NO. 377. Syllabus. FAY v. NEW YORK. CERTIORARI TO THE COURT OF APPEALS OF NEW YORK. Argued April 3, 1947.-Decided June 23, 1947. 1. New York Judiciary Law § 749-aa, 29 McKinney's L. N. Y., pp. 511-515, providing for the administrative selection of a special or "blue ribbon" jury panel from the general jury panel in counties of one million or more inhabitants and the use in certain classes of cases of juries drawn from this special panel, does not on its face deny defendants in criminal cases due process of law or equal protection of the laws contrary to the Fourteenth Amendment. Pp. 270-272. (a) This Court cannot find it constitutionally forbidden to set up in a metropolis with congested court calendars administrative procedures in advance of trial to eliminate from the jury panel those who, in a large proportion of cases, would be rejected by the court after its time had been taken in examination to ascertain the disqualifications. P. 271. (b) These are local matters with which local authority must and does have considerable latitude to cope, for they affect the administration of justice which is a local responsibility. P. 271. (c) There is nothing in the standards prescribed for the selection of the special panel which, on its face, is prohibited by the Constitution. Pp. 267-268, 270-272. 2. Petitioners have not sustained the burden of showing that their trial by a jury drawn from such a special panel denied them equal protection of the laws. Pp. 272-286. (a) It is not proven that laborers, operatives, craftsmen, foremen and service employees were systematically, intentionally and deliberately excluded from the special panel. Pp. 273-277. (b) Nor is it proven that women were so excluded-especially in view of the fact that three women talesmen were examined and one served on the jury in this case. Pp. 277-278. (c) The elimination from the special panel of persons who, in replying to a questionnaire, expressed a preference to serve during certain months is of no constitutional significance and of no prejudice to petitioners. P. 278. *Together with No. 452, Bove v. New York, also on certiorari to the same Court. (d) Petitioners have not sustained the burden of proving that in 1945, when they were tried, the special panel was so composed as to be more prone to convict than the general panel. Pp. 278–286. 3. The statute providing for the special jury does not violate the Due Process Clause of the Fourteenth Amendment. Glasser v. United States, 315 U. S. 60; Thiel v. Southern Pacific Co., 328 U. S. 217; Ballard v. United States, 329 U. S. 187, distinguished. Pp. 286-296. (a) There being no constitutional requirement that juries shall include women, their partial exclusion from the general and special jury panels (by making their service voluntary instead of compulsory) was not a denial of due process. Pp. 289–290. (b) A lack of proportional representation of an economic class comprising laborers, craftsmen and service employees, which does not result from an intentional and purposeful exclusion of any class but from tests of intelligence, citizenship and understanding of English applied alike to all prospective jurors, does not violate the Due Process Clause. Pp. 290–294. 4. In considering whether the statute is administered so as to produce unconstitutional results, this Court must examine the evidence and reach its own conclusions as to the facts. P. 272. 5. Since Congress has considered the specific application of the Fourteenth Amendment to the state jury systems and has found only discriminations on account of "race, color, or previous condition of servitude" to deserve general legislative condemnation (8 U. S. C. § 44), one who would have the judiciary intervene on other grounds must comply with the exacting requirements of proving clearly that in his own case the procedure has gone so far afield that its results are à denial of equal protection or due process. Pp. 282-284. 6. It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination. P. 284. 7. When discrimination of an unconstitutional kind in the selection of a jury is alleged, the burden of proving it purposeful and intentional is on the defendant. P. 285. 8. In considering whether the method of selecting a jury violates the Equal Protection Clause of the Fourteenth Amendment, the inquiry is whether defendants received less favorable treatment than others. P. 285. 9. This Court may exert a supervisory power over federal proceedings with reater freedom to reflect its notions of good policy than it may constitutionally exert over proceedings in state courts, and these expressions of policy are not necessarily embodied in the concept of due process. P. 287. 10. The commandments of the Sixth and Seventh Amendments, which require jury trial in criminal and certain civil cases, are not made applicable to the states by the Due Process Clause of the Fourteenth Amendment. P. 288. 11. Due process requires a real hearing by a tribunal unbiased by interest in the event; but an accused is not entitled to a set-up that will give a chance of escape after he is properly proven guilty. He has no constitutional right to friends on the jury. Pp. 288-289. 