Opposition — Gibson v. Missouri (Nos. 77-6701, 77-6856, 6088, 6553, 7012)

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SUPREME COURT OF THE UNITED STATES

TERM, 1978

O. 77-6701 \ »,

S

EN

le ee Nc

HERBERT BURNFIN, <

Petitioner, rf

Vv.

STATE OF MISSOURI,

Respondent.

ERTIORARI TO

orney General

PAUL ROBERT OTTO

Assistant Attorney General

Supreme Court Building

Post Office Box 899

Jefferson City, Missouri 65102

(341) 751-3321

ATTORNEYS FOR RESPONDENT.

Nanette Laughrey

Assistant Attorney General

of Counsel.

TABLE OF CASES _

State v. Herbert Burnfin, 560 S.W.2d 283 (1977);

Taysor ve Louisiana, 419 U.S. 522 (1975);

U.S. Const. amend. VI;

U.S. Const. amend. XIV;

Art. l, § 2Z2(b), Mo. Const.;

Section 494.020, RSMo 1969;

Section 494.031, RSMo 1969;

Chapter 497, RSMo 1969.

IN THE

SUPREME COURT OF THE UNITED STATES

_ TERM, 1978

NO. 77-6701

HERBERT BURNFIN

Petitioner,

Vv.

STATE OF MISSOURI

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE MISSOURI SUPREME COURT

BRIEF FOR RESPONDENT IN OPPOSITION

OPINION BELOW _

The opinion of the Missouri Supreme Court is reported at

560 S.W.2d 283. A copy of that opinion appears in the petitioner's

Appendix A.

JURISDICTION

On December 5, 1977. the Missouri Court of Appeals at

Kansas City entered its opinion affirming the petitioner's con-

victicn for one count of murder in the first degree. Thereafter,

on December 20, 1977, petitioner filed a timely motion for

rehearing. Petitioner's motion for rehearing was overruled

by the Missouri Court of Appeals on December 27, 1977. Peti-

tioner filed an application to transfer the cause to the Missouri

Supreme Court on January 11, 1978. The Missouri Supreme Court

denied the application for transfer on February 8, 1978.

The jurisdiction of the Court is invoked under Title 28,

United States Code, Section 125713).

QUESTION PRESENTED

Was the petitioner's right to a fair trial denied because

the Missouri Constitution gives women the right to avoid jury

duty by requesting an exemption?

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Sixth Amendment and the Fourteenth

Amendment to the United States Constitution, Article I, Section

22(b) of the Missouri Constitution, Section 494.020, Section

494.031 and Chapter 497 of the Missouri Revised Statutes cf 1969.

These constitutional provisions and statutes are set out in full

in the respondent's Appendix A.

STATEMENT _

The petitioner Herbert Burnfin was convicted of murder in

the first degree. Prior to his trial the petitioner filed a

motion to quash the jury venire claiming that it had not been

drawn from a representative cross-section of the community because

of the operation of Article I, Section 22(b) of the Missouri

Constitution. In support of his motion the petitioner intro-

duced evidence to show that women over 21 years of age comprised

54.4% of the population in Jackson County, Missouri; that of the

174 persons called to jury service the week of the petitioner's

trial, 21 were women; that petitioner's jury venire of 65 had 7

women; and the petit jury of 12 was totally male. Petitioner

introduced evidence that the percentages of women who appeared

for jury service in the months preceeding his trial were as

follows: June -- 15.9% women; July -- 15.18% women; August --

13% women; September -- 13% women; and October -- 10.9% woren.

On the basis of this evidence the petitioner's motion to quash

the jury was overruled. The issue of the constitutionality of

Article I, Section 22(b), was again raised before the Missouri

Court of Appeals at Kansas City. That court relying on State

v. Duren, 556 S.W.2d 11 (1977), upheld the petitioner's convic-

tion.

| ia EEE"

In order to fully understand the question presented by

this case, it is necessary to consider the jury selection system

which is employed in Jackson County, Missouri. That systen

begins with the voter registration list. From that list the

jury commissioner selects at random @pproximately 70,000 names. aA

questionnaire is then sent to each individual selected. A copy

of that questionnaire appears in Section 497.130, RSMo Supp. 1975,

respondent's Appendix A. Among other things, that questionnaire

notifies women of their right to be excusea from jury duty.

