Maurice Laroche v. Everett I. Perrin, Warden, Etc.

718 F.2d 500, 1983 U.S. App. LEXIS 16360

• Court: Court of Appeals for the First Circuit
• Decided: September 30, 1983
• Docket: 82-1650
• Status: Published

Opinions

BAILEY ALDRICH, Senior Circuit Judge.

On this appeal under 28 U.S.C. § 2253 from the summary denial of his petition for a writ of habeas corpus, petitioner attacks the jury selection system in effect in New Hampshire at the time he was tried, complaining as to underrepresentation of blacks with respect to grand juries, and of young persons on petit juries. We sustain him as to the latter.

Petitioner was indicted for first degree assault by a Rockingham County grand jury in June, 1980. He moved before trial to dismiss the indictment and to quash the petit jury venire on the ground that the jury selection system as applied was unconstitutional. In an evidentiary hearing consolidating similar motions made by other defendants criminally charged in unrelated cases, petitioner attempted to show that 18 to 34 year olds, and blacks, were consistently underrepresented. Testifying were the clerk of court, attorneys, selectmen or members of their staff, a statistics professor, a former assistant county attorney, and a public defender office staff member. The state trial court denied the motions to dismiss the indictments and to quash the petit jury venire, and one Elbert, but not petitioner, appealed. On January 30, 1981 the New Hampshire Supreme Court found neither 18 to 34 year olds nor blacks to be unconstitutionally underrepresented. It found the jury selection statute, N.H. RSA c. 500-A (Supp.1979) unconstitutional, however, because it “has the potential for such exclusion .... ” It also ordered future jury lists to be selected at random from voter registration lists. Perhaps realizing the anomaly thus presented, the court modified its opinion on February 9, 1981, removing that part of the opinion holding the statute unconstitutional. State v. Elbert, 1981,121 N.H. 43, 424 A.2d 1147. The New Hampshire legislature subsequently amended the jury selection statute to provide for random selection of jurors. See N.H. RSA c. 500-A (Supp.1981).

In 1980 New Hampshire used somewhat of a “key man” selection system. The selectmen in each Rockingham County town each year submitted names of “such men and women ... as they judge eligible to serve as jurors.” RSA 500-A:2 (Supp. 1979). They were asked to submit about an equal number of men and women, but to omit those “deceased, ill, infirm, no longer residents of your town or otherwise not qualified to serve .... ” The evidence showed that only one selectman randomly chose names, and that most tended to pick those they knew. Selectmen testifying were both young and old, and almost all stated that they relied on voter registration lists, a recognized appropriate source.¹ At least one, improperly, would always pick persons who had asked to serve, while another did the opposite. All testified that they did not intentionally discriminate on the basis of age or race.

The names received from the selectmen were compiled into a master list from which both grand and petit jurors were picked at random. Each juror selected was sent a questionnaire which contained an entry for age but not race. Most questionnaires were filled out and returned, but some were returned undelivered and some potential jurors simply responded with a request to be excused.

Data drawn from the 1970 U.S. census showed that 18 to 34 year olds and blacks, respectively, constituted 38.4% and just under 1% of Rockingham County’s population. Data taken from questionnaires of the petit jurors serving on venires drawn from the master list in the January, 1979 term, and of the petit and grand jurors serving in the April and September, 1980 terms, showed that 18 to 34 year olds constituted 10.8% of the petit jury venires during those terms, and 13.5% of the grand juries. Since data on race was unavailable, testimony was taken from attorneys and one former assistant county attorney who had experience with the petit and grand juries between 1978 and 1980. Only two black petit jurors were remembered to have served during this time, and no black grand jurors were remembered.² Petitioner’s statistician testified that 18 to 34 year olds and blacks were substantially underrepresented, given their numbers in the population of Rockingham County, and that it was highly unlikely that a random selection system would produce these results.

