United States v. Butts, 81-1-Cr-J-B.

• Decision Date: 22 May 1981
• Docket Number: No. 81-1-Cr-J-B.,81-1-Cr-J-B.
• Citation: 514 F. Supp. 1225
• Parties: UNITED STATES of America v. Harry Picot BUTTS, Jr., et al.
• Court: U.S. District Court — Middle District of Florida

514 F. Supp. 1225

UNITED STATES of America v. Harry Picot BUTTS, Jr., et al.

No. 81-1-Cr-J-B.

United States District Court, M. D. Florida, Jacksonville Division.

May 22, 1981.

Lawrence Gentile, III, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff.

Archibald J. Thomas, III, Asst. Federal Public Defender, Jacksonville, Fla., for defendants.

ORDER DENYING MOTION TO DISMISS

SUSAN H. BLACK, District Judge.

This cause is before the Court on defendant HARRY PICOT BUTT's Second Motion to Dismiss, filed herein on April 15, 1981. The Court heard oral argument on May 7, 1981, following which the parties were given additional time to submit supplemental briefs. Both defendant and the Government did so.

Defendant BUTTS moves to dismiss the indictment against him in the above-styled case pursuant to 28 U.S.C. § 1867(a) (1976), on the ground of substantial failure to comply with the provisions of the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. (hereinafter "the Act"), in the selection of the grand jury which indicted him (hereinafter "the Ellis grand jury").

As grounds for his motion, defendant alleges four separate violations of the Act:

1. The Ellis grand jury was not selected at random, as required by the Act and the Plan of the United States District Court for the Middle District of Florida for the Random Selection of Grand and Petit Jurors (hereinafter "the plan");

2. The names of the grand jurors were not publicly drawn by the Clerk, as required by the Act and plan;

3. The foregoing two procedures reflect regularly employed practices, not single deviations from the requirements of the law; and

4. The combination of the foregoing constitutes a substantial violation of the Act necessitating dismissal of the indictment.

At oral argument, the Court heard the testimony of three of the deputy clerks of the United States District Court for the Middle District of Florida, the testimony of a psychologist as to the random nature of the procedures employed by the Clerk in selecting the Ellis grand jury, and testimony of the Operations Manager of the Informations Systems Division for the City of Jacksonville. No credibility problems were apparent in the testimony of any of the witnesses, and the Court's Findings of Fact reflect the contents of the testimony substantially as presented to the Court.

I. Findings of Fact

1. Mrs. Llewellyn Landreth testified about the procedures used to construct the juror pool from which the Ellis grand jury was chosen. Mrs. Landreth has supervised jury selection since April, 1967. She described the process as involving three stages. In the first stage, juror names are transferred from the list of all eligible voters in the Jacksonville and Ocala Divisions to a "master wheel." In the second stage, names are transferred from the master wheel to a "qualified wheel," which contains the names of persons qualified for jury service. In the third stage, names are chosen from the qualified wheel for duty on particular grand or petit jury panels. The master wheel and the qualified wheel are both contained in a computer.¹

2. In the first stage of the process, the computer picks the names of jurors from the voter lists for the master wheel by use of a "starting number" and an "increment number." The increment number is found by dividing the number of jurors needed for the master wheel (specified in the Plan in 1977 as at least 15,000 for the Jacksonville Division) into the total number of registered voters. The starting number falls between one and the increment number. The starting number indicates the name of the first juror to be chosen on the list. Each subsequent name is obtained by adding the increment number to the starting number. For example, if the starting number is 37 and the increment number is 40, then the first juror chosen is juror number 37, the second is juror number 77, etc. Once the starting number is chosen, jurors are chosen systematically from the voter list according to the increment number. As specified in the Plan, the starting number at this stage was chosen by lot. During the 1977 refilling of the master wheel from which the Ellis grand jury was chosen, Senior United States Circuit Judge Warren L. Jones chose the starting number by lot.

