Petition — Manson v. Villafane
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Office -Supreme Court, U.S.
FILED
a 80-1667 eg 2 196
ALEXANDER L STEVAS,
No. CLERK
In The
Supreme Court Of The United States
OCTOBER TERM, 1980
JOHN R. MANSON,
Petitioner
V.
MAXIMINO VILLAFANE
Respondent
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR CERTIORARI
ROBERT E. BEACH, JR.
Assistant State’s Attorney
Office of the Chief
State’s Attorney
P.O. Box 5000
Wallingford, CT 06492
(203) 265-2373
«
QUESTIONS PRESENTED FOR REVIEW
A. Even if grand juries were selected improperly, is
the remedy of vacating a murder conviction appropriate
where the composition of the petit jury is not challenged
and where, in the intervening years between the criminal
defendant’s indictment and the federal habeas corpus
action, the grand jury selection process has been
reformed?
B. Is a prima facie case of substantial underrepre-
sentation of Hispanics on grand juries established
where, over a nine year period of time, the average
percentage of Hispanics on the voter lists was approxi-
mately 0.9% and the percentage of Hispanics on grand
juries was approximately 0.3%.
C. Did the Second Circuit Court of Appeals err in
finding discriminatory purpose in selection of grand
juries compel reversal of a conviction where there is no
substantial underrepresentation?
a.
8
755
TABLE OF CONTENTS
Page
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/ ᷣ iis ph LoS eWew bbe cvedavetvcntone 2
CONSTITUTIONAL AND STATUTORY
ce bt SERS re a eR Sy ot PS oa 3
STATEMENT OF THE CASE .............cceceeeees 4
REASONS FOR GRANTING THE WRIT............ 7
A. IS REVERSAL OF A CONVICTION
REQUIRED WHEN THE GRAND JURY
SELECTION PROCESS HAS BEEN
/ ̃ͤ A 7
B. A PRIMA FACIE CASE OF SUBSTANTIAL
UNDERREPRESENTATION WAS NOT
— v 8
C. IN THE ABSENCE OF A FINDING OF
SUBSTANTIAL UNDERREPRESENTATION,
MAY A CONVICTION BE REVERSED ON
A FINDING OF DISCRIMINATORY
„„ cs bnad bb hedue UES bbC codbeh wasnt 9
. choc bdas va dheds cans cdncdeses e 11
ii
TABLE OF AUTHORITIES
Avery v. Georgia, 345 U.S. 559 (1953)..............
Cassell v. Texas, 339 U.S. 282 (1950)
Castaneda v. Partida, 430 U.S. 482 (1977)..........
Rose v. Mitchell, 443 U.S. 545 (1979)
State v. Villafane, 164 Conn. 637 (1973) ............
Swain v. Alabama, 380 U.S. 202 (1965).............
United States v. Maskeney, 609 F.2d 183
Ry eee re
„ % „„ „ „ „ „ „ „ „%
Washington v. Davis, 426 U.S. 229 (19760)
OPINIONS BELOW
The opinion of the trial court, the Superior Court, is
not reported. The Supreme Court of Connecticut opinion
appears at 164 Conn. 637, 325 A.2d 251 (1973); this
opinion is confirmed at 171 Conn. 644, 372 A.2d 82
(1976). Certiorari was denied at 429 U.S. 1106, 97 S.Ct.
1137, 51 L.Ed.2d 558 (1977).
The opinion of the District Court for the District of
Connecticut, Civil No. H-78-177 (July 7, 1980), has not
been reported, nor has the brief affirmance of the United
States Court of Appeals for the Second Circuit, No. 80-
2215 (November 6, 1980).
JURISDICTIONAL GROUNDS
The action was brought by the respondent Maxi-
mino Villafane, pursuant to 28 U.S.C. §2254, in the
United States District Court for the District of Con-
necticut. The petitioner, Commissioner of Corrections of
the State of Connecticut, appealed to the United States
Court of Appeals for the Second Circuit, which affirmed
the District Court’s order on November 6, 1980. A
motion for a rehearing was denied by the Court of
Appeals on February 18, 1981. It is believed that this
Court’s jurisdiction to review the judgment by writ of
certiorari is conferred by 28 U.S.C. §1254(1).
9
4
CONSTITUTIONAL PROVISIONS
The Fourteenth Amendment to the Constitution of
the United States provides in pertinent part:
Nor (shall any State) deny to any person
within its jurisdiction the equal protection of
the laws.“
Section 54-45 of the Connecticut General Statutes
provides in part:
“The superior court may, when necessary, order
a grand jury of eighteen electors of the judicial
district where said court is sitting to be sum-
moned, impaneled and sworn to inquire after
and present such offenses as are cognizable by
said court....No person shall be put to plea or
held to trial for any crime the punishment of
which may be death or imprisonment for life
unless an indictment has been found against
him for such crime by a grand jury legally im-
panelled and sworn....”’
STATEMENT OF THE CASE
Villafane was indicted for the crime of felony murder
on December 6, 1971, by a grand jury convened in Fair-
field County, Connecticut. (App. 3A). Prior to trial, he
moved to quash the indictment; the motion was granted
by the trial court, which held essentially that the results
of the selection process were inconsistent with random
selection. (App. 21A-22A). Its findings of fact have
been to a large extent relied upon throughout the course
of the litigation.
The state appealed to the Connecticut Supreme
Court, which reversed the Superior Court and reinstated
the indictment. Recognizing that ‘‘[plurposeful discrimi-
nation exists whenever significant unexplained
disparities exist alongside an opportunity. to discrimi-
nate, the Connecticut Supreme Court found that the
statistics used by the Superior Court overrepresented
the percentage of Puerto Ricans in the electoral pool and
that court’s conclusion of significant underrepresenta-
tion of Puerto Ricans serving on grand juries could not
be sustained. See State v. Villafane, 164 Conn. 637, 647,
649-51, 325 A.2d 251 (1973).
Villafane was tried and convicted of murder in the
first degree and his conviction was confirmed by the
Connecticut Supreme Court. State v. Villafane, 171
Conn. 644 (1976). No claim has been made that Puerto
Ricans were systematically excluded from the jury
which convicted him.
After certiorari was denied by this Court; 429 U.S.
1106, 97 S.Ct. 1137, 51 L. Ed. 2d 558 (1977); Villafane
filed an action in the District Court for the District of
Connecticut pursuant to 28 U.S.C. 52254, which alleged,
inter alia, a violation of the Equal Protection Clause of
the Fourteenth Amendment in that Puerto Ricans were
systematically excluded from grand juries in Fairfield
County. The District Court, Blumenfeld,J., granted
relief; if concluded, through an application statistical
4
decision theory, that where Puerto Ricans constituted
over a nine year period of time .93% of the eligible
grand jury pool, and approximately 0.3% of the grand
jurors selected were Puerto Rican, the actual result ws
inconsistent with random selection and a prima facie
case was established by the “rule of exclusion. The
District Court went on to hold that the prima facie case
not not rebutted by a showing of the voluntary nature
of grand jury selection; finally, it rejected a contention
that Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61
L.Ed.2d 739 (1979), does not foreclose a finding of
harmless error because the selection process has long
since been reformed. (App. 27A et seq.)
The State of Connecticut appealed to the United
States Court of Appeals for the Second Circuit, which
affirmed the order of the District Court but which used
a totally different rationale. It held that the selection
process was not racially neutral, that there was a failure
on the part of the sheriff who picked grand jurors to be
informed of eligible Hispanic grand jurors, and that
there were no Hispanics on the grand jury which in-
dicted Villafane, (App. IA). A petition for rehearing in
banc, which alleged inter alia that there was no factual
basis for the Second Circuit’s conclusion and that
absent a showing of actual substantial underrepresenta-
tion, the Cassell v. Texas, 339 U.S. 282 (1950), reasoning
is inapposite, was denied. (App. 2A).
The underlying facts are relatively simple. Villafane
was indicted in 1971. During the nine year period from
1963-1971, 738 selections were made for service on
grand juries in Fairfield County. The selections were
made from a list of 138 names which was kept by the
Sheriff of Fairfield County, who at the time was John
Previdi. (App. 4A-5A). The list included people with
different occupations and ages. He inherited the list
from his predecessor in 1963; during the period of time
from 1963-1971, the list was altered by about 25 names.
The sheriff personally chose the replacements. (App.
4A-5A).
to request his service again but was unable to locate
refused to serve again. (App. 13A). If two of the 738
selections were Hispanic, the proportion would be about
A statistician determined that the chances that two
or fewer Hispanics could have been chosen through a
random selective process was 3.28%. As that probability
was less than 5%, the hypothesis of random selection
was rejected. (App. 36A-46A).
The Court had before it an affidavit of C. Young
Becker, a Deputy Sheriff, to the effect that the system
for selecting grand jurors has been reformed. Now, the
sheriff picks the names of grand jurors at random from
a pool of those available for regular jury service. (121A)
The latter jurors are selected according to an elaborate
system outlined in 8851-217 et seq. of the Connecticut
General Statutes; the validity of this selection process
has not been attacked by Villafane. The court, neverthe-
less, granted relief. (App. 39A-40A).
REASONS FOR GRANTING
A WRIT OF CERTIORARI
A. EVEN IF GRAND JURORS ARE IM-
PROPERLY SELECTED, DOES ROSE V.
MITCHELL, 443 U.S. 545 (1979) REQUIRE
REVERSAL WHEN THE SELECTION
PROCESS HAS BEEN REFORMED?
As noted above, the District Court found substantial
underrepresentation of Hispanics on grand juries from
1963-1971 and granted relief; the Second Circuit affirm-
ed on somewhat different grounds. In both counts, the
state of Connecticut claimed that any error was harm-
less, as the selection system had, between the times of
the indictment and the federal action, been changed. The
District Court rejected the claim and the Second Circuit
didn’t appear to consider it.
By a narrow margin, this Court rejected a similar
claim in Rose v. Mitchell, supra. While this Court recog-
nized that significant costs attend the reversal of a
conviction because of a defect in the selection of a body
which determines only probable cause, five Justices held
that the costs were outweighed by the policy of the
Court of combatting discrimination and that alternative
remedies, such as federal prosecutions and civil actions,
were not sufficiently effective.
