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September 18, 1933

McCLURE et al.

The opinion of the court was delivered by: WELSH

The defendants in this case were indicted on June 27, 1933, for conspiracy to violate certain provisions of the National Prohibition Act. On September the 9th, 1933, a number of pleas in abatement for various defendants were filed, and, for the purposes of argument and for the purposes of opinion, may all be taken together by agreement of the parties.

The plea in abatement alleges eight different reasons in support thereof, namely, noncompliance with the act of Congress relating to the impaneling of jurors and grand jurors; that the jurors so chosen were selected solely by persons other than those authorized by law to perform this duty; because the choice and selection so exercised was not made by the jury commissioner or clerk of the court; that such persons making the alleged selection excluded from their choice school teachers, clergymen, and physicians; failure to place the said names in the jury box alternately; because the names selected for grand jury service were not selected from the body of the electors, but from a selective group by persons not authorized by law; exclusion of persons from jury service for vocational and occupational reasons; and (clause 8) because persons not lawfully entitled to be present in the grand jury room were permitted to be present -- all of which reasons appear in detail as set forth in the plea in abatement itself.

 Nowhere in the plea in abatement do the defendants allege that, so far as concerns the first seven reasons assigned, were the defendants prejudiced thereby, nor was any evidence offered by the defendants or any charge made during the argument or discussion that the defendants were prejudiced.

 The eighth reason alleged by the defendants, that persons were improperly admitted to the grand jury room while it was proceeding with its official function, does contain an allegation of prejudice to the defendants. However, no testimony was offered in support of this allegation; it was never touched upon nor referred to in any way during the argument, and the court therefore feels that it cannot sustain a plea in abatement under such circumstances so far as this particular phase of the subject is concerned.

 A brief statement of the act of Congress in question and the facts adduced by defendants in support of the plea may help clarify the situation. The act of Congress is as follows (28 USCA § 412 [Jud. Code § 276, amended]):

 Defendants called Mr. James Gillespie, jury commissioner, a Democrat, 84 years of age. For seventeen or eighteen years he has been acting as jury commissioner.He stated that on a prior occasion, more or less remote, he had conferred with Mr. George Brodbeck, Republican, clerk of the United States District Court for many years, as to a list of persons to whom letters should be addressed, asking such persons to suggest names of qualified persons, in accordance with the terms of the letter, for jury service in the federal court; that last year, about November 15, 1932, Mr. Brodbeck forwarded to him a number of letters, five or six hundred, with the names of the addressees not filled in, signed by Mr. Brodbeck. This was the usual form of letter that had been used for many years for this purpose. He signed the letters. Later the persons written to replied, forwarding the names of persons considered by them fit for jury service. Shortly after this, Mr. Gillespie became ill, and, not being able to leave the house in January, 1933, Mr. Brodbeck came to his home, accompanied by a deputy clerk, and, after assuring himself or being assured that everything was all right, he stated that he and Mr. Brodbeck together placed the names of persons in the jury wheel, each one taking a handful at a time until all had been placed in the wheel. Mr. Gillespie said he did not sign any paper on that occasion, but later it was shown that he had signed a certificate required for that purpose, and the original paper with the signature of Mr. Gillespie and Mr. Brodbeck was produced before the court.

 Mr. Theodore Cobaugh testified that he had been a deputy clerk for thirty-odd years, and that, while he did not specifically have any responsibility with reference to the jury list he had a general knowledge of the way in which the work was handled, and his testimony was with reference to the more or less routine connected therewith. The court then asked Mr. Brodbeck, the clerk of the court, who has been connected therewith for over thirty years, as to his version of the course followed in the case in question. He testified that when he came into the office many years ago he found the present system in force. He had a list of five or six hundred names consisting of judges of the Supreme Court and judges of the Superior Court of Pennsylvania, living in this district, judges of the common pleas and orphans' court in this district, judges of the common pleas, judges of the orphans' court, judges of the municipal court in Philadelphia county; state senators living in this district, members of Congress living in this district, clergymen of all denominations, presidents and cashiers of national banks, state banks, and trust companies, men and women engaged in civic activities, certain (undesignated) officials of the city and county of Philadelphia, certain lawyers in the district who did not practice in the federal court, and other persons that he considered would be able to suggest fit and proper persons for jury service. The list of the persons so addressed appears in the record of the testimony.

 It may be interesting to note that one of the defendants, Senator John J. McClure, was asked to suggest names. He replied by sending in a list of twelve or fourteen names, which names were placed in the jury wheel. The court calls attention to this merely to show the representative character of the persons addressed as an indication of whether or not the class of persons suggested, and who might ultimately be selected were representative and reflective of the intelligent and moral life of the community, irrespective of partisanship, creed, sex, or avocation or profession. Mr. Brodbeck further testified as to the incidents surrounding the selection of names by himself and the jury commissioner, Mr. Gillespie.

 The fact that the names of prospective jurors were not taken up singly and alternately does not constitute a violation of the statute. See Gaughan v. U.S. (C.C.A.) 19 F.2d page 897; Hauptman v. U.S. (C.C.A.) 43 F.2d page 86; U.S. v. Greene (D.C.) 113 F. page 683.

 With reference to the right of outside persons to suggest names of representative persons for jury service the court feels that the purposes of the act of Congress is to provide for the highest type of jurymen in the federal courts and to insure their selection without any risk of bias, prejudice, local feeling, or unfitness of any kind. For persons other than the jury commissioner and the clerk of the court to claim the right to suggest or name jurors would be grossly improper. See In re Petition for Special Grand Jury (D.C.) 50 F.2d 973. There is quite a distinction, however, between the claiming of the right to suggest names for jury service and a response to a letter of inquiry from the jury commissioner and the clerk of the court as to persons who may be considered by the addressees to be so qualified. In the first instance the jury commissioner and the clerk of the court would not function at all. In the second instance the jury commissioner and the clerk of the court take the initiative, seek information, receive a reply, consider the replies, and act therein in whatever manner they deem wise and prudent. This is their responsibility, and no court has a right to tell the duly constituted jury commissioners how they shall discharge the duties and responsibilities imposed upon them by the law. The court has the power only to declare their actions null and void under circumstances of malfeasance or misfeasance. To hold otherwise would justify judicial interference in other departments and bureaus not warranted by the Constitution or the law of the land.

 The court feels that the unusual delay in making this plea requires comment. Seventytwo days elapsed from the finding of the bill of indictment until the plea was filed. The grand jury had the matter in charge for some weeks before making their presentment, so that the ...

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