(The prepared statement of Mr. Ihlenfeldt follows:) STATEMENT BY DALE E. IHLENFELDT, CLERK, UNITED STATES DISTRICT Court, EASTERN DISTRICT OF WISCONSIN, REGARDING TITLE I, THE FEDERAL JURY PROVISIONS, S. 3296, THE PROPOSED CIVIL RIGHTS ACT OF 1966 I speak only on the first portion of the Bill dealing with Federal juries and only from my experience in the Eastern District of Wisconsin. The proposed system is surprisingly similar to our present procedures. It is entire feasible in our district and I favor its adoption. In the short time available, of the judges of our court, I have been able to discuss it only with the Chief Judge of our district, the Honorable Robert E. Tehan, and he authorized me to state that he too supports the provisions of Title I of the Bill. I believe the most helpful assistance I can give is by indicating my interpretation of some of the provisions upon a comparatively short period of study, and commenting upon some of the mechanics of the system in the light of the experience in my district. 1. Section 1864 (a) does not state in detail how the names shall be placed in the master wheel. The jury commissioner has no staff and I assume the actual work will be done by the Clerk's staff as it is now, under the direction and supervision of the jury commission. I further assume that the commissioner would not need to be present during the typing of the names but would need to be there only when the names are actually put into the master wheel. 2. We have no statutory divisions in our district and jurors are presently drawn from Milwaukee County and the three adjacent counties. Section 1864 (b), together with Section 1870 (c) would permit us to continue to do this. The needs of the districts will vary but generally in order to avoid unnecessary expense and unnecessary hardship to jurors they should not be summoned from a greater distance than is necessary to obtain a representative jury. The following are some population figures with respect to our district: 2 Estimate. 3 June 1, 1966. 1 In 1962. NOTE.-Total population of the eastern district of Wisconsin, 2,467, 394. Population over 21 in the eastern district of Wisconsin, 1,480,678. Source: 1960 census. 1% of the registered voters in the four counties from which we presently draw jurors is about 6300. This is more than double the number of names we would actually need. At the present time, in order to maintain 600 or 700 qualified jurors in the jury wheel at all times, we send out about 1100 questionnaires each year, sometimes skipping a year if more names are not needed. We actually only have around 125 to 150 persons serving on our grand and petit juries each year. I estimate typing 6300 names and addresses, while selecting them in a prescribed manner, from hundreds of precinct polling lists would take a good typist between two and three weeks solid work. I presume it is desired to have a very large number of names in the master wheel, and the work of the Clerk's staff is of course, secondary. Nevertheless, from my personal standpoint it would be very helpful if the number or percentage could be lowered to any extent. 3. With respect to Section 1864 (d) we have had no difficulty in getting lists of voters from the various political units in Milwaukee County and the surrounding counties. The State courts in Milwaukee County also use the voter registration lists to obtain their jurors. 4. As to Section 1864 (f) registration lists in Milwaukee are printed and available about October 1st of even numbered years. I assume the November 15th date would not prevent the Clerk's staff from preparing the names for the master wheel as soon as the lists are available. Still I wonder whether the November 15th date could not be advanced to allow greater leeway for the Clerk's staff and the jury commission to fill the master wheel. It is our custom to impanel juries at the beginning of the calendar year, a convenient and logical time. To do this, all of the work to and including the mailing of summonses should be done two weeks before the end of the year, and it would be helpful to have the work involving the master wheel out of the way as soon as possible. 5. Section 1864 (f) (1) provides that additional names shall be placed in the master wheel "as necessary". Does this mean when the wheel contains less than 1% of the voters or less than 2000 names or when the wheel is empty or nearly empty? If it refers to the 1% limitation then perhaps Section 1864 (b) should state how many names the wheel should contain instead of how many the commission "shall place" in it. 6. As to Section 1865 (a), is it essential that the people appear in person to fill out the questionnaire? I am thinking of problems in the Clerk's office with respect to space available, traffic and the time of the Clerk's staff. It is no small consideration. We have had prospective jurors return completed questionnaires in self-addressed franked envelopes for many years and have had no difficulty. Couldn't the summons to fill out the questionnaire be used only when the questionnaire is not returned by mail? Another question is whether a juror's fee should be paid to persons reporting to fill out a questionnaire. You will receive a complete division of opinion if you poll the Federal Clerks around the country on this question. 