Com. v. Aponte
| Decision Date | 19 March 1984 |
| Parties | COMMONWEALTH v. Jose APONTE (and companion cases 1 ). Supreme Judicial Court of Massachusetts, Essex |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Lila Heideman, Asst. Dist. Atty., for the Commonwealth.
Daniel E. Callahan, Boston (Lawrence J. McGuire, Albert S. Conlon, Topsfield, and Paul Morton, Boston, with him), for defendants.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
The Commonwealth has appealed from an order issued by a Superior Court judge dismissing indictments returned against fifteen Hispanic defendants by Essex County grand juries. Mass.R.Crim.P. 15(b)(1), 378 Mass. 882 (1979). The judge granted the Commonwealth's motion to stay his order pending decision by an appellate court. We granted the Commonwealth's petition for direct appellate review.
Essex County grand juries returned indictments against the fifteen Hispanic defendants in February, March, and August, 1981. The attorneys representing these defendants filed a motion in the Superior Court in Essex County to dismiss the indictments on July 3, 1981. MASS.R.CRIM.P. 13(C)2, 378 Mass. 871 (1979). The defendants contended that the procedures used in selecting and empanelling grand juries for Essex County for the years 1976-1981 were not neutral and resulted in substantial underrepresentation of Hispanic persons. They claimed that these procedures violated the rights guaranteed them by the Fourteenth Amendment to the Constitution of the United States, by art. 12 of the Massachusetts Declaration of Rights, and by G.L. c. 234.
The judge conducted evidentiary hearings spanning eleven days from December, 1981, through June, 1982. Based on the testimony of the defendants and the definition provided by the 1980 census of population and housing, 3 the judge, in an interim order dated June 11, 1982, found that all the defendants were Hispanic. The Commonwealth does not contest this finding.
The Commonwealth contends, however, that the judge erroneously decided that the indictments returned against the defendants violated their rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. We conclude that we need not decide whether the evidence in this case supports the judge's findings of purposeful discrimination in violation of the equal protection clause under the "rule of exclusion" espoused by the United States Supreme Court. 4 See Castaneda v. Partida, 430 U.S. 482, 494 & n. 13, 97 S.Ct. 1272, 1280 & n. 13, 51 L.Ed.2d 498 (1977). We agree with the judge that the defendants demonstrated a prima facie case of systematic, albeit unintentional, discrimination against Hispanic persons in violation of art. 12 of the Declaration of Rights. 5 The order of the judge dismissing the indictments against the defendants is therefore affirmed.
1. The factual background. A. Evidence of underrepresentation. The parties stipulated, based on the 1980 Federal census, to the number of persons of Hispanic origin in the total Essex County population, as well as to the percentage of these individuals in the county as a whole and in the various cities and towns. Of 465,477 adult persons in Essex County, 9,225, or 1.98%, were of Spanish origin; 94.92% of the Spanish origin population was concentrated in ten cities and towns, with Lawrence and Lynn containing the largest percentages. 6
The parties also agreed that between 1976 and 1981, 328 individuals were summoned for grand jury duty in Essex County. The record does not indicate how many of these persons actually served on a grand jury. The defendants mailed to these 328 individuals a questionnaire in which each person was asked to designate his or her ethnic identification. Based on the returned questionnaires and on personal investigation, the parties agreed that 321 of the 328 individuals summoned for the grand jury between 1976 and 1981 were non-Hispanic persons. Although the other seven persons could not be found, both parties agreed that the odds were very small indeed that they were of Spanish origin, based on their surnames and on interviews with their neighbors and other persons who knew them. The court-appointed expert testified that the probability of three of the seven remaining persons being of Hispanic origin was approximately three in 10,000.
During the evidentiary hearings, the defendants and the Commonwealth presented witnesses who were experts in statistical analysis. Dr. Thomas J. Marx, the defendants' expert, testified that a random selection of prospective grand jurors from Essex County would have produced, at minimum, three Hispanic persons. 7 The expert concluded that the absence of Hispanic persons from the list of grand jurors in the years at issue constituted strong evidence of a nonrandom selection procedure and the existence of bias against members of the Hispanic population.
