# Petition for A Writ of Certiorari — Chestnut v. Criminal Court of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1397%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 856 ## Text Iw THE wees Court uf — haan AUG 2 1971 Unitep STATES ex el. Oris Cuestwvr, ren Brown, STEPHEN . Martinor, ELLEN SHALLIT nal Levi Lavus, Petitioners, _ Criminal. Covurr or THE Crry or New-York; ~GeEorcE F. McGratu, Commissioner of Corrections of the City of New York and Frank 8. Hocan, District Attorney of New York County, -— 5 _ Respondents. PETITION F OR A WRIT OF CERTIORARI TO THE © UNITED STATES COURT OF APPEALS -. FOR THE SECOND CIRCUIT. Bast R. Pout. ee 52 Sidney Place Brooklyn, N: Y. 11201 Sanrorp M. Karz , “ 30 East 42nd Street New York, N. Y. 10017 Metvin L. WuLr American Civil Liberties Union Foundation 156 Fifth Avenue’ - New York, N: Y. 10010 Pavut CHEVIGNY _ | New York Civil Liberties Union 84 Fifth Avenue _'New York, N. Y. 10011 Attorneys for Petitioners oe NS SNR TIRE LS HEC snieed . nientinidenatddieatiteiaiaattin ateitaienial E. eR SEAVER, CLERR . . . nnn . . . . - = @ . . . Se | » Opinions Below .......... : : ikon Jurisdiction : cae Questions Presented . Statutory Provisions Involved Statement of the Case meeatae for Granting the Writ | Coxcxusion Ascansx A (Opinion: of the Court: of Appeals for the Second Cireuit in United States ex rel. Chestnut et al. v. Criminal Cowirt of the City of New York, et al., i Docket No. 35,650, May 5, 1971) ..... ‘la 7 E -z/ Appenpix Bo ee : _ (Opinion and order of the District Court for the Southern District of New York in United States _ ex rel: Chestnut, et al. v. Criminal Court af the City of New York, et al. (70 Civ. 2942 HRT), entered October 5, 1970, and opinion on rehearing entered November 4, 1970) . : ) 15a ‘ - “PAGE APPENDIX Cc (Opinion of the United States Court of ‘penta for the Second Circuit, in United States ex rel. Otis Chestnut, et al. v. Criminal Court of the City of New York, et al. (Docket No. — decided September 18, — patience Peniniamsendaetngicpinnanciegntpie 26a. hbieliae D _ (Opinion dated August 6, 1970 of Judge Robert P. Anderson in the United States Court of Appeals for the Second Cireuit-in United States ex rel. Otis Chestnut, et. al. v. Criminal Court ofthe City of New York, eé al. (Docket No. 35209), denying ‘second application for rehearing of order staying District Court bail Order) _...1....2....2..ccesceclececeeseeeeeesees 28a APPENDIX E ‘(Opinion dated August 3, 1970 of Judge Robert — P. Anderson in the United States Court of Appeals — . for the Second Céreuit in United States ex rel. ' Otis Chestnut, et al. v. Criminal Court of the City of New York, et al. (Docket No. 35209), denying’ first application for rehearing of* order staying : District Court bail order) .................... enclcaidena a ® Appenpix F (Opinion dated June 4, 1970 of the Court of Ap-’ “ peals of the State of New York in People v. Otis -Chestnut, et al. (No. 146-1970) ) icheine BO _ APPENDIX G (Opinion of Mr. ‘Justice J hen M. Murtagh i in the ' Suprente Court of -the State of New York, New York County entered. April 3, 1967 in the follow- ing cases: People v. Otis Chestnut, People v. : Jeremiah Gellis, People v. Stephen Martinot,. _ People v. Levi Laub and Sie v. = encase . 45a, APPENDIX H (Opinion of the United States Court of Appeals _ for the Second Circuit i in Otis Chestnut, et al. v. ‘New York (Docket. No. aniseid — December 2, 1966) ; : 46a — _ > e Aprenpix I (Memorandum and - Order of. the United States _ District Court for the Southern District of New York in Otis Chestnut, et al. v. New York (65 | —_ 1574) entered ate 10, 1966) . .- 09a _. TABLE OF AUTHORITIES Cases: Avery v. Georgia, 345 US. 559, 73 Ss. Ct. 891, 7 L. Ed. 1244 (1953) .. aos 15, i, WT ; Baker v. Carr, 369 U.S. 186, 82-8. Ct. 69i;-7 i ‘Ea. 2d 663 (1962) ........... ee au 1$, 16 - Brown v. Allen, - US. 443 (1958) a ; , 14, 18 Cassell v. Texas, 339 US. ~_ 70 S. Ct. 629, 94 L. Ed. 839 (1950) ; : 15, 17 iv | a eee . ; PAGE ‘Chambers v. Florida, 309 U.S. 227; 60'S. Ct. 472, 84 L. Ed. 716 (1940) -222.e-ecccecsesees 17 Chestnut, et al. v. New York, 370 F.2d 1 (2 Cir., 1966) 2 " Dunean‘v. Louisiana, 391 U.S. 145, 88 S. Ct. 144, 20 L. Ed. 491 (1968) Sedssiihauaceanibaibebinibbianibaldmaakéds 14, 15 . -Epton v. Nenna, 318 F. Supp. 899 (S.D.N.Y. 1971) .. 10, lL Eubanks v. Louisiana, 356 U.S. 584, 78 S: Ct. 970, 2 . L. Ed. 2d 991 (1958). ......-.. 17 Evans v. Cornman, 398 U.S. 419, 90 S. Ct: 1752, 26 : " L, Ed. 2d 370 (1970) .......... seanes 7 18. Fay v. New York, 332 U.S,. 261, 67 S. Ct. 1613, 91. > . L. ‘Ed. 2d 2048, (1947) : , iyedionsins * 19 Griffin .v. Illinois, 351 U.S. 12, 76 Ss. Ct 585, 100 L. Ed. 891 (1956) 17 Griggs v. Duke Power Company, 401° U.S. 424, 91 S. Ct..849, 28 L, Ed. 24 158 (1971) enn £5 ‘ Harper v. Virginia State Board of Elections, 383 U.S. - 663, 86S. Ct. 1079, 16 L. Ed. 169 (1966) 2. 18 Hernandez v: Texas, 347 U.S. 475 (1954) ol. 18, 19 Hill. v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (FED) aainccceseninees Secccssoissuaeentscstannaceaiaumscassbiaiiaa eR Hoyt v. Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L, Ed. 2d 118 (1961) rae ene a. - Labat v. Bennett, 365 F.2d 698 (5th Cir., 1966) cert. den., 386 U.S. 991, 87 S. Ct. 1303, 18 L. Ed’ 2d 334 (1967) ....... ee ....19, 21 - Monroe v, Pape, 365 U.S. 167, 81 S. Ct. -— 5 L. Ed. 2d 492 (1961) cat ' \ 16 “\ People v. Chestnut, 26 ‘N. tad 481, 260 N. E2d SOL ; so aes TOD. sencrsei : ' 10 People v. Epton, 19 N.Y.2d 496, 227 N. E.2d 829 (1967), - app. dsmd., cert. den. sub nom. Epton v. New York, , 390 U.S. 99, 88 S. Ct. 824, 19 L. Kd. 2d 808 (1968) . pss Shapiro’ v. Thompson, 394 U. S. 618, 89 S. Ct. 1322, 22) L. Ed. 2d 600 (1969) 18" Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 | ATi Ede 84 (1940) . sisasitiitonabiee 14 Snowden v. Hughes, 231 US. 1, 64 S. Ct. (397, 88; TL, Ed. 497 (1943) -...... * 16 Speiser v., Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 pte L. Ed. 2d 1460 (1958) ot: 18 Strauder v. West ——— 100 oe (1880) -.0... 14, 16, | ee 17,19 Ex Parte Virginia, 100 US. 339 } as =. 16 "Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 24 446 (1970) ....... 14 Witcher vy. Peyton, 405 F.2d 725 (4th Cir. 1969), cert. den., 395 U.S. 948 ........ 19° Withtcpaen v. Illinois, 391 US. 510, 88 S. wie uM, 20 L. Ed. 2d 776 (1968) ....j.. 22 - Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L.Ed. 2d 569 (1962) .... ie ve PAGE 4 > & vi ; PAGE : Constitutional Provisions: : United States Constitution — . ~ Mourteenth Amendment 00... eae secersietd 3,14, 16, 19. , Statutes: Now York City Criminal Court Aet, Section 42°00... 4,6 Now York Judieiary Law, Seetion 596 000k. 4,7 New York Penal Law (former), Seetion 600, subdivi- oe keen ene Rice intone 2,5 | , ie cae In THe . Supreme Court of the United States Ocroser Term, 1971 | ; No. dedédieaitiens _ —~»>— as, Uniren Srares ea) rel. Orig Cuestnut, Micnann Brown, SterHen Marrivor, buen Sua and Levi Lau, Petitioners, —V.—- Criminat, Courr or rue Crry or New York; Grorcs F. Mc- Graru, Commissioner of ‘orrections of the City of New York ‘and Frank S, Hoan, District Attorney of New York County, + *, Respondents. - PETITION FOR A‘ WRIT OF CERTIORARI TO THE {UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT -The petitioners, Otis Chestnut, Michael Brown, Stephen Martinot, Kllen Shallit and Levi Laub respectfully pray that a writ of certiorari issue to review the judgment and opinion of-the United States Court of Appeals for the Second Circuit entered in this proceeding on May 5, 1971. Opinions Below The opinions of the Court of Appeals and the District Court for the Southern District of New York are not yet reported and appear in the appendix hereto, as do the two opinions of Circuit Judge Robert P.. Anderson denying 2 rehearing of his order staying the District Court order granting bail. The opinion of the Court of Appeals of the State of New York is reported at 26 N.Y.2d 481, 260 NE 2d 501 (1970) and is appended hereto. The opinion of Justice John M. Murtagh in the Supreme Court of the State of - New York, New York County, is reported in the New York . ‘Law Journal, April 5, 1967 (p. 18, ¢.6) and is appended hereto. The opinion of the United States Court ‘of Appeals, . remanding to the state courts after removal is reported . at 370 F.2d 1 (1966) and is printed at Appendix i. The unreported District Court opinion’ ordering remand is printed at aes L. Jurisdiction . The judgment of the Court of Appeals for the Second Circuit was made and entered on May 5, 1971 and this petition for certiorari is filed within ninety (90) days of that date. This Court’s. jurisdiction is invoked under 28 U.S.C. 1254(1). . Questions Panel The all-White Kesedid August, 1964 Grand Jury of New York County ordered that petitioners be charged with violation of Section 600 subdivision 6 of-the New York Penal Law for refusing to answer its questions. (Peti- ‘tioners were later convicted in the Criminal Court of New York County.) One of the petitioners, Otis Chestnut, is Black, all were poor or very ‘poor arid under 35 years of age. The questions presented are: 3 1. Whether petitioners were deprived of the due process ' and equal protection guaranteed them by the Fourteenth _ Amendment because New York County used as its sole ‘source of grand jurors (including those on the Second © August, 1964 Grand Jury) a list of volunteers which did not—and which it knew did not—reflect in. any way across . section of the population suitable in character and intelli- gence for that civie duty? Specifically : a. Adults under 35 (30% of the group made eligible: by statute) were deliberately and intentionally excluded . from grand jury service. b. The very poor were deliberately and intentionally excluded from. grand jury service: i.e. ‘welfare recipients were totally excluded; at the time 90% .of the 1964 grand - "jury list was chosen, persons who (with their spouses) had assets of less than $250 were excluded ; : i ¢. Negroes who constituted 24% ‘of the eligible popu-_ lation comprised 1.65% of the grand jury, list; ‘d. Puerto Ricans, who constituted 9% of the eligible group, comprised .03% of the grand jury list; e. Blue collar workers were substantially underrep- _ resented. 