Part 4b: JFR Trial – Jury Selection, Cont’d
Trial Transcript, Pages 128 – 134, Sections 383 – 402:
DEF-Sparks questions prospective Jurors. The Court at times rephrases questions to help out Mr. Sparks. Note: The Defense already had 1½ hours to question each Juror. The Court stopped him, and required Sparks to now collectively question the prospective Jury panel. Sparks attempts to still question each Juror. The Court continues to show fairness and flexibility to the Defense:
Sparks. Do you think that a person who under the draft … would bias you against him in considering him on the testimony of his guilt or innocence?
Juror. I don’t think so.
Sparks. If you do not think him a good American citizen, don’t you consider that bias?
COURT to Juror: Can you sit down and listen to the evidence in the case, the charge of the Court as to the law, and decide that case on the evidence, leave out your prejudice?
Juror: Certainly.
Sparks. Would you carry into the jury room with you the fact, in your mind –
COURT: We won’t go in to find out how his mind operates.
Sparks to Court: I take an exception to your Honor’s interruption to my question.
Sparks to Juror: Would you carry into the jury room a prejudice against a person who made such a claim?
COURT: That may be excluded, already answered.
Sparks to Court: Exception.
Sparks to Juror: Mr. Enos, how do you feel about that?
COURT: Gentlemen of the Jury, are any of you gentlemen so prejudiced on any of these questions you cannot try this case on the evidence given you from the witness stand here in Court, and decide it on that evidence, decide it fairly, impartially? What do you say to that? All say you can?
(No negative answer)
COURT: That satisfies the rule of law, does it not?
Sparks to Court: No.
COURT: Why?
Sparks to Court: I have the right to examine and exhaust it and not have the Court put a question of that kind in that inclusive way and prevent me, and cut me off from developing what the Juror actually has in mind when he already has answered to one question and said he had an objection. Your Honor forecloses me to that right.
COURT to Sparks: You ought to be foreclosed if you interrogated each of these Jurors for an hour. I am not going to let you pursue this to almost endless. If you have any question bearing –
Sparks to Court: Then, your Honor directs me to desist from asking the question about to be asked?
COURT: You may ask it. I will exclude it. You may take an exception. Your are not going to take much more time in examining this jury.
Sparks to Court: This is an important case to eight men.
COURT: This case is no more important than any other case involving this charge, tried the same way as any other case, tried the same as for the most humble and unheard of person.
Sparks to Courts: If your Honor directs me to stop –
COURT: No; I don’t direct you to stop. You ask your question; I will exclude them.
Sparks to Court: If I am not permitted to examine this jury in the way I think I ought to in justice to my clients, I shall have to retire from the case.
COURT: You may retire any time you desire or want to. You may retire, Mr. Counsel; that threat will not be controlling. That is a right you have any time, but it is not a right you have to control the impaneling of this jury, and it will be just as well, just as good practice, to omit such threats.
Sparks to Court: It is not a threat, simply a statement that I cannot examine this jury under the limitations your Honor has put upon me.
COURT: You will have to take your exceptions. I am not going to allow you to pursue to an endless conclusion –
Sparks to Court: I don’t consider I am so doing.
COURT: Very well, I think you are. This jury should have been impaneled long ago.
DEF-Fuller to Court: Would your Honor pardon me just a moment?
COURT: The Court was quite willing for counsel to take their own course in examining this jury. You have taken this –
Sparks to Court: Your Honor make this statement about an hour and a quarter examining this jury when Judge Oeland took up most of that time. [Judge Oeland is the Govt. Prosecutor in this case.]
COURT: I hardly think he did. You should profit from some by the questions he asked.
DEF-Fuller to the Court: Without wasting a single minute of the time of the Court and jury, it is our conception, we have a conception –
COURT: Ask these jurors collectively, not individually.
DEF-Fuller: Upon two matters, one possible bias towards a certain quality of man –
COURT: Why don’t you ask them collectively?
Sparks to Court: I did. Two spoke up and said they has bias, and I proceeded to ask those two when I was stopped by your Honor. My Meyer said he did not consider such a person a good American citizen. I am shut off in inquiring further by asking what he meant by that, and then accused of taking too much time. We told the Court yesterday it would take a long time and the Court entered upon the trial with that understanding, that the drawing of this jury was going to take a long time.
COURT: If you have any more questions to ask, ask them.
Sparks to Court: Your Honor has excluded that question?
