United States v. Brady

• Decision Date: 17 October 1942
• Docket Number: No. 1758.,1758.
• Citation: 47 F. Supp. 362
• Parties: UNITED STATES ex rel. JACKSON et al. v. BRADY, Warden of Maryland Penitentiary.
• Court: U.S. District Court — District of Maryland

47 F. Supp. 362

UNITED STATES ex rel. JACKSON et al. v.BRADY, Warden of Maryland Penitentiary.

No. 1758.

District Court, D. Maryland.

October 17, 1942.

William Curran, E. Paul Mason, Morton P. Fisher, and C. Arthur Eby, all of Baltimore, Md., for petitioners.

Douglas N. Sharretts and Joseph G. Finnerty, Asst. State's Attys., both of Baltimore, Md., and D. Heyward Hamilton, Jr., Asst. Atty. Gen. of Maryland, for respondent.

CHESNUT, District Judge.

In this habeas corpus case the three petitioners are Negroes who were indicted, tried, convicted and sentenced to be executed for first degree murder by the Criminal Court of Baltimore.Their appeal to this court to be released from their imprisonment is based on the alleged constitutional ground that in the selection of the Grand Jury which indicted them, and the Petit Jury which tried them there was racial discrimination against Negroes contrary to the provisions of the 14th Amendment of the Constitution of the United States.

The writ was issued on October 1, 1942, and made returnable on October 6th last.The respondent filed a formal answer denying that there had been any unlawful discrimination in the selection of the juries, and asserting that the petitioners had been accorded a fair trial with all constitutional rights.No formal traverse by pleading was filed to the answer.At the hearing here testimony was taken on two days, the petitioners being represented by four experienced counsel, and the respondent by two Assistant State's Attorneys of Baltimore City and one Assistant Attorney General of Maryland.After full consideration of the testimony and oral arguments and briefs of counsel, I have reached the conclusion that the writ must be dismissed on procedural grounds and also because the petitioners have not shown the existence of unconstitutional racial discrimination against Negroes in the selection of the juries.In accordance with the applicable Federal Rule Of Civil Procedure, rule 52,28 U.S.C.A.followingsection 723c, I make the following Findings of Fact:

1.The indictment was filed September 24, 1941; on September 26the defendants were arraigned and each pleaded not guilty; the trial judge, Samuel K. Dennis(Chief Judge of the Supreme Bench of Baltimore City) appointed three able and experienced lawyers to defend the defendants at public expense; on October 23, 1941 the trial began and on October 29, 1941 the jury rendered a verdict of guilty of murder in the first degree as to each of the defendants; motion for a new trial was made and on December 16, 1941 overruled by the Supreme Bench of Baltimore City, which, under the Maryland Constitution, Art. 4, § 33, has jurisdiction to hear such motions in criminal cases; on December 18, 1941 notice was given of appeal to the Court of Appeals of Maryland where, on June 17, 1942, the judgments were affirmed (Jackson v. State, 26 A.2d 815); and later the Governor of the State of Maryland fixed October 2, 1942 as the date of execution.

2.On October 1, 1942counsel for the petitioners submitted to the court a petition for habeas corpus which, on examination, was found to be insufficient in form as required by the applicable federal statute(28 U.S.C.A. § 454) and it was suggested to counsel that preferably the application for habeas corpus should be submitted to a Maryland State Judge.Later the petition, revised as to form and made more specific as to substantial averments, was re-submitted and the writ issued, after application to a State Judge had been refused by him, and the Governor of the State had granted a reprieve to one of the petitioners on account of his bad physical condition due to self-inflicted injuries.

3.The petition alleges racial discrimination against Negroes contrary to the 14th Amendment"in the respect that out of a colored population of approximately 20% of the total population of Baltimore City, only two jurors of the colored race were included in the array of more than 52 jurors submitted for the trial of the defendants' case; and that in the selection of the jurors for the general panels of juries for the trial of cases in Baltimore City the number of members of the colored race included thereon was so much less than the proportionate percentage of the colored population of Baltimore City as to amount to a discrimination and to be a denial of due process of law and equal protection of the laws to the petitioners."Counsel for the petitioners do not contend that the alleged discrimination exists in the written Constitution and laws of the State, but that it does exist in the practice now and long heretofore prevailing in the actual selection of juries by the Supreme Bench of Baltimore City.