When these questionnaires are returned, the jury commissioner

eliminates all individuals whose questionnaire indicates that

they have exercised their right to be excused or that they are

unqualified to serve as jurors.* The remaining pool of names

is then entered into a computer and 25,000 names are randomly

Selected for the master jury wheel. If an individual fails to

return the questionnaire then the individual's name is auto-

matically included in the pool from which the master jury wheel

is selected. In Jackson County a new jury wheel is prepared

each year. i

Individuals are periodically selected from the master jury

wheel by computer to make up the general jury panel for all civil

and criminal divisions of the Jackson County Circuit Court. Jury

summonses are sent out to each one of those individuals randomly

selected from the jury wheel. These summonses notify women that

they have a right to be excused from jury duty. After receiving

the summons, the individual is given an Opportunity to present to

the circuit court reasons why he or she would be unable to serve

as a juror. All jurors who are not excused should appear in the

circuit court for jury duty. If a woman does not appear, it is

assumed that she has exercised her right not to serve. Venire

The text of this footnote will be found irurediately

following the “Respondent 's Appendix A", and numbered

"Page F.N. 1",

-

panels are then randomly selected from the individuals which

have appeared for jury duty and the petit jury is selected from

the venire panel.

ARGUMENT

I

The decision the Missouri Court of Appeals, Kansas City

of

of

District in State of Missouri v. Herbert Burnfin is not in con-

flict with this Court's decision in Taylor v. Louisiana, 419

U.S. 522 (1975).

In Taylor v. Louisiana, supra, this Court held that the

jury selection system employed by the State of Louisiana deprived

criminal defendants of their right to an impartial trial. ha.

Const. Art. VII, Section 41 (since repealed), sets out the con-

stitutionally offensive procedure:

“The legislature shall provide for the election

and drawing of competent and intelligent jurors

for the trial of civil and criminal cases;

provided; however, that no women shall be drawn

for jury service unless she shall have previously

filed with the clerk of the district court a

written declaration of her desire to be subject

6 such service. .. ."

This Court pointed out that this provision operated to system-

atically exclude women from jury service, and therefore,

deprived criminal defendants of a jury composed of a fair

cross-section of the community.

On the basis of the Taylor decision, the petitioner argues

that he was deprived of his right to a fair trial because Article

I, Section 22(b) of the Missouri Constitution allows women to

avoid jury duty by requesting an exemption. The Louisiana con-

stitutional provision cited and Article I, Section 22{(b) of the

Missouri Constitution, however, are readily distinguishable.

In Louisiana a woman was not eligible for jury service unless

she took steps to inform the court of her desire to serve as a

juror. In Missouri, on the other hand, women are automatically

included in the jury list. They are excused from jury service

only when they take affirmative steps to notify the court that

they do not wish to serve. The Missouri system of jury selec-

tion, therefore, does not exclude women. It merely allows an

exemption for those who choose to exercise it. In this Court's

opinion in Taylor, it stated that ". . . jury wheels, pools of

names, panels or venires from which juries are drawn must not

systematically exclude distinctive groups in the community and

thereby fail to be reasonably representative thereof." Taylor

v. Louisiana, supra at 538 (emphasis added). The petitioner

relies heavily on this language in Taylor and yet it is evident

from Article I, Section 22(b) of the Missouri Constitution thet

women in no way are excluded by the State of Missouri from serving

on juries. They are not even remotely inhibited from

serving on juries. It is solely their decision as to whether

they will exercise their right to be excused.

