United States v. Denno

• Decision Date: 21 April 1960
• Citation: 183 F. Supp. 514
• Parties: UNITED STATES ex rel. Pete POLLOCK, Petitioner, v. Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent.
• Court: U.S. District Court — Southern District of New York

183 F. Supp. 514

UNITED STATES ex rel. Pete POLLOCK, Petitioner, v. Wilfred L. DENNO, Warden of Sing Sing Prison, Respondent.

United States District Court S. D. New York.

April 21, 1960.

Nancy Carley, Jackson Heights, N. Y., for petitioner.

Isidore Dollinger, Dist. Atty., Bronx County, New York City, for respondent. Walter E. Dillon, Asst. Dist. Atty., Bronx County, New York City, of counsel.

METZNER, District Judge.

The relator, Pete Pollock, has moved by order to show cause for a writ of habeas corpus. Pollock was convicted in the County Court of Bronx County, New York, of murder in the first degree, and the conviction was affirmed by the Court of Appeals of the State of New York (People v. Pollock, 6 N.Y.2d 890, 190 N.Y.S.2d 700, 160 N.E.2d 920). Certiorari was denied by the Supreme Court of the United States on February 23, 1960, 80 S.Ct. 600.

The petition in support of the order to show cause states that:

"Pete Pollock was denied due process of law and equal protection of the laws when the trial court failed to comply with Section 366 of the New York Code of Criminal Procedure and disallowed his challenge to the Special Panel of jurors impanelled for his trial without proceeding to try the question of fact raised in his challenge, to wit: whether service on the panel was limited to jurors who had voted for convictions in the past and whether jurors who had voted for acquittals in the past were excluded therefrom."

The District Attorney of Bronx County opposes the application on the ground that there is nothing in the record of the proceedings to show that this contention was raised in the state court, and consequently the petitioner did not exhaust his state remedies in relation to the present claim.

The Judiciary Law of the State of New York (29 McKinney's Consolidated Laws § 749-aa) provides that the District Attorney in a criminal action may apply to the court to impanel a special jury, commonly known as a "blue ribbon" jury, where it is claimed that the subject matter of the indictment has been so widely commented upon that an ordinary jury cannot, without delay and difficulty, be obtained to try the issues. The District Attorney so moved in this case. This basis for securing a special jury has been sustained as constitutional by the Supreme Court. Fay v. People of State of New York, 332 U.S. 261, 271, 67 S.Ct. 1613, 91 L.Ed. 2043.

The affidavit submitted in opposition to the motion for a special jury denied that it would take a great deal of time to select the jury and therefore there would not be considerable delay in trying the case. The affidavit further stated that:

"The practice of District Attorneys requesting Special Panels or Special Juries in Capital cases is in my opinion a violation of the defendant's Constitutional rights. These so-called Special Juries or Special Panels are hand-picked jurors who have consistently voted for convictions. I defy the District Attorney to show me any juror in the Special Panel who ever voted to acquit a defendant. The only names that are put into the panel box are such jurors, namely, convicting jurors and not acquitting jurors."

The motion of the District Attorney was granted and a panel of special jurors was drawn.

At the opening of the trial, counsel for defendant requested permission to make a preliminary motion challenging the entire jury panel upon the grounds "that this is a special jury panel, which deprives the defendant of his constitutional rights to a trial by jury of his peers under both the New York State and Federal Constitutions." The District Attorney opposed the oral motion on the grounds that the statute provided for such challenges to be in writing, specifying distinctly the grounds constituting the challenge. Code of Criminal Procedure, § 363. However, a reading of the record indicates that the District Attorney did not press this objection. He asked that defendant's counsel specify the grounds of challenge.

Counsel for defendant then stated, without specification, that he renewed the opposition to the special jury upon the same grounds as were set forth in his papers on the motion for a special jury. Counsel for the defendant further stated that he was also objecting on the ground that a special jury "deprived the defendant of his rights under the Fourteenth Amendment of the United States Constitution, also to a fair and impartial trial by a jury of his peers, that the special panel necessarily operates to deprive the choice of members of the community, situated in the same economic class as himself."

The court noted that the parties had made their record on this point, denied the motion, and counsel proceeded with the selection of the jury.

After trial the defendant was convicted and an appeal was taken to the Court of Appeals. Point V of the defendant's brief before the Court of Appeals argued that the granting of the motion for a special jury was an abuse of discretion. After four pages of argument devoted to sustain the contention of abuse of discretion, the point was concluded with the following two paragraphs:

"As was stated in defendant's affidavit in opposition to this motion, a Special Jury violates defendant's rights to a jury trial of his peers under the Fourteenth Amendment to the United States Constitution. To lawyers practising in the criminal courts, it is well known that Special Jurors are `Convicting Jurors'.

"Defendant renewed his objection to the Special Jury at the trial itself (61). Defendant contends that the prosecution made no showing sufficient to entitle it to a Special Jury. That if the sole basis is that it is a Capital case, then the holding in People v. Hall, supra 169 N.Y. 184, 62 N.E. 170, be not applied to this case and that this Court, if necessary, change the position it has taken in the Hall case, so that the District Attorney be required to give good and sufficient reasons for a Special Jury in a capital case, which was not shown in this case."

The Court of Appeals affirmed the judgment of conviction. A motion was made by relator's present counsel, requesting the Court of Appeals to amend the remittitur to indicate:

"Whether the defendant's rights under the due process clause of the 14th Amendment to the United States Constitution were violated by the order of the trial court impanelling a special jury."

The remittitur was amended as follows:

"Upon the appeal herein there was presented and necessarily passed upon a question under

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