Petition — Porro v. New Jersey
Supreme Court brief1978
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In the Supreme Court-6* the
United States
October Term, 1978
Aurrep A. Porro, Jr. and
THOMAS JONES,
Petitioners,
Vv.
STATE OF NEW JERSEY
Petition for a Writ of Certiorari
to the Superior Court of New Jersey
Bernarp L. SEGAL
536 Mission Street, Suite 220
San Francisco, California 94105
MicHaeL A. QUERQUES
501 Central Avenue
Orange, New Jersey 07050
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO #4108
INDEX
Page
hE Oe LS Sd EE RE REO 2
a cl cal eedanlintcietecinionene 2
Constitutional and Statutory Provisions Involved ...... 3
I a tla lan ss eebidocet 3
I i oaidiks a hscuienaainentinscasioanestances seen eiiieeiuiacsimanedastbisinits +
Tee Question is Bubatamtiol nesses enn 9
Sanh A AEE Te ROO 9
The right to a jury which is a fair cross-section of
the community is a matter of fundamental im-
IN 7 ca Ribbaiedbeici Udiancektadldessaeuibcasninniticwinjescnaltienasant cee
A jury is not representative of a cross-section of
the community where distinctive groups of
significant size are excluded, .................2:ce:ceeeeeeeeeeee 11
The exclusion of distinctive groups from partici-
pation in the jury process casts doubt on the
integrity of the entire judicial process. -................... 13
The exclusion of members of a cognizable group,
even for benign purposes, results in a presump-
tively invalid jury system. ..............c..ccccseccccssccsseseeseee 14
The automatic exclusion of all students cannot be
justified by assuming t)at it is for the benefit of
the class or for the administrative convenience of
IR cea cesttamsnenentbaten 17
Lower courts are divided on the question of whether
students must be recognized as a cognizable group
under the Sixth Amendment. .............2.......ce--eseeeceeeeees 19
a ELT ES a ne a ae 21
CITATIONS
CASES Pages
Andersen v. Casseles, 531 F.2d 682 (2d Cir. 1976) ...... 9, 20
Apodaea v, Oregon, 406 U.S. 404 (L972) 2... 10
Arnold y. North Carolina, 376 U.S. 773 (1964) -........... 15
Avery v. Georgia, 345 U.S. 559 (19535) ..............-.ccecessenes 1)
Ballard v. United States, 329 U.S. 187 (1946) ........... 12
Brown y. State, 58 Wis.2d 158, 205 N.W.2d 566 (Sup.
OR DY iain ret prerieeenepnenneeinnanditions 20
Carroll v. Cobb, 189 N.J.Super. 439, 354 A.2d 355
A TE ereictinertnvcecinticsnteniedirimatiieasorensseen 20
Carter v. Texas, 177 U.S. 442 (1900) ..............ccccscescceceees 10
Caswell v. Texas, 339 U.S. 282 (1950) .................ccccceseees 15
Dunean y. Louisiana, 391 U.S. 145 (1954) oe... 10
Fay v. New York, 332 U.S. 261 (1947) 2.2.2.0... sess 12
Glasser v. United States, 315 U.S. 60 (1941)... 10
Ilammer y. State, 337 P.2d 1097 (Okla. 1959) 002...... 12
Labat v. Bennett, 365 F.2d 698 (5th Cir., 1966)... 12
Martin v. Texas, 200 U.S. 316 (1906) 0.0.00... 10
Paciona v. Marshall, 45 App. Div.2d 462, 359 N.Y.S.2d
CI, i. SE oleetes eteetecenin 20
People v. Attica Brothers, 79 Mise. 2d 492, 359
Da re OO CEN, BG cs scesctcccneisvscseintnrgesinnncss 12, 19
People v. Marr, 67 Mise. 2d 13, 324 N.Y.S.2d 608
COND AL: BA Be acti csnccchenccaiteevacctenaenaiiabeenbunianaee 20
Peters v. Kiff, 407 U.S. 493 (1972) ............. 7, 13, 14, 15
Pierre v. Louisiana, 306 U.S. 354 (1939) wo. 10
Rabinowitz v. United States, 366 F.2d 34 (5th Cir.
SUEUR <oidihsicisaldcsipvitaittelclcasbaiespaaansdbisapisatosuiteghaladaeidea naan teats 12
CitaTions iii
Pages
Sloan v, Smith, 351 F.Supp. 1299 (M.D.Pa. 1972) ........ 20
Smith v. Texas, 311 U.S. 128 (1940) 000.0... 10
State v. Butler, .. N.J. Super. ........ (App. Div. 1978)... 19
State v. Foster, 196 Neb, 332, 242 N.W.2d 876 (1976). 16
Taylor v. Louisiana, 419 U.S. 522 (1975) 00... 10,11, 15,18
Thiel vy. Southern Pacifie Company, 328 U.S. 217
CRUPEIED : cocetsavercsouncanieniashanasncibibacegien enna nee 10, 11
United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.,
1972) affirmed 468 F.2d 1245 (2d Cir, 1972) 20...
United States v. Zirpolo, 450 F.2d 424 (3d Cir. 1971) ..
Walter v. State, 208 Ind. 231, 195 N.E. 268 (1935) ....
Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973) .......
Worden vy. Mercer County Board of Elections, 61 N.J.
325, 294 A.2d 233 (1972)
Te eee eee eee ee enna ee eeeeee
ConsTITUTION AND STATUTES
United States Constitution:
Sixth Amendment
TORR RR Ree Ree eee eee eee eee e eee eee eee eeeseee
TTR ee Ree e eee eee eee newer eee eeeeeeee
Law Reviews
Himelrick, Underrepresentation of Young Adults on
Juror Source Lists, 19 Wayne L.Rev, 1287 (1973) ..
Kairys, Juror Selection: The Law, a Mathematical
Method of Analysis, and a Case Study, 10 Am.Crim.
SAUNT. WER CUETED Sadsstenddncsssemnniccmdoueicinamamnete ts es
Kairys, Kadane & Lehoczky, Jury Representative-
ness: A Mandate for Multiple Source Lists, 65
Calif. L. Rev. 776 (1977)
ee ee nn
20
20
iv CITATIONS
MiscELLANEOUS Page
H.R.Rep. No. 1076, 90th Cong. 2d Sess. 8, 1968 ........ 14
D. Yankelovitch, The New Morality: Profile of Amer-
See eth ini Ge 106 CIGD cvcrciiciini 17
In the Supreme Court of the
United States
October Term, 1978
Aurrep A, Porro, Jr. and
Tuomas JONES,
Petitioners,
Vv.
STATE oF New JERSEY
Petition for a Writ of Certiorari
to the Superior Court of New Jersey
This is a Petition for a Writ of Certiorari seeking review
of the judgment of the Superior Court of New Jersey,
Appellate Division, entered on April 13, 1978, affirming by
a divided vote of 2-1 the Order of the trial court (Law Divi-
sion of the Superior Court of New Jersey for Bergen
County) denying the motion of the petitioners to dismiss
the indictment against them, inter alia, because of the
systematic and automatic exclusion of all full-time students
from jury service, including service upon the grand jury
which indicted the petitioners.
9
OPINIONS BELOW
The orders of the Supreme Court of New Jersey denying
the Motions for Leave to Appeal and the Motion for
Reconsideration are unreported. They were entered on
July 21, 1978, and September 5, 1978, respectively, and are
set forth in Appendix A, infra, pp. A 1-2.
The decision of the Superior Court of New Jersey, Appel-
late Division, and the dissent to that decision, are reported
ROE SE Tee 2, Beet. , and are set forth in
Appendix B, infra, pp. A 3-18.
The opinion of the trial court, Law Division of the Su-
perior Court of New Jersey for Bergen County is reported
in 152 N.J. Super. 259 (1977) and is set forth in Appendix
C, infra, pp. A 19-33.
JURISDICTION
The petitioners were indicted by the Bergen County
(New Jersey) grand jury on October 30, 1975, for the crimes
of conspiracy and misconduct in office. They subsequently
moved to dismiss the indictment against them on the
grounds that the grand jury that returned the indictment
was selected by a discriminatory process that resulted in
the systematic exclusion or underrepresentation of several
cognizable groups of persons, including total automatic
exelusion of all full-time students. Their motion to dismiss
was denied. The Appellate Division of the Superior Court
affirmed that decision by a 2-1 vote, on April 13, 1978. On
July 21, 1978, the Supreme Court of New Jersey denied a
Motion for Leave to Appeal, and on September 5, L978
also denied a Motion for Reconsideration, The relevant
judgments and orders are set forth in Appendices A, B and
C, infra, pp. A 1-55,
This petition seeks the review of the validity under the
Federal Constitution of the systematic and automatic exclu-
3
sion of all full-time students from jury service in Bergen
County.
The jurisdiction of this Court to review the decisions of
the Superior Court by Writ of Certiorari is conferred by
28 U.S.C. § 1257(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the following provisions of the United
States Constitution:
1. Amendment VI. In all criminal prosecutions, the
accused shall enjoy the right to a speedy and pub'ic trial,
by an impartial jury of the State and district wherein the
erime shall have been committed, which district shall have
been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to he confronted
with the witnesses in his favor, and to have the Assistance
of Counsel for his defence. U.S. Constitution, Amendment
6.
2. Amendment XTV—Section 1. All persons born or
naturalized in the United States and subject to the juris-
diction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the
equal protection of the law. U.S. Constitution, Amendment
14,
QUESTION PRESENTED
The indictment against the petitioners for conspiracy
and misconduet in office was returned by a grand jury which
+
was drawn from a pool of prospective jurors from which
all full-time students were systematically and automatically
exciuded. This exclusion was solely the result of an adminis-
trative decision of the Jury Commissioners of Bergen
County. It was not authorized by statute. And, the Adminis-
trative Judge of the Superior Court, under whom the Com-
missioners function, had not directed or authorized such an
automatic exclusion,
Bergen County, New Jersey, is a large, urbanized county
with a voting age population of more than 484,000 people.
It is the site of a substantial number of institutions of higher
learning. It has 44,000 full-time students of voting age,
which is the largest number of full-time students of any
county in that State.
The petitioners raised their challenge to the composition
of the grand jury at the earliest possible time. When they
initially learned they were the subject of an investigation
by the grand jury, they moved to quash the array of the
grand jury because of defects in its composition, And, they
renewed the challenge after they were indicted in 1975,
The question presented by their petition is:
Whether the automatic and systematie exclusion from
jury service of all full-time students by state Jury Com-
missioners, acting without legislative authority or court
approval, in a county where such students constitute a sig-
nificant percentage of the voting age population, violates
the Sixth and Fourteenth Amendments to the Constitution.
STATEMENT
This appeal arises out of the indictment in 1975 of the
petitioners by the grand jury for Bergen County, New
Jersey, for conspiracy and misconduct in office. Both prior
5
to and subsequent to their indictrzent, the petitioners chal-
lenged the composition of the grand jury. In October, 1975,
when petitioners learned they were the object of an inves-
tig.tion by the grand jury, they sought to challenge the
array of the grand jury because of defects in its method
of composition.' The indictment against them was released
on November 6, 1975. On the very next day, they filed a
new challenge to the composition of the grand jury, (DA 8)
As a result of discovery proceedings that followed that
challenge, the largely undisputed facts that form the basis
of the petitioners’ complaint were developed.
The jury pool in Bergen County, from which the mem-
bers of the grand jury which indicted the petitioners were
selected, was drawn by the Jury Commissioners utilizing
voter registration rolls as the sole source. (A 2)
Without the knowledge of the Administrative Judge of
the Superior Court of Bergen County, the Jury Commis-
sioners made a determination to automatically exelude
from jury service all full-time students.2 When the Jury
Commissioners received completed jury service question-
naires, they examined them for occupation. Any respondent
who acknowledged being a full-time student was automati-
cally removed from the open files from which members of
the jury pool would be drawn, and instead were placed in
a closed file. They were never asked whether they wished
to seek a discretionary exemption from service, nor were
1. DA 8. The citation to “DA” is to the Appendix filed with
the Supreme Court Appellate Division which is part of the reeord
in this ease.
