Rabinowitz v. United States

"Of the 1,985 persons on the 1959 list, 1,428 are carry-overs from the 1953 list and 557 are new names. Of the 117 Negroes on the list, 113 are carry-overs and 4 are new. Of the 1,868 persons on the list who are white or who did not designate their race on their questionnaires (there are 5 of the latter), 1,315 are carry-overs and 553 are new. Hence, of the new names added to the list in 1959, 553 are white or of unknown race and 4 are Negroes.

"A total of 2,338 persons returned questionnaires in 1959, and of these, 353 were not placed on the list for one reason or another. Of these 353, 297 were white, 53 were Negro and 3 did not indicate their race (although one of the 3 has been unofficially identified as a Negro). Of the 353, 196 had appeared on the 1953 list, and 157 were new names. Broken down by race, 150 whites were new names and 147 had appeared on the 1953 list, 7 Negroes were new names and 46 had appeared on the 1953 list, and all 3 unknowns had appeared on the 1953 list. Hence, Negroes comprised 7 of the 157 new names in this group.

"Of the 2,338 questionnaires returned, 1,624 were carry-overs from the 1953 list and 714 were new contacts. Of the 1,624 carry-overs, 1,465 were whites or of unknown race and 159 were Negroes (taking account of the person unofficially known to be Negro, the count would be 1,464 and 160). Of the 714 new contacts, 703 were white and 11 were Negro. Hence, a total of 170 Negroes returned questionnaires in 1959, or 7.3% of those returned (171 taking account of the person unofficially known to be Negro), 159 (or 160) being carry-overs and 11 being new contacts.

"The 353 persons not placed on the 1959 list were omitted for the following reasons:

"A lot of the additional names were the result of my own acquaintance, insofar as they were a result of suggestions by my friends whose opinions and integrity I valued. They were names of people who were active in other capacities, some of them in a civic life, a business way, some of them came from lists of church members. I carried around in my pockets for the several months we were at work a little book and a pad of paper on which I could record peoples' names as they happened to occur to me, or as I happened to see them to check and be sure that they were in the jury, on the jury list. Some of them came in personal conversations, and some of them I invited and received suggestions about, invited information from people who were residents in the county or counties involved."

"Q. Now in making this selective list, of course, you had to rely on people you knew?

"Q. You don't know any Negroes in places like Twiggs County, Bleckley or Decatur or any of those?

"A. Yes, some in those counties, but not a great many, certainly. My acquaintance is generally predominantly, of course, with the White race."

"Q. And would you tell us what type of person, as best you can recall, that you made inquiry of, to obtain names of prospective jurors?

"A. Well, this, of course, was in 1959 and some time has elapsed, but I inquired naturally of people that I knew and people whose reputation I knew. So, quite undoubtedly, I was confining myself to people whose integrity and character I respected and whose judgment I would have respect for. For that reason they were people mostly whose paths I happened to cross occasionally, in a business way or in connection with other activities in the State that I've been interested in, including civic work and various things of that sort; not exclusively so. Quite a good many of them, of course, were business contacts that I had.

"Q. Did you contact people of all races for prospective jurors?

"A. Yes. Let me say, of course, that my contacts were heavier, of course,Page 41with the white race because my association was greater with that particular group; but certainly there was no effort to concentrate exclusive (sic) on any one segment of the population. I attempted to be as broad as I could in my inquiries."

"Q. * * * Did you tell them what you meant by competent Negro jurors?

"A. I feel sure I did. I undoubtedly recited the qualifications to them, including the statutory qualifications plus our desire here to have jurors of integrity and good character and intelligence.

"A. * * * there are a lot of people who can read and write and can't understand the kind of proceedings that go on in a courtroom, and we tried to avoid that. * * * We wanted an outstanding blue ribbon jury list of people who we thought would perform very good service and we did take their character into consideration or tried to; we tried to take their intelligence into consideration as indicated by these standards, and perhaps even went a little further than that; but those were factors that inevitably entered into our thinking * * *.

"Q. Well, how would you account for the vast disparities that have just been shown up here, relating to Twiggs, Hancock, Crawford and Jasper Counties; how would you account for this disparity if you did not set out to make some distinctions?

