Petitioner, who is General Secretary of the Communist Party of
the United States, was convicted in the District of Columbia of
violating R.S. § 102, 2 U.S.C. § 192, by willfully failing to
appear before the Committee on Un-American Activities of the House
of Representatives in compliance with a subpoena duly served upon
him. On
voir dire examination, government employees on the
jury panel were interrogated individually by petitioner's counsel
as to whether the fact that petitioner was a Communist, the
attitude of the Committee on Un-American Activities toward
Communists, or the recently issued Executive Order 9835 providing
standards for the discharge of government employees upon reasonable
grounds for belief that they are disloyal to the Government, would
prevent them from rendering a fair and impartial verdict. Seven
government employees who gave negative answers to these questions
and testified that they could render a fair and impartial verdict
were permitted to serve on the jury. There was no proof of actual
bias, and petitioner's challenge of these government employees for
cause was denied.
Held: in the circumstances of this case, petitioner was
not denied the trial "by an impartial jury" guaranteed by the Sixth
Amendment. Pp.
339 U. S.
164-172
(a) The enactment of 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, was within the power of Congress and
therefore employees of the Federal Government are not challengeable
solely by reason of their employment.
United States v.
Wood, 299 U. S. 123;
Frazier v. United States, 335 U.
S. 497. Pp.
339 U. S.
165-167,
339 U. S.
172.
(b) While impaneling a jury, the trial court has a serious duty
to determine the question of actual bias and a broad discretion in
its rulings on the challenges therefor, and it must be zealous to
protect the rights of an accused irrespective of his political or
religious beliefs. P.
339 U. S.
168.
(c) One of an unpopular minority group must be accorded that
solicitude which properly accompanies an accused person; but he is
not entitled to unusual protection or exception. P.
339 U. S.
168.
Page 339 U. S. 163
(d) In order to secure the constitutional guarantee of trial by
an impartial jury in the circumstances of this case, it is not
necessary that all government employees be held to be biased as a
matter of law. Pp.
339 U. S. 168,
339 U. S.
172.
(e) The way is open in every case to raise a contention of bias
from the realm of speculation to the realm of fact, and
preservation of the opportunity to prove actual bias is a guarantee
of a defendant's right to an impartial jury. Pp.
339 U. S. 168,
339 U. S.
171-172.
(f) Judicial notice may be taken of Executive Order 9835, but
that does not justify an assumption by this Court that government
employees could not serve fairly and impartially as jurors in the
circumstances of this case -- especially when they stated under
oath that they could do so. Pp.
339 U. S.
169-171.
(g) Nor, in the circumstance of this case, can an exception in
favor of a Communist be carved out of the rule laid down in the
statute and construed in
Wood v. United States and
Frazier v. United States that there is no implied bias by
reason of government employment. P.
339 U. S.
171.
(h) Nor can this Court, any more than the trial court, take
judicial notice of a "miasma of fear" to which government employees
are claimed to be peculiarly vulnerable and from which other
citizens are, by implication, immune. P.
339 U. S.
172.
84 U.S.App.D.C. 31, 171 F.2d 986, affirmed.
Petitioner was convicted in the District of Columbia of
violating R.S. § 102, 2 U.S.C. § 192. The Court of Appeals
affirmed. 84 U.S.App.D.C. 31, 171 F.2d 986. This Court granted
certiorari. 337 U.S. 954.
Affirmed, p.
339 U. S.
172.
Page 339 U. S. 164
MR. JUSTICE MINTON delivered the opinion of the Court.
The question we have for determination here is whether a
challenge for cause to jurors on
voir dire because of
employment by the Federal Government should have been sustained
under the circumstances of this case.
Petitioner was convicted of violating R.S. § 102, 2 U.S.C. §
192, for willfully failing to appear before the Committee on
Un-American Activities of the House of Representatives in
compliance with a subpoena duly served upon him. The Court of
Appeals affirmed, 84 U.S.App.D.C. 31, 171 F.2d 986. We granted
certiorari limited to the question whether Government employees
could properly serve on the jury which tried petitioner. 337 U.S.
954.
Petitioner voluntarily appeared before the House Committee on
Un-American Activities, which had under consideration two bills to
outlaw the Communist Party. Petitioner was and is General Secretary
of the Communist Party of the United States. On his voluntary
appearance before the Committee, petitioner refused to answer
questions as to his name and the date and place of his birth. The
Chairman of the Committee directed that a subpoena be served
forthwith upon petitioner, requiring him to appear before the
Committee on April 9, 1947. On the appointed date, petitioner sent
a representative, but did not appear in accordance with the
subpoena. The Committee reported his refusal to appear to the House
of Representatives, and the House adopted a resolution certifying
the report of the Committee to the United States Attorney for the
District of Columbia. Petitioner was subsequently indicted.
