15. a. If you are married, give occupation of wife or husband b. If you are a married woman, give occupation before marriage c. If you are retired, or not working, give last occupation. 16. Have you ever been convicted of a crime?.. If so, state date, court and crime_----. 17. Have you ever served as a juror?_____ If so, in what Court?___ and when?_ (Yes or No) 18. Have you any disability impairing your capacity to serve as a juror, including impaired eyesight or hearing?__ If so, state its nature and extent. 19. Do you know any reason why you cannot serve as a juror?---- If so, state reason fully under remarks. Remarks: I certify that the foregoing statements are true to the best of my knowledge and belief. Date: Signature UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK, Hon. SAM J. ERVIN, Jr., Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, United States Senate, Washington, D.C. DEAR SENATOR ERVIN: This is my reply to your letter of July 1st in which you ask for my comments as to Title I of S. 3296, which has been introduced in the Senate and referred to the Committee on the Judiciary. If such a bill is enacted into law, the first thing that the Congress must do is to appropriate sufficient funds to increase the personnel in the office of Clerk of each United States district court. The matter of maintaining a representative list of qualified jurors in this district court has concerned me for several years. I made a study of our jury system and filed a copy of my report with the Administrative Office of the United States Courts, in 1961. I have no extra copies available. I would hope that the Administrative Office would either loan you its copy or have a copy run off for you, if you care to read it. In large metropolitan areas (in which citizens serve as jurors in municipal, county and state courts, in addition to the federal district court) many qualified jurors are subjected to unnecessary hardship. The same people are called again and again and again to serve as jurors. For example, I estimate that we have approximately two and one-half million qualified voters within this district whose population is somewhere between seven and one-half and eight million. Our jury list consists of approximately five thousand persons. Our report to the Administrative Office pointed up this fact and requested additional personnel in order to build up our jury list to the point where the same people would not be called upon as often as they are. To date, no such additional personnel have been provided. As to the composition of the jury commission: the definition of "Clerk" and "Clerk of the Court" should make it crystal clear that it is not the political affiliation of the jury commissioner and the Clerk that is important but, rather, that the jury commissioner and whatever deupty clerk serves with him from time to time should not be of the same political party. Every United States district court has a jury commissioner. He and a deputy clerk now draw names to be placed in the "qualified jury wheel." Section 1863 (a) seems clear enough. I would suggest that Section 1870 (a) be amended by adding "serving with the jury commissioner when names are placed in the master wheel, pursuant to Section 1864; are drawn from the master wheel, pursuant to Section 1865, and are placed in a "qualified jury wheel," pursuant to Section 1866. As to the proposed "master jury wheel": such a master jury wheel would be quite cumbersome for it must contain names of at least 1% of the total number of persons listed on the voter registration list for a particular district; it would require approximately twenty-five thousand names to be placed in such a wheel in this district. That would be quite a wheel. The bill suggests that there would have to be a juror's card for every qualified voter in the district; that, from that total, 1% of the cards be drawn and placed in the master jury wheel. This would require our Clerk to prepare approximately two and one-half million such cards. Not only would our Clerk's office need much more help but it might also need an IBM machine. This feature of the bill is further complicated by the fact that, of the two and one-half million juror cards, we would not know how many are qualified to serve as jurors. After you select "at random from the voter registration lists" the names of persons residing in the district, it is conceivable that the 1% of the total number of registered voters so selected might come from one particular area of the district. In a district as large as ours with residential areas ranging from poor to very rich, the 1% might represent the rich area or the poor area. We arrange our jury cards by county and election district categories in an attempt to obtain for our "qualified jury wheel" a list of jurors as representative as possible of the entire district. I do not think that it is wise or practical to require the maintenance of a "master wheel" containing at least 1% of the total number of registred voters; selected at random. This requirement of Section 1864 (a) and (b) can nullify Section 1864 (e) which seems to suggest that the names that go in the master jury wheel should be representative of the persons residing in all of the political subdivisions of the district. As to the drawing of names from the master jury wheel: this comes