Appellants moved at Special Term to quash indictments returned against them by a grand jury empanelled for service at an Extraordinary Term of the Supreme Court in Albany County. Special Term granted the motion. The Appellate Division reversed the Special Term order and reinstated the indictments. Herein we deal with appellants' contention that the Grand Jury which found the *Page 418 indictments was illegally chosen in that, contrary to customary and lawful procedures, a large number of qualified persons were arbitrarily excluded from service thereon.
In passing on the legality of the methods here employed in picking the grand jurors, we deal not with technicalities but with the integrity of a public judicial institution, probably the oldest in existence, and with the protection thereunder of important private rights. "Every member of the community is interested in preserving the grand jury system in its purity and usefulness" (People v. Naughton, 7 Abb. Prac. [N.S.] 421, 426). "Whether the grand jury system erects a bulwark of liberty or operates as an engine of oppression is not for us to decide. In ancient times it may have formed a shield against the tyranny of the crown. Today it may serve as a check upon popular passion. Always it has been susceptible of utilization to pervert justice" (People ex rel. Battista v. Christian, 249 N.Y. 314, 318, seeEx Parte Bain, 121 U.S. 1, 12). To thwart attempts at such utilization, this court has never hesitated, with or without statutory authorization, to employ its "inherent power and duty * * * to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution" (People v. Glen,173 N.Y. 395, 400; People v. Nitzberg, 289 N.Y. 523, 526). In providing for a grand jury the Constitution "had in mind the grand jury as known to the common law" and had no intention of changing its historic character (Fitts v. Superior Court,6 Cal.2d 230, 240, 241). It is of the substance of the traditional concept of a grand jury that it be chosen "from the body of the district" (Ex Parte Bain, supra, at p. 11). It must be "chosen by lot" (Code Crim. Pro., § 223). It is a part or arm of the court. (People v. Naughton, supra; see Matter of Spector v.Allen, 281 N.Y. 251, 260.) In view of its powers, it is of major importance that it be not "packed". A defendant held for a grand jury, or one later indicted by that grand jury, is deprived of his right to the protection of customary procedures and due processes, if by any method of selection or exclusion, a prosecuting attorney is given the privilege of installing in the grand jury room the talesman he wants and of disbarring those he does not want. Once a talesman is summoned into court for grand jury service, he cannot, unless excused by the court on its own motion or at the talesman's *Page 419 request, be ousted, when his name is reached, except for one of the causes of challenge specifically set forth in section 239 of the Code of Criminal Procedure, and after a trial and determination of the challenge pursuant to sections 240 and 241. Ordinary, isolated errors made by the court in passing on such challenges are not fatal to the validity of the grand jury or its indictments — indeed there seems no way of reviewing such errors. But the persistent and intentional use by court or prosecutor of a method of challenging and eliminating jurors, completely at variance with all traditional and statutory methods and which results in the unwarranted and illegal exclusion of a large number of apparently qualified talesmen, affects the substantial rights of the citizens whose cases are to be heard by such a body, and offends against public justice. Such a situation should not be countenanced by this court. We should use our power to nullify it, whether or not the talesmen who were ultimately accepted were qualified to serve as grand jurors.
There is not, and never has been in this State, any such thing as a peremptory challenge to a grand juror. At common law there was, originally, no such thing as a challenge to the "polls", or individual talesmen, for bias. The Legislature of this State provided for such challenges but until 1892, challenges were available only to "a person held to answer a charge for a crime". By chapter 279 of the laws of that year, section 237 of the Code of Criminal Procedure took its present form and has since provided that "the district attorney in behalf of the people, and also a person held to answer a charge for crime, may challenge an individual grand juror." The causes for which challenges may be interposed are, however, by section 239, strictly limited. The first five of such grounds (minority, alienage, insanity, being the prosecutor or being a witness) are not here involved. It is on the cause of challenge numbered 6 in the statute that the court in its examination of talesmen for the Grand Jury which indicted the appellants, based its rulings: "That a state of mind exists on his part in reference to the case or to either party, which satisfies the court, in the exercise of sound discretion that he cannot act impartially and without prejudice to the substantial rights of the party challenging." Regulating the manner of disposing of a challenge so asserted, the Code of Criminal Procedure (§§ 240, 241, 383, 384) requires *Page 420 that there be an entry made of such a challenge on the minutes, that the trial of the challenge be governed by ordinary rules of evidence, and that the court allow or disallow the challenge, by a decision entered on the minutes. Let us examine, in the light of those rules, the actual occurrences during the selection of this Grand Jury.
