United States v. Brandt

• Citation: 139 F. Supp. 349
• Decision Date: 29 July 1955
• Docket Number: Crim. No. 21076.
• Parties: UNITED STATES of America, Plaintiff, v. Joseph BRANDT et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

139 F. Supp. 349

UNITED STATES of America, Plaintiff, v. Joseph BRANDT et al., Defendants.

Crim. No. 21076.

United States District Court N. D. Ohio, E. D.

July 29, 1955.

Sumner Canary, U. S. Atty., Cleveland, Ohio, for the Government.

Yetta Land, Cleveland, Ohio, and Hymen Schlesinger, Pittsburgh, Pa., for defendants.

McNAMEE, District Judge.

In their motion to dismiss the indictment on the claim that the grand jury was unlawfully constituted, the defendants assert substantially the same grounds as appear in other Smith Act cases. Their grounds of attack may be summarized as follows:

1. That manual workers and Negroes were intentionally and systematically limited to a mere token representation on the jury lists.

2. That the jury officials failed to employ methods that would insure representation of a cross-section of the community on the jury lists.

No claim is or could be made that manual workers and Negroes were totally excluded from jury service in this court.

At the hearing upon the motion the defendants presented more than forty witnesses, including the clerk and commissioner. Taking the position that the defendants' evidence was not sufficient to make out a prima facie case, the Government presented no witnesses but was content to rely upon the testimony elicited upon cross-examination of the clerk and commissioner.

The system of selection, which has been in effect without change for a great many years, was designed to provide a fair representation of persons from nineteen counties of the Eastern Division of the Northern District of Ohio. These include highly industrialized centers such as Cleveland, Youngstown, Akron and Canton, as well as predominantly rural communities. To secure jurors from the counties outside of Cuyahoga, the clerk and commissioner send letters to postmasters, jury commissioners, mayors and other public officials and to some private individuals, requesting recommendations of names of persons possessing the qualifications of jurors. A form letter which is signed jointly by the clerk and commissioner is forwarded separately by each of them to different persons outside of Cuyahoga County who are considered to be well acquainted in their respective communities. The letter makes no reference to the type or character of persons to be recommended other than to express the desire of the jury officials to obtain "good jurors." Enclosed with the letter is a suggestion sheet which contains blank lines upon which to write the names, addresses, age and occupations of the persons recommended. At the top of the suggestion sheet appears the following:

"The following persons I consider qualified and nonexempt as jurors. (See reverse side for qualifications and exemptions)."

On the reverse side there is quoted Section 1861 of Title 28 U.S.C., defining qualifications of jurors, and Section 1862 of Title 28 U.S.C., which enumerates the classes exempt from jury service. When the suggestions of the sponsors are received by the clerk and commissioner the names received by each of them are listed upon separate sheets. From these lists the clerk and commissioner make selections of the persons by indicating their choice by blue and red marks opposite the names. While from time to time there are a few sponsors from Cuyahoga County, practically all the names of prospective jurors who reside in this county are selected by the clerk from the names of persons who have served as jurors in the Common Pleas Court of Cuyahoga County during the previous year. These selections are made from cards in the files in the office of the Cuyahoga County Jury Commissioner, which contain no information other than the names, addresses and occupations of the jurors. The Common Pleas Court obtains its jurors by selecting them according to key number from the list of registered voters of the county. From the names obtained from the Cuyahoga County jury list the clerk and commissioner again make selections by placing blue and red marks opposite the names. All the names selected by both methods are then placed on a so-called master list, and small cards bearing these names are alternately placed in the jury box by the clerk and commissioner. At the time the clerk and commissioner make their selections they have no information as to the race, creed or color of any of the persons chosen by them and no record has even been kept of the race or religion of any juror or prospective juror. An effort is made by the clerk and commissioner to obtain a territorial representation based upon the population of the respective counties. About forty per cent of the population of the area is in Cuyahoga County.

