Petition — Wainwright v. Giardino

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

nA vi

“0 BE

= J

3A c t

a) -_ Ww

E oD

a _

z= :

by = Ww

, | WwW

» ~ (x) weil _ 8)

. 4 = << 7 et 4b

Oo = << = = a w w -- c %y

— Ee b < A, = v we

WY) m™ Ay 7 c WM YW oO

QQ oO O ~ © > me bs

rH Mm 0 —

—

fad N i Ex fu Qa ep) O @ oO

fH CO . mo a) Zz > Pax. IN

- fea) Cc) « - fx] seal Ow 4 wo Ce

eo | 5 mao fe) ~ & ~ a+ ME p DIM

| | | OY . > law ; w am cwpnr

} mH rep) as { a | hu }. hy 7} 4

Fre | | fx] [x] ~- Ze 1 fit . O —_ ry ~ O 10 — <t ws

| x _ w rH =! a a | co | » BW } w ~t

o>] } ° > ee few | NB cm Y ~ © ©) “< eS WY) a WW OO

i ae He > hn > < Gc] S wv << MW O Geri

Prearng: | & | so fA . O ° hed wv | oo EY Ge) > U me << Pi ary

| | a [x, 2 ord n U0 pc ond = >> ~ re) or

' 4 = ma | | w 5 © | = | zr a4 KY DS _o CC ye ae +a

t tx) ery ot O } O fa -_ Vv > WwW © pte G @ fx Ko

| 2, ma ° ~ rat Oa | aa | ro) = & eee) rw ¢e

‘a Ac O ho ve) . ” ~_ O Wh at o say 6 «

« ) 4 - © Ay - Y fe 5 = 1) r e OwWw2Z,-

fH -) a A © > O vn fh Ae

Se 8 = * Qo mM | © =H mM w Zt gs FU

C ~ o ay - 4 4 Zz, @ ih,

ie ©) _ © 4 fey or SS) <« as an BO

iol <i eA. fa oe 4 {x] a -

SS) 4 »x< UO Q2VOnWOY

x) wp te bd 1 Yaa t =

ms) = ee Ay St = -

fx] ©

. — >

» t

AG bY fx) oO

Au mH »]

) EH fx)

WY (x) -

Ay fx) ]

i 4

ad OG

Oo -Q

7.7

CT ON

- QT ¢

MEevViv il

nrnr

—

as"

Nerritno

Swe s

nro orrp a

Joss ve

eH !

o—) ge

O ©

~m O

OT a

bt WZ

tx] ©)

tel

ta) (2

I WZ

fa) <f

T tJ

be Oy

m~ a

1) bu

t4 O

tal

i. ot

Fr mm

me |

+ eo

NN ©O

PAGE

QUESTIONS PRESENTED............ 1

De SCT ERPS ce cee ene ee cece ii

Die Tens paces wees ececcces 1

I) EAM 266 esee-ce eevee 2-3

Ee eee 4

CONSTITUTIONAL PROVISIONS

AND STATUTE

VWeseeeteeeeeeeeeeeeeeee

es |

‘o)

SUMMARY OF ARGUMENT........2.00. 13-16

CSR hCh ba Gos 66s eco cece s 17-28

PCPRTMEG Swi eesceccvcesevccccs 29-30

ord

“A

ord

YY i

Sicainak Ghiiedal

a> as

CON

1S @)

cr)

14,27

ernandez,

res

—

TABLE OF AUTHORITIES

CONTINUED

CASES PAGE

Williams v. Florida,

ee Usbs FO Clete) cnesndss 28

CONSTITUTIONAL PROVISIONS:

h Amendment, United States

PERRET ia 6 hae eeewards ere Pee

14,18,19,23

Sixth Amendment, United States

COMB CL OCUE LOR 6 i 6.600 6 0 0c d oeeeee 5,9,14

18,19,27

Fourteenth Amendment, United

States Conetituticonhs. «ssccoaceer mB 9,13

14, 2 19

20 eH a es

STATUTES :

SH U.S.C. SAOs CUSTO) 6 eat enue 5,19,20

Ze U.S.C. $2656 (USSG) one bea 5,8

Chapter 57-550, Laws of

gig ©. Fee ere eee rea >, ©

Chapter 70-1000, Laws of

r ‘

n th

habeas

“4

reported,

ported at

302

So.2d

378

JEaALS

Opinion of

— 2 Q

State, 389

contained

, upon which the Third

levant portion is contained in

s Appendix at "A23-A26." The

the Florida Supreme Court

he Defendant's petition for writ

So.2d 1110 (Fla. 1980) and

in the State's Appendix at"A19-

42e2ividn

Jatwu

COANCQTITIITT

W4 ” ss) =) 13)