When the case was called for trial, petitioner made a motion for
transfer upon the ground that he could not obtain a fair and
impartial trial in the District of Columbia. In his affidavit
supporting the motion, he posited
Page 339 U. S. 165
this contention mainly on the ground that Government employees,
who comprise a large part of the District's population, are subject
to Executive Order 9835, 12 Fed.Reg.1935, providing standards for
their discharge upon reasonable grounds for belief that they are
disloyal to the Government of the United States. He argued that
Government employees would be afraid to risk the charge of
disloyalty or possible termination of employment which would
allegedly flow from a vote for acquittal. The motion for a transfer
was denied.
Both sides conducted further
voir dire examination at
the conclusion of the court's questioning of the panel. Attorney
for petitioner questioned individually each member of the panel who
indicated that he was employed by the Government. He then
challenged for cause all Government employees. The court denied the
challenge. Petitioner exercised two of his three peremptory
challenges against Government employees. He exhausted all his
peremptory challenges. Seven of the twelve finally selected were
Government employees. Each of the seven expressed the belief that
he could render a fair and impartial verdict.
Is petitioner entitled to a new trial because his challenge to
the Government employees for cause was not sustained? The question
of the presence of Government employees on District of Columbia
juries is not a new controversy. It has been before this Court on
three previous occasions.
Crawford v. United States,
212 U. S. 183;
United States v. Wood, 299 U. S. 123;
Frazier v. United States, 335 U.
S. 497. In the
Crawford case, the defendants
were charged with a conspiracy to defraud the United States. The
Court held that the statute prescribing the eligibility of jurors
in the District of Columbia did not control the subject. The Court
turned to the common law in force in Maryland when the District was
formed, and found that a servant was subject to challenge
Page 339 U. S. 166
for cause at common law where the master was party to the case
on trial. In such a case, bias would be implied as a matter of law.
The Court concluded that it was error to deny a challenge for cause
to a Government employee in a case to which the Government was a
party.
In 1935, Congress, prompted by the paucity of qualified jurors
which resulted from the
Crawford decision, passed an Act
redefining eligibility for jury service in the District of
Columbia. After exempting certain classes, the Act provided:
"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. . . ."
49 Stat. 682, D.C.Code, § 11-1420 (1940).
The constitutionality of this Act was sustained in
United
States v. Wood, 299 U. S. 123,
where the defendant was charged with petty larceny from a private
corporation. The defendant contended that the presence of
Government employees on the jury denied the right of trial by an
impartial jury within the meaning of the Sixth Amendment to the
Constitution of the United States. He pointed out that, under the
common law as expounded by Blackstone, a King's servant, and
therefore a Government employee, could not serve on a jury, and he
argued that this view was carried into the Sixth Amendment.
Chief Justice Hughes, speaking for the Court, meticulously
examined the problem. He found that Blackstone's statement of
disqualification had reference only to servants of private parties,
and that there was no established practice with respect to the
King's servants at common law. The Court was of the view that, even
if such a common law disqualification existed, Congress had power
to remove it. Unlike the statute in the
Crawford case, the
1935 Act left no doubt that Congress intended
Page 339 U. S. 167
to qualify Government employees as jurors. The constitutionality
of such a declaration was presented for the first time. The opinion
carefully emphasized that the Act left accused persons free to show
the existence of actual bias. Only the question of implied bias was
presented. The Court concluded that the guarantee of an impartial
jury was not impaired, stating:
"It is manifest that the act was passed to meet a public need,
and that no interference with the actual impartiality of the jury
was contemplated. The enactment itself is tantamount to a
legislative declaration that the prior disqualification was
artificial and not necessary to secure impartiality. . . . To
impute bias as matter of law to the jurors in question here would
be no more sensible than to impute bias to all store owners and
householders in cases of larceny or burglary."
United States v. Wood, supra, at
299 U. S.
148-149,
299 U. S.
150.
Only last term, in
Frazier v. United States,
335 U. S. 497, the
problem of jury service by Government employees was reexamined.
There, the defendant was tried and convicted of violating the
Narcotics Act by a jury of the District of Columbia composed
entirely, due to circumstances fortuitous or otherwise, of Federal
Government employees. Mr. Justice Rutledge, speaking for the Court,
reexamined the rule of the
Wood case that Government
employees are not disqualified as a matter of law from serving on a
jury in a case to which the Government is a party. Government
employees were again held to be subject to challenge only for
"actual bias."
