dissenters note, Id. at 539, 88 S.Ct. 1770, that the law may change on a different record, the studies and reports cited to us are the same as those cited in the Court in Witherspoon and Bumper. Thus, a different result could not be supported on the present law. However, we do not even reach the question. As pointed out above, this part of the challenge to the blue ribbon jury statute was first made in this court. Consequently, there was not only no opportunity for the district court to evaluate the question, but Fein apparently has not exhausted his State court remedies by first making the argument raised here to the New York State courts. In these circumstances, we should refuse to pass on the claim without prejudice to Fein's subsequently making it to the State courts.'

(U.S. ex rel. Fein v. Deegan, 410 F.2d 13 at pp. 22--23).

The constitutionality of New York Judiciary Law section 597, as applied in New York County, is properly before this court for determination in view of the directive from the 2nd Circuit Court of Appeals. However, this court did dispose in its opinion of a point raised by the Relator on this writ which is connected with his attack on the constitutionality of Judiciary Law section 597. Fein claims that the New York blue ribbon jury statute (former Judiciary Law section 749--aa) under which he was tried over his objection, compounded the constitutional errors involved in the exclusion of scrupled jurors by further discrimination against blue collar workers and women. The court held it was bound by the decisions in Moore v. New York, 333 U.S. 565, 68 S.Ct. 705, 92 L.Ed. 881 and Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043, and that the New York blue ribbon jury statute was constitutional (Id. 410 F.2d at 22).

Section 597 of the Judiciary Law in effect at the time of Fein's conviction provided:

'No person shall be selected as a grand juror or as a trial juror in a criminal action where the crime charged is or may be punishable by death, who has stated to the county clerk in his examination under oath as required, that he has conscientious scruples against the death penalty and that such scruples would prevent him from returning an indictment, or returning a verdict of guilty, of any crime punishable by death. Such scruple shall not, however, hinder the selection of such person to serve as a trial juror in any civil action or in any criminal action other than that specified above.'

The New York County Clerk provided a questionaire form for prospective jurors which contained the following question:

'Have you such views concerning the death penalty as would prevent you from finding a defendant guilty if the crime charged be punishable by death.'

It appears that a yes answer resulted in an automatic disqualification of the prospective juror.

Fein, seizing upon the language in the opinion of the 2nd Circuit Court of Appeals with respect to the Witherspoon and Bumper cases (Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797), urges this court to grant a hearing at which Fein will establish the unconstitutional operation of section 597 of the New York Judiciary Law in New York County. Both Witherspoon and Bumper while holding that the exclusion of jurors with scruples against capital punishment did not require a reversal of the convictions, left open the possibility that a record could be made which would show that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction.

Fein's burden in making such a record would be to show that section 597 of the Judiciary Law was misapplied in New York County in 1964 so as to exclude from the grand and petit juries individuals who were opposed to capital punishment but whose views would not prevent them from rendering a verdict of guilty in a capital case. To meet this burden, Fein states that he does not rely on studies, reports and polls, but proposes to produce at a hearing, if one is permitted by this court, the County Clerk of New York County, his records pertaining to the application of section 597 of the New York Judiciary Law and Rules 2 and 17 of the Jury System of the City of New York and jurors from the 1964 New York County Special Jury panels from which the Fein special jury was drawn. In Witherspoon (id. 391 U.S. at 517, 88 S.Ct. at 1774, note 10) the Supreme Court was presented with 'a study based upon interviews with 1,248 jurors in New York and Chicago' which found that juries from which those opposed to capital punishment were summarily excluded, were prosecution prone. The court held that this study was insufficient to prove that exclusion resulted in an unrepresentative jury on the issue of guilt. Fein seeks to question at a hearing jurors on the 1964 Special Jury Panel as to their views in 1964 towards capital punishment. The testimony of such jurors would carry no greater weight than the study based upon interviews with jurors which was rejected in Witherspoon. The examination of the records of the New York County Clerk would be in the nature of a fishing expedition to prove Fein's hypothesis and should not be permitted.

Fein alleges that the grand jury which indicted him and the special jury which convicted him were prosecution prone because those prospective jurors opposed to capital punishment were summarily excluded. This argument has been rejected in Fay v. New York, supra and Moore v. New York,supra. The use of a special jury (Judiciary Law, former section 749--aa, repealed by L.1965, Ch. 778) did not violate Fein's rights to a fair trial, to due process or to equal protection of the laws (People v. Jackson, 20 N.Y.2d 440, 456, 285 N.Y.S.2d 8, 22, 231 N.E.2d 722, 733, cert. den., 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668; People v. Donohue, 20 N.Y.2d 824, 284 N.Y.S.2d 713, 231 N.E.2d 297).

While Fein now attacks the constitutionality of section 597 of the Judiciary Law, at no time prior to judgment did he object to the composition of the grand or special juries with respect to the exclusion of individuals opposed to capital punishment. Even before the commencement of Fein's trial, his trial counsel, in opposing the District Attorney's request for a special jury, made clear that on Fein's behalf he would question the assembled panel of jurors as to conscientious scruples against capital punishment. It appears that during the selection of the special jury, Fein never registered any objection to the exclusion, without further inquiry, of jurors who opposed capital punishment as to whether their beliefs would prevent them from rendering a fair verdict. Such objection could have been raised (Code of Criminal Procedure Section 377(8); People v. Fernandez, 301 N.Y. 302, 93 N.E.2d 859). Fein's trial counsel could have made a challenge to the panel concerning the systematic exclusion issue resulting in an unrepresentative jury pursuant to section 363 of the Code of Criminal Procedure. Upon such challenge, the court could have...