2. The Jury Commissioners likewise automatically exeluded
several other categories of persons. However, because the number
of persons in each of these other categories made up only a minor
percentage of the population, these syvstematie exclusions were
not relied upon by the petitioners in their challenge. See infra
at 13.
6
they asked if they wished to perform jury service during
summer or other vacation periods.
The practice remained unchallenged in Bergen County
until petitioners brought the motion which is the subject
of the present proceedings before this Court.
The New Jersey legislature had enacted a statutory
scheme of automatic exemptions from jury service, which
is set out in New Jersey Statutes Annotated 2A :69-2, That
scheme provided for the exemption of persons in twelve
categories of employment.* The self-evident plan of the
legislature was to excuse persons whose oecupations were
deemed vital to the health, safety or welfare of the com-
munity and, therefore, merited special consideration. And,
none of these categories was composed of a large number
of individuals, Their percentage in the total population
of anv county, either hy individual occupation or entire
group of twelve oceupations, would constitute only a minute
fraction of the voting age population. Nowhere in the
statute, however, is there provision for the automatic ex-
clusion from jury service of full-time students.
The voting age population of Bergen Connty, one of the
largest counties in the State of New Jersey, is in excess
of 484,000 persons. Of that population, 44,000 persons are
full-time students. (A 5) Tt is the larerest number of stu-
dents of any county in the state. (A.5) The population of
the Connty is composed of persons from a wide variety
8. The Apnellate Division of the Superior Court coneluded
that these twelve exemptions were “presumably cloaked, at least to
some extent, with public interest or publie service, ¢.g., police, fire-
men, game wardens, physicians. dentists, active military personnel,
school teachers, enstodians of minor children, certain state employ-
ees, telephone operators and linemen, legislators, and first aid res-
eue squad members, N.J.S.A. 2.\:69-2." (A 6).
7
of ethnic and racial groups. In every sense of the word, the
population of Bergen County is heterogeneous.*
At the hearing on the motion to dismiss the indietment
against the petitioners, substantial expert testimony was
received on the issue of the discriminatory practices of the
Bergen County Jury Commissioners. The defendant’s prin-
cipal expert, Dr. John MeConahay, a social psychologist
at the Institute of Poliey Studies of Duke University,’
testified at length to the results of the studies he had made
of the demographic characteristics of Bergen County and
of its jury pool.
Dr. MeConahay testified that college students meet the
tests approved by this Court in Peters v. Niff, 407 U.S.
495 (1972) for determining whether a group is a cognizable
one for jury selection purposes, (Tr. at 37-39).
Ife testified that students were clearly a cognizable group
in that they were identifiable and had “attitudes and values
which differ in specifiable ways from the general popula-
tion.” (Tr. 37)
In addition, he pointed out that students are recognized
as cognizable groups by the United States Bureau of the
Census and by other social science researchers. (Tr.,
supra.) Other material was also introduced establishing
the widespread recognition given to students as a cogniz-
able group by sociologists and others. (Tr. at 64-68)
Dr. MeConahay’s testimony was not attacked on eross-
examination and no contrary evidence on the issue of eog-
nizability was introduced by the prosecution.
4. Tr. 16. The citation to “Tr.” is to the stenographie transeript
of the hearing on petitioners’ Motion to Dismiss the Indictment,
June 10, 1977, before the Honorable Alfred D. Schiaffo.
5. Dr. MeConahey's qualifications to testify as an expert wit-
ness were accepted by the lower court. A copy of his “Vita” was
made part of the record, and is reproduced herein as Appendix
8
The lower court noted during the course of the hearing
that:
“A student is a segment of the academic society, which
is a factor to be considered strongly into the fusion of
a cross section, | feel” (Tr. 38),
“* * * the very essence of the living, breathing system
is the infusion of these yvoung class of students”
(Tr. 62).
He stated that he was “leaning very strongly” toward
the defendant's position and echoed: “IT have no choice but
to follow what | think the law is” (Tr. 61).
However, the lower court ultimately denied the petition-
ers’ motion to dismiss. The Appellate Division of the Supe-
rior Court subsequently gave leave to the petitioners to
appeal the judgment of the lower court.
The majority of the Appellate Division concluded, with-
out citation to authority or to the record. that in its opinion
voting-age students did not constitute a cognizable group
heeause they possess “no special attributes of gender, race
or economic ¢class.” (A 7) The majority added that the
student group “is essentially an ‘oceupational identity’—
and in no case has the United States Supreme Court held
a jury unconstitutional for an occupational exclusion.”
(A 8)
In his dissent, Presiding Judge Halpren declared:
The systematie and automatie exclusion of 44,000 full-
time students, or a substantial underrepresentation
of such a group, in my view, eliminates a large, dis-
tinctive and cognizable group of prospective jurors
a eta wae
Judge Halpern also noted that the New Jersey Supreme
Court, when dealing with the right of eligible college stu-
9
dents to vote, had agreed that students were treated as a
“class.” Ile also stated:
The |New Jersey Supreme] Court recognized college
students as an important, recognizable and knowledge-
able force in our society which had been discriminated
against even when applying a compelling state interest
test to the exclusion. T find it extremely diffieult to
decide that full-time students’ constitutional right and
obligation to serve on a grand or petit jury is of lesser
constitutional value than the privilege to vote. Citizen-
ship not only grants fundamental rights and privi-
leges, but also imposes related obligations and respon-
sibilities to act for society when called upon to do so.
(A 15-16)
THE QUESTION IS SUBSTANTIAL
Introduction
The question raised by this case, whether full-time stu-
dents are a cognizable group for the purposes of jury
discrimination claims, is ripe for resolution by this Court.
Numerous state trial courts have arrived at conflicting con-
clusions on this issue, almost always relying upon the
opinions of this Court in cases involving discrimination
against other cognizable groups. And, the United States
Court of Appeals for the Second Cireuit has stated, with-
out ruling on the issue, that the exclusion of students poses
“a substantial constitutional question.’® There are nearly
9,000,000 college students in the United States of vot-
ing age whose interests justify a resolution of this issue
by this Court.®?
The Right to a Jury Which Is a Fair Cross-Section of the
Community Is a Matter of Fundamental Importance
Of such great importance to the fair administration of
justice is the right of an accused to a jury of his peers that
6. Anderson v. Casscles, 531 F.2d 682, 686 (2d Cir. 1976).
6.1 1970 Census of Population of the United States, U.S. De-
partment of Commerce.
10
this Court has held that the Sixth Amendment guarantee
of this right was made applicalie to the states by the
Fourteenth Amendment. Pierre v. Louisiana, 306 U.S, 354
(1939): Martin v. Tevas, 200 U.S. 316 (1906); Carter v.
Texas. 177 U.S. 442 (1900), As this Court declared in Smith
v. Texas, B11 US. 128 (1940): "It is part ot the established
tradition in the use of juries as instruments of publie jus-
tice that the jury be a body truly representative of the
community.” /d., at 150,
Although the American concept of a jury of peers had
its roots in the English tradition, this Court has continued
to view the American concept of “peers” be a flexible one
designed to change with the transformation of the com-
munity so as to assure that the integrity of the jury process
will not be undermined, This Court stated:
But even as jury trial, which was a privilege at common
law, has become a right with us, so also, whatever
limitations were inherent in the historical common law
concept of the jury as a body of one’s peers do not
prevail in this country. Our notions of what a proper
jury is have developed in harmony with our basie
concepts of a democratic society and a represenative
government. . . . Tendencies, no matter how slight,
toward the selection of jurors by any method other
than a process which will insure a trial by a representa-
tive group are undermining processes weakening the
institution of jury trial, and should be sturdily resisted.
Glasser v. United States, 315 U.S. 60 (1941).
See also, Thiel v. Southern Pacific Company, 328 U.S, 217
at 220 (1946); clpodaca v. Oregon, 406 U.S. 404 at 410-11
(1972): Taylor v. Louisiana, 419 U.S. 522 at 529 (1975).
From the earliest days of the nation, the impartial jury
was envisioned as a check on abuses within the judicial
system. As this Court has had occasion to observe a number
of times, but most succinetly in Duncan v. Louisiana:
11
roviding an accused with the right to be tried by a
jury of his peers gave him an inestimable safeguard
against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge.”
Td., 391 U.S. 145 at 157 (1954).
“Pp
See also Taylor v. Louisiana, 419 U.S, 522 at 531 (1975).
But it is also clear that the public policies that are served
by the requirement that juries be representative of a eross-
section of the community go far beyond just considerations
of fairness to litigants. The point has been well stated as
follows:
The concept of the jury as representative of a cross
section of the community has long been linked both to
notions of representative government and democracy
and to the constitutional guarantees of due process,
equal protection, and trial by an impartial jury. The
jury provides a vehicle for direct citizen participation
in an arena otherwise dominated by professional advo-
cates and government officials. In criminal cases, the
jury performs a protective function, interposing a
group of citizens between an accused and the punitive
mechanism of the state. Thus the representative, popu-
lar character of the jury lends legitimacy, integrity,
and impartiality to the judicial process. A lack of
representativeness tends to compromise the jury as an
institution and to undermine the judicial process.
Kairys, Kadane & Lehoezky, Jury Representativeness:
A Mandate for Multiple Source Lists, 65 Calif. L. Rev.
776, 782 (1977).
A Jury Is Not Representative of a Cross-Section of the Community
Where Distinctive Groups of Significant Size Are Excluded
In Thiel v. Southern Pacific Co.’ this Court made clear
that no jury is representative of a cross-section of the
7. 328 US. 217 at 223 (1946).
12
community where representatives of any economic, social,
religious, racial, political or geographical groups are sys-
tematically and intentionally excluded, See also, Fay v. New
York, 382 U.S. 261, 296 (dissent of Mv, Justice Murphy)
(1947).
And, where the disqualification or exemption of a group
has not been preseribed in the statutory scheme, the Courts
have found this to be particularly repugnant, This Court
declared, in Ballard v. United States, that “{t}he evil lies
in the admitted exclusion of an cligible class or group .
in disregard of the preseribed standards.” See also Cuited
States v. Zirpolo, 450 Wied 424 (Sd Cir, 1971) (rule holds
“irrespective of purpose”); Rabinowil: v. United States,
366 F.2d 34 (th Cir, 1966) (“the jury commissioners ...
treated the statutory standards as minimum qualifica-
tions”): Labat vr. Bennelt, 365 F.2d 698 (Sth Cir, 1966)
(purpose to avoid inconvenience and because it was “fruit-
less” to summon persons in the group held unacceptable)
and People v. Attica Brothers, T9 Mise. 2d 492, 359 NYS.
4 699 (1974): Walter v. State, 208 Tnd. 251, 195 Nie, 268
(1935): Hammer vy State, 337 Pred 1097 (Okla, 1959)
(selection officials have “no greater power than is con-
ferred by [statute] and [they] should seek...no more”),
There is no dispute that the practice in Bergen County
of automatic exclusion of all full-time students was without
statutory authority or approval by the court that had super-
visory power over the jury commissioners, The exclusion of
students was the administrative invention of the jury com-
missioners.
The evil of such an exclusion without a statutory direction
is the extraordinary power it places in the hands of jury
selection administrators, and the fact that it hecomes ex-
ceedingly difficult to set limits on that power, The present
——_—-
8. 329 U.S. 187, 195 (1946).
