U.S. v. Davis

Decision Date26 January 1977
Docket NumberNo. 75-3747,75-3747
Citation546 F.2d 583
Parties2 Fed. R. Evid. Serv. 268 UNITED STATES of America, Plaintiff-Appellee, v. Harry Lloyd DAVIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

J. Hue Henry, Athens, Ga. (Court-appointed), for defendant-appellant.

John W. Stokes, U. S. Atty., Steven W. Ludwick, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before AINSWORTH and RONEY, Circuit Judges, and ALLGOOD *, District Judge.

AINSWORTH, Circuit Judge:

Appellant Harry Lloyd Davis was indicted for the offense of wilfully and unlawfully escaping from federal custody in the United States Penitentiary at Atlanta, Georgia, in violation of 18 U.S.C. § 751(a), 1 and was found guilty by a jury. On appeal, he attacks his conviction on the following three grounds: (1) that the jury-selection process in the Northern District of Georgia, under which the jury which convicted him was selected, failed to conform to the requirements of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-69 (hereinafter the Act); (2) that the trial court committed reversible error in excluding prison records offered by appellant; and (3) that the prosecutor made improper comments at trial, including references to appellant's post-arrest silence. For the reasons enumerated below, we affirm the conviction.

I. The Jury Selection Challenge

Defendant's principal attack on his conviction is aimed at the process of jury selection in the Northern District of Georgia. He presses three arguments in this regard. First, he contends that the jury-selection system violated the provisions of both the Act and the local jury-selection plan 2 by denying the public access to the computerized selection of prospective jurors. Second, he asserts that those functions of the selection process which were performed by the GSA personnel and computer in the absence of supervision by court officials violated the provisions of the Act and the plan requiring management of the process, and performance of particular functions, by the clerk or jury commission. Third, he contends that the jury clerk utilized "volunteers" in the selection process in violation of 28 U.S.C. § 1866(f). Defendant's attorney conceded at oral argument that no volunteers were used in the instant case. Therefore, that issue is not in dispute and we need not reach it. The issues of public access and delegation to the GSA remain.

After the trial in this case, defendants in twenty-seven other cases moved, based on similar challenges to the jury-selection system here at issue, 3 to dismiss indictments and stay proceedings. A hearing was held before two United States magistrates, a transcript of which has been made a part of this record, and the magistrates issued findings of fact and conclusions of law which were adopted by the district court in all twenty-seven cases. The essential facts developed in that hearing are as follows.

Jurors in the Northern District of Georgia are chosen by a process of random selection which utilizes computers. The system originated with the voter registration list, containing over 1,000,000 names. Through an objective qualifying process and two stages of random selection, those names were winnowed to a far smaller pool from which the veniremen were eventually drawn.

In the first stage, the names on the voter registration list were reduced to 25,000 in number and were placed in the master jury wheel. 4 The selection was made at random, involving the use of a quotient (determined by a mathematical formula) for drawing the desired number of names, and a starting number selected by chance. 5 The names in the master wheel were drawn manually for almost all counties in the clerk's office. 6 The clerk mailed a juror qualification form to each person whose name appeared in the master wheel, and a separate qualified wheel, consisting of those persons who qualified, was then constructed. 7 Prior to the implementation of the computerized selection system herein in dispute, a marshal would draw slips bearing the names of qualified prospective jurors from the qualified wheel by hand each time there was a court order for new jurors.

The last step in the process the actual drawing of the names for jury service was changed in 1975 when the district court converted to a computerized system of jury selection. 8 Pursuant to a plan, 9 approved by the reviewing panel of the Fifth Circuit, the names in the qualified wheel were delivered to Jerry Mitchell, a GSA computer specialist. 10 Mitchell was designated "a representative and officer of (the district) court" for the purpose of introducing the names on the qualified wheel into the computer system. 11 He had the names keypunched and put onto magnetic tape. He then returned the original slips of paper to the clerk, along with a computer printout of those names. 12

The computer program utilized in the jury-selection process was developed by a GSA employee in the GSA's Fort Worth, Texas, office. However, the computer facility employed in the process was located at the GSA Data Processing Center in Atlanta.

The mechanics at this stage of the selection process bear directly on appellant's claim of improper delegation. The system is triggered by a court order to the clerk to summon grand or petit jurors. 13 The clerk then computes a quotient based upon the number of jurors desired and the number of potential jurors' names remaining in the qualified wheel. The clerk also randomly draws a starting number, which is a number between one and the quotient. He then sends a transmittal letter to Mitchell indicating the starting number, the quotient, and the number of jurors sought. 14 Thus, the clerk's instructions need only be carried out mechanically. The information in the transmittal letter is keypunched and fed into the computer which, in turn, produces a printout of the names selected for jury duty, the completed and addressed summonses, and the number of names remaining in the qualified wheel after the selection. This material is mailed to the clerk who subsequently mails the summonses to prospective jurors. The computer's role in the process is automatic: the computer first picks the name at the starting number, 15 proceeds to count to the quotient number, selects that name, and then counts to the quotient number again and repeats this function until the entire group of jurors has been selected. The magistrates' report found that

(i)n performing this function the computer was merely performing a ministerial and mathematical process automatically, which had been previously performed manually. It exercised absolutely no discretion in determining who was to be selected for jury service.

At the magistrates' hearing, there was some testimony about the supervision and accuracy of the computer system. None of the GSA officials involved in the development, programming, and implementation of the electronic data processing system for the district court's jury selection have been deputized as clerks of the court. Mitchell is the only such official named as an officer by the court's order. Although he was sometimes present at the actual computer runs, none of the court's own members or employees was in attendance.

The basic computer program was tested for accuracy during its " debugging" phase in Texas. Therefore, it was not tested for accuracy either at the Georgia facility or on this particular jury list. The clerk's office verified to the GSA that the first computer printout was satisfactory. There was also testimony to the effect that no check was made regularly by the clerk's office to determine whether the computer was functioning properly. While we note these facts, they are not fatal to appellant's conviction. We do not belittle the importance of either supervision or testing of computer-assisted jury selection schemes. However, aside from the complained-of deviations, this appeal presents no evidence indicating either that the GSA failed to follow the specified procedures or that the computer failed to function properly. 16

The facts surrounding public access to the jury-selection process must also be set forth. Until the filings of the motions in these cases, the clerk had never publicly announced the time and place of the computerized drawings. 17 It also appears that, with the exception of appellant's counsel, Henry, no one had ever requested to view a jury-selection run. 18 The GSA official in charge of the Atlanta computer facility maintained a policy whereby members of the public were not permitted into the computer room unless a particular user made a request on their behalf, in which case the request would be considered on an individual basis, and admission would depend upon the purpose of the visit. The policy with respect to jury-selection runs was no different than that concerning any other program. The reasons for the policy, the GSA official testified, include physical security of the equipment (which is worth over $1,000,000) and the tapes (which would be expensive to reproduce), the room's special atmospheric requirements as to air conditioning and humidity, and space limitations. He expressed fear of physical destruction of the computers or tapes by outsiders. The GSA official said that he would not honor a request for access unless the request came through the clerk's office, but that he would allow access to the room for the sole purpose of viewing the selection process. The clerk testified that he would certainly permit access to the selection process and that the GSA could not veto any such decision.

Defendant's public-access complaint is based on 28 U.S.C. § 1866(a), which provides:

From time to time, the jury commission or the clerk shall publicly draw at random from the qualified jury wheel such number of names of persons as may be required for assignment to grand...

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