Petitioners Reply Brief — Duren v. Missouri

Sseume Court, b. 3

FILED

oct 2@ i9fe

1 oe

FOR ARGUMENT

| MICHAEL ROBAK, JRCLERK

— =

IN THE

Supreme Court of the United States

OctroBer TERM, 1977

No. 77-6067

i -

Brtty Durex,

Petitioner,

—_V.—

STATE OF MissourRI,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSOURI

REPLY BRIEF FOR PETITIONER

RutyH Bapver GrnsBurG Lee M. Nation

KATHLEEN WILLERT PeEratTis JaMes W. FLETCHER

American Civil Liberties Kevin Lockre

Union Foundation Assistant Public Defenders

22 East 40th Street 1305 Locust, Suite 202

New York, New York 10016 Kansas City, Missouri 64106

Attorneys for Petitioner

INDEX

PAGE

ARGUMENT:

I. IN JACKSON COUNTY, MISSOURI,

THE WOMAN WHO DOES NOT SEEK

JURY SERVICE IS ROUTINELY

LEFT OUT IN THE SELECTION

PROCESS; NO AFFIRMATIVE STEP

IS REQUIRED ON HER PART, SHE

IS AUTOMATICALLY DEEMED UN-

AVAILABIS <6. 6 6s © 408 * ee eee

II. THE CONSTITUTION'S FAIR

CROSS-SECTION REQUIREMENT IS

VIOLATED WHEN (1) A SIGNIF-

ICANT DISPARITY EXISTS

BETWEEN THE DEMOGRAPHIC PAT-

TERNS IN A COUNTY AND THE

RELATIVE PERCENTAGES OF EACH

COGNIZABLE DEMOGRAPHIC GROUP

ON THE JURY LISTS, (2) A NON-

NEUTRAL SELECTION CRITERION

IS EMPLOYED, AND (3) THE

STATE ESTABLISHES NO JUSTI-

FICATION FOR THE DISPARITY

OR THE CRITERION ee ee ar a ee a

III. SELECTION OF A PETIT JURY

FROM A REPRESENTATIVE CROSS

SECTION OF THE COMMUNITY IS

| PART OF THE DEFINITION OF

THE CONSTITUTIONALLY-MANDATED

4 JURY TRIAL RIGHT; "HARMLESS

* ERROR" ARGUMENT IS THEREFORE

: AS INAPPOSITE HERE AS IT WAS

4 IN PETERS v. KIFF, 407 U.S.

4 493 (1972), AND TAYLOR v.

LOUISIANA, 419 U.S. 522 (1975) ..7

ii

A oe i ae i a ae ae a ree

APPENDIX ° ° ° ° ° ° ° ° ° ° ° . . . A-1

TABLE OF AUTHORITIES

Cases:

Berry v. Cooper, 477 F.2d 322

foes CAPs 2Pre). ss 2 6 6 ee oo 6 2 ©

Califano v. Goldfarb, 430 U.S. 199

(1977) es ° 7 e se ° a e oe es ° e e es ° e 3

Castaneda v. Partida, 430 U.S. 482

(1977) se e se s « @ - o o — e es e . e 6

Combs v. Missouri, No. 77-7012

(cert. filed June 30, 1978) «e226 « + 3

Duncan v. Louisiana, 391 U.S. 145

(1968) e e e e o . es e e e ° e s° e . e 9

Peters v. Kiff, 407 U.S. 493

S2STal «6 ak eee SO ae Se Oe el Fees

Porter v. Freeman, 577 F.2d 329

(5th Csr. 1978) > e se e o o ° e e 3,4,6

Taylor v. Louisiana, 282 So.2d

491 (1973) e s es e e e eo e e e e e e es 8

Taylor v. Louisiana, 419 U.S. 522

[adeeb 4 0 6 ho soe & ee eH es oS. BSS

iii

Williams v. Florida, 399 U.S. 78

(1970) . . > oe o ° o . 2 e . .

State Legislation:

Mo. Const, Art. I, 8 22th)...

