then, even if that shows there is no violation, they can bring in the jury officials and examine them. They also can bring in any witness who knows any relevant fact. "Any relevant fact" could refer to the race, sex, religion or economic status of every person of age to serve on the jury in the jurisdiction. It is only after all those things are done that the judge can find anything at all.

Mr. SPEISER. Well, he has the right to make a determination of probable cause, but I agree with you, Mr. Chairman, we apparently are not going to agree on the interpretation.

Senator ERVIN. Now, I will invite your attention to section 204. When a man is tried the first time, if they go through all of this procedure, and the judge finds that the jury was selected in strict conformity with the edict of Congress, and the fellow is tried, convicted, and sentenced, then he can come in again on habeas corpus, can't he?

Mr. SPEISER. I would assume so.

Senator ERVIN. And relitigate the same question.

Mr. SPEISER. That is no different than exists right now with respect to other questions. For example, confessions.

Senator ERVIN. Don't you think that this ought to be amended to provide that if at the original trial this question is litigated and determined against the man that that would be an end to it?

Mr. SPEISER. No. No more so than I think the determination of the illegality of evidence which is made on a motion to suppress does not end it. It is not res judicata.

Senator ERVIN. I would disagree with you. I know that that is the law now. Under the recent decisions by the Supreme Court the defendant can litigate the same question any number of times, but the State can only prosecute once. Don't you think that where an issue has been fully litigated and determined against him on the original trial that he should not be permitted to raise this same question another time?

Mr. SPEISER. There have been cases where individuals have raised questions once and thereafter filed habeas corpus after being convicted in which they had a fuller hearing and have shown facts that they were not able to show at the original trial.

Senator ERVIN. Yes. The Supreme Court recently turned a man loose who had been convicted of murder and rape in my State 6 or 7 years ago. Six years later they set aside his conviction on his testimony alone, which was practically in direct contradiction to the testimony he gave originally in the case. And I think that a man ought not to be allowed to vary his testimony.

Mr. SPEISER. I agree. I am not familiar with the facts of the case you cited.

Senator ERVIN. Personally I have great misgivings about title II. For example, I don't think that a man ought to be allowed to complain because women are not on the jury or their names are not in the jury box. Or that a millionaire ought to be allowed to complain because the names of paupers and hoboes are not on the list. We have never gone that far. We have had people systematically excluded on account of race and the conviction set aside on this ground, but it seems to me this goes far beyond that.

I have misgivings, anyway, about Congress undertaking to tell the States how they should run their own courts. I think it ought to leave it as it is and let the Federal courts determine whether the States run their courts in conformance with the Constitution. Congress should not undertake to prescribe procedures that the State courts have to follow.

Mr. SPEISER. The problem with that, Mr. Chairman, is that the present method of individuals raising systematic exclusion of any class of the jury list happens after conviction and appeal and that it is an inefficient way of doing it.

Senator ERVIN. It wouldn't be, though, if they hadn't set aside State law. Now, in my State, and under the laws of most States, if you want to challenge the composition of the jury you have to do so before the jury is empaneled.

Mr. SPEISER. Well, there are two problems. One is whether the individual knows the facts at that point. And the second problem is as the fifth circuit said in a case—

It is a well-known fact that an individual who is on trial in some areas of the country hesitates and his counsel may not raise a question of systematic exclusion because he thinks to raise it would prejudice his client's position. And so they have recognized that often systematic exclusion is not raised at a trial level prior to trial.

Senator ERVIN. Of course, we used to have a law that a man on trial had to raise every issue that could be raised or that was the end-to put it in the vernacular that was the end of the pea picking. Now we have changed that; we now have postconviction hearings. The court tries the defendant and then the defendant can try the court, and now we have gotten to the point where he not only can try the court but he can try his lawyer to see whether his lawyer tried the case right. I don't know where this thing ends because if he tried the first lawyer to see whether he protected his rights, then he could try the second lawyer who appeared against his first lawyer, and on ad infinitum until the last blow from Gabriel's horn bring the ultimate silence.

Mr. SPEISER. In the vast majority of cases where there have been showings of incompetent counsel or any other defects in the first trial, the defendants are not set free. They are generally retried and in the vast majority of cases they are convicted again.

