noting that “if the use of voter registration lists as the origin for jury venires were to result in a sizeable underrepresentation of a particular class or group on the jury venires, then this could constitute a violation of a defendant’s ‘fair cross-section’ rights under the sixth amendment”
How later courts described this case
- noting that “if the use of voter registration lists as the origin for jury venires were to result in a sizeable underrepresentation of a particular class or group on the jury venires, then this could constitute a violation of a defendant’s ‘fair cross-section’ rights under the sixth amendment”
- rejecting argument that the use of voter registration lists as a source for grand jury venires is, in itself, a tool of discrimination
- outlining burden that must be met to show discrimination in the selection of grand jury forepersons
- minor statistical variations over five-year period insufficient
Written by the judges who cited it.
The opinion
JOHNSON, Circuit Judge,
dissenting:
I agree with the majority’s holding that the appellant failed to establish a prima facie case of racial discrimination in the selection of grand jury venires. But because I am unable to agree with its conclusion that she did not establish a prima facie case of sex discrimination in the selection of grand jury forepersons, I respectfully dissent.
As the majority suggests, the appellant must establish three elements in order to make out a prima facie case of discrimination in the selection of grand jury forepersons. First, the group allegedly discriminated against must be a distinct class. Second, the appellant must “prove the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve, here as foremen, over a significant period of time.” Guice v. Fortenberry, 661 F.2d 496, 499 (5th Cir. 1981) (en banc) (citing Castaneda v. Partida, 430 U.S. 482, 494 , 97 S.Ct. 1272, 1280 , 51 L.Ed.2d 498 (1977)). This second requirement is known as the “rule of exclusion.” Third, the appellant must support a presumption of discrimination “by showing that the selection procedure is susceptible to abuse or is not racially [or sexually] neutral.” Id. 1
In my opinion the appellant meets both the first and third requirements with little *1380 difficulty. 2 The majority points out that “blacks and women have long been recognized as distinct groups in our society.” 686 F.2d at 1376. And the law of this Circuit clearly requires us to find in this case that the appellant proved that the foreperson selection process was susceptible to abuse or was not sexually neutral. Recently this Circuit held in United States v. Perez-Hernandez, 672 F.2d 1380, 1387 (11th Cir. 1982) (per curiam), that when “[a] judge personally selected a foreman after a grand jury was empanelled” and when “[e]ach judge was able to determine the sex and race of the grand jury members before he made a selection,” the selection procedure was “susceptible to abuse.” The selection procedure in the case before us is identical to that in Perez-Hernandez in both these respects. As Justice White suggested in Rose v. Mitchell, 443 U.S. 545, 592 , 99 S.Ct. 2993, 3019 , 61 L.Ed.2d 739 (1979) (White, J., dissenting), when “the selection of a foreman is left to the complete discretion of a single person — the circuit judge [ — t]he potentialities for abuse ... are obvious.” 3 Cf. Castaneda, supra, 430 U.S. at 497 , 97 S.Ct. at 1281 (Texas “key man” system of selecting grand jurors found subjective and thus is susceptible to abuse); Whitus v. Georgia, 385 U.S. 545, 552 , 87 S.Ct. 643, 647 , 17 L.Ed.2d 599 (1967) (procedure for selection of grand jurors presented opportunity for discrimination where members were chosen from list which designated race of each person); Guice, supra (selection procedure of one judge, which permitted viewing of potential forepersons prior to selection, “clearly” satisfied third requirement of prima facie test). 4
Whether the appellant meets the second requirement under the “rule of exclusion” presents a closer question. She established positively that, in ten grand juries over the three and one half year period .prior to her indictment, the presiding judge in each case selected a white male as foreperson. I conclude that this evidence suggests a “degree of underrepresentation” over “a significant period of time” sufficient to make out a prima facie case of sex discrimination.
