1. Petitioner was convicted in a federal court in the District
of Columbia for violating the Harrison Narcotics Act. In the
circumstances of this case, he was not denied the trial "by an
impartial jury" guaranteed by the Sixth Amendment, although the
jury was composed entirely of employees of the Federal Government
and one of them and the wife of another were employees of the
Treasury Department, but not of its Bureau of Narcotics, which
administers and enforces the federal narcotics statutes. Pp.
335 U. S.
498-514.
2. A motion to strike the entire panel for alleged
irregularities in the method of its selection, which was not made
until after an entire morning had been consumed in uncompleted
efforts to select a jury and which was supported solely by
counsel's unsworn statements, without any proof or offer of proof,
was without merit. Pp.
335 U. S.
503-504.
3. Given 10 arbitrary choices among 22 prospective jurors not
disqualified for cause, of whom 13 were government employees and 9
privately engaged, petitioner knowingly rejected by peremptory
challenges all 9 of the latter and accepted without challenge all
but one of the former.
Held: his objection to the resulting jury on the ground
that it consisted entirely of government employees was not
justified. Pp.
335 U. S.
504-512.
4. In view of the D.C.Code (1940) § 11-1420, which removed (with
specified exceptions) the previously existing disqualification of
government employees for jury service in the District of Columbia
in criminal and other cases to which the Government is a party, the
mere fact of government employment is insufficient to disqualify a
juror who is otherwise qualified.
United States v. Wood,
299 U. S. 123. Pp.
335 U. S.
508-512.
5. Where petitioner knew that the wife of one juror was employed
by the Treasury and knew that another juror was a government
employee, but failed to inquire as to the exact nature of the
latter's employment and failed to challenge either juror while the
jury
Page 335 U. S. 498
was being selected, petitioner's challenge to these two jurors
in a motion for a new trial was rightly overruled. Pp.
335 U. S.
512-514.
82 U.S.App.D.C. 332, 163 F.2d 817, affirmed.
Petitioner was convicted in the United States District Court for
the District of Columbia of violating the Harrison Narcotics Act,
26 U.S.C. § 2553. The jury was composed entirely of employees of
the Federal Government, and one of them and the wife of another
were employees of the Treasury Department, but not of its Bureau of
Narcotics, which administers and enforces the federal narcotics
statutes. The Court of Appeals affirmed the conviction. 82
U.S.App.D.C. 332, 163 F.2d 817. This Court granted certiorari. 333
U.S. 873.
Affirmed, p.
335 U. S.
514.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Petitioner's primary complaint is that he has been denied the
trial "by an impartial jury" which the Sixth Amendment guarantees.
He was convicted of violating the Harrison Narcotics Act [
Footnote 1] by a jury composed entirely
of employees of the Federal Government. One juror,
Page 335 U. S. 499
Moore, and the wife of another, Root, were employed in the
office of the Secretary of the Treasury, who is charged by law with
responsibility for administering and enforcing the federal
narcotics statutes. [
Footnote
2] As against objections based on these facts and other
matters, the Court of Appeals affirmed petitioner's conviction and
sentence. 82 U.S.App.D.C. 332, 163 F.2d 817. He has sought relief
here by application for certiorari limited to the issues relating
to the jury's selection and composition. To review the
determination made of them by the Court of Appeals, we granted
certiorari. 333 U.S. 873.
Petitioner's objections comprehend an attack upon the entire
panel of prospective jurors, made during the course of
voir
dire examination, in an effort to have the panel stricken; a
challenge to the jury as finally constituted, after petitioner had
exhausted his ten peremptory challenges,
voir dire
examination had been completed, and the twelve jurors who tried the
case had been qualified; and, either separately or in conjunction
with his other objections, [
Footnote 3] a claim of reversible error on account of
the
Page 335 U. S. 500
inclusion of Moore and Root as jurors. An adequate understanding
of the issues thus raised requires a condensed statement of the
proceedings followed in the District Court in the selection of the
jury.
Pursuant to customary practice, those proceedings began with the
seating in the box of twelve prospective jurors for purposes of
examination on
voir dire. These twelve had been chosen
previously, in accordance with prevailing practice, from jury lists
maintained to supply grand and petit juries for all divisions of
the District Court.
Cf. D.C.Code § 11-1401
et
seq. There is no claim that those lists were improperly made
up. The usual preliminary examination began and continued until the
noon recess, as is later noted, with counsel raising no question
concerning the constitution of the lists or the panel.
Petitioner inquired, among other things, how many were
Government employees. Five of the original twelve indicated they
were. One of these was excused by the court. The other four,
including Moore, remained unchallenged, and served on the jury. The
seven remaining veniremen, including two housewives, were engaged
in private occupations. All seven were challenged peremptorily by
petitioner.
