United States v. Haley

• Decision Date: 27 August 1981
• Docket Number: Crim. A. No. CR81-09A.
• Citation: 521 F. Supp. 290
• Parties: UNITED STATES of America v. Millard Clifford HALEY, Francis William Hewes, Howard E. Caldwell, William T. Brooks, Gene M. Simpson, Walter Langford and Charles Franklin Caldwell.
• Court: U.S. District Court — Northern District of Georgia

521 F. Supp. 290

UNITED STATES of America v. Millard Clifford HALEY, Francis William Hewes, Howard E. Caldwell, William T. Brooks, Gene M. Simpson, Walter Langford and Charles Franklin Caldwell.

Crim. A. No. CR81-09A.

United States District Court, N. D. Georgia, Atlanta Division.

August 27, 1981.

Howard J. Manchel, Gignilliat, Manchel, Johnson & Wiggins, Atlanta, Ga., for defendant Haley.

Alan Begner, Atlanta, Ga., for Hewes.

J. Kevin Buster, King & Spalding, Atlanta, Ga., for H. Caldwell.

Raoul Lerow, Atlanta, Ga., for Brooks.

Michael Ford, Atlanta, Ga., for Simpson.

Thomas F. Choyce, Atlanta, Ga., for Charles Caldwell.

Jay L. Strongwater, Atlanta, Ga., for Langford.

CONSTITUTIONAL CLAIM

TIDWELL, District Judge.

The defendants challenge the composition of the 1981 traverse jury in the Atlanta Division pursuant to the Fifth and Sixth Amendment to the United States Constitution. The thrust of the defendants' claim is that blacks are systematically excluded from the jury lists in the Atlanta Division of the Northern District of Georgia by the use of voter registration lists as the sole source for composing the master wheel. In support of this contention, the defendants have produced an array of statistical evidence to indicate the degree and cause of the alleged disparity in the selection system for the Atlanta Division. Furthermore, the defendants sought to provide evidence that voter registration was a tainted source for composing a representative jury due to a variety of alleged barriers to voter registration by blacks. At the close of the defendants' evidence the government moved for denial of the defendants' Motion to Stay Proceedings Based on the Statutory and Constitutional Deficiencies in the Jury Selection and Empanelment Process on the grounds that the defendants had failed to establish a prima facie case. The court orally granted the government's motion on August 13, 1981 with opinion to follow.

In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court clearly set out the elements of a prima facie case under 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 the 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 underrepresentation is due to systematic exclusion of the group in the jury selection. 439 U.S. at 364, 99 S.Ct. at 668

Assuming without deciding that the defendants have established the first and third prong of the prima facie case, the defendants' challenge falters on the essential showing that a significant disparity exists between the group's numerical presence in the community and its representation on the master jury wheel.

The defendants' expert witness has generated extensive calculations to substantiate the defendants' ultimate conclusion that a significant disparity exists. The defendants express this conclusion in two alternative forms termed absolute disparity and comparative disparity. Absolute disparity, the traditional yardstick for measuring the disparity of representation, is a calculation of the difference between the percentage of the group in the population and the percentage of the group in the master wheel. Comparative disparity requires yet another step of dividing absolute disparity by the group's percentage of the eligible population. It is necessary to realize that the comparative disparity calculation tends to magnify the size of the disparity as the relevant group's percentage of the population decreases.

Initially, the court notes that the defendants' statistical proof is premised on the percentage of blacks in the total population of the Atlanta Division rather than the percentage of blacks in the eligible population. Case law indicates that a calculation based on eligible population is preferable and provides a more accurate picture of representation. See, Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1978); Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1974); United States ex rel. Barksdale v. Blackburn, 639 F.2d 1115 (5th Cir. 1981); also see, Gewin, An Analysis of Jury Selection Decisions, appended to Foster v. Sparks, 506 F.2d 805, 832-33 (5th Cir. 1975). Nevertheless, on rare occasions, courts have relied upon general population figures. See, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). In this case, the defendants have incorporated the 1980 census findings of racial composition in the Atlanta Division. These findings are based on the general population of the Atlanta Division and will not be supplemented with the age eligible breakdown until later this fall. Since the 1980 census general population figures are preferable to the 1970 age eligible figures due to changes in population size and location within the Division, the court will use the 1980 census figures for analysis of the disparity. The court is mindful that the expert testimony in the hearing indicated that a further breakdown into age eligibility would likely reduce the size of the disparities which will be stated, although the defendants contend that any such reduction would likely be offset by the "undercount" of the relevant population.

