299 N.Y. 126 | NY | 1949
Lead Opinion
On July 30, 1946, a Grand Jury, sitting with the County Court of Nassau County indicted the defendant for assault in the second degree and subsequently a trial jury found him guilty of that crime. The defendant is a Negro. Both before the trial and after it, he moved "for an order vacating the indictment herein found July 30, 1946 by the Grand Jury of Nassau County, on the ground that the said Grand Jury was unconstitutionally formed in that there was a systematic and intentional exclusion of Negroes from said Grand Jury". The Acting County Judge of Nassau County held a hearing on that motion and denied it (
Pursuant to statute, the list of grand jurors in Nassau County has long contained 600 names (McKinney's Unconsol. Laws, § 3813). From 15 to 60 vacancies which have occurred therein annually through death, removal from the county, and disability for age or physical condition have been filled each December by the County Commissioner of Jurors and the Board of Judges of the County out of 60 to 100 names taken by the commissioner from the county trial jury list (see McKinney's Unconsol. Laws, §§ 3802, 3813).
The case for the defendant rests upon two circumstances: (1) The Commissioner of Jurors of the County submitted to prospective jurors a questionnaire which required them to indicate thereon their color, sex, weight, height and color *130
of eyes and hair. (2) For a period found by the County Judge to have been "ten years or so" (
The first of these two circumstances was accounted for by the commissioner in these words: "Well, every juror that we qualify in Nassau County, the name is submitted to the Identification Bureau of the Police Department in Nassau County, to be checked against their files of criminal records, which comes from the F.B.I. office in Washington. * * * Sometimes we got eight or ten convictions against a fellow by the name of Harry Jones, all different people, all different places, at different times, so, in order to eliminate that, when the new questionnaires were printed I had this identification put in there, so when the Police Department reported to me that a person of such a name had a criminal record and his history was such and such, his hair was such a color, his eyes was such a color, and he was either a white man or a colored man or an Indian or a Chinaman or something, I can identify the man, there is no chance of confusion or mistake." This testimony of the commissioner was credited by the County Judge who saw and heard him, and that determination is for us the end of this part of the case, because we have here no power to deny the right of the trier of the fact so to believe a creditable witness (People v. Scheinman,
Hence we pass to the second of the two circumstances on which the defendant relies, i.e., no Negroes had been selected for grand jury service in Nassau County for a period of "ten years or so", as the County Judge found (
In 1946, when the indictment in question was returned, the Board of Judges of Nassau County was composed of the four Supreme Court Justices then resident in the county and the County Judge (see McKinney's Unconsol. Laws, § 3802). There is evidence, and the County Judge found, that some names of trial jurors were added to the grand jury list by the Board of Judges of their own motion and without submission thereof by the Commissioner of Jurors. (
The controversy is reduced, then, to a claim that the commissioner systematically and intentionally kept the names of Negroes off the lists of trial jurors from which vacancies on the grand jury list were filled each December. In respect of that reproach, the commissioner was not silent. He said: "Well, the only thing I can say on that, when I recommend them I don't know their color, I don't refer to their color in selecting the names. I mean, when I am selecting those names or getting those names out of the files or taking it from the files, I don't know what their color is or their religion or their political affiliations." This testimony, too, was credited by the County Judge who had the commissioner before him.
The issues thus decided have a background that remains to be noticed. The County Judge said: "Here it is beyond question that the petit jury list of 18,000 is chosen without discrimination, that Negroes and whites are placed upon it without any question of color, and that the Negroes from the trial jury list are constantly serving as trial jurors in the courts of this county. The grand jury percentage of the trial jury list of 18,000 is so small * * * that it would permit the choosing of only 3 men from the list out of 100 for grand jury service, and in the case of selecting 45 to make up the 600 for the *132
year 1946 the choice would be limited to only 1 out of 400." (
The conclusion of the County Judge was that no prima facie case of discrimination had been established. The Appellate Division unanimously affirmed. We cannot announce a contrary decision as matter of law on this record.
Other points, involving the sufficiency of the proof, the breadth of the prosecutor's cross-examination and the regularity of the verdict, are raised by the defendant. These have been examined and found to be without merit.
