# Amicus Curiae Brief — Chestnut v. Criminal Court of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1397%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 404 U.S. 856 ## Text IN THE ee Court uf the Vuited o| stati 29 Ocroser Term, 1971 ° E. ROBERT S_ . No. 71-156 Unitep States ex rel. Otis CHESTNUT, Mecuan. Brown, STEPHEN MakTINOT, EL LEN SHALLIT ‘and Levi Lavs, : Petitioners, —vV.— * CrmnaL Court or THE Crry or New York, Grorce -F. ° McGratH, Commissioner of Correction of the City of - New York and Frank S. Hocan, District Attorney of. New York County, Respondents. ON A PETITION FOR A ‘WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR’ THE NEW YORK PRESBYTERY TASK -FORCE FOR JUSTICE AS AMICUS CURIAE | G. Gorpvon Davis Davip. GILMAN JOsEPH T. McLAuGHIIN Attorneys for the Amicus Curiae. New York Presbytery Task Force For Justice 7 West 11th Streét New York, New York 10011 (212) 924-5620 Oe TR Yn ee -e aknes OTS « INDEX Interest of the Amicus Curiae Ceo Mocendecevccccosccesseecscons cuveeseoce ARGUMENT TacLe or AUTHORITIES Cases: Coleman. ve Alabama, 38!) US. 23 (1967) Hernandes v. Texas, ves U.S. 475 (1954) Hoyt v. f ‘lorida, 368 U.S. 57 (1961) King \ v. l iubied States, 346 F.2d. 123 (Ist Cir.. Neal v. Delaware, 103 U.S. 370 (1 881) Norris y. Alabama, 294 U.S. 587. (1! = Bak v. Texas, 311 U.S. 128 _ sag eigather fed tiasaapticeians Strauder v. West Virginia, 100 U.S. 303 (Ii oe 2: 1, 3,9 Thiel v. Southern Pacific Ca., 328 US. 217 (1946) ae 8 —— States v. Di Tommaso, 405 F.2d 385 (4th Cir. ‘ + 1968) . Scaubnsuhinlannengieanediaplanaienmeioen ak ue anes ieattda stnmiedienomaicaatic ay 7 PAGE Constitutional and Statutory Provisions: Constitution of the United States | . Article I, Section 2 Sih i Re, i 7 SE I a Article Il, Section f Bra fo 8 AeRrsta ESREE In ape ay EO Fe 3 New York Judiciary Law §596 2. 2ccccceceecceececeel 6,8 Miscellaneous : Rule 201, Proposed Rules of Evidence for the United IN THE Supreme Court of the United States — OctoBer Term, 1971 : ‘ No. 71-156 : ° ; ee ; = Unitep States’ ex rel. Oris CurstNut, MICHAEL Brown, -STEPHEN Martinor, WLLEN Suauurr and Lev! Lavs, Petitioners, — CRIMINAL Court or THE Crry or N EW York, Grorce F, McGratu, Commissioner of Correction of the City of New York and Frank S. Hocay, District Attorney of - New York County, aan Respondents. ON A PETITION FOR A-WRIT sib Guineas TO THE UNITED STATES COURT OF APPEALS FOR WHE.SECOND CIRCUIT ” BRIEF FOR THE NEW YORK PRESBYTERY TASK FORCE FOR JUSTICE AS AMICUS CURIAE ~ Interest of the Amicus Curiae This case presents the spectacle of a grand jury so selected as to mock-all ingenuous descriptions of that institution as a representative body.' Systematically and - ‘7 The jury has been characterized as “a body: truly representa-. tive of the community.” Smith v. Teras, 311 US. 128, 130 (1940). It must be 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, persons having the same legal status in society as that which he holds.” Strauder v. West Virginia, 100 U.S. 303, 308 (1880). on deliberately excluded from the ranks.of the Second August, ’, 1964 New York County Grand Jury were all ‘adults be-- tween the ages of 21 and 35, and the poor -(including, but not limited to, welfare recipients). Moreover, Blacks and Puerto Ricans, who together made up 33% of the adult population of: New York County in 1960, comprised only 1.68% of the grand jury list from which the Second August, 1964 Grand Jury was drawn. Petitioners, all of whom were poor and under 35°(one was also Black), were entitled to.a grand jury of “repre- sentative citizens,” a true cross section of the heteroge- ~ neous ¢itizenry residing in New York County. In its place, petitioners were confronted, with an undemocratie body from-which the young, the poor and certain ethnic mi- norities had beén purposefully excluded. The New York Presbytery Task Force For. Justice joins _ with petitioners. herein to vindicate the Constitutional principle that nothing less than a jury selection system which draws impartially from the entire community can provide equality before the bar of justice. Such equality is the- keystone of the Constitutional guarantees of due process and equal protection and when that keystone has been undermined, no citizen or group of citizens can long remain silent. The Task. Foree