1. The validity of New York special jury statutes under the
Federal Constitution is sustained as against a claim of invalidity
based on the ratio of convictions to acquittals in cases tried by
special juries and in cases tried by ordinary juries.
Fay v.
New York, 332 U. S. 261. Pp.
566-567.
2. The claim of systematic, intentional, and deliberate
exclusion of Negroes from the jury is not sustained by the record
in this case. Pp.
333 U. S.
567-569.
297 N.Y. 734, 77 N.E.2d 25, affirmed.
Petitioners were convicted of murder by a special jury in a New
York state court. The Court of Appeals of New York affirmed the
convictions. 297 N.Y. 734, 77 N.E.2d 25. This Court granted
certiorari. 332 U.S. 843.
Affirmed, p.
333 U. S.
569.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioners were indicted in Bronx County, New York, on February
11, 1947, for the crime of murder in the first degree. The District
Attorney moved the court for an order that the trial be by a
special jury, pursuant to New York law, which motion was granted
over opposition on behalf of defendants by assigned counsel. One
hundred and fifty names were drawn from the special jury panel,
Page 333 U. S. 566
under supervision of a Justice of the State Supreme Court, in
the presence of defendants' counsel and without objection.
When the case was called for trial defendants, as permitted by
the state practice, served a written challenge to the panel of
jurors upon the following grounds:
"1. That § 749-aa of the Judiciary Law of the New York is in
violation of § 1 of the Fourteenth Amendment to the Constitution of
the United States."
"2. That qualified Negro jurors were improperly excluded from
the list of special jurors from which said jury panel was
drawn."
"3. That qualified women jurors were improperly excluded from
the list of special jurors from which said jury panel was
drawn."
After full hearing, the challenge was disallowed and petitioners
were tried and convicted. On appeal to the Court of Appeals, the
third ground of challenge to the jury panel was abandoned, and the
convictions were affirmed. 297 N.Y. 734, 77 N.E.2d 25. We granted
certiorari on a petition raising the remaining grounds. 332 U.S.
843.
The constitutionality of the New York special jury statutes has
but recently been sustained by this Court,
Fay v. New
York, 332 U. S. 261,
against a better supported challenge than is here presented, and
the issue warrants little discussion at this time.
Some effort is made by statistics to differentiate this case
from the precedent one as to the ratio of convictions before
special juries contrasted with that before ordinary juries. The
defendants present to us a study from July 1, 1937, to June 30,
1946, which indicates that special juries in Bronx County returned
15 convictions and 4 acquittals
Page 333 U. S. 567
during the period, and concludes that the special jury convicted
in 79% of the cases, while the general juries convicted in 57%. The
District Attorney responds that, in 5 of these 19 cases, the
special jury returned conviction in a lesser degree than that
charged, and hence, in 9 out of 19 cases, withheld all or part of
what the State asked. Moreover, it is said that all but two were
capital cases, another was for manslaughter, and one for criminally
receiving stolen property. It should be observed that the number of
cases involved in these statements is too small to afford a secure
basis for generalizing as to the convicting propensities of the two
jury panels, even if the cases were comparable. But it appears
that, in Bronx County, a system of special and intensive
investigation is applied to capital cases from the moment they are
reported, more careful preparation is given them, and they are
tried by the most experienced prosecutors. This makes this class of
cases not fairly comparable with the "run of the mill" cases,
felony and misdemeanor, that are included in the ordinary jury
statistics. Moreover, none of these facts was laid before the trial
court, which was in the best position to analyze, supplement, or
interpret them. We think, on this part of the challenge, no
question is presented that was not disposed of in
Fay v. New
York, supra. Indeed, on opening the hearing on defendants'
challenge, the trial court said, "I understand the inquiry now is
to be directed to the intentional elimination or disqualification
of women and Negroes on the special jury panel." Counsel for both
defendants assented to this definition of the issues, and no
evidence on other subjects was offered.
Petitioners' remaining point is that
"the trial of the petitioners, Negroes, by a jury selected from
a panel from which Negroes were systematically, intentionally, and
deliberately excluded denied petitioners the equal protection
Page 333 U. S. 568
of law and due process of law guaranteed them by the
Constitution of the United States."