First, the prosecutor handed to each citizen summoned for grand jury service a list containing 330 names, asking each to examine the list and to make a mark against the name of every person thereon with whom the prospective juror was "acquainted directly or indirectly", "even if only slightly acquainted" or with whom the juror had "done business", or "had any contact". The individual talesmen were then examined. From the questions and answers we learn that some of the names on the long list were those of persons holding public offices or positions in Albany County, and that others were names of persons holding party positions in, or prominent or active in the affairs of, two of the political parties. Who the others were we cannot discover from this record, nor does the record disclose what connection any of the 330 listed persons had with the matters to be investigated by the Grand Jury, except that the prosecutor announced that evidence would be offered to the Grand Jury against some (unnamed) of those listed. Yet about forty challenges by the prosecutor were sustained, solely because those forty talesmen had answered that they knew in one way or another, some of those named on the list. In none of those instances was there any showing of any "state of mind in reference to the case or either party". In none was there any evidence of "a state of mind" justifying an inference that the juror could not "act impartially and without prejudice to the substantial rights of the party challenging". Of course, the court, trying the challenges, was not concluded by the jurors' own statements that they were free from bias, but evidence there had to be of a prejudiced and partial attitude toward "the case" or a "party". In this record there simply is no such evidence as to the forty talesmen we refer to. No more was shown than that each of them knew some persons named on the list, knew their relatives, knew them casually or well, had met them socially or in business, or had participated with them in political or governmental affairs. We are unable to understand *Page 421 how on such testimony there could be based an inference or finding of actual bias, such as is required by the statute for the allowance of a challenge. Indeed, one of the challenged jurors had the courage to protest in open court that the court's allowance of the challenge as to him was an unfair and unfounded imputation to him of bias and of lack of qualification to discharge one of his duties as a citizen. The Supreme Court has lately told us, concerning the selection of grand jurors, that "it is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community" (Smith v. Texas,311 U.S. 128, 130.) "The fundamental purpose of the grand jury system is to obtain a group of men and women who represent a fair and impartial cross-section of the citizens of the county; each one with his or her own individual thoughts, experiences and reactions" (In re Grand Jurors etc., 25 N.Y. Supp.2d 154).
"The public good is in nothing more essentially interested, than in the protection of every individual's private rights, as modelled by the municipal law" (1 Blackstone's Com. 139). It is a public right, therefore, besides the right of the defendants here, that we are vindicating when we cast out indictments found by a grand jury chosen as this one was. When a grand jury, which is to sit in inquisition as an arm of the court, is being organized, no prosecutor has any right to pick and choose the persons who are to sit, or any right of liberum veto as against certain persons or groups in the community. As this prosecutor said in addressing the panel, his effort was "to get 23 men and women who are not connected in any way with any official agency here in Albany, or not tied up in any way in politics, or with anybody in politics". Possibly, he had some good reason for such an endeavor. But, whatever his motive or intent was, the occasion was the impaneling of a grand jury, not the forming of a select committee, and "the fact that a juror belonged to one party, and was a strong partisan" could never be a ground for challenge (see opinions of BREWER, J., and THAYER, J., in United States v.Eagan, 30 F. 608, 609). The prosecutor and the court were here limited and controlled, as we are, not only by the Code provisions, stringent as they are, but by ancient concepts of an ancient institution devised and maintained to protect immemorial rights. If the procedures *Page 422 here adopted be not condemned, then the next prosecutor may prepare any list he will of persons known or unknown to the court, inquire whether the talesmen know any of those persons, then demand the exclusion from the jury of all those who have even nodding acquaintance with any of the mysterious list. Such a test of the qualifications