United States v. Bryant, Crim. No. 68-11 S. D.
| Decision Date | 11 October 1968 |
| Docket Number | 68-12 S. D.,5235 N. D.,5236 N. D. and 5238 N. D.,Crim. No. 68-11 S. D. |
| Parties | UNITED STATES of America v. Clifton M. BRYANT and Albertina B. Bryant. UNITED STATES of America v. Benjamin M. BUTERA. UNITED STATES of America v. John Stobie ROGERSON. UNITED STATES of America v. David Arthur MOUNCE. UNITED STATES of America v. William TOMAH. |
| Court | U.S. District Court — District of Maine |
Lloyd P. LaFountain, U. S. Atty., Edward G. Hudon, Asst. U. S. Atty., Portland, Me., Marshall T. Golding, Appellate Section, Criminal Division, Department of Justice, Washington, D. C., for plaintiffs.
Roger A. Putnam, Howard H. Dana, Jr., Portland, Me., Gerald E. Rudman, Gene Carter, Lewis V. Vafiades, Albert H. Winchell, Jr., Bangor, Me., for defendants.
In these five criminal cases, consolidated for the purpose of determining the present motions, defendants have moved to dismiss the indictments on the ground that they were returned by grand juries constituted in violation of the laws and Constitution of the United States. Relying primarily on principles said to be announced in Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966), defendants contend specifically that the grand juries which indicted them were drawn from jury pools which were unrepresentative of the total community with respect to age, sex, geographical distribution and educational attainment.1 Under attack is the so-called "key man," or suggestor, system which has been used for a number of years in selecting jurors to serve on the grand and petit juries in this Court.
Upon the filing of their motions, counsel for defendants were given the opportunity to examine the records of the Clerk and the Jury Commissioner since 1960, including the questionnaires returned by prospective jurors, and also to interview the Clerk.2 An evidentiary hearing was then held at which the Clerk testified as to the method of jury selection in use at the relevant times, and defendants also presented two expert witnesses, a professor of political science and a "behaviorist," who had collaborated on a statistical analysis of several demographic variables in the jury pools from which were drawn the grand juries which returned these indictments.
The jury pools involved were constituted in January 1963.3 In selecting the members of the pools, the Clerk and the Jury Commissioner used the "key man" system, and conscientiously followed the jury selection procedures recommended in the 1960 Report of the Judicial Conference Committee on the Operation of the Jury System, which was approved by the Conference in September 1960. 26 F.R.D. 409 et seq. (1960). The following procedures were used:
(2) The names of the "key men" from each community were obtained from the current Maine Register. In most instances the town clerk was chosen, but if more than four or five names were being requested from a particular community, additional key men were selected from among the town manager, town treasurer, selectmen, and in some cases, the superintendent of schools, the postmaster or a minister. Sex was not a factor in the selection of key men, and approximately one-third of those chosen were women. In only a few instances was either the Clerk or the Commissioner personally acquainted with a key man.5
(3) Each key man was asked by letter to recommend four or five qualified prospective jurors from his community.6 The letter utilized in communicating with the key men merely set forth the statutory eligibility requirements.7 Unlike the form of key man letter suggested in the 1960 Judicial Conference Report, it did not request the selection of persons of "fair education," "intelligence," "good character," or high community "esteem." See 26 F.R.D. at 513-514.
(4) Except where a key man recommended more than five names or recommended someone in his late seventies or over, in which case the Commission felt that the individual might well be physically unable to serve when called, each recommended juror was sent a questionnaire requesting information relative to age, education, occupation, marital status, residence, citizenship, prior jury service, criminal record, English language literacy and any disability. He was also asked to list any objections he might have to serving on a jury. The questionnaire used was a printed form furnished by the Administrative Office of the United States Courts and was the same as the form attached as Exhibit 1 to the 1960 Judicial Conference Report. See 26 F.R.D. at 507-508.
(5) When the questionnaires were returned, the Clerk and the Commissioner eliminated the names of those prospective jurors who were not qualified for jury service under 28 U.S.C. § 1861 (1964), who were exempt from jury service by reason of 28 U.S.C. § 1862 (1964), or who were members of a class which had been excluded from service as jurors by Court order pursuant to 28 U.S.C. § 1863(b) (1964).8 The Commission then proceeded to "weed out" those who appeared to be too old or in bad health, and those, such as mothers of young children and sole proprietors of businesses, to whom jury service would represent a substantial personal or economic hardship. Of the remaining names, in the words of the Clerk:
The decision as to what names would be accepted was made by the jury commissioner and by me, and was based upon a number of considerations. It might be because of age; attempting to maintain some sort of balance between men and women, as for example, when four key men were contacted in a community and two or three submitted the names of only men, we would be more likely to select the women on the remaining lists; occasionally to try to maintain some balance so that a particular profession or occupation would not be overly represented; etc.
(6) The names finally chosen were placed in the jury wheels from which the jury panels for each Division were drawn at random in open court as needed.9
At the hearing, defendants' counsel conceded that the key man method of juror selection is not illegal per se;10 that there was no intentional or unintentional discrimination against or exclusion from the jury pools of any person or class of persons on account of race, religion, political affiliation or ethnic derivation; that there was no bad faith on the part of either the Clerk or the Jury Commissioner; and that there was no intentional or purposeful discrimination against or exclusion of any person or class of persons for any reason whatsoever. They contend, however, that the "necessary effect" of the procedures followed was "substantial" imbalance in the jury pools with respect to age, sex, geographical distribution and educational attainment. On the basis of the statistical analysis prepared by their experts, they allege that the grand juries which indicted them were drawn from pools which underrepresented young adults, women, the residents of certain counties, and the lesser-educated. They argue that, because of these disparities, the indictments must be dismissed as a matter of law.
There has been no shortage of cases in which defendants have attacked the composition of a jury panel because of alleged underrepresentation of various groups in the community. In the course of these cases, certain principles have become clear. Until the enactment of the Jury Selection and Service Act of 1968,11 Congress had not prescribed any particular method of jury selection in the federal courts. The method to be used in any particular court has rested "largely in the sound discretion of the trial court and its officers under the guidance of the pertinent statutes." Pope v. United States, supra, 372 F.2d at 723; Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414, 427 (3d Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 442, 100 L.Ed. 842 (1956).12 There is a presumption that jury officials discharged their duties properly. Pope v. United States, supra, 372 F.2d at 723; United States v. Austrew, 190 F.Supp. 632, 634 (D.Md. 1961), aff'd per curiam, 317 F.2d 926 (4th Cir. 1963); United States v. Valentine, 288 F.Supp. 957 (D.P.R. Aug. 20, 1968). The burden of proving illegal discrimination or exclusion is upon the defendants. Whitus v. State of Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Glasser v. United States, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Pope v. United States, supra; United States v. Cohen, supra, 275 F.Supp. at 740. However, it is not necessary for defendants to show that they are members of an excluded group or that the alleged imbalance actually prejudiced them. They may complain of disparities in the jury pool even though the composition of the particular grand jury drawn from the questioned pool is "unexceptionable." Thiel v. Southern Pacific Co., 328 U.S. 217, 225, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Rabinowitz v. United States, supra, 366 F.2d at 37 n. 1, 59 (5th Cir. 1966); Dow v. Carnegie-Illinois Steel Corp., supra, 224 F.2d...
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