It would be a work of supererogation to attempt to clarify the
statement of the law after the
Wood and
Frazier
cases. Some may doubt the wisdom of the Court's decision in laying
down the rule, but there can be no doubt that this Court has spoken
very clearly not only once, but twice.
Page 339 U. S. 168
No question of actual bias is before us. The way is open in
every case to raise a contention of bias from the realm of
speculation to the realm of fact. In both the
Wood and
Frazier cases, this Court stressed that, while impaneling
a jury, the trial court has a serious duty to determine the
question of actual bias, and a broad discretion in its rulings on
challenges therefor.
United States v. Wood, supra, at
299 U. S.
133-134,
299 U. S. 150;
Frazier v. United States, supra, at
335 U. S.
511-512. We reaffirm those principles. In exercising its
discretion, the trial court must be zealous to protect the rights
of an accused. And we agree that this the court must do without
reference to an accused's political or religious beliefs, however
such beliefs may be received by a predominant segment of our
population. Ideological status is not an appropriate gauge of the
high standard of justice toward which our courts may not be content
only to strive. But while one of an unpopular minority group must
be accorded that solicitude which properly accompanies an accused
person, he is not entitled to unusual protection or exception.
Petitioner asserts that, in order to secure the constitutional
guarantee of trial by an impartial jury, all Government employees
must be held, in the special circumstances of this case, to be
biased as a matter of law. It is not contended that bias appears as
a fact from the record. As far as it appears, the court was willing
to consider any evidence which would indicate that investigatory
agencies of the Government had recognized in the past or would take
cognizance in the future of a vote of acquittal, but no such proof
was made. Nor was there evidence with respect to the existence of a
climate of opinion among Government employees that they would
jeopardize their tenure or provoke investigation by such a verdict.
Rather, petitioner asks that bias be implied from the recitation of
the following circumstances: he
Page 339 U. S. 169
is a Communist; the instigator of the charges is the Un-American
Activities Committee, which allegedly would take notice of a vote
for acquittal; the issue in the case is contempt of Congress; in
contempt cases, the Government's interest is the vindication of a
direct affront, as distinguished from its role in an ordinary
prosecution. But petitioner primarily bases his case on a request,
in effect, that judicial notice be taken of an aura of surveillance
and intimidation which is said to exist in the District because of
Executive Order 9835, outstanding at the time of the trial.
The "Loyalty Order," as it is popularly known, requires the
investigation of all persons entering civilian employment with the
United States; as to those already in service, heads of departments
and agencies are charged with the duty of making certain that
disloyal persons are not retained. Petitioner maintains that,
because of this Order, Government employees would be hesitant to
vote for acquittal because such action might be interpreted as
"sympathetic association" with Communism.
Of course, the Loyalty Order could be the subject of judicial
notice. Such notice, however, would give only limited illumination.
It is proper to observe that the Loyalty Order is not directed
solely against Communists, and that the crime of which petitioner
was convicted is not a crime peculiar to Communists. Further, the
Loyalty Order preceded the instant trial only by about three
months. It was promulgated by the President on March 21, 1947. This
trial began on June 23, 1947, and was concluded on June 26, 1947.
On May 9, 1947, the President submitted to Congress a request for
an appropriation to carry out the Loyalty Order, [
Footnote 1] which was not
Page 339 U. S. 170
enacted into law until July 31, 1947. [
Footnote 2] It was not until August 18, 1947, that
Standard Form 84, requesting certain pertinent information from
each federal employee, was made available. [
Footnote 3]
The administrative implementation of Executive Order 9835, which
was yet to come, was apparently not the subject of anticipatory
fear by these jurors. Their answers to interrogatories on the
influence of the Loyalty Order were categorically to the contrary.
[
Footnote 4] We must credit
these representations, and this is particularly so in the absence
of any evidence which would indicate an opposite
Page 339 U. S. 171
opinion among Government employees. One may not know or
altogether understand the imponderables which cause one to think
what he thinks, but surely one who is trying as an honest man to
live up to the sanctity of his oath is well qualified to say
whether he has an unbiased mind in a certain matter.
Ultimately, petitioner's contentions amount to this: since he is
a Communist, in view of all the surrounding circumstances, an
exception must be carved out of the rule laid down in the statute,
and construed in
Wood and
Frazier, that there is
no implied bias by reason of Government employment. Thus, the rule
would apply to anyone but a Communist tried for contempt of a
congressional committee, but not to a Communist. We think the rule
in
Wood and
Frazier should be uniformly applied.
A holding of implied bias to disqualify jurors because of their
relationship with the Government is no longer permissible. The Act
makes no exception for distinctive circumstances. It states
that:
"All . . . persons . . . , 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. . . ."