"A. Very easily, I think. Unfortunate as it may be, I think the Negro community in those counties does not qualify on the very grounds that we set up, of intelligence, integrity and ability to serve on those grounds alone.

"Furthermore, may I add this; furthermore, my acquaintance, and unfortunate again as this may be, but my acquaintance has been with people in other groups admittedly; so, if there were any errors here, they certainly are of omission and not of commission. No effort was made to exclude anyone. * * *

"Well, I think anybody who reads the papers and knows about the educational level of our State would have to admit, reluctantly if he wants, that there is no question but there is infinitely more illiteracy among the Negro group, which is regrettable and unfortunate; but I think we must admit that there aren't numerically as many of them that are qualified in terms of the same educational standards."

"A. I wanted to be sure I got some Negroes in the jury box.

"Q. When you say you wanted to be sure you got some Negroes, did you have in mind any particular number?

"I wrote a good many letters to people that I knew, and I know a good many people in the Macon Division and in each and every one of the counties that I used as sources. Some were public officials, some just friends of mine.Page 42I did the same thing here in Macon. I think I acquired probably more names here in Macon than anyone else did, and I had a number of sources here in Macon from whom I got names."

"Q. And would that account for the fact that there aren't as many Negroes, or would it be part of the reason that there aren't as large a proportion of Negroes on the jury list as there are in the population at large?

"A. I don't know whether that would account for it or not.

"Q. Well, can you think of any other reason that might account for it?

"A. I'm not trying to account for it. I got all of the names I could and I put them in the box. I don't undertake to account for it.

"Q. You don't feel that you are under any obligation to account for it?

"A. I did. I put some in there, and I think everyone I put in there is well qualified.

"Q. I have no doubt. The question is whether there are many who are well qualified that you left out. Are there?

"A. I found out the names and put them in the box. I didn't make any effort to get acquainted with all the Negroes in the Middle District of Georgia, No sir.

"Q. Did you make an effort to get acquainted with any of the school teachers in the Middle District?

"Q. Mr. Cowart, did you make any contact with groups of persons in Macon in order to secure the names of persons in Macon, fraternal and church organizations?

"Q. You didn't speak to any one from the NAACP, did you?

"A. No, not that I recall. I can recall the people I did talk to, and I may not even be able to recall all of them, but I didn't go to any group, if that is what you are talking about.

"A. I got some of their rosters, their lists of names, yes.

"Q. You didn't ask for the list of names of any of the Negro organizations?

"A. I sent Mr. Doyle, my deputy, into each one of the counties in the Macon Division for the purpose of looking over the jury list and knocking off the people who had died and the people who had moved away or become too aged and infirm to serve, and then to acquire additional names for us to send questionnaries to. He went into each one of the 18 counties in the Macon Division."

"A. Well, I went first, generally, to the county courthouse. I took the list with me of the present box, and I talked to the various officials in the county, asked them first of all, from their knowledge of the people in their community, to help me mark off of our list those who had deceased or moved away, and then to give me the names of additional jurors to whom we might send questionnaires. I talked to other people, but I generally went to the county courthouse and talked to the various people there first, because they, in my judgment, knew the people in the community perhaps better than anyone else.

"Q. * * * During all of the time that you visited in the various counties then I take it you did not speak to a single Negro?

"Q. Are you in any way familiar with the standards to be applied in choosing members of the jury list?

"A. I am familiar with the statutory standard requirements.

"A. Well, I have my own idea of what a qualified juror ought to be.

"A. Well, he ought to be a person that is of good character, a person that is intelligent, that can understand the cases that are tried in court.

"Q. Would you say from your general knowledge of the area that there are Negro ministers in each one of these counties?

"Q. And that there are some Negro business men, store keepers, morticians, perhaps garage keepers, in each one of these counties, would you say?

"A. I'm not personally acquainted with them, but I am sure there must be.

"Q. But you didn't make any effort to speak to any of those to solicit names of their acquaintances as possible persons to be included on the list?

"In the particular circumstances of this case, the addition of only four new Negro names in the compilation of the 1959 jury list and the failure during the period involved to make further affirmative efforts to add additional Negro names to the list leads us to suggest that this Court reverse the convictions in the exercise of its supervisory power."