Here, a different situation was presented. The Dis-
trict Court accepted, at least for purposes of argument,
that the selection of grand jurors in Fairfield County
was now performed randomly, but held that Rose fore-
closed relief. But here, there are no remaining rights of
society to be vindicated; the indictment in question was
handed up almost ten years ago and the system has
been changed. Villafane has suffered no prejudice: it is
well established that no one has a right to a particular
cross-section on his “own” grand jury and no claim has
7
8
8
urged that the question presents an important
question of federal constitutional law not yet decided by
this Court and review by this Court is appropriate.
B. A PRIMA FACIE CASE OF SUBSTANTIAL
UNDERREPRESENTATION WAS NOT
ESTABLISHED.
The District Court applied statistical decision theory
to the findings of fact, derived primarily from state
court proceedings. The facts relied upon by the District
Court were that during 1963-1971, 738 selections were
made from a pool whose Hispanic contingent consti-
tuted 0.93%. Two, or about 0.3%, of the selections were
Hispanic.! A statistician computed that the chances of
this result occurring under a random selection process
was 3.28%; as this figure was less when two standard
deviations, i.e., 5%, the hypothesis of randomness was
rejected and systematic exclusion was inferred. One
judge on the panel of the Court of Appeals would have
affirmed on the basis of this analysis.
It is submitted that this Court has never considered
such a slight underrepresentation to be “substantial.”
In Swain v. Alabama, 380 U.S. 202 (1965), for example,
blacks represented 26% of the population and 10-15% of
jury panels. This Court. found the underrepresentation
not to be substantial. By contrast, in Castaneda v.
Partida, 430 U.S. 482, 492 (1977), the Court found an
underrepresentation of 40%. The chances of this result
were, depending on the sample used, either one in 10140
or one in 1025. The contrast to the present case is strik-
ing. It is submitted that a gross deviation of 0.6%,
where there is not total exclusion, can hardly constitute
substantial underreprvsentation.
lwWhether the findings necessarily support these statistical ‘“conclu-
sions” has been contested by the petitioner. For purposes of this
argument, however, they are accepted.
8
statistical decision theory altogether. In United States
Fifth Circuit noted that this Court has always relied
upon absolute disparities in its holdings.
It is submitted that the holding in this case is
contrary to the opinions of this Court and to that of at
least one other Circuit, and certiorari should be granted.
C. MAY A FINDING OF DISCRIMINATORY
PURPOSE IN THE SELECTION OF GRAND
JURORS VITIATE A CONVICTION IN
THE ABSENCE OF SUBSTANTIAL UNDER-
REPRESENTATION?
The Second Circuit affirmed the opinion of the
District Court by mentioning that the selection process
was not neutral, there was a failure on the part of the
sheriff to be informed of eligible Hispanics, and no His-
panics were on the grand jury which indicated Villafane.
The Court of Appeals relied upon Washington v. Davis,
426 U.S. 229 (1976); Avery v. Georgie, 345 U.S. 559
(1953); and Cassell v. 1 eas, 339 U.S. 282 (1950).
First, it is submitted that the fact that the sheriff
failed to be informed of eligible Hispanics has no
support in the record: in fact, he enlisted aid in finding
more Hispanics. (App. 10A). More importantly, however,
the Court of Appeals never considered whether there
existed substantial underrepresentation in the first
place. ;
The reference to Washington v. Davis, supra, was
misleading in that in that case the test was dicta and,
crucially, a racially disproportionate impact had been
shown and the issue was discriminatory intent. In
Avery v. Georgia, supra, a fairly obvious color-coding
system was used for jury selection and, though over 5%
*
constituted 25% of the population and 14% of the tax
receiver’s digest. Similarly, in Cassell v. Texas, supra,
there were a large number of eligible blacks, none were
selected, and apparently no efforts were made to find
blacks to serve.
Recent cases have required a showing of substantial
underrepresentation be*ore the question of intent is
addressed:
[In order to show that an equal protection
violation has occurred in the context of grand
jury selection, the defendant must show that
the procedure employed resulted in substantial
underrepresentation of his race or of the identi-
fiable group to which he belongs. The first step
is to establish that the group is one that is a
recognizable, distinct class, singled out for
different treatment under the laws, as written
or as applied....Next, the degree of underrepre-
sentation must be proved, by comparing the
proportion of the group in the total population
to the proportion called to serve as grand
jurors, over a significant period of time.
[A] selection procedure that is susceptible of
of abuse or is not racially neutral supports the
presumption of discrimination raised by the
statistical showing....Once the defendant has
shown substantial underrepresentation of his
group, he has made out a case at discriminatory
purpose....
Castaneda v. Partida, supra, at 494-95.
See also Rose v. Mitchell, supra, at 3008-09.
It is submitted that in the absence of a showing of
substantial underrepresentation, a prima facie case
cannot be established, and that the Court of Appeals
decided the case contrary to the opinions of this Court.
| 10
N
*
sie
CONCLUSION
The petitioner urges that certiorari be granted in
this case. The underrepresentation of Hispanics was
minor. As the issue has nothing to do with the deter-
mination of guilt or innocence and the system has been
changed, no useful purpose is served by the reversal of
a conviction.
-JOHN R. MANSON
By
ROBERT E. BEACH, JR.
Assistant State’s Attorney
Office of the Chief State’s Attorney
P.O. Box 5000, Wallingford, CT 06492
(203) 265-2373
11
No.
In The
Supreme Court Of The United States
OCTOBER TERM, 1980
JOHN R. MANSON,
Petitioner
V.
MAXIMINO VILLAFANE
Respondent
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
APPENDIX TO PETITION FOR CERTIORARI
ROBERT E. BEACH, JR.
Assistant State’s Attorney
Office of the Chief
State’s Attorney
P.O. Box 5000
Wallingford, CT 06492
(203) 265-2373
TABLE OF CONTENTS - APPENDIX
Page
1. Opinion of Second Circuit................0eeeeeees 1A
2. Denial of Motion for Rehearing ................... 2A
3. Portion of the Opinion of the Connecticut
Supreme Court ——*—2ꝛ᷑ 3A
4. Findings of Fact · Superior Court.. 9A
5. Portions of District Court Opinion............... 27A
IN ůũmö m] ße /ßßß 41A
as We,
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT - OPINION
MAXIMINO VILLAFANE,
Petitioner-Appellee
against 80-2215
JOHN R. MANSON,
Respondent-Appellant
Appeal from the United States District Court for
the District of Connecticut.
There is no dispute that the selection procedure was
not racially neutral; that there was a failure on the part
of the Sheriff to be informed of eligible Hispanic grand
jurors in Fairfield County; or that there were no His-
panics on the grand jury which indicted the petitioner.
These factors raise the presumption of discrimination
which was not rebutted by the respondent. Washington
v. Davis, 426 U.S. 229, 241 (1976); Avery v. Georgia,
345 U.S. 559 (1953); Cassell v. Texas, 339 U.S. 282
(1950).
The order is affirmed.
Judge Oakes concurs and would also affirm on
Judge Blumenfeld’s opinion below (Civil No. H-78-117,
D. Conn. July 7, 1980).
William H. Mulligan
James L. Oakes,
Circuit Judge
Charles M. Metzner
ne Judge
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of
Appeals, in and for the Second Circuit, held at the
United States Court House, in the City of New York, on
the 18th day of February, one thousand nine hundred
and eighty-one.
MAXIMINO VILLAFANE,
Petitioner-Appellee,
No. 2215
v.
JOHN R. MANSON, Commissioner of Corrections,
Respondent-Appellant,
A petition for rehearing containing a suggestion
that the action be reheard in banc having been filed
herein by counsel for the respondent-appellant, John R.
Manson,
. Upon consideration by the panel that heard the
appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing
in banc has been transmitted to the judges of the court
in regular active service and to any other judge on the
panel that heard the appeal and that no such judge has
requested that a vote be taken thereon.
A. Daniel Fusaro, Clerk
2A
STATE OF CONNECTICUT
v.
MAXIMINO VILLAFANE
Argued February 7 - decided May 2, 1973
Indictment charging the defendant with the crime of
murder in the first degree, brought to the Superior
Court in Fairfield County; the defendant’s plea in abate-
ment and motion to quash sustained, Saden,J., and, on
permission being granted, the state appealed to this
court. Error; further proceedings.
Donald A. Browne, assistant state’s attorney, with
whom, on the brief, was Joseph T. Gormley, Jr., state’s
attorney, for the appellant (state).
L. Scott Melville, for the appellee (defendant).
LOISELLE, J. The defendant was indicted for the
crime of first-degree murder by an eighteen-member
grand jury on December 6, 1971. On December 10, 1971,
the defendant entered a plea of not guilty to the murder
indictment and on February 29, 1972, filed in one plead-
ing a combined plea in abatement and motion to quash.
The defendant’s primary claim in the plea in abatement
and motion to quash was that the grand jury which
indicted him was illegally impaneled, in that a
systematic exclusion of persons of the same racial,
ancestral or cultural background as that of the defen-
dant, who is of Puerto Rican parentage, was practiced in
the selection of the grand jury.
Following a hearing on the pleadings, the court sus-
tained the defendant’s plea in abatement and motion to
quash. In accordance with General Statutes §54-96 the
court granted the state permission to appeal. The state
has assigned error in several of the court’s conclusions.
3A
The trial court’s conclusions are tested by the finding.!
Sea Beach Assn. v. Water Resources Commission, 164
Conn. 90, 318 A.2d 115; Brauer v. Freccia, 159 Conn.
289, 293, 268 A.2d 645.
The finding reveals the following facts which are
relevant to the claims pressed by the state. During the
nine years from 1963 to 1972, John P. Previdi, as sheriff
of Fairfield County, selected individuals to serve on
grand juries. Sheriff Previdi maintains a list or panel of
individuals who are residents of all the towns in Fairfield
County with the exception of the communities of New
Fairfield, Sherman, Redding and Wilton. This panel of
potential grand jurors includes individuals with different
occupations and with a wide range of ages. The list has
been altered by approximately twenty-five names during
the previous nine years for a variety of reasons. Sheriff
Previdi’s selections for the various grand juries during
the period from 1963 through 1971 were restricted to
the list of 138 names maintained in his office. The list
was composed largely of friends and acquaintances of
the sheriff. In an attempt to obtain more Puerto Rican
individuals for his panel of potential grand jurors, Sher-
iff Previdi requested the assistance of the registrar of
1 The state assigns error in the finding and specifically attacks the
court’s failure to
E
z
‘
;
159 Conn. 342, 344, 269 A.2d 274. ere aca ee
appendix to the state’s brief to establish that the court heard
mony supporting the remaining requested additions, these
graphs were in dispute. The state has failed to show that facts
admitted or undisputed and, therefore, no additions to the finding
are warranted. 4A
voters in Bridgeport, A. Edward Sandula. To determine
whether Puerto Rican individuals were systematically
excluded from grand jury participation, the defendant
recruited a committee headed by Kathleen Earley to
conduct a survey. This committee, which included three
persons who had received training in the Spanish
language, counted the number of Spanish-sounding sur-
names appearing on voting lists for the years 1963,
1966, 1969, 1970 and 1971 for Bridgeport, Norwalk,
Stratford, Danbury, Fairfield, Stamford and Trumbull.