"ae (@) WwW W” SS hu

| = G4 w wv ow

w = re) Oo 4 hu 4 8)

oO = ww 4@) re) ved QO

WY | a, - W ro) ha =) Ww A

C S) = oO ZY ) 0¥) ie) hu w °

@) oA 8) ed “4 SS) ow Vv re

od ” E =) ae) Cc O Ke 2 . t

7) Oo << a | re) - Ww ') f <{

sed A 4J 4 Pom 0) ord '

> YW 108] ced ord ° =) wU ke =) r

oO or ra) e) & oo eS a w GN

ha i @) —ZY ” a N ° w O v4

Ay =~ t hu

Ww (@) - a uw) a . Ww 17)

a. & . 1) fe @) rd GN a @) w > a

Ww a) >> ¢ ww ON od Uw ol

= Js ord hu ord a) w

oO of WW wv f4 9 oO hu “ A

v4 S ¢ ro O ro oO (@)

1 = a WW - ted on cd =)

“ rd wv G4 as] ~ es) fx, s) Ww

ie) re ed oO t4 t Oo Gy 108)

of © (N 108) oO Qy ”

4! hu ce) ° WY O ord

” 4 hu 173) = ~” °

C S w 0) oO - > ” ke

@) © 7.) “4 re) w - r?)

” ow ) Oo oO al ®

” a A) icp) Vv © °

ce) w ” ¢ ° YQ

rw) oO - UO ” ‘) © oO av

= r4 8) e 48) Cc wy gla

43 ” > ss) wv Ww . wy rm) WW

ra va sd ae) ow ' ' Pad

S) dis . oO ) © ™ re) |

STATEMENT OF THE CASE

The Defendant was indicted by the

Dade County Grand Jury and convicted

after a jury trial of bribery, and

unauthorized compensation for official

behavior.! The Defendant, a white,

non-latin, filed a pre-trial motion to

dismiss the indictment on the basis that

substantial underrepresentation of black

and latins on the grand jury venire

denied him due process and equal

protection of the law. At the time the

Defendant was indicted, grand juries in

the Eleventh Judicial Circuit of Florida

were selected pursuant to Chapters

70-1000 and 57-550, Laws of Florida.

(A30-A40). These laws required state

circuit judges to select qualified

See Report of Magistrate at AQ.

™

fu,

ions

.77

ives

CON

A4.

and relying on its prior decision in

Barnason v. State, 371 So.2d 680 (Fla. 3d

DCA 1979), held that the Defendant lacked

standing to allege that the composition

of the grand jury which indicted him

denied him equal protection. Giardino v.

State, 378 So.2d 302 (Fla. 3d DCA 1980)

(A21-A22). After denial of certiorari

review by the Supreme Court of Florida,

(A19-A20), the Defendant filed his

petition for writ of habeas corpus,

pursuant to 28 U.S.C. §2254, in the

District Court.

The sole claim asserted in the

petition was summarized by the United

States Magistrate in her report as

follows:

The sole claim of this petition

is that the indictment upon

which Giardino was convicted

was returned by a grand jury

which was unconstitutionally

selected and impaneled, in that

Magistrat

ce) OO 4) 8)

G | | = re) ny) ”

3) oy wv oO w ret) be ' ois |

ae) oO ort fe) re wv re) Ww O

rd a) U4 7 ed ean Wy Ww dha 2) Y) O

wv 2) of " w ha oO ha <s Cc . wv - 13) .