"This further analysis shows that in the 1959 revision, 1,428 names from the 1953 list were carried over and 557 new names were added, making up the total of 1,985 names on the 1959 list, 117 of whom were Negroes. Of the 557 new names, only four, or .7% were of Negroes. Without in any wise disparaging the sincerity and good faith of the members of the jury commission in their purpose and objective of obtaining a fair representation of Negroes on the list, it cannot but be recognized that this stark disproportion reflects deficiencies in their methods of attaining their objective which culminated in a result that we feel cannot be ignored.

"* * * A related factor which we feel appropriately should be considered is that the trial juries involved in these cases were drawn from a box which had not been revised over a period of four years — from 1959 to 1963."

"Not all of the considerations described above apply to the indictments. There were in fact five Negroes on the grand jury which returned them. Consequently, the failure to take remedial action does not appear to have had a substantial impact upon its composition. Moreover, the Government feels that the Court's supervisory function may be adequately discharged by reversal of the verdicts of the petit juries — on which Negroes in fact did not serve and whose decisions had a more immediate impact upon the appellants

24

— and by reform of the jury box in the future.

"

24.

Cf. Cassell v. Texas, supra, 339 U.S. [282] at 301-302 [70 S.Ct. 629,94 L.Ed. 839] (Jackson J., dissenting); United States ex rel. Goldsby v. Harpole, 363 [263] F.2d 71, 80-81 (C.A. 5, 1959)."

"The right to a trial by jury is guaranteed to every citizen of West Virginia by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, personsPage 45having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, `The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter.' It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called `packing juries.'"

"Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government. For `It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.' Smith v. [State of] Texas,311 U.S. 128,130[61 S.Ct. 164,165,85 L.Ed. 84].

"Jurors in a federal court * * * are to be selected by the clerk of the court and a jury commissioner. * * This duty of selection may not be delegated. [Citations omitted.] And, its exercise must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a `body truly representative of the community', and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted. That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may one by one lead to the irretrievable impairment of substantial liberties."

"It is our thought that a uniform standard of minimum qualifications should be adopted for all Federal jurors. It should provide for wide qualifications and few exceptions, leaving to the district judges a degree of discretion in determining whether or not certain individuals or classes of persons should, at particular times, be subject to jury service. For example, there is the case of farmers at harvest time. You could leave them off, or out of the wheel."¹⁷

"This bill would establish uniform qualifications of jurors in the Federal courts. Under existing law, the qualifications of jurors in these courts are the same as those prescribed for jurors in the State in which the Federal court is sitting (28 U.S.C. 411). The bill would substitute for this provision a uniform body of qualifications."

"The enactment of this bill would be a desirable step toward uniformity and simplicity of administration. * * It is suggested that a uniform system of selecting and qualifying jurors in the Federal courts is far superior than 48 different systems. * * *

"The amendments proposed by the Committee are for the purpose * * to remove any temptation on the part of a judge to exclude from jury service by a sweeping edict any particular class of persons, since the whole purpose of the bill is to broaden the base from which jurors may be chosen."

"Mr. President, the amendment is designed to eliminate whatever basis there may be for the charge that the efficacy of trial by jury in the Federal courts is weakened by the fact that, in some areas, colored citizens, because of the operation of State laws, are prevented from serving as jurors. Thus the argument has been made that no jury trial should be permitted in civil rights cases, even in a proceeding for criminal contempt, because such cases concern relationships between the races, and in the South they would be tried by an all-white jury.

"Mr. President, the cases which will be brought under any civil-rights bill will be prosecuted in Federal courts. There is no reason why Congress should not modify Federal law so as to safeguard against discrimination on the basis of race, color, or creed, inPage 49the selection of jurors who are to serve in Federal courts.

"We believe the amendment we have now incorporated in the RECORD will accomplish at least three important and long overdue objectives:

"First. It will establish reasonable and uniform qualifications for jurors serving in Federal courts, eliminating the 48 different sets of qualifications which now obtain. This is in complete accord with the generally accepted principle that Federal rules should govern Federal practice.