of grand jurors is unknown to the law. An overzealous prosecutor could get any grand jurors he wanted by asking those he did not want whether they knew certain other persons named by the prosecutor for the purpose. Indictments so procured are not based on the "law of the land". That phrase means "that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society" (Ex Parte Wall, 107 U.S. 265, 289). One of those rules, written into our State Constitution and statutes, is that grand jurors must be chosen by lot from the people of the vicinage, subject to challenge for lawful reasons only. Substantial departures from such rules invalidate a grand jury and the indictments it hands up. We agree that there is no showing here of such a systematic exclusion from the grand jury of an identifiable special group as there was in Smith v.Texas, supra, and similar cases. But the bad practice here was a like one, and fraught with similar danger to the rights of citizens, and to the grand jury as a public institution. To deal with such basic errors we need no statutory warrant (see People v. Glen, 173 N.Y. 395, supra; People v. Nitzberg, 289 N.Y. 523, supra; People v. McLaughlin, 291 N.Y. 480, 483). Supreme Court Justice NELSON, at Circuit, wrote this about the New York law of grand juries and indictments, in U.S. v. Reed, 27 Fed. Cases, No. 16134, page 729: "Suppose the case of a grand jury not drawn at all, but admitted to have been packed. Can a man indicted by it be cut off, by the provisions of the Revised Statutes, from raising the objection?"
The protection with which the people of this State surrounded their liberty and property by writing into our State Constitution (art. VI, § 1) an absolute ban against the deprivation thereof "without due process of law" is undefined and, as a practical matter, undefinable. But in applying it, we are not left without guides, plainly stated of old by our courts. To meet the test, criminal proceedings must be "instituted and conducted according *Page 423 to the prescribed forms and solemnities for ascertaining guilt" (BRONSON, J., in Taylor v. Porter, 4 Hill 140, 146-7). Due process means procedure having "the sanction of settled usage" (People v. Adirondack Railway Co., 160 N.Y. 225, 236, affd.176 U.S. 335.) It "according to Lord COKE, means being brought in to answer, according to the `old law of the land'" (Westervelt v. Gregg, 12 N.Y. 202, 212). The procedure here followed meets no such test.
Perhaps these appellants should be indicted, but the mantle of due process, like the rain, falls alike upon the just and the unjust. Whatever be their guilt and whatever the motives of the prosecution, we have our own duty to invalidate proceedings so arbitrary and unwarranted. "The policy of the law is to inspire confidence in the administration of justice" (Northrup v. ThePeople, 37 N.Y. 203, 206). The Special Term was right in dismissing these indictments.
In the organization of this Grand Jury there was adopted another arbitrary and unlawful practice, also. After twenty-three grand jurors had been picked and sworn, the court, before delivering his charge to the Grand Jury, ordered the exclusion from the courtroom of all persons other than the chosen jurors, the court officers and the prosecutor and his assistants. That was a violation of section 4 of the Judiciary Law, and a serious infraction of the settled rule that court proceedings, with a few necessary exceptions, are to be conducted not in secrecy, but in the open (see Cooley, Constitutional Limitations [8th ed.], Vol. 1, p. 647). There is no good reason why there should be anything secret about a presiding justice's charge to a grand jury. New York State grand juries have been instructed in open court ever since the charge to the first such body, the Grand Inquest of the County of Ulster, was delivered by Chief Justice JAY, at Kingston, in 1777. The practice followed in the present case was clearly illegal. It is easy enough to dismiss such things as passing incidents, not shown to be prejudicial to anyone, but the destruction of any one of the traditional procedures set up to protect the public against arbitrary uses of judicial power, is no small thing. If those safeguards can be taken away, some in this case, some in others, then in the end the whole carefully built up protective structure will fall apart, and unrestrained power will have every citizen at its mercy. *Page 424
The order of the Appellate Division should be reversed and the motions to dismiss these indictments granted, with leave to resubmit the cases to another grand jury.
THACHER, J., concurs with LEWIS, J.; LEHMAN, Ch. J., concurs in separate opinion; CONWAY, J., concurs in separate opinion; DESMOND, J., dissents in opinion in which LOUGHRAN and DYE, JJ., concur.
Orders affirmed.