13
case is proof of that concern. Acting without even the
remotest form of legislative authority, and without ap-
proval or even knowledge of the trial court, the jury com-
missioners in Bergen County had arrogated to themselves
the power to automatically exclude, in addition to students,
the wives of practicing attorneys, legal secretaries, priests
and national guardsmen not on active duty.®
The Exclusion of Distinctive Groups from Participation in the Jury
Process Casts Doubt on the Integrity of the Entire Judicial
Process
The exclusion of a distinctive group such as full-time
students from participation in the jury process produces a
number of serious harms. First, it brings into dispute the
judicial process itself when, while holding out the principle
of equal justice, at the same time it denies the basie right
of participation in that process. Second, it brings individual
jury decisions under a cloud of doubt because in the decision-
making process the jury was denied the contributions of a
distinctive group in the communit-,
In Peters v. Kiff, this Court took note of both these eon-
cerns, and declared:
‘the exclusion of a discernible class from jury
service injures not only those defendants wio helong
to the injured class, but other defendants as well, in
that it destroys the possibility that the jury wii! reflect
a representative cross-section of the community ...
Tilegal and unconstitutional jury selection procedures
cast doubt on the integrity of the whole judicial process.
9. See Deposition of Judge Trautwein, Trial Court Exhibit
DP-1, at 12-13, 15, and Deposition of Ida Silverstein and Lynne
Cohen, Trial Court Exhibit DP-2, at 6-7, 12-13. Although there is
some difficulty in interpreting this testimony due to inconsistent
use of terms, particularly the term “excuse,” the witnesses make it
clear that they are discussing involuntary exclusions, not excusals
or exemptions made upon request.
14
They create the appearance of bias in the decision of
individual cases and they increase the risk of actual
bias as well.’ 407 U.S, 493 at 501-5 (1972).
And, the presence of an impartial jury assures that a
spectrum of experience from many walks of life will be
brought to the judgment process. The Court has noted that
when juries are chosen from a narrow segment of the com-
munity, its judgment is not tempered by the universality of
human experience:
When any large and identifiable segment of the com-
munity is excluded from jury service, the effect is to
remove from the jury room qualities of human expe-
rience, the range of which is unknown and perhaps
unknowable. It is not necessary to assume that the
excluded group will consistently vote as a class in
order to conclude, as we do, that its exclusion deprives
the jury of a perspective on human events that may
have unsuspected importance in any case that may be
presented. Peters v. Kiff, 407 U.S. 493 at 505 (1972)."
The Exclusion of Members of a Cognizable Group, Even for Be-
nign Purposes, Results in a Presumptively Invalid Jury System
The exclusion of students by the Bergen County jury
commissioners was both an intentional and a systematic
act of discrimination. Mven though the purpose of such an
exclusion may have been benign (A 6), it nevertheless ren-
ders the jury system resulting from such discrimination
to he presumptively invalid. Even if the resulting disparity
between the population and the jury pool is small, the same
10. The legislative history of the Federal Jury Selection and
Service Act of 1968 reflects a similar thought: “It must be remem-
bered that the jury is designed not only to understand the ease,
but also to refleet the community's sense of injustice in deciding it.
As long as there are significant departures from the cross sectional
woal, biased juries are the result—biased in the sense that thev
refleet a slanted view of the community they are supposed to rep-
resent.” H.R. Rep. No. 1076, 90th Cong. 2d Sess. 8, 1968,
15
presumption of invalidity attends under the decisions of
this Court. E.g., Taylor v. Louisiana, supra; Arnold v.
North Carolina, 376 U.S. 773 (1964); Avery v. Georgia, 345
U.S. 559 (1953) ; Caswell v. Texas, 339 U.S, 282 (1950).
In the present case the record is substantial and unre-
butted as to the size of the full-time student population in
Bergen County (44,000 out of 484,000 voting-age persons).
And the record is likewise unrebutted with expert evidence
that students hold distinct attitudes and interests differ-
entiating them from the general population. (Tr. 37)
This Court has vet to speak definitively on the matter
of what constitutes a cognizable group. In hoth Peters v.
Kiff, supra, and in Taylor v. Louisiana, supra, the guid-
ance of this Court on this issue was limited to references
to large and distinctive or identifiable groups as being part
of an overall definition of cognizahility.
In this vacuum lower courts have used varying defini-
tions. However, the test for cognizability most frequently
used in cases raising the question of jury exclusion is that
articulated in United States v. Gitzman, 337 F.Supp. 140
(S.D.N.Y., 1972), affirmed 468 F.2d 1245 (2d Cir. 1972).
The court stated there:
‘A group to he ‘cognizable’ for present purposes must
have a definite composition. That is, there must be
some factor which defines and limits the group, A cog-
nizable group is not one whose membership. shifts
from day to day or whose members ean he arbitrarily
selected. Secondly, the groun must have cohesion.
There must be a common thread which runs through
the group a basic similarity in attitudes or ideas or
experience which is present in members of the group
and which cannot be adequately represented if the
group is excluded from the jury selection process.
Finally, there must be a possibility that exclusion of
the group will result in partiality or bias on the part
16
of juries hearing cases in which group members are
involved. That is, the group must have a community
of interest which cannot be adequately protected by
the rest of the populace.’
This definition was stated another way in State v. Foster,
196 Nebr. 332, 242 N.W.2d 876 (1976), another oft-relied
upon case:
‘It has heen held that for purposes of jury challenges,
a yroup to be ‘cognizable’ must have a definite compo-
sition, must have members who share common atti-
tudes or idea or experience, and must have a commu-
nity of interest which cannot be adequately protected
by the rest of the populace.’
Students meet the Guzman-Foster test in all regards.
First, the group is one which possesses factors which
clearly define or limit the group, namely that the group is
limited to those persons who attend a school. In the context
of this case, that means persons who attend colleges, uni-
versities, graduaty and professional schools, business and
secretarial schools, industrial and technical schools, and
even some high school students.
Second, the group does have cohesion. Dr. MeConahay,
the petitioners’ expert in social psychology, testified that
students are characterized by the fact that they hold atti-
tudes that are different from other young people and dif-
ferent from older Americans generally, (Tr, 36-37)
There is overwhelming sociological data that corrobo-
rates Dr. MeConahav’s conclusion of cohesiveness of stu-
dents as a group. An extensive summary of this literature
was made part of the record in this case." The most sig-
nificant of these works is one by Professor Daniel Yanke-
11. This can be found in the Petitioners’ Appendix in the Supe-
rior Court Appellate Division, numbered in that volume as A 64-68.
17
lovitch, entitled The New Morality: Profile of American
Youth in the 70’s (MeGraw-Hill). Professor Yankeloviteh’s
book is of particular significance because the principal com-
parisons drawn by him are between college students and
non-students of approximately the same age. This is par-
ticularly appropriate because if a comparison were made
to the general population, the older average age of the gen-
eral population would make it diffeult to determine whether
the difference reperted in attitudes was due to their being
students or simply due to the facet that they were younger
than the general population.
There is no doubt about Professor Yankeloviteh’s con-
clusions: he finds that students are characterized by a co-
hesive set of attitudes, beliefs and values, and that these
are different than the rest of the population of the same
age ranges, and the population in general.
Third, the exclusion of students from service on juries
raises a substantial likelihood of bias, heecause the socio-
logical data shows that the views of students are either
unrepresented) or substantially underrepresented in’ the
jury pool,
The automatic exclusion of all students cannot be
justified by assumins that it is for the benefit of the
class or for the 2¢ministrative convenience of jury
commissioners.
In previous cases this court has strongly expressed the
view that the automatic exclusion of a class of persons
cannot he justified on the basis of an assumption by jury
selection officials that it would be inconvenient or even a
hardship for erery member of the class to be ealled for
jury service, And, administrative inconvenience in dealing
with a class, many of whose members might seek individual
excuses from jury service, has also been rejected by this
18
court as justification for the total exclusion of that class.
Addressing the question of the total exclusion of women
from jury. service in Taylor v. Louisiana, this court
declared:
It is untenable to suggest these davs that it would be
a special hardship for each and every woman to per-
form jury service or that society cannot spare any
women from their present duties. This may be the
case with many, and it may be burdensome to sort
out those who should he exempted from those who
should serve. But that task is performed in the case
of men and the administrative convenience in dealing
with women as a class is insufficient justification for
diluting the quality of community judgment repre-
sented by the jury in criminal trials. Taylor, supra
at 535-536,
The argument made by the jury administrators in Taylor
is similar to the one made by the State of New Jersey in
the present case. The lower court here stated:
it may be asserted that the elimination of fulltime
students by the jury commissioners was reasonably
warranted on the basis of the preservation of their
educational process without substantial interruption
which would be required by grand jury serviee. Porro
v. State, at A 6.
But such a rationalization cannot survive closer exam-
ination. Its basic premise is that the jury commissioners,
acting on their own initiative and without the guidance of
either the legislature or the trial court, ean make a decision
as to what is best for each and every member of the class.
It is a premise which savs that the individual members of
the class are not entitled to decide what is in their own
best interest: ie. participation in the judicial process by
jury service or attending classes at school.
19
The premise is also defective hecause it suggests that
this is an “either/or” situation in which the student can
only choose between jury duty and attending class. This is
transparently incorrect, Students could request the oppor-
tunity to do jury service during summer vacation months.
Many schools operate on a quarter or trimester system in
which students do not attend classes for several months
at a time during a school vear. And, it is an erroneous
assumption by the jury commissioners and the court below
that simultaneous attendance at classes and jury service
are always incompatible. Full-time students may, in fact,
be attending late afternoon or evening classes.
The point of all of this is that the so-called benign
exclusion of all full-time students is based upon entirely
superficial and largely unrealistic asstiuptions about what
is best for students, about who should decide what is in
the interest of students, and about whether attendance at
school and jury service can ever be reasonably reconciled.
Given the circumstances here and the previously expressed
views of this court, the assumptions made in the case
cannot justify the exelusion of all students.
Lower Courts Are Divided on the Questions of Whether Students
Must Be Recognized as a Cognizable Group Under the Sixth
Amendment
Both the majority of the panel in the instant case and
another panel of the Appellate Division of the Superior
Court (in State v. Butler, ........ N.J. Super. ........ (App. Div.
1978)) have concluded that students do not constitute a
cognizable group for the purposes of a jury challenge.
However, several New York trial courts have held to the
contrary that students are a cognizable group. People v.
Attica Brothers, 79 Mise. 2d 492, 359 N.Y.S. 2d 699 (Sup.
20
Ct. 1974); People v. Marr, 67 Mise. 2d 113, 324 N.Y.S, 2d
608 (Justice Ct. 1971).
In addition, several appellate courts have in dicta arrived
at the same eonelttsion. Paciona v. Marshall, 45 App. Div.
2d 462, 359 N.Y.S. 2d 360 (App. Div. 1974): Brown v. State,
58 Wis. 2d 158, 205 N.W. 2d 566 (Wis. Sup. Ct. 1973) ;
Anderson v. Casscles, 5381 F.2d 564 (2d Cir. 1976). See
also, Himelrick, Underrepresentation of Young Adults on
Juror Source Lists, 19 Wayne L. Rey. 1287 (1973), Kairys,
Juror Selection: The Law, a Mathematical Method of Analy-
sis, and a Case Study, 10 Am. Crim. L. Rev. 771, 789 (1972).
It should also be noted that students have been recognized
as a separate and distinet class in regards to legal issues
other than jury service. In Worden v. Mercer County Board
of Elections, 61 N.J. 325, 294 A.2d 233 (1972), it was held
that college students, as a class, could not be subjected to
different qualifications than other voters in registering to
vote. Accord, Carroll v. Cobb, 139 N.J. Super. 489, 354 A.2d
355 (App. Div. 1976) (adult student at state school for
mentally retarded). See also, Whatley v. Clark, 482 F.2d
1230 (5th Cir. 1973), cert. denied 415 U.S. 934 (1974)
(statute which discriminated against students living at uni-
versity held unconstitutional) ; Sloan v. Smith, 351 F.Supp.
1299 (M.D. Pa. 1972) (voter registration policy requiring
extensive identification procedures for establishing resi-
dency held discriminatory as against college students).
21
CONCLUSION
The federal constitutional question raised herein is
substantial and the judgment of the lower court should be
reversed.