at a time when jurors are needed. Names are to be drawn from the master jury wheel and placed in the "qualified jury wheel." This seems to me to be a pretty late hour at which to begin to look into the qualifications of those whose names are in the master jury wheel. When the names are drawn from the master jury wheel, the Clerk will have to mail a qualification form. Then the addressee will have to appear in person before the Clerk or a deputy clerk to fill out the form. And after the form is filled out the jury commission will have to examine the forms and determine which of the potential jurors are qualified to serve. This is something that should be done months and months before the time comes to place the names of jurors in the qualified jury wheel. Although the bill provides that the master wheel be emptied every two years, there is no provision as to how often the qualified jury wheel should be emptied and refilled. I like the requirement of punishment for failure to respond to a notice from the Clerk. The bill should be amended so as to impose the same punishment when a qualified juror fails to appear to serve as a juror. We have this very problem here in the Eastern District of New York and would welcome such a provision. These I realize what the problems are that are sought to be met by S. 3296. are not problems that prevail in this part of the country and, certainly, not in this district. But before legislation of nation-wide application is enacted into law, the Congress had better provide the funds with which to implement whatever bill becomes law. Sincerely, JOSEPH C. ZAVATT, The Attorney General mentioned during our first week of hearings that the Justice Department had consulted with a number of judges. Apparently, they were not the same judges we contacted, and he may be interested in replying to the remarks we received at some later date for the Record. From time to time, the staff will send you additional letters as they are received. For our purposes today, I shall mention a few of the major objections raised by several judges. Judge Meredith of Missouri informs us that all Missouri counties do not require voters to register and so using the lists is not practical. He notes that the bill would require that we increase the number of names in the jury box some 8 times the present amount. This would be impossible without more court personnel than is provided for in Title I. Judge Register of North Dakota states that there will be extensive and unnecessary traveling for jurors in large districts, and that the provisions of the Title could delay and interfere with the efficient functioning of the court. Judge Gourley of Pennsylvania also objects to the extra traveling involved, and the lack of compensation for this burden. Judge Henley of Arkansas approves of increased jury fees, but he says that the bill unjustifiably requires 2,000 names where 300 now suffice. He believes the bill would lower the quality of juries. Judge Taylor of Tennessee thinks the use of "race" in the questionnaire may result in more rather than less discrimination. He finds the selection machinery time-consuming and expensive, as does Judge Stanley, of North Carolina. Judge Taylor also feels the procedures for challenging the composition of the jury are likely to completely demoralize jury trials. He thinks the bill needs further scrutiny. Judge Stanley sees no need for the changes, and he strongly suggests that the drafters were not aware of the practical problems involved in selecting a jury. Judge Brown of Tennessee says there has been no criticism of the system in his district, and he sees no need for changes. He is especially concerned with any change which would lower the quality of juries. In Wyoming, which has one judge and one district for some 97,000 square miles and 330,000 people, the bill could result in trips of some 1,000 miles for prospective jurors. And, as Judge Kerr notes, the bill does not give any compensation for the trip to court to fill out the qualification form. He states that the court now requires only 120 jurors every two years. Under Title I, they would be forced to place 2,000 names in the jury wheel, and begin all over. He concludes that the machinery would be expensive and would not improve jury panels at all. In New Jersey, Judge Madden writes that over 31,000 names would have to be put in the jury wheel if the 1% rule is applied. These names would need to be personally checked by the Jury Commission within a 6-week period every two years. He sums up his comments by stating that the Justice Department is evidently not very familiar with jury selection problems if Title I is any indication. In a supplementary statement submitted by Judge Madden's Clerk of the Court, it was suggested that "some districts might require a 'master jury wheel' the size of a mounted cement mixer which spins on the way to the job site." I am particularly impressed with Judge Zavatt's remarks. In the Eastern District of New York, there are some 7 to 8 million people, and 21⁄2 million qualified voters. That amounts to 21⁄2 million cards in the master wheel, and 25,000 to be selected under the 1% rule. He states that these provisions would require not only additional manpower, but the use of an IBM machine. Rather than these changes, Judge Zavatt apparently feels that