To replace them and the one excused by the court, others,
including Root, were called from time to time, and were examined in
substantially the same manner as the original twelve. Altogether
they numbered thirteen, nine Government employees, two in private
employment, and two the nature of whose work does not appear. Of
the latter, one was excused by the court and the other peremptorily
challenged by the prosecution. Petitioner peremptorily challenged
both of those in private employment and one of the nine in
Government service. This exhausted petitioner's peremptory
challenges, and left
Page 335 U. S. 501
eight unchallenged Government employees to join the four like
ones originally called in composing the twelve who made up the jury
as finally chosen. [
Footnote
4]
The Process of selection was interrupted shortly before noon,
when petitioner still had two unused peremptory challenges, by a
shortage of veniremen. Anticipating that others would be available
later in the day, the court adjourned until 2:30 p.m. On its
reconvening, additional prospective jurors were available. But
petitioner then moved for the first time to strike the entire panel
for alleged irregularity in the method used for selecting it,
asserted to have been discovered by counsel through "a little
investigation" during the noon recess. The court denied the motion,
with leave to renew the objection in a motion for a new trial if
petitioner should be convicted. [
Footnote 5] The material part of the colloquy relating to
these proceedings and disclosing the grounds for the motion and its
denial is set forth in the margin. [
Footnote 6]
Page 335 U. S. 502
Petitioner then exercised his two remaining peremptory
challenges, after which he inquired of the twelve jurors then
impaneled how many were employed by the Government. When all
indicated they were, petitioner challenged the jury as impaneled
for cause. The challenge and the court's ruling in denial of it
appear below. [
Footnote 7]
Although counsel sought to intermingle with this challenge
Page 335 U. S. 503
the one previously made to the panel, [
Footnote 8] the two are distinct attacks, and must be
treated separately.
I.
The method of selecting the panel. -- Apart from the
objection that this challenge came too late,
cf. Agnew v.
United States, 165 U. S. 36, it is
without merit. It consists exclusively of counsel's statements,
unsworn and unsupported by any proof or offer of proof. The
Government did not explicitly deny those statements. But it was
under no necessity to do so. The burden was upon the petitioner, as
moving party, "to introduce, or to offer, distinct evidence in
support of the motion."
Glasser v. United States,
315 U. S. 60,
315 U. S. 87.
See also Smith v. Mississippi, 162 U.
S. 592;
Tarrance v. Florida, 188 U.
S. 519;
Martin v. Texas, 200 U.
S. 316;
cf. Brownfield v. South Carolina,
189 U. S. 426.
Of itself, this failure in tender of proof would require denial
of the motion. But, even if proof had been made or offered, there
would have been no showing sufficient to require contrary action.
The statements, if treated as allegations, comprehended in
substance but two things. One was the very brief statement of facts
relating to the procedure followed -- namely, the subpoenaing of
about five hundred jurors, their equal division for assignment to
two branches of the court, and that those in each group who did not
wish to serve were "told to step to one side." This was all in the
way of facts. From them followed counsel's vague and general
conclusion that the
Page 335 U. S. 504
remaining number, from which it was said jurors were picked,
"consisted mostly of Government employees and housewives, and
unemployed." Counsel then urged that this furnished basis for
applying the decision in
Thiel v. Southern Pacific Co.,
328 U. S. 217, as
not affording "a proper cross-section."
The trial court rightly held the
Thiel case
inapplicable, for the reasons that it requires a showing of
systematic exclusion or attempt to exclude from the panel a
particular occupational group or groups otherwise eligible for jury
service, and the statements and conclusions of counsel here
disclosed no such attempt. Beyond this, moreover, it seems highly
doubtful that the facts set forth in the statement, if proved,
would constitute any irregularity. Nothing is stated concerning the
numbers who stepped to one side, their occupational
classifications, whether they were excused or, if any, how many, by
whom or for what cause. For all one could know from the statement,
those stepping to one side may have included but one in ten, and,
of these, half or more may have been held for jury service after
claiming exemption or seeking excuse. The facts stated therefore,
taken in the light of pertinent facts omitted, lay no foundation
whatever for counsel's conclusions, inferentially, that jurors were
selected only from those not standing aside, and explicitly that
the remaining number "consisted mostly of Government employees and
housewives and unemployed." The statement was obviously
insufficient to lay any foundation for valid attack upon the method
followed in selecting the panel.
II.
Composition of the jury. -- The essence of this
attack consists in counsel's statements,
"Now, I have exhausted my ten challenges, and here I have twelve
Government jurors who are to decide this defendant's case, which is
a violation of the Federal statute, being
Page 335 U. S. 505
brought in a Federal Court, prosecuted by a Federal prosecutor,
and the case is presented by Federal agents. [
Footnote 9]"
So put, the challenge has the sound of plausibility. Possibly it
would have more of the substance of it if in this case it did not
appear that petitioner himself was responsible, by deliberate
choice, for the jury's final composition.
Given ten arbitrary choices among twenty-two prospective jurors
not disqualified for cause, of whom thirteen were Government
employees and nine privately engaged, he knowingly, of his own
right, rejected nine of the latter and, with knowledge or the full
opportunity to secure it, accepted without challenge all but one of
the former. It would seem that, ordinarily, one anxious to secure a
jury representative of both private and public employment in a
community like Washington, [
Footnote 10] and particularly to avoid overweighting the
jury with Government employees, well might have found a more
effective way of utilizing his peremptory challenges to achieve
those objectives.
