is a matter of administration of court business, and until, by the conduct of the trial itself, such alleged prejudice has actually manifested itself, the Federal Courts may not, and in this instance this Federal Court will not, interfere.
Finally, the charges of exclusion of Negroes from the venire list and from the jury panel which has been selected to try Mr. Lane I find wholly lacking in substance. Factually, there is simply no basis for Mr. Lane's charge other than James Kelly's role.
Mr. Kelly is the assistant clerk of the Jury Selection Board, and prior to the magistrates probe he had apparently also been an assistant clerk of the Jury Selection Board. He was on leave of absence during some period of time and worked in some capacity as a member of the staff of the Special Attorney General in conducting the probe.
It is charged that by reason of that dual relationship, Kelly has managed in some way to exclude Negroes from the venire list and from the panels from which Mr. Lane's jury was selected.
It is my understanding from the testimony of Mr. Tranchitella, the clerk of the Jury Selection Board, that there is an elaborate procedure by which names are selected in the first instance by judges of the state court, that thereafter questionnaires are sent out, and then at some stage of the proceeding, prospective jurors are called in for interviews by masters.
At no point in any part of the selection system is there an indication of the race of the prospective juror, except, as has been contended here, that guess that may be made by reason of the particular locality in which a prospective juror may live. Apart from the exercise of one's ingenuity in determining the probabilities of someone's race, there is no indication of race, and until a prospective juror appears for a personal interview before one of the four masters, there is no certain way of determining race, if, indeed, such a personal interview is a positive way of determining race.
In any event, it is my understanding that Mr. Kelly, as one of the four masters, has the burden to interview one-quarter of the prospective jurors. For me to come to a conclusion of a systematic exclusion by Mr. Kelly of Negroes from the venire list, I would have to speculate that at some period of time prior to the time of Mr. Lane's trial, Mr. Kelly undertook, as a result of his personal interviews, to eliminate Negroes from the prospective jurors lists.
There is no evidence on which I can make such a finding, and I specifically reject the invitation to do so.
It is curious in this regard - and I think it worthy of note - that it has been charged also that I should draw a conclusion that there has been an exclusion of Negroes from the venire list and from the panels from the fact that nine out of sixty persons called for the selection process here were Negroes, some 13 or 14 per cent, as compared to the 26 or 27 per cent of the population which the Negroes make up in Philadelphia.
I have not been presented with any evidence, and I doubt that the evidence could have been convincing had any been presented, as to what a normal makeup of any jury panel is or what the reasons for the disparity, if any, between the proportion of Negroes on a jury list, as compared to the proportion of Negroes in the general population.
I cannot find from the mere fact that there were nine out of sixty on the particular panels called here that there is evidence that there was a systematic attempt to exclude Negroes or that there was a specific attempt by Mr. Kelly to exclude Negroes from any list from which the jury to try Mr. Lane was to be selected.
There were nine out of sixty, as was pointed out, and I understand that one was stricken by Mr. Lane, by peremptory challenge, and three more were stricken by the Commonwealth by peremptory challenge.
The Commonwealth at one point offered to submit reasons why the peremptory challenges were exercised. It is my understanding that a peremptory challenge is precisely that, one for which no cause or good cause or bad cause may be attributed so long as the exercise is within the numbers granted; that this is a right accorded to the prosecution as much as to a defendant.
Peremptory challenge is precisely what it means and may not be questioned, and from the point of deprivation of constitutional rights, I will not and feel that I cannot inquire into the reasons for the Commonwealth's exercise of three peremptory challenges to eliminate three Negroes from the prospective panel.
My authority for this is Swain v. State of Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759.
Incidentally - and I note only in passing - I don't recall what the testimony was, if any, as to the reasons why the other five were stricken. I can only conclude that it was either by agreement or for cause, since neither party has brought specifically to my attention, or if they have I apologize for forgetting, the reasons for the striking of the other five of the nine Negroes.
By reason of my findings, it has not become necessary for me to decide whether judicial immunity extends to a suit for injunction, and I expressly refrain from ruling on that very interesting point of law.
It has recently been determined by the full panel of the Court of Appeals for this Circuit, in Bauers, Jr. v. Heisel, Jr., 361 F.2d 581, decided May 19, 1966, that a Judge and prosecuting attorneys are immune from suits for damages under the Civil Rights Act arising from the conduct of their official duties. Whether such judicial immunity is applicable in a suit for injunction has not been decided, and in view of my findings of fact is not necessary for decision here.
I conclude on the basis of the Cooper v. Hutchinson case that this Court does have jurisdiction of the parties and of the subject matter. I conclude further that the plaintiff has not made out a case warranting the intervention of this Court for the issuance of a preliminary injunction to enjoin the criminal procedures.
I conclude that the motion for preliminary injunction should be, and it is ordered that it is, denied.
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