Brown v. State

• Decision Date: 09 April 1973
• Docket Number: No. S,S
• Citation: 58 Wis.2d 158,205 N.W.2d 566
• Parties: Arthur G. BROWN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 10.
• Court: Wisconsin Supreme Court

Page 566

205 N.W.2d 566

58 Wis.2d 158

Arthur G. BROWN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 10.

Supreme Court of Wisconsin.

April 9, 1973.

Roderick L. Eisele, Elkhorn, for plaintiff in error.

Robert W. Warren, Atty. Gen., Michael R. Klos, Asst. Atty. Gen., Madison, for defendant in error.

WILKIE, Justice.

One crucial issue is involved on this appeal:

Was there any impropriety, constitutional or otherwise, in the preparation of the 1971 Walworth county jury list with respect to: (a) students; (b) persons from the age of eighteen to twenty-one; or (c) teachers?

The opening step in the petit jury selection process is the compilation of a jury list for a term of court. Defendant contends that the 1971 Walworth county jury list was compiled in a manner which denied him his right to a trial before an impartial jury of peers by systematically and deliberately excluding three classes of persons from the prepared jury list. These three classes, according to defendant, are: (a) students, (b) persons between the ages of eighteen and twenty-one years, and (c) teachers.

In support of his motion attacking the jury array, which motion was limited to the exclusion of young people and students, defendant attached an affidavit showing the following distribution of ages in the April, 1971, term petit jury panel list:

18 -- 21 0

22 -- 29 2

30 -- 39 6

40 -- 49 12

50 -- 59 14

60 -- 69 12

70 -- 80 3

The affidavit further asserts that although four of the forty-nine jurors on the panel were from Whitewater, none are students.

The trial court ordered a hearing on the motion and this hearing was held on August 23d and at the hearing Mrs. Clemons, who had been a Walworth county jury commissioner since 1953, testified as to her method of recruiting prospective jurors. She stated that she was one of three jury commissioners and was responsible for selecting part of the jury list, 160 persons from the cities of Elkhorn and Lake Geneva and from the towns of Lyons, Geneva Lynn, Genoa City and Bloomfield. She stated that she took her names from sources such as telephone directories and town officials. She endeavored to achieve a racial and ethnic balance on the jury list while yet 'check(ing) further as to their responsibility.'

Mrs. Clemons further testified that it was her practice to exclude from the jury list those who were ill or hard of hearing, young mothers with children, and men whom she knew could be excused if they so desired. Also excluded were nurses and teachers because '(i)f we did (place them on the list), they could be excused, I believe.' Students were excluded, testified Mrs. Clemons, because '(t)hey would be away at college and it would be quite a hardship.' Mrs. Clemons testified she excluded from the jury lists persons between the ages of eighteen to twenty-one because '(m)y list was due April 1st and so I haven't prepared a list since eighteen year olds could serve.'

The right to a trial by one's peers, traceable to the Franklin inquisitio of the ninth century, ¹ brought to England by the Normans in 1066, and gradually extended to a variety of cases by Henry II, ² was formalized in the Magna Charta in 1215, ³ and in both the United States ⁴ and Wisconsin Constitutions. ⁵ This constitutional right of an accused to a trial by an impartial jury has been amplified by the United States Supreme Court to require jury selection procedures to draw their potential jurors from a cross-section of the community. ⁶ Consistently condemned by the high court and other courts has been the 'systematic and intentional exclusion,' ⁷ or 'purposeful discrimination' ⁸ of any group or class of persons. ⁹ This condemnation has precluded discrimination based upon race, ¹⁰ sex, ¹¹ political beliefs or affiliations, ¹² voter registration, ¹³ day wage earners, ¹⁴ religion, ¹⁵ and disposition to acquit. ¹⁶ The reasons underlying these cases were expressed early in Strauder v. West Virginia, wherein the Supreme Court stated:

'. . . The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone in his Commentaries, says, 'The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter.' It is also guarded by statutory enactments intended to make impossible what Mr. Bentham called 'packing juries.' It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.' ¹⁷