The committee could ascertain only if a name generally
appeared to be of Spanish origin and would count as
Spanish-surnamed anyone with a name of Hispanic
origin. It was assumed that no Spanish-surnamed
electors lived in the remaining towns in the county. The
results of the seven-town survey indicated that in 1971
approximately 1.35 percent of the total of 373,575
electors in Fairfield County were Spanish-surnamed. The
survey showed that in 1970 1.11 percent of the electors
were Spanish-surnamed. The percentage of Spanish-
surnamed electors in the county for the following years
was not computed, but a simple analysis of the raw data
in the finding reveals that in 1969 .9 percent, in 1966 .8
percent and in 1963 .5 percent of the population were
Spanish-surnamed. The nine-year average is therefore
approximately .93 percent.
A publication of the greater Bridgeport regional
planning agency dated August, 1971, shows Spanish-
speaking persons as one of three racial categories con-
sidered, and certain sections of Bridgeport and Danbury
are predominently Puerto Rican in character. The court
found further that a total of 738 selections for grand
jury service were made during the nine-year period
between 1962 and ).971 and that only two persons of the
738 selected were Puerto Rican. After analyzing the
data of the defendant's exhibit, and the testimony of an
expert witness, the court found that based on establish-
ed statistical methods the chance of selecting only two
Spanish-surnamed electors out of 738 selections was
2000 to 1, and that such a result was not consistent
5A
with a random selection. In addition, the court found
that the selection of one Spanish-surnamed grand juror
over the period 1969-71 was not consistent with a
random selection of grand juries and, similarly, the
selection of no Spanish-surnamed grand jurors in 1971
was not a result of a random selection. In determining
the existence or nonexistence of randomness in the
selection process, the percentage of Spanish-surnamed
electors in the seven towns surveyed was an essential
factor. The contents of the defendant’s exhibits, made
part of the findings, show that a nine-year average of
1.6 percent was employed by the defendant’s expert in
arriving at her conclusions which were accepted in the
finding.
While the finding is more extensive than the brief
narrative presented here, the foregoing statement is
sufficient to review the conclusions attacked by the
state.
In any event, the critical starting point for the analysis
is a determination of what percentage of the total elig-
ible electors are members of the class. In the finding,
the court found that the percentage of Spanish-
surnamed electors for the entire nine-year period was an
essential factor for determining whether randomness
existed. This figure taken from the corrected finding
appears to be .93 percent, or less than 1 percent.‘ The
defendant’s exhibit, relied on by the expert witness,
uses the figure of 1.6 percent for the Puerto Rican
population in determining that the selection was not at
random. To resolve this conflict in the finding we have
examined the transcript. The transcript reveals that the
defense statistician used the base percentage of 1.6
percent in all calculations. This nine-year average figure
is greater than the largest percentage, 1.35 percent,
found for any year in the finding. The 1.6 percent figure
4 This .93 percent figure is the average of the percentages for the
five years tabulated.
6A
was obtained by the defendant’s statistician, who deter-
mined the percentage of Spanish surnames by weighing
the percent of Spanish surnames from each of the towns
by the respective percentage of grand jurors selected
from those towns. The total figure of 1.6 percent is thus
a weighted average which was explained as the percen-
tage of Spanish-surnamed individuals in a town multi-
plied by the likelihood of a grand juror coming from
that town. This likelihood of selection was based on the
frequency of actual selections from that town over the
nine-year period.
While it is clear that statistical proofs are valuable
tools for the court in evaluating claims of discrimina-
tion, the use of such analysis must be restricted to a
showing of results which might have been expected from
mere chance. To determine this expected result the court
must insist that the data offered comprise theoretical
results. Although weighted averages are frequently
utilized by statisticians, the court must determine
results expected by random chance assuming an
equiprobable selection process in which, under
conditions of true randomness, all citizen electors of all
towns had an equal chance to be selected for grand jury
service. In this manner the court will have as a
touchstone an expected result from random selection
and can then test the actual observed results by this
theoretically random result.
The defendant here made no claim that discrimina-
tion resulted from overrepresentation of some parts of
the county at the expense of others and therefore the
use of weighted averages based on the historical
frequency of selection from certain towns in the county
was inappropriate. Since the court’s ultimate conclusion
that the defendant had established a prima facie case
was based on these impermissible statistical proofs and
since the average of 1.6 percent used in the calculations
cannot be supported by the finding which indicates the
greatest percentage of Spanish-surnamed electors in the
county at any time was 1.35 percent, we must hold that
the court erred in quashing the indictment and conclud-
ing that Spanish-surnamed persons were not exposed to
7A
review the state’s claim that
erred in concluding that the state failed to
rebut the prima facie case of systematic exclusion. It
be noted, however, that mere protestations of
good faith are sufficient to rebut a prima facie case.
Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31
5
8
There is error; the plea in abatement and motion to
quash were erroneously sustained. The indictment is
therefore reinstated.
In this opinion the other judges concurred.
8A
SUPERIOR COURT STATE OF CONNECTICUT
FINDING
First: The following facts are found:
1. One John P. Previdi has been the elected sheriff
of Fairfield County for the period from 1963 through
1972.
2. During the nine years that he has served as
sheriff of Fairfield County, Jot John P. Previdi has selected
the individuals who have served upon the grand juries
convened during that period.
3. During the period between 1963 and 1971, a total
of 41 grand juries were convened by order of the
Superior Court for Fairfield County.
4. Sheriff Previdi maintains a list or panel of indivi-
duals from which he selects each grand jury.
5. Sheriff Previdi keeps records of the names of the
individuals selected to serve as grand jurors.
6. In the selection of persons to serve as grand
jurors, Sheriff Previdi does not give any consideration
to a person’s political persuasion.
7. In his selection of grand jurors, Sheriff Previdi
said he attempted to obtain a cross-section of the com-
munity.
8. Sheriff Previdi obtained a list or panel of grand
jurors from his precedessor when he became sheriff in
1963.
9. During the past nine years, Sheriff Previdi's list
from which he selected grand jurors has changed to the
extent of approximately 25 names being dropped for a
variety of reasons and an equivalent number added
through his personal choice.
9A
11. Sheriff Previdi has tried unsuccessfully to obtain
Redding, and Wilton.
attempts to obtain persons from different areas of the
County.
13. The panel of potential grand jurors selected by
14. In 1970 Sheriff Previdi selected an individual by
the name of Russell Colon to serve on his panel of grand
jurors.
15. The grand juror Russell Colon was of Puerto
Rican extraction.
126. Russell Colon subsequently served as a grand
juror on May 11, 1970, in two separate cases entitled
the State of Connecticut vs. Angel Vasquez and the
State of Connecticut vs. Gregoria Vargas.
17. In an attempt to obtain more Puerto Ricans for
his panel of grand jurors, Sheriff Previdi requested
assistance from one A. Edward Sandula, Republican
Registrar of Voters in the City of Bridgeport.
18. At the time that he requested the assitance of
Mr. Sandula, Sheriff Previdi knew that there were
Puerto Ricans living in Bridgeport.
19. Registrar of Voters A. Edward Sandula suggest-
ed the name of Russell Colon as a prospective grand
10A
PS
juror and Colon subsequently served as a grand juror on
May 11, 1970.
20. Since May 11, 1970, Sheriff Previdi has attempt-
ed to locate Russell Color for additional service as a
grand juror but has been unable to locate him.
21. During the years between 1963 and 1971, 738
different individuals served as grand jurors in Fairfield
County.
22. During the years between 1963 and 1971 at least
one attorney served on each grand jury impaneled
within Fairfield County.
23. During the years between 1963 and 1971, 105
individuals served on more than one grand jury in Fair-
field County.
24. During the years between 1963 and 1971, 33 per-
sons served on only one grand jury in Fairfield County.
25. During the years between 1963 and 1971, 18
individuals served twice on the grand jury in Fairfield
County.
26. During the years between 1963 and 1971, 22
individuals served on more than 10 grand juries in
Fairfield County. :
27. During the years 1970 and 1971 in Fairfield
County a total of ten 18-member grand juries were
convened during each year.
28. In 1972 Kathleen Earley, also known as Sister
Kathleen Earley, was recruited by the defendant’s
attorney to conduct a survey of voting lists in Fairfield
County to count the number of Spanish-sounding
surnames. ,
29. Kathleen Earley organized a team or committee
of eight members which attempted to count the number
11A
*
of Spanish-sounding surnames appearing in the voting
lists for the years 1963, 1966, 1969, 1970 and 1971 for
the communities of Bridgeport, Norwalk, Stratford, Dan-
bury, Fairfield, Stamford, and Trumbull.
30. Kathleen Earley did not question any of her
committee members about their knowledge of Spanish or
Spanish-sounding names before the committee began its
investigation.
31. Kathleen Earley knew that three other members
of her committee or team had training in the Spanish
language.
32. In its investigation of community voting lists,
Kathleen Earley's committee did not differentiate
between Puerto Rican and other Spanish-sounding
names.
33. Kathleen Earley and her committee could ascer-
tain only if a name generally appeared to be of some
type of Spanish origin.
34. Kathleen Earley and her committee would count
as a Spanish-sounding named elector anyone with a
name of Hispanic origin.
35. The members of Kathleen Earley’s committee
found that their examination of the voting records of
the seven cities and towns indicated at total of 1784
electors with Spanish-sounding surnames for the year
1963; 2621 such electors for the year 1966; 3278 euch
electors for the year 1969; 4058 such electors for the
year 1970; and 5059 such electors for the year 1971.
36. Voting records for Fairfield County show that
there were 326,773 registered voters within the County
in 1963; 344,528 such voters in 1966; 367,492 such
voters in 1969; 365,199 such voters in 1970; and 373,575
such voters in 1971.
37. One Douglas Bora served as a grand juror on
five occasions between 1963 and 1971.