12. The state's right to apply tests of intelligence, citizenship and understanding of English in selecting jurors is not open to doubt, even though they disqualify a disproportionate number of manual workers. P. 291. 13. This Court is unable to say that mere exclusion of jurors of one's occupation renders a jury unconstitutional, even though the occupation tends to give those who practice it a particular and distinctive viewpoint. P. 292, n. 35. 14. There is some discretion left in the states to say that persons in some occupations are more needed at their work than on jury duty and, perhaps, that some have occupational attitudes that make it appropriate to leave them off the list so long as an unexceptionable list remains on call. P. 292, n. 35. 15. The function of this Court under the Fourteenth Amendment with reference to state juries is not to prescribe procedures but is essentially to protect the integrity of the trial process by whatever method the state sees fit to employ. P. 294. 16. Beyond requiring conformity to standards of fundamental fairness that have won legal recognition, this Court adheres to a policy of self-restraint in interpreting the Fourteenth Amendment and will not use that Amendment to impose uniform procedures upon. the several states, whose legal systems stem from diverse sources of law and reflect different historical influences. Pp. 294–295. 17. No violation of a federal statute being alleged, a successful challenge to this judgment under the Due Process Clause depends on a showing that these defendants have had a trial so unfair as to amount to a taking of their liberty without due process of law; ' and such a showing has not been made. P. 296. 296 N. Y. 510, 68 N. E. 2d 453, affirmed. Opinion of the Court. 332 U.S. In a state court in New York County, a special or socalled "blue ribbon" jury impaneled pursuant to N. Y. Judiciary Law § 749-aa, 29 McKinney L. N. Y., pp. 511– 15, convicted petitioners of extortion and conspiracy to extort. The Appellate Division of the Supreme Court of New York affirmed. 270 App. Div. 261, 59 N. Y. S. 2d 127. The Court of Appeals of New York affirmed. 296 N. Y. 510, 68 N. E. 2d 453. This Court granted certiorari. 329 U. S. 697. Affirmed, p. 296. Harold R. Medina argued the cause for petitioner in No. 377. With him on the brief were Robert J. Fitzsimmons and Richard T. Davis. Moses Polakoff and Samuel Mezansky submitted on brief for petitioner in No. 452. Whitman Knapp argued the cause for respondent. With him on the brief were Frank S. Hogan, Joseph A. Sarafite and Eugene A. Leiman. MR. JUSTICE JACKSON delivered the opinion of the Court. These cases present the same issue, a challenge to the constitutionality of the special or so-called "blue ribbon" jury as used by state courts in the State and County of New York. Such a jury found Fay and Bove guilty of conspiracy to extort and of extortion. Bove was Vice-President of the International Hod Carriers, Building and Common Laborers' Union of America. Fay was Vice-President of the International Union of Operating Engineers. The City of New York awarded contracts for construction of an extensive project known as the Delaware Water Supply system to several large construction concerns. It was not denied that Fay and Bove collected 261 Opinion of the Court. from these contractors upwards of $300,000. But it was denied that payment was induced by threats to do unlawful injury to person or property. The defense claimed that the payments were voluntary-bribes, perhaps, but not extortion that these men were paid merely for undertaking to assist the contractors to avoid labor trouble, to prevent jurisdictional or unauthorized strikes, and to "handle the labor situation," and that Fay and Bove rendered service as agreed. The indictment charged the crimes in seven counts. One was dismissed by the court; the remaining six were submitted to the jury. The jury acquitted the defendants on three of the counts, disagreed on another, and convicted on two counts. The convictions were affirmed on appeal by the Appellate Division of the Supreme Court,1 which reviews both law and fact, and by the Court of Appeals.3 No federal question is raised as to the merits of the finding of guilt and we are to assume that the convictions were warranted by the evidence and, except for questions as to the special jury, were regular. While there was challenge to the panel from which this jury was drawn, on ground or denial of federal due process and equal protection, each individual juror was accepted by the defendants without challenge for cause. The challenge to the special jury panel was not discussed by either of the appellate courts of the State but the federal questions were sufficiently and timely raised throughout and were overruled by all state courts. A dual system of juries presents easy possibilities of violation of the Fourteenth Amendment and we took these cases by certiorari to examine the charges of unconstitutionality. 329 U. S. 697. 1 270 App. Div. 261, 59 N. Y. S. 2d 127. 2 Code of Criminal Procedure, §§ 520, 543-a, 66 McKinney's Consolidated Laws of New York, part 2, pp. 328-29, 429. 3296 N. Y. 510, 68 N. E. 2d 453. |