7. The jury commissioner and I presently determine whether a person is qualified solely from the questionnaire as proposed in Section 1866 (a). 8. Section 1866 (c) specifies no minimum number of names to be contained in the qualified juror wheel. The statute now says 300. It seems to me some figure should be stated possibly in terms of a multiple of the names to be drawn rather than a specific figure. The number of names drawn to impanel a jury will vary greatly from district to district. The statute doesn't say how often this wheel should be checked to see if the persons still qualify. If it is intended that this wheel be set up anew from the master wheel at the close of each even numbered year, it would be very difficult and perhaps impossible for my staff to handle it within the prescribed November 15 to December 31 period. We presently send new questionnaires every four years to the persons whose names are in the jury wheel with the explanation that we are updating our records. Thus we clean out the names of those persons who have moved away, died, had a change in health status, etc. 9. Section 1866 (c) states the jury commission shall "publicly draw" names of persons from the qualified juror wheel. Present Section 1864 provides that "names *** shall be publicly drawn ***” What does this mean? Should a legal notice be published? Should notice be given to persons being held in custody or under bond pursuant to commissioners' proceedings? Should the persons having civil actions ripe for jury trial be given some notice? The present statute does not specify that the jury commission shall draw the names. In many districts the clerk and jury commissioner draw the names together. In others, including my own district, the clerk draws the names without the commissioner being present. I make it public by doing it in the outer Clerk's office and announcing to any attorneys or other persons present what I am doing, but they are not really interested and don't pay much attention. Our two local daily newspapers have full time reporters in the building. and I seek them out and try to have them there for at least a part of the time while I am drawing the names. 10. Section 1867 (d) seems to require that juror questionnaires are not to be disclosed in any way, except when a challenge is made to the array. Could provision be made that questionnaires of those jurors presently serving on a trial jury be made available to attorneys in the case? We require that these attorneys examine the questionnaires in advance in order to expedite voir dire proceedings in the courtroom. Jurors are not permitted to be questioned as to any information which appears on the questionnaires, for example, occupation, education, marital status, etc. This saves considerable time in the courtroom in the selection of the jury. 11. Present Section 1863 is apparently eliminated. In the past, upon the request of the person summoned, we have routinely excused attorneys, doctors. dentists, mothers with pre-school age children, and persons taking care of elderly relatives who are bed-ridden or unable to care for themselves. Requiring doctors and dentists to serve imposes hardship on their patients as well as themselves. No attorney would ever permit another attorney to sit on a jury in a case he was trying. Excusing these people for six months does not solve the problem. The Bill seems quite strict in not permitting such persons to be excused from jury service. The exemptions do not include provision for them. There is no doubt that they can be compelled to serve, but it would be an exercise in futility. In most cases, they would be emotionally upset and far from the calm and attentive jurors desired. They further would probably say so in the courtroom, with a resulting request from the attorneys that they be excused for cause. If it would not frustrate the intent of the Bill in some way of which I am not aware, I would include a provision similar to present Section 1863 (a), “A district judge for good cause may excuse or exclude from jury service any person called as a juror." 12. The increase in jurors' fees is long overdue. I strongly support it. The present fee operates to exclude the working man who cannot support his family on that amount. In Milwaukee, we are fortunate in that many of the large companies have labor contracts by which the employer makes up the difference between jury pay and what the employee regularly receives. But this puts an unfair burden on these employers. In effect, they are subsidizing the Government in this respect. 