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Mr. AUTRY. In a reply to the chairman a few minutes ago, you made it clear, and in your statement I think also, that title II would not nullify laws which exempt women from service or offer other exemptions from service on juries.
Attorney General KATZENBACH. The type that prevent women from serving, it would nullify those.
Mr. Autry. Right, but an exemption.
Attorney General KATZENBACH. There is the type that say women are exempted unless they volunteer, I believe it would eliminate those. Beyond that, if they want to exempt women on their request, it would not effect that.
Mr. AUTRY. The only reason I mention that is that Judge Vanderbilt-I am sorry I do not have any later statistics, but I could not find any-said that 26 States automatically excluded those classes of persons who had exomptions, such as women, doctors, lawyers, public servants, because there was no sense in having them come down to the courthouse, if they had an exemption.
They presumed that persons in the exempted classes would probably go ahead and use their exemption. I just wonder if this remains true, if it would not frustrate the policy of titles I and II, and whether you have any information on that.
Attorney General KATZENBACH. I do not really have any information on that. I would think that that would come pretty close to violating section 201. If you say since women are permitted the privilege of being exempted, we are never going to let a women be on a jury panel, I would think that was probably denying them the right to serve.
Mr. AUTRY. In practice it would be denying the right to serve.
Attorney General KATZENBACH. And I would think that that practice would be outlawed here. I mean after all, let me put it in another context and say suppose they said “We are going to exempt Negroes from service. Therefore we will not ask any Negroes." It might make a clearer case.
Mr. AUTRY. As the chairman said this morning, Mr. Attorney General, the subcommittee contacted the Judicial Conference and the American Law Institute and the American Bar Association, and the American Trial Lawyers Association, and requested all of them to give us any opinions they had, any criticisms they had of title I and II.
Each of the organizations, with the exception of the American Trial Lawyers Association, which is going to testify in favor of title I, said that it would take at least a year, more probably, for them to go through the normal processes to come up with an official opinion.
Several lawyers at the same time were very concerned that we did not have these, expert opinions, although as you pointed out this morning we are not required to receive expert testimony.
Congress passes legislation without it. But as you also know, it is the normal practice of the Subcommittee on Improvements in Judicial Machinery to request the concurrence of at least the Judicial Conference in its legislation.
The same lawyers suggested that if you waited this long--and on such proposal was made in the 1964 act or the 1965 act--that you could wait another year, until these organizations did have a chance to go over this legislation in fine detail.
It is alleged, that there is less jury discrimination now than at any previous time in the South.
I note that in the Washington Post on March 9, 1966, the headline "White Jury Convicts Four Others in Beating." This was a Ku Klux Klan case, and you are probably aware of it.
Or course in the Liuzzo case there was a conviction from a jury which was composed of 11 whites and 1 Negro.
I have a letter from the publisher or the managing editor of the Anniston, Ala., Star who states that the Library of Congress is mistaken:
Hubert Damon Strange was convicted in November 1965 for the night riding slaying of Willie Brewster, a Negro foundry worker. The incident occurred on the night of July 15, 1965 following the second of a series of so-called white man's rallies at the county court house.
The state had no physical evidence or no eye witnesses to present at the trial, which jurors explained was the reason they voted to convict Strange of a reduced charge of second degree murder. He was sentenced to ten years in the state penitentiary.
I also note in the Washington Star another case where an all white Mississippi jury convicted a white man for raping a Negro girl.
In view of that, and in view of what you said this morning concerning the Mississippi Supreme Court is there an improved climate in the last year?
Attorney General KATZENBACH. Yes, I think there is an improved climate. I think we have a long way to go to get where I would like to see us be.
Mr. AUTRY. Is there any reason the administration did not propose laws such as this last year or the year
before? Attorney General KATZENBACH. Yes, there were reasons for it. One major reason for it is that we had great difficulties devising title I and devising that kind of a system with respect to Federal courts until the Voting Rights Act of 1965 was passed, because we had no list that we had great confidence that we could go to. We did propose legislation which would have taken us a little of the way, not very far. Mr. AUTRY. Are you speaking of H.R. 5640?