4.The Maryland Declaration of Rights, Art. 5, provides "that the inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that law, * * *."The applicable statutory law with respect to the selection of juries in Baltimore City is contained in Article 51 of the Annotated Code of Maryland of 1939(general statutes of the State) and in the local laws for Baltimore City(Baltimore City Charter, 1938, §§ 687-709), and in rule 6 of the Supreme Bench of Baltimore City.By the local statutes and rules the method and procedure for the selection of juries is meticulously prescribed, but by section 709 the requirements "shall be construed as directory merely, and no indictment or presentment for any felony or misdemeanor shall be quashed, nor shall any judgment upon any indictment or presentment, whether after verdict, by confession or otherwise, be stayed or reversed, nor shall any challenge to the array of jurors be allowed because of any failure by the Judges or the Clerks, or the Sheriff, to comply with the provisions of law relating to the drawing of jurors in the City of Baltimore;".In brief, the statutory scheme is that the Judges of the Supreme Bench (eleven in number), or a majority of them, shall at a certain designated time "select fairly and impartially, and by the exercise of their best judgment, the names of 750 persons, or thereabout, qualified under the laws of this State to be Grand and Petit Jurors in the City of Baltimore."To assist them, section 688 provides that the City Collector shall furnish "a certified list of so many of the taxable male inhabitants, resident in the said City, as he may have been directed to furnish by the order of said Judges".From the list of 750 so selected the Grand Jury of 23 members is selected by the Supreme Bench for each term of court; and thereafter the names of jurors for the several jury courts in Baltimore City are drawn by lot.There are usually 7 jury courts sitting concurrently and a panel of 25 jurors is provided for each court, with provision for supplementing deficiencies in any court by unoccupied jurors assigned to other courts.Drawings by lot for each of the trial courts is commonly made every three weeks.

5.It will be noted that the list of taxable male inhabitants furnished to the Supreme Bench of Baltimore is merely to assist in the selection of 750 names and the Bench is not limited thereto in the selection.And by Art. 51, § 4, of the Maryland Code"no property qualifications shall be required in any juror."

Some years ago it was found by practical experience that the list furnished by the City Collector was unsatisfactory for use because not sufficiently specific with respect to the addresses and without sufficient information to enable the Bench to determine even the probable qualifications of the jurors under the requirements of Art. 51, which makes persons under 25 years of age ineligible, and grants exemptions to those over 70 years of age and to various other persons including schoolmasters, physicians, pharmacists and (by Art. 32, § 18) practicing dentists.To meet the difficulty the Supreme Bench adopted in practice a different method of selecting the 750 names, briefly as follows.A Jury Judge is appointed to ascertain preliminarily the qualifications of prospective jurors, and a jury clerk is appointed to obtain and furnish the names of persons to be examined as to their qualifications by the Jury Judge.From time to time the jury clerk selects names from the City Directory, the telephone directory and other sources considered reliable, and a summons is issued to the persons named to appear before the Jury Judge at a stated time to be examined touching his qualifications as a juror.Upon appearance the persons summoned are given a written questionnaire to answer.The inquiries so made are with respect to name, residence, age, citizenship, occupation, ability to read and write English, former jury service, former criminal convictions, if any, belief in the existence of a God, whether on relief or not, and what months of the year are most convenient for service; and what, if any, exemptions from petit jury service are claimed.When the questionnaire has been answered in writing the prospective juror then presents himself in person before the Jury Judge and may be further questioned or examined, after which the Jury Judge marks the name on the questionnaire as either accepted or rejected for prospective jury service.In this way the jury clerk acquires a so-called "service file" or reservoir of properly qualified jurors from which he submits for the approval of the Bench from time to time as needed, the list of 750 names, and the names of petit jurors to the number of 400 or 500 as may be needed from time to time are drawn by lot therefrom.

6.The contention that there is racial discrimination in the selection of the juries is based solely on the inference sought to be drawn from what is said to be a too small percentage of Negroes drawn for jury service in proportion to the number of white jurors.In support of this contention certain statistics have been submitted with respect to the number of the white and colored population of Baltimore...