The right of peremptory challenge is given, of course, to be
exercised in the party's sole discretion, and was so exercised
here. We do not question petitioner's privilege to utilize his
peremptory challenges as he did. But the right is given in aid of
the party's interest to secure a fair and impartial jury, not for
creating ground to claim partiality which, but for its exercise,
would not exist. [
Footnote
11]
Page 335 U. S. 506
It does not follow that, by using the right as he pleases, he
obtains the further one to repudiate the consequences of his own
choice.
Here, petitioner was given a fairly and lawfully selected panel.
From it, all disqualified for cause were excused. The fully
qualified jurors remaining were fairly evenly distributed among
persons publicly and privately employed. For reasons entirely his
own, petitioner chose to eliminate the latter and retain the
former. This was a deliberate choice, not an uninformed one. We
need draw no conclusion concerning whether or not it was made for
the purpose of creating the basis now asserted for objecting to the
jury's composition. [
Footnote
12] Rather, we must take it as having been made exactly for the
purpose for which the right was given -- namely, to afford
petitioner an opportunity beyond the minimum requirements of fair
selection to express an arbitrary preference among jurors properly
selected and fully qualified to sit in judgment on his case.
Cf. note 11 Any
other view would convict him of abusing his privilege. This we are
unwilling to do.
Page 335 U. S. 507
By the same token, we are not willing to join in repudiating the
consequences of his own selection. We take petitioner at his word
as expressed by his repeated choices. The fact that he exercised
his peremptory challenges as he did, so frequently and consistently
to eliminate privately employed jurors and retain only Government
employees, hardly can be said to give cause for him to claim
overweighting of the jury with Government employees. There was no
defect of the panel in this respect. Nor is there any claim or
basis for one that the prosecution utilized its peremptory
challenges to bring about a jury constituted only of them. It would
be going very far to say that, in the circumstances shown by this
record, petitioner was deprived, either in law or in fact, of an
impartial jury, or indeed of one fairly representative of the
community. If deprivation there was, even in the latter sense,
[
Footnote 13] it was the
result of his own choice, not of imperfection in the choices
tendered him by law or in the procedures of selection afforded.
In ruling upon petitioner's objection, the trial judge assessed
the situation as follows:
"Chance has resulted in this jury panel of twelve being composed
of Government employees, but the jury list from which they by
chance were selected is a mixture of Government employees and
private employees. [
Footnote
14]"
Even in this view of what took place, petitioner has no cause to
complain. The well settled rule is that, given a lawfully selected
panel, free from any taint of invalid exclusions or procedures in
selection and from which all disqualified for cause have been
excused, no cause for complaint arises merely from the fact that
the jury finally chosen happens itself not to be representative of
the panel or indeed of
Page 335 U. S. 508
the community. [
Footnote
15] There is, under such circumstances, no right to any
particular composition or group representation on the jury.
[
Footnote 16]
Finally, in this phase of the case,
United States v.
Wood, 299 U. S. 123,
goes far toward precluding petitioner's objection. That decision
sustained the Act of Congress of August 22, 1935, now D.C.Code
1940, § 11-1420, removing (with specified exceptions) the
disqualification of Government employees previously existing in the
District of Columbia for jury service in criminal and other cases
to which the Government was a party. The disqualification had
arisen in 1908 by virtue of the decision, made on common law
grounds, in
Crawford v. United States, 212 U.
S. 183.
Owing to the large and increasing proportion of Government to
private employees in the District, the effect of the
Crawford decision had been, by 1935, to create
difficulties in securing properly qualified jurors. To meet this
situation, the 1935 statute was adopted. [
Footnote 17] It continued
Page 335 U. S. 509
specified exemptions previously existing, including all
executive and judicial officers of the United States, and then
directed in presently material part:
"All other persons, otherwise qualified according to law,
whether employed in the service of the government of the United
States or of the District of Columbia . . . , shall be qualified to
serve as jurors in the District of Columbia, and shall not be
exempt from such service. . . ."
D.C.Code 1940, § 11-1420.
The
Wood case was a criminal prosecution for theft from
a private corporation. Three of the jurors were federal employees,
challenged for cause on that ground. In sustaining the conviction
and the statute, the Court first held that Congress had not
"undertaken to preclude the ascertainment of actual bias," and that
the question in issue was limited to "implied bias, a bias
attributable in law to the prospective juror regardless of actual
partiality." 299 U.S. at
299 U. S.
133-134. As to this, the Court said of the statute,
"The enactment itself is tantamount to a legislative declaration
that the prior disqualification [under the
Crawford
ruling] was artificial, and not necessary to secure
impartiality."