Dr. Jeffrey W. Eiseman, the Commonwealth's expert witness, utilized a different test for analyzing the data on Hispanic persons in Essex County. 8 Dr. Eiseman calculated underrepresentation on a community-by-community basis as opposed to a county-wide basis, since the established practice seems to have been that each town or city in Essex County sends, in response to writs of venire facias, an equal number of veniremen to a panel. 9 In determining the minimum number of Hispanic persons expected to be drawn, based on their proportional representation in Essex County, the expert adjusted his figures by estimating the percentage of Hispanic persons who would not be eligible to serve on a grand jury. Dr. Eiseman thus concluded that if the statistical analysis was conducted on a community-by-community basis and took into account only those Hispanic persons who presumably were citizens or could speak English sufficiently, the defendants could not demonstrate that the observed underrepresentation resulted from nonrandom selection. On cross-examination, however, Dr. Eiseman did admit that if the analysis was performed on a county-wide basis there would be an inference that a nonrandom, discriminatory selection procedure was utilized.
The court-appointed expert, Dr. Michael Malec, was qualified in statistical analysis in the social sciences. Although Dr. Malec recognized that the tests utilized by both parties' experts were common in social science research, he concluded that neither he nor any statistician could tell the court precisely which standard to apply, or whether any standard could determine bias in a jury selection procedure. He testified, however, that Dr. Marx's formula was appropriate, and that the probability of obtaining zero Hispanic persons from a random sample of 321 persons, given a percentage of 1.98% Hispanic persons in the county population, was slightly over one in 1,000, or sixteen in 10,000 (.0016) exactly.
B. The Essex County grand jury selection system. The defendants were prepared to present detailed evidence in support of their contentions that the grand jury selection system in Essex County was susceptible of abuse, or was nonneutral. The defendants, however, chose not to present such evidence when the judge ruled that their burden on this element was satisfied by the Commonwealth's concession that the key man system of jury selection was in operation in Saugus and Lynnfield. See note 17 infra.
The Commonwealth presented testimony by public officials of ten communities in Essex County who described the procedures utilized by them in their communities to compile the master lists of prospective grand jurors during the relevant period. The ten communities from which these witnesses were drawn represent the communities in which approximately 94.9% of the county's Hispanic population resided. In the communities of Lawrence, Gloucester, and Peabody, the official responsible for drawing up jury lists would choose names at random out of a street listing book and send a questionaire to each person so selected. These officials testified that they could use their discretion in picking individuals from the street list, and the Lawrence and Peabody officials stated that it was permissible to pick persons known to them from the street listing. These three communities, combined with Saugus and Lynnfield, contained 66.6% of the county's Hispanic population.
Town or city officials testified that in the communities of Salem, Methuen, Beverly, and North Andover they would choose names at specific intervals, e.g., every fifth or tenth name, from a list of residents, or one name after another, in equal numbers from each sector of the city. In compiling the lists, these officials would observe the surnames of the residents from the street listings or census records. These four communities accounted for approximately 11% of the county's Hispanic population. The other three communities of Lynn, Haverhill, and Andover utilized a computer which randomly drew names of adults from street lists. The officials of these communities sent out jury questionnaires to individuals on these computerized lists. 10 Eighteen and two-tenths per cent of the Hispanic population of Essex County resided in these communities.
Most of the witnesses testified that persons chosen from the street or census lists as prospective jurors from 1976 through 1981 were not screened to determine their eligibility to become jurors but merely were sent the standardized jury questionnaire. 11 The questionnaire was used to determine whether prospective jurors had a characteristic which could render them ineligible for service, e.g., alien status, physical or mental incapacity, holding certain public employment, or having a particular criminal record. See G.L. c. 234, §§ 1, 1A, & 4. Only when the questionnaires were returned would persons who were found ineligible to serve on a jury be eliminated from the list. 12
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