U.S. v. Newman

• Decision Date: 25 January 1977
• Docket Number: No. 663,D,663
• Parties: UNITED STATES of America, Petitioner, v. Honorable Jon O. NEWMAN, Respondent. ocket 76-3077.
• Court: U.S. Court of Appeals — Second Circuit

Page 240

549 F.2d 240

UNITED STATES of America, Petitioner, v. Honorable Jon O. NEWMAN, Respondent.

No. 663, Docket 76-3077.

United States Court of Appeals Second Circuit.

Argued Dec. 28, 1976.

Decided Jan. 25, 1977.

Joseph S. Davies, Jr., Dept. of Justice, Washington, D. C. (Peter C. Dorsey, U. S. Atty., District of Connecticut, New Haven, Conn., and Jerome M. Feit, Dept. of Justice, Washington, D. C., on the brief), for petitioner.

Andrew B. Bowman, Federal Public Defender, New Haven, Conn. for defendant Margaret Lee Robinson.

John R. Williams, New Haven, Conn., for defendant Patricia Saverese.

Peter Goldberger, Asst. Federal Public Defender, on the brief, for defendants-respondents.

Jack Greenberg, Charles Stephen Ralston, and Lynn Walker, New York City, on the amicus curiae brief of The NAACP Legal Defense and Educational Fund, Inc.

Before SMITH, ANDERSON and TIMBERS, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

On April 21, 1976 Margaret Lee Robinson was indicted by a Grand Jury in the United States District Court for the District of Connecticut for the crime of embezzlement of $1,779 from a federally insured bank in violation of 18 U.S.C. § 656 and for conspiracy to commit that substantive offense, 18 U.S.C. § 371. On the conspiracy count two others, Jethro Brown and Patricia Savarese, were also indicted. The case was assigned for a jury trial to Judge Jon O. Newman and the process of selecting the jury commenced on June 21st. Of the 48 veniremen summoned for jury duty, 40 reported to the court and, after the voir dire and the challenges for cause had been ruled upon, the clerk, at the direction of the court, drew 37 names from the jury box to constitute the jury pool from which the jury panel of twelve and five alternates ¹ were to be drawn. The peremptory challenges were then exercised in accordance with F.R.Crim.P. 24: 7 by the Government and 13 by the defendants. The Government peremptorily challenged three White and four Black veniremen, the latter constituting all of the Black veniremen in the jury pool; and the defense so challenged 13 White veniremen. The public defender for the defense then moved to expunge the Government's peremptory challenge of the four Black veniremen on the ground that their exclusion was an act of invidious discrimination by the United States Attorney.

Judge Newman then inquired of the Government whether it wished to state a non-racial reason for challenging the four Black veniremen in the jury pool. The Government however, replied that it did not, on the ground that inquiry into and disclosure of reasons underlying a peremptory challenge were contrary to the nature and purpose of the peremptory challenge.

The case was then continued to permit the defendants to present a statistical analysis to support their claim. The Federal Public Defender's statistical analysis, filed with the court on August 31, 1976, covers a two-year period June, 1974-June, 1976, during which 72 criminal jury trials (including the present case) were held in the following divisions ² of the United States District Court: Hartford and New Haven.

The basic data was compiled by a student intern, who was a senior at the University of Connecticut Law School and who worked as a researcher in the office of the Public Defender. He reported that for the 47 jury trials which took place at the Hartford seat of court, there were for 23 of those trials no Black individuals in the general array; that out of arrays totalling 2519 people, ³ 10 Black persons appeared 75 times. He also said that there were 17 trials in which potential Black jurors, drawn from the jury pool, were eliminated solely by the Government's peremptory challenges; that out of 47 trials, there were 40 trials in which Blacks were either not present in the array or were eliminated by Government challenge; and out of 47 trials studied, Blacks became jurors four times.

The researcher also made studies of the 24 criminal jury trials held during the same two years in the New Haven and Waterbury seats of court, which draw the veniremen from the same areas, and were, therefore, consolidated for the purposes of the survey. He reported that seven out of 24 trials had no Blacks in the general array; that in arrays totalling 1,581 people, Blacks appeared only 54 times; that of the 31 times that Blacks were chosen for the final panel, they were eliminated 12 times by Government challenge and five times by defense challenge; and that 14 Blacks were empanelled as jurors, three in the trials of Black defendants and 11 in the trials of White or Hispanic defendants.

