State v. Forer, s. 1--347--1--350

• Decision Date: 11 February 1969
• Docket Number: Nos. 1--347--1--350,s. 1--347--1--350
• Citation: 250 A.2d 431,104 N.J.Super. 481
• Parties: STATE of New Jersey, Plaintiff, v. Norman FORER, et al., Defendants.
• Court: New Jersey Superior Court

Page 481

104 N.J.Super. 481

250 A.2d 431

STATE of New Jersey, Plaintiff, v. Norman FORER, et al., Defendants.

Nos. 1--347--1--350.

Superior Court of New Jersey Law Division.

Feb. 11, 1969.

Christopher R. Wood, Asst. Prosecutor, for plaintiff (Edward J. Dolan, Middlesex County Prosecutor, attorney).

Jack Wysoker, Perth Amboy, for some of defendants (Mandel, Wysoker, Sherman, Glassner, Weingartner & Feingold, Perth Amboy, attorneys).

Robert W. Lewandowski, Perth Amboy, for some of defendants (Wilentz, Goldman & Spitzer, Perth Amboy, attorneys).

Ronald W. Spevack, Perth Amboy, for some of defendants (Spevack & Spevack, Perth Amboy, attorneys).

HALPERN, A.J.S.C.

This is a joint motion by 37 defendants to dismiss four indictments charging rioting, unlawful assembly and assault upon a police officer. Their motion attacks the methods used by the jury commissioners in selecting the grand jury which indicted them, contending such methods violated the laws and constitutions of the State of New Jersey and of the United States. In particular, they contend the grand jury was not truly representative of a cross-section of the community because 'blue-collar, hourly-paid wage earners,' were systematically excluded. Under attack is the system used to select grand jurors in Middlesex County for the past 20 years.

This challenge to the grand jury array is made under R.R. 3:3--2(b) which provides:

'(b) MOTION TO DISMISS. If a defendant has been held to answer a complaint charging an indictable offense after the grand jury by which he is indicted has been impanelled, a motion to dismiss the indictment may be based on objections to the array.'

The complaints against defendants were filed in August 1966, and the grand jury which indicted them was sworn and impanelled in January 1968. It seems clear that R.R. 3:3--2(b) cannot be used as the vehicle for this motion since the complaints were made before the grand jury was impanelled. This motion should have been made before the January 1968 grand jury was sworn. R.R. 3:3--2(a). The obvious purpose of R.R. 3:3--2(a) is to compel an attack on the array of grand juries to be brought before they are sworn and begin to function. If an attack is permitted after they are sworn all indictments brought in by them, and proceedings taken in reliance thereon by way of trial or plea, would be subject to challenge. No sound reason is presented for relaxing the rule under R.R. 1:27A; however, if it is ultimately decided that I misconstrued R.R. 3:3--2(a) and (b), I will consider the defendants' motion on its merits.

Attacks on the array of grand juries are today being made with great frequency throughout the country and in New Jersey. While the factual patterns differ, the basis of the attacks are similar to the one being made in this case. The generally accepted principles of law applicable to such attacks are that where there is a systematic exclusion from jury duty of a recognizable identifiable group within the community, the Equal Protection Clause of the Fourteenth Amendment is violated irrespective of a showing of prejudice. Crawford v. Bounds, 395 F.2d 297, 308 (4th Cir.1968). If the exclusion results, it is condemned regardless of whether it is due to neglect or because of intentional conduct. Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414 (3 Cir.1955), certiorari denied 350 U.S. 971, 76 S.Ct. 442, 100 L.Ed. 842 (1956). The case of Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) sets forth the constitutional limits:

'* * * We of course recognize that the Fourteenth Amendment reaches not only arbitrary class exclusions from jury service based on race or color, but also all other exclusions which 'single out' any class of persons 'for different treatment not based on some reasonable classification.' Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866 (870).' (at pp. 59, 60, 828 S.Ct. at P. 161)

When a party challenges the array of a jury, grand or petit, the burden is upon the challenger to establish an unlawful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Smith, 102 N.J.Super. 325, 346, 246 A.2d 35 (Law Div. 1968). There is a presumption that the jury commissioners acted within the scope and authority of their office. Pope v. United States, 372 F.2d 710, 723 (8 Cir.1967); State v. Stewart, 2 N.J.Super. 15, 23, 64 A.2d 372 (App.Div. 1949). The means and methods used to select jurors must be designed to insure that they are impartially drawn from a cross-section of the community. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), rehearing denied 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186. When the formation of a jury is attacked, courts test the source from which the jury list is comprised and not the composition of any given panel. Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). A jury panel need not be a perfect mirror of the community or reflect the proportionate number of every identifiable group. Swain v. Alabama, supra.