COURT: “The good American citizen,” I will exclude, the juror said he could try –
Sparks to Court: How can I tell whether I can exercise a peremptory challenge unless I am permitted to know what he means by that, aside from the questions of the case.
COURT: Now, you stand back this way and ask these questions so the Court can hear them.
Sparks to juror: Mr. Eno, would you enter the box with any prejudice against a person who claimed he had conscientious objections against war, and therefore, under the Selective Service Act asked for deferred classification?
Juror: I don’t know. I think I might be a little that way.
Sparks to juror: You think you might be biased?
Juror: I imagine I would.
Sparks to Court: Then, we submit a challenge for cause against Mr. Eno.
COURT to juror: Notwithstanding what you say, what you think might be, couldn’t you hear the evidence here and try the case, lay aside your bias and prejudice, and give the Government and the Defendants a fair trial, decide the case on the evidence and the law of the land?
Juror: As you put the question to me, I can.
COURT: That’s what the law requires.
Juror: Counsel asks me if a conscientious objector stated his objection would I take it that way.
COURT: You think you can do that?
Juror: The way the question is put to me, yes.
COURT: That is the law, isn’t it, to qualify a juryman. Of course, we all have prejudice, bias, likes and dislikes. I hardly think you can get a jury composed of men free from all bias and prejudice. Now, the juryman being conscious he might have a little bias, makes him a safe juryman. A person who is prejudiced and knows it, there is not much danger from him. It is those of us who are prejudiced and don’t know it, who are liable to do damage. So in view of what he says the Court will decline to excuse this juryman for cause.
Sparks to court: Exception.
Sparks to jurors: Is there any other juror sitting in the box who has any bias against a person who makes a claim for deferred classification under the Selective Service Act on the ground of conscientious objections against war?
COURT to jurors: That is, you can try the case fairly and impartially, notwithstanding the person a witness or defendant, who has made such claim and taken such position, you would judge him on the evidence against him or for him, and on the law of the land each one of you feel sure you can do that, do you, each one of you gentlement?
Sparks to juror: Mr. Meyer, do you think a man has any right to make a claim on the ground he is a conscientious objector?
COURT: The Court will exclude that question, as a matter of discretion. In view of all the questions you have asked this juryman and in view of the answers that the juryman has given as to his ability to give a fair and impartial trial, the Court will exclude that, and feels it is a matter of discretion – the Court realizes it is a matter of discretion, in view of the length of examination made by the Government and the Defense. Proceed please.
Sparks to Court: I take exception.
COURT: Yes, exception.
Sparks to Jurors: Id there any other juror in the box who has formed an opinion as to the right of any person to make a claim for deferred classification on the grounds of conscientious objection? I take it by your silence nobody has.
Sparks to jurors: I ask you if you all think a person who is legally entitled to make a claim for deferred classification upon the ground of conscientious objections has the right to do so? That requires an affirmative answer. I take it by your silence you answer that question in the affirmative for me. Is that correct, and do you so understand that question, Mr. Meyer? Will you all give me an affirmative answer as a body to my last question – do you think a person who is legally entitled to deferred classification upon the ground that he is a conscientious objector under the law, as the law defines it, that he has a right to make that claim?
COURT: As that question is put he would have the right to make that claim, and the jury is to decide the facts in the case, and the law is for the Court. So how does that become material? The Court would charge them that was the law. They are not judges of the law, judge of facts.
[Note: The indictment is not about Bible Students claiming conscientious objection, because they were not a recognized religion that had such a creed imposed on its members. The issue in the Indictment is about the Society and its officers actively inducing members of the Armed forces to insubordination, refusal of duty, disloyalty, and mutiny. The Defense is trying to turn this into a matter of conscientious objection … and the Court is setting this straight.]
Sparks to Jurors: Would you have any bias against any person who exercised that right?
COURT: Haven’t you asked them that?
Sparks to Court: I don’t think so.
COURT to jurors: What do you say, would you try him fairly and impartially, give him the rights the law requires, give him that cheerfully, justly and with full measure?
(Several affirmative answers came from the Jury box.)
COURT to Jurors: Then, you all say you would do that; that would be good jurymen.
In part 4c, there is a debate again between the Court and Sparks regarding criticizing the Government … it is very revealing how fair this Judge is … already above, the Judge has shown great understanding and flexibility. Also, we will see how the defense gets an advantage with the jury …