The matter of blacks can be promptly disposed of. Petitioner has standing to raise this issue, even though he himself is not black, because of his right under the due process clause of the Fourteenth Amendment to a grand jury that is constitutionally composed. See Peters v. Kiff, 1972, 407 U.S. 493, 504, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (plurality). However, he has failed to show that blacks were materially underrepresented. Blacks constituted under 1% of Rockingham County’s population during the relevant period. The total number of grand jurors serving during those years was 120, and hence at most one or two blacks should have served under a random selection system. A shortfall from 1% to 0% hardly constitutes material underrepresentation. See, e.g., Bryant v. Wainwright, 11 Cir., 1982, 686 F.2d 1373, 1378; United States v. Whitley, 8 Cir., 1974, 491 F.2d 1248, 1249, cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769. Put another way, even on a strict mathematical basis, only one 23-member grand jury in four would have had a single black. Furthermore, as both grand and petit juries were drawn from the same venires, the number of blacks appearing on petit juries must be looked at to obtain a full overview of the system. Finally, petitioner’s expert’s opinion erroneously assumed one, rather than two blacks. This was not a prima facie case.

On the matter of 18 to 34 year olds petitioner again, regardless of his age, has a right under the Sixth Amendment to a petit jury drawn from a venire chosen in a manner directed at obtaining a fair cross-section of the community. Duren v. Missouri, 1979, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579. There the Court said, at 364, 99 S.Ct. at 668.

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this representation is due to systematic exclusion of the group in the jury-selection process.”

Both parties look to our decision in United States v. Butera, 1 Cir., 1970, 420 F.2d 564; petitioner because we there accepted that 21 to 34 year olds constituted a distinctive group, and the state because we there dismissed a substantial disparity because “inadvertent; ” finding that everyone has acted in good faith and without conscious discrimination. Unfortunately for the state here, however, this last is no longer law. The issue is not whether the discrepancy was purposeful; Duren, at 366, 99 S.Ct. at 669, defined “systematic exclusion” as simply one that was “inherent in the particular jury-selection process; ” viz., the system’s result, regardless of intent. We are not concerned with perfection, but, assuming a distinctive group, a process which, however neutral on its face, consistently underran by some 70%, producing one juror when there should have been four, is surely excessive. Indeed, this is almost exactly the shortfall which the Duren court held to make out a prima facie case, a circumstance not noted by the New Hampshire Court when it stated that, “assuming arguendo that young people are a ‘cognizable’ class ... [o]n the basis of these statistics, we do not find that young people are underrepresented to an unconstitutional degree.” We must hold that, prima facie, they were.

Next, Duren held that if the defendant establishes a prima facie violation, the burden shifts to the state to justify the underrepresentation. Id., at 367-68, 99 S.Ct. at 670-671.

Accordingly, again accepting Butera as correct with regard to youth as a distinctive group, the question is whether the state met its burden of explanation. This, Duren points out, 439 U.S., ante, at 369, 99 S.Ct. at 671, means “demonstrate,” and not by “suggestions and assertions.” Yet the latter seems precisely the state’s case. No specif - • ics were offered. After noting that there were unidentified “excusáis and disqualifications,” the state argues that these were “not likely to be [proportional] with regard to age.” “The statutory excusal and disqualification criteria may well have a disproportionate impact upon a given class of persons.” (Emphasis suppl.) The state then notes that women with children under twelve may request exemption; that young persons may be away at college or in the military service, and hypothesizes that voting lists may disproportionately omit younger persons. It further cites a preDuren case taking judicial notice of such possibilities. United States v. DiTommaso, 4 Cir., 1968, 405 F.2d 385, 389, cert. denied, 394 U.S. 934, 89 S.Ct. 1209, 22 L.Ed.2d 465, and concludes, “All of these factors may have an impact on the statistical representation of a given group at any given time.”

So they may, but to what extent? This is far from a “demonstration” that they were the cause of so substantial a shortfall as was shown here.³

We turn, therefore, to the question of the vitality of United States v. Butera, ante, where we recognized youth — there 21 to 34 — as a distinctive group. The state points out that a review of cases in other circuits reveals that Butera has not been hospitably received. Mainly, however, these cases have involved a narrower age group. Here we are painting broadly, and saying that in taking the community as a whole there are notable differences, without making an exact demarcation, between a group 18 to 34 and one 35 to 70. It is not necessary to say that everyone’s thinking and experience falls on one side or the other. In Peters v. Kiff, 407 U.S., ante, at 503, 504, 92 S.Ct. at 2168, 2169, the Court said,

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”

See, also, Taylor v. Louisiana, 1975,419 U.S. 522, 531-32, 95 S.Ct. 692, 698-699, 42 L.Ed.2d 690.