13. The jury commissioner's pay should properly be increased as provided by the Bill, but this has not been a subject for complaint so far as we are concerned. Our commissioner considers it a privilege and honor as well as his civic duty to serve, and is proud of the trust placed upon him. Senator ERVIN. I notice it is a little after 1 o'clock. I know you gentlemen have a lot of other things to do and I do not know whether you would rather proceed or stop now and come back a little later. Mr. KELLER. We have so much to do yet this afternoon, if it is not going to take too long and if it is satisfactory to you, Mr. Chairman, I would prefer to finish up if we can. Senator ERVIN. I have enough calories stored up, so lunch does not bother me. Mr. ANDERSON. Would not all of the statements that were submitted be in the record? Senator ERVIN. Yes. Senator ANDERSON. And they would not have to be read then? Senator ERVIN. That is correct. Mr. AUTRY. Next is Mr. Russell H. Peck, district of Massachusetts. STATEMENT OF RUSSELL H. PECK, CLERK OF THE COURT, DISTRICT OF MASSACHUSETTS Mr. PECK. I think everyone else has covered just about every point that is in my statement, so I certainly will not read it. I do want to point out one error, on page 2 in the first paragraph, the next to the last sentence. I gave a figure of 850 people summoned. I should have said 1,300. I would like to strike the balance of the sentence which says how many actually served. I cannot compute that. Other than that, I would like to make one remark-I can furnish a corrected copy of that. I also want to submit a descripition of how we do it in our State now, which is rather similar to what is prescribed here, though in fact, in our State, there are available from each city and town an annual listing of all persons 20 years of age and up. This, of course, provides a broader base than the voting list. We have had challenges from attorneys of using voting lists, which we once did. So we therefore use this broader list. It seems to me the philosophy of this whole thing is perhaps to eliminate the human element, to eliminate any possible prejudice there might be. Thus, someone has come up with the scheme of a percentagewhich drags in so many people that no human clerk, at least in a district my size, could possibly know them and exercise his human prejudices against them, because we would not have time. Likewise,. the two wheels-fate has given two chances to actually determine who gets summoned in. Two wheels seems to me a long way around the barn to achieve this result. If we in our civilization-I am going outside my statement now-can decide how to sell soap or how to estimate how elections are going to come out by modern sampling, computers, the mathematics of probability, it seems to me that step 1, the random selection, is where attention should be given. And the jury commission should come in at a later stage, as some of these other gentlemen have mentioned, where they can relieve the court of certain rather routine decisions, such as if someone says he has an aged mother, I feel I am competent to decide that without unduly prejudicing the composition of the jury Senator ERVIN. Since we have to depend upon human beings for the administration of justice, it is going to be very difficult to eliminate humanity from the system. Mr. PECK. Right. Senator ERVIN. Mr. Peck, I am going to suggest that you make the corrections that you suggested so we get it right and we will use the corrected copy when we print the record. (The prepared statement of Mr. Peck follows:) STATEMENT OF RUSSELL H. PECK, CLERK, U.S. DISTRICT COURT, DISTRICT OF MASSACHUSETTS The proposed Bill appears to carry forward what I take to be the philosophy and intent of the present statute as it is followed in the District of Massachusetts. I realize of course that the Bill must try to cover problems in all the District Courts, and that inconvenience to some may be acceptable if it helps the administration of justice in the country as a whole. It seems to me, however, that S. 3296 includes several features which may be unnecessary and which would' make administration of the jury system unduly troublesome. The Bill sets forth a three-step procedure to be carried out before a citizen arrives in Court to serve as a juror. First, the name is selected at random from the voter list; second, the name may be drawn from the master jury wheel; third, the name (placed in a qualified juror wheel) may be drawn for summons to serve. The determination whether the person is qualified, by questionnaire to be filled out before the Clerk, would take place when the name is drawn from the master jury wheel. To me it would appear more efficient, with no loss of fairness, to combine steps 1 and 