more funds are needed to improve the system. He concluded this in 1961 after a careful study of the dis trict's jury selection machinery. Rather than having his suggestions considered, he now finds that extra burdens will be imposed on the court, but with no additional funds to implement them. Lastly, Judge Miller of Tennessee finds that the bill would be vastly more complicated and detailed than the old system. While this is not a valid objection if the quality and representation of juries is improved, he feels that the bill should be studied in great detail by the Judicial Conference and the American Law Institute. The same comments apply to Title II, which he finds drastic, and from his experience not needed. Mr. Attorney General, I have summarized the comments from only a dozen of the 27 letters we have received to date. In my opinion, they add up to a striking indictment of Title I. These letters come from all parts of the country. All of them are addressed to the technical and practical aspects of jury selection. There is very little duplication. All important aspects of Title I are covered. Because the responses were returned so promptly, I think it is clear that it required very little study to find serious faults with the proposal. Federal judges are, of course, busy men. None of them had time to give extended consideration to the bill. That is supposed to be the function of the committee, although I regret to say we have not been permitted the time clearly required to do our duty. Based upon experience, the judges were able to discover all manner of problems in the bill. Not a few deplored the lack of study evident from the nature of the proposals. None of them endorsed the Title. A number of them suggested explicitly, and all of them implied, that the bill would cause problems not presently existing. It is clear from these remarks that the bill deserves intensive study and considerable rethinking. The bill would be impossible to administer in the District of Columbia, and in many other federal courts throughout the country. I recognize that the American Law Institute and the Judicial Conference, as you stated earlier, have no constitutional or statutory mandate to pass on such legislation before enactment. But, surely it is clear that the bill needs the benefit of their study. If we were to approve the bill as written, violence would be done to the jury system in this country. Changes such as these should not be made in a heated emotional atmosphere of civil rights. We are all too concerned, as is demonstrated today, with Title IV of the bill. I ask you to consider the objections we have received from the judges, and then to decide whether you agree with me, and with the judges, that this portion of the bill should be set aside until it has been thoroughly studied by the various professional organizations and your Department. In any restudy of Title I that he Department undertakes, I think it would be helpful to pay particular attention to the remarks of Judge W. A. Bootle, of the Middle District of Georgia. He expresses what I believe should be the attitude with which we approach the problems of Title I: "Those of us who take pride in the quality of justice administered in the federal courts would seriously regret any lowering of the qualifications of federal jurors, or any lowering of the collective intelligence of the jury panel. It seems to me that we are concerned here with much more than just a lesson in civics or a mere exercise in the principles of democracy. The administration of justice is serious business. It represents the actual functioning of democracy at one of its highest levels. It needs to be as efficient as possible. The importance of the jury in our jurisprudence would be hard to exaggerate. The jury has almost unlimited authority over property, liberty, and even life itself. It can deny property; it can deny liberty, and it can deny life, nor is its importance diminishing. Technical and complicated issues formerly looked upon as equitable and triable without a jury now require jury verdicts. See, for instance, Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959). ** "I am in thorough agreement with your observation that the jury provisions of this proposed legislation have an importance independent of its civil rights objectives. I agree also that legislation of this far-reaching importance should be submitted to the close scrutiny of the Judicial Conference of the various Circuits, the Judicial Conference of the United States, the American Law Institute, and the American Bar Association." In this connection, I will also ask you to consider an article written in 1947 by the late John C. Knox, senior Judge of the U.S. District Court for the Southern District of New York, entitled "Selection of Federal Juries." This study appeared in the Journal of the American Judicature Society. It was Judge Knox's thesis that an intelligent and honorable jury is vital to our system of justice and that jurors should be carefully and discriminately selected. Judge Knox had served as Chairman of the Judicial Conference Committee on Selection of Juries, which had conducted an intensive investigation of this subject. The Committee's recommendations clash with the provisions of Title I in several respects. A copy of Judge Knox's article will be