2. Whether petitioners were deprived of due ‘process guaranteed them by the Fourteenth Amendment because New York County drew its grand jurors exclusively from "volunteers? | 7 Se ale i a a ma WBE ied ree ? ’ } " 4 Statutory Provisions Involved New York City Criminal Court Act, Section 42: “(1) Where the defendant has been held to answer for trial in a part of the court held by,a panel of three of the judges. thereof as provided in section forty of this act, or where such a trial shall be direet ed in a mis* deme: anor case by a grand jury and approv ed by order of the Court for which the Grand Jury is drawn, the action must be aoe ear by information madehy the djstrict-attorney - ; New York Judiciary ve Section_596 : a “Qualifications of jurors: : In order to be qualified to serve as a juror in the counties included within a city having a population of one million or more, a person must: 1. Be a eitizen of the United States, and a resident of the county. 2. Be not less than twenty: -one, nor more than ‘seventy years of age. 3. Be the owner, in his or her own right, of real or “personal property of the value of two hundred and fifty dollars; or the husband of a woman or wife of a man who is the owner, in his or her own right, of real or personal property of that value. 4. Be in the possession of his natural faculties and not infirm or decrepit. . 5. Not have been convicted ” a felony or a Mis-° demeanor involving moral turpitude. , 3) 6. Be intelligent; of sound mind and good charac. ter; well informed; able to read and write the E ‘nglish ‘ecieeiias understandingly. . A person dwelling or lodging or hav ing or maintain- ing a dwelling or lodging in a county for the greater . part of the time between October first and June thir- tieth next thereafter, is a resident of that county, _ within the meanings of this section. Added 1.1940, . 0.202, Section 1, eff. Sept. 1, 1940. " . New y ork Penal Law (former), Section 600: “A person who commits a contempt of court, of any one of the following kinds, is guilty of a misdemeanor : “_..6.. Contumacious and unlawful refusal to be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatory.” hss of the Case The petitioners in this habeas corpus proceeding seek relief from, their conviction in the Criminal Court of the City of New York for violation of Section 600 subdivision 6 of the New York Penal Law (former) for refusal to answer | questions of the Second August, 1964 New York County Grand Jtry. Petitioners were sentenced to varying terms of imprisonment (30. days to six months) ; they have served their terms. — . In the winter of 1964-1965, the Meats ‘euds 1964 Grand Jury of New York County was conducting an investiga- . tion into the Harlem riots of the summer of 1964. This was _ the same Grand Jury which returned the indictment: in — People v. Epton, 19 N.Y. 2d 496, 227 NE 2d 829 (1967), . if 6 - app. dsmd., cert. den. sub nom. Epton v. New Y ork, 390 “US. 29, 88 S. Ct. 824, 19. L. Ed. 2d 808 (1968). Petitioners were summoned before it and, after they refused to answer . its questions, the Grand Jury, acting under New York Law (New York City -Criminal Court Act, See. 42) directed ° the District Attorney of New York County to file the in- formations against petitioners, a direction which became effective upon the ex.parte approval of a justice of the ’ New York Supreme Court. | Petitioners rely upon the record developed at a New York Supreme Court evidentiary hearing before Mr. Jus- tice John M. Murtagh on their motion to revoke that court’s approval of the Grand Jury direction that the information issue and upon the uncontested allegations of their habeas corpus petition. It is the thrust of petition- ers’ position that they, who. were all under 35, poor and very poor, Black or allied with Blacks, were deprived of a grand jury of their peers. The record shows that New York County knowingly maintained a grand jury selec- tion system which resulted in less than token representa- tion’ of Negroes and Puerto Ricans and deliberately ex- cluded all adults under 35 and the very poor (welfare. recipients and persons with less than sole in assets). P The Selection System New York County grand jurors are selected by lot from ~a grand jury list of approximately 2200 composed of vol- -unteers, drawn from the much larger petit jury list. (Petit jury service is compulsory.) Annual turnover on the grand jury list is about 9% a year and each- year replacement volunteers for the group are selected by the County Jury Board after preseleetion by the County Clerk’s office. . Le 7 By statute all intelligent, able bodied, literate adult citizen-residents of good character were made eligible for grand jury service provided they or their spouse had $250 _ In assets and that they had not been convicted -of a felony _or a misdemeanor evidencing moral turpitude. (New York Judiciary Law, Section 596.) The operation of. the selec- tion system in practice is quite different. The Admitted Deliberate