United States v. Forest, 27236.

• Decision Date: 22 January 1954
• Docket Number: No. 27236.,27236.
• Citation: 118 F. Supp. 504
• Parties: UNITED STATES v. FOREST et al.
• Court: U.S. District Court — Eastern District of Missouri

118 F. Supp. 504

UNITED STATES v. FOREST et al.

No. 27236.

United States District Court E. D. Missouri, E. D.

January 22, 1954.

Harry Richards, U. S. Atty., L. E. Broome & B. Franklin Taylor, Jr., Sp. Assts. to Atty. Gen., and William D. English, St. Louis, Mo., for plaintiff.

Sydney L. Berger, Evansville, Ind. and R. L. Witherspoon, St. Louis, Mo., for Wm. Sentner.

Mary Kaufman, New York City, for Dorothy Rose Forest and Robert Manewitz.

James Frederick Forest and Marcus Al Murphy, appearing in their own behalf.

HARPER, Judge.

The defendants' challenge to the array and motion to quash the venire and jury list and to dismiss the petit panels drawn therefrom for the trial is based on the contentions that the jury officials (1) intentionally and systematically limited the representation of manual workers to a mere token representation; (2) intentionally and systematically limited the representation of negroes on the jury list; (3) disregarded their affirmative duty to employ methods that would obtain a cross-section of the community; and, (4) have drawn a panel for this case, the composition of which is such as to deny defendants a fair and impartial trial.

To support their contentions, the defendants filed an offer of proof based upon an analysis of the jury panels drawn in this court for the past five years; an analysis of information taken from questionnaires relating to the cards of the prospective jurors in the jury wheel when the panel for this case was drawn, and questionnaires of prospective jurors who were excluded from the jury wheel during the years 1952 and 1953; an analysis of information taken from the jury panel drawn for the case; certain data and publications of the Bureau of Census with respect to 1950; an affidavit of William P. Gruner, Federal Jury Commissioner for this district; an affidavit of James J. O'Connor, Clerk of this court; an affidavit of William Sentner, one of the defendants; and the testimony of James J. O'Connor, Clerk of this court.

The government stipulated as to the accuracy of the information contained on the work sheets from which the various analyses were made, with the exception of the designation of census classification, and limited their proof to the offer of supplemental affidavits by William P. Gruner, Federal Jury Commissioner for this district, and James J. O'Connor, Clerk of this court.

The law is well settled that before a jury panel can be quashed on the grounds of the exclusion of a race or group, there must be intentional and systematic exclusion, and such facts must be clearly shown. Frazier v. U. S., 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; and Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181.

The question before the court is, therefore, one of fact as to whether there is any basis for the contentions of the defendants.

The defendants did not produce any evidence as to who prepared the charts which purport to analyze the prior jury panels, the panel drawn for this case and the questionnaires of prospective jurors in the jury wheel on December 21, 1953, when the last panel for this case was drawn, and the questionnaires for prospective jurors whose names were excluded from the wheel during the years 1952 and 1953. So the value of these charts to determine the facts in this case are at most questionable. In view of the government stipulation, the charts with respect to the analysis of various data other than the occupation of the jurors and prospective jurors are of great value, but insofar as these charts pertain to the occupation of those individuals, it is very questionable, to say the least, that they are of any value at all. It is these charts which reflect the occupation of the individuals that form the sole basis for the defendants' first attack on the panel. No effort was made to classify these individuals according to religion, social, political or geographic status, but they are only classified as to occupation. The defendants in their arguments with respect to the motion stated that they were not concerned with an analysis of the persons involved with respect to their economic status, but were relying entirely upon the classification of individuals by their occupations, and such classification upon which they rely was based upon a classification system used by the Bureau of Census in its 1950 census taking. Such classifications are inevitably arbitrary, and they do not conform in this instance to the system of census classification used since before this classification is used by the Census Bureau much additional information is available to the Census Bureau with respect to the individuals that was not available information from which the charts in this case were made.

In addition, as stated above, the classification in this instance was made by some unknown person or persons whose qualifications to make such, even on the limited information available to them, is unknown to this court.

The twelve general classes of the 1950 census used in making the charts break the population as follows: Professional, technical and kindred workers; farmers and farm managers; managers, officials and proprietors, except farm; clerical and kindred workers; sales workers; craftsmen, foreman and kindred workers; operative and kindred workers; private household workers; service workers, except private household; farm laborers, unpaid family workers; farm laborers except unpaid and farm foreman; laborers except farm and mine; and occupations not reported.

An examination of the defendants' exhibits consisting of the Bureau of Census publications which were used to obtain the above categories and to obtain additional information is very enlightening. It discloses that in the various classifications used, in most instances there are many occupations listed that fall under the particular classification. To accept this breakdown as a reasonable classification as to economic status would compel the conclusion that everyone listed under, for example, the so-called managerial group, had the same viewpoint and mental attitude toward life as every other one. It would compel the court to say that railroad and Pullman conductors, floor walkers in stores, building superintendents, tug boat captains, such civil servants as elevator inspectors, jailers and morgue keepers, union officials and organizers, officials of various types of organizations, including political parties, and a great variety of managers and proprietors, regardless of whether they run a one-man business or a multi-million dollar corporation, had the same viewpoint and mental attitude toward life. The same application is true with respect to so-called manual workers, for we find there included such diverse types of workers as the most highly skilled machinist and millwright, unskilled car washers or grave diggers, welders, hospital attendants, carpenters and bootblacks.

These same Bureau of Census pamphlets further disclose that in the St. Louis metropolitan area wherein a substantial part of the citizens of this division of the district reside, that of the males in the experienced civilian labor force at the time of the 1950 census, 18% of the managers, officials and proprietors except farm, had less than a $2,500 total income in 1949, while on the other hand, 18% of the craftsmen, farm and kindred workers had at least a $4,500 income in 1949.

The above admirably illustrates the impossibility of applying this breakdown as a reasonable and rational one for other than census purposes and could be of little, if any, help in the problem presented this court with respect to the challenge to this jury panel. The analysis, however, of the individuals involved, even on this unsatisfactory and distorted basis, refutes the claims of the defendants, for the charts prepared on such basis disclose that many more than a mere token representation of manual workers were included.

The testimony worthy of belief is convincing that the officials who are in charge of securing jurors did not intentionally and systematically limit or exclude the representation of any occupation group, or limit the representation to mere token numbers. The testimony of James J. O'Connor, the Clerk of this court, his affidavit and supplemental affidavit, and the affidavit and supplemental affidavit of William P. Gruner, the jury commissioner, show that they obtained the names of prospective jurors from the following sources: Clerks of the circuit and county courts, circuit judges, superintendents of public schools, chief highway engineers, probate judges, postmasters, court reporters, personal friends and acquaintances, former jurors, Negro ministers, Negro newspaper men, University Club roster, members of the St. Louis Chamber of Commerce (firms), and bank employees.

The letter sent by the jury commissioner to the members of the St. Louis Chamber of Commerce is very informative as to the care used in seeking the names of prospective jurors. I especially refer to that paragraph which reads as follows: "I would deem it a great favor if you would send me the names of — men and women of your organization, either active or retried, but in good health, who could serve. A cross-section of your employees would be admirable." This letter went to many firms that employ thousands of people.

In addition to the above sources within the last year, in excess of 200 names of prospective negro jurors were obtained from the records of the Election Board in the city of St. Louis. The jury commissioner...