The researcher presented the foregoing data to the Public Defender in the form of an affidavit which was submitted to the district court judge with the Public Defender's brief in support of his motion to strike the Government's jury challenges. The Government, proceeding on the assumption that, for the purposes of this mandamus proceeding, the statistics presented by the defendants were accurate, thereafter filed with the court a short brief with its own statistical analysis of the material in the researcher's affidavit. This affidavit and the Government's representations, made in connection with the statistical analysis, furnished the basic evidentiary materials from which the district court drew the following conclusions of fact:

In trials of Black or Hispanic defendants over the past two years in Hartford, New Haven and Waterbury, 33 Blacks had been included in the final group eligible for jury selection, of which the Government had peremptorily struck 28, resulting in an "exclusion rate" of 84.8%. In cases involving White defendants, 49 Blacks were again in the "final group." The Government challenged 29 of these, resulting in an "exclusion rate" for this category (Blacks struck in the trials of White defendants), of 59.2%. Putting the two "exclusion rates" together (Blacks peremptorily struck by the Government in the trial of Blacks, White or Hispanics) yielded an overall "exclusion rate" of 69.5%.

On October 15, 1976, Judge Newman filed a memorandum and order. He decided ". . . that the pattern of government peremptory challenges of Black veniremen has now reached an excessive point that calls for the exercise of this court's supervisory power over the conduct of criminal trials in this District." He also said,

". . . (T)he high rate of exclusion of Black veniremen and the fact that the rate is higher for trials of minority defendants than White defendants indicates that in a large number of instances Black veniremen were challenged because they were Black. Even in these instances, though the prosecutor's intention is clearly to exclude a person because he is Black, the prosecutor may have a motivation unrelated to any hostility toward Blacks. He may simply believe that a Black juror may be somewhat partial to a Black defendant." (Footnote omitted.)

The remedy which the district court ordered for the case presently before us, provided ". . . the appropriate remedy is to disallow the challenge of the four Black veniremen and resume the jury selection process with those four names included." As a prospective remedy in addition to the foregoing, the district court further ordered the United States Attorney's Office thereafter ". . . to maintain a record for each criminal trial of the number of Blacks included in the final panels against which peremptory challenges are exercised and the number of Blacks challenged peremptorily by the prosecutor without explanation."

We turn now to a consideration of the evidentiary material, principally the statistical data, presented by the Public Defender on which the factual conclusions of the district court essentially rest. The district judge said, ". . . I . . . accept as true the facts submitted in the . . . (researcher's) affidavit." These facts are the basis for its ultimate holding that the present system and operation of the Government's peremptory challenges in the District of Connecticut produce an invidiously discriminatory pattern of Black exclusion from the juries in criminal cases in the United States District Court for the District of Connecticut. On review, it is the opinion of this court that the evidence submitted is inadequate in kind and quality and particularly in its relevancy and accuracy to support the conclusions reached as they bear upon the present case, ⁴ which concerns the rights of one Black defendant and one White defendant on trial in the New Haven Division of the United States District Court for the District of Connecticut. What procedures were being used in selecting jurors in the Hartford Division at that time had no bearing or effect upon the defendants in the case before us. ⁵ In gathering the evidentiary material having to do with the statistics out of which the facts of the case are found, however, the researcher who marshalled the figures, compiled the information from the jury lists of the Hartford and New Haven Divisions over a two-year period, 1974-76. The result of making a composite of these two Divisions was to make a survey which was accurate for neither the New Haven Division nor the Hartford Division. This merger of statistics and other facts persisted throughout and were instrumental in the formulation of the court's conclusions, even though the instant case is being tried only in the New Haven Division. Of course, several groups of statistics and descriptions of relevant cases and their significant features were separately discussed as matters occurring in the Hartford Division and likewise some matters occurring in the New Haven Division were separately mentioned, but the district court's conclusions and ultimate ruling were based upon the combined studies of both divisions. This course was adopted by the Federal Public Defender for the purpose of strengthening the charge against the office of the United States Attorney for the District of Connecticut that it had exercised its...