399 F.Supp. 683 (D.Colo. 1975), 72-CR-352, United States v. Test

Docket Nº:72-CR-352.
Citation:399 F.Supp. 683
Party Name:UNITED STATES of America, Plaintiff, v. John E. TEST, Defendants.*
Case Date:August 04, 1975
Court:United States District Courts, 10th Circuit, District of Colorado

Page 683

399 F.Supp. 683 (D.Colo. 1975)

UNITED STATES of America, Plaintiff,

v.

John E. TEST, Defendants.*

No. 72-CR-352.

United States District Court, D. Colorado.

Aug. 4, 1975

Page 684

[Copyrighted Material Omitted]

Page 685

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.

MEMORANDUM AND ORDER ARRAJ, Chief Judge.

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

Page 686

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.

I. Defendants' Evidence

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 Voting-Aged Statistical
Race Random Sample 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 December1974
------ -------- ---- ------- ---- ------- -------- ----
(sample size, 2,020)
Percentage in
Percentage in Voting-Aged Statistical
Race Random Sample 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 Voting-Aged Statistical
Race Random Sample 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 Voting-Aged Statistical
Race Random Sample 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 Voting-Aged Statistical
Race Random Sample Population Conclusion

Statistically
Chicano 6.20% 8.93% Significant
Difference

Statistically
Black 1.94% 3.00% Significant
Difference 4

Page 688 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. II. The Constitutional Claim 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); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879)) From these precedents, it is clear that a criminal defendant has no constitutional right to a grand or petit jury which proportionally reflects the various 'cognizable' groups within the community. Nor is he entitled to proportional representation of such groups 'on the venire or jury roll from which petit (or grand) jurors are drawn.' (Swain v. Alabama, supra, 380 U.S. at 208, 85 S.Ct. at 829) What is guaranteed by the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments are grand and petit juries selected from source lists, and by procedures, which are free from discrimination. As the Court stated in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972): All that the Constitution forbids . . . is systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels . . .. (Id. at 413, 92 S.Ct. at 1634 (emphasis added)) In applying these principles, courts have uniformly held that the challenger of a jury selection system must prove 'that a recognizable, identifiable class of persons, otherwise entitled to be jurymembers, has been purposefully and systematically excluded from jury service.' (Leggroan v. Smith, 498 F.2d 168, 170 (10th Cir. 1974), citing, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953)) Consequently, a successful challenge to a jury plan depends upon proof of a prima facie case, comprised of two basic elements: (1) evidence that some 'distinctive' or 'cognizable' group or groups, (2) have been 'purposefully and systematically excluded' from jury service. The requirement of 'cognizability' derives primarily from Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), wherein the Supreme Court held: Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists...

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