Id. 299 U.S. at
299 U. S.
148-149. By way of sustaining the legislative judgment,
the Court added on its own account:
"In criminal prosecutions, the Government is acting simply as
the instrument of the public in enforcing penal laws for the
protection of society. In that enforcement all citizens are
interested. It is difficult to see why a governmental employee,
merely by virtue of his employment, is interested in that
enforcement either more or less than any good citizen is or should
be. . . . We think that the imputation of bias simply by virtue of
governmental employment, without regard to any actual partiality
growing out of the nature and circumstances of particular
Page 335 U. S. 510
cases, rests on an assumption without any rational
foundation."
Ibid.
The Court was not confronted in the
Wood case with the
exact situation we have here -- namely, that all of the jurors
finally selected were Government employees. But the purport of the
decision was that the mere fact of Government employment, without
more, would be insufficient under the statute's mandate to
disqualify a juror. Implicit in this was the conception that,
insofar as that fact alone is or may be effective, Government
employees and persons privately engaged were put upon the same
basis without any limitation, explicit or implied, upon the number
who might be selected as jurors from either group. [
Footnote 18] The effect of these rulings,
we think, was to make Government employees subject, as are all
other persons and in the same manner, to challenge for "actual
bias," [
Footnote 19] and,
under all ordinary circumstances, only to such challenge. In that
view, absent any basis for such challenge, we do not see how a
right to challenge the panel as a
Page 335 U. S. 511
whole can arise from the mere fact that the jury chosen by
proper procedures from a properly selected panel turns out to be
composed wholly of Government employees or,
a fortiori, of
persons in private employment.
The opinion in the
Wood case, however, was very careful
to stress more than once that the Sixth Amendment prescribes no
specific tests for determining impartiality. 299 U.S. at
299 U. S. 133.
It afforded further assurances, beyond those given by Art. III, §
2, par. 3, relating to trial by jury, in respect to speed,
publicity, impartiality, etc.
Id. at
299 U. S. 142.
But it did not require in these respects "the particular forms and
procedure used at common law." 299 U.S. at
299 U. S. 143.
The opinion emphasized especially that
"Impartiality is not a technical conception. It is a state of
mind. For the ascertainment of this mental attitude of appropriate
indifference, the Constitution lays down no particular tests, and
procedure is not chained to any ancient and artificial
formula."
Pp.
299 U. S.
145-146.
This seems to contemplate implicitly that, in each case, a broad
discretion and duty reside in the court to see that the jury, as
finally selected, is subject to no solid basis of objection on the
score of impartiality, even though that basis might possibly arise
through the working of chance or other lawful factors wholly within
the framework of proper procedures for selecting the panel and
choosing the jury from it. Such a situation could arise, if at all,
only in the rarest and most extraordinary combination of
circumstances.
Page 335 U. S. 512
But even if that possibility is taken as conceded, for the
reasons we have already stated, this case presents no such
problem.
III.
The challenges to Jurors Moore and Root. --
Considered as independent and individual challenges for "actual
bias," [
Footnote 20] the
objections to these jurors come too late. Moore was a Treasury
messenger. Root's wife was a Treasury employee. Petitioner's
counsel knew of the employment of Root's wife, and that Moore was a
federal employee. He did not inquire where Moore was employed, but
could have known his employment's exact nature. [
Footnote 21] It does not appear that either
Moore or Root's wife was connected with the Bureau of Narcotics, or
had any duty even remotely relating to its functions or those of
the Secretary in relation to them. [
Footnote 22]
As respects challenge for "actual bias," the
Wood
opinion was careful to put Government employees on the same basis
as prospective jurors privately employed. It stated:
"All the resources of appropriate judicial inquiry remain
available in this instance, as in others, to ascertain whether a
prospective jurors, although not exempted from service, has any
bias in fact which would prevent his serving as an impartial juror.
In dealing with an employee of the Government, the court would
properly be solicitous to discover whether, in view of the nature
or circumstances of his employment, or of the relation of the
particular
Page 335 U. S. 513
governmental activity to the matters involved in the
prosecution, or otherwise, he had actual bias, and, if he had, to
disqualify him. [
Footnote
23]"
Petitioner challenged neither Moore nor Root for "actual bias,"
though afforded the fullest opportunity legally and factually for
doing so. After accepting them before trial, he could not challenge
them successfully in a motion for a new trial.
Queen v.
Hepburn, 7 Cranch 290,
11 U. S. 297;
Raub v. Carpenter, 187 U. S. 159;
cf. United States v. Gale, 109 U. S.
65.
See Kohl v. Lehlback, 160 U.
S. 293,
160 U. S.
299-302. Whether or not employment in the Treasury
outside the Narcotics Bureau would constitute ground for challenge
for "actual bias," [
Footnote
24] such employment in the connections disclosed here affecting
Moore and Root was not so obvious a disqualification or so
inherently prejudicial as a matter of law, in the absence of any
challenge to them before trial, as to require the court, of its own
motion or on petitioner's suggestion afterward, to set the verdict
aside and grant a new trial.