a rey cS ov” he a a : Ww FE Ww wv Y)

o {: ted f 1) " W © ” ed =) t. ~~ w “sy

Ww sed ( =) OV a4 fay - > w w w Es O

4) “7 wed 7p) ' ww w re) w hu ha 4 of ae) ” 4) hu

At - 4 sed ‘ ro) Cc 7) Ww cd w a. wed S | - oO

hu a ww aa a a) Ww ha w ha Ww ol wed Ww w uw YO

7) 7 7) . ov) 7) ha wv 77 7 =) Ma od ha GI W

Y) Y) bu bu OV ord Ot a, © O “ed ha ha Ww w Ww ved WV)

sed Ww oO w t = A ted Bo Ww Oo vO a a) w

ol 4 YW) . P bu w U4 oe ms) ha bi | ond WY) Ww Ww

rat} ret Ww <« we) . w @) - mw Ww eS ey W Ww 4 <

ae a hy ! ha W~ few G4 hu ry “4 C iw w rrr

. Oo re OV rs . oO o . w e) ) £3 . Bw

’ w w w <t Wa oe | oO ” W C ” 7s) a) =

m v4 ha ha a) | - 73) > w 4 . ha uy

4) ha w f w | w YW) Ww ed _ ” = Ss) : oO oO

) Ww . 0) © 1) w — 4 O oO 4) a oO ha O re)

( wo w t Ww a) r4 gia oO > oka . oO =) w Ss)

” as S hi 6 6h ww eC ha Aa a) a 8 ha ‘

Onl "a pa ) . W C OO. re Ww ti W ha ha

C te 73) U4 a) | w aw Ww W mm w Ww z

?) Ww Ww “ed “ha w Ww gies wv W a) ha ha hu

wd Wy A eA ol “4 P ba Ua a) | Ob w — W ) a ha

a Ww ) a MG 7) oO ae) ha Ww) O - i) O

( i a a . w ha w . () w 13) be oe

Ww C . ” ) Ww w ) ca <1 w > Ww

Ww Ww ol uw Ww pd oo | uw a | Bw ted ed O| W) w oO e

A 4 c & ” ) ” J a w 4 O ha ord wv O

i) Ww W” ba w y) w O = oo | : rd u ) & ‘

elie ra ™ O O ae | UO a . hu WY ©) 1) a)

©) a) c4 oO Ww Ww on = eS i sed Ww 4

ted Ww a mw wW w 1) Ww @ o| oO w” of ae | w 7)

ohne oles om cd o > Bw w ft: dla x | od “4 aw J G a8)

a) oO O ) Ba ws) ha < s) w | os) a rs fe) w AQ

On appeal to the Eleventh Circuit

Court of Appeals, the Circuit Cours

reversed the District Court, and held

that despite the language in Castaneda v.

Partida, supra, limiting the scope of

Peters v. Kiff, supra to challenges only

to exclusion of one's own race, the

defendant had standing to assert his

claim of systematic exclusion. In

support of its holding, the Circuit Court

cited two pre-Castaneda decisions,

Ferguson v. Dutton, 477 F.2d 121 (5th

Cir. 1973) and United States ex rel.

Davis v. Henderson, 474 F.2d 1098 (5th

Cir. 1973) and the recent decision in

United States v. Perez-Hernandez, 672

F.2d 1380 (11th Cir. 1982) which involved

a challenge to the composition of a

federal grand jury. (A3-A6). The State

did not file for rehearing, but moved for

a stay of the mandate. The Circuit Court

granted the motion for stay of the

mandate, pending review in this Court.

(A41-A42).

SUMMARY OF ARGUMENT

The Circuit Court has construed the

requirements of the Fourteenth Amendment

as it applies to challenges to the

composition of a state grand jury in such

away that it conflicts with this Court's

decision in Castaneda v. Partida, 430

U.S. 482 1977). Despite the language in

Castaneda finding that a state defendant

has no right to a grand jury that

reflects a fair cross-section of the

community, 430 U.S. at 510 (Powell, J.,

dissenting), the Circuit Court's has

erroneously extended to state defendants

the federal right to a "representative"

grand jury that does not derive from the

requirement of equal protection, but from

the Fifth Amendment's explicit require-

ment of a grand jury.

The Fifth Amendment's right to a

representative grand jury is similar to

the Sixth Amendment right to a represen-

tative petit jury. However, the Sixth

Amendment right to a representative petit

jury, unlike that of the Fifth Amendment

right to a grand jury, has been specif-

ically made applicable to state proceed-

ings by the Fourteenth Amendment. Compare

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

and Duren v. Missouri, 439 U.S. 357

(1979) to Hurtado v. California, 110 U.S.

516 (1884). Thus, in a state case in

which the defendant challenges the under-

representation of certain races or

classes, only the Equal Protection Clause

of the Fourteenth Amendment applies. As

this Court held in Castaneda v. Partida,

supra at 494, the defendant, in order to

show an equal protection violation must

show that the procedure employed resulted

in substantial underrepresentation of his

race or the identifiable group to which

he belongs.