Mo. Rev. Stat. § 494.080 . ..« «

Mo. Rev. Stat. § 497.130 (Supp.

1975) ° e e e « e ° « * * e o

Other Authorities Cited:

Brief of Louisiana, Appellee,

Tayior V. LOUISIANA «+. + ss

Mause, Harmless Constitutional

Error: The Implications of

Chapman v. California, 53 Minn,

& Rew. S49 (2060) « «& se ®

Memorandum for the United States

as amaeus Curige «'s © « 6 © @

Report of St. Louis County

Director of Court Adminis-

tration Robert G. Ruhland,

Computer Expected to Speed Up

Trial System, June 12, 1978 .

PAGE

12

12

5,6

IN THE

SUPREME COURT oF tHE UNITED STATES

October Term, 1977

No. 77-6067

BILLY DUREN,

Petitioner,

Ve

STATE OF MISSOURI,

Respondent,

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF MISSOURI

REPLY BRIEF FOR PETITIONER

I,

IN JACKSON COUNTY, MISSOURI, THE

WOMAN WHO DOES NOT SEEK JURY SER-

VICE IS ROUTINELY LEFT OUT IN THE

SELECTION PROCESS; NO AFFIRMATIVE

STEP IS REQUIRED ON HER PART, SHE

IS AUTOMATICALLY DEEMED UNAVAIL-

ABLE.

In a vain attempt to diminish

Taylor v. Louisiana, 419 U.S. 522 (1975),

2

respondent presses a distinction between

Louisiana's former opt-in system for

women jurors, and Missouri's opt-out vari-

ant. In Missouri, respondent asserts,

women “are excused from jury service only

when they take affirmative steps to notify

the court that they do not wish to serve."

n.Br. 8. Incredibly, in light of undis-

puted fact, the point is pushed with spe-

cific reference to the county involved here:

"In Jackson County . .. [fe]Jach year [a wo-

man] must take affirmative steps to avoid

jury duty." R.Br. 4. But whatever efforts

may be made in other parts of the state to

encourage women to serve,~ it is crystal

1, g., in St. Louis, where the case described in

R.Br. 12 n.5 (opinion set out R.Br. App. B) was tried.

Absent from respondent's reference to recent St.

Louis experience is any acknowledgement of large dif-

ferences in post-Taylor practices of jury commission-

ers there and in Jackson County, where petitioner

Duren was tried. First, the questionnaire set out in

Mo. Rev. Stat. § 497.130 (Supp. 1975), eliciting the

sex of the addressee and three times flagging the ex-

pendability of females as jurors, is mandated for

Jackson County only. Second, respondent has not con-

sidered it appropriate to inform this Court whether,

outside Jackson County, jury commissioners follow the

convenient practice, adhered to in Jackson County, of

excluding from service any woman who fails to appear

* in response to the summons. See A. 17-18, 20, 34.

Asked to amplify R.Br. 12 n.5, respondent would

no doubt confirm that 1) the Jackson County question-

naire is not used in St. Louis, and 2) women in St.

Louis are not assumed by their silence when summoned

to have opted out. Cf. Report of St. Louis County

Director of Court Administration Robert G. Ruhland,

(footnote continued)

3

clear that Jackson County requires no step

of any kind on the part of a woman who does

not seek service.

On the contrary, the Jackson County

woman who, like her pre~-1975 counterpart in

Louisiana, does nothing at all, never

appears on a jury venire. If she returns

no questionnaire, and does not respond to a

jury service summons, then by respondent's

own admission, she is deemed to have "ex-

ercised her right not to serve." R.Br. 5;

A. 17, 20. In short, far from requiring

females to step forward and affirmatively

claim exemption, the Jackson County system

leaves women out, unless they take affir-

mative steps to be included. A man who

ignores’ a jury summons is subject to punish-

ment for contempt;* a woman who does the

same thing is chivalrously deemed unavail-

able. A.417, 20. But see Porter v. Free-

Sem. ces) ©.20 3229, 332n.7 (Sth Cir. 1975)

T"Indeed, any presumption against women's

availability for jury service would run

afoul of Taylor v. Louisiana ... .").