Preservation of the opportunity to prove
Page 339 U. S. 172
actual bias is a guarantee of a defendant's right to an
impartial jury. We adhere to our holding that the enactment of the
statute is within the power of Congress, and that therefore
employees of the Federal Government are not challengeable solely by
reason of their employment.
It follows that we are unable to conclude that the failure to
sustain the challenge for cause denied petitioner an "impartial
jury."
"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."
United States v. Wood, supra, at
299 U. S.
145-146. In this case, no more than the trial court can
we without injustice take judicial notice of a miasma of fear to
which Government employees are claimed to be peculiarly vulnerable
-- and from which other citizens are, by implication, immune. Vague
conjecture does not convince that Government employees are so
intimidated that they cringe before their Government in fear of
investigation and loss of employment if they do their duty as
jurors, which duty this same Government has imposed upon them.
There is no disclosure in this record that these jurors did not
bring to bear, as is particularly the custom when personal liberty
hinges on the determination, the sense of responsibility and the
individual integrity by which men judge men.
The judgment is
Affirmed.
[
Footnote 1]
H.R.Doc. No. 242, 80th Cong., 1st Sess. (1947); 93 Cong.Rec.
4977 (1947).
[
Footnote 2]
61 Stat. 696, 700.
See Investigations Subcommittee on
Expenditures, Investigation of Federal Employees Loyalty Program,
S.Rep. No.1775, 80th Cong., 2d Sess. (1948).
[
Footnote 3]
Federal Personnel Manual I2-4. In a press release dated November
7, 1947, the Civil Service Commission announced the appointment of
the Loyalty Review Board. A statement of the Board with respect to
its regulations was published on January 20, 1948. 13 Fed.Reg.
253.
[
Footnote 4]
"Mr. McCABE: You are familiar with the Government loyalty oath
investigation?"
"Juror HOLFORD: I believe I am. I have heard something of
it."
"Mr. McCABE: Do you feel that rendering a verdict of not guilty
in this case, if you come to that conclusion, it would stop you,
any criticism or embarrassment among your fellow employees?"
"Juror HOLFORD: None whatsoever."
"Mr. McCABE: Or by your superiors?"
"Juror HOLFORD: No."
"Mr. McCABE: You would not have any thought that would be taken
as evidence of friendliness to communism?"
"Juror HOLFORD: No; I am not worried about my job that way."
"
* * * *"
"Mr. McCABE: Now, Mr. Jones, you have heard, have you, of the
loyalty test or loyalty investigation which is going on to test the
loyalty of Government employees? Have you heard of that?"
"Mr. JONES: Yes, I have."
"Mr. McCABE: Are you aware of the fact that one of the tests
that might disqualify or prevent you from Government employment is
friendly association with any Communist person or any Communist
organizations?"
"Mr. JONES: That would not. I am a Civil Service employee. I
have taken an examination for my job."
"Mr. McCABE: Yes. Are you aware of the fact that, despite any
Civil Service protection, still a finding that you were in friendly
association with any Communist or Communist organization would
render you ineligible to continue in your Government position?"
"Mr. JONES: It would not."
"Mr. McCABE: What?"
"Mr. JONES: It would not."
The replies of the other jurors were in a similar vein.
MR. JUSTICE REED concurs in the opinion and judgment of the
Court.
He reads the Court's decision to mean that Government employees
may be barred for implied
Page 339 U. S. 173
bias when circumstances are properly brought to the court's
attention which convince the court that Government employees would
not be suitable jurors in a particular case. Absent such a showing,
however, Government employees may not be barred from jury service
merely because they are Government employees.
MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
MR. JUSTICE JACKSON, concurring in the result.
In but two ways could the Court avoid affirming the conviction
of Dennis. One is to rescind the general rule established in
Frazier v. United States, 335 U.
S. 497, that a jury is, in contemplation of law,
"impartial" even when entirely composed of government employees.
The other is to retain, and thereby strengthen, that general rule,
but create a special exemption for Communists.
I adhere with increasing conviction to my dissent in
Frazier
v. United States, supra, at
335 U. S. 514.
The Court there dug a pit dangerous for civil liberties. The right
to fair trial is the right that stands guardian over all other
rights. Reference to the reports will show what otherwise one would
not believe: that the Court, by a bare majority, held it to be
entirely fair to try a person before a jury consisting solely of
government employees, plus the fact that one juror and the wife of
another worked in the office of the department head responsible for
enforcement of the law charged to be violated. The common instinct
of men for fair dealing and the experience of trial lawyers alike
reject this holding. Whenever any majority can be mustered to
overrule that weird and misguided decision, I shall be one of
it.