"Second. It will place the selection of jurors entirely in the hands of the Federal courts, thus avoiding practices under State law that, in effect, may systematically exclude citizens from jury duty in Federal courts on account of race or color.

"Third. Through the accomplishment of the above two objectives, it will confer another civil right — the right to serve as a juror — on a large segment of colored citizens, who now, in practice, may be prevented from doing so."

"Thereby it establishes a uniform system in Federal courts all over the United States, so that there can be no possible discrimination with respect to anyone because of his race or color. Is that correct?

"Mr. O'Mahoney: The Senator is correct. * * *."²⁷

"Any citizen of the United States who has attained the age of twenty-one years and who has resided for a period of one year within the judicial district, is competent to serve as a grand or petit juror unless —

"(1) He has been convicted in a State or Federal court of record of a crime punishable by imprisonment for more than one year and his civil rights have not been restored by pardon or amnesty.

"(2) He is unable to read, write, speak, and understand the English language.

"(3) He is incapable, by reason of mental or physical infirmities to render efficient jury service."

"The following persons shall be exempt from jury service:

"(1) Members in active service in the armed forces of the United States.

"(2) Members of the Fire or Police departments of any State, District, Territory, Possession or subdivision thereof.

"(3) Public officers in the executive, legislative or judicial branches of the government of the United States, or any State, District, Territory, or Possession or subdivision thereof who are actively engaged in the performance of official duties."

"* * * It is significant to point out that if the amendment is accepted, it will for the first time add an additional civil right, and we will have uniform rules of procedure throughout the United States in the selection of Federal jurors. I think this is a significant step forward."

"But we have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. `The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt.' Schwegmann Bros. v. Calvert Distillers Corp.,341 U.S. 384,394-395[71 S.Ct. 745,750,95 L.Ed. 1035]; see also Mastro Plastics Corp. v. [National] Labor [Relations] Board,350 U.S. 270,288[76 S.Ct. 349,360,100 L.Ed. 309]; United States v. Calamaro,354 U.S. 351, n. 9, at 358 [77 S.Ct. 1138,1143,1 L.Ed.2d 1394]."

"(a) A district judge for good cause may excuse or exclude from jury service any person called as a juror.

"(b) Any class or group of persons may, for the public interest, be excluded from the jury panel or excused from service as jurors by order of the district judge based on a finding that such jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.

"(c) No citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color." (Tit. 28, U.S.C.)

"§ 1864.Manner of drawing; jury commissioners andtheir compensation

"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.

"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court.

"Such jury commissioner shall be a citizen of good standing, residing in the district and a well known member of the principal political party in the district, opposing that to which the clerk, or his deputy then acting, may belong. He shall receive $5 per day for each day necessarily employed in the performance of his duties.

"The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, until the box shall contain at least 300 names or such larger number as the court determines.

"This section shall not apply to the District of Columbia,"28 U.S.C.A. § 1864.

"The object is to devise a system that is fairly representative of our variegated population, exacts the obligation of citizenship to share in the administration of justice without operating too harshly upon any section of the community, and is duly regardful of the public interest in matters outside the jury system."

"If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man's purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. Such misconception I believe to be the real situation on the record before us."⁵⁶

"The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure — `a course of conduct' — which would not `operate to discriminate in the selection of jurors on racial grounds.' Hill v. [State of] Texas (1942),316 U.S. 400,404[62 S.Ct. 1159,1161,86 L.Ed. 1559]. If they failed in that duty, then this conviction must be reversed — no matter how strong the evidence of petitioner's guilt. That is the law established by decisions of this Court spanning more than seventy years of interpretation of the meaning of `equal protection.'"

"But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination `in the selection of jurors on racial grounds.'"

"When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination."

"Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who know no Negroes as well as from commissioners who know but eliminate them. If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand."

"In Patton v. [State of] Mississippi,332 U.S. 463,469[68 S.Ct. 184,187,92 L.Ed. 76], this Court declared, in a unanimous opinion, that `When a jury selection plan, whatever it is, operates in such a way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.' This is essentially the situation here."

"* * * 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. Discrimination 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."

"* * * S. 18 is only in keeping with the modern age and with the basic concept in our law that the jury must be drawn from a cross-section of the community, that the jury must be a body truly representative of the community."

