State v. Porro

• Decision Date: 13 April 1978
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Alfred A. PORRO, Jr., and Thomas Jones, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 269

158 N.J.Super. 269

385 A.2d 1258

STATE of New Jersey, Plaintiff-Respondent, v. Alfred A. PORRO, Jr., and Thomas Jones, Defendants-Appellants.

Superior Court of New Jersey,Appellate Division.

Argued Feb. 16, 1978.

Decided April 13, 1978.

Bernard L. Segal, San Francisco, for appellant Alfred A. Porro, Jr., pro hac vice (Michael A. Querques, Orange, attorney).

James D. Checki, Lyndhurst, for appellant Thomas Jones, relied on argument of Bernard L. Segal, San Francisco (Checki & Politan, Lyndhurst, attorneys).

James Mayer, Asst. Pros., for plaintiff-respondent (Roger W. Breslin, Jr., Bergen County Prosecutor, attorney).

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

KING, J. A. D.

These defendants were indicted by a Bergen County grand jury in October 1975 for the crimes of conspiracy and misconduct in office. They brought timely motions at the trial level challenging the array of grand jurors. The motions were denied by the trial judge for the reasons stated in his reported opinion at 152 N.J.Super. 259, 377 A.2d 950 (Law Div.1977). We granted defendants' motions for leave to appeal and now affirm.

Defendants challenge the method of selection and the composition of the grand jury returning this indictment. They advance two grounds for their position: (1) the systematic exclusion of full-time students who they allege comprise a constitutionally cognizable class, and (2) the alleged substantial under-representation of certain classes of jurors namely, women, blacks, laborers and blue-collar workers. Defendants claim the procedures utilized in selecting the grand jury violated their rights to due process and equal protection under the Federal Constitution, as well as their state constitutional rights.

As the trial judge properly noted, the federal Fifth Amendment right to indictment by a grand jury has not been selectively incorporated into the Fourteenth Amendment as a fundamental right applicable to the individual states. However, the State of New Jersey has extended the right of indictment to its citizens under the State Constitution. N.J.Const. (1947), Art. I, par. 8. State constitutional principles require that grand jury selection "be so designed as to insure that juries are impartially drawn from community cross-sections." State v. Rochester, 54 N.J. 85, 88, 253 A.2d 474, 475 (1969). See also, State v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (Law Div.1968), aff'd o.b., 55 N.J. 476, 481, 262 A.2d 868 (1970). In the federal "constitutional context, the Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross-section of the community." Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975).

Since the decision of our Supreme Court in the Rochester case, grand jurors have been randomly selected from voter registration lists. Such lists, as well as supplementary sources, are used in federal courts. 28 U.S.C.A. § 1863. The question before us is whether full-time students are a constitutionally identifiable or cognizable group whose benign but systematic, exclusion from grand jury service in Bergen County renders this indictment constitutionally infirm. As the trial judge's opinion notes, this exclusionary practice has been discontinued.

Our state statutes actually criminalize any conduct by officials whereby a qualified citizen is prevented from serving on a grand or petit jury in any court "on account of race, color, creed, national origin, ancestry, marital status or sex." N.J.S.A. 2A:72-7. The federal counterpart prohibits exclusion from service "on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C.A. § 1862. At least legislatively, neither full-time students, nor indeed any occupational status, has achieved cognizability in this context.

The United States Supreme Court has recognized several constitutionally cognizable classes for jury selection purposes: race, gender and economic class. Racial discrimination in jury selection was held violative of the Federal Constitution in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). Such discrimination was said by Justice Black to be "at war with our basic concepts of a democratic society and a representative government." 311 U.S. at 130, 61 S.Ct. at 165. Most cases raising the issue have done so on racial grounds. See Annotation, "Jury Selection Group Discrimination," 33 L.Ed.2d 783 (1972). See also, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Clearly, a criminal defendant need not be a member of the excluded group before he has the requisite standing to raise the constitutional objection. Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972).

In Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), a tort claimant challenged a petit jury array from which the clerk and jury commissioner had deliberately and intentionally excluded all persons who worked for a daily wage. The court found this class distinction and discrimination "abhorrent to the democratic ideals of trial by jury" and a constitutional violation. Justice Murphy stated:

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community, frequently such complete representation would be impossible. (328 U.S. at 220, 66 S.Ct. at 985.)

The thrust of the Thiel holding was against discrimination by economic class, not any specific occupation.

The high court's latest expression on this subject of systematic exclusion of an identifiable class from jury service is found in Taylor v. Louisiana, supra. See also, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The convicted defendant in Taylor attacked the Louisiana petit jury practice which resulted in the virtual exclusion of women from the panels. At the time of defendant's trial, Louisiana law provided that a woman would not be selected for service unless she had previously filed a written declaration of her desire to be called for service. Fifty-three percent of the persons eligible for service from the parishes where the panel was drawn were women. As a result of the local practice only 10% of the persons on the jury wheel were women, only 12 women were actually among the 1800 persons drawn to fill petit jury venires in the calendar year of defendant's conviction, and on defendant's venire, totaling 175 persons, there were no women.

There is little in the Taylor case which aids in analyzing whether a particular group is "cognizable or identifiable" for constitutional purposes. In the opinion of the court, Justice White pointed out that the historic purpose of the jury was "to guard against the exercise of arbitrary power to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." 419 U.S. at 530, 95 S.Ct. at 698. Justice White concluded: "This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Id. (emphasis added). At least we can discern that the court was obviously impressed with the size of the class systematically excluded, 53%, as being violative of the fair cross-section requirement. In Peters v. Kiff, supra, 407 U.S. at 503, 92 S.Ct. 2163, the court used the language "large and identifiable."

Justice White further observed in Taylor that "the fair cross-section principle must have much leeway in application," and "it should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." 419 U.S. at 538, 95 S.Ct. at 702.

The records of the Department of Education reflect that Bergen County has approximately 44,000 full-time students, the highest of any county in the State. We do not know what percentage of these students are registered to vote. At oral argument the parties stipulated, based on the available statistics, that if full-time students were not excluded from the typical array of grand jurors in Bergen County, they would comprise between 5 and 6% of those eligible to serve. We are therefore reflecting on a much smaller numerical class than that which the Louisiana system excluded in Taylor. Students are of both sexes, all races, and from all economic classes. Therefore the benign but systematic exclusion of full-time students in Bergen County did not target a large percentage of the population and did not affect any particular group, i. e., gender race economic class, previously proscribed by the highest court from systematic exclusion.

We are satisfied from this record, and our experience, that full-time students tend to fall in the 18 to 35 age bracket. As the trial judge noted, today's trends point towards greater formal educational experience for all age groups, but the age distribution of the full-time student is still in the younger brackets.

A student is perhaps most appropriately placed in an occupational category. Our statutes provide for 12 occupational exemptions, all presumably cloaked, at least to some extent, with the public interest or public service; e. g., police, firemen, game wardens, physicians, dentists, active military personnel, school teachers, custodians of minor children, certain state employees, telephone operators and linemen, legislators, and first aid and rescue squad members. N.J.S.A. 2A:69-2. The Bergen County practice created an ad hoc exemption for full-time students because of the alleged inconvenience and hardship jury service...