United States ex rel. Chestnut v. Criminal Ct. of City of NY

• Decision Date: 05 May 1971
• Docket Number: No. 717,Docket 35650.,717
• Citation: 442 F.2d 611
• Parties: UNITED STATES of America ex rel. Otis CHESTNUT et al., Appellants, v. CRIMINAL COURT OF the CITY OF NEW YORK, George F. McGrath, Commissioner of Corrections of the City of New York, and Frank S. Hogan, District Attorney of New York County, Appellees.
• Court: U.S. Court of Appeals — Second Circuit

442 F.2d 611 (1971)

UNITED STATES of America ex rel. Otis CHESTNUT et al., Appellants, v. CRIMINAL COURT OF the CITY OF NEW YORK, George F. McGrath, Commissioner of Corrections of the City of New York, and Frank S. Hogan, District Attorney of New York County, Appellees.

No. 717, Docket 35650.

United States Court of Appeals, Second Circuit.

Argued April 13, 1971.

Decided May 5, 1971.

Basil R. Pollitt, New York City (Sanford M. Katz, New York City, of counsel), for appellants.

David Otis Fuller, Jr., Asst. Dist. Atty. (Frank S. Hogan, Dist. Atty. New York County, Michael R. Juviler, Asst. Dist. Atty., of counsel), for appellees.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Petitioners, appealing from the denial of a writ of habeas corpus, have fashioned a wide-ranging challenge to the constitutionality of the New York County (Manhattan) grand jury selection system as it operated in 1964.

Appellants were prosecuted and convicted for criminal contempt upon the recommendation of the Second August 1964 Grand Jury, for refusing to answer questions put to them by that grand jury. Their primary defense at trial was that the jury was unrepresentative of the population of the local community in several respects, and hence that the prosecution denied them due process and equal protection of the law. Extensive factual hearings were conducted concerning ground jury selection practices. Petitioners' convictions in the New York City Criminal Court were unanimously affirmed by the New York Court of Appeals on the ground that the departures from perfect representativeness demonstrated below did not result from unconstitutional exclusionary practices. People v. Chestnut, 26 N.Y.2d 481, 311 N.Y.S.2d 853, 260 N.E.2d 501 (1970) (Fuld, Chief Judge).

Appellants' habeas corpus petition raised substantially the same claim of unrepresentativeness. On October 5, 1970, Judge Tyler denied the petition without conducting a hearing. We affirm.

I.

The grand jury under attack was convened to investigate serious civil disturbances that had broken out in Harlem during the preceding month. Petitioners were called to testify and granted immunity from any prosecution related to the occurrences under investigation. The grand jury requested simple "yes" or "no" answers to a series of questions concerning three targets of the investigation and suspected plans to instigate rioting by sniper fire. Two of the five petitioners requested a judicial ruling on the relevance and legality of the questions. A Justice of the Supreme Court, New York County, declined the request on the ground that petitioners were ably represented by counsel. Petitioners then refused to answer the questions, and the grand jury directed the district attorney to file informations charging criminal contempt. These informations were later filed in the Supreme Court.

After an unsuccessful attempt to remove the prosecution to the federal courts, see Chestnut v. New York, 370 F.2d 1 (2d Cir. 1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1355, 18 L.Ed.2d 439 (1967), a hearing was held by Justice Murtagh of the Supreme Court on petitioners' charge that the grand jury selection process as administered in Manhattan resulted in the unconstitutional exclusion of significant portions of the population qualified for jury service.¹ The evidence developed at that hearing disclosed that grand jury service, unlike petit jury service, was entirely voluntary. Citizens were invited rather than summoned to participate. Solicitations to place one's name on the grand jury list, which in 1964 numbered approximately 2,000, were periodically mailed to persons selected at random from the county petit jury list. In 1964, however, no grand jury invitations were sent to potential petit jurors under 35 years of age, or over 65. No more than a third of the addressees responded to these letters, and many of those who did answer affirmatively later withdrew upon learning that, contrary to their assumption, grand jury service was not compulsory. The remaining prospective jurors were interviewed by a Deputy County Clerk, and an investigation was made to uncover any prior criminal record, outstanding judgments or pending litigation.² Although former Judiciary Law § 596(3), not repealed until 1967, required that grand jurors must own property worth at least $250, the jury clerks testified that they had ceased to enforce this requirement no later than 1960 on the assumption that anyone with clothes on his back had assets of over $250. It was, however, the practice to exclude welfare recipients from both grand and petit jury service.³ The names of persons accepted as grand jurors were then added to the grand jury list in the next annual cumulation.