But the way for the Court to get out of the hole it fell into
with
Frazier is not to dig another and worse one. We are
actually urged to hold that the kind of jury a defendant may have
depends upon his political opinions or affiliations. The offense
for which Dennis was tried was
Page 339 U. S. 174
contempt of a Committee of Congress. That is not an offense that
touches the immediate security of the Nation. Nor does guilt or
innocence depend upon defendant's political views or party
membership. Of course, he is, and the jury was bound to learn that
he is, a prominent figure in the Communist Party. But the same acts
would be the same offense if he were an orthodox Democrat. The sole
ground for creating an exemption from the
Frazier rule is
that the defendant is a Communist, and Communists are now
exceedingly unpopular in Washington. I agree that this highlights
the unfairness of the
Frazier rule and provides reason for
overruling it; but I do not agree that it justifies the proposed
exception to that decision.
The
Frazier doctrine was promulgated by a majority of
the Court which well knew that its rule would apply to this type of
case and in these times. That decision was handed down on December
20, 1948, with this present case just around the corner. Dennis had
already been convicted, and his conviction had been affirmed in
highly publicized proceedings occurring only a few city blocks from
us, and his petition for certiorari had been filed in this Court.
The four of us dissenting in
Frazier warned specifically
that the Government in these times is using its power as never
before to pry into lives and thoughts of government employees. All
that is urged now is more of the same, and there is nothing in this
situation that should not have been within the contemplation of the
Court when the
Frazier case was decided the way it was.
The proposal now is a partial repeal -- for Communists only.
Courts should give to a Communist every right and advantage that
they give to any defendant. But it is inconceivable that being a
Communist can entitle a defendant to more. Let us picture the
proposal in operation. Two defendants are brought to trial for
contempt of Congress. One, a Communist, has defied the
Un-American
Page 339 U. S. 175
Activities Committee. The other, a Republican, has defied the
Committee investigating the State Department. Both make well
founded claims that the Executive branch of the Government is
hostile to them; both ask to exclude its employees from the jury so
they may be tried by persons under no obligation to their
adversaries. The proposal is that the trial judge should grant the
motion of the Communist and deny that of the Republican. What then
becomes of equal justice under law?
It is true that Communists are the current phobia in Washington.
But always, since I can remember, some group or other is being
investigated and castigated here. At various times, it has been
Bundists and Germans, Japanese, lobbyists, tax evaders, oil men,
utility men, bankers, brokers, labor leaders, Silver Shirts, and
Fascists. At times, usually after dramatic and publicized
exposures, members of these groups have been brought to trial for
some offense. I think that none of them at such times ever should
be forced to defend themselves against the Government's accusations
before the Government's employees. But so long as accused persons
who are Republicans, Dixiecrats, Socialists, or Democrats must put
up with such a jury, it will have to do for Communists.
MR. JUSTICE BLACK, dissenting.
The petitioner, Dennis, was convicted of willfully refusing to
give testimony before the House Committee on Un-American
Activities. The evidence against him was exceptionally strong. But,
no matter how strong that evidence, he had a constitutional right
to have it passed on by an impartial jury. [
Footnote 2/1] No juror can meet the test
Page 339 U. S. 176
of "impartiality" if he has good reason to fear that a vote for
acquittal would subject him to harassing investigations and perhaps
cost him his job. On this ground, the government employees called
for jury duty were challenged for cause by petitioner. I am
convinced that denial of this challenge deprived Dennis of an
impartial jury.
Although each juror asserted that he or she could vote for
acquittal without fear of adverse consequences, that cannot be
accepted as conclusive evidence of impartiality. The test of bias
sufficient to exclude a juror for cause is not what the particular
juror believes he could do. Long ago, Chief Justice Marshall ruled
that a person
"may declare that he feels no prejudice in the case, and yet the
law cautiously incapacitates him from serving on the jury because
it suspects prejudice because, in general, persons in a similar
situation would feel prejudice."
25 Fed.Cas. at 50, No. 14,692g. 1 Burr's Trial 414. And this
Court, while recognizing that persons of the "highest honor and
greatest self-sacrifice" would not be influenced by fear of
financial losses, has said that
"every procedure which would offer a possible temptation to the
average man as a judge . . . not to hold the balance nice, clear,
and true between the state and the accused denies the latter due
process of law."
Tumey v. Ohio, 273 U. S. 510,
273 U. S. 532.
[
Footnote 2/2]
We did not depart from the "average man" test in
United
States v. Wood, 299 U. S. 123, or
Frazier v. United States, 335 U.