12A
38. One Ferdinand Equi served as a grand juror on
seven occaions between 1963 and 1971.
39. One Manual Garcia served as a grand juror once
in 1966.
40. Sheriff John P. Previdi attempted to recall
Manual Garcia as a grand juror several times but Mr.
Garcia refused to serve again.
41. The defendant was indicted for first-degree
murder by an 18-member grand jury on December 6,
1971.
42. On December 10, 1971, the defendant, while
represented by competent counsel in the person of the
public defender, entered a plea of not guilty to the
murder indictment and the matter was assigned for trial
on January 25, 1972; on December 6, 1971, the defen-
dant through the public defender filed a motion for
discovery, a motion for bill of particulars, and a motion
for bond; and on December 23, 1972, the State filed its
written disclosure and bill of particulars.
43. On January 27, 1972, the public defender
withdrew as counsel for the defendant and present
counsel appeared on behalf of the defendant and the
case was continued to March 1, 1972, for trial.
44. On February 29, 1972, the defendant filed his
combined plea in abatement and motion to quash in one
pleading.
45. Population estimates of the State Health Depart-
ment in 1969 for Fairfield County indicated a Spanish-
speaking group of approximately 33,000 persons out of
a total population of 787,000, or approximately 4%
Spanish-speaking.
46. A publication of the Greater Bridgeport Regional
Planning Agency dated August, 1971, containing a table
and charts showing population changes by race for the
13A
pat
vag!
City of Bridgeport for the years 1950, 1960 and 1970,
shows Spanish-speaking persons as one of three racial
categories of population considered.
47. Certain sections of Bridgeport and Danbury,
respectively, as well as other cities and towns through-
out the County, are predominantly Puerto Rican in
character and are inhabited by persons of Puerto Rican
extraction.
48. According to an analysis of Exhibit 7, 250 of the
738 grand jurors chosen, or approximately 35% of the
grand jurors chosen in Fairfield County over the nine-
year period between 1963 and 1971, came from the City
of Bridgeport.
49. Sheriff Previdi’s selections for the various grand
juries over the period from 1963 through 1971, in fact,
were restricted to a list of some 138 names recorded on
index cards and maintained in his office.
50. The Sheriff only resorted to outside sources
when persons on the smaller list either died, moved out
of the jurisdiction, or otherwise made themselves per-
manently unavailable.
51. This list of 138 names was composed largely of
friends and acquaintances personally known to the
sheriff, including some who were golfing partners of his,
and friends and acquaintances of the sheriff’s friends.
52. Of the people whose names were on the list, one
person served on grand juries as many as 20 times
during the nine-year period Sheriff Previdi was in office;
and in one year that person served on six out of the
eight grand juries that were selected.
53. Another individual served as many as 14 times
during the nine-year period, serving on as many as five
grand juries in the year 1971.
14A
54. All told, 22 out of the 138 people on the Sheriff's
list have served between 11 and 20 times during the
nine-year span; 50 people have served between four and
ten times; 33 people have served between two and three
times, and only 33 out of a total of 138 people have
served but once.
55. An analysis of the data contained in Exhibit 7
indicates that the seven towns of Bridgeport, Fairfield,
Trumbull, Stratford, Stamford, Danbury, and Norwalk
accounted for 539 of the 738 selections to the grand
jury, or approximately 74% of all the selections during
the nine-year period of the Sheriff’s tenure.
56. To his own knowledge, the Sheriff selected
exactly two persons he believed to be Puerto Rican
during his nine-year tenure in office.
57. No persons having Spanish surnames or of
Puerto Rican extraction served on the defendant’s grand
jury.
58. One Emanuel Garcia served on a grand jury
once in 1966 and one Russell Colon served on a grand
jury once in 1970.
59. The Sheriff testified that it was his practice to
select a person for grand jury service of the same ethnic
background as that of the defendant where he knew the
defendant’s ethnic background.
60. The Sheriff considered the surname in deter-
mining whether or not the defendant was of Puerto
Rican extraction.
61. The names of Garcia and Colon were still on the
Sheriff’s official list of 138 potential grand jurors as of
April 6, 1972.
62. The Sheriff was well acquainted with the official
voting lists and the voting districts in his own home
town of Danbury.
15A
63. The Sheriff also knew the areas of Danbury
where a predominance of Puerto Ricans resided.
64. The Sheriff was further able to determine in
what voting districts in his home town of Danbury there
might be concentrations of Puerto Ricans.
65. The Sheriff never once consulted the voting lists
in his home town in Danbury in an attempt to obtain
Puerto Rican grand jurors.
66. In making his selections to the grand jury, the
Sheriff made no independent examination of the poten-
tial jurors to determine if they were physically, mental-
ly, or intellectually able to serve.
67. The Sheriff had no idea how many Puerto Rican
electors there were in the County over the period of his
tenure.
68. In his selection process, the Sheriff made no
effort to determine the ethnic composition of the
County.
69. In his selection process, the Sheriff made no
effort to determine the religious composition of the
County.
70. In his selection process, the Sheriff did not make
himself aware of the shifts in population within the
County.
71. The Sheriff did not know if there was a pre-
dominance of people of any particular race or ethnic
background within Fairfield County.
72. In his selection process, the Sheriff never made
any attempt to find out the areas where Puerto Ricans
lived on a county-wide basis.
73. In his selection process, the Sheriff did not take
into consideration the existence of any racial concentra-
tions in Fairfield County. 8
16
74. In his selection process, the Sheriff has never
gone personally to any Puerto Rican person to ask him
to serve on the grand jury.
75. The Sheriff acknowledged that he does not
personally know any one who is Puerto Rican who he
could ask to be a grand juror.
76. In selecting persons of Puerto Rican extraction
to his panel, the Sheriff relied solely on recommenda-
tions from others and not upon his personal knowledge,
investigations, or examinations of the individuals.
77. Kathleen Earley and a team composed of seven
other persons conducted a survey of the number of
surnames on the official registry lists for the
years 1971, 1970, 1969, 1966, and 1963 in the towns of
Bridgeport, Fairfield, Trumbull, Stamford, Norwalk,
Stratford and Danbury.
78. Kathleen Earley possesses a bachelor’s and a
master’s degree in Spanish; has studied Portuguese at
the Berlitz Language School in Stamford, Connecticut,
and Rio de Janiero, Brazil; has taught Portuguese for
approximately 14 years in Massachusetts, Connecticut,
and Brazil; was a school administrator in Brazil; spent a
summer in Spain studying at the University of
Salamanca and touring the country; lived in Brazil for
three years; done parish census work in Puerto Rico
during one summer; worked in a Spanish-speaking
poverty program in New Britain, Connecticut, during
the summer of 1966, and taught Spanish in the adult
education program in Norwalk, Connecticut, in 1970.
79. In addition to Kathleen Earley, the survey team
consisted of Mrs. Marion Cardell, Mrs. Jane Igoe, Sister
Mary Xavier, Sister Alice Carmen, and Virginia Howard.
The members of the team came from various parts of
the County.
17A
80. At least three of the members of this team had
degrees in Spanish and two others had some Spanish
training sufficient to recognize names.
81. Due to the lack of time, the survey was restrict-
ed to the years 1963, 1966, 1969, 1970 and 1971, and to
the seven towns of Bridgeport, Fairfield, Trumbull,
Stratford, Danbury, Stamford and Norwalk.
82. Only surnames that were Spanish in appearance
were counted. If there were any doubt as to the origin
of the name, then the first name would be considered as
well as the address of the person. If any doubt
remained, the name was not counted even if it looked
Spanish enough.
83. The survey team worked in groups of twos,
threes, and sometimes as many as fours.
84. In conducting this survey, those who had no
specialized training in Spanish worked with someone
who possessed specialized language training.
85. In conducting the survey the procedure used
was that one person would canvass the official voters’
list and call out the name while another would count it,
and upon completion would strike a total of all the
Spanish-surnamed names counted for each of the towns
in each of the particular years in question.
86. If a member of the team lacked specialized
knowledge of Spanish, that person would only do the
recording.
87. After the survey was completed, a summary of
the results was prepared in writing.
88. Exhibit 2 accurately portrays the results of this
survey.
89. On one occasion a particular voting district in
Norwalk was done twice by two different groups and the
18A
results when compared showed a difference of only two
names out of a total count of 370.
90. Mrs. Elizabeth Curtis, the Democratic Registrar
of Voters for the City of Bridgeport, was familiar with
all ethnic groups in Bridgeport and the areas of the city
where they were located.
91. Mrs. Elizabeth Curtis has been Democratic
Registrar of Voters in the City of Bridgeport for the
past four years and Deputy Registrar for 14 years prior
to that.
92. Mrs. Elizabeth Curtis estimated that Puerto
Rican electors comprised between 4% to 5% of the total
number of electors in the City of Bridgeport for the year
1971, and this is found as a fact.
93. The estimate of Mrs. Elizabeth Curtis was not
based on a consideration of Spanish surnames but
rather on a consideration of actual place of birth of
Puerto Rican electors, which information is contained in
the official voter-application records, and this is found
as a fact.
94. Mrs. Elizabeth Curtis further estimated that in
the ten-year period between 1962 and 1972 the number
of Puerto Rican electors in the City of Bridgeport had
doubled, and this is found as a fact.
95. Dr. William Frawley is an applied mathematician
by profession and possesses a bachelor’s, masters, and
PhD degrees in mathematics; he has taught
mathematics on the college level and is presently
employed as the head of the mathematics section of a
company which determines the location of oil deposits
mathematically.
96. In both his present position and in his former
position with NASA, Dr. William Frawley employed the
Statistical Decision Theory and has taught it at the
college level.
19A
97. The Statistical Decision Theory is an important
mathematical tool used by Dr. Frawley in his work.
98. The Statistical Decision Theory can be used to
evaluate the results of the selection of Spanish-
surnamed electors to grand juries.
99. In applying the Statistical Decision Theory to
the selection of grand jurors, one takes three steps:
First, one makes the assumption that the grand jury
was selected randomly and computes what would be
expected to happen in the choice of 738 grand jurors;
secondly, one compares the actual or hypothetical
results of Spanish-surnamed selections with the
expected results of the random selections; and finally,
one compares the difference between the two and forms
an opinion as to the randomness of the selection in
question.
100. Employing the Statistical Decision Theory, the
selection of only two Spanish-surnamed electors to the
grand jury in a nine-year period between 1963 and 1971
out of 738 selections was not consistent with a random
selection.
