Section 1867 (page 8, line 20) provides that the defendant may question or challenge the selection procedures "prior to the introduction of evidence at the trial" and a similar provision is made with respect to civil cases in paragraph (b), beginning at page 9, line 11. In my judgment any challenge to the method in which the jury is selected should be made much earlier than "prior to the introduction of evidence at the trial." You may understand that in many criminal cases (and, to a lesser extent, in some civil cases) the defendant will utilize every possible delaying tactic to prevent the trial from going forward in an orderly fashion. If objection is made to the way that a jury panel has been selected, a defendant should not be permitted to wait until the government is ready to go forward with its evidence to raise the point. This will cause delay and confusion, require the taking of evidence outside of the jury's presence, and is a matter which could and should be resolved long prior to trial. Section 1869, page 11, line 11, in my judgment is too restrictive in its provisions with regard to excusing purors. A judge should be allowed wide discretion in this area. Mothers with small children frequently are excused; law enforcement officers, who obviously will not be chosen to serve on a criminal jury, frequently are excused, and other such situations frequently present themselves. I see no advantage in restricting the judge's discretion in this fashion. I approve the increase in the fees provided in Section 102 (page 13, line 11). Before such wholesale revision of our present system, I think inquiry should be made as to any instances wherein our system has not worked well. I am unaware of any cases where there have been miscarriages of justice attributable to the method of selecting juries and that is the purpose which the jury is designed to serve. Sincerely, Hon. SAM J. ERVIN, Jr. BEN C. CONNALLY, U.S. DISTRICT COURT, SOUTHERN DISTRICT OF MISSISSIPPI, Chairman, Subcommittee on Constitutional Rights, Washington, D.C. DEAR SENATOR ERVIN: This will acknowledge receipt of your letter of July 1 enclosing S. 3296, for which I thank you. Jury selection is considered an extremely important function in the Southern District of Mississippi. We have jury wheels for each of the five divisions which are kept in Jackson and contained in excess of the statutory number of names. Prior to my appointment in 1961, the Clerk relied heavily on county registrars for lists of voters who were registered in the county. Since 1961, the Clerk has relied on many sources for jurors which would more nearly insure a fair cross section in the particular division. A letter from the Clerk with a list of such sources attached is enclosed. During the past five years, the names of women have been put in the jury wheels and I think each wheel contains a fair percentage of qualified colored people. I am more concerned with the jurors' fitness in every case rather than his color. A criminal case tried by me at Biloxi last fall had seven colored people and five white people on the panel which tried a whisky case against a white man. The defendant did not exhaust all of his challenges. The Fifth Circuit on July 20 in Joni Rabinowitz v. United States, No. 21256, wrote a very far reaching decision on this jury question. As a result of that decision, it was my view that our jury wheels should be emptied of all names placed therein more than five years ago and that has been done. According to that decision, an indictment by a twenty-three man grand jury composed entirely of Negroes drawn from our jury wheels, as then constituted, would be void. The Court says that is so because the jury wheels would be tainted with names placed therein from a list prepared by the county registrar who would not have had many names of Negroes prior to this time. The Court says that the wheel would thus not contain a fair cross section of the particular division. I do not share that view but have yielded to it. As you requested, there is enclosed the questionnaire and accompanying infor mation which is sent to prospective jurors. In selecting jurors for the divisions, I try to see that we do not get an individual who lives much more than one hundred miles from the courthouse. That is in the interest of economy and to avoid undue imposition. You may make any use of this information you desire. With kindest regards, I am, Yours very truly, WILLIAM HAROLD COX, District Judge. P.S.-Indicative of my fair cross section is the fact that a jury drawn this morning in a civil case had twelve Negroes and six white people on the panel from which the jury was selected. U.S. DISTRICT COURT, OFFICE OF THE CLERK, Jackson, Miss., July 8, 1966. Hon. WILLIAM HAROLD Cox, Chief Judge, U.S. District Court, Jackson, Miss. DEAR JUDGE Cox: Pursuant to your request, I am enclosing a list of the variou's organizations and individuals where the United States Clerk's Office has requested help from them in furnishing us with names of qualified people regardless of race, creed or color who might make good jurors for use in the Courts of the Southern District of Mississippi. Very truly yours, ROBERT C. THOMAS, Clerk. 