"It seems to me that one of the things that we ought to strive for in the jury system is to have the juries drawn from the widest possible cross-section of the people. * * * But you would start with the basic proposition [under the proposed statute] that, with certain very obvious exceptions, everybody, every citizen, ought to be subject to jury duty. That, we think, is important both because it gives you juries chosen from the widest possible cross-section of the people and gives you a fairer sampling of the people, and also, secondly, because it distributes the obligations [of jury service] more equitably and prevents them from falling too heavily on any one group."

"What I am trying to do there is to broaden the scope of the jury commission, so that it may, under the direction of the judge, get a cross-section of the entire community, and have them serve as jurors."⁵⁹

"But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. [Citations omitted.] Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. `Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation.'"

"1. In order that grand and petit jurors who serve in United States district courts may be so drawn as to be truly representative of the community, the sources from which they are selected should include all economic and social groups. From whatever sources drawn, those chosen should possess as high a degree of intelligence, morality, integrity, and common sense as can be found by those who make the selection.

"2. The choice of specific sources from which names of prospective jurors are selected must be entrusted to the good faith of the clerk and jury commissioner, acting under the direction of the district judge, but should bePage 61controlled by the following considerations:

"(a) The sources should be coordinated so as together to include all groups in the community;

"(b) Economic and social status, including race and color, should be considered only to the extent necessary to assure that there is no discrimination on account of these factors;

"(c) When women are eligible by law for jury service, they should be selected and called to serve in the Federal courts;

"(e) Unsolicited requests of persons who seek to have their names placed upon jury lists and unsolicited recommendations of names should not be encouraged; and

"(f) In determining the parts of the districts from which jurors are to be drawn, the courts should bear in mind the desirability of conserving the time of jurors and preventing exorbitant travel expenses to the Government."

"What we are up against, Judge Knox, is that we represent people of the various States, and it is not going to be easy to get popular consent to establish a Federal procedure with regard to jurors in a State different from that which the people of the State are accustomed to in their States."

"The same considerations which have led Congress to establish uniform rules of procedure in civil and criminal cases suggest uniform qualifications in the selection of jurors. ThePage 62present requirement of conformity to State law leads to some absurd results. * * * It seems wise to permit the judge to adapt the exemptions to the needs and customs of the local community."

"The judges of the Federal courts, through the Judicial Conference, undertook in recent years to develop a general program to increase the efficiency of the Federal courts and to mold them into a unified and integrated system.

"The provisions of S. 18 are part of the general policy that rules and standards of the Federal courts shall be uniform and shall be derived from acts of the Congress rather than from the State statutes. S. 18 was proposed to establish uniform qualifications of jurors in the Federal courts. * * * Senate bills 17, 18 and 19 have been offered to the Congress to enable it to carry out further the policy it has already approved of authorizing uniform rules and standards in Federal courts."

"The primary proposal, Senate 18, establishes for the Federal courts, uniform qualifications for jurors called to serve in those courts. It thus frees the Federal courts of the present requirement that in selecting jurors they must follow the qualifications prescribed by the laws of the State where the Federal district court sits. The proposed change would make all adult citizens eligible for both grand and petit jury service except those who have been convicted of a felony or misdemeanor involving moral turpitude, or who lack knowledge of the English language or who have disqualifying physical or mental infirmities. It exempts from service members of the armed forces on active duty, and it permits those who have served as jurors within a year, or who are public officers of the United States or of the States to claim exemption.

"Under its broad provisions, women are eligible for jury duty to the same extent as men. There will thus be made available for this important civil duty, great sections of the community, many of them excellent and willing citizens, who heretofore have been excluded from juries by the exemptions and disqualifications that still exist in many of the States. The committee of judges found at least 68 general classes of exemption of this sort, covering so wide a range of business, professional, and trade groups that they inevitably prevent the calling of a jury that is truly representative of the community, and they often limit jury duty to those who are least qualified to serve. Discretion would be vested in the judge to excuse from jury service those whose service would cause undue hardship."

"This bill simply adopts the present framework of the general jury commission system as it prevails in other Federal courts, and furnishes the means and the method for compiling an efficient list of qualified jurors.