101. Based upon established statistical methods, the
odds or chances of selecting only two Spanish-surnamed
electors out of 738 selections over the nine-year period
between 1963 and 1971 to be 2000 to 1, or one chance in
every 2000 selections.
102. In determining the existence or non-existence of
randomness, the data contained in Exhibit 2 was used
representing the number of Spanish-surnamed electors in
each of the seven designated towns in the years 1963,
1966, 1969, 1970, and 1971; the number of electors in
the County for the nine-year span as depicted in Exhibit
4, the frequency and number of grand jury selections
from each of the various towns during the nine-year
span as depicted in Exhibit 7.
20A
103. In determining the existence or non-existence of
randomness, it was assumed that there were no Spanish-
surnamed electors in the remaining 16 towns in the
County that were not listed in Exhibit 2.
104. The percentage of Spanish-surnamed electors in
the seven towns for the entire nine-year period was an
essential factor in determining whether randomness
existed.
105. The survey of Spanish-surnamed electors as
depicted in Exhibit 2 did not contain any data regarding
the years 1964, 1965, 1967, and 1968.
106. The estimated number of Spanish-surnamed
electors in the seven towns for the years 1964, 1965,
1967, and 1968 were determined by the use of a
mathematical technique known as Linear
Interpolation” as shown on Exhibit 8 (top half).
107. The use of the technique of Linear Interpola-
tion was mathematically proper and the estimates
obtained would not significantly affect the results con-
cerning the randomness or lack of it in the selection of
grand jurors over the period in question.
108. For the years for which no data was available
in this case, numerically calculated probabilities were
used rather than subjective considerations.
109. The selection to the grand jury made during
the year 1971 of zero Spanish-surnamed electors out of a
total of 180 selections was not a result of random selec-
tion of grand jurors.
110. 1971 was the year in which the defendant’s
grand jury was selected.
111. Based upon established statistical methods, the
odds of selecting zero Spanish-surnamed electors out of
_ 180 selections in 1971 would be 50 to 1, or one chance in
every 50 selections.
21A
112. Over a three-year period between 1969 and
1971, a random selection of grand jurors normally would
have produced eight Spanish-surnamed electors if the
selections were at random. In fact, the Sheriff selected
only one Spanish-surnamed grand juror during that
period, and such a result was not consistent with a
random selection of grand jurors.
113. Based upon established statistical methods, the
odds of selecting only one Spanish-surnamed elector to
the grand jury out of a total number of selections made
during the period between 1969 and 1971 would be in
the range of 3000 to 1, or one chance in every 3000
selections.
114. The State did not file any pleading to the
Combined Plea in Abatement and Motion to Quash the
Indictment” dated February 29, 1972, but it neverthe-
less proceeded to a hearing on the merits, and the court,
without objection from the parties, treated the case as
though a general denial had been filed by the State.
115. This combined plea in abatement and motion to
quash came to a hearing on April 4, 1972, at which time
the State proceeded to trial of the issues of the defen-
dant’s Combined Plea.
116. The State at the beginning of the hearing for
the first time indicated that it claimed the defendant’s
motion was not timely made and went on to say it did
not intend to waive its claim in that respect but that it
expected to brief this point along with the other points
that may be raised in connection with the merits of the
motion itself.“
117. At the conclusion of the hearing, the State filed
a “Brief of the State in Opposition to Motion to Quash”’
dated April 24, 1972, in which it failed to brief the
question of the defendant’s failure to timely file its com-
bined plea in abatement and motion to quash. Instead,
the State confined its entire brief to the merits of the
claim presented by the defendant’s motion.
22A
118. A radio station located in Bridgeport and
operating on a 24-hour daily schedule caters exclusively
in the Spanish language to Spanish-speaking people in
the Fairfield County area.
Second: The following conclusions have been
reached:
119. The evidence produced by the defendant
established a prima facie case of systematic exclusion of
a particular class or group in the selection of grand
jurors in Fairfield County.
120. The grand jury which indicted the defendant
was selected in an unconstitutional manner. The manner
in which the grand jury array was selected in this case
violates the equal protection clause of Article I, Sec. 20,
of the Connecticut Constitution (1965) and the equal
protection clause of the 14th Amendment to the United
States Constitution.
121. The method of selecting a grand jury whereby
a sheriff chooses the jury from a standing list of 138
names either inherited from his predecesor or chosen
from among friends of the sheriff or friends of friends of
the sheriff, clearly lends itself to invidious discrimina-
tion and is, therefore, unconstitutional.
122. The defendant is of Puerto Rican extraction.
123. Spanish-speaking people represent a distinct
class in Fairfield County.
124. The method of selection used by the Sheriff did
not expose Spanish-speaking people to a fair chance of
selection on a grand jury in this case.
125. No Spanish-speaking person served on the
grand jury in this case.
126. The method and manner of selection of grand
jurors used by the High Sheriff failed to expose the
23A
127. The High Sheriff maintained a relatively static
small list (138) of prospective grand jurors, which was
infrequently changed and consisted to a large extent of
of
personal acquaintenances of the High Sheriff or
friends of friends of the High Sheriff. Such a list neces-
sarily lent itself to invidious discrimination in this case
in a constitutional sense against a Spanish-speaking
defendant because such a list failed to expose the class
in Fair-
method of determining the number of such electors of a
Spanish ethnic background eligible for grand jury duty.
130. The Court cannot determine whether the names
of Douglas Bora, Amadeo Morrello and Ferdinand Equi
were of Hispanic origin.
131. By failing to brief the question of timely filing
of the defendant’s combined motion after indicating to
the court that it would do so, the State abandoned this
technical objection to the defendants motion.
132. Even if this failure on the part of the State to
pursue in its brief the question of lack of timely filing
had not occurred, because this question is one of first
impression in the State of Connecticut and involves a
24A
matter of important public policy in the criminal law,
the court is justified in going into the merits of the
issues involved in this first case of its kind in Con-
necticut.
133. A random chance selection of grand jurors from
voting lists of Fairfield County is a constitutionally
acceptable method of selecting a grand jury which is
available to the court or sheriff.
Third: The following occurred at the hearing of the
defendant’s combined motion and plea and the court
thereafter ruled as indicated:
134. Before the introduction of evidence, the State
addressed the court in the following manner:
Mr. Browne: By way of preliminary
statement, if your Honor please, before Mr.
Melville commences his presentation, I would
like to make two observations to your Honor.
One, the State will expressly claim, if your
Honor please, that this matter has not been
timely filed, that this motion has not been
timely filed; that if there was a motion to quash
or to challenge the array of the Grand Jury,
such a motion should have been filed prior to
the testimony being presented to the Grand
Jury and prior to the Grand Jury’s delibera-
tions.
And, it is my position, if your Honor please
that counsel has waited until the Grand Jury
indicted his crime and that he could have
attacked the Grand Jury prior to the hearing.
He elected not to do that, taking the calculat-
ed risk that possibly they might not have
indicted his client. His client could have walked
free.
25A
I want to expressly for the record make the
claim at this time that this attack upon or chal-
lenge to the array of the Grand Jury is late, it
is not timely, it should have been filed prior to
the Jury hearing evidence and prior to the
Jury’s consideration of the matter.
And, again, I say that he calculated his strat-
egy that possibly the Grand Jury might not
have indicted his client. It did not work to his
benefit, and I claim that the challenge to the
array is too late.
I1 am not asking your Honor to make a deci-
sion on this particular point at this time. We
will brief if and we will give your Honor some
law.
The Court: I have no intention of making that
decision right at this moment.
Mr. Browne: I just want to make the observa-
tion that by proceeding into the hearing, we
don’t intend to waive our claim —
The Court: I understand that.
Mr. Browne: I just want to make the observa-
' timely made. I expect to brief this point along
with the other points 'that may be raised in con-
nection with the merits of the motion itself.
I just wanted to make the observation before
we get into the motion that that would be a
claim of the State.
135. Thereafter, upon conclusion of the entire hear-
ing on the merits, the State filed its brief on April 14,
1972, purportedly setting forth all of its claims of fact
and law in which it completely omitted any mention of
its claim of lack of timely filing by the defendant. In
view of the State’s action in this respect, the court
treated this claim of lack of timely filing as abandoned
by the State. 26A
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MAXIMINO VILLAFANE
v. Civil No. H-78-117
JOHN MANSON, COMMISSIONER
OF CORRECTION, STATE OF
CONNECTICUT
MEMORANDUM OF DECISION
I,
Petitioner was indicted for murder in the first
degree on December 6, 1971 by an 18-member grand
jury in Fairfield County. He was subsequently tried
before a petit jury which returned a verdict of guilty.
After exhausting his state remedies, petitioner filed this
application for a writ of habeas corpus raising various
constitutional claims.
II.
Petitioner, a Puerto Rican, concentrates his efforts
on a challenge to the array from which the indicting
grand jury was selected. He claims that he has been
denied equal protection of the laws on contravention of
the fourteenth amendment by the systematic exclusion
of Puerto Ricans from that array. In resolving his claim,
it is useful to set forth those facts which are not in
dispute.”
First, both parties agree that, at least prior to 1972,
grand juries in Fairfield County were selected from the
electorate by the County Sheriff. Sheriff John P. Pre-
vidi, County Sheriff at the time of petitioner’s indict-
ment, maintained a list of 138 persons from which he
made his selections. His predecessor had maintained a
27A
_ =e
*
similar list. These lists were composed largely of the
sheriffs friends and acquaintances and their friends and
tances. In essence, both Sheriff Previdi and his
predecessor had unfettered discretion in deciding on the
membership of each grand jury.
Second, there is no dispute as to Sheriff Previdi's
personal contact with Puerto Ricans. As the trial court
found, he personally knew no Puerto Ricans whom he
could ask to serve on the grand jury. He did not know
the extent of the Puerto Rican electorate nor did he
make any attempts to ascertain the neighborhoods in
which the Puerto Ricans were concentrated. He was also
unaware of the demographic shifts in Fairfield County
during his tenure as sheriff.
Third, the parties do not dispute that Puerto Ricans
constituted a small but identifiable class in the county.®
Census figures identified the Puerto Rican population as
1.8% of the total Fairfield County population, and other
figures establish that they constituted, at the relevant
time, approximately .93% of the electorate eligible for
service on the grand jury.
