UNITED STATES v. FOSTER
83 F.Supp. 197 (1949)
FOSTER et al.
United States District Court S. D. New York.
March 4, 1949.
John F. X. McGohey, U. S. Atty., of New York City (John F. X. McGohey, U. S. Atty., Frank H. Gordon, Special Asst. to the U. S. Atty., of New York City, and Irving S. Shapiro, Sp. Asst. to U. S. Atty., of Washington, D. C., Edward C. Wallace, Sp. Asst. to Atty. Gen. and Lawrence K. Bailey, Attorney, Department of Justice, of Washington, D. C. of counsel), for the Government.
Unger, Freedman & Fleischer, of New York City (Abraham Unger and David M. Freedman, both of New York City, of counsel), for Jacob Stachel, Carl Winter, William Z. Foster, Eugene Dennis and Henry Winston.
George W. Crockett, Jr., of Detroit, Mich., co-counsel for defendants Stachel and Winter.
Harry Sacher, of New York City, for Irving Potash, Benjamin J. Davis, Jr. and John Yates.
Abraham J. Isserman, of New York City, for Gilbert Green and John B. Williamson.
Louis F. McCabe, of Philadelphia, Pa., for William Z. Foster, Eugene Dennis and Henry Winston.
Richard Gladstein, of San Francisco, Cal., and Mary M. Kaufman, of New York City, for Gus Hall and Robert G. Thompson.
George Wagman Fish, of New York City, amicus curiae for American Labor Party.
Pressman, Witt & Cammer, of New York City, amici curiae for Food, Tobacco, Agricultural & Allied Workers Union (CIO) and others.
Marian Wynn Perry and Arthur G. Silverman both of New York City, amici curiae for National Lawyers Guild, New York City Chapter.
J. Bruce Fratis, Benjamin Dreyfus, George Olshausen, Charles R. Garry and Dudley Shearer, all of San Francisco, Cal. amici curiae for National Lawyers Guild, San Francisco Chapter.
MEDINA, District Judge.
Defendants, indicted for conspiracy to advocate the overthrow and destruction of the government by force and violence, 18 U.S.C.A. § 2385, have filed a challenge to the array and have moved to quash and dismiss the entire panel, venire and jury list and to dismiss the indictments on the ground that there has been a wilful, deliberate and systematic exclusion, in whole or in substantial part, of the poor, the propertyless, persons of humble station, laborers, mechanics, craftsmen and other manual workers, persons who work by the day or hour, persons who by reason of lack of means are compelled to and do reside in low rent areas and persons who are not members of or closely allied with the upper strata of social life in the community; also Negroes and other racial and national minorities, including large numbers of Jewish citizens, those of Italian descent and Porto Ricans; also women; and persons who are affiliated with the American Labor Party and the Communist Party. This charge necessarily relates to grand jurors and petit jurors as well. The claim is further advanced that the requirement of a $250 property qualification for jury service, as provided by 28 U.S.C.A. § 1861, subd. (4) and § 596 of the New York State Judiciary Law, Consol.Laws, c. 30, and the "limitation" of $4 per diem jury fees provided by 28 U.S.C.A. § 1871 (recently increased to $5 per diem by Pub.L. No. 779, 80th Cong., 2d Sess., which became law on June 25, 1948), are discriminatory against the poor and members of the working class and that said statutes impose unconstitutional conditions in violation of the Fifth and Sixth Amendments of the Constitution of the United States. Other grounds are urged which it is unnecessary to specify.
In October, 1948 defendants made a similar motion to dismiss the indictments on the ground that there had been a systematic exclusion from the grand jury of people of the working class and members of the colored race. This motion was denied by Judge Hulbert on October 22, 1948, 80 F.Supp. 479. Thereafter and on November 15, 1948 defendants filed a challenge to the array and a motion to "quash and dismiss the entire panel, venire and jury list." This challenge and motion were withdrawn on November 16, 1948. At the commencement of the trial of the issues presented by the present challenge and motions, the United States Attorney moved to strike such parts thereof as concerned the grand jury, on the ground that a similar motion had already been made and denied, that the time within which to make the motion had expired and that no application had been made for leave to renew. Upon objection of counsel for the defendants to the striking out of this portion of the challenge and motions, I ruled that I would treat their objection as in effect a motion for leave to renew and decision was reserved on this motion, as well as on the motion of the United States Attorney to strike. In the interest of justice I think the entire matter should be determined on the merits and I therefore grant the defendants leave to renew and deny the motion of the United States Attorney to strike.
The period involved extends from the early part of 1940, when the present Jury Clerk of this Court was appointed and assumed his duties as such, up to the time of the commencement of these proceedings. This coverage of something less than ten years seems for all practical purposes sufficiently broad. Such proof as has been received relating to any earlier period will be considered merely as background.
The trial has consumed six weeks or more from January 17 to and including March 1, 1949. The defendants have called 42 witnesses, including the Chief Judge of this Court, 21 members of the grand jury which voted the indictments against them, 6 petit jurors called for service for January 17, 1949, the Director of the Administrative Office of the United States
Courts and his Assistant, the Jury Commissioner, and a number of others. The government has called 4 officials who are charged with the qualifying and drawing of jurors for service in this District and 2 persons on the jury list. Many hundreds of exhibits have been received in evidence, chiefly offered on behalf of defendants in support of the challenge and motions. All this testimony and each of these exhibits have received careful consideration.
In addition to the specific provision contained in 28 U.S.C.A. § 1863(c) that "No citizen shall be excluded from service as grand or petit juror in any court of the United States on account of race or color," and the requirement of 28 U.S.C.A. § 1864 that the jury commissioner and the clerk shall place names in the jury box "without reference to party affiliations," and the basic requirement that both grand and petit juries shall at all times consist of a fair and impartial cross-section of the community, the statutory provisions which govern the case are to be found in 28 U.S. C.A. §§ 1861 and 1862 and in § 596 of the New York State Judiciary Law, which prescribes the qualifications of jurors in the cities having a population of one million or more, which is in effect made applicable by 28 U.S.C.A. § 1861 (4). Other statutory provisions of the New York law relate to counties without the limits of the City of New York but within the Southern District of New York. See N. Y. Judiciary Law § 502.
Eliminating from consideration the exemptions provided in 28 U.S.C.A. § 1862 and the disqualification for conviction of crime contained in 28 U.S.C.A. § 1861(1), it will be found that Section 1861 provides that any citizen who has attained the age of 21 years and resides within the judicial district is competent to serve as a grand or petit juror unless he is unable to read, write, speak and understand the English language or is incapable by reason of mental or physical infirmities to render efficient jury service.