For ‘Jaation 3 joins in the full range of petitioners’ objections to the Second August, 1964 Grand Jury, but will focus herein on the systematic exclusion of adults between the ages of 21 and 35." ARGUMENT | Petitioners, all of whom were undet 35, were mem- bers of a class which was intentionally, systematically and unjustifiably excluded from the Second August, 1964. Grand ~ in — of the F ourteenth Amend- ment. This case comes to the Supreme Court ripe for reversal because of the clear conflict between the decisions below and the doctrine of this Court, emanating from Strauder v. West Virginia, 100° U.S. 303 (1880), that systematic exclusion of classes of citizens . from jury duty is re- pugnant | to the’ equal protection guarantees of the Four-- : teenth Amendment. That doctrine was given prescient expression, consider- ing the facts in the case at bar, in’ Hernandez v. Texas, 347 U.S. 475 (1934). Hernandez established that those classes of persons entitled to protection by the Court from - ; systematic exclusion must not be defined exclusively by— race, color or common ancestry: “ | . Throughout our history differences in race and iia have defined easily .identifjable groups which have at times required the aid of the courts in secur- ing equal’ treatment under the laws... But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is denon-- strated, and it is further shown that the laws, as written or as applied, single out that. class for .daf- a 4 férent treatment not based on some reasonable dassi- fication, the guarantees of the Constitution have been violated.” Hernandez, supra at 478. (Emphasis added.) See also: Hoyt v. Florida, 368 U.S. 57, 60- 61 (1961) -(women exempted, but not Sy stematically excluded, from jury duty). Once the ‘extitence of the class is established, and it is Shown that the class is systematically excluded, denial of equal protection to the members of the class has been prima facie demonstrated. It is then the respondents’ burden to demonstrate, by way of rebuttal, the reason- ableness of the Gites Meith resulting in discrimination. ' Id. Under Hernandez, the petitioners herein were clearly denied their measure of - justice since, by sy stematically excluding from grand jury service the entire class of otherwise eligible persons under 35 years of age, respon- dents invidiously discriminated against them as members : of that class. Assuming for the moment that those. otherwise eligible but under 35 do constitute a definable class consistent with Hernandez, there can be no doubt that all such potential grand jurors falling within the class were intentionally and ‘systematically excluded from grand jury service at the time petitioners were prosecuted on presentment of | the Second August, 1964. Grand J ury and convicted : of contempt.’ 2 It would be redundant to revite statistical ‘proof which démon- strates exclusion in this case after the fashion of Norris v. Ala- — bama, 294 U.S. 587 (1935) and cases following it, since exclusion of those aged 21 to 35 was found as a fact by the. courts. below (Petition for'a Writ of Certiorari, Appendix A, p.°3a; Appendix B, p. 18a; Appendix F, p. 36a, 41a). Nor, for the same reason, may the practice be excused as de mihimis’ or nondeliberate, as a a 5 . Turning next to the threshold issue of Hernandez, young -zadults between the ages of 21 and 35 clearly constitute - a definable class worthy of judicial protection fro dis- crimination in jury selection. The petitioners introduced _ - substantial, unrebutted evidence below to demonstrate what all the world knows—i.c. that there is a-readily’ ob- i servable and definable class of individuals between 21 and °- 35, with differing life styles, attitudes, political and historical perspectives from those making up thefr-parents’. ‘generation.’ | a ° The courts below have concluded that.petitioners were not _ . deprived of “the’ insights, perspectives or prejudices of any identifiable class or group such as ‘young adults’... ” (2.e. ‘those under 35). Yet those very courts, as well as respon- dents herein, repeatedly attributed. certain characteristics toa “class” comprised of those over 35 é.9., “oreater ex- perience” and more exposure to “life’s vicissitudes”) (Peti- tion For A Writ Of Certiorari, Appendix A, p. 13a; Ap- pendix F, p. 41a). It must logically follow that there exists a reciprocal group or “class” of adults under 35 who, by definition, are differentiated by a lack of certain “experi- ° ences” and exposure to “life’s vicissitudes.” | | as a random consequence of an otherwise aeceptable jury selectg6n system, as in United States v. Di T ommase, 405 F.2d 385 Cir. 1968). oT “ * Indeed, this Court may take judicial notice, as Mr. Justice « iv: Murtagh did below (II. 447, 448, 450), of the fact that.adults bee * tween 21 and 35 comprise a class of persons different from other’ ae age groups. Rule 201, Proposed Riles of Evidence For The United States Courts and Magistrates (1970). _- in King v. United States, 346 F.2d 123, 125 (1st Cir. 1965), og: if 6 Indeed, what more compelling proof that the instant group constitutes "a class desperately in need of this . Court’s protection could: be asserted than the fact that ‘those responsible for the initial selection of grand jurors : summarily relegated “this: entire group to the ranks of the immature, allegedly unfit to sit in judgment. of their fel-. -low citizens.* Such action was taken despite the legisla- tive mandate declaring ‘all those over 21, otherwise quali- fied, éligible to serve. The citizens of New York, acting through their elected is represehtativ es, have determined that a grand (and petit) juror need only : . - b “1, Bea asi of the United States and a resident of the county. “2. Be. not less then twenty- one, nor more than oe seventy-five years of age, prov ided however, that a person between seventy and sev enty-five years of age shall be excused at the request of any party to the ~ «action. and such request. shall not constitute a per- irs? challenge. 63 Be. in the possession of’ his natural faculties and ‘not infirm’ or decrepit. i “% "Not have been convicted of a felony or a mis- demeanor . involving moral turpitude. 45. Be intelligent; of sound mind and good charac- ter; well informed; able to read and write the Eng- lish language understandingly. ...” N.Y. Judiciary Law, $596. ( Emphasis added. ) How, thén, did the County Clerk pene es this statute? * By lit: rally and intentionally programming the computer oP al to exclude all persons under 25. The Clerk not only recog- nized the class; he arrogated to himself the authority to ‘summarily exclude all mémbers thereof (Petition For A ° Writ Of Certiorari, Appendix F, p. 41a). ~ Since petitioners have demonstrated that an identifiable ~ class has been systematically excluded, the burden falls on _ respondents to rebut, if possible, “the strong prima facie ~ case of the denial of the, equal protection of the laws guaranteed by the Constitution thus established.” Hernan- dez, supra at 481. See also: Coleman vy. Alabama, 389 U.S. 22, 23 (1967). “Yet the respondents in the case at _ bar have not truly attempted to meet this burden; they _ have offered nothing save a testament to the véry dis- crimination complained of by their assertion that those under 30 lack the requisite “experience” (Petition For A - Writ Of Certiorari, Appendix F, p. 41a).* There is no statutory requirement. ‘that a grand juror be “experienced” or have suffered ' exposure to “life’s biecucor-woicinn Nor is there any suggestion that’ “experi- ence” "may be an acceptable substitute for intelligence, ' good character or freedom from infirmity, In short, in- telligence and sound judgment are not* necessarily a‘ function of chronological dge and, even if they. were, the New York Legislature has determined, as noted above, that those over 21, who are otherwi ise found fit, are eligible for grand jury service.’ Respondents have not attempted * General assertions that administrators merely thought they were doing their duty, and choosing those best -qualified, is inade- quate. Hernandez, supra at 481;.Norris, supra at 598: Indeed, discrimination on the. basis of general, presumed, class attributes, such as the want of experience, are the very crux of systematic exclusion. See: Neal v. Delaware,.103. U.S. 370, 394 (1881). 5 We note in passing that the Constitution of the United States | requires a wi tte to be at least 25 (Art. Be See. ars “ Se ef eee er Te . 