S. 497. Those cases involved convictions
Page 339 U. S. 177
for theft and dope peddling. They did hold that proof of mere
governmental employment was not enough, standing alone,
automatically to impute disqualifying bias in every criminal
proceeding brought by the Federal Government. But both opinions
clearly indicated that "particular issues or circumstances" might
require exclusion of government employees in order to assure an
impartial jury. [
Footnote 2/3] In
complete harmony with the principle declared in the
Burr
and
Tumey cases, our
Wood opinion cautioned that
a government employee could be disqualified if,
"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, he had actual bias. . .
. [
Footnote 2/4]"
299 U.S. at
299 U. S.
134,. And the
Frazier opinion emphasized that
these factors would support disqualification of government
employees for "actual bias" without proof of "prejudice in the
subjective sense." 335 U.S. at
335 U. S.
510-511, n.19.
Special circumstances of the type supporting disqualification
under these decisions are, in my judgment, clearly shown by this
record. The difficulty of securing an impartial jury at all is
revealed by the number of potential jurors who felt that Dennis'
position as Secretary of the Communist Party in this country would
alone prevent
Page 339 U. S. 178
their giving him a fair trial. [
Footnote 2/5] And the prevailing pattern of loyalty
investigations and threatened purges makes it wholly unrealistic to
expect government employees to enter the jury box with that quality
of disinterestedness essential to complete impartiality.
The reasons urged for disqualifying government employees were
first presented to the trial court in an affidavit supporting
petitioner's motion for change of venue. The sworn allegations of
that affidavit were never denied by the Government. In essence, the
affidavit pointed out that all federal employees were under
constant scrutiny by various agencies and congressional committees
for possible sympathy with Communists or with affiliated
organizations; that, under Executive Order 9835, issued following
vigorous demands by the congressional committee which had initiated
the prosecution of Dennis, any of these employees would lose his
job if a "loyalty test" revealed "reasonable grounds" for belief
that he was disloyal; that members of the same committee had stated
that anything less than imposition of maximum punishment on Dennis
would expose the persons responsible therefor to charges of
disloyal sympathy with Communism; [
Footnote 2/6]
Page 339 U. S. 179
and that consequently a vote for acquittal would jeopardize the
job of any government employee so voting. [
Footnote 2/7] Petitioner again cited the "loyalty test"
in challenging for cause all governmental employees called as
jurors, although he did not bother to reargue the facts, because
his reasons were "clear to us all." Thus, petitioner called the
trial judge's attention to substantial facts in support of his
challenges.
Page 339 U. S. 180
To say that employees of the United States could meet objective
tests of complete impartiality in the trial of cases like this is
to disregard human nature. Probably at no period of the nation's
history has the "loyalty" of government employees been subjected to
such constant scrutiny and investigation by so many government
agents and secret informers. And, for the past few years, press and
radio have been crowded with charges by responsible officials and
others that the writings, friendships, or associations of some
government employee have branded him "disloyal." Government
employees have good reason to fear that an honest vote to acquit a
Communist or anyone else accused of "subversive" beliefs, however
flimsy the prosecution's evidence, might be considered a "disloyal"
act which could easily cost them their job. That vote alone would,
in all probability, evoke clamorous demands that he be publicly
investigated or discharged outright; at the very least, it would
result in whisperings, suspicions, and a blemished reputation.
In the
Wood case, this Court regarded as "far-fetched
and chimerical" the suggestion that no government employee could
have voted for acquittal of theft without endangering his job. I
agree. But, under the circumstances here, it seems equally
"far-fetched and chimerical" to suggest that government employees,
however convinced of innocence, would feel completely free to
acquit a defendant charged with disobeying a command of the
Committee on Un-American Activities. My belief is that no defendant
charged with such an offense, whatever his political affiliation,
should be forced to accept a government employee as a juror. Nor
should the Government want such an unfair advantage. Of course,
this advantage makes convictions easier. That is precisely what the
Sixth Amendment was designed to prevent. It commands
Page 339 U. S. 181
impartiality in the jury box. Impartiality cannot survive in the
shadow of threats to a juror's reputation and livelihood.
[
Footnote 2/1]
The Sixth Amendment provides that defendants charged with crimes
in federal courts "shall enjoy the right to . . . trial, by an
impartial jury."
And see Tumey v. Ohio, 273 U.
S. 510,
273 U. S. 535:
"No matter what the evidence was against him, he had the right to
have an impartial judge." This case related to financial interests
of a mayor trying defendants, but the principles there declared are
equally applicable to jurors who must judge the guilt or innocence
of a defendant.
[
Footnote 2/2]
See 339
U.S. 162fn2/1|>note 1,
supra.