So what we are aiming for is procedural regularity because to a great extent the protection we have is whether the Government does cbserve procedural regularity.

I think Justice Frankfurter made a statement such as that and as far as trying a lawyer, I think that it is unfortunately true, for example, just in the question of systematic exclusion, particularly where there is a right to appointed counsel, that appointed counsel in some areas of the country, in spite of their desire to do as good a job for their client as they could, would not think of raising the question of systematic exclusion. It is such a touchy, yes, I think, as the chairman knows, very touchy and emotional subject to raise that kind of question in a trial, because it means you are in effect challenging the fairness of the judges who may have the control over how the jury commissioners operate and the clerks operate, and often that question is just not raised.

It is unfortunate but I think lawyers are affected by considerations like that.

Mr. AUTRY. Mr. Speiser, before I ask you a couple of questions on your statement, because you are an expert in the area, I would like for you to refer to the House version of title IV, section 403, subsection 3, which makes it a crime to make, print or publish any oral or written statement with respect to the sale or lease of a dwelling that indicates. any preference based on race, color, religion or national origin.

Do you see any freedom of speech problems in connection with

that?

Mr. SPEISER. Give me the section

Mr. AUTRY. Section 403, subsection (a)3 of 403.

Mr. SPEISER. You have lost me.

Oh, I see.

Yes. I think there is a free speech problem. We have in the past, as we did here in the District of Columbia, when considering the fair housing ordinance here, opposed a prohibition on publication or advertisements, and it would seem to me that we would be opposed to a prohibition like this on free press grounds.

Mr. AUTRY. So you would be opposed to that subsection?

Mr. SPEISER. Yes.

Mr. AUTRY. Thank you.

Back to your statement for just a moment. It is correct, isn't it, in Fay v. New York in 1947, that the Supreme Court specifically upheld State laws which grant to women exemptions for jury service?

Mr. SPEISER. I am unfamiliar with the case but I believe that is correct.

However, as I point out, the last word on that is White v. Crook, and I think that that would have an effect upon the exemption.

Mr. AUTRY. Yes, but that was an exclusion.

Mr. SPEISER. Right.

Mr. AUTRY. White v. Crook involved an exclusion and not an exemption.

Mr. SPEISER. Right. I quite agree that is an exclusion situation but I again point out that it would seem to me it would have an effect on those States that automatically exclude women because they are exempt as is the case.

Mr. AUTRY. Oh, yes. The Attorney General testified to the same point. But the North Carolina law to which the chairman referred under which women are actually called for jury service but are given the right to be excused without cause-that has been upheld by the court. That is your understanding.

Mr. SPEISER. Yes. That is my understanding, and I am urging that we go beyond that. I think that we are having perhaps a reconsideration in many ways of the status of women in our society, as to what extent rather ancient ideas of giving them special privileges should be changed or modified and I think this is one of those areas. Mr. AUTRY. But despite the Supreme Court's decision on the matter and despite the fact that a majority of the States have such laws, you would still say that Congress has both the authority and the duty to abolish such exemptions.

Mr. SPEISER. Yes. I would say it is not free from doubt because of that, because the basis for title II of the bill is section 5 of the 14th amendment. So I quite agree that there is a question about that. But I would still urge that it be done.

Mr. AUTRY. I have just one more question. You mentioned the proposed juror questionnaire in which presently race, religion, occupation, and citizenship are listed.

The Attorney General told the chairman he would agree that religion should be deleted, and the House committee has deleted it.

In addition, if I understand your statement right, you aren't sure why occupation is included in this questionnaire since it does not necessarily relate to economic status.

Mr. SPEISER. Yes. The reason for putting that statement in any statement was the fact that the questionnaire doesn't attempt to elict all the facts which might be utilized in order to show whether discrimination has or has not occurred.

Mr. AUTRY. And there might be some who would object, even though they were engaged in legitimate occupations, to divulging the nature of their occupations, is that a possibility?

Mr. SPEISER. I think there is that possibility. I understood from the testimony of the Attorney General on, for example, the religion question, that the bill does not provide any penalty for failure to answer any question.

Mr. AUTRY. Yes, but don't you believe that when the Government asks a question, a person might feel in his own mind that he has to answer?