printed at this point in the Record. SELECTION OF FEDERAL JURORS John C. Knox "In my opinion," says Judge Knox, senior judge of the United States District Court for the Southern District of New York, "an intelligent and upright jury is quite as important as the judge who presides at the trial. Should not the jurors then, as well as the judge, be competently and discriminatingly selected?" The Judicial Conference Committee on Selection of Jurors, of which he is chairman, has made a notable study of that subject, and its important proposals here described are now pending in Congress. Within my library in New York is an ancient volume entitled "Tryals per Pais, or The Law of England Concerning Juries." It was written by George Duncombe of the Inner Temple, and was published in 1695. Early in his discussion, Mr. Duncombe said: ""Tis true, tryals by Juries before Henry 2nd were not so frequent. * * * Tryals by hot Iron, hot Water, Duels and other superstitious ways were then in use, but Tryals by Juries were here in the Saxon time, and were found here, and not brought in by William the Conqueror from Normandy. * * * Their general use speaks them a public good. To be Tryed by one's peers is the greatest privilege a Subject can wish for; and so excellent is the constitution of the Government of this Kingdom that no subject shall be Tryed but by his peers. The Lords by theirs, the Commons by theirs, which is the fortress and Bulwark of their Lives, Liberties and Estates, and if the good of the Subject be the good of the King, as most certainly it is, then those are Enemies to the good of the King and State who attempt to alter or invade this Fundamental Principle. * * *” But, curiously enough, "Duncombe's good opinion of the English jury system seems not to be fully shared by present-day practitioners of British jurisprudence. Indeed, Professor R. M. Jackson, lecturer in law in the University of Cambridge, in his book entitled The Machinery of Justice in England (1940) says: "Modern writers are singularly chary of committing themselves to any opinion about juries. The eulogies of Blackstone are definitely unfashionable. The current opinion is perhaps on these lines: Jury trial in civil cases is sometimes satisfactory and sometimes most unsatisfactory, and hence the restriction of jury trials has been a wise development; however, there is much to be said for jury trial in criminal cases, and (in part at least) in cases where the liberty of the subject is concerned." DECLINE OF JURY TRIAL IN ENGLAND Prior to the enactment of the English Judicature Acts of 1873-5, the traditional common law mode of trial in the Mother Country was by judge and jury, whereas the Chancery Court, of course, made no use of juries. The Judicature Acts, however, brought about more or less fusion in the administration of law and equity procedure, and this, it may be said, led to the application of chancery ideas in the trial of all civil suits. Within a few years after enactment of this legislation, the use of juries in civil cases at common law drastically declined. From 1885 to 1917, roughly one-half of all cases heard in the King's Bench Division were tried before a judge alone. The shortage of man power during 1917 led to restrictive measures, so that at the end of the first world war and during the immediate post-war years jury trials fell to a low ebb. A small measure of recovery then took place. This came about through repeal of the restrictive measures, in 1925. Nonetheless, soon thereafter the popularity of jury trial again declined. Restrictions introduced by the Administration of Justice Act of 1933 hastened this decline. The result was that in 1940 jury trials were had in less than ten per cent of the common law cases. In defended divorce cases and in contested probate cases either party may apply for a jury, but this occurs in only about five per cent of the cases. But, whatever may be the basic causes for the decline of jury trials in England, it is certain that, in this country, these causes are not to be found. This is evidenced by the views expressed by the Section of Judicial Administration of the American Bar Association at its meeting in Cleveland in July of 1938. Its committee on trials by jury there declared that- "-jury service today is the chief remaining governmental function in which lay citizens take a direct and active part, and trial by jury is the best means within our knowledge of keeping the administration of justice in tune with the community." To this statement I give hearty accord. In my judgment, the jury system is an institution that should under no circumstances be impaired or frittered away. On the contrary, we should affirmatively endeavor to maintain its integrity and improve its operation. If this is to be accomplished, our law courts need and must have the competent assistance of jurors who believe in America; who are honest and upright, and who bring to their task the intelligence, sound judgment and courage that will enable them rightly to decide questions of fact, and to do so without fear or favor. PROBLEMS OF JURY COMMISSIONERS The public generally, and the bar in particular, properly expect that somehow, and from some source, the courts will find jurors who are equipped to perform their duties fully and completely. But where, I inquire, are high intel |