Timmel v. Phillips, 86-1115

Citation799 F.2d 1083
Decision Date17 September 1986
Docket NumberNo. 86-1115,86-1115
PartiesRobert F. TIMMEL, Plaintiff-Appellant, v. Lyman PHILLIPS, M.D., Defendant-Appellee. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

W. David Allen, Washington, D.C., for plaintiff-appellant.

Kirk P. Watson, Daniel W. Bishop, II, Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, GARWOOD, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

The appeal of this malpractice suit involves a constitutional challenge to the jury selection procedure used in the United States District Court, Austin Division, of the Western District of Texas. Appellant Robert F. Timmel claims that the petit jury panel from which his jury was chosen was not fairly representative of a cross-section of the community, 1 and therefore the district court erred in not allowing an inquiry into the jury selection procedure. Finding no merit to Timmel's contentions, we affirm.

I.

In April 1981 appellee Dr. Lyman Phillips began treating Timmel for certain psychiatric problems by prescribing an antipsychotic drug, Trilafon. After Timmel developed tardive dyskinesia, 2 he instituted suit claiming that Dr. Phillips inappropriately prescribed Trilafon and failed to inform Timmel of certain possible side effects of the drug.

The trial was set before a six person jury. Five days prior to the trial a secretary for Timmel's counsel attempted to obtain a list of potential jurors from which the jury would be selected. The judge's courtroom clerk denied the request, which he was required to do by the Amended Plan Providing for Random Selection of Grand and Petit Jurors in the Western District of Texas (the "Plan"). 3

On the morning of the trial, in accordance with the Plan, the list of prospective jurors was given to counsel. Thirty names were on the list; six of those named were either absent or excused. The remaining twenty-four persons included nineteen men and five women. Although the record contains no transcript of the voir dire or the jury selection process, it apparently proceeded without incident. Both counsel for Timmel and counsel for Dr. Phillips exercised their peremptory challenges, with the jury then being selected and the trial beginning thereafter. Neither prior to the voir dire of the jury panel nor at any other time prior to the verdict returned in favor of Dr. Phillips was any question raised regarding the jury selection process. Only after the verdict was returned did Timmel object to the procedures used to select the panel.

Following the trial, Timmel filed a motion to inquire into the jury selection procedures with a contingent motion for a new trial. The district court denied the motion, noting, however, that Timmel was free to make another separate motion for a new trial. Subsequently, Timmel made a motion for a new trial based on his allegation that there was a systematic exclusion of sexual and ethnic groups from the jury pool. The district court also denied that motion.

Timmel now appeals raising one issue: whether a district court is required to permit a party to inquire into the jury selection procedures where the panelists from which the jury was chosen is markedly unrepresentative of the community from which the panelists were chosen. Timmel argues that the question should be answered in the affirmative because he has established a prima facie case of a violation of the constitutionally protected right to a jury that is fairly representative of the general community.

II.

The only way for Timmel to prevail at this appeal is to establish a violation of his constitutionally protected right to a petit jury selected from a fair cross-section of the community. 4 To establish a prima facie violation of the fair cross-section requirement, Timmel must show the following three elements: 5

(1) that the group alleged to be excluded is a 'distinctive' group in the community;

(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587 (1979). If Timmel fails to demonstrate any of these elements, he has failed to establish a prima facie violation of the constitutionally protected fair cross-section requirement. See United States v. Pepe, 747 F.2d 632, 649 (11th Cir.1984). Since Timmel's proffered evidence does not establish all three elements, he has failed to show a constitutional violation.

The Supreme Court has definitively established that women are a distinctive group in the community. See, e.g., Duren, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Timmel's contention that women were underrepresented on his jury venire thus satisfies the first element of Duren. As to the second element, however, it was incumbent on Timmel to prove that "the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community." Duren, 439 U.S. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587. "[I]n order to establish a prima facie case, it [is] necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion...." Id. at 366, 99 S.Ct. at 668-69, 58 L.Ed.2d at 588 (emphasis added). Timmel must demonstrate, then, not only that women were not adequately represented on his jury venire but also that this was the general practice in other venires.

Whether Timmel demonstrated that women were not fairly represented on his jury venire does not need to be addressed because he has presented no evidence as to the representation of women on jury venires in general. Merely showing one case of alleged underrepresentation does not rise to a "general" underrepresentation that is required for establishing a prima facie case. Those Supreme Court cases that have addressed the issue have examined the selection process of a number of jury venires over a period of time. See, e.g., Duren, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588 (reviewing the discrepancies both over a period of nearly a year and in the Petitioner's specific case); Taylor, 419 U.S. at 524, 95 S.Ct. 692, 42 L.Ed.2d at 694 (examining a time period of almost one year). Since Timmel has only provided his one jury venire as an example of an underrepresentative panel, we find that he has not met the second Duren element needed to establish the prima facie case.

The fact that Timmel only cites his particular venire composition is also indicative of a failure to satisfy the third element: proving systematic exclusion. To satisfy this prong it must be shown that the underrepresentation was inherent in the particular jury-selection process utilized. Duren, 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588. One incidence of a jury venire being disproportionate is not evidence of a "systematic" exclusion. For example, in Duren, the Court found that the Petitioner's "demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic...." 439 U.S. at 366, 99 S.Ct. at 669, 58 L.Ed.2d at 588 (emphasis added). Thus, a one time example of underrepresentation of a distinctive group wholly fails to meet the systematic exclusion element in Duren.

Moreover, the procedures used in the jury selection process are clearly set forth in the Plan for jury selection. The Plan was adopted pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C. Secs. 1861-1871, and states as its policy the selection of grand and petit juries at random from a cross-section of the community. The Plan achieves...

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  • McGowan v. State, CR-95-1775.
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    ...were not adequately represented on his jury venire, but also that this was the general practice in other venires.' Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.1986)." Sistrunk v. State, 630 So.2d at 150. In this case, there was absolutely no showing either that random computerized sele......
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