Mr. SPEISER. I think there is a very real problem, I know the Chairman, for example, has properly raised the question with the Civil Service Commission as to what extent individuals know that their responses to governmental questions are voluntary, and I think there. is a real problem here. I think we need more than merely the assurance of the Attorney General that no penalty will be imposed for failure to answer questions.

Senator ERVIN. I think you and I probably agree that when the Government asks one of its employees questions that the whole statement and emphasis is like drill regulations in the Army: a request from a superior is equivalent to a command.

Mr. SPEISER. The Government seems to have an unfortunate habit of when it does ask questions to which responses should be voluntary, it is rather niggardly in informing the individuals of that fact. I think if it is true, as the Attorney General states, that there is no penalty for refusing to answer any questions, that should be clearly indicated on the form and there should be no followup, which often happens.

Senator ERVIN. I may mention that a statement was put on an agency bulletin board the other day inviting employees to come to a lecture. It said attendance was voluntary and yet it said down at the bottom "A record will be kept of all those who do not attend."

Mr. AUTRY. Mr. Speiser, if title I goes in in its present form, what would you think of an amendment to title I to this effect?

"If the form requests race or occupation of the person, it shall plainly state the person is not required to disclose this information on the card."

Mr. SPEISER. I would agree with that.

Mr. AUTRY. Thank you very much, Mr. Speiser.

Senator ERVIN. I want to thank you for making an appearance and for your help, not only on this occasion but past occasions. As I say, while you and I disagree as to the desirability of title I and particularly title II of this bill, I have found that we have agreed in times past on many fundamental things. One of these counsel alluded to when he asked you about the statements in regard to "preferences." I think you and I both agree that probably the greatest protection we have in this country is freedom of speech, and both of us are opposed to restrictions on freedom of speech regardless of whether we agree with those who are speaking.

Mr. SPEISER. I agree, and it is a pleasure to appear before the committee and before the Chairman. As I said initially, this committee has done excellent work and it is always a pleasure to be in accord with you, and when I am not in accord with the Chairman, it is as near a pleasure as it can be. [Laughter.]

(The prepared statement of Mr. Speiser follows:)

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE AMERICAN CIVIL LIBERTIES UNION

The American Civil Liberties Union supports S. 3296 with the four amendments proposed by Roy Wilkins, Chairman of the Leadership Conference on Civil Rights, in his testimony before this Committee. These are:

(a) The establishment of an indemnification board which would award damages to victims of civil rights violence.

(b) Administrative remedies for the enforcement of the fair housing provision.

(c) The inclusion of triggering devices for instituting procedures for ending jury discrimination; and

(d) Extending the coverage of Title VII (equal employment opportunity section) of the Civil Rights Act of 1964 to state and local government employees.

However, there are additional amendments we feel should be made.

In § 1865, Title I on Federal Juries, there is a provision for a questionnaire to be sent to all prospective jurors. It states, "The form shall elicit his name, address, age, sex, education, race, religion, occupation and citizenship and whether he has any physical or mental affirmity, is able to read, write, speak and understand the English language, and has been convicted in any State or Federal court of record of a crime punishable by imprisonment for more than one year and has not had his civil rights restored by pardon or amnesty." Similar provisions appear elsewhere in the bill. [See p. 7 § 1866 (b)] We urge the following:

1. The question on "religion" should be stricken.-We believe this is patently unconstitutional under the United States Supreme Court decision in Torcaso v. Watkins, 367 US 488 (1961). In that case, a unanimous Supreme Court stated "We repeat and again reaffirm that neither a state nor the Federal government can constitutionally force a person 'to profess a belief or disbelief in any religion'."

The bill states categorically that the form shall elicit "religion." There is. apparently, no discretion involved. Even if there were, such an inquiry on the part of goverment is improper, in violating freedom of religion,—the freedom of individuals to keep their religious beliefs to themselves-no matter how highly motivated the purpose.

There is no real reason for the question in the first place. There has been little, if any, evidence that religious discrimination in jury selection is occurring. Not all of the potential discriminations prohibited by the Bill under § 1862 are subjected to inquiry on the questionnaires. For example, under § 1862, discrimination is prohibited on the basis of "national origin" or "economic status." It is true there is a question on "occupation," however, this is such a general question it may or may not disclose the economic status of the individuals. The question on "citizenship" would not necessarily disclose the national origin of the prospective juror.