Fourth, both parties agree as to the accuracy of the
numbers and statistics involved in this case. Between
1963 and 1971, 738 grand jurors were chosen from the
sheriffs’ lists and 41 18-person grand juries were
empaneled. Of the 738 grand jurors who were selected
during this period only two were Puerto Rican.‘ Thirty-
nine grand juries had no Puerto Ricans, and two had
one Puerto Rican juror each.
III
While petitioner has no constitutional right to a
grand jury array which exactly mirrors the ethnic
composition of society, Swain v. Alabama, 380 U.S. 202,
208 (1965), the fourteenth amendment does protect him
from having the members of his ethnic group substan-
tially underrepresented in the grand jury array. Castan-
eda v. Partida, 430 U.S. 482, 493 (1977). As the Supreme
Court has indicated in Castaneda v. Partida, supra:
28A
While the earlier cases involved absolute exclu-
sion of an identifiable group, later cases estab-
lished the principle that substantial underrepre-
sentation of the group constitutes a constitu-
tional violation as well, if it results from
purposeful discrimination.”
Id. at 493. Casteneda then teaches:
Un order to show that an equal protection
violation has occurred in the context of grand
jury selection, the defendant must show that
the procedure employed resulted in substantial
underrepresentation of his race or of the identi-
fiable group to which he belongs. The first step
is to establish that the group is one that is a
recognizable, distinct class, singled out for dif-
ferent treatment under the laws, as written or
as applied. Hernandez v. Texas, 347 U.S., at
478-479. Next, the degree of underrepresenta-
tion must be proved, by comparing the propor-
tion of the group in the total population to the
proportion called to serve as grand jurors, over
a significant period of time. Id, at 480. See
Norris v. Alabama, 294 U.S. 587 (1935). This
method of proof, sometimes called the ‘rule of
exclusion,’ has been held to be available as a
method of proving discrimination in jury selec-
tion against a delineated class. Hernandez v.
Texas, 347 U.S., at 480. Finally, as noted above,
a selection procedure that is susceptible of
abuse or is not racially neutral supports the pre-
sumption of discrimination raised by the statis-
tical showing. Washington v. Davis, 426 U.S.,
at 241; Alexander u. Louisiana, 405 U.S., at
630.”
Id., at 494 (footnote omitted).
29A
*
A.
No dispute is raised as to either the first or third
criterion announced in Castaneda. As to the first crite-
rion, Puerto Ricans clearly constitute a recognizable,
distinct class which, as the statistics reveal, has been
“singled out for different treatment under the laws,...as
applied. The trial court ruling on petitioner’s earlier
motion to quash the indictment reached this same
conclusion, as did the Connecticut Supreme Court.5 As
noted above, the State does not take a contrary
position.
With respect to the third criterion, it is also well-
established that the procedure used to choose the grand
jurors was a “procedure...susceptible of abuse.” Fair-
field County’s procedure afforded its sheriffs even more
discretion than did the key-man system in Castaneda,
which the Supreme Court considered highly subjective
and “susceptible of abuse as applied. Id., at 497. More-
over, the Second Circuit has had occasion to warn of the
danger implicit in the very selection system here under
challenge. It noted:
“Although in this instance there was nothing in
the case to show that, in the selection of the
grand jury, there was any systematic exclusion
of an identifiable group or that the jury list was
otherwise not a representative cross-section of
the community, the method of selection resting
as it does entirely in the hands of one person,
the sheriff of the county, leaves much to be
desired.
Cobbs v. Robinson, 528 F. 2d 1331, 1340 (2d Cir. 1975),
cert. denied, 424 U.S. 947 (1976) (considering a Fairfield
County grand jury). Thus, the only dispute in the case
centers on the proper application of Castaneda’s second
criterion.
30A
Under Castaneda, the second of the three criteria
involves measuring the degree of underrepresentation”
by comparing the proportion of the group in the total
population to the proportion called to serve as grand
jurors, over a significant period of time. Castaneda,
‘supra, at 494. In order to make out a prima facie case,
petitioner must establish not only that his group was
underrepresented, but also that the degree of under-
representation was substantial. Id., at 493-94.
The justification for the substantial requirement
stems from the need to show intentional conduct. Duren
uv. Missouri, 439 U.S. 357, 368 n.26. Recent decisions of
the Supreme Court have indicated that disparate impact
alone will not suffice to establish a violation of the four-
teenth amendment.® Rather, a party claiming that he
has been denied equal protection of the laws must estab-
lish that there has been an intentional act of discrimina-
tion. Washington v. Davis, 426 U.S. 229, 239 (1976);
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265 (1977); Personnel
Administrator of Massachusetts v. Feeney, 442 U.S.
256, 272 (1979).
“Determining whether invidious discriminatory
purpose was a motivating factor demands a sensitive
inquiry into such circumstantial and direct evidence of
intent as may be available. Arlington Heights, supra,
at 266. Whether the proof offered is sufficient will neces-
sarily vary on a case-by-case basis. Under some circum-
stances, statistics alone can establish such a clear
pattern of discrimination that they cannot be explained
on any legitimate grounds. When this occurs, the statis-
tics may amount to circumstantial evidence sufficient to
satisfy the intent requirement. Id. at 266.
How clear this pattern must be appears to vary
with the nature of the case. In Arlington Heights, the
court indicated that a pattern of discrimination must
generally be quite stark in order to justify a finding
31A
of intent. Id. at 266. However, as the Court also noted,
this requirement is somewhat relaxed in jury selection
cases. Id. at 266 n.13. In Castaneda, supra, a post-
Arlington Heights jury selection case, the Court con-
cluded that a showing of “‘substantial’’ underrepresenta-
tion coupled with an opportunity to discriminate was
sufficient to satisfy the intent requirement of the four-
teenth amendment. Castaneda, 430 U.S. at 494-95.
Consequently, the only issue in dispute on this
second criterion is whether the statistics, as agreed to
by both parties, are sufficient to establish that Puerto
Ricans were ‘“‘substantialy underrepresented’ in the
grand jury array. Petitioner insists that they are, while
the State argues that they are not. In resolving this
question it is useful to bear in mind that, in light of the
above discussion, substantial should be read as sub-
stantial enough to justify an inference of impermissible
discriminatory motives.”
At its core, the dispute between the parties turns on
a difference of opinion over the appropriate way to
analyze the statistics. That there should be such a dis-
agreement is not at all surprising given the state of the
law on this question. Since courts have begun to con-
sider jury selection cases early in this century they have
shown a general trend toward increased sophistication in
their use of statistics. Nonetheless, their methodology
has varied substantially even within the last decade and
a half.
Essentially four different forms of analysis have
been used. One of the oldest methods is sometimes
called the absolute difference test. D. Baldus & J. Cole,
Statistical Proof of Discrimination, 145 (1980) (herein-
after Baldus & Cole). This test was exemplified in the
case of Swain v. Alabama, supra, where the Court found
that blacks made up 26% of those eligible for jury duty
but composed only 10-15% of the venire. The Court sub-
tracted 10-15% from 26% and concluded that the result-
ing 11-16% 7 disparity did not amount to substantial
underrepresentation.
32A
A second approach, perhaps best characterized as
the “ratio” approach, Baldus & Cole at 145, would lead
to a very different conclusion under the same facts. This
approach focuses on the percentage of eligible jurors
who are excluded. Thus, in Swaim, where only 10-15% of
the eligible 26% were selected for jury panels, there
were roughly 50% fewer blacks than would have been
statistically expected. Put another way, any eligible
white had more than twice as much chance of becoming
a juror as did any eligible black. Arguably this amount-
ed to a 50% exclusion of blacks, rather substantial
degree of underrepresentation. See, e.g., Carmical v.
Craven, 457 F.2d 582, 585 (9th Cir. 1971), cert. denied,
409 U.S. 929 (1972); Quadra v. Superior Court of San
Francisco, 403 F. Supp. 486, 495 n.9 (N.D. Cal. 1975).
Cf. Chance v. Board of Examiners, 458 F.2d 1167, 1171-
72 (2d Cir. 1972) (ratio approach applied in challenge to
employment test).
The third approach moves away from an examina-
tion of percentages and focuses on the differences
caused by underrepresentation in each jury. For
example, suppose that in Swain the entire array con-
sisted of 120 jurors. Suppose also that from this array
ten juries of 12 jurors each were selected. If, in fact, the
jurors were drawn at random one would expect that 31
black jurors (26% of 120) would be included in the array
and approximately three blacks would show up on each
jury. In Swain, however, the actual pool included only
10-15% black members or, under these assumptions,
approximately 16 blacks (13% of 120). Thus, each jury
would have had an average of slightly more than one-
and-a-half black jurors. Some courts have concentrated
on the difference between the three jurors expected on
each jury and the one-and-a-half jurors actually present.
Often they have reasoned that an underrepresentation of
only one-and-a-half blacks out of 12 jurors is minimal
and that, therefore, the plaintiff has failed to establish
substantial underrepresentation. See, e.g., United States
v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977); United
States v. Goff, 509 F.2d 825, 826-27 (5th Cir.), cert.
denied, 423 U.S. 827 (1975); United States v. Jenkins,
33A
8
496 F.2d 57, 65 (2d Cir. 1974), cert. denied, 420 U.S.
925 (1975) (construing substantial in the context of 28
U.S.C. 51863).
Each of these three tests, however, is inadequate as
evidence of intent. Common sense suggests that an
absolute percentage difference of 10% can be evidence of
intent under some circumstances and not under others.
Thus, if the total population consisted of 50 blacks and
50 whites and only ten jurors were chosen, one would
expect that the final panel would contain five blacks and
five whites. However, if the actual panel contained six
blacks and four whites or four blacks and six whites (a
10% absolute difference), one would be unlikely to
conclude that this constituted evidence of discrimina-
tion. In contrast, assume that a total population con-
tained 10,000 persons, 9,000 of whom were white and
1,000 of whom were black, and that a panel of 1,000
jurors was chosen. If under those circumstances no
blacks at all were included in the array, again only a
10% absolute difference, a court could quite reasonably
find an intent to discriminate on the basis of race.
Similarly, examples which reveal potential errors in the
ratio approach can be easily imagined.
Focusing on the number of jurors rather than on
percentages does not alleviate the problem either.