8 to show that all persons between the agés of 21 and 35 lack the statutory qualifications to serve as grand jurors. Indeed, such a task would be impossible since, without any pertinent amendment of the statute, the systematic exelu- sion of potential grand jurors under 35 years of age has been terminated (Petition For A Writ Of Certiorari, Ap- pendix A, p. 5a, n. 3). Nor have the courts below accepted . the respondents’ unstated premise that “maturity” (2.e., ' sufficient intelligence, good character and freedom from infirmity to pass judgment upon other members of the community) is an unattainable goal for all those between 21 and 35. Yet the purposeful and systematic exclusion . of-all members of that age group presupposes that inde- . fensible premise. Petitioners do not—indeed, would not—attack the sub-- jective tests of qualification for serv ice implicit in New York Judiciary Law (596, supra. Here, however, no such tests were ever applied. New York County, by summarily excluding the entire class, has proceeded as if not one member of that.class was competent to serve. Yet. the record discloses not. one interview of a member of the class during the relevant period.’ “Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system.” Thiel v. South- Senator to be at least 30 (Art. L See. 3) and the President to be at least 35 (Art. II; See. 1). While we do not question the rela- tive importance of the grand jury, we doubt that service on that body calls for the same level of “experience” and exposure to “life’s vicissitudes” as is required for service as President of the. United States. *.Potential- jurors not arbitrarily entuied, 1.€. oe 35 oa over, filled out questionnaires and were interviewed by the Clerk, who passed on their qualifications (Petition for a Writ of Cer- tiorari, Appendix A, p. ae 2). . | : . 9 ern Pacific Co., 328 U. S. 217, 220 (1946). Not one mem- ber of the 21 to .35 age group was considered for grand ~ jury service on his individual merits. “Glib generalities concerning ‘presumed class character- istics inevitably work injustice to individuals and are in- herently repugnant. This concept is hardly unfamiliar to the Court: | “Tt was, we think, under all the circumstances, a violent presumption which the State court indulged, that such uniform exclusion of . .... [Blacks] ... from juries, during a period of many vedrs, was ans because dn the judgment of : . . [State officials] .. ., fairly exercised, the black race in Delaware were iteealy disqualified, by want of intelligence, experience, or moral integrity, to sit on: juries.” ” Neal, supra at 392. (Emphasis added. ) And, as ics racial = so also with. classes of common ancestry: “... [I]t taxes our credulity to say that mere chance resulted: in. there being no members of this og [persons of Mexican. descent} among the over six thousand jurors called in the past 25 vears. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury “commissioner.” Hernandez, supra at 482. Just as equal access to potential jury service is Con- stitutionally mandated for Blacks, Mexicans, and “all ’ . naturalized Celtic Irishman,”* so is it. Constitutionally mandated -for young adults. — : Strauiler, supra at 308. 10 If it be supposed, as it must, that a grand jury should be selected. from and truly represent a cross section of the community with its broad spectrum of social, economic, political, religious and cultural variations, then the delib- erate and systematic exclusion of one identifiable com- ponent of that’ spectrum (i.e., young adults) renders the grand jury selection process Constitutionally invalid. How can a jury so selected fulfill fts historie democratic func- _ tion without the benefit of intelligent voung adults of sound mind and good character among its members? The Second August, 1964 Gouud Jury, bereft-as it was ° of the attitudes and judgements of those between the ages of 21 and 35, could not sit in impartial judgment of peti- tioners, all of whom were under the age of 35. _ CONCLUSION ' For these reasons a writ of certiorari should issue to- ' review the judgment and opinion of the Court of — peals for the Second Circuit. see i nisecione ee G. Gorpon Davis ~ Daviv Girman ror. JosePH T. McLAuGHLIn = Attorneys for the Amicus Curiae New York Presbytery Task Force For Justice 7 West 11th Street. New York, New York 10011 | (212) 924-5620 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1397%3A5. Public record. Not legal advice.