The majority finds the appellant’s statistical evidence defective because “[a] test *1381 sample of only ten selections from a brief three and one half year period simply is not sufficiently large to allow a meaningful statistical comparison.” I cannot agree with this conclusion. Although it is certainly true that no “magic formula ... can be applied to every factual situation in resolving the question of discrimination,” 686 F.2d at 1376, the statistical evidence before us compares favorably to evidence that was found sufficient in other cases to establish a prima facie case. If the probability in this case of selecting a female foreperson in any one grand jury is 50%, the probability of selecting zero female forepersons out of ten grand juries is more than one thousand to one. 5 Cf. United States v. Manbeck, 514 F.Supp. 141, 149 (D.S.C.1981) (defendant established prima facie case of discrimination where court had selected three women after eighteen selections; probability found by court to be 292 to 1). Moreover, the absolute disparity between the percentage of women chosen as forepersons (0%) and the percentage of women in the total population (say 50%) is 50%. This is far greater than the disparities that the Supreme Court has held sufficient to establish a prima facie case of discrimination. See, e.g., Turner v. Fouche, 396 U.S. 346 , 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970) (23% disparity); Carter v. Jury Commission, 396 U.S. 320 , 90 S.Ct. 518 , 24 L.Ed.2d 549 (1970) (33% disparity); Jones v. Georgia, 389 U.S. 24 , 88 S.Ct. 4 , 19 L.Ed.2d 25 (1967) (25.7% disparity); Whitus v. Georgia, 385 U.S. 545 , 87 S.Ct. 643 , 17 L.Ed.2d 599 (1967) (33.5% disparity). In Perez-Hernandez, supra, 672 F.2d at 1387 , this Circuit found that when five out of fifty forepersons — ten percent — were women, the “disparity [approximately 40%] clearly satisfies the second part of the prima facie test.” See also United States v. Breland, 522 F.Supp. 468, 479 (N.D.Ga.1981) (a “47.1% absolute disparity between the percentage of female foreperson [sic] and females in the district’s jury-eligible population is ... clearly sufficient to establish a prima facie case of gender discrimination in the selection of forepersons”).
Perhaps the most telling aspect of the evidence in this case, however, does not involve probabilities or absolute disparities. Many of the courts that have held that a prima facie case was established had before them evidence that at least some of the members of the group allegedly discriminated against had in fact been selected. In our case, however, not a single woman was selected. As the former Fifth Circuit said recently, “statistics are not, of course, the whole answer, but nothing is as emphatic as zero.... ” Guice, supra, 661 F.2d at 505 (quoting United States v. Hinds County School Board, 417 F.2d 852, 858 (5th Cir. 1969)). 6
In part for these reasons, I conclude that evidence from ten grand juries is a large enough sample to make it “unlikely that [the disparity] is due solely to chance.” Castaneda, supra, 430 U.S. at 494 n.13, 97 5. Ct. at 1280 n.13. Cf. United States v. Holman, 510 F.Supp. 1175, 1179 (N.D.Fla.1981) (evidence as to selection of foreper *1382 sons from eleven grand juries is large enough statistical sample for prima facie case). The numbers in the grand jury membership cases of course are larger, as the majority suggests. But the fact that only two to three forepersons are selected each year requires that a court be somewhat more lenient with statistical requirements. 7 This is particularly warranted in this case, in which we are faced with an easily manipulated selection process. In any event, holding, as I would, that a defendant may sometimes establish a prima facie case of discrimination on the basis of evidence from ten grand juries does not prevent the government from arguing that the quantum of evidence required to rebut such a case should be less than that required when a defendant relies on statistics from 25-30 grand juries.
Once a prima facie case is established, the burden of proof shifts to the government. Guice, supra, 661 F.2d at 600 . The record in this case reflects the fact that the trial court reserved ruling as to whether the appellant established a prima facie case, and the government proceeded to call its own witnesses in rebuttal. Record at 12. Counsel for both parties confirmed this during oral argument. Apparently, then, the government was given the opportunity to present evidence such as that found sufficient to rebut the defendant’s case in Perez-Hernandez, supra. But the government failed to call any judges or other witnesses who could testify as to the criteria for selection of grand jury forepersons. 8 Accordingly, I would find that the government failed to rebut the appellant’s prima facie case.
I would reverse the order of the district court and grant the writ.
