772 F.2d 982 (1st Cir. 1985), 84-1750, Barber v. Ponte

Docket Nº:84-1750.
Citation:772 F.2d 982
Party Name:James BARBER, Petitioner, Appellant, v. James PONTE, et al., Respondents, Appellees.
Case Date:April 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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772 F.2d 982 (1st Cir. 1985)

James BARBER, Petitioner, Appellant,


James PONTE, et al., Respondents, Appellees.

No. 84-1750.

United States Court of Appeals, First Circuit

April 4, 1985

Argued Dec. 5, 1984.

Opinion on Rehearing

En Banc Sept. 18, 1985.

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Robert L. Sheketoff, Boston, Mass., with whom Zalkind & Sheketoff, Boston, Mass., and P.J. Piscitelli, Brockton, Mass., were on brief, for appellant.

Martin E. Levin, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Chief, Crim. Bureau, and Barbara A.H. Smith, Chief, Crim. Appellate Division, Boston, Mass., were on brief, for appellees.

Edna M. Conway, Asst. Atty. Gen., Criminal Justice Div., and Stephen E. Merrill, Atty. Gen., on brief for the State of New Hampshire, amicus curiae.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

Petitioner, James Barber, seeks a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 on the ground that an alleged systematic exclusion of young people from his Massachusetts state court jury venire violated his constitutional right to an impartial jury drawn from a cross-section of the community.

In September of 1980 Barber, a prisoner at Massachusetts Correctional Institution at Norfolk, was charged with unlawful possession of a hypodermic syringe, unlawful possession of two hypodermic needles, unlawful possession of heroin and unlawful possession of marijuana. Prior to his jury trial, Barber moved to dismiss the venire on the grounds that an alleged systematic exclusion of young people violated Mass.Gen.Laws Ann. ch. 234, Sec. 4 (1969) and the Massachusetts and United States Constitutions. The court held a hearing on February 1, 1981. The only evidence presented at the hearing on the pretrial motion was a copy of a report on the representation of persons age eighteen to thirty-four on Norfolk County juries that had been generated in the case of Commonwealth v. Flaherty, Criminal No. 76318 (Norfolk Sup.Ct.). The report indicated that for the twenty-five-month period between October 1, 1978, and October 31, 1980, young adults (age 18-34) were underrepresented by 50% in the jury-selection process.

The case went to trial on April 21, 1981, before a six-person jury (plus one alternate) that included two persons under the age of thirty-five. The jury found defendant not guilty on the count of possession of marijuana and guilty on all other counts. Petitioner appealed his conviction which was affirmed by the Massachusetts Appeals Court in Commonwealth v. Barber, 14 Mass.App. 1008, 441 N.E.2d 763 (1982), and unsuccessfully sought further appellate review from the Supreme Judicial Court. See Commonwealth v. Barber, 388 Mass. 1101 (1983). Petitioner thereafter brought a habeas petition in federal district court. The district court denied the petition and a motion for certificate of probable cause. Petitioner sought a certificate of probable cause from this court, which we granted.

The Supreme Court has long recognized that the vitality of a defendant's fundamental right to a trial by jury is dependent upon the composition of the jury. 1 In Glasser v. United States, the Supreme Court declared:

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Lest the right of trial by jury be nullified by the improper constitution of juries, the notion of what a proper jury is has become inextricably intertwined with the idea of jury trial.... Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government. For it is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.

315 U.S. 60, 85, 62 S.Ct. 457, 471, 86 L.Ed. 680 (1942) (citations omitted). See also Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946) ("The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community."); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940).

The Supreme Court has grounded the requirement of a jury drawn from a cross-section of the community on the equal protection clause, Hernandez v. Texas, 347 U.S. 475, 476-82, 74 S.Ct. 667, 669-72, 98 L.Ed. 866 (1954); Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 307-10, 25 L.Ed. 664 (1879), the supervisory power of the court over the right to jury trials in federal courts, Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946); Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), and the sixth amendment which binds the states through the fourteenth amendment, 2 Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). 3

In order to establish a prima facie violation of the cross-section requirement, a petitioner must show: (1) that the group alleged to be excluded is a "cognizable" or "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 the underrepresentation in petitioner's venire is due to the systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979); Hernandez v. Texas, 347 U.S. at 480, 74 S.Ct. at 671.


The Supreme Court first considered the issue of cognizability in Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664 (1879), an equal protection case. In sustaining defendant's equal protection argument the Court assumed that blacks were cognizable for jury selection purposes and took judicial notice of the effects of prejudice. The Court identified two constitutional values impaired by the exclusion of a cognizable group: (1) potential prejudice against the defendant, and (2) stigmatization of the group excluded from service.

In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), a case involving discretion in the selection of women jurors, the Court spelled out the prerogatives of jury commissioners in the jury selection process:

Th[e] duty of selection ... must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a "body truly representative of the community" and not the organ of any special group or class. If that requirement is observed [the jury commissioners] ... may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community.

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315 U.S. at 86, 62 S.Ct. at 472. Four years later, in Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946), the Court identified additional cognizable groups including economic, social, religious, racial, political, and geographic groups within a community, and held that economic distinctions in jury selection resulted in the exclusion of a cognizable group. The plaintiff in Thiel, suing for damages in a federal diversity tort case, moved to strike the jury venire on the ground that poor people were systematically excluded from the jury rolls. The Court held that exclusion of people who were paid daily wages rather than paid by salary failed to satisfy the general principles underlying proper jury selection because the exemption or exclusion was completely irrelevant to a person's eligibility and capacity to serve as a juror. 4 Id. at 223, 66 S.Ct. at 987. The Court did not declare that daily wage earners had a particular community of interest or values distinct from the rest of the population. Rather, it grounded its decision on the possibility that those responsible for the selection of jury panels could discriminate against persons of low economic and social status. Id. at 224, 66 S.Ct. at 987.

In Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), the Court sustained a challenge based on systematic exclusion of women. The Court assumed that women are a cognizable group and responded to the argument that women jurors behave similarly to male jurors.

It is said ... that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men--personality, background, economic status--and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men, likewise, do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.

Id. at 193-94, 67 S.Ct. at 264.

Eight years later in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), an equal protection challenge to the jury venire, the Court began to suggest the means for factually proving that a group of excluded people constitute a cognizable class so that litigants would not have to depend upon courts taking judicial notice of the cognizability of a particular group. The Court rejected the contention...

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