Grand Jury concerned with the April disorders, it would obviously have been inappropriate for individuals arrested during these disturbances to serve. Police records are obtained in all cases and a negative response to the arrest question takes on significance where reference to police records discloses recent arrests thus concealed. These are but examples. They are sufficient to justify the question. The claim that other federal jurisdictions do not ask this question is of little significance, for this Court must select jurors who qualify both under the general statute and the applicable D.C.Code provisions as well.
The question concerning views opposed in some aspect to our constitutional form of government, while not felicitously phrased, is also directed toward relevant information. If in a subsequent interview with an individual answering affirmatively it should develop, for example, that the prospective juror did not believe in trial by jury, his ineligibility would clearly be established. This type of question is not unique. Cf. United States v. Mesarosh, 13 F.R.D. 180 (W.D.Pa.1952).
Defendant must establish more than the fact such questions are asked. The issue is the use to which answers are put and the purpose underlying them. They are but part of a questionnaire clearly designed to carry out the responsibility of the Jury Commissioners, who, under the Code, must exercise some discretion in jury qualification matters in seeking "intelligent and upright" citizens. 11 D.C.Code § 2305. The proofs showed that persons with arrest records have served and that no prospective juror has been excluded by the Jury Commissioners solely because of responses to either of these questions. The Court itself exercises some responsibility in the matter of jury qualification and undoubtedly a good number of persons have been excluded by the Court or the Jury Commissioners because of the nature and extent of an arrest record viewed in the light of the total questionnaire response. This is something far short of systematic and deliberate exclusion such as the Constitution condemns. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181, 166 A.L.R. 1412 (1946). Indeed, considering the variety of possible arrests and the fact that persons of every economic, religious, racial or social group and of every age, sex or occupation are arrested, even a considerable degree of exclusion would not make the jury nonrepresentative, for persons arrested are not a cohesive group. The same may be said for those who respond affirmatively to the question as to constitutional attitudes, although it is not shown that any number of affirmative responses have been received to this dubious inquiry.
Defendant urges that only a questionnaire that seeks information as to specific Code disqualifications or exemptions from jury service is proper. 11 D.C.Code §§ 2301, 2302. Recognizing that the commissioners are also directed to select, as nearly as may be, intelligent and upright citizens, 11 D.C.Code § 2305, defendant argues that this provision, not in itself a specific disqualification or exemption, should be ignored because it has been repealed by implication, but this contention is without merit.
The defendant suggests that a vice of the challenged questions is that they deter individuals from responding and that in consequence qualified individuals are passed over. The evidence refutes this. Failure to respond is intensely followed up with three subsequent letters and if still no response is obtained then a personal interview to achieve a completed questionnaire is arranged if the individual can be located in the city.
Defendant served a searching subpoena duces tecum on the Jury Commissioners to obtain records going back many years relating to thousands of questionnaire responses. The Government moved to quash. The Court permitted a limited evidentiary hearing for the taking of testimony to determine, among other things, the propriety of requiring an elaborate, expensive, time-consuming search of the confidential records of the Jury Commission. The Chief Clerk and the Secretary of the Commission each testified, presenting facts as to the manner in which questionnaire responses were analyzed and the purposes served by the challenged questions. It appears that the Jury Commissioners are carrying out their duties under the Code. There is no plan or systematic procedure for eliminating any identifiable group of persons or for distorting the respresentative character of the juries selected.
No member of this Court in daily contact with jury panels can doubt their representative nature. Indeed, the composition of the Special Grand Jury here under attack bears witness to the fair operation of the system. Of the 23 members, 6 women and 7 men work for the Government; ages of members range from 30 to 74; and many varied occupations, backgrounds and skills are represented. There have been frequent reviews of the jury selection procedures* and the Court itself has been intimately concerned in the process.
The burden was upon the movant to introduce distinct evidence that the Jury Commissioners did not perform their duties properly. Frazier v. United States, 335 U.S. 497, 503, 69 S. Ct. 201, 93 L. Ed. 187 (1948). The Code requires the commissioners to exercise discretion since it merely establishes minimum requirements. 11 D.C.Code § 2305, United States v. Ware, 237 F. Supp. 849 (D.D.C.1964), affirmed, 123 U.S.App.D.C. 34, 356 F.2d 787 (1965), cert. denied, 383 U.S. 919, 86 S. Ct. 914, 15 L. Ed. 2d 673 (1966). A review of thousands of questionnaire responses is not warranted. It would take literally months of work to attempt to reconstruct what has occurred on a question-by-question basis and it is very doubtful this could ever be done. A new jury selection system under the new Act is about to go into effect. On the showing made the enforcement of the subpoena is not justified or necessary.
The Court has considered all points raised on the motion and at argument and finds them without merit. The motion is denied and the subpoena duces tecum quashed. Counsel shall submit an appropriate order.
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