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UNITED STATES v. HAYWOOD

August 8, 1968

UNITED STATES of America
v.
Barry HAYWOOD



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 The Court has before it a motion to dismiss this three-count indictment charging Second Degree Burglary, Petty Larceny and Engaging in Riot on the ground that the April Special (2) Grand Jury sworn April 23, 1968, which returned the indictment, was unlawfully constituted in contravention of the Constitution by reason of defects in the jury selection process. The matter has been thoroughly briefed. The motion and opposition are both supported by affidavits and the Court heard full argument after granting a limited evidentiary hearing.

 Three basic defects in the selection process are urged:

 
(1) The exclusion of women who indicated they do not wish to serve;
 
(2) The inclusion of persons who maintain voting residence outside the District of Columbia; and
 
(3) The evaluation of prospective jurors based upon an improper questionnaire.

 The motion does not suggest any irregularity peculiar to the selection of the grand jury returning this indictment. This particular special grand jury was selected in accordance with established procedures which have been followed for grand juries in this jurisdiction over the years. In summary, these procedures, which in large part are governed by the provisions of 11 D.C.Code § 2301, are as follows:

 Names of prospective jurors are selected at random from Polk's City Directory. A questionnaire and simple covering letter is then sent to each name so selected. If no response is obtained, three written follow-ups are sent, and, failing satisfaction, a personal interview is attempted with the prospective juror. Incomplete questionnaire answers are returned for completion and the same follow-up procedure is pursued in this regard. Some recipients come in personally to the counter of the Jury Commission for assistance in completing their responses. The bulk of the questions in the questionnaire relate directly and specifically to the ability of a prospective juror to qualify as a juror in the light of the various Code exemptions. Other questions, as will later appear, seek more general information. When completed questionnaires are received they are coded by experienced trained personnel to remove all persons clearly ineligible by reason of occupation, illiteracy, criminal record, etc. All other questionnaires, including all doubtful cases, are held for review by the Jury Commissioners.

 The culled questionnaires are divided among the three commissioners in approximately equal number and reviewed by them. The commissioners confer on occasion but have no written standards for questionnaire evaluation. They are guided in this by the decisions of this Court and the language of the Code, and they exercise discretion in the light of their experience. In some instances commissioners request the prospective jurors to come in for an interview before accepting or rejecting a particular juror. A substantial number of eligible jurors are available at all times to be drawn in accordance with the appropriate procedures as juries are required. Ultimately, of course, as is well known in this jurisdiction, the Court itself reviews a number of questionnaire responses of jurors found qualified by the commissioners, hears excuses and accepts or rejects particular jurors. This process is necessarily selective but there is no requirement that every person eligible under the Code must be chosen and the Code does not prohibit the normal exercise of common-sense judgments in the matter. It is against this general background that the particular contentions of defendant-movant must be considered.

 First, as to the exclusion of women who indicate they do not wish to serve, it is a fact that if a woman in her response to a questionnaire states she does not wish to serve, she is excused but her willingness to serve is encouraged. This is in accord with the specific Code provisions authorizing such exemption. 11 D.C.Code § 2301(b); Hoyt v. State of Florida, 368 U.S. 57, 82 S. Ct. 159, 7 L. Ed. 2d 118 (1961). Defendant appears to complain that this so-called "blanket exclusion of women" results in the disproportionate selection of women from Government service. In fact, it is neither a blanket exclusion of women nor has it been shown that it unduly weights the jury with Government employees. Not only is it well settled that Government employment does not imply bias, Frazier v. United States, 335 U.S. 497, 69 S. Ct. 201, 93 L. Ed. 187 (1948); Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950), but the facts as to this particular grand jury refute movant's contention. Of the 23 members of the April Special (2) Grand Jury, 13 are women and 6 of these women are employed by the United States Government and it is to be expected in this jurisdiction that Government employees will be found on juries in some number. Movant has failed to show any intentional systematic arbitrary or unreasonable exclusion of women in the selection of grand juries and indeed nothing more than a scrupulous adherence to appropriate procedures in the selection of women for this particular grand jury has been demonstrated.

 Second, as to the inclusion of persons who maintain voting residence outside the District of Columbia, it appears that in fact all 23 members of this particular grand jury do not vote elsewhere. It has been uniformly the practice in this jurisdiction not to disqualify jurors who vote elsewhere if they have in fact the necessary residence in the District of Columbia. United States v. Nardello, 15 D.C. (4 Mackey) 503 (1886); United States v. Cross, 20 D.C. (9 Mackey) 365 (1892), appeal dismissed, 145 U.S. 571, 12 S. Ct. 842, 36 L. Ed. 821 (1892). Indeed, it has been suggested that such exclusion would be improper. Young v. United States, 94 U.S.App.D.C. 54, 212 F.2d 236 (1954), cert. denied, 347 U.S. 1015, 74 S. Ct. 870, 98 L. Ed. 1137. Again, movant has totally failed to establish any impropriety in the selection of this grand jury.

 The principal objections urged by the defendant and the issue which dominated the arguments and hearing concern the propriety of two questions found in the questionnaire: questions 16 and 29. These questions read as follows:

 
"16. Have you ever been arrested in the District of Columbia or elsewhere? If so, give date, place ...

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