Exclusions 1. Adults under 35 (who in 1960 comprised 30% of the adult, population of New York County) were: deliberately excluded from grand jury service although they maybe on — the petit jury list. ‘i : 7 2. A juror (or his spouse) was required to possess’ prop- erty worth $250. ‘It was-testified that this property quali- fication had been dropped administratively in 1960. However, because there was a minimum time lag of three years between entering petit jury service and eligibility for grand jury service, the Second August, 1964 Grand Jury was chosen from a grand jury list 90% (or more) of which had been selected: under the property qualification. - Welfare recipients were excluded from petit. jury’ and grand jury service. | The Results of the Volunteer System: The Massive Underrepresentation of Blacks, Puerto Ricans and the Non-affluent The record shows that the New York County -selection system resulted in grand jury lists which were massively unrepresentative of New York County. Only 1.65% of the grand jury list was Black. although Negroes comprised g? 8 . more than 24% of the population over 21. The probability of such a result occurring by random séef€ction in any one year is the astronomical figure of -000000000000000000000 000000000000000000000600000000000000000000000000000000 00000000000000000006 (95 zeros). owe The figures on Puerto Ricans are. not pene sree dif- ferent. English speaking eligible Puerto Ricans (persons C/ born in Puerto Rico) comprised 9% of New York County’s population over 21. They comprised 03% of the grand ‘jury list! The non-affluent group was generally adaiinied in. grand jury selection. Only 25 persons on the 1964 grand jury list could be identified as blue collar workers using ‘census bureau classifications. Yet blue collar workers comprised 47% of the total employed in New York County. New York County’s Knowledge That the Volunteer System Produced Unrepresentatwe Grand Juries At the hearing, and at all stages of. this proceeding, the prosecutor contended that it was the volunteer selec- tion system which was responsible for the discriminatory results. Yet the record is quite clear that for many years the jury selection personnel was well aware of these enormous malproportions and took no meaningful steps to correct them. As one of. the elerks — testified “ .. wé gave up on it.” 7 ~The Record Evidence Concerning Adults Under 35. At the hearing before Mr. Justice Murtagh, petitioners called Dr. Bernice Neugarten, Associate Chairman of the Committee on Human Development at the University of — Chicago and an authority on the dge groupings and their 9: differing social attitudes. Her testimony, unrebutted, was what all the world knows—that persons between the ap- proximate ages of 21 and 32 comprise and are generally recognized as a separate and defined class, usually charac- terized‘as “young adults.” Indeed, expert testimony was not necessary to demonstrate that adults under 35 com- _ prise a class of persons different from other age group-~* ings. Mr. Justice Murtagh took judicial notice of this fact. i ; The Continuing Undemocratic Selection System At some time subsequent to the hearing, certain changes were made in the New York County selection _ system. The absolute discrimination against adults under _..85-was dropped in favor of a requirement, of one term of petit jury service. The exclusion of welfare recipients was also. dropped. However, a New York County Snu- -preme Court hearing in October, 1969 showed that these changes were not significant. The selection results were relatively unchanged. (People v. Shakur, No. 1048/1969). a. Of 150 grand jurors examined personally only 3 . (1.5%) were. Negroes; b. No grand jurors were under 31 (out of 2918), Only 3 (.1%) were in the 31-35 group. ce. No welfare recipients had ever served on a grand jury. ; The Lower Court Proceedings and Rulings Mr. Justice Murtagh denied petitioners’ motion. (His opinion is set out in the Appendix.) Petitioners. were then tried, convicted and sentenced by a three judge court. © in the Criminal Court of* the _ of New York. The con- 10 - vietions were affirmed without opinion by the Appellate . Term of the New York Supreme Court and by the New — York Court of Appeals. People v. Chestnut et al., 26 N.Y. 2d 481, 260 N.E.2d 501 (1970). . The New York Court ruled in substance that since the extreme ethnic and economic malproportions of ‘the grand jury list could be explained by the operation of the volun- teer system there ‘was no “intentional and systematic” discrimination and hence, it said, no unconstitutionality in the grand jury selection system. As to the admitted intentional and sy stematic diserimi- nations . against adults under 35 and welfare recipients, the New York Court held them nat to be “so totally lack- ing in rational justification” as to be unconstitutional. . The New York Court did not discuss thé property ; qualification except to note that it was not applied in the 1964 selection. The Habeas Corpus Proceedings | Bail pending application for certiorari was denied by _the state