1. Hinds County Womens' Civic Clubs. 2. Variou's Garden Clubs over the state. 3. We get names from the newspapers locally, which would be the Clarion Ledger-Jackson Daily News and the Jackson Advocate. 4. State Junior Chamber of Commerce. 5. National Association of Public Accountants. 6. School teacher directory furnished or printed by the state (Colored and white). 7. Newspaper items about young businessmen being promoted and of traveling couples. (Same as #3 above). 8. State Senior Chamber of Commerce. 9. Different Labor organization's. 10. Business and Professional Womens' Clubs. 11. Pilot Club. 12. Altrusa Club. 13. League of Women Voters. 14. Professor Jacob L. Reddix-Jackson State College-negro. 15. Professor J. D. Boyd-Alcorn A & M College-negro. 16. Professor Lawrence Jones-Piney Woods College-negro. Hon. SAM J. ERVIN, Jr., U.S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, Miami, Fla., August 3, 1966. Chairman, Subcommittee on Constitutional Rights, DEAR SENATOR ERVIN: I am in receipt of your letter of July 1 with enclosures concerning S. 3296 which has been before the Senate Constitutional Rights Subcommittee for hearings. It would seem that the goal toward which jury system legislation should aim is the establishment of minimum procedures to insure that juries are composed of the peers or legal equals of the persons whose rights they determine. To accomplish this goal, juries must be drawn from the widest possible cross-section of the community. So long as this requirement is observed, Jury Commissions should be given discretion in preparing the lists to the end that competent jurors are drawn with a minimum of expense and a maximum of efficiency. I think our system has closely approached the desired conditions. In practical details, the Commissioner and Clerk, in our district have employed measures, under the Court's direction, which have worked and are essentially fair. More65-506-66-pt. 2- 55 over, these measures are time-saving without sacrificing any requirements of representative selection. Briefly stated, the jury selection machinery operates in our district as follows: 1. Clerk makes an entirely random selection of names, in accordance with population, from the R. L. Polk and Price & Lee Directories without regard to sex, race, religion, occupation, profession, economic or social status. Since these are not determining factors, no person, not even attorneys, are excluded. 2. A radius of 30 miles one-way travel is used as a guide line so as not to create undue hardship (in selecting and qualifying). 3. List of selectees is prepared and questionnaire forwarded to each person. 4. Qualifications are determined, in accordance with statutory requirement, by the Clerk. Slips with qualified names are prepared and publicly placed into a jury wheel by the Jury Commission. 5. A "Qualified Names in Jury Wheel" file is maintained. Each card filed therein corresponds to each slip placed in the jury wheel by the Commission. When a person is drawn for service, the corresponding card (Questionnaire) is removed, appropriately noted, and placed in a "Jurors Drawn for Service" file. 6. A list of the persons publicly drawn for service by the United States Marshal (in Clerk's Office) is then prepared, together with summons for each individual. The sumonses are then transmitted to the United States Marshal for service by certified mail. Thereafter, the Clerk receives the completed summonses through the mail and, in addition, traces all incidents of returned or refused mail. 7. Approximately 200 persons per month are summoned. Deferments are made with a view to obtaining maximum service at a time most opportune to the person making such request. 8. All prospective jurors are requalified in open court on the return day. 9. Appropriate notation as to qualification, mailing and received date, insertion date, drawn date, panel number and return date are made directly on the questionnaire while deferments and excuses are noted on attendance sheets and the summons, which has been revised to accommodate our system. 10. Four jury wheels are maintained for each place of holding court, together with the corresponding files hereinabove referred to. 11. Our "Questionnaire to Prospective Juror" requires no envelope. It is an instructive, postage-paid, two-part card form specially designed to meet the statutory provisions and assist the individual. When completed and filed, it serves as an index card containing detailed information. A copy is enclosed herewith. This system has been in operation for a number of years and has worked well, complies with the existing Federal statute which is reasonably broad and serves as a quide to the Courts and Jury Commission, leaving them the leeway that is required to do the work in a practical way without rendering their choices partial. Judge Brown's concurring opinion in Rabinowitz v. United States, Nos. 21,256 and 21,345, United States Court of Appeals for the Fifth Circuit, July 20, 1966 (photocopy attached), highlights the tremendously complex practical aspects of selecting a fair cross-section of a metropolitan community. Choice of means by which unlawful discretions and discrimination are to be avoided should rest largely in the sound discretion of the trial courts and their officers. Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946). The proposed legislation, S. 3296, is much too detailed to provide an efficient system for all districts with varied populations, facilities and needs. For ex ample, it would entail the use and maintenance of a "master wheel" and a “qualified juror wheel" for each place of holding Court, or a total of eight for this district. It would require selection of persons residing in all counties within a district as contrasted to a more equitable 30-mile radius necessarily used in this district. There is no advantage in purging the box where there is a substantial turnover in jurors. It would require prospective jurors to appear on two occasions, once before the Clerk merely for the purpose of completing the questionnaire. This is not only inconvenient but impractical as well. Much of the procedure is cumbersome, costly and unreasonably time consuming, not only to the officials charged with administering it but to prospective jurors as well. I seriously question the desirability of uniformity for its own sake, and I do not believe S. 3296 in its present form is either necessary or desirable. Sincerely yours, DAVID W. DYER, Hon. SAM J. ERVIN, Jr., U.S. DISTRICT COURT, EASTERN DISTRICT OF TEXAS, Beaumont, Tex., August 11, 1966. Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR: Honorable Joe W. Sheehy, Chief Judge of the Eastern District of Texas, has called to my attention Senate Bill 3286, which provides for changes in the present method of jury selection in the Federal Courts, and providing for Federal Court action should any State discriminate in jury selection. I concur with every statement of Judge Sheehy's letter to you of August 2nd, and such comments as I make will be applicable only to Title I. In my opinion, as far as the Federal system is concerned no changes are needed to accomplish the stated purpose of the Bill, that is, "to give everyone qualified the opportunity to serve and not to discriminate on account of race, color, religion, sex, national origin and economic status." We believe under the present system we get a good cross section of qualified citizens of the communities comprising the Judicial Division, including a fair representation of the races residing in such communities. This objective cannot be better accomplished under the proposed Senate bill, but presumably it is thought that Sections 1864, 1865 and 1866 would bring beneficial results by providing random selection from the voter registration lists under some system prescribed by the Chief Judge, and random selection from other sources of names that the Judicial Council of the Circuit might suggest. As a matter of practice, this system of random selection from voter lists and other sources is now being employed by the Eastern District of Texas. If there are Districts in the Federal system not making such random selection of prospective jurors, thus obtaining a cross section of citizens without discrimination, then to this extent the present jury selection statutes should be changed to provide random selection of names of prospective jurors to be placed in the jury wheel. Of course, after the names of prospective jurors selected are placed in the master jury wheel, the names of jurors actually selected for jury duty depend on lottery and in this connection a jury panel may have a disproportionate number from the standpoint of classification. However, there are no provisions in the proposed Senate Bill that will better bring about a representative cross section of citizens without discrimination. This is just a situation that cannot be made perfect mathmatically or by classification. The drawing of names from the master jury wheel as provided by Section 1865 for prospective jurors to appear before the Clerk to fill out a juror qualification form is, in my opinion, a useless procedure and an unnecessary expense to the government, as well as time consuming on the part of the prospective juror, the Clerk and Jury Commissioner. The same results could be accomplished by summoning jurors as needed and attaching to said summons the qualification form to be returned properly filled out when the juror reports for duty. This form. of course, to be filed with the Clerk and made part of the permanent record should the method of jury selection be contested in the future under Sections 1867 and 1868. When the prospective juror appears for jury duty, those disqualified will be excused by the Court; those qualified to begin jury duty. This would eliminate the time consuming work on the part of a deputy clerk in having to assist with the jury qualification forms, as well as the Jury Commissioners having to