Further, the Circuit Court's

construction and application this Court's

pre-Castaneda plurality opinion in Peters

v. Kiff, 407 U.S. 493 (1972) is

manifestly incorrect, where Peters

involved a challenge to system for

selecting both the grand and petit

juries, and where this Court in Castaneda

v. Partida, supra, defined Peters as a

case involving absolute exclusion of an

identifiable group, and not a case of

substantial underrepresentation. 430

U.S. at 492-93. Thus, the Circuit Court

has misapplied the holding of Peters v.

Kiff, to the instant case which involves

only a challenge to the grand jury and

not to the system for selecting petit

juries and further alleges only substan-

tial underrepresentation, not absolute

exclusion.

The extension of the fair cross

section requirement to state grand juries

by the Circuit Court is an issue of great

importance to all state's which have

instituted a grand jury system. This

Honorable Court should correct the patent

misconstruction by the Circuit Court of

this Court's prior decisions and affirm

the Florida appellate court's prior

construction of the United States

Constitution.

The opinion of the Circuit Court in

conferring standing to the Defendant, a

white, non-latin to challenge the

underrepresentation of blacks and latins

on the state grand jury which indicted

him is a manifest misapplication of this

Court's decisions interpreting the

Fourteenth Amendment as it applies to

challenges to the compositions of state

grand juries. The State submits that the

Circuit Court's reliance on Justice

Marshall's plurality opinion in Peters v.

Kiff, 407 U.S. 493 (1972) is no longer

sound in light of this court's later

decisions in Castaneda v. Partida, 430

U.S. 482 (1977) and Rose v. Mitchell, 443

U.S. 545 (1979).

In Peters v. Kiff, supra, the defen-

dant, a white challenged the system for

selection of both the grand and petit

juries on the basis that the system

resulted in the exclusion of blacks from

the juries were in violation of the Due ;

Process and Equal Protection Clauses of

the Fourteenth Amendment. Although,

recognizing that neither the Fifth

Amendment? or the Sixth Amendment4

applied,>° Justice Marshall, joined by

Justices Douglas and Stewart, held that,

"whatever his race, a criminal defendant

has standing to challenge the system used

to select his grand or petit jury, on the

ground that it arbitrarily excludes from

service the members of any race, and

thereby denies him due process of law."

407 U.S. at 504.

3Hurtado v. California, 110 U.S. 516

(1884).

4Peters involved a trial that took

place before this Court's decision in

Duncan v. Louisiana, 391 U.S. 145 (1968).

3407 U.S. at 496.

The difficulty of the precedential

value of Peters, lies not in Justice

Marshall's opinion, but rather in the

concurring plurality opinion of Justice

White, joined by Justices Brennan and

Powell. In his opinion, Justice White,

specifically noted that there were no

cases setting aside a conviction for the

arbitrary exclusions of a class of

citizens from jury service where the

defendant was not a member of the

class ,® and concurred in the opinion

only because 18 U.S.C. 243, made it a

6Less than three months earlier,

Justice White in his opinion for the

Court in Alexander v. Louisiana, 405

U.S. 625 (1972) had held that a male had

no standing to challenge the systematic

exclusion of women on his grand jury, on

the grounds that unlike the Sixth Amend-

ment right to a petit jury which is

fundamental to the scheme of justice and

is guaranteed to defendants on state

courts by the Due Process Clause of the

Fourteenth Amendment, the Fifth

Amendment's concepts of a grand jury are

not obligatory for the states. 405 U.S.

at 633-34,

, ;

federal crime for any state to disaquali

any citizen for service on a grand or

petit jury on the basis of race. 407

U.S. 505-507. Justice White believed

that to implement the strong, statutory

policy of §243, which reflected the

central concern of the Fourteenth

Amendment with racial discrimination, the

defendant should be allowed to challenge

the grand juries which indicted him on

the grounds that blacks were arbitrarily

excluded. Id. at 506-507.7

7Chief Justice Burger, along with

Justices Blackmun and Rehnquist

dissented, stating that the claim of

prejudice to the white defendant from the

exclusion of blacks from the jury was too

speculative to raise the "probability of

unfairness," required for a finding of a

denial of due process. 407 U.S. 509-11.

The dissent further stated that this

Court should not expansively read §243,

and that the ineffectiveness of the

Statutory sanctions for a violation of

the statute are for Congress to correct,

not this Court. Id. at 512-13.