Respectfully submitted,
Bernarp L. Secau
Counsel for the Petitioners
Alfred A. Porro, Jr. and
Thomas Jones
And with him
MicHaeEu A. QUERQUES
October, 1978
Appendix A
Supreme Court of New Jersey
M-971 September Term 1978
State of New Jersey,
Plaintiff-Respondent,
V.
Alfred A. Porro, Jr., & Thomas Jones,
Defendants-Movants.
ORDER
This matter having been duly presented to the Court, it
is ORDERED that the motion for leave to appeal is denied.
WITNESS, the Honorable Worrall F. Mountain, Presid-
ing Justice, at Trenton, this 21st day of July, 1978.
/s/ Stephen W. Townsend
Acting Clerk
A TRUE COPY
Stephen W. Townsend
Acting Clerk
bo
Appendix
Supreme Court of New Jersey
M-52 September Term 1978
State of New Jersey,
Plaintiff-Respondent,
Vv.
Alfred A. Porro, Jr. & Thomas Jones,
Defendants-Movants.
ORDER
This matter having been duly presented to the Court, it
is ORDERED that the motion for reconsideration is denied.
WITNESS, the Honorable Worrall F. Mountain, Presid-
ing Justice, at Trenton, this 5th day of September, 1978.
Jes
/s
/ Stephen W. Townsend
Clerk
A TRUE COPY
Stephen W. Townsend
Clerk
Appendix B
Superior Court of New Jersey
Appellate Division
A-498-77
State of New Jersey,
Plaintiff-Respondent,
v.
Alfred A. Porro, Jr., and Thomas Jones,
Defendants-A ppellants.
OPINION
These defendants were indicted by a Bergen County
grand jury in October 1975 for the crimes of conspiracy
and misconduct in office. They brought timely motions at
the trial level challenging the array of grand jurors. The
motions were denied by the trial judge for the reasons
stated in his reported opinion at 152 N.J. Super. 259 (Law
Div. 1977). We granted defendants’ motions for leave to
appeal and now affirm.
Defendants challenge the method of selection and the
composition of the grand jury returning this indictment.
They advance two grounds for their position: (1) the sys-
tematic exclusion of full-time students whom they allege
constitute a constitutionally cognizable class, and (2) the al-
leged substantial under-representation of certain classes of
jurors; namely, women, blacks, laborers and_ blue-collar
workers. Defendants claim the procedures utilized in selecc-
ing the grand jury violated their 14th Amendment rights
4 Appendix
to due process and equal protection under the Federal Con-
stitution, as well as their state constitutional rights.
As the trial court properly noted, the federal Fifth
Amendment right to indictment by a grand jury has not
heen selectively incorporated into the Fourteenth Amend-
ment as a fundamental right applicable to the individual
states. Ilowever, the State of New Jersey has extended the
right of indictment to its citizens under the State Constitu-
tion. NuJ. Const. (1947), Art. I, par. 8. State constitutional
principles require that grand jury selection “be so designed
as to insure that juries are impartially drawn from com-
munity cross-sections.” State v. Rochester, 54 NJ. 85, 88
(1969). See also State v. Smith, 102 N.J. Super. 325 (Law
Div. 1968), aff'd 0.b., 55 NudJ. 476, 481 (1970). In the federal
“constitutional context, the Court has unambiguously de-
elared that the American concept of the jury trial contem-
plates a jury drawn from a fair cross-section of the com-
munity.” Taylor v. Louisiana, 419 U.S, 522, 527, 95 S.Ct.
692, 42 L.Ed, 2d 690 (1975).
Since the decision of our Supreme Court in the Rochester
ease, grand jurors have been randomly selected from voter
registration lists. Such lists, as well as supplementary
sources, are used in federal courts. 28 U.S.C_A. § 1863. The
question before us is whether full-time students are a con-
stitutionally identifiable or cognizable group whose benign,
but systematic, exclusion from grand jury service in Bergen
County renders this indictment constitutionally infirm, As
the trial court's opinion notes, this exclusionary practice
has been discontinued.
Our state statutes actually criminalize any conduct by
officials whereby a qualified citizen is prevented from serv-
ing on a grand or petit jury in any court “on account of
race, color, creed, national origin, ancestry, marital status
or sex.” NwJ.S uA. 2.4:72-7. The federal counterpart prohibits
Appendix 5
exclusion from service “on account of race, color, religion,
sex, national origin, or economic status.” 28 U.S.C.A. § 1862.
At least legislatively, full-time students, or indeed any oceu-
pational status, have not achieved cognizability in this eon-
text.
The United States Supreme Court has recognized several
constitutionally cognizable classes for jury selection pur-
poses; race, gender and economic class. Racial discrimina-
tion in jury selection was held violative of the Federal
Constitution in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164,
8D L.Ed. 84 (1940). Such discrimination was said by Justice
Black to be “at war with our basie concepts of a democratic
society and representative government.” 311 U.S. at 130.
Most cases raising the issue have done so on racial grounds.
See Annotation, “Jury Selection—Group Discrimination,”
33 L.Ed. 2d 783 (1972). See also Casteneda v. Partida, ....
US. ...., 97 S.Ct. ..., 51 L.Ed. 2d 498 (1977). Clearly, a
criminal defendant need not be a member of the excluded
group before he has the requisite standing to raise the
constitutional objection. Peters v. Kiff, 407 U.S. 493, 92
S.Ct, 2163, 33 L.Ed. 2d 83 (1972).
In Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct.
984, 90 L.Ed. 1181 (1946), a tort claimant challenged a
petit jury array from which the clerk and jury commissioner
had deliberately and intentionally excluded all persons who
work for a daily wage. The Court found this class distine-
tion and discrimination “abhorrent to the democratic ideals
of trial by jury” and a constitutional violation. Mr. Justice
Murphy stated:
This does not mean, of course, that every jury must
contain representatives of all economic, social, re-
ligious, racial, political and geographical groups of
the community, frequently such complete representa-
tion would be impossible, 328 U.S. at 220.
6 Appendix
The thrust of the Thiel holding was against discrimination
hy economic class, not any specific occupation.
The high court's latest expression on this subject of sys-
tematic exclusion of an identifiable class from jury service
is found in Taylor v. Louisiana, supra. See also Glasser +.
United States, 815 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
The convicted defendant attacked the Louisiana petit jury
practice which resulted in the virtual exclusion of women
“rom the panels. At the time of defendant’s trial, Louisiana
law provided that a woman would not be selected for service
unless she had previously filed a written declaration of her
desire to be called for service, 538° of the persons eligible
for service from the parishes where the panel was drawn
were women. As a result of the local practice, only 10% of
the persons on the jury wheel were women, only 12 females
were actually among the 1800 persons drawn to fill petit
jury venires in the calendar year of defendant's conviction,
and on defendant's venire, totaling 175 persons, there were
no women.
There is little in the Taylor ease which aids in analyzing
whether a particular group is “cognizable or identifiable”
for constitutional purposes. In the opinior of the Court,
Justice White pointed out that the historic purpose of the
jury was “to guard against the exercise of arbitrary power
—to make available the common sense judgment of the
community as a hedge against the overzealous or mistaken
prosecutor and in preference to the professional or per-
haps overeonditioned or biased response of a judge.” 419
U.S. at 530. Justice. White concluded: “This prophylactic
vehicle is not provided if the jury pool is made up of only
special segments of the populace or if large, distinctive
groups are exeluded from the pool.” [Emphasis added].
Id. At least we ean discern the Court was obviously im
Appendix 7
pressed with the size of the class systematically excluded,
K-onr
08%, as being violative of the fair cross-section require-
ment. In Peters v. Niff at 407 U.S. 503, the Court used the
language “large and identifiable.” ¢
Justice White further observed in Taylor that “the fair
cross-section principal must have much leeway in applica-
tion,” and “it should also be emphasized that in holding
that petit juries must be drawn from a souree fairly rep-
resentative of the community we impose no requirement
that petit juries actually chosen must mirror the ecommu-
nity and reflect the various distinctive groups in the popu-
lation.” 419 U.S. at 538.
The records of the Department of Fdueation reflect that
sergen County has approximately 44,000 full-time = stn-
dents, the highest of any county in the State. We do not
know what percentage of these students are registered to
vote. The parties stipulated, at oral argument, based on
the available statistics, that if full-time students were not
excluded from the typical array of grand jurors in Bergen
County they would comprise between 5 and 6% of those
eligible to serve. We are therefore reflecting on a much
smaller numerical class than that which the Louisiana svs-
tem excluded in Taylor, Students are of both sexes, all
races, and from all economic classes. Therefore the henign
but systematic exclusion of full-time students in Bergen
County did not target a large percentage of the population
and did not affect any particular group, i.e., gender—race
—economie class, previously proscribed by the highest
court from systematic exclusion.
We are satisfied from this record, and our experience,
that full-time students tend to fall in the 18 to 35 age
bracket. As the trial court noted, today’s trends point
towards greater formal educational experience for all age
8 Appendix
groups, but the age distribution of the full-time student is
still in the younger brackets.
A student is perhaps most appropriately placed in an
occupational category. Our statutes provide for twelve
occupational exemptions; all presumably cloaked, at least
to some extent, with the public interest or public service.
E..q., police, firemen, game wardens, physicians, dentists,
active military personnel, school teachers, custodians of
minor children, certain state employees, telephone opera-
tors and linemen, legislators, and first aid and rescue squad
members. NwJ.S.A. 2A :69-2. The Bergen County practice
created an ad hoc exemption for full-time students because
of the alleged inconvenience and hardship jury service
would impose.
It is noteworthy that legislative exemptions based upon
occupational status or the preservation of the uninter-
rupted important function served by exempt classes have
heen sanctioned as reasonably appropriate and not viola-
tive of constitutional standards. Taylor v. Lowisiana, supra,
419 U.S. at 534. Rawlins v. Georgia, 201 U.S. 638, 50 L.Ed.
899, 26 S.Ct. 560 (1906) (venire excluding lawyers, minis-
ters, doctors, dent'sts, railway engineers and firemen, not
unconstitutional). Similarly, it may be asserted that the
elimination of fulltime students by the jury commissioners
was reasonably warranted on the basis of the preservation
of their educational process without the substantial inter-
ruption which would be required by grand jury service.
Since this prior practice did not represent an invidious
discrimination based on race, color, creed, national origin,
ancestry, matrimonial status or sex, we do not find it of-
fended constitutional principles. It was thus a_ practice
which was supportable on a rational basis in harmony with
the administrative powers granted to the jury commis-
sioners under the supervision of the assignment judge.
Appendix 9
Although the termination of this practice is unquestionably
preferable, we are not persuaded that it violated the con-
stitutional rights of defendants or warranted the dismissal
of the indictment. In the absence of an infirmity of consti-
tutional dimension, any impropriety, if any, in the practice
followed by the jury commissioners in the grand jury
selection process requires correction but does not neces-
sarily mandate the dismissal of an indictment which is
otherwise legally valid.
We are directed to no other holding by an appellate
court in support of defendants’ contention that full-time
students are a constitutionally cognizable class. Several
trial courts in New York have so held, People v. Attica
Brothers, 79 Mise, 2d 492, 359 N.Y.S. 2d 699 (Sup. Ct.
1ST4); People v. Marr, 67 Mise. 2d 113, 324 N.Y.S. 2d 608
(Justice Ct. 1971). Several appellate courts have in dicta
seemed to agree in principle with defendants’ contention.
Paciona v. Marshall, 45 App. Div. 2d 462, 359 N.Y.S. 2d
360 (App. Div. 1974); Brown v. State, 5S Wis. 2d 158, 205
N.W. 2d 566 (Wis. Sup. Ct. 1973); Anderson v. Casscles,
531 F.2d 682, 686 (1st Cir. 1970). Cf. United States v.
Butera, 420 F.2d 564 (1st Cir. 1970). See also, Himelrick
“Underrepresentation of Young Adults on Juror Source
Lists,” 19 Wayne ZL. Rev. 1287 (1973). Another panel of
this court has recently stated in dicta, relying upon the trial
court opinion in the instant case, that “students, if they ean
be considered a ‘class’ at all, are not, in our view, a ‘cog-
nizable group’ exclusion of which will rob a petit, or grand
jury of its cross-sectional quality.” State v. Butler, ...... N.J.