The challenge to Moore and Root stands no better if considered
not as a belated individual challenge for "actual bias" to each,
but as additional support or buttressing for the challenge to the
composition of the jury
Page 335 U. S. 514
as a whole. Apart from the fact that the two sorts of challenge
are distinct, and are therefore to be dealt with separately, the
challenge to the composition of the jury, as made to the trial
court and as ruled upon by it, made no special reference to either
Moore or Root, or the particular bases for objection now raised to
them. [
Footnote 25] Those
references, so far as is shown by the record, first appeared in the
assignments of error made by petitioner in the Court of Appeals.
They therefore came too late, even if they could be considered as
forming part of the challenge to the jury's composition or as
adding anything of weight to that challenge.
Whether the matter is considered technically or on the broader
nontechnical basis of impartiality as a state of mind, petitioner
has shown no ground for believing that he did not receive a trial
"by an impartial jury" such as the Sixth Amendment assured him.
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
26 U.S.C. § 2553. The indictment charged, substantially in the
statutory language, that petitioner knowingly, willfully,
unlawfully and feloniously did "purchase, sell, dispense and
distribute" certain narcotic drugs "not then and there in or from
the original stamped package."
[
Footnote 2]
Pursuant to 26 U.S.C. § 2606, the Secretary has delegated to the
Commissioner of Narcotics "the investigation, detection and
prevention of violations of the Federal narcotic and marihuana
laws." 21 C.F.R., 1946 Supp. § 206.1. The Bureau of Narcotics,
created within the Treasury Department, 5 U.S.C. § 282, is subject
to the Secretary's "general supervision and direction," 21 C.F.R.,
1946 Supp., § 206.3, and its decisions are subject to review by
him. 5 U.S.C. § 282c. There were 87,830 employees in the Treasury
Department as of September 30, 1947, of whom 19,645 were employed
in the District of Columbia. Monthly Report of Employment,
Executive Branch of the Federal Government, U.S.Civ.Serv.Comm'n,
September, 1948, Table V. Published figures are not available to
show the number of these employed by the Narcotics Bureau, but
obviously, in view of the number and diversity of the Treasury
Department's functions, they must have comprised only a
comparatively small fraction of the total.
[
Footnote 3]
See 335 U. S.
@
[
Footnote 4]
In summary, twenty-five prospective jurors were examined. Of
these, one was peremptorily challenged by the prosecution and two
were excused by the court for cause. Of the remaining twenty-two,
thirteen were in Government work, nine privately employed.
Petitioner peremptorily challenged the nine and one Government
employee, thus exhausting his peremptory challenges. In this
manner, the jury composed wholly of federal employees resulted.
Prior to his trial, petitioner made no individual challenge to any
of the twelve who constituted the jury as finally selected. They
included Moore and Root.
[
Footnote 5]
The objection was renewed in petitioner's motions in arrest of
judgment and for a new trial, and was denied in each instance.
[
Footnote 6]
"Mr. BUCKLEY. If your Honor please, I have made a little
investigation of the impaneling or selection of this panel here, as
well as selection of the other panels sitting this month, and I
most respectfully submit that the method and procedure used in
selecting is irregular, and I am going to move to strike this whole
panel, the reason being this: that, from the inquiries I have made,
there were about five hundred or five hundred and a few jurors
subpoenaed -- that is, individually subpoenaed to appear here --
from which they selected a sufficient number of jurors here."
"If there were five hundred, they were divided into two groups,
two hundred fifty for one court and two hundred fifty for another
court, and, of the two hundred fifty for each court, they were
asked how many of those two hundred fifty did not desire to serve
as jurors, to raise their hands, so those who raised their hands
were told to step to one side, and out of the remaining number that
were left they picked the jurors, and the remaining number that
were left consisted mostly of Government employees and housewives,
and unemployed. There are only a few unemployed."
"I know Your Honor has read this case in the Supreme Court,
Thiel v. Southern Pacific Company. This is not a proper
cross-section."
"The COURT. The
Thiel case holds that it must be shown
that there was a systematic attempt to exclude a certain type or
group of persons. . . . That is what that case holds, and that is
not the situation here."
[
Footnote 7]
"Mr. BUCKLEY. If Your Honor please, with reference to the motion
which I made a while ago, moving to strike the whole panel, I now
find myself in this position. I have exhausted my ten
challenges."
"In selecting these different panels on the first Tuesday of the
month, the Clerk says to the five hundred or two hundred fifty,
whichever it may be, individuals who are summoned to appear here,
from which to pick the juries, 'All those who do not desire to
serve, step to one side.' That leaves a batch of Government
employees and housewives."
"Now, I have exhausted my ten challenges, and here I have twelve
Government jurors who are to decide this defendant's case, which is
a violation of the Federal statute, being brought in a Federal
Court, prosecuted by a Federal prosecutor, and the case is
presented by Federal agents. I submit there is reason to challenge
these people for cause."
"The COURT. I will deny the motion and request at this time that
you take it up later, in a motion after the verdict, if you think
it is sound. I do not believe your motion is sound. Chance has
resulted in this jury panel of twelve being composed of Government
employees, but the jury list from which they by chance were
selected is a mixture of Government employees and private
employees."
