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And then the short term, that 1-week term, is the rock upon which all of these measures have fallen so that people have not been able to get a fair trial.
I wish to thank the counsellors to your very capable committee, with whom I sat prior to this time, particularly Mr. George Autry, and you, Senator, and you, Senator Smathers, for permitting me to speak.
Senator Ervin. Thank you. We certainly appreciate your appearance. You have made some very thoughtful suggestions, and I might add you have pretty good Scriptural warrant for selection by lot, because the New Testament tells us that after Judas betrayed the Lord his successor Matthias, was selected by lot.
Mr. RisCassi. And I wish to point out in reference thereto that the greatest travesty, in my opinion, has been what has been going on in many of our States. There are only two States in the Union to my knowledge that have selection by lot of the jurors in the inception. One is the State of Washington and one is the State of Connecticut, believe it or not. We passed it there 2 years ago. If it is possible in Connecticut, it should be possible on a Federal level.
Senator Ervin. We appreciate your taking the time and the trouble to appear before the subcommittee and give us the benefit of your experience, thoughts, and philosophy on this subject.
(The complete statement of Mr. RisCassi follows:)
STATEMENT OF ATTORNEY LEON RISCASSI, HARTFORD, CONNECTICUT LEGISLATIVE
CHAIRMAN, AMERICAN TRIAL LAWYERS ASSOCIATION The undersigned wishes to be registered in favor of Title I of S. B. 3296 with the following amendments and comments thereto. Section 1864. Master jury wheel
A. On page 3 line 18 strike out the words "at random" and substitute in lieu thereof "by lot."
B. On page 4 line 16 strike out the word "random" and substitute in lieu thereof the word “by lot."
C. By adding on page 3 line 19 after the words "it serves" the following sentence, “The selection of prospective jurors within a given judicial district or division shall be by selection of names in a given and identical numbered sequence based upon the number of jurors to be selected therefrom.”
Comments. Ballentine Law Dictionary defines “lot" as a method to determine a question by chance or without the action of man's choice or will.
The language of the amendment is used in the Statutes of the State of Washington and State of Connecticut.
Selection by lot from registered voting lists will insure a cross section of the community with nothing left to chance as would be the case 'in the selection of jurors in the inception at random. Section 1865. Drawing of names from the master jury wheel
Strike out in page 5 lines 21 and 22 the following "shall appear before the clerk and fill out” and substitute in lieu thereof "shall be mailed by the clerk."
Comments. A saving in time and money to the government and to the prospective juror. Section 1869. Erclusion from jury service
On page 12, line 1 strike out the word “thirty" and substiute in lieu thereof the word "seven."
Comment. The failure to select prospective jurors by lot, together with insufficient pay and a long term of service, always results in juries that are not a trne across section of the commuity. A maximum of seven calendar days of service together with adequate pay will make it difficult for anyone to find an excuse to evade jury service. Excuses are usually offered by the young of family on hardship grounds. They are hard to refuse and the net result is that the jury panels end up overloaded with old, retired pensioners, wellmeaning, but nonetheless not a true cross section of the community to which a litigant in our courts is entitled.
The State of Florida has a one week time limit for petit jury service. Here the system has worked most effectively in this regard. There have been no complaints of difficulty in administration.
The objective should be to make jury service a duty attractive and instructive to all all segments of our society. It should never discriminate against the young, working class people who make up the great bulk of the population. Jury service should never be permitted to be used by the pensioner as a means to supplement Social Security income. The opportunity and the duty to serve should be uniformly applied if we are to insure an effective Federal jury system,
Senator Ervin. We would be glad to hear from either of your associates.
Mr. RisCassi. I would like you to hear from Mr. Colson, who is an outstanding trial lawyer in Florida, with great experience, and a past president of this organization who will tell you how it has worked out in Florida.
Senator ERVIN. Mr. Colson. Mr. Colson. Thank you. I want to thank Senator Smathers for his remarks, and thank you, Senator, for coming to the Florida Bar Association meeting last week and making your very fine major address.
I come in support of this bill with certain minor exceptions. I think that one or two of them are important enough that we should comment on them.