Where the venire contains numerically fewer black
jurors than would statistically be expected, the eviden-
tiary force of the disparity will vary with the total
number of black jurors initially expected. Where the
number expected is quite small, even slight numerical
variations may be more significant than larger dispari-
ties would be where blacks are expected in greater
numbers.’ In short, the problem with a test which
focuses on the actual number of jurors is that rather
than testing for intent it seems to be better designed to
test for harm to the defendant. It is designed to show
how much difference the underrepresentation will make
to the particular complaining defendant rather than to
demonstrate and test the intent of the prosecuring
State. As Rose v. Mitchell, 443 U.S. 545, 551-59 (1979),
34A
makes clear, harm to the particular criminal defendant is
not the relevant consideration.
Following Swain v. Alabama, the Harvard Law
Review published an article by Michael O. Finkelstein
which, for the first time, developed a rigorous statistical
approach to jury selection cases. Finkelstein, The
Application of Statistical Decision Theory to the Jury
Discrimination Cases, 80 Harv. L. Rev. 338 (1966).
Finkelstein’s suggested approach was first referred to as
„interesting by the Supreme Court in Whitus v.
Georgia, 385: U.S. 545, 552 n.2 (1967), then expressly
“noted” in Alexander v. Louisiana, 405 U.S. 625, 630
n.9 (1972), and later fully embraced in Castaneda, supra,
at 496 n. 17. 10
Unlike the three previous tests, Finkelstein's
statistical decision theory (SDT) provides a mathematic-
ally accurate means of testing the probability that a
certain degree of underrepresentation could have been
the result of random choice rather than intentional dis-
crimination.!! Where racial factors have not entered into
the selection process, one would expect to discover a
random distribution of racial representation. If, based on
statistics, it appears unlikely that a particular pattern of
racial distribution would have resulted from random
choice, it is reasonable to infer that discriminatory racial
factors have entered into the selection process. See
Castaneda, supra, at 494 n.13. Unlike the other tests,
SDT takes the size of the group into account as one of
the factors in the calculations. Thus, the SDT affords a
far more accurate measure of intent than do the three
other tests discussed above. Accordingly, primary
reliance is placed upon it here.
Numerous opinions in which other courts have found
no showing of substantial underrepresentation have
been brought to the court’s attention.!2 As the State
indicates in its brief, Cases such as [these] rely pri-
marily on Swain v. Alabama,” which, as noted above,
applied an absolute difference” test. Were such a test
to be used here, this Court too might be led to reject
35A
rT
petitioner’s contentions. The total Puerto Rican popula-
tion was 1.8% of Fairfield County. Two out of 738
grand jurors were Puerto Rican. This amounts to .3% of
the array. The absolute difference of 1.5% (1.8% - .3%)
cannot be said to be “substantial,” as the Court in
Swain considered that term. Moreover, the inclusion of
even one Puerto Rican grand juror on each of the 39
grand juries previously without Puerto Ricans would
grossly overrepresent the actual proportion of Puerto
Ricans in the community.
However, if SDT were applied to the facts in this
case, even using the premises advanced by the State, 18
it would demonstrate the extreme unlikelihood that this
particular distribution of Puerto Ricans could have
resulted from racially neutral decisions. The chance of
drawing at random no more than two Puerto Ricans in
738 grand juror selections is only 3.28%. The odds of
randomly selecting 41 grand juries no more than two of
which contained Puerto Ricans is less than four in 100.
Viewed from the other side, there was a 96-97% chance
that more than two of the 41 grand juries would have
had Puerto Rican jurors and that more than two Puerto
Ricans would have been selected in 738 selections.
These results are considered by statisticians to be
inconsistent with the hypothesis of random selection;!4
if the selection process genuinely had been free from
racial considerations, it is extremely likely, even under
the State’s assumptions, that many more Puerto Ricans
would have been selected. Moreover, if any of the initial
premises which have been assumed in favor of the State
are considered in a light more favorable to the petition-
er, the chance that these grand juries were picked
without reference to racial factors falls off precipitous-
Jy.15
As noted above, the “substantial underrepresenta-
tion” requirement in Castaneda is designed to support
the inference that the State acted with an intent to dis-
criminate. Since SDT is the best statistical measure of
“substantial underrepresentation, 16 this court finds the
36A
petitioner’s analysis persuasive notwithstanding the
State’s authorities to the contrary. When considered in
conjunction with the opportunity for abuse inherent in
Fairfield County’s discretionary selection system, the
application of SDT to these facts raises a rebuttable
presumption of intentional discrimination.
Indeed, even if these statistics alone were insuf-
ficient to establish a prima facie case, two additional
factors militate in favor of such a finding. In his own
testimony Sheriff Previdi indicated that he had attempt-
ed to match Puerto Rican suspects with grand juries
containing Puerto Rican members. This suggests that he
was aware of the need to be sensitive to racial factors
and of the general lack of Puerto Ricans on his panels.
Moreover, Sheriff Previdi also indicated that he chose
his juries from among his friends and that he had no
Puerto Rican friends. Under the teaching of the plural-
ity opinion in Cassell v. Texas, 339 U.S. 282 (1950), this
amounts to a virtual confession:
“Our holding that there was discrimination in
the selection of grand jurors in this case, how-
ever, is based on another ground. In explaining
the fact that no Negroes appeared on this
grand-jury list, the commissioners said that
they knew none available who qualified; at the
same time they said they chose jurymen only
from those people with whom they were per-
sonally acquainted.... When the commissioners
were appointed as judicial administrative offic-
ials, it was their duty to familiarize themselves
fairly with the qualifications of the eligible
jurors of the county without regard to race and
color. They did not do so here, and the result
has been racial distrimination.“
Id. at 287-89 (footnotes omitted). Cf. Turner v. Fouche,
396 U.S. 346, 360-61 (1970).
In short, this Court concludes that petitioner has
adduced more than enough evidence to establish a prima
facie case of purposeful exclusion.
37A
“Once the defendant has shown substantial under-
representation of his group, he has made out a prima
facie case of discriminatory purpose, and the burden
then shifts to the State to rebut that case. Castaneda,
supra, at 495; see Rose v. Mitchell, supra at 565. At
best, the State’s efforts at rebuttal can be characterized
as meager. Sheriff Previdi indicated that on two
sions he had specifically sought out Puerto Ricans
the panel. One such occasion occurred only after
petitioner’s motion to quash his indictment was
and is, therefore, not relevant here. The other time he
sought a Puerto Rican, Sheriff Previdi was looking to
match a Puerto Rican defendant with a Puerto Rican
as systematic exclusion. Cassell v. Texas, supra, at 287
(plurality opinion); Ross v. Wyrick, 581 F.2d 172, 175
(8th Cir. 1978); Harris v. Stephens, 361 F.2d 888, 891
(8th Cir. 1966), cert. denied, 386 U.S. 964 (1967).
The State also points out that Sheriff Previdi asked
one of his two Puerto Rican grand jurors to sit sever-
al” times but that the grand juror declined. The record
indicates, however, that after these refusals the sheriff
did not make any efforts to find more cooperative
Puerto Ricans. Citations to United States ex rel. Chest-
nut v. Criminal Court of New York, 442 F.2d 611 (2d
Cir.), cert. denied, 404 U.S. 856 (1971) and United States
ex rel. Epton v. Nenna, 318 F. Supp. 899 (S.D.N.Y.
1970), aff'd, 446 F.2d 363 (2d Cir. 1971) are clearly
inapposite.
Finally, the sheriff insists that he did not discrimi-
nate. While his own declaration is entitled to some
weight, a simple protestation that racial considerations
played no part in the selection process is not sufficient
to rebut a prima facie showing. Castaneda, supra, at 498
n.19; Alexander v. Louisiana, supra at 632; Turner v.
Fouche, supra at 361. Thus, the petitioner has establish-
ed a prima facie case which the State has failed to
rebut, and he is therefore entitled to relief.
38A
.
“(Whhere sufficient proof of discrimination in
violation of the Fourteenth Amendment has
been made out and not rebutted, this Court uni-
formly has required that the conviction be set
aside and the indictment returned by the uncon-
stitutionally constituted grand jury be quash-
ed.
Rose v. Mitchell, supra at 551.
Notwithstanding this recent expression by the
Sureme Court, the State still argues that it would be in-
appropriate to grant petitioner habeas relief. As the
State points out, the petitioner cannot show that the
unconstitutional indictment caused him any harm since
he was subsequently convicted by a petit jury which
was free from constitutional defect. This very argument,
however, was rejected in Rose v. Mitchell, supra. In
Rose, the Court made it abundantly clear that the injury
suffered when an indictment is returned by a racially
tainted grand jury is all the injury a petitioner need
show in order to quash the indictment and set aside a
subsequent conviction. A later finding by a petit jury
that a defendant is guilty beyond a reasonable doubt
will aot render a prior improper indictment harmless
error.
The State argues that Rose v. Mitchell is distin-
guishable because Fairfield County has already changed
its system for selecting grand juries. Here, unlike Rose,
there is an affidavit from the sheriff indicating that the
old, unfettered-discretion system has been replaced by a
new system designed to insure random selection. Thus,
the State concludes that there is no need to grant
habeas relief in order to deter future constitutional viola-
tions by the county. 18
The State’s argument appears to be predicated nn
the assumption that the underlying justification for the
result in Rose v. Mitchell was the concept of deterrence.
39A
A careful reading of the opinion, however, does not
support that conclusion. The Court in Rose was con-
cerned with the appearance of justice and the integ-
rity of the judicial process. Jd. at 555-56. To allow the
petitioner to remain incarcerated where the trial itself
was set in motion by a body tainted with racial bias
would be to condone such behavior and implicitly to
wink at odious and pernicious racial discrimination.
Id. at 555. It is because racial discrimination in the
selection of a jury strikes at the fundamental value of
our judicial system and our society as a whole” that it
is inappropriate to treat it as harmless error after a
valid conviction. Jd. at 556.19
VI.
Since petitioner was indicted by a grand jury in
which Puerto Ricans were substantially underrepre-
sented, he is entitled to be released unless a new indict-
ment is returned and petitioner is retried within 90
days.
SO ORDERED.
Dated at Hartford, Connecticut, this 7th day of
July, 1980.
/s/ M. Joseph Blumenfeld
Senior United States District Judge
40A
al facts have been brought to the court’s attention. Under 28 U.S.C.
5225 A) the state court findings are presumptively correct. Tanner v.
Vincent, 541 F.2d 932, 987 (2d Cir. 1976), cert. denied, 429 U.S. 1065
(1977). Where, as here, they go essentially unchallenged (see note 4
infra) they are binding on the court.
motion .
Puerto Rican the State has had substantial opportunity to present
affidavits or other evidence to that effect.