review the forms for exemptions and excuses. With litigation increasing annually from 10% to 25% in most of the divisions, the Clerk's offices are understaffed and we judges of the Eastern District of Texas know from experience that it is most difficult to obtain approval from the office of the Administrative Courts to employ additional and permanent clerical help. After prospective jurors are certified by the Clerk and Jury Commissioner under the proposed Senate Bill, the names are placed in a qualified juror wheel in accordance with paragraph (c) of Section 1866. [How many qualified jurors are to be placed in this wheel the bill does not state.] How this additional step helps to prevent discrimination or aids in bringing about a better cross section of representative citizens, I do not understand. I would conclude by saying if paragraph (c) of Section 1866 is eliminated, and the provision of Section 1865 requiring prospective jurors to appear before the Clerk is changed to allow the prospective juror to deliver to the Clerk the quali fication form properly executed when appearing for jury duty, the other provisions of the Bill would be acceptable to me and would be some improvement over the present system. Sincerely yours, JOE J. FISHER, U.S. DISTRICT COURTS, Hon. JOHN L. MCCLELLAN, EASTERN AND WESTERN DISTRICTS OF ARKANSAS, DEAR SENATOR MCCLELLAN: Some days ago I received a letter from Senator Ervin of North Carolina with which he enclosed a copy of Senate Bill No. 3296 which he describes as the Administration's version of the Civil Rights Act of 1966. The Senator also enclosed a copy of the statement which he made at the opening of his sub-committee's hearings on the bill. I was requested to supply certain information, and to comment on Titles I and II of the bill dealing with jury selection in both the State and federal courts. I supplied that information and without going into detail advised Senator Ervin that in general I was opposed to the provisions of both titles. Since I wrote to Senator Ervin, I have been supplied by Congressman Mills with a copy of House Bill No. 14,765. That copy shows the bill as originally written, and also shows the present text of the bill as reported out by the House Judiciary Committee. The importance of the Jury system to our form of government and way of life and the impact which the adoption of Title I or Title II of either the Senate or the House bill would have upon that system prompts me to write you this letter for the purpose of starting my views in some detail. Primarily what I have to say will be directed to the Senate bill, but from time to time I will make some comment on the House bill. First, I will say that the House bill as reported out of the Committee seems to me to be a better bill from an administrative or mechanical standpoint than the Senate bill, and the House bill, as reported, meets some of the objections that I have to the system envisioned by the Senate bill. However, the differences between the two bills are differences in degree only. Both bills contemplate a method of selecting grand and petit jurors to which I am opposed in principle. With specific reference to S. 3296, Title I of that bill relates to the method of selecting federal grand and petit jurors and is doubtless within the constitutional power of Congress to enact. Title II prohibits discrimination in the selection of jurors in the State courts, and then goes on to vest the federal courts with jurisdiction to take action at the suit of the Attorney General of the United States to eliminate such discrimination in the State courts. The jurisdiction which Title II would proceed to confer on the federal courts with respect to State court jury selection is, I think, of doubtful constitutionality and is definitely undesirable even if such jurisdiction can be conferred. TITLE I Section 101 of Title I of the bill is a drastic revision of Chapter 121 of the Judicial Code of the United States, U.S.C., Title 28, which deals with federal juries and the right to trial by jury in the federal courts. References herein to Code sections are to the sections appearing in the bill unless otherwise indicated. Section 1861 declares it to be the policy of the United States that "all qualified persons shall have the opportunity to serve on grand and petit juries in the district courts of the United States and shall have an obligation to serve as jurors when summoned for that purpose." Section 1862 prohibits discrimination in jury selection on account of “race, color, religion, sex, national origin, or economic status." The same statement of policy and the same prohibition appear in the House bill. Section 1863 provides for a jury commission for each judicial district or for separate divisions of the same district. The commission or commissions are to consist of the Clerk of the Court and of an individual appointed by the Court. Each commission is to act under the direction and supervision of the chief judge of the district. The Senate bill eliminates the present requirement that the |