If the evidence supported the assumption of fact included in
this statement, the point would be of compelling merit. The law on
this subject is now so settled that we no longer find it necessary
to write out expositions of the Constitution in this regard.
See Brunson v. North Carolina, 333 U.S. 851 decided March
15, 1948.
It is admitted that, on this panel of one hundred and fifty,
there were no Negroes. But not only is the record wanting in proof
of intentional and systematic exclusion, the only witnesses sworn
testified that there was no such practice or intent. Nothing in the
background facts discredits this testimony. The census figures give
a proportion of Negro to white population in that county of .7% in
1920, 1.0% in 1930, and 1.7% in 1940. It is admitted that, since
the last census, the Negro population has considerably increased.
According to one estimate, the number of colored inhabitants, which
in 1940 was 24,892, has increased to 192,066 in 1948. The same
estimator later revised the figures to between 65,000 and 70,000.
Neither estimate was before the trial court, and no evidence or
finding gives us judicially approved data. Of course, new wartime
arrivals take some time to qualify as active members of the
community, and its machinery of justice cannot be expected
instantaneously to reflect their presence. The official who
compiled the jury lists testified as to Negro jurors that, "from
1946 on, I must have examined at least 500 myself." The number
accepted for service could not be ascertained from the records,
which make no notation of color, but he testified that there were
"maybe two dozen; maybe three dozen." For the special panel, he
testified that he had examined an estimated one hundred Negroes,
and had accepted "maybe a dozen." The testimony is undenied.
Page 333 U. S. 569
The record is utterly devoid of proof of systematic,
intentional, and deliberate exclusion of Negroes from jury
duty.
The judgment is
Affirmed.
MR. JUSTICE MURPHY, with whom MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, and MR. JUSTICE RUTLEDGE concur, dissenting.
This case represents a tragic consequence that can flow from the
use of the "blue ribbon" jury. Two men must forfeit their lives
after having been convicted of murder not by a jury of their peers,
not by a jury chosen from a fair cross-section of the community,
but by a jury drawn from a special group of individuals singled out
in a manner inconsistent with the democratic ideals of the jury
system. That group was chosen because they possessed some trait or
characteristic which distinguished them from the general panel of
jurors, some qualification which made them more desirable for the
State's purpose of securing the conviction of the two petitioners.
Such a basis for jury selection has no place in our constitutional
way of life. It contravenes the most elementary notions of equal
protection, and I can no more acquiesce in its use in this case
than I was able to do in
Fay v. New York, 332 U.
S. 261.
The constitutional invalidity of this "blue ribbon" system does
not depend upon proof of the systematic and intentional exclusion
of any economic, racial, or social group. Nor does it rest upon a
demonstration that "blue ribbon" juries are more inclined to
convict than ordinary juries. Such factors are frequently, if not
invariably, present in "blue ribbon" situations, though proof is
extremely difficult. But they are, at best, only the end products
of the system, not the root evil.
Page 333 U. S. 570
The vice lies in the very concept of "blue ribbon" panels -- the
systematic and intentional exclusion of all but the "best" or the
most learned or intelligent of the general jurors. Such panels are
completely at war with the democratic theory of our jury system, a
theory formulated out of the experience of generations. One is
constitutionally entitled to be judged by a fair sampling of all
one's neighbors who are qualified, not merely those with superior
intelligence or learning. Jury panels are supposed to be
representative of all qualified classes. Within those classes, of
course, are persons with varying degrees of intelligence, wealth,
education, ability, and experience. But it is from that welter of
qualified individuals, who meet specified minimum standards, that
juries are to be chosen. Any method that permits only the "best" of
these to be selected opens the way to grave abuses. The jury is
then in danger of losing its democratic flavor and becoming the
instrument of the select few.
Hence, the "blue ribbon" method of selecting only the "best" of
the general jurors, a method instituted with the highest of
intentions, does violence to the fundamental precepts of the jury
system. Appeals to administrative convenience do not soften that
violence. And, since the method deprives the defendant of the
protection accorded others who are able to draw upon the general
panel, it falls under the ban of the Fourteenth Amendment. I would
therefore reverse the judgment below.