"It [the bill] puts the jury commission, which, as you know, consists of the commissioner and the clerk of the court, or his assigned deputy, under the direct control and supervision of the senior district judge. That is very important. If that power exists today, it is only by implication."

"In my committee's survey of metropolitan districts, and even in some of the rural areas, it was found that somewhat comparable conditions prevail. Discrimination existed in some localities. This related to social, political and racial differences, and the committee had to conclude that jurors should not be chosen haphazardly in any section of the country, and that the intelligent selection of jurors for service in the courts of the United States is not only eminently desirable, but necessary."

"Senate 17, dealing with the jury commission, is designed to supplement and effectuate the qualifications stated in S. 18. It makes definite an agency of judicial administration that has been for many years in an uncertain and ill-defined condition in the Federal statutes. Fundamentally, it places the ultimate responsibility for the direction of jury selection squarely upon the presiding district judge, who, because of his intense interest in the efficient and just decision of cases, is by all standards best qualified to supervise it.

"Under the court's direction, a jury commission, consisting of the clerk and one other commissioner appointed by the court, are to choose from the eligible citizenry, `without reference to party affiliation' those qualified persons `who in their opinion are intelligent, honest, fair minded, of good reputation and capable of rendering satisfactory service,' and to keep suitable records regarding them. At least 300 of the names thus selected will be put in a wheel or box for drawing by lot each time a panel of jurors is needed. The bill provides that in selecting names, the jury commission may require the persons under consideration to answer a questionnaire, or to respond to a personal interview to determine whether or not they are qualified.

"These procedures have been found to be extremely valuable in preventing the unnecessary calling of persons who are not eligible or who will, in any event, be excused because of the necessities of their occupation, their financial condition, or in the public interest. * * *"

"Mr. President, the amendment is designed to eliminate whatever basis there may be for the charge that the efficacy of trial by jury in the Federal courts is weakened by the fact that, in some areas, colored citizens, because of the operation of State laws, are prevented from serving as jurors. Thus the argument has been made that no jury trial should be permitted in civil rights cases, even in a proceeding for criminal contempt, because such cases concern relationships between the races, and in the South they would be tried by an all-white jury.

"Mr. President, the cases which will be brought under any civil-rights bill will be prosecuted in Federal courts. There is no reason why Congress should not modify Federal law so as to safeguard against discrimination on the basis of race, color, or creed, in the selection of jurors who are to serve in Federal courts.

"We believe the amendment we have now incorporated in the RECORD will accomplish at least three important and long overdue objectives:

"First. It will establish reasonable and uniform qualifications for jurors serving in Federal courts, eliminating the 48 different sets of qualifications which now obtain. This is in complete accord with the generally accepted principle that Federal rules should govern Federal practice.

"Second. It will place the selection of jurors entirely in the hands of the Federal courts, thus avoiding practices under State law that, in effect, may systematically exclude citizensPage 68from jury duty in Federal courts on account of race or color.

"Third. Through the accomplishment of the above two objectives, it will confer another civil right — the right to serve as a juror — on a large segment of colored citizens, who now, in practice, may be prevented from doing so."

"Thereby it establishes a uniform system in Federal courts all over the United States, so that there can be no possible discrimination with respect to anyone because of his race or color. Is that correct?

"* * * It is significant to point out that if the amendment is accepted, it will for the first time add an additional civil right, and we will have uniform rules of procedure throughout the United States in the selection of Federal jurors. I think this is a significant step forward."

"On July 31, I joined in amending the O'Mahoney jury-trial amendment so as to make every 21-year-old citizen of the Nation eligible to serve as a grand or petit juror:

"On page 3, a new section 153 was added, as follows:

"Sec. 153. Section 1861, title 28, of the United States Code is hereby amended to read as follows:

`Any citizen of the United States who has attained the age of 21 years and who has resided for a period of 1 year within the judicial district, is competent to serve as a grand or petit juror unless:

`(1) He has been convicted in a State or Federal court of record of a crime punishable by imprisonment for more than 1 year and his civil rights have not been restored by pardon or amnesty.

`(2) He is unable to read, write, speak, and understand the English language.

