State v. FORERState v. FORER
This is a joint motion by 37 defendants to dismiss four indictments charging rioting, unlawful assembly and assault upon a police officer. Their motion attacks the methods used by the jury commissioners in selecting the grand jury which indicted them, contending
This challenge to the grand jury array is made under R.R. 3:3-2(b) which provides:
“(b) MOTION TO DISMISS. If a defendant has been held to answer a complaint charging an indictable offense after the grand jury by which he is indicted has been impanelled, a motion to dismiss the indictment may be based on objections to the array.”
The complaints against defendants were filed in August 1966, and the grand jury which indicted them was sworn and impanelled in January 1968. It seems clear that R.R. 3:3-2(b) cannot be used as the vehicle for this motion since the complaints were made before the grand jury was impanelled. This motion should have been made before the January 1968 grand jury was sworn. R.R. 3:3-2(a). The obvious purpose of R.R. 3:3-2(a) is to compel an attack on the array of grand juries to be brought before they are sworn and begin to function. If an attack is permitted after they are sworn all indictments brought in by them, and proceedings taken in reliance thereon by way of trial or plea, would be subject to challenge. No sound reason is presented for relaxing the rule under R.R. 1:27A; however, if it is ultimately decided that I misconstrued R.R. 3:3-2(a) and (b), I will consider the defendants’ motion on its merits.
Attacks on the array of grand juries are today being made with great frequency throughout the country and in New Jersey. While the factual patterns differ, the basis of the attacks are similar to the one being made in this case. The generally accepted principles of law applicable to such attacks are that where there is a systematic exclusion
“* * * We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which `single out’ any class of persons `for different treatment not based on some reasonable classification.’ Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866 [870];” (at pp. 59, 60, 82 S.Ct., at p. 161)
When a party challenges the array of a jury, grand or petit, the burden is upon the challenger to establish an unlawful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Smith, 102 N.J. Super. 325, 346 (Law Div. 1968). There is a presumption that the jury commissioners acted within the scope and authority of their office. Pope v. United States, 372 F.2d 710, 723 (8 Cir. 1967); State v. Stewart, 2 N.J. Super. 15, 23 (App. Div. 1949). The means and methods used to select jurors must be designed to insure that they are impartially drawn from a cross-section of the community. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), rehearing denied 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186. When the formation of a jury is attacked, courts test the source from which the jury list is comprised and not the composition of any given panel. Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). A jury panel need
It is against this backdrop of legal principles that I turn to the uncontradicted facts dealing with the selection of grand juries in Middlesex County. Annually, the jury commissioners secure a list of approximately 25,000 names from the Middlesex County voter registry lists. These names are proportionately selected at random from every section of the county. A questionnaire, approved as to form by the New Jersey Supreme Court, is then sent to the persons selected. R.R. 1:29-2. When returned these questionnaires are screened by the jury commissioners to determine qualifications pursuant to
The thrust of defendants’ attack is two-pronged. Firstly, they charge the jury commissioners improperly limited their selection of names to the voter registry lists; and secondly, they had no right to exercise any discretion in selecting names for the grand jury list.
The use of only the voter registry lists, where information on race and occupation does not appear, is a sounder constitutional method of selection because it presents no opportunity for discrimination. Any attempt to obtain names from outside sources to insure inclusion of all races, colors, creeds and groups, opens the door to a charge of deliberate discrimination in favor of such groups selected.
The use of voter registry lists has long been approved in the federal courts. United States v. Kelly, 349 F.2d 720, 778 (2 Cir. 1965), certiorari denied 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). Registration is available to all qualified persons and the use of voting lists does not discriminate against an identifiable racial, social or economic group. United States v. Bowe, 360 F.2d 1, 7 (2 Cir.), certiorari denied 387 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966); United States v. Birell, 276 F. Supp. 798, 822 (S.D.N.Y. 1967). In fact the Jury Selection and Service Act of 1968,
I turn now to defendants’ second argument that the jury commissioners improperly exercised their discretion in selecting a “better type juror” for the grand jury — they contend that in so doing they wrongfully discriminated against “blue-collar, hourly-paid wage earners.” They flatly charge that not a single person of that classification was included in the list of 200 grand jurors submitted for the January 1968 court session. From this premise they argue that since defendants are mostly, if not all, Puerto Ricans, and since (presumably) most Puerto Ricans are of the class or type discriminated against, the grand jury was illegally constituted and these indictments should be dismissed. I disagree.
In order to deal with defendants’ arguments it is necessary to define the term “blue-collar, hourly-paid wage earners.” The term “blue-collar” is defined in Random House Dictionary of the English Language (1966 ed.), as “of or pertaining to wage earning workers who wear work clothes or other specialized clothing on the job, as mechanics, longshoremen, miners, etc.” I see no special significance in the term “hourly-paid wage earners,” as used by defendants, because there is no logical distinction between wage earners paid by the hour, day or week. Is this kind of group or class sufficiently identifiable so that it can be said their systematic exclusion from a grand jury, as in cases of race, color, or creed, violates a defendant‘s constitutional rights? I do not think so.