Court and this Court. Petitioners then sur- rendered to the New York Court and the present habeas _ corpus proceedings were commenced in the District Court . fer the Southern District of New York before Judge ° Harold R. Tyler, Jr. At the same time the case ofyE'pton _ v. Nenna was reopened before Judge Marvin E. Frankel _ in the same district. (In the latter case William Epton had applied for habeas corpus relief and been released on bail pending the state court ‘decision in the instant case.). Judge Tyler was initially of the opinion that petitioners raised substantial constitutional questions and ordered 11 their’release’on bail. The District Attorney then applied to the oa ti judge” of the Court of Appeals for the Second Circuit, Judge’ Robert P. Anderson, who stayed the grant of bail on the ground that petitioners lacked standing to raise the constitutional issues. (Judge Ander- son’s two opinions on rehearing are set ‘forth in the Ap- pendix.) Some weeks later Judge Anderson’s ruling was - upheld by the Court of Appeals on grounds. akin to mootness: that Judge Tyler ‘was about to > decide the case ¢ on its merits. On Pre 5, 1970, Judge Frankel handed pen his ‘ruling in Epton, 318 F. Supp. 899 (S.D.N.Y., 1970), deny- ing habeas corpus relief and. finding no unconstitutionality in the New York grand jury selection system. The ethnic . and economie malproportions, Judge Frankel held, were not the result of “purposeful or intentional” discrimina- tion. He ‘regarded discrimination against. adults under 35 as réasonable: | : Judge Frankel regarded the exclusion of the very poor. _ aS a.moré difficult question. . However, “acknowledging * _grave doubts,” he upheld Epton’s conviction on the’ grounds: (1) that'there was no “prejudice” to Epton; (2) that the discrimination was no longer practiced; (3) that the discrimination against, welfare recipients was not - - based on their poverty but because _they might have been regarded as state employees.. (With regard to Judge Frankel’s finding of lack of “prejudice,” we understand that the record is quite clear ' . that Epton’ was himself very poor. The lack of “preju- _dice” relied upon by Judge Frankel ts“fot a finding that Epton was outside the excluded group; it seems to be a , 12 ° firiding that a grand jury would be justified on the ore e in putting Epton to trial.) Simultaneously” with Judge Frankel’s decision, Judge Tyler handed down his decision denying relief in this case. (Judge Tyler’s decision and his decision on rehearing are set forth in’ the Appendix:) Judgé Tyler found possible * . constitutional merit in petitioners’ complaint of the ‘dis- crimination against the exclusion of adults under 35 and _ welfare recipients. Nonetheless, Judge Tyler held that petitioners lacked “standing” to raise these questions— that they had suffered no “prejudice.” (By this language Judge Tyler seemed’to mean that, in his opinion, petition- _ ers were guilty of the crime charged.) - On appeal to-the Circuit Court of Appeals for the Second Circuit, Judge Tyler’s decision was upheld but on grounds directly opposite to his. (The opinion below is set forth in the Appendix.) Judge Irving Kaufman, speaking for the | three-judge panel, found that petitioners did have ‘:stand- ing” to raise the. constitutional quéstion (fn. 7); but, he held; their constitutional objections to ‘the grand jury - selection system. were insufficient. The court below found no denial of .due process or equal ° protection. It found that petitioners had “failed to demon- strate” that the non-representative quality of the grand jurors ‘had caused bias on the Grand J ury (placing the bur- den of proof upon petitioners). -As to petitioners’ equal protection claim, the court below ‘found no “purposeful” _ ethnic discrimination. Moreover, as to the claimed de facto denial of equal protection by the grand jury malpropor-: tions, the court found this counterbalanced by its own pre- sumption that volunteer grand yarors would be more con- scientious. 13 4 / As to tlie exclusion of adults under 35, the eourt rejected petitioners’ claim ‘that an entire generation had been ex- cluded as “hy perbole” and was unable to find any consti- tutional distinction between a lower age limit of 21 and one of 35. 7 | None of the petitioners are Puerto Ricans or welfare recipients, The court below held that, therefore, petition- ers were not denied equal oe by the non-representa- _tion of these groups. ae property qualification was conceded to be cies tutional (“without justification”)... Nonetheless, it was held to be de minimis. Lastly, we note that all. of the lower courts accepted as a basic premise that there is a constitutional distinction between intentional initiation of a grand jury selection sys- tem which would operate to discriminate, and the spas perpetuation of such a system. ~ : Reasons for Granting the Writ 1. New York County has denied petitioners a jury of their peers. Far from being representative of the commu- nity’the New, York grand jury was a travesty of the com- munity. Young, poor; Black or allied with Blacks, petition- ers were summoned, questioned without counsel and charged by a grand jury from which the young, the poor and ethnic minorities were excluded. This exclusion was not an isolated instance. It was the inevitable and con- sistent result of the operation. of a selection system of long standing. Moreover, the operative results of the selection system was well known for a long ‘time to the selection . officialdom, yet it was continued unchanged.. 