Beyond question, a system so rooted in "a 3

traditional way of thinking about females"

deliberately limits the kind of juror likely

to hear a case.

(footnote continued)

Computer Expected to Speed Up Trial System, June 12,

1978, at 1, 16-18 (in St. Louis County, both ques-

tionnaire and summons use sex-neutral terms; neither

indicates any woman's exemption).

2see Mo. Rev. Stat § 494.080.

3califano v. Goldfarb, 430 U.S. 199, 223 (1977)

(Stevens, J. concurring opinion).

4

II,

THE CONSTITUTION'S FAIR CROSS-

SECTION REQUIREMENT IS VIOLATED

WHEN (1) A SIGNIFICANT DISPARITY

EXISTS BETWEEN THE DEMOGRAPHIC

PATTERNS IN A COUNTY AND THE

RELATIVE PERCENTAGES OF EACH

COGNIZABLE DEMOGRAPHIC GROUP ON

THE JURY LISTS, (2) A NON-NEUTRAL

SELECTION CRITERION IS EMPLOYED,

AND (3) THE STATE ESTABLISHES

NO JUSTIFICATION FOR THE DIS-

PARITY OR THE CRITERION.

It bears emphasis that the Jackson

County figures introduced in this case

were undisputed: less than 30% of the per-

sons on the 1976 master wheel, and only

some 15% of those appearing for jury duty,

were women. This, according to respondent,

is a "fair cross section." R.Br. 5-6. It

should suffice to point out that a propor-

tion double that of Jackson County has been

authoritatively held a substantial under-

representation establishing a prima facie

case under this Court's precedent. Porter

v. Freeman, 577 F.2d 329, 332 (5th Cir.

1978) (female population 53.8%, female rep-

resentation on jury roll 33.4%).

In an argument of extraordinary

fancy, respondent asserts the absence of an

established causal link between the low

"percentage of women who actually appeared

in court" and the multiple, sex-specific

drop-out invitations extended to Jackson

County females. R.Br. 15. Carrying the

Caprice further, respondent suggests that

5

this Court indulge an inference "from the

evidence" that women "excused after receiv-

ing the summons had reasons other than

their sex-related exemption." R.Br. 17.

But precisely the opposite inference is

made in Jackson County: a woman who does

not appear in response to the summons is

assumed to have exercised her sex-related

exemption. A. 17-18, 20, 34. Indeed, the

assumption in which respondent now seeks

refuge, i.e., that generally women who dis-

regard the summons may be deemed to qualify

for a sex-neutral (occupational or age) ex-

emption (R.Br. 15), is patently insuppor-

table. A stipulation between Prosecuting

Attorney and Public Defender in a contem-

poraneous Jackson County case raising the

same sixth/fourteenth amendment issue,

Combs v. Missouri, No. 77-7012 (cert. filed

June 30, 1978), is revealing in this regard.

The stipulation, which is appended to the

petition for certiorari in Combs, shows

that of 30,165 women who returned question-

naires used to compile the 1976 Jackson

County master jury wheel, only 3,342 affir-

matively indicated a willingness to serve,

smaller numbers indicated any basis for

occupational, age or infirmity exemptions,

but 21,884 (approximately 72.5%) indicated

they “declined to serve for no other eal

ent reason than the female exemption."

Moreover, as the Memorandum for the

‘

4The relevant portion of the stipulation in

Combs is set out in an Appendix to this Reply Brief.

For a similar reference to a stipulation in a re-

lated case, see this Court's opinion in Taylor v.

Louisiana, 419 U.S. 522, 524 & n.3 (1975).