For the purpose of impanelling a grand jury, about one hundred names are drawn from the box. Approximately forty to fifty of those whose names are drawn are excused on the grounds of illness, disability, and because jury service would be an extreme hardship. From those not excused a grand jury of 23 persons is impanelled. This occurs about once a year. On various occasions throughout the year the same system is followed in drawings of names for petit jurors in civil and criminal cases.

The Negro population in Cuyahoga County is more than ten per cent. In the eighteen counties outside of Cuyahoga, Negroes constitute about 4.3% of the population, and for the entire Eastern Division of the Northern District of Ohio the proportion of Negroes is about seven per cent. According to the defendants, the proportion of manual workers is 59%.

It will be convenient first to discuss the claim of discrimination against manual workers. As noted above, no record has been kept of the race or religion of any juror, but the occupations of the prospective jurors appear on the sponsors' lists of recommendations, and since about four years ago this information has been placed upon the index cards in the clerk's office. In support of their claim of discrimination against manual workers defendants rely in large part upon statistical tables designed to demonstrate that disproportionate representation of this class on the jury lists was the result of a conscious purpose to discriminate. These tables were not offered in evidence as exhibits and the Government was afforded no opportunity by way of cross-examination to test the accuracy of the computations or the good faith and competency of those who compiled the statistical data. However, thesetables may be considered as argumentative compilations made from jury lists received in evidence which show the occupations of the jurors. The tables purport to show the proportions of manual and non-manual workers as classified by defendants on grand and petit jury panels and on the 1953 master list. This last mentioned list does not contain the names of any of the persons in the jury pool from which the members of the indicting grand jury or any of the grand juries for nine previous years were drawn. The names of the indicting grand jury were drawn from the box on September 23, 1953. It was not until some time in October, 1953 that the names of the persons on the 1953 list were placed in the jury box.

The tables submitted by defendants are inaccurate and unreliable. For example, Table VII is an analysis of the occupational status of 777 persons who were called for jury service on twenty-six petit jury panels. An examination of the typewritten lists containing these names discloses that the names of many jurors who served on more than one panel re-appear on the list several times. It is a fair estimate that instead of 777 persons of various occupations there were less than half that number of different persons who served on these panels. As a result of defendants' failure to make allowance for this repetition of names on the list, their computations of the proportions of manual and non-manual workers on the twenty-six panels present a statistical picture that is badly out of focus. These tables are based on the assumption that 59% of the working force is engaged in some form of manual labor. However, the classifications within this category are arbitrary and do not give effect to all the factors considered by the Census Bureau. Defendants' tables are unreliable for the further reason that they exclude from their computations about forty per cent of persons serving as jurors who were "housewives" or "retired men." It is a fair assumption that through marriage, housewives represent the same economic status and social outlook as their husbands and that the economic statuses and social viewpoints of "retired men" are related directly to their former employment. Yet no consideration of these factors is taken into account by the defendants. Their computations are limited to a determination of the occupational status of about sixty per cent of the jurors on the lists. However, even if defendants' computations be accepted as correct, the evidence does not establish a prima facie case of discrimination against manual workers. In United States v. Flynn, 2 Cir., 216 F.2d 354, 382, where the claim of discrimination was rejected, the proportions of manual workers on the three lists there referred to was in each instance less than the proportion of manuals on the lists in this court as computed by defendants. According to defendants' computations the proportion of manual workers on the indicting grand jury was 27.3%. This was not grossly disproportionate and furnishes no basis for an inference of discrimination.

Jury service is generally regarded as a burden on all who serve. This burden rests most heavily upon wage earners, whose compensation is determined by hourly rates of pay and upon manual workers generally. It is not surprising that in recognition of this fact fewer persons in this class were selected as prospective jurors. The logic of experience argues persuasively against the practice of calling large numbers of manual workers for jury duty. In his appearance before the Committee of the Judiciary of the 79th Cong...