Carmical v. Craven

• Decision Date: 10 May 1972
• Docket Number: No. 26236.,26236.
• Citation: 457 F.2d 582
• Parties: Richard L. CARMICAL, Petitioner-Appellant, v. Walter E. CRAVEN, Warden, California State Prison at Folsom, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 582 (1971)

Richard L. CARMICAL, Petitioner-Appellant, v. Walter E. CRAVEN, Warden, California State Prison at Folsom, Respondent-Appellee.

No. 26236.

United States Court of Appeals, Ninth Circuit.

November 4, 1971.

Rehearing Denied May 10, 1972.

COPYRIGHT MATERIAL OMITTED

William Bennett Turner (argued), Oscar Williams, San Francisco, Cal., Judith Ann Ciraolo, Oakland, Cal., Jack Greenberg, Charles Stephen Ralston, New York City, for petitioner-appellant.

Gloria F. DeHart, Deputy Atty. Gen., (argued), Evelle J. Younger, Cal. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee.

Before BARNES, HAMLEY and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Appellant Carmical appeals from an order denying his petition for a writ of habeas corpus. His petition charged that his state court conviction was invalid because he was tried by a jury drawn from a jury panel unconstitutionally selected.

Before we discuss the merits of the petition, we dispose of appellee's contention that Carmical had waived his jury discrimination claim by his failure to raise the question at the time he was tried in the state court in November 1966. The state court record contains no indication of any affirmative act on Carmical's part evidencing his deliberate rejection of his constitutional guaranty. (McNeil v. North Carolina (4th Cir. 1966) 368 F.2d 313, 315.) There is nothing in either the state court proceedings or the record below suggesting that Carmical's attorney declined to raise the issue for some strategic purpose. As the district court, 314 F.Supp. 580, impliedly found, the ingredients for deliberate bypass specified in Fay v. Noia (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, are lacking, and the issue is not foreclosed on collateral attack. (Cobb v. Balkcom (5th Cir. 1964) 339 F.2d 95; cf. Fernandez v. Meier (9th Cir. 1969) 408 F.2d 974.)

For the purpose of testing the sufficiency of Carmical's averments, prima facie, to sustain his claim for habeas relief, the appellee admitted the truth of the matters set forth in the petition and exhibits filed in support of it. The petition and the exhibits include the following facts: Carmical was tried and convicted for possessing heroin and for illegally possessing a firearm. At the time of his trial in Oakland, California, Oakland used a "clear thinking" test to select a master jury panel from the voter registration lists. The test purportedly winnowed voters of below "ordinary intelligence," leaving only those who satisfied California's statutory commandment that a juror be "in possession of his natural faculties and of ordinary intelligence and not decrepit." (Cal.Civ. P.Code, § 198(2) (West 1954).) The test consisted of 25 multiple-choice questions which had to be answered in 10 minutes. Prospective jurors were not told about the time limit before they took the test. To qualify for the master jury panel, prospective jurors were required to give "correct" answers to at least 80 percent of the questions.¹

The use of this test excluded a substantial majority of otherwise eligible minority and low income persons from the master jury roll. In the second half of 1967, 81.5 percent of registered voters from predominantly black and low income areas of Alameda County who took the test failed to pass it. In contrast, only 14.5 percent of those eligible jurors from predominantly white areas taking the test failed to pass it. A total of 29 percent of all persons tested failed the examination. At the time of Carmical's prosecution in 1966, registered voters from predominantly white areas were nearly four times as likely to pass the test as were voters from black and low income areas.

A psychologist who is an expert on reliable testing methods declared by affidavit that: (1) the test contained many administrative flaws; (2) the high failure rate indicated that the test was excluding persons of ordinary intelligence; and (3) certain questions measured cultural rather than intelligence factors.

In 1968, the Superior Court for the County of Alameda prohibited further use of the test because it separated examinees on some basis other than "ordinary intelligence."²