I have had the privilege to study the jury systems in all 50 States during the last years, both in the State and the Federal courts. As a result of my travel I can say that at the minimum we do not have the same system of jury selection in all 50 States; not even in the Federal courts. I do not know which systems are the best. I am not here to pretend that I know, but I will say they are different. Therefore, they are not offering a jury of our peers, of our equals, because our systems are not equal. It is wrong that in 1966 we should still have such a system.
I have tried cases both in the North and the South in 1966; in Albany, N.Y., and in New Orleans, La. I feel that it is wrong, for example, when a State attorney in a Mississippi county, in a case that I am personally handling, voluntarily dismisses the indictment because he recognized that the jury was wrongfully selected. In 1966 I still cannot get a fair trial for à Negro defendant in Mississippi, in my opinion. I am not going to get a jury that represents a cross section of his community. That is wrong. I have to try the case purely on the hope of getting that defendant to a higher court while I keep attacking the jury systems.
I think that we should take a hard look at blue ribbon juries. While blue ribbon juries is a wonderful phrase, very often they have been color conscious instead of color blind. The condition still exists where a guilty rich white man is not going to the electric chair. Something is basically wrong;
Now, I applaud this bill. The thing that concerns me most of all about the bill is the word "random.' Mr. RisCassi mentioned the word "lot."
Senator Ervin. I have always figured that when you select something at random, you wind up with something nondescript.
Mr. Colson. I will show you the way we select juries at random in Miami, for instance. I think that Miami has a fine system free from discrimination. There is an attempt in many of our Federal courts to make sure that we have a certain percentage of lower and higher incomes represented, or a certain precentage of Negroes on juries. What we have to understand is that the very fact that a man, a human being, makes such a decision or determination allows the very opportunity for discrimination to exist. The opportunity to avoid discrimination gives the opportunity to achieve discrimination.
In our State courts, in Miami, they use the voter registration list. For some reason the Federal court uses the city directory. Our jury commissioner picks names from the city directory which are then placed in the jury wheel. Once the names are placed in the jury wheel no one is concerned about their selection by lot. Everyone is satisfied that it will be done. The key to this all is the selection of the overall group that is going to be placed in the jury wheel, the initial selection of prospective jurors, whether by lot or at random. In Connecticut this most important stage is handled by computer. There, they hit a certain number on the computer and from all the names in the computer, those names that are to go into the jury wheel are automatically produced. Thereafter, the judge or clerk selects, by lot, from the jury wheel, those jurors needed for a particular trial. This bill must be very clear about getting those names into the jury wheel in the first place.
In my opinion, this is not made clear by the words “at random." It is possible for a jury, whether civil or criminal, to be selected by merely looking to the occupations of the prospective jurors. For instances, here is a bank president, here is a carpenter, a bookkeeper, and a student. I can tell you whether they are male or female and what their income is. If we are able to pick out the people that we think a jury ought to be composed of, in this manner, then one side, in a criminal or civil case, is going to be off to a tremendous start by stacking a jury independently.
This is not what we want. We want a cross section. I want to make sure at this level, that whether by city directory, voter registration list, or anything else, the selection is done entirely by number.
I am concerned, as you are Senator, about the questionnaire provision of the bill. I do not have an answer to it. I share your concern, however, sir, and I will speak more about it, if you want.
I strongly suggest that you consider the provision for 1 week service by jurors. It certainly helps them and removes one of the major causes for excuse. I believe that more people should participate in our jury system; those who love, understand, and appreciate it. Those who do not are primarily the critics. The 1 week limitation on service has another built-in advantage; that is, a judge has more compulsion to finish the case within 1 week.
In traveling to the different States, I have found that the judges of this country try cases in completely different ways. Some judges do not hurry if they know that the jury has to be there for 30 days anyway. If a case goes over 2 or 3 weeks the judge can easily hold the jury over. But if a jury is waiting for a case to end, the judge is likely to give it priority over any other matter. Beside the economic benefit, I think that this is another worthwhile consideration.
I also endorse the experience we have had with the six-man jury in Florida. With the exception of capital punishment cases and eminent domain proceedings, we use a six-man jury; even in criminal cases. Whereas we might limit the use of the 6-man jury to just civil cases, I do not see the necessity of the large 12-man jury at all times.
Senator Ervin. I wonder if there is any constitutional question that can be raised. I do not recall any Federal decision offhand, but I know there are some State decisions which hold that the number of jurors has to be 12 where the Constitution is interpreted in light of the common law. I wonder if either of you has any doubt as to the constitutionality of reducing the number by legislation rather than by constitutional amendment?