Super, ...... , (App. Div. 1978).
We agree with that conclusion. The excluded group—
full-time students—is relatively small in number, agreed
to he 5% to 6° of the potential venire. It has no special
attributes of gender, race, or economic class. Some effort
was made to persuade the trial court that the group had a
10 Appendix
certain distinct cultural or psychological identity. These
proofs were not persuasive to the trial court, nor are they
to us. We are not convinced from the record that full-time
students in Bergen County reflect any different political
or social values than the cross-section of the population of
the county. The age orientation towards the younger years
is not enough, standing alone, to persuade us to a contrary
view as to the group’s cognizability. See, U.S. v. Guzman,
337 I’. Supp. 140 (S.D.N.Y. 1972), aff'd, 468 F. 2d 1245
(2d Cir. 1972), cert. den, 410 U.S, 987 (1973). The group
is essentially an “occupational identity’—and in no case
has the United States Supreme Court held a jury uncon-
stitutional for an occupational exclusion.
Defendants next contend that the trial court erred in
refusing to dismiss the indictments on the grounds that
laborers, blue-collar workers, blacks, women, and persons
in the age bracket of 18-34 vears were underrepresented
because of outdated voter registration rolls and systematic
exclusion.
The proofs demonstrated that Bergen County failed to
update its voter registration list every four years as re-
quired by N.J.S.A. 19:31-15. This statute requires the
county election officials “onee during every four years ....
fto] cause the entire registry list to be investigated by
house-to-house canvass to establish the fact of continued
residence, removal, death, disqualification or improper reg-
istration.” Id. We fail to see how non-compliance with this
statutory mandate aids defendants’ contentions in this case.
The purpose of the registration canvass is to eliminate
“deadwood” from the voting rolls and keep the records up
to date in order to avoid fraudulent voting and improper
registration. We do not believe Bergen County’s failure
in this respect has any relationship to the alleged dispro-
Appendix 11
portionately skewed representation of certain cognizable
groups.
Defendants presented the affidavit of Dr. Peter W. Sper-
lich, Professor of Political Science at the University of
California, in support of their contention that certain con-
stitutionally cognizable groups were underrepresented on
the panel returning the indictment. Unfortunately, the
trial judge made no finding of fact as to the veracity of
his affidavit. Assuming the allegations therein to be true,
we do not find a constitutional infirmity.
Dr. Sperlich alleged an underrepresentation between the
general population of Bergen County in comparison to the
actual jury array as follows:
s R
Gender Women underrepresented 7%
Age 18 to 54 underrepresented 14%
by cy } b,, « . ‘ . ~ f
Keonomie Class — Laborers underrepresented 30%
Blue Collar Workers
underrepresented 29%
No statisties were presented as to the alleged underrepre-
sentation of blacks. The assignment judge readily acknowl-
edged that persons in the less remunerative economic
classes, laborers and some blue collar workers, as well as
blacks, are much more likely to request, and receive, indi-
vidual excuses from service. Many in these groups are
wage earners who will suffer great hardship if they serve
on grand juries over possibly many months. But these
classes were not systematically excluded heecause the ex-
cuses were on an individual basis. The United States
Supreme Court stated in Thiel +. Southern Pacific Co.,
supra, a judge clearly “would be justified in exeusing a
daily wage earner for whom jury service would entail an
undue financial hardship”, 328 U.S. at 224. and repeated
12 Appendix
in Taylor v. Louisiana, supra, “The states are free to grant
exemptions from jury service to individuals in case of spe-
cial hardship or incapacity. . . .” 419 U.S. at 534, System-
atic exclusion of an identifiable class, not individual excuses,
run afoul of the Constitution.
The assignment judge also noted that colder women who
cannot drive to this courthouse, or otherwise have personal
problems in serving, are frequently excused on request. Of
course, women with custody of minor children are either
not in the jury wheel by reason of exemption, if they give
the required notice to the jury commissioners under
N.J.S.A. 24 :69-2(g), or if they did not, were usually read-
ily excused on request by the assignment judge.
An additional reason why certain groups are under-
represented in the jury wheel, aside from individual excuses,
is apparent. The Final Report for 1977 of the Annual Chief
Justice Earl Warren Conference on Advocacy in the United
States entitled “The American Jury System”, sponsored
by the Roscoe Pound-American Trial Lawyers Foundation
makes the following statement relating to juries selected
from voter lists:
‘The following Table 1 is taken from the study of
D. Kairvs, J.B. Kadane, J.P. Lehoezky—Jury Repre-
sentativeness: A Mandate for Multiple Source Lists
[65 Cal.L.R. 776 (1977) }.
Table 1 shows that the voter list not only excludes
over one-third of the whole population, but also ex-
cludes various sungroups of the population at differing
rates. It has too “ew younger voters and too many older
ones. It has too few of the minorities, the poor and the
lesser educated, and relatively too many of the better
off and edueated.
Such shortcomings of the voter lists in representing
the total community have led some jurisdictions to
Appendix 13
implement the sources developed by meshing voter
lists with additional lists, such as that of licensed
automobile drivers. Jd. at 72.
These disparities arise because of the tendency of certain
groups to register or not register to vote. The Kairys’ study
demonstrated that when voting lists are used as the source
for the venire, blacks tend to be underrepresented by 12%;
persons of Hispanie origin by 44%; persons between the
ages of 18 and 20 by 41%; between the ages of 21 and 24
by 27% ; between the ages of 25 and 29 by 15%. The higher
the level of education, the more the tendency for over-
representation, and vice versa. The same correlation is true
with income. The statistics also demonstrate that wage
earners and blue collar workers are underrepresented by
13%.
These statistical disparities which undoubtedly exist be-
tween the population of Bergen County and those persons
who actually sit on the jury panels, are not, we are satisfied,
the result of any intentional or systematic discrimination or
exclusion, but rather the result of the use of voter registra-
tion lists as the source of the venire, and the tradition of
individualized excuses permitted by the court. See People
v. Chestnut, 26 N.Y. 2d 481, 260 N.F. 2d 501, 505 (Ct. of
App. 1970), where New York’s highest court approved
New York County’s quasi-voluntary grand jury selection
system which resulted in much greater disparity than the
present New Jersey system.
The Administrative Office of the Courts is considering
alternatives to the exclusive use of voting registration lists
in this state, including possible use of motor vehicle registra-
tions, real estate titles, and state income tax returns. There
l4 Appendix
would appear to be no statutory impediment to a more
universal selection method. See V.J.S.A. 2A:70-4; NwS.A.
2A -70-5. The federal statute approves use of voter registra-
tion lists and “some other source or sources of names in
additional to voter lists where necessary to foster the policy
and protect the rights” insured by the act. 28 U.S.C.A.
$ 1863(b) (2).
We are not persuaded that there is a constitutional
infirmity in the grand jury returning this indictment. Our
Supreme Court has stated that a court’s power to dismiss
an indictment is not to he exercised except on the clearest
and plainest grounds and the indictment should stand unless
palpably defective. This test is not met and the decision of
the trial court is affirmed. State vr. Weleck, 10 NJ. 355, 364
(1952): State v. Polito, 146 NU. Super. 552, 557 (App. Div.
1977): State v. Ferrante, WL Nw, Super. 299, 304 (App.
Div. 1970).
Affirmed.
A TRUE COPY
Elizabeth McLaughtia
Clerk
Appendix 15
Superior Court of New Jersey
Appellate Division
Docket No. A-498-77
State of New Jersey,
Plaintiff-Respondent,
Vv.
Alfred A. Porro, Jr., and Thomas Jones,
Defendants-A ppellants.
Halpern, P.J.A.D., dissenting:
The majority have fairly and fully set forth the relevant
facts and applicable law, including the law of those juris-
dictions that hold contrary to the conclusions reached by
them, so that to the extent possible T will not restate such
facts or law. Additionally, T am in accord with their de-
terminations, except insofar as they conclude that the
exclusion of all qualified full-time students! are not a
constitutionally protected cognizable class, and the exelu-
sion of such students is not a constitutional infirmity.
The exelusion of all full-time students from grand and
petit jury service in Bergen County emanated from an
administrative decision of the Grand Jury Commissioners.
There is no provision in the applicable statutes (N.J.S.A.
2A :68-1 through 2. :73-7) which specifically empowers the
Commissioners, or anyone else, to exclude or give exemption
1. The term “full-time students” refers to those attending
colleges on a full-time basis.
16 Appendir
from jury service to those qualified to serve. At best, it
can be said that the Commissioners have the inherent dis-
cretionary power to canvas the County and formulate the
lists of jurors to serve. NWJWS.A. 2A:70-5 and N.JS.A.
2A :70-1: State v. Forer, 104 N.J. Super. 481, 492-493 (Law
Div. 1969). However, the exercise of that discretion entails
some dangers and we must be ever vigilant to prevent dis-
eriminatory practices. State v. Rochester, 54 NJ. 85, 90
(1969).
It is one thing for the Commissioners to formulate a
qualified jury list for presentment to the Assignment Judge
hut it is another to grant blanket exemptions by administra-
tive fiat to an otherwise qualified group that consists of
about 44,000 persons. The right to grant exemptions from
jury service must not be confused with the right to excuse
persons selected for service when valid reasons exist there-
for. The right to create exemptions from jury service is a
legislative funetion, and the Legislature has expressed its
views in NUJ.S.A. 2A 69-2. Throughout the vears, the Legis-
lature has increased the classes of persons exempted. Today,
there are 12 classes of persons exempted and, significantly,
students of any elassifieation are not given exempt status.
I would hold that the Commissioners had no power to
exempt full-time students from jury service heeause such
power is vested solely in the Legislature.
Admittedly, NUJ.S.A. 24:72-7 eriminalizes conduet by
officials whereby qualified citizens are prevented from serv-
ing on juries” * * * on account of race, color, creed, national
stipulated to be between 5 and 6% of the voting population.
We have no way of knowing how many of such students attend
colleges in New Jersey, whether they are desirous of serving, or
whether they could arrange to serve without interfering with their
studies.
Appendix 17
origin, ancestry, marital status or sex.” The statute pro-
scribes excluding classes of persons from serving and im-
poses criminal penalties for violations of the statutory
mandate. This does not mean that courts must sanction
arbitrary and discriminatory classifications not proscribed
by the statute.
Every defendant has the constitutional right to have the
grand jury that indicts him selected from a representative
cross-section of the community. While defendant may not
be entitled to a grand jury of any particular composition,
nor one which reflects the various distinctive groups in the
county, the exclusion of identifiable qualified segments of
the population is proscribed. See Taylor v. Louisiana, 419
U.S. 522 (1975). The systematic and automatic exclusion
of 44,000) full-time students, or a substantial under-
representation of such a group, in my view, eliminates a
large, distinetive and cognizable group of prospective jur-
ors, who are reasonably representative of the community,
regardless of the benign intentions of the Commissioners
and may not be tolerated. See Taylor, supra, 419 U.S. at
5380; Castaneda v. Partida, ... U.S. ..., 51 L.Ed, 2d 498
(1977): Hernandez v. Texas, 347 U.S. 475 (1954): Thiel
rv. Southern Pacific Co., 328 U.S. 217 (1946); State v.
Rochester, supra, 54 N.J. at 89; State v. Stewart, 2 Nu.
Super. 15 (App. Div. 1949).