6

United States as Amicus Curiae 22 n.28

graphically demonstrates, most of the oc-

cupations for which Missouri accords ex-

emption are predominantly male. Further,

there is no significant difference between

the voter registration rate of Missouri

women and men. P.Br. 4n.2. And most sig-

nificantly, experience in other states and

in the federal courts makes it apparent

that, despite a range of occupational ex-

emptions as well as age, physical infirmity

and child-care excuses, women serve in dra-

matically high numbers so long as no sex-

specific, nonfunctional exemption is used

to beckon them to avoid service. See Memo-

randum for the United States, supra, 29

n.35; P.Br. 24 n.23; 556 S.W.2d at 24 (dis-

senting opinion); Porter v. Freeman, supra.

Given the gross underrepresentation

of the largest cognizable group in the com-

munity, and the concededly non-neutral se-

lection system Jackson County employs, the

burden was cast on respondent to rebut

petitioner's clear showing of a violation

of the fair cross-section rule. See

Castaneda v. Partida, 430 U.S. 482, 495-99

(1977); Berry v. Cooper, 477 F.2d 322, 327

(Sth Cir. 1978). It is hardly surprising

that respondent attempted no such rebuttal.

Nor is it any wonder that even before this

Court, respondent offers no justification

whatever for the multiple invitations not

to serve extended to every jury-eligible

woman in Jackson County. The only genuine

explanation for the gross underrepresenta-

tion of females is Jackson County's fully

automatic exemption for "any woman." And

surely the Constitution's requirement of a

fair cross section is not so toothless as

to permit under the guise of "privilege"

=?

a)

7

automatic exemption for any large cogniza-

ble class, whether women, men, blacks,

whites, Mexican-Americans.

In sum, the statistics before the

Court lead inexorably to this conclusion:

week after week in Jackson County criminal

defendants are subjected to jury panels on

which women are grossly underrepresented

because they are 1) told they need not ;

serve, 2) invited by questionnaire and sum-

mons to mail in their election not to serve,

and 3) ultimately assumed, when they are si-

lent, to decline to serve on the basis of

their sex. Petitioner Billy Duren was

tried for a serious crime. The Constitution

guarantees him a jury drawn from a fair

cross section of the community. Women con-

stitute 54% of Billy Duren's community; they

accounted for 9.4% (5 out of 53) of the

panel from which his all-male jury was se-

lected. The notion that the fair cross-

section requirement was met in Billy Duren's

case defies reason.

ITT,

SELECTION OF A PETIT JURY FROM A

REPRESENTATIVE CROSS SECTION OF THE

COMMUNITY IS PART OF THE DEFINITION

OF THE CONSTITUTIONALLY -MANDATED

JURY TRIAL RIGHT; "HARMLESS ERROR"

ARGUMENT IS THEREFORE AS INAPPO-

SITE HERE AS IT WAS IN PETERS v.

KIFF, 407 U.S. 493 (1972), AND

TAYLOR v. LOUISIANA, 419 U.S. 522

(1975).

8

Taylor v. Louisiana leaves no cor-

ridor for respondent's argument that "vio-

lation of the cross-sectional standard"

must go unchecked absent proof Duren was

harmed thereby (R.Br. 6, 17-19). In Taylor,

the Louisiana Supreme Court emphasized that

defendant, a man charged with an aggravated

kidnapping involving two women and a child,

had "shown no prejudice" chargeable to

Louisiana's exemption of women from jury

service. 282 So.2d 491 (1973). Before

this Court, the Louisiana Attorney General

argued repeatedly that absent a showing of

harm, Taylor*s conviction should not be set

aside "on the basis that there were not

enough women on the jury roles [sic]."

Brief of Louisiana, Appellee, Taylor v.

Louisiana, at 18. The point was made with

unmistakable clarity:

[Taylor] makes no allegation that,

had women been included, his trial

would have been any more fair or im-

partial, nor that their absence

caused him any harm. Id. at 17-18.

[W] here we are dealing not with a

prohibition against a class, but

with an exemption, and not with

racial discrimination, the State of

Louisiana contends that appellant,

who is not a member of the alleged

absent class, must show some pos-

sibility of harm or prejudice to

himself in order to have his con-

viction reversed. Id. at 2l.