It is against this backdrop of legal principles that I turn to the uncontradicted facts dealing with the selection of grand juries in Middlesex County. Annually, the jury commissioners secure a list of approximately 25,000 names from the Middlesex County voter registry lists. These names are proportionately selected at random from every section of the county. A questionnaire, approved as to form by the New Jersey Supreme Court, is then sent to the persons selected. R.R. 1:29--2. When returned these questionnaires are screened by the jury commissioners to determine qualifications pursuant to N.J.S.A. 2A:69--1, and exemption under N.J.S.A. 2A:69--2. The remaining names are then placed into two pools; the grand jury pool consists of approximately 800 names, and the petit jury pool of approximately 30,000 names. Upon orders of the assignment judge, entered three times a year for each stated court session, the jury commissioners select at random from such pools 200 grand jurors' names and 3,500 petit jurors' names. N.J.S.A. 2A:70--1. These lists are then submitted to the assignment judge of the county for processing, and thereafter are filed in the office of the county clerk as a public record. N.J.S.A. 2A:70--2 and 3. This processing is completed at least 25 days before the opening of the court session. N.J.S.A. 2A:70--3. In formulating the list of grand jurors the proofs indicate that the jury commissioners attempt to obtain qualified persons. To that end they examine the returned questionnaires and consider the juror's occupation, education and experience.

The thrust of defendants' attack is two-pronged. Firstly, they charge the jury commissioners improperly limited their selection of names to the voter registry lists; and secondly, they had no right to exercise any discretion in selecting names for the grand jury list.

In using only the voter registry lists defendants argue that the jury commissioners have disregarded their affirmative duty to take appropriate action to secure a representative cross-section of the community. Cassell v. Texas, 339 U.S. 282, 289, 290, 70 S.Ct. 629, 94 L.Ed. 839 (1950). They point to the Manual for the Use of Jury Commissioners of the State of New Jersey (hereinafter 'Manual') which suggests that more than one source for names should be used. It is intimated that the jury commissioners should somehow seek out lists of names (from unnamed sources--presumably social, religious or fraternal groups) to insure having jurors from all classes, groups, religions, colors and creeds. The simple answer to this argument is that the Manual merely suggests and does not direct. Additionally, if such were done defendants would complain that the wrong sources were utilized, or that the sources used did not have Negroes, Puerto Ricans, or other groups, as members, or that an insufficient number of them were selected.

The use of only the voter registry lists, where information on race and occupation does not appear, is a sounder constitutional method of selection because it presents no opportunity for discrimination. Any attempt to obtain names from outside sources to insure inclusion of all races, colors, creeds and groups, opens the door to a charge of deliberate discrimination in favor of such groups selected.

The use of voter registry lists has long been approved in the federal courts. United States v. Kelly, 349 F.2d 720, 778 (2 Cir., 1965), certiorari denied 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). Registration is available to all qualified persons and the use of voting lists does not discriminate against an identifiable racial, social or economic group. U.S. v. Bowe, 360 F.2d 1, 7 (2 Cir.), certiorari denied 387 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966); United States v. Birell, 276 F.Supp. 798, 822 (S.D.N.Y.1967). In fact the Jury Selection and Service Act of 1968, 28 U.S.C.A 1861 et seq., as implemented by a joint order of the Chief Judges of the United States District Court for the District of New Jersey, and the Third Circuit Court of Appeals, filed September 25, 1968, and approved by the Reviewing Panel of the Third Circuit Court of Appeals, limits jury selection primarily to voter registry lists. The source used for jury selection by the Middlesex County jury commissioners meets today's federal standards and I find it to be unobjectionable.

I turn now to defendants' second argument that the jury commissioners improperly exercised their discretion in selecting a 'better type juror' for the grand jury--they contend that in so doing they wrongfully discriminated against 'blue-collar, hourly-paid wage earners.' They flatly charge that not a single person of that classification was included in the list of 200 grand jurors submitted for the January 1968 court session. From this premise they argue that since defendants are mostly, if not all, Puerto Ricans, and since ...