`(3) He is incapable, by reason of mental or physical infirmities to render efficient jury service.'

"This amendment makes uniform throughout the United States the law relating to Federal juries."

"I read to the Senate today telegrams from all four Federal judges in the State of Tennessee, which show that, so far as my State is concerned, this charge is not substantiated. The pending amendment, however, as modified by the Church amendment, would amend existing Federal law respecting the qualifications of citizens to serve on United States court juries, so as to eliminate the discriminations, wherever such exist, with respect to opportunity and duty in connection with service on Federal court juries."

"I do not count myself among those who are cynical about the capacity of citizens in any section of the country to rise to the challenge of one of the highest responsibilities of free men —Page 69the preservation of law and a just social order.

"If I wish to avoid cynicism, so also do I want to avoid the attitude of easy optimism. In this connection, I refer again to the most important action we have taken in adopting the amendment offered by the distinguished Senator from Idaho. The adoption of this amendment holds for me a double significance: not only does it insure that trials will be conducted before juries composed of talesmen selected from all citizens in the judicial district, but it enlarges the civil rights of citizens who may have heretofore been excluded from jury service under State law."

"As I see it, what the amendment does is to establish a lower standard for service of jurors in Federal courts than exists in State courts. It eliminates a provision that persons who are incompetent to serve as jurors in State courts are incompetent to serve as jurors in Federal courts. That provision is stricken from the law. The amendment would have the law read that anyone can serve as a Federal juror who has not committed a crime, who can merely write or speak or read the English language, and who has been a resident of the district for a year. The amendment eliminates all other qualifications that a State may prescribe. By doing so, it seems to me there will be a different standard for jury service in a Federal court than in a State court, and that standard will necessarily be lower rather than higher.

"The O'Mahoney amendment, as now drafted, has two parts. First, it seeks to define who is eligible to be selected as a juror; second, it seeks to require a jury trial in contempt cases, before a court can punish for a criminal contempt of court in a civil-rights case.

"When the O'Mahoney amendment strikes out the provision, now in Federal statutes, that no person not eligible under State law can serve on a Federal jury, the amendment constitutes one more encroachment on State responsibility, in that under the amendment a citizen who has been determined under State law to be ineligible to sit on a jury in a State court may be eligible to sit on a Federal jury. Furthermore, since the amendment does not extend to the operation by which the pool of potential jurors is initially selected, it will be ineffective."

"I may say that there are certain weaknesses in the Church amendment. Although it removes the disqualification that those who are incompetent to serve on State grand and petit juries are incompetent to serve on Federal juries it is still a fact that the general procedure and practice of selecting Federal juries will not be changed in all probability. Nothing in the amendment compels an affirmative change in the practice of selecting juries, so that the likelihood is that few Negroes will actually be called to serve on juries."

"Speaking for my colleagues who oppose this amendment, let me say we have never questioned the fact that Negroes serve on Federal juries. Indeed, we could not question that fact, for the telegrams abundantly demonstrate it.

"But with the exception of the telegram from the judge of the easternPage 70district of Tennessee and the telegram from the judges of the middle and western districts of North Carolina, all the other telegrams say no more than that Negroes do serve on Federal juries — which we are quite willing to admit.

"I suggest to my good friend, the Senator from Wyoming, that the critical point is not whether Negroes occasionally serve on Federal court juries — as of course they do. Instead, the critical point is whether, in the light of the restriction now placed on jurors, by reason of their having to be qualified as State jurors before they can serve as jurors in the Federal courts, and by reason of the practices which exist in wide areas of the country, the number of Negro jurors in those areas, chosen without discrimination because of race or color, constitutes the same percentage of the total number of jurors chosen there as the total number of Negro citizens 21 years of age or over in those areas constitutes in respect to the total number of citizens 21 years of age or over.

"Again, with deep humility, I respectfully suggest to my good friend, the Senator from Wyoming, that the telegrams, with the exception of the three on which I have just commented, miss the point.

"Mr. President, no amount of rhetoric is going to make it appear that throughout the Nation, Negroes are called for jury duty in the proportion their numbers bear to the total adult population. They simply are not, and I think the RECORD is clear to that effect.