The facts accepted as true for purposes of this appeal established a prima facie case of class exclusion from the jury selection process. In Whitus v. Georgia (1967) 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599, jurors were selected from tax digests previously maintained on a segregated basis. Blacks constituted 27.1 percent of persons potentially eligible for jury service. Only 9.1 percent of the grand jury venire and 7.8 percent of the petit jury venire were blacks. There was no evidence that any of the 27.1 percent eligible black jurors were disqualified from jury service. There existed a 3-to-1 disparity between blacks eligible for jury service and those on the grand jury venire and a 3.5-to-1 disparity on the petit jury venire. Ten out of 123 persons on both venires, or 8.1 percent, were blacks, a disparity of 3.3-to-1. Here, the test excluded from jury service 81.5 percent of the registered voters from black and low income neighborhoods but only 14.5 percent of the registered voters from predominately white areas, leaving 18.5 percent of the blacks but 85.5 percent of the whites. The state offered no evidence that any voter disqualified by the test was disqualified for other reasons. The ratio of eligible black and low income persons who would be eligible for jury service if the test excluded the same percentage of them as it did whites to those placed on the master list is 4.6 to 1, a disparity greater than that condemned in Whitus.

Once Carmical has presented his prima facie case, the state must adduce evidence sufficient to rebut it. (E. g., Coleman v. Alabama (1967) 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22; Hill v. Texas (1942) 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Norris v. Alabama (1935) 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.)

The sole issue on appeal is a narrow question of law: Is proof alone that the "clear thinking" test in fact resulted in large-scale exclusion of identifiable classes of veniremen otherwise eligible for jury service sufficient to make out a prima facie case of constitutionally impermissible jury selection, or, as the state contends, must Carmical also have offered evidence that the "clear thinking" test was intentionally designed to produce that result?

The narrowness of the question does not obscure its constitutional importance. Trial by jurors selected from the broad spectrum of society is a constitutional mandate. (E. g., Carter v. Jury Commission (1970) 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549; Smith v. Texas (1940) 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84.) A state may not systematically exclude persons from the jury selection process on the basis of their race, color, national origin, or on other identifiable group characteristics. (E. g., Whitus v. Georgia, supra; Hernandez v. Texas (1954) 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Strauder v. West Virginia (1879) 100 U.S. 303, 25 L.Ed. 664.) Token inclusion of members of the affected class in the selection process does not satisfy that fundamental command. (See Jones v. Georgia (1967) 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed. 2d 25; Whitus v. Georgia, supra; Smith v. Texas, supra.) Although petitioner is not constitutionally required to be tried by a jury including persons from his race or class or by a jury proportionately representative of the community (e. g., Swain v. Alabama (1965) 380 U.S. 202, 208, 85 S.Ct. 824, 13 L.Ed.2d 759; Thomas v. Texas (1909) 212 U.S. 278, 29 S.Ct. 393, 53 L.Ed. 512), he is entitled to a jury selected from a master list drawn from the community as a whole.

It is true that almost all of the cases that have come before the Supreme Court challenging the constitutionality of jury selection systems have been cases in which the methods of selection were explicitly or implicitly designed to exclude Negroes from jury service. (E. g., Whitus v. Georgia, supra segregated tax returns; Eubanks v. Louisiana (1958) 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 judges interviewed prospective jurors; Avery v. Georgia (1953) 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 segregated jury tickets; Hill v. Texas, supra jury commissioners failed to search out qualified blacks; Smith v. Texas, supra blacks placed last on jury list; Bush v. Kentucky (1882) 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 blacks excluded by law; Neal v. Delaware (1880) 103 U.S. 370, 26 L.Ed. 567 blacks presumed incompetent to serve as jurors.) The opinions take into account the historical prevalence of intentional discrimination against Negroes, but the Court has never implied that the absence of that factor destroys a prima facie case. Rather, the Court has charged state officials with an affirmative duty to seek, and include within the jury selection process, all persons qualified under state law. As the Court stated in Avery v. Georgia, supra, 345 U.S. at 561, 73 S.Ct. at 892:

"The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure—`a course of conduct\'—which would not `operate to discriminate in the selection of jurors on racial grounds.\' Hill v. State of Texas, 316 U.S. 400, 404 62 S.Ct. 1159, 86 L.Ed. 1559 (1942). If they failed in that duty, then this conviction must be reversed—no matter how strong the evidence of petitioner\'s guilt. That is the law established by decisions of this Court spanning more than seventy years of interpretation of the meaning of `equal protection.\'"

(Accord, Eubanks v. Louisiana, supra, 356 U.S. at 587, 78 S.Ct. 970, quoting from Patton v. Mississippi (1947) 332 U.S. 463, 469, 68 S.Ct. 184, 92 L.Ed. 76; Cassell v. Texas (1950) 339 U.S. 282, 289, 70 S.Ct. 629, 94 L.Ed. 839.)

To support its argument that the Constitution does not forbid a system of jury...