2. Let the persons whose names have been randomly selected receive the questionnaire and, if qualified, be added to the qualified juror wheel. The purpose of a wheel, I take it, is to insure an element of fate and fairness in selection of jurors; it is questionable if a series of two wheels is necessary to achieve this. After all, the names get into the wheels as a result of the "random selection" from the lists, carried out by two human beings in step 1. Ultimately, the aptness of the whole procedure depends on how step 1 is carried out, and an extra wheel does not seem to add anything useful. The Bill would have jurors' names randomly selected from the list of voters. A broader base, which is used in our District, is the annual listing of residents 20 years of age and older, prepared by each city or town. Presumably, the Bill' would let us continue this practice if the Judicial Council so prescribed. Perhaps the Bill might suggest the use of such listings in states where they are available. I am troubled by the requirement that a figure representing one per centum of the registered voters in the District must be placed in the Master wheel (S. 1964 (b)). In our District I estimate this would be on the order of 20,000 names. Should we broaden the base to the larger census group we now use, about 5,000 additional names would be required. My estimates are based on the 1965 State Census of Massachusetts. This would be a big project; simply to type the names and addresses of 20,000 persons will require more time and more hands than we have available at present. Since the Master wheel is to be emptied and refilled every two years, the gathering of names would have to be a continuous process. This suggests a routine of paper work for the Jury Commission which is quite terrifying. Furthermore, 1864 (f) prescribes that additional names be placed in the wheel from time to time. Must it always be kept at the one per centum figure when names are to be drawn? As noted, this would be 20,000 names in this District. Last year approximately 1,300 people were summoned to appear in Court for jury service here. To set up, every other year, and maintain a pool of 20,000 persons to achieve this end seems to be of questionable merit. The requirement that persons whose names are drawn from the Master wheel must come to the Clerk's office to fill out the form could work a hardship on the clerk, but a greater one on the summoned citizens. I like people as much as the next man, but I see many as it is; some of our jurors must travel 50 miles or more to reach this office; will they receive pay or travel costs for the trip to fill out the questionnaires? Why not let this be done by mail? There seems to be little reason for the Clerk to see them, since under 1866 (b) he is limited to the information written on the form in his assessment of their eligibility to serve. It should be remembered that during much of the year the Clerk or a deputy must spend time coping with the members of juries-answering questions about when to report, pay, attendance slips for employers, etc. To deal also, face to face, with a steady stream of prospective jurors could impose a heavy extra burden. U.S. DISTRICT COURT, MEMORANDUM FOR CHIEF JUDGE WYZANSKI FROM RUSSELL H. PECK, CLERK HOW JURORS ARE SELECTED 1. The names of prospective jurors are picked at random from the street lists of the various cities and towns in the district. (For sittings in Boston the selection is limited to Worcester county and counties to the east of it; for Springfield sittings jurors are drawn from the remaining counties in the district). The number to be drawn from each community is determined by a series of tables, used in rotation, which are designed to make certain that each area contributes names in proportion to its population. Each table calls for the selection of some 400 names; smaller communities may appear on only one table, while large cities may be listed more frequently. The Street Lists, also called Police Lists, prepared according to sections 4 and 6 of Ch. 51 of the General Laws of Massachusetts, list everyone 20 years or older living in the community On January 1st each year. 2. The persons selected in this process receive a notice that they are being -considered for jury duty, together with information from 28 U.S.C. on Qualifications (1861), Exemptions (1862), and those who may be excused under orders of the Court (1863(b)). Also enclosed is the AO Form 178 (8-60) Questionnaire, with instructions that it be filled out and returned in the envelope which is provided. 3. The random selection referred to above is done by the Clerk and the Jury Commissioner, each usually doing one half of a table. When the questionnaires are returned, the Clerk or Commissioner examines them and decides which candidates are clearly unqualified, exempt, or excusable. The remainder are placed. |