[
Footnote 8]
[
Footnote 9]
See Note 7
[
Footnote 10]
[
Footnote 11]
The right is in the nature of a statutory privilege, variable in
the number of challenges allowed, which may be withheld altogether
without impairing the constitutional guaranties of "an impartial
jury" and a fair trial.
Stilson v. United States,
250 U. S. 583,
250 U. S. 586,
quoted in
United States v. Wood, 299 U.
S. 123,
299 U. S.
145.
Except in cases of treason and other capital offenses, no right
to peremptory challenges existed in federal criminal trials until
the Act of June 8, 1872, 17 Stat. 282, Rev.Stat. § 819, unless a
rule of the particular federal court made applicable a provision of
state law allowing peremptory challenges in noncapital cases. Act
of April 30, 1790, § 30, 1 Stat. 112, 119;
United States v.
Randall, Fed.Cas. No. 16,118;
United States v.
Cottingham, Fed.Cas., No. 14,872;
United States v.
McPherson, Fed.Cas., No. 15,703;
United States v.
Krouse, Fed.Cas., No. 15,544. (However, the right of
peremptory challenge in capital cases, which existed at common law,
has been spoken of as "one of the most important of the rights
secured to the accused."
Pointer v. United States,
151 U. S. 396,
151 U. S. 408;
see also Lewis v. United States, 146 U.
S. 370,
146 U. S.
376).
In noncapital cases such as this, the privilege affords
protection additional to constitutional guaranties, to be had
exclusively at the party's option. If no such privilege had been
given in the District of Columbia, the normal and valid course of
selection in this case would have produced a jury composed both of
federal employees and persons engaged in private occupations -- in
other words, would have made it impossible for petitioner to raise
his objection to the jury's composition.
[
Footnote 12]
[
Footnote 13]
The assumption is not meant to imply that such a deprivation
alone would constitute grounds for challenge to the jury.
See text and authorities cited
infra at
note 15
[
Footnote 14]
See note 7
[
Footnote 15]
Ruthenberg v. United States, 245 U.
S. 480;
Thomas v. Texas, 212 U.
S. 278,
212 U. S. 282;
Virginia v. Rives, 100 U. S. 313,
100 U. S.
322-323;
Higgins v. United States, 81
U.S.App.D.C. 371-372, 160 F.2d 222-223;
see Fay v. New
York, 332 U. S. 261,
332 U. S.
284-285;
Thiel v. Southern Pacific Co.,
328 U. S. 217,
328 U. S. 220;
cf. Akins v. Texas, 325 U. S. 398,
325 U. S.
403-404.
[
Footnote 16]
Ibid.
[
Footnote 17]
See United States v. Wood, 299 U.S. at
299 U. S.
132-133, quoting from the opinion of the Court of
Appeals, 65 App.D.C. 330, 332, 83 F.2d 587, 589.
See also
House Rep. 1421, Sen.Rep. 1297, 74th Cong., 1st Sess.; 79 Cong.Rec.
13,401, relating to the bill which became the Act of Congress of
August 22, 1935, now D.C.Code 1940, § 11-1420. The Government's
brief in the
Wood case, relying upon figures assembled
from various official sources, indicated that, of the probable
353,949 persons otherwise available for jury service in the
District of Columbia as of 1935, some 156,874, or 44.3 percent,
were disqualified to serve either by virtue of exemption or by the
mere fact of employment by or receipt of benefits from the
Government, under the ruling in the
Crawford case.
[
Footnote 18]
Given, of course, a panel and jury otherwise selected in
accordance with law. Since the
Wood case, the Court of
Appeals for the District of Columbia has held that juries including
four and nine Government employees were not inherently defective.
Great Atlantic & Pacific Tea Co. v. District of
Columbia, 67 App.D.C. 30, 89 F.2d 502;
Higgins v. United
States, 81 U.S.App.D.C. 371, 160 F.2d 222. The Court of
Appeals for the Fifth Circuit has held that a Canal Zone jury
composed entirely of persons who were either employees or tenants
of the Government was not improperly constituted.
Schackow v.
Government of the Canal Zone, 108 F.2d 625.
[
Footnote 19]
The phrase "actual bias" is used in this opinion as it was in
the
Wood case. The
Wood opinion stated: "The bias
of a prospective juror may be actual or implied; that is, it may be
bias in fact, or bias conclusively presumed as matter of law." 299
U.S. at
299 U. S. 133.
It later pointed out that
"Challenges at common law were to the array -- that is, with
respect to the constitution of the panel, or to the polls, for
disqualification of a juror. Challenges to the polls were either
'principal' or 'to the favor,' the former being upon grounds of
absolute disqualification, the latter for actual bias."
299 U.S. at
299 U. S.
134-135. As appears from the portion of the opinion
quoted in the text
infra at
note 23 the Court regarded "actual bias" or challenge "to
the favor" as including not only prejudice in the subjective sense,
but also such as might be thought implicitly to arise
"in view of the nature or circumstances of his employment, or of
the relation of the particular governmental activity to the matters
involved in the prosecution, or otherwise."