[
Footnote 2/3]
In the
Frazier case, one juror and the wife of another
were employed in the Department of Treasury, which was charged with
enforcing the anti-narcotic laws. This Court did not decide whether
such employment would distinguish these jurors from other
government employees sufficiently to support a timely challenge,
because the only special challenge raising this ground was
belatedly made in a motion for new trial.
[
Footnote 2/4]
The Court also stated that bias could not be imputed
"simply by virtue of governmental employment, without regard to
any actual partiality growing out of the nature and circumstances
of particular cases."
299 U.S. at
299 U. S.
149.
[
Footnote 2/5]
The difficulty of obtaining an impartial jury in cases where
popular indignation is aroused became manifest during World War I.
Judge Amidon, a veteran trier of Espionage Act cases, described his
experiences as follows:
"For the first six months after June 15, 1917, I tried war cases
before jurymen who were candid, sober, intelligent business men,
whom I had known for thirty years, and who, under ordinary
circumstances, would have had the highest respect for my
declarations of law; but during that period, they looked back into
my eyes with the savagery of wild animals, saying by their manner,
'Away with this twiddling, let us get at him.' Men believed during
that period that the only verdict in a war case, which could show
loyalty was a verdict of guilty."
Quoted in Chafee, Free Speech in the United States 70 (1941
Ed.).
[
Footnote 2/6]
In this connection, the affidavit asserted that committee
members
"have stated openly on the floor of the House of Representatives
that they demand a prosecution and conviction of, and the
imposition of the maximum punishment on, this defendant. They have
charged that anything less would open the persons responsible
therefor to a charge of disloyalty, and sympathy to Communism."
In oral argument on the motion for charge of venue and an
accompanying motion for continuances, counsel elaborated on one
facet of this charge by reading from the Congressional Record a
colloquy between a member of the committee and other congressmen.
The substance of the colloquy was that the Attorney General should
be impeached unless he obtained quick trials of Dennis and others
charged with contempt by the committee. 93 Cong.Rec. 3815,
3816.
[
Footnote 2/7]
The affidavit read in part:
"The enormous consequences of the Executive Order referred to
above make it absolutely impossible to secure a fair and impartial
trial in the District of Columbia for a leader of the Communist
Party, particularly when the charge against him is laid by the
Committee on Un-American Activities. The finding of disloyalty
involves not only discharge from employment, but a permanent
branding as a disloyal and undesirable person, endangering the
possibility of earning a livelihood in the future. No individual
can be expected lightly to take the risk of incurring such
consequences to himself, his family, and his associates. The
meaning of 'sympathetic association' is undefined in the Executive
Order, and there is no assurance that it may not be construed by
the Attorney General to include a recognition of the rights of a
member of the Communist Party. And even if the Attorney General
himself would not so construe it, it is impossible to assume that
persons selected for jury duty will run the risk of a charge of
sympathy with Communism flowing from voting for an acquittal of so
prominent a leader of the Communist Party."
MR. JUSTICE FRANKFURTER, dissenting.
Acquiescence in a precedent does not require approval of its
extension. Although I adhere to the views expressed by MR. JUSTICE
JACKSON for the minority in
Frazier v. United States,
335 U. S. 497,
335 U. S. 514,
I do not urge that it be overruled. But in abiding by it I need not
assent to enlarging the areas of its undesirability. The
constitutional command for trial by an "impartial jury" casts upon
the judiciary the exercise of judgment in determining the
circumstances which preclude that free, fearless and disinterested
capacity in analyzing evidence which is indispensable if jurymen
are to deal impartially with an accusation. The judgment that a
court must thus exercise in finding "disqualification for bias" of
persons who belong to a particular class is a psychological
judgment. It is a judgment founded on human experience, and not on
technical learning. And so it does not follow that, merely because
government employees are not automatically disqualified as jurors
in every prosecution in the District of Columbia, they should not
be disqualified in prosecutions that are deemed to concern the
security of the nation.
The reason for disqualifying a whole class on the ground of bias
is the law's recognition that, if the circumstances of that class,
in the run of instances, are likely to generate bias, consciously
or unconsciously, it would be a hopeless endeavor to search out the
impact of these circumstances on the mind and judgment of a
particular individual. That is the reason why the influences of
consanguinity or of financial interest are not individually
canvassed. Law, as a response to life, recognizes the operation of
such
Page 339 U. S. 182
influences, even though not consciously or clearly entertained.
The appearance of impartiality is an essential manifestation of its
reality. This is the basic psychological reason why the Founders of
this country gave the judiciary an unlimited tenure. Impartiality
requires independence, and independence, the Framers realized,
requires freedom from the effect of those "occasional ill-humors in
the society," which as Alexander Hamilton put it in The Federalist
are "the influence of particular conjunctures." The Federalist, No.