—

this Court rendered its opinion in

Castaneda v. Partida, 430 U.S. 482

(1977). In an opinion authored by

Justice Blackmun, the Court defined

Peters v. Kiff, as a case involving

"absolute exclusion of an identiable

group.” 430 U.S. at 493. The Court then

stated that later cases had established

the principal that substantial underre-

presentation of a group constitutes a

constitutional violation as well, if it

resulted from purposeful discrimination.

Id. The Court held that "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 identifiable group to

which he belongs." 407 U.S. at 494. Thus,

the opinion in Castaneda has limited

Peters to cases involving absolute

exclusion, and requires substantial

underrepresentation claims in state grand

juries to be raised through an equal

protection basis.

In his dissenting opinion in

Castaneda, Justice Powell, joined by

Chief Justice Burger and Justice

Rehnquist, expanded on this view and held

that although the Fifth Amendment right

to a grand jury does not apply to a state

prosecution, if a state chooses to

proceed by grand jury it must proceed

within the constraints imposed by the

Equal Protection Clause of the Fourteenth

Amendment. 407 U.S. at 509. Justice

Powell concluded that although, 2 state

defendant can complain that the state has

denied him equal protection where

purposeful discrimination has resulted

only in substantial rather than total

tha

tent

2VU

' >

UO Ve

Veo w

va vo

Cl Med

G 7)

Vd Pr

WH Cc Ww

WwW wv

wo wm

”

o >

> of

oO YW

hu ba

oOo @

“a UO

OW w

‘4 >

J 4)

Dea

"oP ened eins

my) aie

ed iz ie)

oO wv

7-MO0Ow Yd

oC Ww

OW Cee

wo O WV

> oie

x &

WM ert Ga

| a oe |

vv ow

ave

O ie) ft 4) . f

wv sed w Oo oO w * ¢ f

- Ss) ” Q ha 4 | i ) vo

i aw ” ”) J G4 ) aw . oO >

CS ed Ww “ V) © Ma ie) i) mu VY) cS w °

wo 4 w “J 1o) w at) w - - ” Hea *| «

wu a oo i) © oO ed w = Ww Ww hu ce 4 W bu o> Oo

ne ” ” ita) ha te ro hu (@) ” 8] Vw awn 3

oO Oo . - w fav a O hu Ww > < a) i ww ¢

ee « 7) @) t: = oO Oy Ww hu © oO) ” LI «4 © £ c

Cy? * ha Ss) re) Ww 2) % C ee. t Ww

Ww YU wy po J ted a | r+ 2 Ww t) ie

oO a @ oO wy > (9 4), wo w oO ha W”

4 i C 2) ed re) | . ee ake hu aw . Ww

YY af O w Ww rd Ww Ww w w oO W) Ww rt w ond

Wc ww a) YO wu or 7) | fal 4 2) t3 YO

W +e Aa . 4 a = oO s) w | =) ” ord w

a > WY — 7) ) ha ved w 1) a nv) s) Wa

Orr ° YO | G | Pu v w dha —e) re

WY ta poe | hu aw Ww Ww ti ote a) eS) t Le] O Wy

i: Oe “ed =) 7) Ww r wo re) rt) Oo Ww 2)

‘e) a) fi C) va) W” '< aw c “ed w Qa ) od

Ga ful ee Cc Ww J oa Ww ”) Q)| oO 4 w U4 ao |

<<. t Ww ved qa © eG oan | a @ sed oO

| a Ww <_< ba @ | Bm (x) «< © hu = wo +) ew |

Sc & a) Ww cd Ww @ © oS Ol CG hu ha

qm Bm pa Ww Ww a wu “<— ort Ww Ww Ww Ww ra]

"UO < +) oO O en im) - ) ua vw) ww ra ont

Y) hi Was e e) ‘z 24 Ww Cc ”) | aw Ww ‘ ‘

oo Uv @ ed Ww Ww - e 4 "‘— g=l ie) i

+e O ”) ed ed i) ha ww Ww ) . oO w os fo ‘

rad a mw ed @ 4 WJ ha > “ed w ted aw w w”

ogo Ww i a “4 w ha “ ) > -) a)

Ci. tet od oO oO 3) G4 a oO ved . Cc G4 sed <{

wm i) 4) WL) fa “ed Ww ra | ay) oO 7 c4 mu Ww mu © Wa

y) hu os YW) La, ted Ww i) oo |

wed “4 w” wi cs pa ”) | .