[
Footnote 20]
Cf. text
infra at notes
3 and |
3 and
S. 497fn8|>8.
[
Footnote 21]
Apart from petitioner's opportunity for discovery by specific
inquiry, lists of jury panels, showing the name, age, address, and
occupation of each member are prepared in the criminal division of
the District Court for the District of Columbia, and are available
to counsel before trial on request.
[
Footnote 22]
Cf. note 2
[
Footnote 23]
299 U.S. at
299 U. S.
133-134.
[
Footnote 24]
In
United States v. Wood, supra, the Court, speaking of
the
Crawford case, said:
"It will be observed that the employment was in the very
department to the affairs of which the alleged conspiracy related.
But the decision took a broader range, and did not rest upon that
possible distinction."
299 U.S. at
299 U. S. 140.
It is at least highly doubtful that an employment having no more
relationship to the particular governmental activity involved in
the prosecution than did that of Moore in this case,
cf.
note 2 or that of Root's wife,
would give ground for challenge for "actual bias," although coming
under the same ultimate departmental supervision, even though if
timely called to the court's attention the circumstance might
afford basis for the court, in an excess of caution, to excuse the
venireman.
[
Footnote 25]
See note 7
MR. JUSTICE JACKSON, dissenting.
On one proposition I should expect trial lawyers to be nearly
unanimous: that a jury, every member of which is in the hire of one
of the litigants, lacks something of being an impartial jury. A
system which has produced such an objectionable result and always
tends to repeat it should, in my opinion, be disapproved by this
Court in exercise of its supervisory power over federal courts.
Were the employer an individual, a railroad, an industrial
concern, or even a state, I think bias would more readily be
implied; but its existence would be no more probable. This criminal
trial was an adversary proceeding, with the Government both an
actual and nominal
Page 335 U. S. 515
litigant. It was the patron and benefactor of the whole jury,
plus one juror's wife for good measure. At the same time that it
made its plea to them to convict, it had the upper hand of every
one of them in matters such as pay and promotion. Of late years,
the Government is using its power as never before to pry into their
lives and thoughts upon the slightest suspicion of less than
complete trustworthiness. It demands not only probity, but
unquestioning ideological loyalty. A government employee cannot
today be disinterested or unconcerned about his appearance of
faithful and enthusiastic support for government departments whose
prestige and record are, somewhat, if only a little, at stake in
every such prosecution. And prosecutors seldom fail to stress, if
not to exaggerate, the importance of the case before them to the
whole social, if not the cosmic, order. Even if we have no reason
to believe that an acquitting juror would be subjected to
embarrassments or reprisals, we cannot expect every clerk and
messenger in the great bureaucracy to feel so secure as to put his
dependence on the Government wholly out of mind. I do not doubt
that the government employees, as a class, possess a normal
independence and fortitude. But we have grounds to assume also that
the normal proportion of them are subject to that very human
weakness, especially displayed in Washington, which leads men to "
. . . crook the pregnant hinges of the knee where thrift may follow
fawning." So I reject as spurious any view that government
employment differs from all other employment in creating no
psychological pressure of dependency or interest in gaining favor
which might tend to predetermine issues in the interest of the
party which has complete mastery over the juror's ambition and
position. But, even if this suspicion can be dismissed by the Court
as a mere phantasy, it cannot deny that such a jury has a
one-sided
Page 335 U. S. 516
outlook on problems before it, and an appearance of government
leverage which is itself a blemish on the name of justice in the
District of Columbia.
Because this semblance of partiality reflects on the courts,
even if it does not prejudice the defendant in a particular case, I
am not disposed to labor the argument as to whether counsel for
this defendant did all that he might or should have done by way of
objection. He did protest as soon as it was apparent what was
happening to him, and that seems to me sufficient in face of
adverse rulings. But even if defendant's objection were belated or
technically defective, I still think the court deserves, and should
require, a more neutral jury for its own appearances, even if
defendant does not deserve and cannot demand one.
The cause of overloading this jury with persons beholden to the
Government is no mystery, and no accident. It is due to a defect in
a system which will continue to operate in the same direction so
long as the same practice is followed. While counsel did not prove
it under oath, he stated it for the record, and neither the
District Attorney nor the learned Trial Judge, both of whom must
have known the facts, denied or questioned his statement, or asked
him for better evidence. That defect is this: when the panel of
jurors was drawn, the court appears to have asked all those who did
not wish to serve to step aside, and they were excused from
serving.
This amiable concession in some jurisdictions might produce no
distortion of the composition of the panel; but it is certain to do
just that in the District of Columbia because of the dual standard
and dubious method of jury compensation. The nongovernment juror
receives $4 per day, [
Footnote 2/1]
which, under present conditions, is inadequate to be compensatory
to nearly every gainfully employed
Page 335 U. S. 517
juror. But the government employee is not paid specially;
instead, he is given leave from his government work with full pay
while serving on the jury. [
Footnote
2/2] The latter class are thus induced to jury service by
protection against any financial loss, while the former are
subjected to considerable disadvantage.