A compilation of the figures relevant to the defendants' constitutional challenge of the jury selection process follows:

                  % of population which is black ..............   25.0%
                  % of master wheel which is black
                  (assumed by defendants from figures
                  for voter registration representation ........  18.67%
                  Absolute disparity ...........................   6.33%
                  Comparative disparity ........................   25.3%
                

The significant figure for the fair cross-section rule is the 6.33% absolute disparity. Although the Supreme Court has "never announced mathematical standards for the demonstration of `systematic' exclusion of blacks," Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), courts have clearly arrived at the conclusion that more than 10% absolute disparity is necessary to implicate a violation of the fair cross-section rule. Swain v. Alabama, 380 U.S. 202, 208-9, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965); United States v. Butler, 611 F.2d 1066, 1070 (5th Cir.), cert. denied sub nom. Fazio v. United States, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 35 (1980); United States v. Maskeny, 609 F.2d 183, cert. denied 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); Thompson v. Sheppard, 490 F.2d 830 (5th Cir. 1974) cert. denied 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1974). The defendants' statistic of 6.33% is plainly insufficient to establish a significant underrepresentation of blacks on the master wheel. Furthermore, when the figure of 6.33% is viewed in light of expert testimony which indicated that the absolute disparity would likely be reduced by an age eligible breakdown, the defendants showing of absolute disparity appears even less formidable.

Having failed to make a significant showing of absolute disparity, the defendants urge the court to rely on the alternative figure of 25.3% comparative disparity. The defendants contend that Supreme Court decisions do not restrict the type of statistics which may be used to establish a prima facie case and that comparative disparity is a better indication of underrepresentation. An examination of Supreme Court and Fifth Circuit decisions, however, shows a distinct preference for statistical evidence expressed in terms of absolute disparity. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1974); United States v. Butler, 611 F.2d 1066 (5th Cir. 1980); See also, Gewin, An Analysis of Jury Selection Decisions, appended to Foster v. Sparks, 506 F.2d 805, 834 n. 119 (5th Cir. 1975). Cases which have mentioned the statistic of comparative disparity have done so only in conjunction with their reliance on absolute disparity and have adhered faithfully to the 10% demarcation stated in Swain. See, United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981); United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980); Berry v. Cooper, 577 F.2d 322, 326 n. 11 (5th Cir. 1978); United States v. Test, 550 F.2d 577, 589 (10th Cir. 1976); United States v. Manbeck, 514 F.Supp. 141, 149 (D.S.C.1981); United States v. Holman, 510 F.Supp. 1175, 1180 (N.D.Fla.1981); United States v. Facchiano, 500 F.Supp. 896, 898-99 (S.D.Fla.1980); United States v. Blair, 493 F.Supp. 398, 480 (D.Md.1980); United States v. Jenison, 485 F.Supp. 655, 663-64 (S.D.Fla.1979); United States v. Rosenthal, 482 F.Supp. 867, 873 and 889 (M.D. Ga.1979). While the Fifth Circuit continues to leave open the question of whether reliance on comparative disparity is appropriate in circumstances where the group's percentage of eligible population is less than 10%, the facts of this case do not present such an issue. See, United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980); Gewin, An Analysis of Jury Selection Decisions, appended to Foster v. Sparks, 506 F.2d 805, 834-35 (5th Cir. 1975). Accordingly, the court finds the defendants' constitutional claim without merit.

STATUTORY CHALLENGES

The defendants also have alleged a number of violations of the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. hereinafter, "the Act".

In order to successfully assert a violation of the Act the defendants must show a "substantial failure to comply with the Act"; that is, one which adversely affects the legislative goal of random selection of jurors from a representative cross section of the community, by "affecting the random nature or...