"No one has denied that in many areas of the South in the Federal courts Negroes do serve on juries. I for one certainly do not deny that in certain Federal districts in the South Negroes are called to serve on juries in the proportion their numbers bear to the total adult population. But, Mr. President, I do not think any Member of the Senate is so naive as to think that such a situation exists in many other districts in the South, and perhaps in the North as well, where the provisions of the bill are badly needed.

"Therefore my first objection to the pending amendment is that it is merely permissive, and that to be effective it must be mandatory. It should require the nondiscriminatory selection of jurors in proportion to the population within the district, without discrimination on account of race or color.

"A little while ago a telegram was read on the floor of the Senate from a very distinguished southern Federal judge, who pointed with some pride to the fact that in his district jurors were selected on the basis of what the distinguished Senator from Illinois [Mr. Douglas] has referred to as the blue-ribbon jury selection system, a system which has much in its favor, a system which is used in the eastern district of Pennsylvania, but a system which almost inevitably results in a discriminatory jury, so far as race and color are concerned.

"What happens? As the distinguished Federal judge said in his telegram, the jury commissioner goes about the district and talks with bankers, merchants, professional people, and other leading citizens in the district, and he obtains a list of names of individuals, white and colored alike, who are then selected for the jury panel.

"I am confident that as a result of the practical experience of all of us, we know very well that a jury selected on that basis will not be proportionately representative of the citizens of the district without regard to race or color. I suggest that unless strong mandatory language is written into the proposed jury-trial amendment, preferably in connection with section 1864, we shall have done nothing morePage 71than to remove a qualification. That is good, but unless we put in place of that qualification a requirement for the equitable, fair, and just selection of jurors in proportion to their representation throughout the district, without concern for race or color, I fear that we shall have done very little to help the situation.

"If the Senator will permit me to reply at that point, in our colloquy of about an hour ago I did not contend that Negroes did not sit on juries in Federal courts. Certainly they do. I am saying that those are largely token cases. Until the Senator produces the kind of telegrams which have been produced by the distinguished Senator from Tennessee and the distinguished Senator from North Carolina, I say, with all due deference and humility, that that kind of letter does not bear on the point which I have been discussing."

"It has been said that perhaps a few colored people would be included in the list. Let me say that normally the list of names is drawn up, and then a questionnaire is sent to each person whose name is on the list. After the answers to the questionnaire are received, either the clerk or the Federal judge makes the determination. Then the names go into the jury wheel. If there is no proportionate representation, it is not likely that many Negroes will be selected. It is proper for us to ask whether many Negroes will be selected unless some method of selection based on proportionate representation is used. Without such a method, Mr. President, how many Negroes are actually likely to serve on the juries?"

"The Church amendment does not deal with this major defect.

"It has been asserted in debate that one of the many objections to jury trial is that in certain States the bias against Negro voters leads to jury lists which are not properly representative of the community and weight juries with white persons who share the prejudices of a given locality.

"The Church amendment does not cure that defect any more than does the existing law that it is a criminal offense to discriminate against Negroes in the selection of jurors."

"Finally, Mr President, we have been told that jury trials are inappropriate in civil rights cases, even in a proceeding for criminal contempt, because such cases concern relationships between the races, and in the South they would be tried by all-white juries. Whatever basis there may have been for this charge, under the original amendment, there is none for it under the amendment as now modified. For the modified amendment establishes reasonable and uniform qualifications for jurors serving in Federal courts, eliminating 48 different sets of qualifications which now obtain. This is in complete accord with the generally accepted principle that Federal rules should govern Federal practice. Thus, the selection of jurors has been placed entirely in the hands of the Federal judges, in accordance with the procedures established by Federal law, so that any practices under State law that may, in effect, systematically exclude citizens from jury duty in Federal courts on account of race or color, arePage 72avoided. It should be noted, too, that the modified amendment not only constitutes a safeguard against discrimination on the basis of race or color, in the selection of jurors who are to serve in Federal courts, but it also will result in conferring another civil right, the right to be tried by a representative jury, upon all citizens. I know that jury service is a duty, but to serve as a juror is also an important right, one that will be extended by this amendment to many citizens who now cannot serve as jurors in the Federal courts."