78 at 400 (Beloff ed.1948).
One of the greatest of judges has assured us that "Judges are
apt to be naif, simple-minded men." Holmes, Collected Legal Papers
295. Only naivete could be unmindful of the force of the
considerations set forth by MR. JUSTICE BLACK, and known of all
men. There is a pervasiveness of atmosphere in Washington whereby
forces are released in relation to jurors who may be deemed
supporters of an accused under a cloud of disloyalty that are
emotionally different from those which come into play in relation
to jurors dealing with offenses which in their implications do not
touch the security of the nation. Considering the situation in
which men of power and influence find themselves through such
alleged associations, it is asking more of human nature in ordinary
government employees than history warrants to ask them to exercise
that "uncommon portion of fortitude" which the Founders of this
nation thought judges could exercise only if given a life tenure.
The Federalist,
supra.
A government employee ought not to be asked whether he would
feel free to decide against the Government in cases that, to the
common understanding, involve disloyalty to this country. Questions
ought not to be put to prospective jurors that offer no fair choice
for answer.
Page 339 U. S. 183
Men ought not to be asked in effect whether they are brave or
wholly indifferent to the enveloping atmosphere. They should not be
asked to confess that they are weaklings nor should it be assumed
that they are fully conscious of all the pressures that may move
them. They may not know what judges of considerable forensic
experience know, that one cannot have confident knowledge of
influences that may play and prey unconsciously upon judgment.
See, e.g., Mr. Justice Oliver in
Rex v. Davies,
[1945] 1 K.B. 435, 445. The well known observations of Mr. Justice
Holmes on these psychological influences are here pertinent:
"This is not a matter for polite presumptions; we must look
facts in the face. Any judge who has sat with juries knows that, in
spite of forms, they are extremely likely to be impregnated by the
environing atmosphere."
Frank v. Mangum, 237 U. S. 309,
237 U. S. 345,
237 U. S. 349.
Nor is it irrelevant to note that we are living in a time when
inroads have been made on the secrecy of the jury room so that,
upon failure to agree, jurors are subjected to harassment to
disclose their position in the jury room. Ought we to expose our
administration of criminal justice to situations whereby federal
employees must contemplate inquisitions into the manner in which
they discharged their juror's oath?
To conclude that government employees are not disqualified in
prosecutions inherently touching the security of the Government at
a time when public feeling on these matters is notoriously running
high, because they are not
ipso facto disqualified from
sitting in a prosecution against a drug addict or a petty thief, is
to say that things that are very different are the same. The
doctrine of the Frazier case does not require such disregard of the
relevant. To recognize the existence of what is characterized as a
phobia against a particular group is not to discriminate in its
favor. If a particular group, no matter what its beliefs,
Page 339 U. S. 184
is under pressure of popular hostility, exclusion of potential
jurors peculiarly susceptible to such pressure is not an expression
of regard for political opinions but recognition by law of the
facts of life. It does not follow that, because members of
different but respected political parties can sit in judgment upon
one another where punishment is involved, all members of such
parties, no matter what their relation to an operating bias, can
freely and fairly sit in judgment upon those belonging to an
ostracized group.
Let there be no misunderstanding. To recognize the existence of
a group whose views are feared and despised by the community at
large does not even remotely imply any support of that group. To
take appropriate measures in order to avert injustice even towards
a member of a despised group is to enforce justice. It is not to
play favorites. The boast of our criminal procedure is that it
protects an accused, so far as legal procedure can, from a bias
operating against such a group to which he belongs. This principle
should be enforced whatever the tenets of the group -- whether the
old Locofocos or the Know-Nothings, the Ku Klux Klan, or the
Communists. This is not to coddle Communists but to respect our
professions of equal justice to all. It was a wise man who said
that there is no greater inequality than the equal treatment of
unequals.
We are concerned with something far more important than
sustaining a particular conviction. Many and conflicting are the
criteria by which a society is to be deemed good, but perhaps no
test is more revealing than the characteristics of its punitive
justice. No single aspect of our society is more precious and more
distinctive than that we seek to administer criminal justice
according to morally fastidious standards. These reveal confidence
in our institutions, respect for reason, and loyalty to our
professions
Page 339 U. S. 185
of fairness. The powerful claim in behalf of our civilization
represented by our system of criminal justice will be vindicated
and strengthened if those who in the popular mind appear to
threaten the very existence of the Government are tried by citizens
other than those in the immediate employ of the Government at the
seat of Government.