This condition makes it obvious that, if jury service is put on
virtually a voluntary basis and qualified persons are allowed to
decline jury service at their own option, the panel will become
loaded with government employees. If this undue concentration of
such jurors were accomplished by any device which excluded
nongovernment jurors, it unquestionably would be condemned not only
by reason of, but even without resort to the doctrine that
prevailed in,
Ballard v. United States, 329 U.
S. 187;
Thiel v. Southern Pacific Co.,
328 U. S. 217, and
Glasser v. United States, 315 U. S.
60.
Is the result more lawful when it is accomplished by letting one
class exclude themselves, stimulated to do so by the incentive of
such a dual system of compensation?
Of course, the defendant and the prosecution each have
peremptory challenges, ten in this case, which enable each, without
assigning any cause, to excuse that number whom they do not wish to
have sit. This defendant used many of his challenges to excuse
talesmen not employed by the Government, and it is hinted that he
may have packed this jury against himself. The learned Trial Judge
made no such suggestion, however, and he would be better able than
we to detect such tactics. He blamed the situation on "chance." But
the fickle goddess is hardly to be blamed for the result when it
can be seen that the cards were stacked from the beginning. This
was plainly the case when we contrast unequal advantages which the
two parties could get from their equal numbers of challenges.
Page 335 U. S. 518
The Government was confronted by no occasion to use any of its
peremptory challenges to get rid of its adversary's employees. The
defendant was. But, if the defendant should try to use his
challenges to excuse employees of the Government, he would dismiss
one only to incur a probability of getting another. If he exhausted
his challenges in this effort, it would still be futile, for no one
claims he had enough to displace them all. It might not be wise
tactics to show suspicion or disapproval of a class some of whom
will have to sit anyway. Moreover, if he used his challenges as far
as they would go to dislodge government servants, it would leave
him helpless to challenge any of the nongovernment jurors, for
which challenge he might have good reason.
The disadvantage of defendant as to talesmen from government
ranks is more apparent, but not more more prejudicial, than with
talesmen from other walks of life. Whatever reason he may have had
for excusing such a one, the price he would probably have had to
pay for using his challenge was to have one government employee
take another's place. The Government could vacate the seat of a
nongovernment talesman with no such unwelcome results. The short of
the thing is: in no case where the court has intervened to use its
supervisory power to revise federal jury systems has there been any
result so consistently and inevitably prejudicial to one of the
litigants as here, under our noses.
Ballard v. United
States, 329 U. S. 187;
Thiel v. Southern Pacific, 328 U.
S. 217;
Glasser v. United States, 315 U. S.
60. And in cases where a strong minority of the Court
has wanted to go so far as to upset a state jury system as
offensive to fundamental consideration of justice spelled out from
the due process clause of the Fourteenth Amendment, there has been
no such brazen unfairness in actual practice.
Moore v. New
York, 333 U. S. 565;
Fay v. New York, 332 U. S. 261.
Page 335 U. S. 519
The precedent of
United States v. Wood, 299 U.
S. 123, on which the Court leans heavily, is a weak
crutch. That decision held only that the absolute disqualification
of any federal employee, which had been declared in
Crawford v.
United States, 212 U. S. 183,
could constitutionally be removed by the Congress. In the case the
Court was considering, only three out of the twelve were, by
chance, government beneficiaries, and the Court was not confronted
with such a systematic distortion of the jury as was at work here.
It held that, individually, they were not subject to challenge for
cause -- that is, they were not excusable by the court merely
because they were government employees. But to hold that one or a
few government employees may sit by chance is no precedent for
holding that they may fill all of the chairs by a system of
retiring everyone else. Furthermore, that opinion emphasized that
the prosecution in that case was for larceny from a private
corporation. That was not an offense against the Federal Government
as such, except as it has responsibility for prosecuting crimes in
the District that, in the state, would be a matter of no federal
concern or even jurisdiction. But the prosecution before us is not
for an offense of a private aspect; it is an offense against no one
except federal government policy, and the Secretary of the
Treasury, in whose own office one of these jurors was employed, has
exclusive and nationwide responsibility for enforcement of the law
involved.
If we admit every fact, premise, argument, and conclusion stated
in the Court's opinion, it still leaves this one situation
unexplained and unjustified. In federal courts, over which we have
supervisory power, sitting almost within a stone's throw of where
we sit, a system is in operation which has produced and is likely
again and again to produce what disinterested persons are likely to
regard as a packed jury. Approval of it, after all that
Page 335 U. S. 520
has been written of late on the subject of juries, makes these
lofty pronouncements sound a little hollow.
I would reverse this rather insignificant conviction and end
this system before it builds up into a scandalous necessity for
reversal of some really significant conviction.
MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, and MR. JUSTICE
MURPHY join in this opinion.
[
Footnote 2/1]
D.C.Code, title 11, § 1513 (1940).
[
Footnote 2/2]
D.C.Code, title 11, §§ 1421-23 (1940).