The hearing also disclosed that the grand juror selection system resulted in the underrepresentation, when compared with the general population, of certain ethnic and economic groups. Thus, blacks comprised 1.65% of persons on the grand juror list from which the Second August 1964 Grand Jury was selected, although at the time approximately 24% of the total population of New York County between 21 and 70 years of age was black.⁴ Puerto Ricans comprised 0.3% of the jury list, compared with approximately 12% of the population. "Blue collar workers" — a loose classification based on the petitioners' own statistical analysis — comprised 1.2%⁵ compared with 47% of the New York County labor force.

II.

Petitioners' argument that they were denied due process and equal protection by the mere unrepresentative composition of the 1964 grand jury list may be intuitively appealing in its simplicity but we find it logically and legally untenable. Such an unrepresentative body, appellants assert, cannot fulfill the democratic ideal of interposing the judgment of neutral laymen representing a cross-section of the local community between the decision of a state's prosecutor and the actual initiation of a criminal proceeding. Few will deny that such an ideal underlies the modern institution of the grand jury. Recent legislative developments in the selection of both federal and New York grand jurors reflect the vitality of the goals that petitioners articulate.⁶ Federal courts, in the exercise of their supervisory powers over federal jury selection, have repeatedly struck down systems which arbitrarily exclude significant sectors of the local community. E. g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (exclusion of day laborers) (petit jury); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946) (exclusion of women); United States v. Zirpolo, Nos. 18, 137-42 (3d Cir. Dec. 3, 1970) (underrepresentation of women). Sitting as a federal court reviewing a state system, however, we are not at liberty to impose upon the State of New York our own views on which method we believe to be the ideal for grand jury selection. Our power is limited to determining whether the particular selection method chosen by New York and under review by us violated petitioners' rights to due process and equal protection either because they were called to testify before a constitutionally unrepresentative grand jury or because their subsequent prosecution was initiated by one.⁷

III.

Addressing ourselves first to the due process claim, we note at the outset that the Supreme Court has repeatedly held that a state may, without violating the Constitution, dispense with a grand jury altogether and initiate criminal prosecutions solely upon the prosecutor's unilateral decision to file an information. Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884); Kennedy v. Walker, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1949); Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).⁸

We do not, however, rest our decision on this ground. Cf. Beck v. Washington, supra, 369 U.S. at 546, 82 S.Ct. 955 (assuming arguendo that a state which resorts to the grand jury process must furnish an impartial grand jury). The grand jury not only may check a prosecutor's decision to proceed against a defendant, but may undertake investigations and make formal accusations on its own initiative. To the extent that a grand jury once utilized not only vetoes prosecutions, but initiates them, a constitutional requirement that the jury be capable of impartiality would not be inconsistent with the principle enunciated above, that the state was not under a constitutional mandate to utilize a grand jury system in the first instance. The petitioners have nonetheless failed to demonstrate that the Second August 1964 Grand Jury was unable to act fairly and impartially. Petitioners speculate that persons who volunteer for grand jury service commonly possess authoritarian personality traits which predispose them to pay undue heed to the prosecutor and to initiate proceedings against persons who may strike them as suspicious or "criminal-type" individuals. But simple willingness to render public service may sufficiently explain a citizen's propensity to volunteer, and petitioners have presented no concrete evidence to support their darker conjecture.

As to the ethnic and economic imbalances described above, petitioners offer even less reason to suspect any resultant partiality. There is no apparent ground for assuming that a grand jury deficient in the various underrepresented groups would be unduly sympathetic to the prosecutor. That Chestnut (alone among the five petitioners) was a Negro, or that all the petitioners were under 35 years of age, is relevant only to the over-simplistic and unsupported assumption that grand jurors predominantly of one race or those over 35, cannot provide a fundamentally fair hearing for persons of another race or generation. See Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947) ("we are not ready to assume that * * * differences in occupation degenerate into a...