United States v. Test
| Decision Date | 04 August 1975 |
| Docket Number | No. 72-CR-352.,72-CR-352. |
| Citation | 399 F. Supp. 683 |
| Parties | UNITED STATES of America, Plaintiff, v. John E. TEST, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
James L. Treece, U. S. Atty., by J. Terry Wiggins and Richard Slivka, Asst. U. S. Attys., Denver, Colo., for plaintiff.
Walter Gerash, Denver, Colo., for defendants Test, Tosti, and Marquez.
Robert C. Floyd, Denver, Colo., for defendants Hermanson and Chavez.
Leonard E. Davies and Michael G. Sabbeth, Denver, Colo., for defendants Gutierrez, O'Malley, Jackson, and Hudson.
Forrest C. O'Dell, Denver, Colo., for defendant Moorer.
Joseph Saint-Veltri, Denver, Colo., for defendants Small and Allen.
The above-captioned criminal actions have been consolidated for hearing on defendants' individual motions challenging the Jury Selection Plan of this judicial district. The motions are predicated on allegations that both the grand and petit jurors selected under the Plan are not drawn from a "fair cross section of the community" as required by the Jury Selection and Service Act of 1968 28 U. S.C. § 1861 et seq., as amended. It is further alleged that the selection procedures violate the Fifth and Sixth Amendments to the United States Constitution.
As originally filed, defendants' motions cite four grounds for attacking the Jury Selection Plan: (1) that the use of voter registration lists as the source of prospective jurors results in significant underrepresentation of Blacks, Chicanos, American Indians, students, and young persons in the Master Jury Wheel;1 (2) that the Plan does not assure "random selection" of jurors from the master wheel; (3) that excuses and/or exemptions from jury service granted to certain categories of persons tend to systematically exclude "poor women" and "poor people" from the pool of available jurors; and (4) that the Plan fails to supplement voter registration lists with other sources of prospective jurors so as to alleviate the aforementioned underrepresentation of minority groups.
Under the mandate of Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L. Ed. 786 (1975), we granted the motions of all defendants to inspect the Master and Qualified Jury Wheels used in this district since January 1972. Upon completion of their inspection, defendants were ordered to submit "statements of intended proof" and memoranda of law in support of their positions. On June 19, 1975, we conducted a hearing during which defendants offered documentary evidence and testimony concerning the alleged defects in the Jury Selection Plan. After considering this evidence and the arguments of counsel, we are now prepared to rule on defendants' motions.
During the course of the hearing, counsel for defendants conceded that they had no evidence of systematic exclusion or underrepresentation of American Indians, students, young persons, poor women, or poor people. They also reported that in comparing the racial and ethnic make-up of the Master Jury Wheel with that of the Qualified Jury Wheel, no "serial dilution" of cognizable groups was discovered. This indicates that any failings of the Jury Selection Plan do not stem from the process of qualifying jurors for service once their names are drawn from the original source list. Consequently, all parties agree that defendants' challenge to the Plan is limited to the alleged underrepresentation of Blacks and Chicanos in the voter registration list used to fill the Master Jury Wheel.2
For purposes of making the relevant analysis, defendants employed Dr. George E. Bardwell, a professor of mathematics and statistics, who was qualified as an expert witness at the evidentiary hearing. Starting with demographic information contained in the 1970 United States census, Dr. Bardwell determined the percentage of voting-aged Chicanos and Blacks in the population of each of the three jury divisions in this district.3 These are referred to as the Denver, Grand Junction, and Pueblo divisions. He then analyzed five random samples drawn from the Master and Qualified Jury Wheels for the various divisions. The percentage comparisons and the statistical conclusion drawn therefrom for each data set are as follows:
A. Denver Division From January 1972 through June 1973 (sample size, 723)
Percentage in Percentage in Statistical
Race Random Sample Voting-Aged Population Conclusion
------------------------------------------------------------------------
| | | | Statistically |
|Chicano | 4.88% | 8.93% | Significant |
| | | | Difference |
|---------|----------------|---------------------------|-----------------|
| | | | Not |
|Black | 1.94% | 3.00% | Statistically |
| | | | Significant |
========================================================================
B. Denver Division from January 1973 through December 1974 (sample size, 2, 020)
Percentage in Percentage in Statistical
Race Random Sample Voting-Aged Population Conclusion
------------------------------------------------------------------------
| | | | Statistically |
|Chicano | 6.73% | 8.93% | Significant |
| | | | Difference |
|---------|----------------|---------------------------|-----------------|
| | | | Not |
|Black | 2.48% | 3.00% | Statistically |
| | | | Significant |
========================================================================
C. Grand Junction Division on July 2, 1973 (sample size, 832)
Percentage in Percentage in Statistical
Race Random Sample Voting-Aged Population Conclusion
------------------------------------------------------------------------
| | | | Statistically |
|Chicano | 4.81% | 8.89% | Significant |
| | | | Difference |
|---------|----------------|---------------------------|-----------------|
| | | | Not |
|Black | 0.00% | 0.21% | Statistically |
| | | | Significant |
=========================================================================
D. Pueblo Division on July 6, 1973 (sample size, 872)
Percentage in Percentage in Statistical
Race Random Sample Voting-Aged Population Conclusion
------------------------------------------------------------------------
| | | | Statistically |
|Chicano | 12.84% | 16.29% | Significant |
| | | | Difference |
|---------|----------------|---------------------------|-----------------|
| | | | Statistically |
|Black | 1.49% | 2.90% | Significant |
| | | | Difference |
========================================================================
E. Denver Division on July 30, 1973 and May 29, 1974 (composite sample size, 2111)
Percentage in Percentage in Statistical
Race Random Sample Voting-Aged Population Conclusion
------------------------------------------------------------------------
| | | | Statistically |
|Chicano | 6.20% | 8.93% | Significant |
| | | | Difference |
|---------|----------------|---------------------------|-----------------|
| | | | Statistically |
|Black | 1.94% | 3.00% | Significant |
| | | | Difference4 |
========================================================================
On the basis of this evidence, and particularly the statistical conclusions of Dr. Bardwell, defendants contend that the Jury Selection Plan of this district is both unconstitutional and violative of the Jury Selection and Service Act of 1968. For the reasons set forth below, we disagree.
In a line of decisions spanning nearly a century, the United States Supreme Court has fashioned certain basic principles for judging the constitutionality of jury selection systems. See, e. g., Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); ...
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U.S. v. Test
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