Even if there were substance to defendants’ attempted classification, the foundation of facts upon which it rests is made of sand. Defendants’ facts are derived from the jurors’ answers to the questionnaires. Question No. 9 asks “What is your occupation?” and the juror is given a line three inches long on which to answer. It is the jurors and not the jury commissioners who, in a word or two, classify their occupations. A random selection of answers from the grand jurors on the list for the January 1968 court session runs as follows: “personnel manager,” “retired teacher,” “maintenance supervisor,” “businessman,” “bookkeeper,” “geologist,” “bank clerk,” “buyer,” “credit manager,” “housewife,” “I.B.M. operator,” “salesman,” “adv. artist,” “postal inspector,” “technician,” “banker,” “homemaker,” “engineer,” “librarian.” It is obvious that these occupations represent a true cross-section of working people from various categories of our economic life. How are we to know whether they are properly classified as “blue-collar, hourly-paid wage earners?” Defendants reach their conclusions on pure speculation. It is significant that these
Defendants also lay great stress on a letter survey counsel made of 1,000 grand jurors whose names were on the grand jury lists from 1962 through May, 1968.1
The letter was mailed to only 898 grand jurors. For some unexplained reason the letter inquiries were not sent to 102 of the grand jurors. Only 787 were received and I assume 111 were returned undelivered to counsel. 368 of the 787 actually served on grand juries. Only 361 (45.8%) of the 787 replied, and of those replying only 157 served as grand jurors. 2.6% of those who served indicated they were Negroes; none indicated they were Puerto Ricans. The fallacy of defendants’ arguments that these figures show an exclusion of “blue-collar, hourly-paid wage earners” is readily seen. The inquiry letter only sought to ascertain the number of Negroes or Puerto Ricans who served. Why was it so limited? Why was no effort made to ascertain their specific occupations or income? Such an inquiry might have been more relevant. For example, when a grand juror states he is a “banker,” does this mean he is an officer in the bank, or merely a teller? If he indicates he is a “maintenance supervisor,”
It is important to face up to defendants’ charge that jury commissioners may not exercise any discretion in formulating the list of grand jurors. They contend all names, after being screened for qualifications and exemptions, should be put in one list, and from that list the grand and petit jurors should be selected at random. Again, I do not agree.
The statute,
Using the returned questionnaires as a basis for their selection of the grand jury list, the jury commissioners were merely following the statutory directive to prepare two jury lists “having regard to the just distribution of jury service among those persons qualified therefor * * *.”
Grand jurors have the heavy burden of deciding, in secret, whether a person should be charged with a crime; a presentment made against a public official, or an investigation made into public affairs, corruption, syndicated crime, etc. The petit jury‘s sole function is to determine issues of fact in civil and criminal cases, and to determine the guilt or innocence of a defendant charged with a crime. The functions of both are highly important, carry great responsibility and are necessary to the sound administration of justice and our form of democracy.
The New Jersey Supreme Court has recently recognized the important function played by grand juries in our system of jurisprudence. In the case of In re Addonizio, 53 N.J. 107 (1968), it approved their right to go on a fishing expedition when investigating public corruption without showing probable cause to subpoena records which the police must do to obtain a search warrant under the Fourth Amendment. It paid tribute to the importance of their function when it said:
“It must be assumed that a grand jury is not an officious meddler. It never was our rule that a grand jury may explore only specific charges already made. * * * The grand jury may investigate upon its own suggestion, and in addition to indictments for crime, it may return `presentments’ upon conditions of public interest even though no violation of a penal statute is found.” (at p. 124)
The need for qualified jurors has long been recognized by those concerned with the problem. The consensus is that “the jury list should represent as high a degree of intelligence, morality, integrity, and common sense as possible.” (Recommendation, Judicial Conference of the United States, 26 F.R.D. 409, 425 [1961]). When this commendable goal is joined with the equally desirable aim that the jury list be representative of a cross-section of the community, they would appear to be inherently in conflict. This is so because unless the jury commissioners are given the discretionary right to be selective, the desired results cannot be reached. If we concede that no system of jury selection will be perfect, then it stands to reason that jury commissioners must have the power to choose qualified jurors even though some loss results in the cross-section character of the jury composition. What the courts must be vigilant to stop are discriminatory practices which would defeat the ultimate objective of securing juries capable of dealing effectively with the complex controversies presented to them. A.B.A., Standards Relating to Trial by Jury (Tentative Draft, 1968), pp 51-57.
I therefore conclude that the jury commissioners properly exercised their judgment in formulating the grand jury lists, and their actions did not result in a systematic
For the reasons expressed defendants’ motion is denied.
Notes
September 27, 1968 Mr. James W. Cassidy 69 Wilk Rd. Edison, N.J. Dear Mr. Cassidy:
We are making a survey of Grand Jurors who served in Middlesex County during the past five or six years in order to ascertain which of them, if any, are Negro or of Puerto Rican descent. Our investigation indicates that you served on one of the Grand Juries during that time. We would appreciate your advising us by noting below and returning via the enclosed envelope, as to whether you are Negro, Puerto Rican, or from neither ethnic or racial grouping.
Thank you for your anticipated courtesy and co-operation.
Very truly yours, Place check mark where _______________________ appropriate: JACK WYSOKER, ESQ. NEGRO ___________________ 313 STATE STREET PUERTO RICAN ____________ PERTH AMBOY, NEW JERSEY OTHER ___________________