“RULE OF EXCLUSION”
In order to establish that an “equal protection violation” has occurred in the context of grand jury selection, the defendant must show that:
- the procedure employed resulted in substantial under- representation of a particular class or identifiable group,
- such group is one that is a recognizable, distinct class, singled out for different treatment,
- the degree of under-representation must be proved by comparing the percentage of the group in the total population to the percentage called to serve as grand jurors over a significant period of time [i.e. 10 years].
See Castaneda v. Partida, 430 U.S. 495 (1977)(stating prima facia discrimination found in county where 76.1% of its population are Mexican-Americans, while the average percentage of that group on grand jury over the preceding 10 years was 39% and comprised 50% of the grand jury that indicted defendant);
US ex rel Barksdale v. Blackburn, 610 F.2d 253, 268 (5th Cir. 1980);
Berryhill v. Zant, 858 F.2d 633 (11th Cir. 1988) (holding where women made up 52.78% of population but comprised only 39.36% on the master jury list constituted under- representation of women about which male defendant could successfully assert a fair cross section complaint).
CAVEAT: Compliance with the Jury Selection and Service Act must be scrupulously maintained to make a successful objection to under-representation of a class. US v. Gerena, 677 F. Supp. 1266 (D. Conn. 1987) (holding defendant failed to file a sworn statement of facts supporting alleged under-representation).
And once a “presumption of discrimination” is raised by such a “statistical showing” the burden shifts to the prosecution to rebut same.
“Once the defendant has shown substantial under- representation of his group, he has made out a prima facia case of discriminatory purpose, and the burden shifts to the state to rebut that case.”
Castaneda v. Partida, 430 US 482 (1977);
Davis v. State, 374 SW2d 242, 242-4 (Tex. Cr. App. 1964);
State v. Neil, 457 S.W.2d 481 (Fla. 1984).
See also Ross v. Harper, 716 F.2d 1528 (11th Cir. 1983) (suggesting the prima facia tests for an equal protection claim and a fair cross-section claim are almost identical);
Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983) (holding the two tests differ however, in the way in which they can be rebutted).
Compare Castaneda v. Partida, 430 US 482 (1977) (stating that prima facie case rebutted under equal protection clause by proving absence of discriminatory intent), with Duren v. Missouri, 439 US 357 (yr.) (holding prima facie case rebutted under 6th Amendment by proving significant governmental interest justifying imbalance of classes).
Protestations that racial bias played no part in the selection are insufficient to meet the prosecution’s burden.
Castaneda v. Partida, 430 US 482, 498 n.136 (1977);
Alexander v. Louisiana, 405 US 632 (1972);
Hernandez v. Texas, 347 US 475 (1954).
Systematic exclusion or exemption of females from petit jury service denies defendant’s Fifth Amendment right to “due process” and Sixth Amendment right to jury comprised of a representative cross-section of his community.
Taylor v. Louisiana, 419 US 522 (1975) (stating Louisiana statute exempted women unless they volunteered);
Duren v. Missouri, 439 US 357 (1979).
A defendant need not be a member of class to complain of systematic exclusion.
Peters v. Kiff, 407 US 493 (1972) (holding white anglo has standing to complain of systematic exclusion of blacks);
Taylor v. Louisiana, 419 US 522 (1975) (stating that male has standing to complain of systematic exclusion of women from petit jury);
US v. Sneed, 729 F.2d 1333 (11th Cir. 1984);
US v. Cross, 708 F.2d 631 (11th Cir. 1983).
Cf Castaneda v. Partida, 430 US 482, 494 (1977) (holding language to the effect that “in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs”).
NOTE: The court in Cross stated that the language in Castaneda that a defendant must be a member of the under-represented group or race was “at best dictum”. US v. Cross, 708 F.2d 631, 633 (11th Cir. 1983).
An evidentiary hearing must be provided.
Coleman v. Alabama, 377 US 129 (1964).