14 ; id hw These facts warrant review by this Court. We are one country and-one constitution. The rights guaranteed by. > the Fourteenth Amendment are the same in every section. If New: York with its powerful pdsition in the political, economic and cultural life of our country has found a scheme which enables it to keep Negroes, Puerto Ricans, young adults and the: poor off juries, that same scheme is available to other counties : North and South. If the labors. of the hero judges of the Fourth and Fifth - Circuits are to be brought to naught, then it should only be - . after decision by this Court. 2. The decisions below conflict with the decisions of this Court. From Strauder vy. West Virginia, 100 U.S» 303 (1880) this Court has ruled that the selection system for state juries must provide a “fair possibility for obtaining a representative cross section of the community.” Wil- liams vy. Florida, 399-U.S. 78, 100 (1970). In Brown vy. Allen, 344 U.S. 4438, 474 (1953), this Court recognized that ‘the source from which grand jurors are drawn must “rea- sonably refleet.a cross section of the community suitable in character and intelligence for that civie duty.” -It is plain that the selection system of New York County does not provide any possibility of obtaining a fair cross section of the community because the group of volunteers which is the “source” of New York County grand juries is itself completely unrepresentative of the community. See also: Smith v. Texas, 311 U.S. 128, 130 (1940). The thrust of Duncan v. Louisiana, 391 U.S. 145 (1968), governs this case. A grand jury may not be necessary to ‘a constitutional scheme of justice; the community voice as to the initiation of prosecution may express itself through 15 an elected representative. If, however, the state scheme provides for 4 grand jury, it is of the essence of our tradi- tion, “fundamental,” that it should be drawn from the whole community. There is no place in “an Anglo-Ameri- , can regime of ordered liberty” (391 U.S. at 149-50 fn..14) for an elitist grand jury both unrepresentative in composi- tion and unanswerable to the democratic process. 3. Posing the constitutional issues in their simplest terms, the rulings below each rest on a constitutional dis- tinction between a selection system which is designed ab initio to discriminate, and the knowing perpetuation of a system which—whatever: its original rationale—operates . de facto to discriminate. We submit that this distinction is morally and constitutionally meaningless. See Baker v. Carr, 369 U.S. 186 (1962), finding a denial of equal pro-— tection in state failure to redistrict an unequal districting scheme. Again, if the right to a jury of one’s peers can be defeated by so simplistic a device, then it should be this Court which determines that fact. 4. There is an objective test for unconstitutionality as. well as a subjective one. The selection system must not “operate to discrimiinate.”” Avery v. Georgia, 345 U.S. 559, 561 (1953). See also, Hill v. Texas, 316 U.S. 400,° 404 (1942); Cassell v. Texas; 339 U.S. 282, 296-298 (1950) (Mr. Justice Clark, concurring). This. conclusion follows inevitably from the reason for _ sthe constitutional doctrine. If due process and equal pro- tection require that a defendant not be ‘denied a jury of his peers, then it is uningportapf\whether the denial is . deliberate, knowing (as here)/or the result of prolonged © official somnolence. Cf. Griggs v. Duke Power Company, 401 U.S. 424 (1971). BRA RHETT Ns EGS SRI Meith ee ae eer ee eT - ~ “ — MEIP SE ORISA LT STE T LE NO ME EE ee NT EEE Ce Re IO Ty Mey Pain ah is oir Ait 1 be ~ 16 (For a similar development, see Monroe v. Pape, 365 U.S. 167, 187 (1961), adding an objective liability under the Civil Rights Acts to .the subjective test of Snowden v. Huglies, 321 U.S. 1 (1943). See also, Baker v. Carr,.supra.) 5. The Second Cireuit decision also conflicts directly | with the decisions -of ‘this Court by requiring that the petitioners show actual bias and partiality resulting from» the denial of a jury of their peers. ‘The decision is both incorrect and, on a most basic level, deeply misunderstands _ . the essential nature of the constitutional right. In the first place such a requirement would make the right to a proper grand jury a mere redundancy to the already protected right against juror bias. In the second place, the difficulties of meeting such a ‘burden of proof would reduce the right from a universal one to a ‘right enjoyed only by a lucky few. Finally, and most importantly, partiality or bias have nothing to do with the issue, since individual guilt or in- _ .noeence are irrelevant to the constitutional right. The. . lower court has ‘resurrected and adopted the argument of the dissent in Strauder, supra, and Ex Parte Virgina, 100 U.S. 339, 349. In that dissent it was argued vigorously and well (pp. 368-369) that a mixed jury was not, ipso facto, . a guarantee of impartiality, and that if race were to in- dicate partiality then a Negro defendant would be en- titled to an all Black jury. Hence, said the dissent, the Fourteenth Amendment does not guarantee a cross section jury, a jury of one’s peers. The Court’s ruling in Strauder rejected this argument. Strauder proclaims a more basic civil right: “all persons . shall stand equal before the laws of the States...” 