Attorney General KATZENBACH. Yes. There were those reasons. Furthermore it seems to me that both the Civil Rights Act of 1964 and the Civil Rights Act of 1965, neither was presented by the administration on the theory that this was all of the civil rights legislation that was necessary and important to be enacted. I understand, the thrust of your question, it is why did we not propose these bills in 1963.
Mr. AUTRY. If the problem was worse last year than it is this year, why was legislation not proposed last year, and why can we not wait one more year so that we can get the opinion of the Judicial Conference.
Attorney General KATZENBACH. Well, I think that it is important to deal with this at this time. If you want the opinions of those groups, they want to have the opportunity to see how this is in operation, if they want to make amendments they could make those amendments. But I would be very strongly opposed to waiting for what I think is important and necessary legislation, and I hope, I believe that it can and should be enacted this year.
Mr. AUTRY. Since you mentioned the bill which you did propose last year and which has passed the House and was reported out of the Judicial Improvements Subcommittee, I'll ask you if, by supporting this measure, you withdraw your support of H.R. 5640 which to
some extent at least would conflict with the bill that is before us today?
Attorney General KATZENBACH. This is the bill that we want. This bill would supersede anything that is necessary in that bill. It incorporates the parts of that bill that we thought were important.
That bill was introduced in 1961 actually, if I recollect correctly, and in that instance the Congress waited some time to enact it. It was introduced because a number of judges felt that they had no control over what the jury commissioner was doing, even if a jury commissioner was doing something that they disapproved of. I disagreed then and
I disagree now with the view that the district court judge cannot tell his jury commissioner how to select a jury and the process to put in, and if he does not like that, cannot get rid of the jury commissioner and get another one.
About half of the judges or somewhat more of the judges think they have that power. Some think they do not. But really the major purpose of that bill was simply to tell the judges they had a power that I quite frankly thought they already had, and it was not aimed at any really of the problems which this bill is aimed at.
It was just aimed at such things as PTA lists, where we were in great fear that any prosecution we succeeded on could be undone because the way the commissioner was selecting the jury list, even in instances where the chief judge agreed with us, that this was terrible.
Mr. Aurry. Mr. Friesen testified just last year on this bill, and one of the reasons for proposing it was the flexibility that it would permit in jury selection to account for the needs of particular districts. Of course S. 3296 would invoke a standardized procedure, would it not?
Attorney General KATZENBACH. Yes, and I think the two statements are totally consistent. I think without the Voting Rights Act of 1965, without being able to use the voter list there, in order to accomplish the same objectives, it was essential that there be flexible approaches if any steps were to be made in this direction.
I think with that kind of a list available, that the need for flexibility and the arguments for flexibility fall by the wayside.
Mr. AUTRY. Mr. Attorney General, the remaining questions I am asking at the request of either the American Trial Lawyers Association or the attorney general of Wyoming, both of whom have written to us. If you would please, sir, comment on this program from the attorney general's statement:
We have been proud in this State of blue ribbon juries used in U.S. District Court for the District of Wyoming. There has been no discrimination on account of race, color, religion, or sex, national origin, or economic status. The currently existing system has been above and beyond criticism.
I therefore oppose all provisions of S. 3296 having to do with change in the present system of selection of U.S. district court juries. I am entirely satisfied that it would significantly lower the quality of juries which we have enjoyed in this great State on Federal matters.
Any comment on that? Of course, you disagree. I think you have made that clear.
Attorney General KATZENBACH. I would like to ask how on earth you have a blue ribbon jury that never discriminates in the way in which he says it never discriminates. I just do not think it is possible.
Mr. Autry. I think perhaps he is referring to blue ribbon juries that
may be chosen for complex antitrust matters and tax cases.
Attorney General KATZENBACH. He is saying that if you have a blue ribbon jury there, it makes no discrimination on, among other things, economic status?
Mr. AUTRY. Yes. But on the matter of intelligence, I believe that is in the sense in which he was referring to blue ribbon juries. Blue ribbon juries nevertheless would be abolished by it.
Attorney General KATZENBACH. He may have a different meaning of blue ribbon juries than I have customarily thought of them being. But I thought that blue-ribbon juries in general had been taken from the upper strata of your society.
Mr. Autry. His objection to title II, Mr. Attorney General, is based on Wyoming statutes which require among other things that a person to be a juror be assessed on the last assessment role of the county. He claims this would be stricken by title II. Do you have any opinion on that? Attorney General KATZENBACH. Let me look at the Wyoming law.
