In my view, the indictment against defendant, a Negro, cannot stand; as I read the record before us, it permits no conclusion other than that there was systematic and purposeful exclusion of members of his race from the Nassau County Grand Jury. (See, e.g., Patton v. Mississippi, 332 U.S. 463, 465; Hill v.Texas, 316 U.S. 400; Smith v. Texas, 311 U.S. 128; Pierre v. Louisiana, 306 U.S. 354; Norris v. Alabama,294 U.S. 587; Carter v. Texas, 177 U.S. 442; Neal v. Delaware,103 U.S. 370; Strauder v. West Virginia, 100 U.S. 303.)
Traditional in our jury system is the concept that the jury, petit or grand, be a democratic and representative body drawn impartially from a cross section of the community to assure that it reflects the interest and viewpoints of all races, classes and groups. (See, e.g., Thiel v. Southern Pacific Co.,328 U.S. 217, 220; Smith v. Texas, 311 U.S. 128, supra; Pierre v.Louisiana, 306 U.S. 354, 358, supra.) The best guarantee of an equal and impartial choice is, of course, selection entirely by lot, and such a design — though not required by the Federal or State Constitutions — is apparent in the statutes which establish the grand jury machinery in this State. (Code Crim. Pro., §§ 223, 224; see, e.g., People v. Prior, 294 N.Y. 405, 409, 413;People v. Naughton, 7 Abb. Prac. [N.S.] 421, 426.) The present attack, however, is based not upon any claim that the statute or policy of this State was violated, but rather upon *Page 134 the argument that defendant was deprived, by the system practiced in Nassau County, of the equal protection of the laws guaranteed by the Federal Constitution.
Unquestionably, exclusion of qualified persons from service on a grand jury on the ground of either race or color invades the realm of the equal protection clause and impinges on basic rights. "Indictment by Grand Jury and trial by jury", the Supreme Court declared not long ago, "cease to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races — otherwise qualified to serve as jurors in a community — are excluded as such from jury service." (Pierre v. Louisiana, supra, p. 358.)
The facts and figures before us tell the story. Nassau County contains within its boundaries an appreciable Negro population, with a fairly heavy concentration in several of its towns. It is conceded that many Negroes were qualified (and that is demonstrated beyond peradventure, I suggest, by the circumstance that two Negroes were selected and placed on the grand jury list but a short time after the court below denied defendant's motion to set aside his indictment). In spite of all this, the sorry fact emerged at the hearing that no Negro had ever been called for service on that county's grand jury within the memory of witnesses or officials, a period of almost twenty years. That proof, particularly in the light of further evidence that each prospective juror was required to answer a question as to his "Color" in the qualifying questionnaire, made out a substantial prima facie case which the People, in my opinion, failed to meet. (See Patton v. Mississippi, 332 U.S. 463, supra; Hill v.Texas, 316 U.S. 400, supra; Smith v. Texas, 311 U.S. 128,supra; Pierre v. Louisiana, 306 U.S. 354, supra; Carter v.Texas, 177 U.S. 442, supra.)
Any attempt to explain the Negro's complete and long-continued absence from the grand jury as a product of chance or accident, or as the result of heedlessness or inattentiveness, strikes me as not only unreasonable but as incredible. And, in any event, the thrust of the equal protection clause deprives such an explanation of either validity or force by imposing an active duty upon jury selection officials. We have been told in unmistakable terms that "What the Fourteenth Amendment prohibits is racial discrimination in the selection of grand *Page 135 juries", and that it matters not whether the discrimination is "accomplished ingeniously or ingenuously" — actively by outright elimination on the ground of color, or passively by failure to take affirmative action to insure that the jury be democratically and representatively chosen. (See Smith v. Texas, 311 U.S.,supra, at pp. 131-132; Hill v. Texas, 316 U.S., supra, at p. 404.) In Hill v. Texas (supra), for instance, wherein the jury commissioners had "made no effort to ascertain whether there were within the county members of the colored race qualified to serve as jurors," the Supreme Court made it clear that those officials "thus failed to perform their constitutional duty * * * not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds." That attitude of indifference and complacency was deemed sufficient to point to unconstitutional exclusion and to require reversal of the conviction. "Discrimination", the court went on to say, "can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service."
It is no answer, as the majority opinion suggests, that the jury commissioner claimed that he was not motivated by any design to discriminate against members of the Negro race. Such testimony has been uniformly rejected on the ground that general protestations, bland professions, as to a lack of deliberate design, are insufficient in the face of figures establishing the total absence of Negroes from the jury list. (See, e.g., Norris v. Alabama, 294 U.S. 587, supra.) As the Supreme Court wrote in the Norris case, "That showing as to the long-continued exclusion of negroes from jury service, and as to the many negroes qualified for that service, could not be met by mere generaliities. If * * * the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the constitutional provision — adopted with special reference to their protection — would be but a vain and illusory requirement" (294 U.S., at p. 598). *Page 136
In sum, the record establishes that there was systematic and purposeful exclusion of Negroes, and that, as a result, defendant was denied the equal protection of the laws guaranteed by the Federal Constitution. Since his objection was timely, I see no alternative but reversal of the conviction and setting aside of the indictment. [See 299 N.Y. 682.]
LEWIS, CONWAY and DYE, JJ., concur with LOUGHRAN, Ch. J.; DESMOND and FULD, JJ., dissent in separate opinions.
Judgment affirmed.