17 (100 U.S. at 307). In a heterogeneous society such as ours, the Strauder Court held, this means that where a jury is required, all groups of the community must be represented. Later decisions have consistently adhered to the seminal Strauder majority decision and rejected the argument of the dissent. All men must stand on equality before the bar of justice in every American court. Chambers v. Florida, 309 U.S. 227, 241 (1940); Griffin v. Illinois, 351 US. 12 (1956). That is the issue where jury composition is ques- tioned—not jury prejudice or even individual guilt or in- nocence. Cassell v. Texas, supra; Hill v. Texas, supra, Eubanks v. Lowsiana, 356 U.S. 584 (1958); Avery v. Georgia, supra. (The lower’ court’s error here perhaps sprang from its erroneous belief that petitioners were asserting a tus tert. This is not the case; petitioners’ right to equality in the courts was not derivative from or secondary, to anyone ~ . else’s right. Cassell vy. Texas, supra at 287. Petitioners __eath assert in this proceeding his own individual right to a jury of his peers, a jury chosen by a—setection system | which does not operate to exclude any class.) 6. In addition to placing on petitioners the burden of showing prejudice, the decision below requires petitioners to shoulder, the ‘proof of a series of matters which are constitutionally irrelevant and, where proof if required, is the ‘state’s burden. Petitioners were denied relief be- cause they had failed to show that volunteer jurors as a class would not be more conscientious than the non-volun- teer class; that welfare'recipients as a class were not too — timid to disagree with a prosecuting attorney; : and that persons over 35 as a class did’ not make better jurors than persons under 35 as a class. ee eae 18 ° All of these burdens are artificial creations. The con- stitutional question is not whether the excluded groups made better or worse jurors than the included groups. The only question is, were the’ excluded groups “suitable in character and intelligence” for grand jury service? Brown v. Allen, supra. Once that question is answered affirma- tively—and it has been by the New York legislature— those groups form a‘part of the cross section from which a jury,of peers must be formed. There is no place for elitism, real or fancied. Moreover, it is the state—not petitioners—which has the burden of showing factually, not presumptively, the necessity of any limitation upon petitioners’ equality - ‘he- fore the law. Speiser v. Randall, 357 U.S. 513, 526 (1958) ; . Shapiro v. Thompson, 394 U.S. 618, 638 (1969) ; Evans v.. Cornman, 398 U.S. 419, 425 (1970); Harper v. Virginia State Board of Elections, 383 U.S. 663, 670 (1966). 7. Concededly, the decisions of this Court are not com-. pletely uniform. Hoyt v. Florida, 368 U.S. 57 (1961) does permit the under-representation of women by limiting their representation (but not’ men’s: representation) to volun- teers. This is a special situation whose authority should not be expanded beyond its holding. Chivalry may not ‘be a denial of constitutional right, but one exception cannot consume the rule.- Fay v. New York, 332 U.S. 269 (1947) turns primarily on failure of proof. Its basic premise, that exclusion of Negroes stands on a different constitutional footing than exclusion of other groups (332+U.S. at 282-289), has been overruled sub silentio in Hernandez v. Texas, 347 US. 475 (1954). ee eee 19 Ba Nonetheless, as the decisions below show, the ghost of Fay still controls in New York’s state and federal courts. - This case demonstrates that unless the doctrines of Hoyt and I’ay be explicitly limited, they will expand to. consume the rights guaranteed by the Fourteenth Amendment. The continued vitality of those decisions urges the grant of certiorari here. 8. There is a plain conflict between the decision below and the decisions of other circuits. Labat v. Bennett, 365 F.2d 698 (5th Cir., 1966), cert. den., 386 U.S. 991 (1967); . Witcher v. Peyton, 405 F.2d 725 (4th Cir., 1969), cert.,den., 395 U. S.. 943. 