People v. Moss
| Decision Date | 03 February 1975 |
| Citation | 366 N.Y.S.2d 522,80 Misc.2d 633 |
| Parties | PEOPLE of the State of New York v. Cornell MOSS. |
| Court | New York Supreme Court |
Sigmund Israel, New York City (William Gallagher, Legal Aid Society, Brooklyn), and on the brief, Barbara Teitler Rochman, National Organization of Women (N.O.W.), Legal Defense and Education Fund, New York City, for defendant.
Eugene Gold, Dist. Atty., Kings County, for the People.
Defendant moves to challenge the panel from which a jury in his case will be selected, pursuant to CPL Sec. 270.10.
CPL 270.10, subd. 1 provides that an objection made to the entire panel of prospective trial jurors may be taken only by a defendant and exclusively upon the ground that there has been such a departure from the requirement of the Judiciary Law in the drawing or return of the panel as to result in substantial prejudice to the defendant. Subd. 2 of that section provides that such a challenge to the panel must be in writing setting forth the facts constituting the challenge and prejudice and, if such facts are denied by the People, a hearing must be conducted.
The thrust of defendant's motion is that a petit jury chosen from a panel assembled with statutory exemptions having been granted to women violated his rights to due process and to the equal protection clauses of the Federal and State Constitutions.
Judiciary Law Sec. 599 provides that, although qualified, a woman is entitled to exemption from service as a juror upon claiming the exemption. It is universally accepted that under this exemption a woman need state absolutely no reason for the exercise of her exemption and, indeed, is not required to. Upon her statement at any time before being impaneled that she wishes to exercise her exemption, she may do so.
It is well established that the Sixth Amendment right to a jury trial is guaranteed to State criminal defendants by the Fourteenth Amendment (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). A defendant's right to a jury trial necessarily includes a jury drawn from a panel which contains a representative cross-section of the community.
'The unmistakable import of this Court's opinions, at least since 1941, Smith v. Texas, Supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.' Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690, 1975.
Although there is no constitutional requirement that any particular petit jury fairly reflect the makeup of the community, it is now constitutionally mandated that juries be drawn from panels which do reflect a representative cross-section of the community (Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Taylor v. Louisiana, Supra 1).
In Taylor, the Supreme Court declared unconstitutional a Louisiana statute, which, like the New York Judiciary Law, granted an automatic exemption from jury service to women, solely on the basis of sex. Women wishing to serve as jurors were required to file a written notice to that effect. Under the Louisiana system, 'only a very few women, grossly disproportionate to the number of eligible women in the community', were called for jury service (Taylor v. Louisiana, Supra, 419 U.S. at p. 525, 95 S.Ct. at p. 695). The Court therefore treated the impact of the exemption as tantamount to a systematic exclusion of women from jury panels. Justice White, speaking for the eight-man majority, stated:
'Although this judgment may appear a foregone conclusion from the pattern of some of the Court's cases over the past 30 years, as well as from legislative developments at both federal and state levels, it is nevertheless true that until today no case had squarely held that the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community.
'Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male'. (Taylor v. Louisiana, Supra, 95 S.Ct. at p. 700).
Taylor and the cases cited therein make it clear that the pertinent inquiry in his case is whether the statutory system under which jury panels are assembled results in a large distinctive group, women being substantially underrepresented on such panels as compared to their actual numbers in the community.
'Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government . . . Tendencies, no matter how slight, toward the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted'. (Glasser v. United States, 315 U.S. 60, 85--6, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1941)).
Although the New York Judiciary Law makes it easier than did the Louisiana statute for women to serve as jurors if they so desire, the New York statutory system nevertheless results in jury panels on which women are substantially underrepresented in proportion to their actual members in the population. Pursuant to the mandate of the Judiciary Law, this court conducted a brief hearing which consisted of receiving statistics provided by the County Clerk. 2
The statistics provided are uncontested and are, of course, binding upon the court as a formal judicial admission. The significance of these statistics is demonstrated in three separate areas, the first of which is that men and women are notified to be examined as to their qualifications as jurors on an equal basis. The same number of men and women are requested to provide information as to their qualifications. Following the examination of the jurors, the statistics show that more men are qualified than women. Clearly, this is because of the women's exemption. What is of greater significance is that the number of men summoned is nearly five times the number of women summoned, this being the case in the last half of 1974. In the fiscal period 1969 to 1970, almost fifteen times the number of men were summoned for jury duty than were women.
It appears that the reason for the great disparity between those qualified and those summoned is the present makeup of the jurors' pool consisting of a list of jurors who have qualified over the years, deducting therefrom those who have died or become otherwise incapacitated or otherwise disqualified, including women who, after qualification, decided they wished to exercise their exemption.
2 Fiscal Examination Notices Qualified Jurors Jurors Summoned
--------------------- -------------------- --------------------
Year Male Female Total Male Female Total Male Female Total
--------------- ------ ------- ------ ------ ------ ------ ------ ------
1969-
1970 18,378 18,116 36,494 6,584 2,616 9,200 59,772 4,553 64,325
1970-
1971 24,813 23,528 48,341 8,479 2,962 11,441 59,448 6,102 65,550
1971-
1972 28,607 26,993 55,600 9,022 4,760 13,782 62,762 7,288 70,050
1972-
1973 31,641 30,277 61,919 9,848 5,049 14,897 58,917 9,008 67,925
1973-
1974 54,500 54,500 109,000 10,937 6,773 17,710 66,834 12,816 79,650
7/1/74
to 27,061 31,139 58,200 5,911 3,780 9,691 31,119 6,931 38,050
12/31/74
It is noteworthy that the efforts by the County Clerk to secure a pool or panel of jurors representing a fair cross-section of the community is defeated by the existence of the women's exemption for a long period of time.
Under the circumstances, it cannot be said that a fair cross-section of the community is represented on the jury panels nor is it possible, presently, to obtain one. Inasmuch as, under Taylor, the presence of a fair cross-section of the community on panels from which petit jurors are drawn is essential to the fulfillment of the Sixth Amendment guarantee of impartial jury trial in criminal cases, defendant would be deprived of this right if he were to be tried before a jury selected pursuant to Section 599(7).
Defendant contends also that Judiciary Law Section 599 subd. 7 violates the equal protection clause of the Constitution because it establishes an exempt classification based solely on sex. This contention is worthy of consideration.
The equal protection clause of the Fourteenth Amendment has historically been invoked to protect various groups from discrimination by statutory classification. Recently, the Supreme Court has articulated new approaches to determine the constitutionality of statutory classifications challenged under the Fourteenth Amendment.
If a statute creates a classification which is 'inherently suspect', or if a statute deals with 'fundamental rights', the classification will be subject to strict judicial scrutiny and a showing by the State of a compelling state interest will be necessary to justify the use of the classification (Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); O'Neill v. Dent, 364 F.Supp. 545 (1973)).
In the Frontiero case, four Justices of the Supreme Court found that sex was an inherently suspect classification.
'(C)lassifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny'. (Frontiero v. Richardson, Supra, 411 U.S. at 686--688, 93 S.Ct. at 1771; see also Matter of Sontag v. Bronstein, 33 N.Y.2d 197, 351 N.Y.S.2d 389, 306...
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