Mr. Colson. I have none, Senator. I am positive. I cannot give you a citation, but the six-man jury has been tested by the Florida and the U.S. constitutions. I believe that our system would be improved by requiring the service of our juries for a shorter time. In this way we could get our cases along much faster and with less cost. But I urge you to make sure that the original selection of names to be placed in the jury wheel is by some mechanical system out of the hands of any human being.
Senator Ervin. I certainly share your belief that it is highly desirable to get as many citizens as possible to serve on juries. I think it gives a good deal of confidence in the administration of justice on the part of the public generally if they are familiar with it. I think they will come away from the average court persuaded that we have about as fine a system as can be devised to accomplish justice.
Do you have any questions?
Senator SMATHERS. No questions. I just concur with your statement.
Senator Ervin. I was a trial judge for 7 years. On convening of the court each week I knew that a lot of the jury panel would like to be excused, so I would give them a little lecture in advance about certain duties a man owed his country, and one of the most important was that of serving upon the jury when he was chosen to do so. I concluded by saying, however, there are certain exigencies that justify a man asking to be excused, so if any of you now have any reason you think would justify you in asking the court to excuse you from the performance of one of your sacred duties to your country, I will hear it at this time.”
Mr. Colson. You would have to be un-American.
Senator Ervin. I very rarely got any requests to be excused after that.
Do you have anything you would like to add ?
Senator ERVIN. We are certainly indebted to the Association of Trial Lawyers for your appearance. I know there is no group of men in America who are more interested in having fair and impartial juries than the trial lawyers, and you have the experience which makes your observations of unusual worth in the considerations of the subcommittee. I thank you very much.
Mr. AUTRY. Mr. Chairman, the next witness is Alfred Avins.
Senator Ervin. Professor Avins is a native of New York City. He has a B.A. degree from Hunter College and an LL.B. degree from Columbia University, an LL.M. degree from New York University, and L.M. and J.S.D. degrees from the University of Chicago. He holds a Ph. D. degree from Cambridge University. He is a member of the bars of New York, the District of Columbia, Florida, and Illinois. He was a special deputy attorney general of New York in 1956 and 1957.
Professor Avins has prepared several memorandums concerning the constitutionality of various portions of S. 3296 and the legislative history of the 14th amendment. These will be printed in the record immediately following Professor Avins' testimony.
Professor Avins is also general editor of the book, "Open Occupancy Versus Forced Housing Under the 14th Amendment,” a copy of which is before each member of this subcommittee.
Professor, you may now wish to summarize your position on this legislation. Before you do, however, I would like to thank you for your willingness to appear and give us the benefit of your vast knowledge in this field.
I also would like to say I have read a number of articles which you have written. I was very much interested in your arguments before the Supreme Court in the literacy test situation. But unfortunately for the cause of constitutional government, I have to say that I think the Supreme Court has usurped the power to amend the Constitution in that case.
STATEMENT OF PROF. ALFRED AVINS, THE SCHOOL OF LAW,
MEMPHIS STATE UNIVERSITY, MEMPHIS, TENN. ; ACCOMPANIED BY SAM CRUTCHFIELD, ATTORNEY
Professor Avins. Thank you, Senator. Since I argued Katzenbach v. Morgan, I could hardly say otherwise than that I agree with yoll.
Senator Ervin. I might add that I have a great deal of consternation whenever I consider that case. There are two specific provisions in the Constitution: first section 2 of article I, which clearly gives the States the right to prescribe the qualifications for voting, subject to no exceptions other than those embodied in the 14th and 15th amendments, which was put in the Constitution before the 14th amendment, and second, the 17th amendment, which was inserted in the Constitution long after the 14th amendment. To have a general expression in the 14th amendment nullify two specific constitutional provisions, one antedating the amendment and the other postdating it, and at the same time, have the court indulge in the statement that the States have the power to prescribe qualifications for voting and then say that Congress could prescribe them in this particular case causes me to wonder. I do not believe any of us has any security apart from the Constitution as it was written. When the Court professed its adherence to the principle that the States have the power to prescribe qualifications for voting and immediately ignored that and annulled the States' requirements, I could not help but feel as I used to when my father told me