Even the state’s brief concedes, “[T]here undoubtedly is a societal concept of the attitudes, beliefs and points of view held by the young .... ” We do not accept its answer, that “the concept is vague and incapable of precise definition,” spelled out in United States v. Potter, 9 Cir., 1977, 552 F.2d 901, at 905, where the court said,

“As we noted in Ross [United States v. Ross, 9 Cir., 1972, 468 F.2d 1213, cert. denied, 410 U.S. 989, 93 S.Ct. 1500, 36 L.Ed.2d 188] ‘There appears to be no factor other than age which defines this group [the young], and we can perceive no reason to arbitrarily single out a narrow group of “young persons” as opposed to “middle-aged” or “old” persons for purposes of jury service.’ 468 F.2d at 1217. While some may consider ‘young people’ as a distinct group, and some may even look upon them with disfavor (rather than favor, or neutrality), there is clearly no community agreement regarding the age range to be included in the category ‘young people.’ We conclude that there is no cognizable ‘magic’ about a group whose sole identifiable characteristic is that each member is in the age range of 18-34.”

This is damned if you do, and damned if you don’t. If the age group selected is small, it is too narrow; if it is broader, it is too comprehensive. Yet even the Potter court concedes that “young people” may be considered by “some” as a “distinctive group.” We think “some” an understatement, and that the issue is not to be avoided by a syllogistic ploy of fragmentation. This would be to write off the entire matter.

A system averaging 1.5 — instead of 4.5— jurors under 35 for every 12 on the master list could, in practice, easily result in a panel with none at all. A young person realizing that the absence of his peers was due to other than chance would surely think the cards stacked. So may any defendant entitled to a fair shot at a cross-section of the community. Even though we may not hear today such rallying cries as “Never trust anyone over thirty,” or, to go back to our own youth, that our elders were “old dodos,” we do not feel it necessary to have testimony of psychologists to believe that young persons may have different “varieties of human experience” and “perspective[s] on human events.” Nor can we think youth as an “[unidentifiable segment of the community.” While the lines between age groups are not as sharp as between men and women, or between whites and blacks, we hold that such a substantial shortfall of youth as was produced by the former New Hampshire system was unconstitutionally unrepresentative of the community.

The judgment of the district court is reversed, and an entry is to be made ordering the writ granted unless petitioner is retried in the state superior court within 90 days of mandate herein.

1 . Petitioner would make much of the fact that one selectman occasionally took names from the property tax list. This was de minimis, and will not be referred to again.

2 . Petitioner erroneously states that only one black served during this time. One lawyer recalled one black serving in 1978; the county attorney and another lawyer recalled one serving in 1979. None was recalled serving in 1980.

3 . This opinion in no way suggests that nonautomatic or even automatic exemptions from jury service leading to a shortfall, or even total elimination, of a distinctive group could not in some cases be justified by legitimate state interests. See Brown v. Harris, 2 Cir., 1981, 666 F.2d 782, 784, cert. denied, 456 U.S. 948, 102 S.Ct. 2017, 72 L.Ed.2d 472; United States v. Benmuhar, 1 Cir., 1981, 658 F.2d 14, 19-20, cert. denied, 457 U.S. 1117, 102 S.Ct. 2927, 73 L.Ed.2d 1328; United States v. Foxworth, 1 Cir., 1979, 599 F.2d 1, 4. Duren clearly permits the state to show that any failure was “manifestly and primarily advanced” by a “significant state interest.” 439 U.S. ante, at 367, 99 S.Ct. at 670, and we assume the state interest in the factors here asserted. However, Duren equally states the causal connection must be demonstrated. See, e.g., Brown v. Harris, ante. We merely hold that the state entirely failed to show that it was these factors, rather than the selectmen’s personal judgment, that consistently eliminated nearly three out of every four “young” prospects.