Although decided in a different context, but certainly
as important as the issue confronting us, Justice Jacobs,
speaking for a unanimous court on the right of eligible
college students to vote, had no difficulty in determining
that college students “* * * were subjected as a class to
questioning beyond all other applicants * * *.” Worden,
et al. v. Mercer Cty, Bd. of Elections, 61 N.J. 325, 348
(1972). The Court recognized college students as an impor-
18 clppendiz
tant, recognizable and knowledgeable force in our society
which had been discriminated against even when applying
a compelling state interest test to the exclusion, [ find it
extremely difficult to decide that full-time students’ consti-
tutional right and obligation to serve on a grand or petit
jury is of lesser constitutional value than the privilege to
vote. Citizenship not only grants fundamental rights and
privileges, but also imposes related obligations and respon-
sibilities to act for society when called upon to do so,
Likewise, if the exclusion from jury service of an eco-
nomie class (all daily wage earners) is proseribed, as was
the case in Thiel v. Southern Pacific Co., supra, how do we
justify the deliberate exclusion of a cognizable, knowledge-
able group such as full-time students who are an integral
and representative part of the community? The issue pro-
jected is not easy of solution, It is an issue of first impres-
sion in New Jersey and is worthy of our deepest considera-
tion. T am in accord with the concern expressed by the
court in .trderson ve Casscles, 5381 PF, 2d 682, 686 (2 Cir.
1976), that the antomatie exclusion of students poses a
substantial constitutional question which must he decided.
If courts are to sanction the intentional and systematic
exclusion of all full-time students, as was done here, and
deny them the right to function as qualified members of
our society, the limits to which the Tury Commissioners
could go in eliminating other distinetive and cognizable
qualified groups would be hounded only by the fertile imag-
inations of the Jury Commissioners, and would usurp the
funetion of the Legislature. There are many cognizable
eroups in our society who for valid reasons may be ex-
pected to ask to he exeused from jury duty, but that is a
far ery from eranting them exemption from sueh duty.
Accordingly, | would reverse,
A TRUE COPY
Blizabeth McLaughlin
Clerk
Appendix 19
Appendix C
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF TILE COMMITTEE ON OPINIONS
Superior Court of New Jersey
Law Division—Bergen County
Indictment No, S-1320-75
Strate or New Jersey,
Plaintiff,
vs.
Aurrep A, Porro, Jr., and
THOMAS JONES,
Defendants.
OPINION
DECIDED: July 20, 1977
Mr. Bernard 1. Segal, argued the cause for defendant,
Alfred A. Porro, Jr, (Mr. Michael A. Querques, attor-
ney of record; Messrs. Brigadier and Margulies, of
counsel).
Mr, James D. Checki, Jr., argued the cause for defend-
ant, Thomas Jones. (Messrs. Checki & Politan, attor-
neys).
Mr, James Mayer, Special Deputy Attorney General
argued the cause for the State (Mr. Roger W. Breslin,
Special Deputy Attorney General—In Charge, Acting
Prosecutor of Bergen County).
SCHIAFFO, J.S.C.
This motion challenges the array of the grand jury and
seeks dismissal of the indictment.
The defendants were indicted by a Bergen County Grand
20 Appendix
Jury on October 30, 1975 for the crimes of conspiracy
and misconduct in office.
Previously, defendants had filed several motions focusing
on dismissal of the indictment, asserting grounds ranging
from allegations of prosecutorial misconduct to deprivation
of the Sixth Amendment right to a speedy trial. All other
pretrial motions have been heretofore decided. The one
remaining motion is based on the alleged improper selection
and composition of the grand jury responsible for returning
the indictment. This challenge pierces the very heart of any
indictment’s vitality; the selection and composition of the
grand jury.
The defendants present a two-pronged attack to the jury
selection process at this time (1974-1975) in Bergen County.
First, they allege the substantial under representation of
certain classes and second, they allege the systematic ex-
clusion of students, a cognizable class. The State denies
that students constitute a cognizable class, raises the issue
of timeliness and additionally points out the serious impact
that a dismissal would have in this case since the Statute of
limitations has already run foreclosing the possibility of
reindictment. As to the latter assertion, the court dismisses
the same out of hand because if constitutional rights have
heen violated and the issue timely raised, any impact must
vield.
Timeliness
R. 3:6-2 provides that upon indictment the challenge to
the array “may be the basis of a motion to dismiss the
indictment.” Furthermore, such a motion shall be made
within 30 days of the service of the complaint or within 30
days of entry of the plea, whichever is later, or within
such further time as the court permits.
Appendix 21
Defendant Porro initially filed a challenge to the array
as part of a civil suit instituted against the Bergen County
Prosecutor's Office in October 1975. This challenge was
prior to tue date of indictment. Subsequent to the indiet-
ment, in the first week of November 1975, defendant Porro
filed a similar challenge pro se in the criminal action now
pending. The filing of these motions manifests a clear inten-
tion on behalf of defendant Porro to pursue a challenge to
the array and both were made well within the prescribed
time limits of R. 336-2.
Subsequent action taken by the courts further support a
finding that the challenge with respect to both defendants
is timely. Upon the order of Morris Malech, J.S.C. and with
consent of all parties, an omnibus hearing was scheduled
for the end of May 1976. The purpose of this hearing was
to dispose of all outstanding pretrial matters, The hearing
was conducted by this court and disposition of the challenge
to the array was reserved. Another hearing was conducted
by this court in September 1976, whereupon it became
evident that the defendants’ challenge would require exten-
sive additional discovery before any decision on the merits
could be reached. The court, therefore, reserved decision
until such reasonable time that discovery was complete.
Thereafter on November 30, 1976, Theodore W. Traut-
wein, A.J.S.C., issued an order mandating that certain jury
commission and other relevent records be made available
to the defendants. The order also provided that it was with-
out prejudice to, inter alia, defendants’ challenge to the
array.
It is the opinion of this court that the November 30, 1976
order of the Assignment Judge erases any doubt as to the
timeliness of the present motion in that it clearly indicates
an intention to sanction an extended period in which the
defendants could perfect discovery and does so in accord-
22 Appendiz
ance with the tenets of R, 3:6-2. Although it is true that the
time limitations prescribed by our court rules must be
honored so as to advance the orderly administration of
justice, these rules must maintain a degree of guarded
flexibility and adapt where good cause is shown and the
interests of justice would be served.
The motion is found to be timely.
Under Representation
The thrust of the defendants’ challenge is that because
of certain alleged defects in the jury selection process they
have been denied their constitutional right to a grand jury
which represents a fair cross-section of the community.
Although the Fifth Amendment right to indictment has
not been deemed one of those essential rights applicable
to the states through the Fourteenth Amendment where,
however, the individual states elect to grant this right, it is
axiomatic that the principles of Due Process and Equal
Protection must adhere. Hurtado v. California, 110 U.S.
516, 4.8. Ct. 111, 28 LD. Ed. 232 (1884) ; Alexander v. Lowisi-
ana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972)
(Douglas, J. concurring). The State of New Jersey has
extended this right to individuals. V.J. Const. (1947), Art.
I, $8. One need not dwell on the recognition that a necessary
extension of both the Fifth and Sixth Amendments of the
Federal Constitution is that the defendants be indicted and
tried hy juries of integrity representative of a valid cross-
section of the community. Neal v. Delaware, 103 U.S, 370,
26 L. Ed. 567 (1881); Peters v. Kiff, 407 U.S. 498, 92 S. Ct.
2163, 33 L. Ed. 2d 83 (1972). However, the scope of this
right does not entitle defendants to personally select to
their satisfaction the grand jury which will consider the
charges brought against them. Thiel v. Southern Pacific Co.,
Appendix 23
828 US. 217, 66S. Ct. 984,90 L. Ed. 1181 (1946) ; Virginia v.
Rives, 100 U.S. 313, 25 L. Ed. 667 (1880): Hoyt v. Florida,
368 U.S. 57, 82.8. Ct. 159, 7 L. Ed. 2d 118 (1961). The Con-
stitution protects them from consideration by a grand jury
selected as a result of systematic exclusion: intentional
design or scheme which excludes any identifiable class of
persons solely because of that classification. This rationale
extends to the situation where a grand jury will be absent
or proportionately lacking members of a eognizable class.
Virginia v, Rives, supra; State v. Smith, 55 N.J. 476 (1970).
There is no constitutional tolerance for the svstematie and
deliberate exclusion of members of any cognizable class
notwithstanding the underlying motive or good faith of
those entrusted with the selection process. Dow 1. Carnegie-
Iilinois Steel Corp., 224 F. 2d 414 (3 Cir. 1955), cert. den.
390 OS. 971, 76.8. Ct. 442, 100 L. Ed. 842 (1956): Crawford
vr. Bounds, 395 F.2d 297 (4 Cir. 1968).
In arguing the under representation of certain classes,
the defense introduced the testimony of a qualified expert
in the field of policy sciences and psychology, Dr. John B.
MeConahay, presently associated with Duke University.
Dr. MeConahay testified as to the alleged under represen-
tation of women, voung people between 18-34 vears of age,
blue collar workers and blacks and provided the court with
a statistical evaluation of these groups in relation to their
presence in the county and in the grand jury pool. He
further pointed out that the use of voter registration lists
as the source of names in jury selection could, as here,
foreseeably result in a situation where the master list
would end with prospective jurors having surnames be-
ginning with the letters M-W. This, he argued, allegedly
creates the risk of a disproportionate number of jurors not
heing representative of certain ethnic groups, although no
specific proof was offered in this regard.
24 Appendir
These arguments are without merit. The use of voter
registration lists as the sole source of names for prospec-
tive jurors has been consistently upheld by the federal
courts and the courts of this State despite the inevitable
result of some statistical disparity and disproportionate
representation of certain groups. Federal Jury Selection
and Service Act of 1968, 28 U.S.CLA. § 1861 ef seq.; State
vr, Rochester, 54 NJ. 85 (1969); State v. Forer, 104 Nd.
Super, 481 (Law Div. 1969). The decision in State v. Smith,
102 NJ. Super, 344, 355 (Law Diy. 1968), aff'd, 55 NU.
476 (1970) illustrates the firm adoption of this poliey.
This federal statute approves the use of the voter
registration lists as the source of names for jury serv-
ice and indicates it is the most effective means of ob-
taining juries which reflect a fair cross-section of the
community. This court agrees with this poliey and
holds that the use of voter registration lists as a source
of names for jury service is a valid method of prepar-
ing jury lists, even though qualified members of a
particular class of persons are under-represented on
the voter registration lists,
Precedent therefore recognizes that disproportionate repre-
sentation may result. This may be attributable to those
citizens who elect not to register to vote or there may be
a disparity in the demographic characteristies of the popu-
lation between any two municipalities in a given county.
The jury need not be the mirror image of the community.
Clones, need not, nor can be produced.
Systematic Exclusion of Students
Defendants have the burden of proof as to a prima facie
ease of systematic exclusion, See, ¢e.g., Akins ve Texas, 325
U.S, 398, 65 S. Ct. 1276, 89 L, Ed. 1692 (1945), reh. den.
Appendix 25
826 OS, S06, GOS. Cr 86, 90 L. Bd, 491 (1945), To sustain
this burden they must demonstrate that (1) an identifiable
Class does in fact exist and (2) purposeful exclusion of this
Class has oeceurred, Mernvande: v. Texas, 347 U.S, 475, 74
S.Ct 607,98 L. Bd. 866 (1954). Cognizability may be deter-
mined by considering three factors: (1) the presence of
some quality or attribute which defines and limits the group:
2) a cohesiveness of attitudes and experience which dis-
tinguishes the group from society in general: and (3) a
“community of interest’ whieh may not he adequately
represented by other societal groups. United States +, Gaez-
nian, 380 FL Supp, 140, 143 OS.D. NY.) aff'd. 468 F. 2a
1245 (2 Cir, 1972), cert. den 410 U.S, 987, 93 S. Ct. L397,
8) 1, Rd. 2d 602 (1973),
In the present case, the defendants have effectively
demonstrated that at the time of the subject indietment.
the grand jury selection process in’ Bergen County was
such that full thae students were automatically exeluded
from service. Hence. the second criterion enuneiated in
Hernances, supra has been satisfied. The more perplexing
issue is whether or not students constitute a cognizable
class so as to satisly the first criterion. Before reaching
that determination, it is necessary to place the entire analy-
sis within the context of the Bergen County Grand Jury
selection process affecting the 1975 term.