See also id. at 22-23 for further argument

by Louisiana of the same style, content and

quality.

9

Mr. Justice Rehnquist, sole dissen-

ter in Taylor, observed (419 U.S. at 538-

39):

The Court's opinion reverses

a conviction without a suggestion,

much less a showing, that the appei-

lant has been unfairly treated or

prejudiced in any way by the manner

in which his jury was selected ....

Later, in his concise dissenting opinion,

he reiterated: "[{T]he criminal defendant

involved makes no claims of prejudice or

bias." 419 U.S. at 542. And, in conclu-

sioz. he stated: "Absent any suggestion

that appellant's trial was unfairly con-

ducted, or that its result was unreliable,

I would not require Louisiana to retry

him....” 419 U.S. at 543. But eight

members of this Court firmly rejected that

position. Citing Peters v. Kiff, 407 U.S.

493 (1972), the majority held Taylor was

entitled to tender and have adjudicated the

claim that he was constitutionally entitled

to a jury drawn from a venire constituting

a fair cross section of the community. 419

U.S. at 526. The Court emphasized that "the

selection of a petit jury from a representa-

tive cross section of the community is an

essential component of the Sixth Amendment

right to a jury trial" (made applicable to

the states via the fourteenth amendment).

419 U.S. at 528. Absence of this essential

Respondent (Br. 10-12) appears to tender the

argument, extraordinary after Duncan v. Louisiana,

391 U.S. 145 (1968), Williams v. Florida, 399 U.S.

(footnote continued)

10

component, regardless of the quality of the

criminal proceeding in other respects, ne-

cessitates reversal of the judgment below.

In sum, as Peters and Taylor exem-

plify, this Court has never suggested that

a ruling on the constitutionality of a jury

selection system turns on any showing of

prejudice to the defendant. For a state's

failure to adhere to the fair cross-section

requirement in a particular case is inher-

ently indeterminable in prejudicial impact.

(footnote continued)

78 (1970), and, most particularly, Taylor v. Louisi-

ana, 419 U.S. 522, 530 (1975), that only the con-

cept of “ordered liberty," not sixth amendment

strictures, should be the focus of decision. The

court below entertained no such misapprehension. It

recognized, as this Court's precedent requires it to,

that the issue is the fourteenth amendment due pro-

cess principle "as that principle embodies fulfill-

ment of the Sixth Amendment [jury trial guarantee]."

556 S.W.2d at 11 (emphasis supplied). It is far too

late in the day to invite the Court to restore in

this area the amorphous, ad hoc approach of deter-

mining, based on the peculiar circumstances sur-

rounding each individual case, whether "ordered lib-

erty"’ has been undermined.

6It is hardly surprising that respondent, as

prosecutor, views the evidence as "overwhelming,"

sufficient to establish guilt beyond a reasonable

doubt "regardless of the composition of the jury."

R.Br. 18-19. But it is not the prosecutor's func-

tion to make that judgment. Nor is it the function

of a judge. Petitioner denied his guilt, asserted

a defense, and called witnesses who testified to his

(footnote continued)

11

Judicial speculation on the result had de-

fendant been accorded his constitutional

right in regard to jury selection not only

would impose on appellate courts a function

inappropriate for them,’ it would be tanta-

mount to a directed verdict of "guilty."

See Mause, Harmless Canstitutional Error:

The Implications of Chapman v. California,

53 Minn. L. Rev. 519, 541-42 (1969). In

accordance with this Court's long and

(footnote continued)

absence from the scene of the crime. The sixth

amendment safeguards his right to have a jury, drawn

from a fair cross section of the community, not the

prosecutor or the judge, determine witness credibil-

ity and the weight each item of evidence merits.