The judgment should be affirmed.
Dissenting Opinion
If the question here was whether those who chose this Nassau County Grand Jury had deliberately, consciously, and conspiratorially in the manner of the Ku Klux Klan, refused to let Negroes sit as grand jurors, I would, respecting the limits of our jurisdiction, have to agree that we are bound by the findings below that nothing of the sort was here proven. But that is not the question at all. We are bound, by the Federal Constitution as interpreted in Smith v. Texas (
Dissenting Opinion
In my view, the indictment against defendant, a Negro, cannot stand; as I read the record before us, it permits no conclusion other than that there was systematic and purposeful exclusion of members of his race from the Nassau County Grand Jury. (See, e.g., Patton v. Mississippi,
Traditional in our jury system is the concept that the jury, petit or grand, be a democratic and representative body drawn impartially from a cross section of the community to assure that it reflects the interest and viewpoints of all races, classes and groups. (See, e.g., Thiel v. Southern Pacific Co.,
Unquestionably, exclusion of qualified persons from service on a grand jury on the ground of either race or color invades the realm of the equal protection clause and impinges on basic rights. "Indictment by Grand Jury and trial by jury", the Supreme Court declared not long ago, "cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races — otherwise qualified to serve as jurors in a community — are excluded as such from jury service." (Pierre v. Louisiana, supra, p. 358.)
The facts and figures before us tell the story. Nassau County contains within its boundaries an appreciable Negro population, with a fairly heavy concentration in several of its towns. It is conceded that many Negroes were qualified (and that is demonstrated beyond peradventure, I suggest, by the circumstance that two Negroes were selected and placed on the grand jury list but a short time after the court below denied defendant's motion to set aside his indictment). In spite of all this, the sorry fact emerged at the hearing that no Negro had ever been called for service on that county's grand jury within the memory of witnesses or officials, a period of almost twenty years. That proof, particularly in the light of further evidence that each prospective juror was required to answer a question as to his "Color" in the qualifying questionnaire, made out a substantial prima facie case which the People, in my opinion, failed to meet. (See Patton v. Mississippi,
Any attempt to explain the Negro's complete and long-continued absence from the grand jury as a product of chance or accident, or as the result of heedlessness or inattentiveness, strikes me as not only unreasonable but as incredible. And, in any event, the thrust of the equal protection clause deprives such an explanation of either validity or force by imposing an active duty upon jury selection officials. We have been told in unmistakable terms that "What the Fourteenth Amendment prohibits is racial discrimination in the selection of grand *135 juries", and that it matters not whether the discrimination is "accomplished ingeniously or ingenuously" — actively by outright elimination on the ground of color, or passively by failure to take affirmative action to insure that the jury be democratically and representatively chosen. (See Smith v. Texas, 311 U.S.,supra, at pp. 131-132; Hill v. Texas, 316 U.S., supra, at p. 404.) In Hill v. Texas (supra), for instance, wherein the jury commissioners had "made no effort to ascertain whether there were within the county members of the colored race qualified to serve as jurors," the Supreme Court made it clear that those officials "thus failed to perform their constitutional duty * * * not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds." That attitude of indifference and complacency was deemed sufficient to point to unconstitutional exclusion and to require reversal of the conviction. "Discrimination", the court went on to say, "can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service."
It is no answer, as the majority opinion suggests, that the jury commissioner claimed that he was not motivated by any design to discriminate against members of the Negro race. Such testimony has been uniformly rejected on the ground that general protestations, bland professions, as to a lack of deliberate design, are insufficient in the face of figures establishing the total absence of Negroes from the jury list. (See, e.g., Norris
v. Alabama,
In sum, the record establishes that there was systematic and purposeful exclusion of Negroes, and that, as a result, defendant was denied the equal protection of the laws guaranteed by the Federal Constitution. Since his objection was timely, I see no alternative but reversal of the conviction and setting aside of the indictment. [See
LEWIS, CONWAY and DYE, JJ., concur with LOUGHRAN, Ch. J.; DESMOND and FULD, JJ., dissent in separate opinions.
Judgment affirmed.