3. In transferring names from the voter lists to the master wheel, the computer could make the actual selection only for Duval and St. Johns Counties, which maintain computerized voter lists. For the other counties in the Divisions, the Clerks chose names manually from the voter lists, using the starting number/increment number procedure. The names chosen were then keypunched and fed into the computer containing the master wheel. Supervisors of elections in the various counties supply the voter lists to the Clerk. However, the lists arrive in different conditions: some are computerized (Duval and St. Johns Counties), some alphabetized, some with the names listed in haphazard fashion. Once the master wheel is prepared, the Clerk never sees a printed list of names but receives only a computer tape.

4. In the second stage of the process, names are transferred from the master wheel to the qualified wheel, which contains the names of jurors qualified for jury service and not subject to an excuse or exemption. To fill the qualified wheel, questionnaires were sent to 6000 of the 60,000 jurors in the master wheel. Again, a starting number and increment number were chosen, the increment number as before, but the starting number by Mrs. Landreth herself, who testified that she simply picked a number between one and the increment out of her head without thought or hesitation. Once the questionnaires were returned, the Clerk separated those apparently qualified from those claiming excuse or exemption. A district judge reviewed each claimed excuse and exemption. Mrs. Landreth testified that several starting numbers were picked during the transfer process from master wheel to qualified wheel, but that she had no access to either the voter list or the master wheel list when starting numbers were chosen. She further testified that she had never been advised of any impropriety in her method of picking qualified jurors' names, nor heard of any court decision regarding such methods, until the decision of the United States District Court for the Northern District of Georgia in U. S. v. Alexander, No. CR 79-09 N (N.D.Ga., March 17, 1981). She further testified that no one had ever sought public access to any aspect of the jury selection process before defendant BUTT's motion was filed.

5. In the third stage of the jury selection process, a district judge orders the Clerk to choose a grand or petit jury panel from those names in the qualified wheel. As before, a starting number and increment number are chosen, this time by the jury selection clerk. Mrs. Suzanne Koch, the present jury clerk, testified that the Clerk posts notice of the upcoming selection in the public portion of the Clerk's office, on a bulletin board plainly visible to anyone entering through the public entrance door. Notice is posted several days before the starting number is chosen. Mrs. Koch's desk, where the number is chosen, is in plain view from the counter separating the public portion of the Clerk's office from the area reserved for court personnel. Once a starting number is chosen, a second notice is posted, this time specifying a date on which the panel would be chosen by the computer and indicating that the Clerk would make arrangements for anyone wishing to view the actual computer "run."

6. Mrs. Koch testified that she picked the starting numbers in the third stage of jury selection either out of her head or by asking a co-worker to pick a number between one and the increment. Although the Clerk's office had an alphabetized printout of qualified jurors from the master wheel, Mrs. Koch testified that she never consulted the list before picking a starting number. Since the increment number used usually did not divide evenly into the number of qualified jurors, a "remainder group" was created, consisting of those jurors remaining in the wheel when the increment had been divided into the total a whole number of times. Those jurors were then dropped from the selection of that particular panel. Although they had no chance to be picked in that selection, since they fell outside any incremental segment of the wheel, those jurors' names were put back into the wheel for the next drawing. (Mrs. Landreth testified that, following the Alexander decision, the remainder group problem had been addressed by enlarging the increment slightly to include those jurors formerly excluded when the quotient of increment into total was not a whole number. She also said that all starting numbers were now picked by drawing a number out of a box, rather than out of someone's head.)

7. Mrs. Victoria Clements, a deputy clerk and in 1979 the jury clerk for the Jacksonville and Ocala Divisions, testified that she had picked the starting number for the Ellis grand jury. At the time she did so, she occupied Mrs. Koch's present desk. She recalled only that she had either picked a starting number out of her head or asked a co-worker for a number in the proper range, using each procedure about half the time. She testified that she had posted public notice several days in advance of the number selection and of the computer run in Atlanta in accordance with the Clerk's regular procedure as described by Mrs. Koch (see Findings of Fact 5, supra).

8. Dr. Linda Foley, an associate professor of psychology at the University of North Florida in Jacksonville, testified for the defense. Dr. Foley, although she is not a statistician and holds no degree in statistics or mathematics, has done graduate work in applied statistics and computer science and teaches research methods in social psychology, where statistics are used extensively. Dr. Foley testified as to the random nature of the methods used...