9. The admitted deliberate discriminations against adults under 35, welfare recipients, and persons with less than $250 in assets are even more blatantly in conflict with the rulings of this court. They conflict squarely with the ruling i in Hernandez v. Texas, supra, outlawing the exclu- sion of any class—not only Negroes. See also, Strauder, supra, at 308. | We have discussed above how the lower court ruling. placed the burden of proving the irrationality of discrimi- nation upon petitioners and how, under the rulings of this Court, the burden of proof. belongs to the state. We note here the siege points : As to the exclusion of adults undies 35, the court below misses the main point of the record. This group comprises or eontains a separate class from other age groups. It is for that reason that we submit that “the Constitution dié- tates that New York must select the traditional ‘third multiple of seven. as an age floor on jury service rather than the fifth.” ; . Ra) 20. In this day of the “generation gap,” the members of this - Court would have to be blind as judges to what they know ~ as men to ignore the fact which the New York Court recog- nized—adults under thirty-five do comprise a separate class, different in experience, outlook, and thinking from other age groups. Petitioners were entitled to lave that . class Tepresented on the grand jury list. 10. Welfare clients and persons ‘vith little or no assets comprise the two. main component groups of the very poor. They possess special insights not possessed by others who are more fortunate economically. Petitioners were entitled as of right to have the poor not denied access to the grand jury. (The uncontradicted habeas corpus peti- tion alleges that petitioners are poor and very ic par. 11.) The court below found the exclusion of persons with few ~ assets to be unconstitutional but “de minimis,” even though at least 90% of the grand jurors were chosen while this exclusion was operative. Surely, such an attitude -toward “the least of these” is incompatible with the spirit of our institutions. We know of no case where a jury has been held to be unconstitutionally selected and this Court has upheld its actions. The lower court’s ruling on this — issue alone warrants review. en i me The ruling below Oe ON an Orwellian concept of equality before the law. It adds: to the historic equal right of the poor to sleep under bridges, a: new equal right to a jury of other people’s peers. ‘Some people are more equal than others ; once again, eee ations of the-poor are dé minimis. : 21 All deliberate exclusions of eligible persons have no place in a democratic society. The whole de minimis con-. cept is totally inapplicable. Certainly, the exclusion of racial or religious minorities could not be similarly approve ed. Poverty cannot ground second,class citizenship. 9. The ruling’ that. since petitioners were not Puarto Ricans or welfare recipients they might not complain of. these exclusions is in conflict with the ruling of the Fifth . Circuit in Labat v. Bennett, supra at 723-724. Moreover, it demonstrates again, the lower court’s basie error. The petitioners’ right is the same as everyone’s; a jury drawn ‘impartially from the’ constitutionally eligible community. ‘They need not be members of the excluded group to have this. right denied. Putting the matter simply: Was Chest- nut (a Negro) entitled to a different jury than his fellow petitioners? Could they be given a jury selected *in‘a dif- ferent manner than his? The questions answer themselves. ' All persons have an equal right to the same, constitution- | ally chosen jury of their peers. - 10. The second of the “questions presented” raises the question of whether, in any event, the volunteer system: - as applied in New York County could select grand juries which could-perform their function: “standing between the accuser and the accused.” Wood v. Georgia, 370.U.S. 375, 390 (1962). Our point here is that the selection system in’ New .York County was so structured as to exclude those. ) _ who, might be inclined by theiy naturé to leniency; mercy + and tolerance. There are many opportunities for volunteer public ser- ‘vice. A person who is temperamentally reluctant to prose- -eute, judge and punish others will not volunteer for grand jury service. A volunteer grand jury system inevitably oh aS hee attracts to itself those persons who have not only judged themselves fit to throw the first stone but have decided to do so. We respectfully submit that the ruling below is in basic conflict with the ruling of this Court iNNWitherspoon v. Illinois, 391 U.S. 510, 520 (1968), that a jury must be so constituted as to express the collective conscience of the . community not just a part of that conscience. CONCLUSION For these reasons a writ of certiorari should issue to review the judgment and opinion of the Court of Ap- peals for. the Second Circuit. , =~ July 1971 Respectfully submitted, Baan. R. Pouuirr . 52 Sidney Place Brooklyn, N. Y. 11201 SanrorD M. Karz 7 30 East 42nd Street ~ New York, N. Y. 10017 Metvin L. Wutr American Civil Liberties Union Foundation 156 Fifth Avenue New York, ‘N. ‘Y. 10010 . Pau. CHEVIGNY . Sn New York Civil Liberties Union 84 Fifth Avenue New York, N. Y. 10011 Attorneys for Petitioners --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1397%3A1. Public record. Not legal advice.