The precise statutory provisions governing the preparation of the petit jury list are embodied in ch. 255, Stats., and it is clear that the right to challenge a jury array as embodied in the jury list is at a time prior to trial and prior to the impaneling of a specific petit jury. ¹⁸ In Ullman v. State, ¹⁹ it was held that the challenge must be sufficient to adequately inform the trial court of the precise departures which are challenged. It was further stated

'. . . The right of challenge should be exercised before commencing to impanel the jury, otherwise it should be deemed waived. 12 Ency. Pl. & Pr. 424. No departure from that rule is permissible except for extraordinary reasons.' ²⁰

This rule has been followed in several other cases since its initial pronouncement. ²¹

Discrimination in the jury selection process, however, is not ordinarily presumed, ²² and the burden of establishing a prima facie case of discrimination is on the person challenging the validity of the jury array. ²³ When a defendant in a criminal case does succeed in establishing a prima facie case of discrimination, the burden thereupon falls upon the state to rebut or explain it. ²⁴ These rules have been summarized by this court in the recent case of State v. Holmstrom ²⁵ to require:

'(1) A systematic exclusion;

'(2) Of some representative unit of citizens.'

Elaborating, it was noted that

'A systematic exclusion can be shown by the direct testimony of the jury commissioners or by proving a disproportionate representation of a unit of citizens on the jury array over a period of time.' ²⁶

The mere lack of a proportional representation has not been regarded as constitutionally deficient, ²⁷ and indeed, it has been held that an accused has no constitutional right to a jury composed of members, or having even a single member, of his or her class, race or sex. ²⁸ This principle was stated in Fay v. New York as follows:

'It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough, there must be a clear showing that its absence was caused by discrimination. . . .' ²⁹

Certain statutory exemptions from jury service are provided under sec. 255.02, Stats., specifying those otherwise qualified persons who are exempt from jury duty either by virtue of their occupation, or by appropriate court order. ³⁰ This statute sets forth three classes of juror exemption: (1) automatic exemption; (2) exemption upon request of the person or upon the judge's own motion; and (3) individual exemption for good cause and class exemption by order of the judge based upon a finding that jury service would entail undue hardship, extreme inconvenience or serious obstruction or delay in the administration of justice.

How then do these general rules for the selection of jurors apply to the challenges of this particular jury list on the ground that there was a systematic and discriminatory exclusion of (a) students, (b) young people from eighteen to twenty-one years old, and (c) teachers?

Exclusion of Students.

As to the claim that students were systematically excluded, it should first be noted that there is no statutory authority (under sec. 255.02, Stats.) to systematically exclude this class of potential jurors solely on the basis of an assumed hardship. However, the systematic exclusion of students from potential jury service has been permitted by this court. Specifically, this was approved in State v. Holmstrom, ³¹ where it was held that the exclusion of students from jury service was 'based on reason and common sense.' This court reasoned that since most students did not attain eligible jury service age until their senior year in college, they would probably have left school before their turn to serve occurred. The court concluded the exclusion of this class of persons was permissible. It is important to note that since the instant jury list was compiled, pursuant to sec. 255.04(2)(a), in the spring of 1971--before students between the ages of eighteen and twenty-one became eligible to vote and hence serve as jurors--the Holmstrom reasoning applies in this case and permits the exclusion of these students in this particular array.

Since the eighteen to twenty-one year age group became eligible to vote and thus to serve on juries, the Holmstrom reasoning no longer applies to permit exclusion of students of this age group or older from jury service. Some eighteen and even nineteen year olds are in high school. Young people otherwise qualified for jury service should not be excluded unless the proper statutory procedure has been observed and the exclusion of such students is directed by the court, following the Holmstrom rationale.

We conclude, therefore, that although defendant's challenge to the jury array on this ground was timely, the exclusion of students was authorized for the reasons spelled out in Holmstrom.

Exclusion of Eighteen to Twenty-One Year Olds.

Persons between the ages of eighteen and twenty-one were excluded from the 1971 list of jurors for Walworth county. Defendan...