Following the trail respondent takes, a jury

selection system, however discriminatory, would be

invulnerable, indeed, the jury could be dispensed

with entirely, so long as the prosecution persuaded

the judge evidence of guilt overwhelmed. But regard-

less of the strength of the prosecutor's case, a

criminal defendant in our system is entitled under

the Constitution to a jury trial; by definition,

that means a jury drawn from a fair cross section of

the community.

one the formidable task of divining in every

appeal involving a challenge to the composition of

a jury, how a different jury--one selected in a man-

ner consistent with the Constitution, potentially

including persons from a group or groups left out at

trial--might conceivably respond. A seer might find

herself equal to the task; a judge who cannot see

through the eyes of another, particularly one of

dissimilar sex, race, background and experience,

should find the assignment impossible.

12

consistent treatment of the question,

therefore, a harmless error rule may not

be applied in this case,

CONCLUSION

For the reasons presented by peti-

tioner, the decision below should be

reversed, and the jury service exemption

for "any woman" mandated by Mo. Const. Art.

I, § 22(b), and Mo. Rev. Stat. § 494.031(2}

should be declared unconstitutional.

Respectfully submitted.

LEE M. NATION

JAMES W. FLETCHER

KEVIN. LOCKE

Assistant Public Defenders

1305 Locust, Suite 202

Kansas City, MO 64106

RUTH BADER GINSBURG

KATHLEEN WILLERT PERATIS

American Civil Liberties

Union Foundation

22 East 40th Street

New York, NY 10016

Attorneys for Petrtioner

October, 1978

APPENDIX

A-2

APPENDIX

Extract from Stipulation appended to the

petition for certiorari in Combs v. Mis-

souri, No. 77-7021 (cert. filed June 30,

1978)

[The Stipulation, dated December 14, 1976,

and filed in the Circuit Court of Missouri,

Sixteenth Judicial Circuit, is signed by

Assistant Prosecuting Attorney George Ely,

Jackson County Courthouse, Kansas City,

Missouri, and Assistant Public Defender

William Lopez, Kansas City, Missouri.]

3. On February 4, 1976, the Office of the

Public Defender for the Sixteenth Judicial Cir-

cuit was authorized to obtain from the Jackson

County Circuit Court Administrator all "Official

Notice and Questionnaire" forms which were re-

ceived, processed and used to compile the 1976

Jury Wheel for Jackson County. On February 11,

1976, the Office of the Public Defender received

all such questionnaires from the Office of the

Circuit Court Administrator.

The questionnaires were so sorted to sepa-

rate those sent to males from those sent to

females. Questionnaires sent to females were

sorted to determine the following information and

counted in each category thereby obtaining the

following totals:

Total Number of

Category Questionnaires

Information on the face of the

questionnaire showing that the

woman was no longer a resident

of Jackson County, Missouri 817

A-3

[Total Number of

[Category] Questionnaires]

Female government employees who

indicated they would not

serve

Female professionals, includ-

ing clergy, who indicated

they would not serve

Females who indicated prior

jury service on the question-

naire (Line 12) but indicated

they were willing to serve

Females who indicated prior jury

service but were not willing to

serve

Female teachers who indicated

they would not serve

Questionnaires indicating that

the addressee was in a nursing

home

Questionnaires indicating in

Line 11 that the woman was

physically unable to serve or

some other written indication

of physical infirmity such as

loss of hearing, or who indi-

cated they were ineligible

under the statutes

Questionnaires showing that the

woman was over 65 years of age

and with no affirmative indi-

cation of willingness to serve

21

93

132

20

437

50

1,106

2,059

A-4

[Total Number of

[Category] Questionnaires]

Questionnaires showing that the

woman was under 21 years of age 151

Questionnaires returned with

the notation that the

addressee was deceased 53

Questionnaires indicating

that the woman declined to

serve for no other apparent

reason than the female ex-

emption 21,884

Questionnaires with affirma-

tive indications that the

woman would serve, or without

any indication of refusal 3,342

4, The Court may take judicial notice of

the Department of Commerce, Bureau of Census,

statistics contained in attached Exhibit "E,"

which is hereby incorporated by reference, en-

titled "General Population Characteristics."