5. State v. Villafane, 164 Conn. 637, 645-46 (1973).
41A
6. A challenge to the composition of state grand juries, unlike a
challenge to the petit jury, involves only the fourteenth amendment
equal protection clause. No fifth or sixth amendment due process
considerations are invoked. Castaneda v. Partida, 430 U.S. at 509-10
(Powell,J., dissenting); Alexander v. Louisiana, 405 U.S. at 633;
Boothe v. Wyrick, 452 F. Supp. 1304, 1310 (W.D. Mo. 1978).
Analysis of equal protection jury claims differs somewhat irom fifth
and sixth amendment challenges to the jury in that the latter does
not require a showing of intent. Duren v. Missouri, 439 U.S. 357, 368
n.26 (1979). :
7. In Swain, the Court, in fact, subtracted 10-15% from 26% and
referred to the resulting difference as 10%. Swain v. Alabama, 380
U.S. at 205, 209. See United States ex rel. Barksdale v. Blackburn,
610 F.2d 253, 264 n.14 (5th Cir. 1980).
8. Thus, for instance, if an array contained 1,000 members drawn
from a population 30% of which was black, one would expect 300
black jurors. If 290 black jurors were actually found in the array this
would amount to an underrepresentation of only ten jurors. Com-
pared to a situation where only 15 black jurors are statistically
expected and only five are found (still an underrepresentation of only
ten jurors) the former is far less evidence of intent since it is far
more likely to have happened by chance rather than by design.
9. Two Second Circuit cases appear to have concluded that
challenges to a jury panel should be tested by considering the
numerical effect upon the composition of the jury panel rather than
the percentage effect... Anderson v. Casscles, 531 F.2d 682, 685 n.1
(2d Cir. 1976). See also United States v. Jenkins, 496 F.2d 57 (2d Cir.
1974), cert. denied, 420 U.S. 925 (1975). In both cases, it appears that
the record before the Court of Appeals included statistical evidence
computed pursuant to the Statistical Decision Theory (see discussion
in text infra), which established that the minority group’s under-
representation was unlikely to have resulted from random selections.
This evidence was not considered important, however. “‘[W]Jhether the
difference is statistically significant is not dispositive of its
constitutional significance. Anderson v. Casscles, supra, at 685 n. I.
The continuing vitality of Jenkins and Anderson might well be
called into question by the Supreme Court’s ruling in Castaneda v.
Partida, 430 U.S. 482 (1977). See note 16 infra. The Second Circuit
has apparently not considered these statistical questions in a jury
selection context in light of that ruling. More importantly, neither
Jenkins nor Anderson considered an equal protection challenge such
as is raised in this case. Jenkins construed the word substantial! in
a House Report to 28 U.S.C. 51861 et seg. (the Jury Selection and
Service Act). Anderson ruled on a defendant’s claim that he had been
denied a petit jury panel which fairly represented a cross-section of
42A
45 7
*
*
under J Selection Act nor a constitutional sixth
claim the
(public ‘employment disparate treatment case); Board of Education of
City School Dist. of New York v. Califano, 584 F.2d 576, 584 n.29 (2d
Cir. 1978). aff'd, 48 U.S.L.W. 4035 (Nov. 28, 1979).
11. The development of the mathematical formula is clearly set
forth and discussed at length in Finkelstein’s article. It may be
useful, however, to set forth an abbreviated example of its applica-
tion.
Suppose that one wanted to find out what the chances were of
randomly selecting no more than two Puerto Rican jurors when ten
jurors are selected from a large population which is 40% Puerto
Rican and 60% non-Puerto Rican. If P is the probability of selecting
a Puerto Rican juror on any draw, P=.4 or 40%. Q, the probability
of selecting a non-Puerto Rican, is .6 or 60%.
The probability of selecting two Puerto Ricans in the first two
draws is P (for the first draw) xP (for the second draw) or PxP or P2
or (.4)? or .16. The chance of selecting non - Puerto Rican jurors on the
next eight draws is QxQxQxQxQxQxQxQ or Q® or (608 or .0168. So,
the total chance of sel first two Puerto Rican jurors and then
eight non-Puerto Ricans is P? x Q® or .16 x .0168 or .00269.
This last figure represents the chance that exactly two out of the
ten jurors drawn will be Puerto Rican and that the two Puerto
Ricans will be drawn first. Of course, in jury selection cases, the
order of selection is irrelevant so this figure needs to be multiplied by
the possible number of different arrangements of two Puerto Ricans
and eight non-Puerto Ricans.
Statisticians have developed the following formula for computing
this number of different possible arrangements. See Finkelstein, The
43A
Application of Statistical Decision Theory to the Jury Discrimination
Cases, 80 Harv. L. Rev. 338, 355 n.60 (1966).
Where n' is the number of total jurors selected, v is the
number of Puerto Ricans chosen, and y is the number of
non-Puerto Ricans chosen, the total possible number of
combinations is as follows:
in) x (n — 1) x (mn — 2)... x (1)
[(v) x (v — 1)... x (1)] fy) x (y — 1)... x x (1)]
When the numbers used in the above illustration are inserted one
gets:
10x9x8x7..x1
(2x1) (8x7x...x1]
or 10x9/2x1 or 90/2 or 45. Thus, 45 (the number of possible combina-
tions) x .00269 (the chance of any one combination occurring) yields
121 (the chance of selecting exactly two Puerto Ricans out of ten
draws in any order).
This, however, is still not sufficient. Ultimately what one is
interested in discovering is the chance that two or less Puerto Ricans
would be drawn at random. To arrive at this number, one simply
adds the chance of selecting exactly two Puerto Ricans to the chance
of selecting exactly one Puerto Rican and the chance of selecting no
Puerto Ricans at all. This, in turn, requires that the above analysis
be repeated using v=1 (one Puerto Rican selected) and v=0 (no
Puerto Ricans selected). When this is done the following numbers
result:
The chance of selecting one Puerto Rican and nine non-
Puerto Rican jurors in any order is .040.
The chance of selecting no Puerto Rican jurors is .006.
Therefore the total chance of selecting two or less Puerto Ricans in
any order is:
121 (v=2) + .040 (v=1) + .006 (v=0) = .167 (v=2)
A court will only draw an inference of intentional discrimination
where it appears unlikely that the particular distribution of jurors
could have resulted from random selections. In this example there
would be a 16.7% chance of randomly selecting a jury with two or
less Puerto Ricans. A 16.7% chance of picking such a jury at random
indicates that it is so likely that random selection accounted for the
44A
12. E.g., United States v. Kleifgen, 557 F.2d 1293 (9th Cir. 1977);
United States v. Test, 550 F.2d 577 (10th Cir. 1976); United States v.
Goff, 509 F.2d 825 (5th Cir.), cert. denied, 423 U.S. 827 (1975); United
States v. Whitley, 491 F.2d 1248 (8th Cir.), cert. denied, 416 U.S. 990
(1974).
Because it is not significant to the result this Court reaches,
these several disputes need not be resolved. For the purposes o
analysis, the State may be assumed to have prevailed on all points.
tions with the proportion of eligible Puerto Ricans in the pool of
those eligible for grand jury service everywhere in Fairfield County.
45A
14. Where the statistical chance of random occurrence falls below
5% most statisticians are willing to reject the hypothesis of random
selection. See Finkelstein, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 Harv. L. Rev. 338, 359
(1966). See also Baldus & Cole, supra, at 291 and Affidavit of Alan
Gelfand $10. In Hazelwood School Dist. v. United States, 433 U.S
299, 309 n.14 (1977), the Supreme Court noted fals a general rule
for such large samples, if the difference between the expected value
and the observed number is greater than two or three standard devia-
tions’ then the hypothesis that [the selection was made] without
regard to race would be suspect. Castaneda, 430 U.S. at 497 n.17.”
For normal bell-shaped distribution curves involving a large number
of selections such as would be expected here, anything less than 5%
would be more than two standard deviations from the expected value.
Baldus & Cole, supra, at 297.
15. For instance, the chance of obtaining two or less Puerto
Ricans in 738 selections drawn at random from the entire population
of Fairfield County is .00017 or .017%. Similarly, the chance of
obtaining no Puerto Ricans in 736 random selections from all of
Fairfield County is .000002 or .0002%.
16. In Castaneda itself, the statistical disparity was examined via
SDT. The Connecticut Supreme Court has also concluded that use of
SDT is appropriate where the “group claimed to be victimized makes
up a relatively small percentage of the total electorate....’’ State v.
Villafane, 164 Conn. 637, 648 (1973).
17. A grand jury does not determine ultimate questions of guilt
and innocence; rather, its role is to determine whether there is
probable cause to believe the charges against the defendant and to
require him to stand trial. Branzburg v. Hayes, 408 U.S. 665, 686,
(1972); State v. Stepney, 41 Conn. L.J. No. 52 at 1 (June 24, 1980).
Because of this distinction between grand and petit juries many prac-
tices impermissible at trial are acceptable before the grand jury. See,
e. g., United States v. Mandujano, 425 U.S. 564, 581 (1976) (plurality
opinion) (no constitutional right to attorney before grand jury);
United States v. Calandra, 414 U.S. 338, 351-52 (1974) (exclusionary
rule is inapplicable to grand jury proceedings); Costello v. United
States, 350 U.S. 359 (1956) (hearsay evidence can support grand jury
indictment); see also State v. Stepney, supra, and cases cited therein.
Notwithstanding, the Supreme Court held in Rose v. Mitchell
that the right to be prosecuted free from impermissible discrimina-
tion in all respects is so central to the judicial process that strict
rules must be applied in both the grand and petit jury context.
18. Even if this Court were inclined to limit the holding in Rose
to a deterrence rationale, this case would be a dubious point from
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whence to embark on such a course. Here the affidavit of the Deputy
Sheriff for Fairfield County, C. Young Becker, indicates that the
selection system now used insures a random selection. However, the
Moreover, the criminal prosecution was brought in the name of
the State of Connecticut. Becker only attests to a change in Fairfield
County’s system. Petitioner’s brief indicates, and the State does not
19. Furthermore, the court noted that reversal is less costly than
enforcement of the fourth and fifth amendments’ exclusionary rule,
because it does not preclude reindictment and retrial on the same
charges. Rose at 557-58. Similarly, the Court indicated that the
strong interest in making available federal habeas corpus relief
outweighs the costs associated with such relief.“ Jd. at 564.
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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.