Pursuant to PR. 1233-2 and In re: Supervision and Assiqn-
ment of the Petit Jnry Panels in Essex County, 60 Nod.
NOt (1N7T2Z), the assigninent judge of the county is vested
with the primary responsibility for the supervision of jury
selection mechanics, This responsibility is further delegated
and shared in conjunetion with the jury commissioners and
associated personnel. During the period of time in question,
the selection process of both grand and petit jurors was in
26 Appendix
substantial accord with the Manual on the Selection of
Grand and Petit Jurors prepared by the Administrative
Office of the Courts, March 1973. Pursuant to the Manual,
which cites as its authority a State Supreme Court Diree-
tive, voter registration lists were and presently are the sole
source of prospective jurors. The initial ratio is the total
number of registered voters in each municipality over the
total number of registered voters in the county. The re-
sultant percentage represents the total number of persons
desirable from each municipality to be considered prospee-
tive jurors. Once the list of prospective jurors is formed,
questionnaires are sent and upon their return, the jury
commissioners apply the certain statutory qualifications
and exemptions based upon the content of the question-
naire, The final compilation is the master list. The theory
of random selection prevails throughout the process and
the ultimate panel is so drawn,
The defendants produced the depositions of the Assign-
ment Judge and the jury commissioners which confirm the
fact that at the time of this indictment, students were
systematically and purposely excluded from the list from
Which the prospective jurors were ultimately drawn. There
is not presently, nor was there at that time, any existing
statutory or administrative authority permitting the blan-
ket exclusion of students from jury service in the State
of New Jersey or Bergen County. These depositions dis-
close no malevolent intent or rationale underlying this
process. In fact it appears that the motivation was the
good faith belief that students should not be disturbed in
their academic pursuits particularly when jury service
would require their return to Bergen County from learning
institutions quite some distance away. However, the fact
of this benign or neutral motivation is irrelevant as delib-
Appendix 27
eration and intention need not be shown where a cognizable
class has been systematically excluded from the array.
Crawford v. Bounds, supra; Dow v. Carnegie-llinois Steel
Corp., supra, The procedure under attack has since been
altered in Bergen County to include students and others
on the list of prospective jurors and to consider excuses
on a case by case basis commencing January 1, 1977,
Thus having shown the systematie exclusion of students,
the defendants’ obligation at this juncture is to demonstrate
that “students” do in fact constitute an existing identifiable
class of constitutional import, the systematic exclusion of
which, irrespective of motive, would taint the composition
of the master list rendering the ensuing indictment invalid.
The threshold inquiry is the definition of a student. A
student is a person formally engaged in learning; one
enrolled in a school or college; any person who studies,
investigates, or examines thoughtfully. The Random House
Dictionary of the English Language (unabridged ed, 1966).
A student is a learner or a scholar; one who attends school.
Webster's Seventh New Collegiate Dictionary, (ed. 1972),
Students are therefore persons who are engaged in a
course of study. Given this definition, the three factors
suggested by the Guzman case must be applied to determine
their status as cognizable or noncognizahle, First, is there
Within the concept of students the presence of some quality
or attribute which defines and limits the parameters of
this group? Second, do they demonstrate a cohesiveness
of attitudes and experience which distinguish them from
society in general? Third, is there a “community of inter-
ests” which may not be adequately represented by other
societal groups? This court finds that students do not con-
stitute a cognizable class when assessed in light of these
factors.
28 Appendix
There are certain groups in society which have classically
constituted identifiable classes for the purpose of consti-
tutional protection and definition. Race, sex and economic
status are examples of these classifications. Carter v. Jury
Commission of Greene County, 396 U.S, 320, 90 8S, Ct. 518,
24 L.Ed, 2d 549 (1970) (blacks): Taylor v. Louisiana, 419
U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975) (women);
Thiel +. Southern Pacific Co., supra (daily wage earners).
Our own statutes governing juries recognize these same
classifications specifically and prohibit the disqualification
of any juror falling within any of these enumerated classes
where he otherwise meets those qualifications prescribed
by law. N./J.S.A, 2A :72-7. Students per se have not been so
isolated by statute or case law for special constitutional
treatment.
This court further notes that there exist portions of
our statutes dealing with juries which in fact result in
the systematic exclusion of certain groups, primarily
on the basis of employment. N./.S.A4. 2A :69-2. provides
for the exemption from service a number of groups: school
teachers during the school vear; regularly licensed and
practicing physicians and dentists; members of the police
force and State Legislature, ete. Systematic exclusion also
results with respect to those disqualified for service under
the provisions of V.J.S.A. 2A :69-1 for reasons of resideney,
age, literacy and ability to comprehend English. These and
similar exemptions or preconditions to service have been
upheld as necessary and reasonable providing no valid
basis for challenge. See, e.g., Gevernment of the Canal
Zone v. Scott, 502 F. 2d 566 (5 Cir. 1974) (military per-
sonnel); United States v. Catena, 500 PF. 2d 1319 (3 Cir.
1975). cert. den, 419 U.S. 1047, 95 S. Ct. 621, 42 L. Ed. 2d
641 (1974) (physicians in active practice); Rawlins v.
Appendix 29
Georgia, 201 U.S. 899 (1906) (lawyers, doctors, firemen;
State v. Anderson, 132 N.J. Super. 231 (App. Div. 1975)
(residence requirements).
Students do not conform to our traditional concepts
of constitutionally defined identifiable classes. Their motiva-
tions and goals are diverse, In this court’s opinion, this
so-called group is best analogized to an occupational status.
This conelusion is mindful of the guidelines set forth in
United States v. Guzman, supra. A student is basically not
different from a doctor, lawyer or teacher. Mach of these
professions possesses certain affinities and collective sensi-
bilities among its members which sets it apart from the
others. However, none of these professions retains a unique-
ness so predominate as to raise it to a level of constitutional
recognition as an identifiable class.
The more probing question involves the parameters of
this group. There is a tendeney in society to harbor a
stereotypical image of the student. The vivid events of
the 1960’s have left us with the general impression that
all students are voung, perhaps within the age range of
18-34 vears. This court rejects such an image as a fallaey
in the 1970's.’ Tnstitutions of learning have opened their
doors to persons from every societal strata. Today, persons
engaged in a course of study are not confined to the liberal
arts campus. Instead, we presently offer courses of study
on a part-time basis; vocational training: correspondence
study; schools devoted entirely to the study of theater arts,
ad infinitum. Fach individual enrolled in one of these
eirriculums falls within the accepted dictionary definition
of a student. The contemporary student profile may he of a
1. It is worthy of note that the statistieal disparities testified
to by Dr. MeConahay show no gross disparity in reiation to other
groups studied with respect to the number of those 18-34 years of
age in the jury wheel studied.
30 Appendiz
mother returning to school to either commence or complete
her formal education.
Even more compelling is the realization that the age
range of students is expansive. There is a very definite
trend toward the enrollment of persons over 30 at both the
graduate and under-graduate levels. This trend is reflected
in the student enrollment of Bergen County schools. Both
Farleigh Dickinson University and Bergen Community
College made available to the court a compilation of
statistical data which indicates a significant number of
students enrolled over the age of 34, particularly in part-
time programs.
Hence, is not a student the embodiment of a cross-section
of several identifiable classes present in the community?
A student may be 18 or 45. A student may be male or
female: black or white. The definition of a student as one
engaged in a course of study defies further definition. The
possibilities raised by such a definition are many. This
court sees no common bond existing between a student of
nuclear physics and a student of the arts; a student
of modern languages and a student of air-conditioning and
refrigeration: and a student of theology and a student
of the ballet, other than the pursuit of study. It is for these
reasons that the court must find that students do not
constitute a cognizable class of constitutional dimensions
whereby their exclusion would deprive the defendants of
indictment by a grand jury of integrity, representative
of a valid cross-section of the community. Neal v. Delaware,
supra.
This is not to sav that the court condones the blanket
and automatic exclusion of students which was the prac-
Appendix 31
tice prior to January 1, 1977 and has since ceased. Such
systematic exclusion was improper and should not have
been done. Llowever, the fact of this omission under the
present circumstances does not violate the defendants’ con-
stitutional righis. While a student may have good cause
to complain of his automatic exclusion from service during
the critical period of this ease, the defendants are not so
prejudiced,
This court takes note of the fact that there has been
recognition of student cognizability by the courts of other
states having equal jurisdiction. See, e.g., People v. Marr,
67 Mise, 2d 115, 324 N.Y.S. 2d 608 (Justice Ct. 1971) and
People v. Attica Bros., 79 Mise. 2d 492, 359 N.Y.S. 2d 699
(Sup. Ct. 1974). Hlowever, in this court’s opinion said deter-
minations were arbitrary without ascribing reasons there-
for, or made certain assumptions not specifically proved.
This court is not bound by these decisions. The opinions
of sister states further indicate no clear and convincing
consensus on student cognizability. This expression of
uncertainty, together with the court’s opinion, in any event
requires that any doubt, if it exists, must be resolved in
favor «f sustaining the indictment. The court's power to
dismiss an indictment is not to be exercised except on the
clearest and plainest grounds and the indietment should
stand unless it is palpably defective. State v. Weleck, 10
N.J. 355, 364 (1952); State v. Ferrante, 111 NuJ. Super.
299, 304 (App. Div. 1970). -
The defendants’ motion is denied.
Submit an appropriate order.
32 Appendix
ROGER W. BRESLIN, JR.
Special Deputy Attorney General-
In-Charge
Acting Prosecutor
3ergen County Courthouse
Ilackensack, N. J.
(201) 646-2300
Superior Court of New Jersey
Bergen County—Law Division
Indictment No. S-1520-75
THrE STATE oF NEW JERSEY
vs.
Aurrep A. Porro, Jr. and
THoMAS JONES
Defendants.
Criminal Action
ORDER
This matter having been opened to the Court by Michael
Querques, Esq., on behalf of defendant ALFRED A.
PORRO, JR., and Bernard Segal, sq., appearing pro hac
vice, on behalf of defendant ALFRED A. PORRO, JR.,
and James D, Checki, Jr., sq., having joined in this matter
on behalf of THOMAS JONES, on a motion under Rule
3:6-2, challenging the array of the Grand Jury, September
Term 1974, Third Stated Session, and seeking dismissal
of Indictment No, S-1320-75, on the ground that the Grand
Jury which voted that same indictment was selected in an
unconstitutional manner and did not represent a fair cross
Appendix 33
section of the population of Bergen County, and the Court
having considered the affidavits, exhibits, testimony and
briefs, and oral arguinent of respective counsel, and for
good cause shown;
IT IS on this 29th day of July, 1977,
ORDERED, that the within motion to dismiss Indiet-
ment No, S-1520-75, be and hereby is denied for the reasons
set forth in the Court’s written opinion of July 20, 1977.
Aurrep D. Scutarro, J.S.C.
Alfred D. Schiaffo, J.S.C.
Appendix D
VITA
JOHN B. McCONAHAY March, 1977
Associate Professor of Policy Sciences
and Psychology
Duke University
Personal
Addresses: Phones:
Office (919) 684-6612 (Office)
Institute of Poliey Sciences (919) 684-2093 (Office)
Duke University
4375 Duke Station
Durham, NC 27706
Home (919) 286-1364 (Home)
2101 Englewood Avenue
Durham, NC 27705
Date & Place of Birth: Marital Status:
December 24, 1938 Married, 3 children
Indianapolis, Indiana
Education
B.S., Engineering, 1958, Illinois Institute of Technology
(with distinction )
B.D., Religion, 1965, Yale University
M.A., Social Psychole gy, 1967, University of California/Los
Angeles
Ph.D., Social Psychology, 1968, University of California/Los
Angeles (with distinction)
Employment
1974- , Associate Professor of Policy Scienees and Psy-
chology, Duke University.