Mr. AUTRY. I suppose this would be something like the chairman mentioned in North Carolina. Senator Ervin. Mr. Attorney GeneralAttorney General KATZENBACH. I think it probably will be. I think the answer is that that probably would be void under the economic status.
Senator Ervin. Mr. Attorney General, I am confronted with the problem of a roll call vote at the present moment, and I am going to leave. Mr. Autry has some other questions, which he may ask after I leave.
Because some of the Senators are not yet prepared to ask you questions about title IV, we cannot possibly finish today.
We wish to have you back at as early a date as possible, particularly with reference to title IV, and at that same time I can ask a few questions I have about title III.
I want to take this occasion to express my appreciation personally, and as chairman of the subcommittee, my appreciation for the very fine way in which you have cooperated with the subcommittee in giving us the benefit of your views of the constitutionality and the desirability of the bill. † appreciate those efforts on your part, notwithstanding the fact that I do not fully concur in what you have to say.
Attorney General KATZENBACH. Thank you, Mr. Chairman. I appreciate your courtesy.
Senator Érvin. We shall try to arrange a convenient date for you to appear again as soon as reasonably possible.
Mr. AUTRY. Mr. Attorney General, I do apologize for holding you, but in order that the hearings would not be delayed, we did not offer an opportunity to all lawyers who wished to testify on his own individual behalf and who had an interest in titles I and II but we did offer them a chance to send in statements and questions which they thought should be put to you. Attorney General KATZENBACH. Sure.
Mr. AUTRY. I will try to be very brief. Several have suggested that an age limit be placed on Federal jurors of 70. Do you have any comment on that? Attorney General KATZENBACH. An upper age limit? Mr. AUTRY. An upper age limit.
Attorney General KATZENBACH. I do not have any strong feelings about it. My own experience has been that people in upper ages vary considerably in their abilities, and I would have thought that it would be sufficient to provide, as we do in here, that a person is not incapable by reason of mental or physical infirmity. I think you can get a lot of jurors of a fairly advanced age that are perfectly and physically and mentally capable of serving, and I do not really think they should be denied the opportunity to do so.
Mr. Autry. It was suggested that for the convenience of the prospective jurors, that the form be sent out by certified mail and returned by mail rather than requiring prospective jurors to come into the clerk's office to fill out the forms. I surmise that the reason that you did not authorize this is that the literacy requirement is fulfilled by the filling out of the form in the clerk's presence; is that correct?
Attorney General KATZENBACH. That is correct. I can see the burden of a two-trip system. We do use it in many places even today. I think it would be possible to devise at least in areas where the distances were long or there was expense involved in this, I think there would be ways in which that objection could be met.
I do not think the certified mail would do it for the reason you suggest. I think perhaps filling it out and having it notarized, if
you filled it out in front of a notary public and sent it in might be one possible suggestion. It is worth trying to think of ways not to make a burden of this and still meet the standards of the statute.
Mr. AUTRY. Under title II, again for the record, is it permissible for States to authorize a blue ribbon jury, either grand or petit, for any kind of special purpose?
Attorney General KATZENBACH. No, sir.
Mr. AUTRY. And I take it from your answer that you do not think that policy is ever served by requiring or authorizing a blue ribbon jury, even in a State case?
Attorney General KATZENBACH. Speaking as a prosecutor I can see a lot of advantages to a blue-ribbon jury. Speaking as a citizen, trying to be a little more objective about it as a prosecutor might, I do not see much excuse for blue-ribbon juries.
Mr. AUTRY. The requirement that prospective jurors fill out forms indicating race, to get back to that just a minute, is in conflict with New York State law. Do you happen to know whether that is true or not? I was informed that it was true.
Attorney General KATZENBACH. Filling out a form for Federal jury service?
Mr. AUTRY. No. Under certain circumstances would jurors not be required to state their race, in the discovery procedures under title IŤ?
Attorney General KATZENBACH. Only if they kept those records. Mr. AUTRY. Only if they kept them.
Attorney General KATZENBACH. If they did not keep those records, they would not. If they were found to be discriminating, the court could, by issuance of a decree, require them to keep those records, and it would be I think just a simple supremacy proposition in that instance.