Taylor v. Louisiana also indicates that a defendant must

show that the jury wheels from which juries are chosen fail to

reasonably represent a cross-section of the community. Petitioner

has asserted that he has met the burden of proof imposed by Taylor

v. Louisiana. In Tavlor v. Louisiana, however, the evidence

showed that no more than 10% of the persons on the master jury

list were women, that only 12 women were among the 1,800

persons drawn to fill petit jury venires during the period when

the defendant was tried; and that the 175 member venire from

which the defendant's petit jury was in fact @rawn had no women

on it. In contrast, petitioner's own evidence shows that of the

174 persons who appeared for jury duty the week of petitioner's

trial, 21 were women and the panel from which his petit jury was

drawn contained 7 women. This composition could hardly be charac-

terized as almost totally male, the standard enunciated in Taylor

v. Louisiana. It seems clear that the situation in Taylor v.

Louisiana, was an extreme case which resulted from the state's

requirement that women take affirmative steps to participate

in the jury selection process effectively excluding women from

jury service. Such is not the case in Jackson County, Missouri.

II

This case is plagued with evidentiary problems which will

prevent this Court from reaching the question of whether the

defendant's right to a fair trial has been denied.

The petitioner alleges that the female jury exemption in

Missouri causes gross underrepresentation of women on jury panels.

The record in this case, however, does not show that there is any

relationship between Article I, Section 22(b), and the alleced

underrepresentation of women on juries in Jackson County. First,

the petitioner has failed to present eligible population statistics.

At the hearing on his motion for new trial, the petitioner intro-

duced the 1970 United States census figures which show that

Jackson County had approximately 407,000 inhabitants over 21

years of age and 54% of those inhabitants were women. The anr.ual

Jackson County jury selection process, however, begins with the

current voter registration list. No proof was made that the

sexes register to vote in direct relation to their numbers or

that there has not been a significant change in the makeup of

Jackson County, Missouri, between 1970 and 1975 when the peti-

tioner's jury was selected. As stated by the Missouri. Supreme

Court in State v. Duren, 556 S.W.2d 11 (1977):

"All of this suggests that statistics of

current ‘eligible population' referred to

in Alexander v. Louisiana, supra, not six

year old gross population figures, provide

the proper starting point."

More importantly, the petitioner has failed to produce any

evidence to show that the percentage of women who actually

appeared in court for jury service was less than the percentage

of women initially summoned for jury service because a substan-

tial number of women exercised their right. to drop out. of the

jury process solely because of their sex. Section 494.020, RSMo

Supp. 1975, provides exemption for groups other than women. For

example, clergymen, doctors, teachers, dentists, or any person

over sixty-five years of age are also entitled to automatic

exemption from jury service. It is possible that the alleged

disparity between the number of men and women on the petitioner's

yenire resulted from women exercising occupational or physical

exemptions. Furthermore, the petitioner has failed to show that

this numerical disparity was not the result of i ‘dom chance.

Hence, the petitioner's statistical evidence, standing alone,

fails to show that the petitioner's jury was not drawn from a

representative cross-section of the community because of the

number of women who exercised their right to excuse themselves

from jury service solely on the basis of their sex.

In Taylor v. Louisiana, supra at 524, the parties stipulated

that the "discrepancy between females eligible for jury service

and‘those actually included in the venire was the result of the

operation of the Louisiana Constitution." No similar stipula-

tion has been made in this case. F

IIit

The scope of the question presented by this petition is

so narrow that a decision by this Court will have little appli-

cation.

Only the State of Missouri and the State of Tennessee still

allow women an exemption from jury duty and the only place in the

State of Missouri that this issue has been raised is in Jackson |

County, Missouri. No complaint has been heard from any other

part of the State of Missouri, although this issue has been well

publicized. The scope of this petition therefore is so narrow

that review by this Court is not warranted.

ree

CONCLUSION

Wherefore, respondent respectfully requests this Court to

deny the petitioner's writ of certiorari to the Missouri Supreme

Court.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

NANETTE LAUGHREY

Assistant Attorney General

Supreme Court Building

Post Office Box 399

Jefferson City, Missouri 65102

(314) 751-3321

ATTORNEYS FOR RESPONDENT

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