1969-74, Assistant Professor of Political Science and Psy-
chology, Yale University.
Appendix 35
1968-69, Instructor, Claremont Graduate School and School
of Theology.
1967-68, N.EM.H. Research Fellow, University of Cali-
fornia/Los Angeles,
1965-67, Research Assistant, Los Angeles Riot Study, Uni-
versity of California/Los Angeles,
1962-65, Teaching and Research Assistant, Psychiatrie
Aide, Yale University.
1958-62, engineer, Administration, Indiana Rating Bu-
reau, Indianapolis, Indiana.
1959, Field Artillery, U.S. Army.
Administrative Experience
Director, Psychology and Politics Graduate and Post-
Doctoral Program, Yale University, (1969-1974).
Director of Research, High School in the Community
valuation, Mducational Research Service, New Haven,
Connecticut (1971-1974).
Assistant Director of Engineering Administration, Indiana
Rating Bureau, Indianapolis, Indiana (1959-1962).
Professional Activities
Memberships: American Psychological Association,
American Political Science Association,
Society for the Psychological Study of So-
cial Issues, Society for the Scientific Study
of Religion, American Association for the
Advancement of Science.
Committees : Academie Freedom and Elections (chair)
Committees of the Society for the Psycho-
logical Study of Social Issues. Division 8
Program Committee, American Psyvchologi-
cal Association.
Iditorial Boards:
Journal of Conflict Resolution, 1972-1978.
Contemporary Psychology, 1974-1979.
Editorial Consultant to The American Political Science
Review, Journal of Personality and Social Psycholoqy,
Journal of Social Issues, Journal of Politics, Political
36 Appendix
Methodolegy, Journal for the Scientific Study of Re-
ligion, American Journal of Political Science, Experi-
mental Study of Politics, Political Science Quarterly,
Journal of Personality.
Grants:
Director, Program of Advanced Training in Psychology
for Political Scientists, National Institute of Mental
Health, $805,000, Yale University, 1969-1974,
Co-principal Investigator, Racial and Political Socializa-
zation and Urban Violance, National Science Founda-
tion, $15,500, UCLA, 1968-1970.
Co-principal Investigator, Religion and Racial Prejudice,
Irwin, Sweeney, Miller Foundation of Columbus, Indi-
ana, $10,000, School of Theology at Claremont, 1968-
1969,
Co-principal Investigator, Racial Attitudes and Busing
in Louisville, Ford Foundation, $165,000, Duke Uni-
versity, L976-1978.
Lectures at Other Universities:
All major universities including Columbia, Harvard,
Princeton and various campuses of the University of
California. List available on request.
Consulting:
Project Understanding, Claremont, California. Sampling
and evaluation design for a nationwide project to com-
bat racism in Protestant Churches (1969-1970 and
1972-1973).
Claremont, California, Public Schools. Survey to assess
attitudes toward schools and property taxes for sup-
port of schools (1968-1969).
New Haven Public Schools. Evaluation design for High
School in The Community (1971-1974).
New Haven Housing Authority, Sampling Design and
Opinion Questionnaire to Survey Residents of Housing
for Low Income and Elderly Persons (1972).
Appendix 37
Time-Life Books, Social Sciences Series (1974-1976).
Juror Selection and change of venue in the trial of Joan
Little, Raleigh, North Carolina Superior Court (1975).
Juror Selection and change of venue in the triel of Dessie
X. Woods and Cheryl S. Todd, Wheeler County,
Georgia, 1976.
Durham Urban Observatory, Sampling Design and
Survey of Citizen Attitudes Toward Durham City
Services (1976).
Change of Venue Survey for Frederick N. Woods, Oak-
land, California (1977),
Tonors and Prizes
NIMH Predoctoral Fellowship, 1967-68.
Edward L. Bernays Psychology and Social Issues Book
Award given by The Society for the Psychological
Study of Social Issues for the book The Politics of
Violence (see below), 1975.
Publications
Dissertation:
The Effects of Cognitive Closure and Confidence in
Ability to Make Attributions Upon Affiliation Under
Threat. Ph.D. Dissertation, University of California,
Los Angeles. (Ann Arbor, U. Microfilms, 1968) No. 69-
7253.
Books:
Sears, D. O. and J. B. MeConahay, The Politics of Vio-
lence: The New Urban Blacks and the Watts Root.
Boston: Houghton Mifflin, 1973. (Winner of the Ed-
ward L. Bernays Book Award, 1975, see above.)
Ashmore, R. D. and J. B. MeConahay, Psychology and
America’s Urban Dilemmas. New York: MeGraw-Hiill,
1975.
38 Appendir
Book Chapters:
Sears, D. O. and J. B. MeConahay, “Riot Participation”
in Nathan Cohen (Ed.), The Los Angeles Riois: A
Socio-Psychological Study. New York: Praeger, 1970,
pp. 258-287.
Sears, D. O. and J. B. MeConahay, “The Polities of Dis-
content: Blocked Mechanisms of Grievance Redress
and the Psychology of the New Urban Black Man.” In
Nathan Cohen (d.), The Los Angeles Riots: A Socio-
Psychological Study. New York: Praeger, 1970, pp.
413-479.
MeConahay, J. B., “experimental Research.” In J. Knut-
son (d.), Mandbook of Political Psychology. San
Francisco: Jossey-Bass, 1973.
MeConahay, J. B., “Experimental Design in Political
Science.” In D. Leege (ld.), Standards for Design and
Measurement in Political Science. New York: Aca-
demic Press, 1976 (in press).
MeConahay, J. B., Frey-MeConahay, S., Trickett, It. J.,
Gruber, J. e., and Hawley, W. D., “Evaluation of High
School in the Community, New Haven, Connecticut.”
In M. D. Fantini (d.), ullternative Education: A
Source Book for Parents, Teachers, Students and Ad-
ministrators. New York: Anchor/Doubleday, 1976,
pp. 318-327.
MeConahay, J. B., “Nonconventional Political Behavior.”
In B. B. Wolman and L. R, Pomroy (Eds.) /nterna-
tional Encyclopedia of Neurology, Psychiatry, Psycho-
analysis and Psychology. New York, 1977 (In press).
Journal Articles:
Sears, D. O. and J. B. MeConahay, “Participation in the
Los Angeles Riot.” Social Problems. 1969, 17, 3-20, (Re-
printed by the American Sociological Association
Committee on Problems in American Democracy in
Helen MacGill Hughes (Hd.) Crowd and Mass Be-
havior. Boston: Allyn and Bacon, 1972 and in R. P.
Lowry and R. P. Rankin (Ed.), Sociology: Social Sci-
ence and Social Concern, New York: Seribners, 1972.
Appendix 39
MeConahey, J. B., “Religion and Discontent T: Attitudes
of Negroes Toward the Church Following the Los
Angeles Riot.” Sociological Analysis, 1970, 31, 12-22
Sears, D. O. and J. B. MeConahay, “Racial Socialization,
Comparison Levels, and the Watts Riot.” Journal of
Social Issues, 1970, 26, 121-140. (Reprinted in S.A.
Kirkpatrick and L, K. Pettit (lds.), The Social Psy-
cology of Political Life. Belmont, California: Duxbury
Press, 1972. Also reprinted in J. IL. Hamsher and H.
Sigall (lMds.), Psychological Research and the Prob-
lems of Society. New York: MacMillan, 1973.)
Johnson, P. B., D. O. Sears, and J. B. MeConahay, “Black
Invisibility, the Press and the Los Angeles Riot.”
American Journal of Sociology, 1971, 76, 698-721.
MeConahay, J. B., “Psychological Testing in Evaluation
and Guidance of Seminary Students.” Theological Edu-
cation, 1971, 7, 109-120.
Kraut, R. ke. and J. B. MeConahay, “How Being Inter-
viewed Affects Voting: An Experiment.” Public Opin-
ion Quarterly, 19738, 37, 398-406,
MeConahay, J. B. and J. C. Hough, Jr., “Love and Guilt
Oriented Dimensions of Christian Belief.” Journal for
the Scientific Study of Religion, 1978, 12, 53-64.
MeConahay, J. B. and J. C. Hough, Jr... “Symbolie
Racism.” Journal of Social Issues, 1976, 32, 23-45.
Frey-MeConahay, S.A. and J.B. MeConahay, “Sexual
Permissiveness, Sex-Role Rigidity and Violence Across
Cultures.” Journal of Social Issues, 1977, 33 (In
Press).
MeConahay, J.B.; C.J. Mullin and J. Frederick, “The
Uses of Social Science in Trials with Political and
Racial Overtones: The Case of Joan Little.” Law and
Contemporary Problems, 1977 (In Press).
Book Reviews:
MeConahay, J. B., Review of Anthony M. Platt, The
Politics of Riot Commissions. New York: MaeMillan,
1971. In Public Opinion Quarterly, 1972, 36, 482-484.
ee ee
40 Appendix
McConahay, J.B. “Personality, Polities and Path An-
alysis” a review of Paul Sniderman’s Personality and
Democratic Politics. In. Contemporary Psychology,
1976, 27, 203-265,
MceConahay, J.B., a review of K.T. Chun, S. Cobb and
JR”. French, Jr. Measures of Psychological Assess-
mer in The American Political Science Review, 1977
(In ’ress).
MeConahay, J.B. “The Ultimate Attributions of Ameri-
‘ans, a review of W.C. McCready and A.M. Greeley,
The Ultimate Values of the American Population in
Contemporary Psychology, 1977 (In Press).
Unpublished Convention and Conference Papers:
|
MeConahay, J.B. and D. O. Sears, “Negro Socialization
and the Watts Riot.” Paper read to the International
Congress of Psychology. London: July, 1969,
Hough, J. C. and J. B. MeConahay, “Love and Guilt
Oriented Religious Beliefs and Their Relationship to
Attitudes on Race, Police Brutality and Political In-
volvement.” Paper read to the Society for the Scientific
Study of Religion. Boston: October 1, 1969,
MeConahay, J. B., “Religion and Discontent Il: Negro
Attitudes Toward the Church and Participation in the
Los Angeles Riot.” Paper read to the Society for the
Scientific Study of Religion. New York: October, 1970.
Kraut, R. Ee. and J. B. MeConahay, “An Experimental
Study of the Effects of ‘Public Opinion Polling’ and
Alienation Reduetion Upon Turnout in Primary Elee-
tions.” Paper read to the American Political Science
Association. Chicago, 1971.
MeConahay, J. B., “Experimental Design in Political
Science.” Paper presented at National Science Founda-
tion sponsored Conference on Research Standards for
Political Science, Lake Lawn Lodge, Wisconsin, May
13-15, 1974.
MeConahay, J.B. “The Implications of Psychology for
Survey Research.” Invited address at the spring con-
vention of the American Association for Public Opinion
Research, Asheville, N.C., May, 1976.
Appendix 41
Bishop, G.D., D.L. Hamilton, and J.B. MeConahay, “Atti-
tudes, Non-Attitudes and the Nature of Political Belief
System.” Paper delivered at the Annual Convention
of the American Psychological Association, Washing-
ton, D.C., September, 1974.
Technical Reports:
Hawley, W. D., J. B. MeConahay, 5S. F. MeConahay,
IX. Nelson, and J. Gruber, “What i! They Had a High
School Where They Tried Out AL the New Ideas in
Idueation?: An Evaluation of New Haven’s High
School in the Community.” New Haven: Working
Paper of the Center for the Study of Edueation, Yale
University, 1973.
MeConahay, J. B. and Hough, J. C., Jr., Value Roots of
Symbolic Racism (Working Paper No. 1075) Durham:
Duke University, Institute of Policy Sciences, October,
1975.
MeConahay, J.B.; Mullin, C.J. and Frederick, J.T., The
Uses of Social Science in Trials with Political and
Racial Overtones: The Trial of JoAnn Little. (Work-
ing paper No. 12761) Durham: Duke University, Insti-
tute of Policy Sciences, December, 1976.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.