Smith v. Yeager, 71-1650.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation465 F.2d 272
Docket NumberNo. 71-1650.,71-1650.
PartiesJohn William SMITH, Appellant, v. Howard YEAGER, Warden, New Jersey State Prison, et al.
Decision Date18 July 1972

Harris David, Newark Essex Joint Law Reform Project, Newark, N. J., for appellant.

David S. Baime, Asst. Prosecutor of Essex County, Newark, N. J., Joseph P. Lordi, Essex County Prosecutor, Newark, N. J., (Thomas McCormick, Legal Asst., on the brief), for appellee.

Before KALODNER, HASTIE and MAX ROSENN, Circuit Judges.

Certiorari Denied December 18, 1972. See 93 S.Ct. 685.


MAX ROSENN, Circuit Judge.

Appellant has challenged the jury selection procedures used to impanel the grand and petit juries of Essex County, New Jersey, which were instrumental in indicting and convicting him of assault and battery.1 He contends that both the "key man" system used to select the grand jury venires, and the system based on voting lists and city directories used to choose the petit jury venires, were constitutionally defective because they excluded disproportionate numbers of Negroes, women, working class, and residents of Newark.


Appellant is a Negro male. He bases his claims on both the equal protection and due process guarantees of the fourteenth amendment to the Constitution, but because of our disposition of this case, we need consider only one question: did the "key man" system employed in Essex County, New Jersey, invidiously discriminate in the selection of Negro grand jurors so as to deny appellant the equal protection of the law.2

All of appellant's claims were rejected by the state courts in State v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (1968), aff'd. 55 N.J. 476, 262 A.2d 868 (1970), cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970), and his habeas corpus petition3 has been rejected by the District Court for the District of New Jersey in an unreported opinion.

These opinions relied heavily on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), for the proposition that the appellant had to show something more than steady under-representation of the various groups to make out his prima facie case of a denial of equal protection. The Superior Court of New Jersey decided after a full hearing that it was incumbent on appellant to show a deliberate, systematic discrimination against members of his race. 246 A.2d at 46. The Supreme Court of New Jersey affirmed that test. The United States District Court conducted a thoughtful and thorough review of the cases and the facts of Smith's habeas corpus petition, concluding that appellant had to show: (1) a deliberate practice of total exclusion; (2) a deliberate practice of token inclusion; or (3) a deliberate interference with an otherwise valid procedure. It decided that none of the three situations had been shown and that appellant had failed to make out even a prima facie case. It attributed the under-representation of certain classifications of citizens, including Negroes, not to purposeful discrimination, but to the imperfections in the selection process.

In other words, the Superior Court and the District Court believed that it was not sufficient for the appellant's prima facie case to show that the consistent under-representation of Negroes on the grand jury was the likely result of a course of deliberate action by the Jury Commissioners of Essex County in seeking out "key men" who would supply names for grand jury service. We disagree.

For almost one hundred years the Supreme Court has made clear that:

The right to a trial by jury is guaranteed to every citizen of the state by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. 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.
Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880).

As such, there should be a truly representative cross-section of the community on a grand or petit jury, Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940), although there need not be proportional representation of each element of the population entitled to serve. Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 94 L.Ed. 839 (1950). However, "once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so footnote omitted it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. footnote omitted. . . ." Carter v. Jury Commission of Greene County, supra, 396 U.S. at 330, 90 S.Ct. at 523.

When one is willing to serve, and deemed fit by the state to serve,4 he cannot be excluded by the consideration of unacceptable or improper criteria. If such exclusion takes place, depriving a defendant of members of his or her race,5 sex,6 or economic class,7 then there may be a denial of equal protection.

The need of a cross-section of the community on a grand jury is particularly important because of its unique functions in the judicial process. On the one hand, that "body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). On the other, it serves to investigate wrong-doing and invoke the judicial process against those who have broken society's laws. United States v. Neff, 212 F.2d 297, 301 (3d Cir. 1954). Although a state need not provide a grand jury, Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884), it cannot proceed with one that was discriminatorily selected. Such discrimination, once begun, fatally infects all subsequent proceedings against those who have been denied the equal protection of the laws. Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Hernandez v. Texas, 347 U.S. 475, 482, 74 S.Ct. 667, 98 L.Ed. 866 (1934); Akins v. Texas, 325 U.S. 398, 401-402, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945).


The "key man" system, which is the focus of this appeal, was the product of the latitude given the New Jersey Jury Commissioners in the selection of their jury lists. The state's statutes set forth qualifications for jurors, N.J.S.A. 2A:69-1,8 and exemptions from service, N.J.S.A. 2A:69-2 to 4,9 and preclude any discrimination in selection based on race, color, creed, national origin or ancestry. N.J.S.A. 2A:72-7. But, the method by which the jury commissioners arrive at the list of qualified names they are required to produce under N.J.S.A. 2A:70-110 has, until recently,11 been left to their discretion. State v. Forer, 104 N.J. Super. 481, 250 A.2d 431 (1969); State v. Grundy, 136 N.J.L. 96, 54 A.2d 793, 796-797 (1947).

Prior to 1962, the Jury Commissioners of Essex County has been fulfilling their duties by drawing names from the county voting list. That year, the Assignment Judge for Essex County determined that the system was not working. He found that it did not produce enough Negroes, women, working class persons, or people from the City of Newark. He ordered the inclusion of such people, and the jury commissioners switched their method of selection to accommodate his wishes.

The theory of the "key man" system they adopted was to find strategically located persons in the county who could suggest capable people for jury duty. Theoretically, by selecting key men located in all the different communities in Essex County, and by taking into account appropriate economic and demographic factors, the key man system was intended to produce well qualified individuals of all races, classes and communities for service on the grand jury.

However, the key man system in Essex County was not an effective system.12 The jury commissioners had no settled method for selecting their key men. It was haphazard and uncertain at best, with absolutely no restraint on the subjective judgment of the jury commissioners. During the period from 1962-64, the Commissioners attempted to correct the lack of Negro names and solicited juror recommendations from some Negroes, including two judges and the director of the Newark Urban League, as well as from civic organizations and other people in the county. This special appeal produced about 250 Negro names. One Commissioner, however, conceded at the hearing in this case that the special effort soliciting Negro names was not continued after 1964. The names that were the fruits of this special effort were exhausted by 1966-67 when the events in question took place.13

At least one of the jury commissioners testified he did not know the size of the component parts of the county's population, and that he had no idea what type of grand jury list his work was producing. This lack of knowledge exacerbated the problems with the key man system. Such conduct was in dereliction of the responsibilities that courts have required jury commissioners to take under the equal protection clause in order to provide a reasonable cross-section. Carter v. Jury Commission of Greene County, supra; Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971). It is also particularly disturbing in view of the affirmative action incumbent upon the jury commissioners following the Assignment Judge's 196...

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