. Initially, the appellant, who is a black woman, also alleged racial discrimination in the selection of forepersons. She conceded in her brief before this Court, however, that the statistics supporting this allegation do not permit an “inference as overwhelming as that in the case of discrimination in the selection of women forepersons.” Because I find the appellant’s claim of sex discrimination sufficient grounds to reverse, I do not discuss the racial discrimination claim.
. The majority does not discuss the issue of whether the appellant satisfied the third requirement, presumably because it holds that she failed to make out a prima facie case under the second requirement. This Court’s holding that the use of voter registration lists as a source of grand jury venires is not a “tool of discrimination,” 686 F.2d at 1378, of course is not determinative of the issue as it pertains to the selection process for grand jury forepersons. In Florida the presiding judge selects a foreperson from the membership of the grand jury once it has been empanelled. Fla.Stat. Ann. § 905.08 (West 1973). Thus, even if the selection process for grand jury members is race- and sex-neutral, the issue involving the selection of forepersons requires an independent determination.
. The opinion of the Court' in Rose did not reach the question whether the selection procedure under review was susceptible to abuse because it found that the statistical evidence failed under the second requirement to support a prima facie case of discrimination. See 443 U.S. at 566 , 99 S.Ct. at 3005 .
. I note that in order to find that the appellant has satisfied the third requirement, this Court need not find “a conscious, concerted plan not to select [female] foremen,” as both the Magistrate below and the Florida Supreme Court suggested. See Bryant v. State, 386 So.2d 237 , 240 n.4 (Fla. 1980). The test as stated in Guice requires only “a selection process that is susceptible of abuse or not [sexually] neutral.” (emphasis added). This language requires neither a “plan” to discriminate nor “conscious” discrimination. Moreover, a finding as to the third requirement does not imply, as the government suggested in its argument, that the state must substitute its current selection procedures with random selections. The third requirement as stated in Guice means only what it says — if the selection process is not race- or sex-neutral or if it is Susceptible of abuse (meaning that there may exist some opportunity for abuse), then a court will give weight to independent statistical evidence of discrimination. In other words, a finding of prima facie discrimination casts no aspersions on a particular method of selection unless corroborating statistical evidence is found. Once the statistical discrepancy disappears, the state is free to employ the selection process of its choice. In addition, the government is always free to rebut a defendant’s case by presenting evidence that the criteria used by judges in selecting forepersons were race- and sex-neutral. See United States v. Perez-Hernandez, 672 F.2d 1380, 1387-88 (11th Cir. 1982) (per curiam).
. If the grand jury is composed of 50% women, the probability of not selecting a woman out of ten grand juries is one in :vio. or 1/1,064.
Actually, statistical calculations based on the assumption that women constitute 50% of the population or that 50% of the grand jury members are women significantly understates the underrepresentation of women as forepersons in the case before us. The appellant’s statistics for Palm Beach County indicate that women represented approximately 54% of the population during the years in question. Second Supplemental Record at 87. Moreover, an examination of the first names of the members of the ten grand juries in question reveals that of 180 total grand jury members (18 members per grand jury), 99 were women and only 81 were men. Second Supplemental Record at 48-59.
. The majority also implies that whatever harm may have been caused by the underrepresentation of women is undercut by the fact that the duties of a foreperson “appear to be only ministerial and relatively unimportant.” 686 F.2d at 1378 n.5. This is not the place to go into a discussion of whether the foreperson, by virtue of his or her position and the fact that he or she was selected by the presiding judge, holds unique persuasive powers over his or her peers. I note only that this Circuit recently rejected an argument that attacks on the selection of forepersons should not be permitted because the position of grand jury foreperson is “constitutionally insignificant.” Perez-Hernandez, supra, 672 F.2d at 1386 .
. Also relevant should be whether there is evidence that a female foreperson was selected at any time prior to the period immediately under review. In the case before us, the government offered no evidence that a woman foreperson has ever been selected in Palm Beach County.
. The witnesses called by the government testified as to the selection process for the grand jury venires, but not the criteria for selection of forepersons.