Y 8) ~~ aw w ted w (3) w .O oO al t

employed in determining a violation of

the fair cross section requirement of the

Due Process Clause. See Duran v.

Missouri, 439 U.S. 357, 364 (1979). The

only distinction, which is significant is

how that prima facie case may be

rebutted. For an equal protection claim,

the presumption can be rebutted by

proving an absence of discriminatory

intent. Castaneda v. Partida, 430 U.S.

at 497-98. Ina fair cross-section

analysis, purposeful discrimination is

irrelevant since the emphasis is purely

on the structure of the

prima facie case can be rebutted only by

establishing a significant government

interest which justifies the imbalance of

classes. Duren v. Missouri, 439 U.S. at

367-68

cannot be underestimated. ? In Rose v.

Mitchell, 443 U.S. 545 (1979), this Court

recognized that because the principal

purpose of the Equal Protection Clause

was to protect against discriminatory

action by the state on account of race,

discrimination which if present in the

administration of justice, casts doubt on

the integrity of the judicial process.

443 U.S. at 554-56. These same concerns

were expressed by Justice Marshall in his

opinion in Peters v. Kiff, 407 U.S. at

502-503. With the recognition of these

concerns, this Court in Rose v. Mitchell,

reaffirmed its holding in Castaneda v.

Partida, supra, that a defendant, in

order to show a violation of the Equal

Protection Clause must show substantial

underrepresentation of his race or of the

was recognized by Justice

‘>

Rehnquist in his dissent in Duran v.

Missouri, 439 U.S

entifiable group to which he belongs.

443 U.S. 565.

The purpose of the fair cross-sec-

tion requirement of the Due Process

Clause was derived from the Sixth Amend-

ment guarantee of an impartial jury

trial. Taylor v. Louisiana, 419 U.S.

522, 526 (1975). Allowing a defendant,

as in the instant case to challenge the

underrepresentation, not absolute exclu-

sion, of groups or races other than his

Own on a state grand jury, where the

system for selecting petit jurors is not

challenged, would ill serve the purposes

of the Due Process Clause. It would be

an irrational method of vindicating what

is in reality the equal protection rights

of the underrepresented class to

participate in the judicial process.

This Court in Carter v. Jury Commission

County, 396 U.S. 320 (1970) has

recognized that injunctive relief is

able to require states who provide

for grand juries, to do so in a manner

that is free of racial bias. 396 U.S. at

330. Reversal of a valid state convic-

tion should not be required.

This analysis of the essential dif-

ferences between a Due Process and Equal

Protection claim was recognized by the

Florida courts. See Giardino v. State,

378 So.2d 302 (Fla. 3d DCA 1980) (A21-A22)

and Barnason v. State, 371 So.2d 680, 681

n. 2 (Fla. 3d DCA 1979) (A23-A26).

Because the Circuit Court's opinion in

the instant has rejected this analysis,

it is a decision which conflicts with

that of a state court of final decision,

see Williams v. Florida, 399 U.S. 78

(1970); Nash v. Florida Industrial

Commission, 389 U.S. 235 (1967) and this

Court should take jurisdiction to decide

this manifestly important issue.

The State submits there is an issue

of great public importance herein in the

context of challenges to a state grand

jury system. The application by the

Circuit Court of Peters v. Ki

re-

| ed

this court's later decisions in

hth

nd Rose v. Mitchell

™

Castaneda v. Partida

cannot stand. To allow the Defendant, a

poe

tin to have standing to

absolute exclusion, of blacks and latins

on the state grand jury which indicted

ie)

him, especially in light of the fa

the system used for selecting the petit

blur any viable distinctions between the

Equal Protection Clause and the Due Pro-

cess Clause of the Fourteenth Amendment,

rendering this Court's decisions in

Castaneda v. Partida moot. This Court

has jurisdicti

jurisdiction o

™ T1lins "of

compelling nat

ait

on and should take

iit Oo

re)

12)

(2)

“<

ion

| cmd

ra)

M. SNURKOWSKI

ant Attorney General

t rney General

tment of Legal Affairs

| . W. 2nd Avenue (820)

ami, Florida 33128

—

race

lal at ies

ve)

je o

“ead (CO

| 4

wa LJ

OQ.

C —

f- +4

mM ©)

‘A

f 4)

G& ow

ol >

UO W

3Ir4

Appeals.

O*V

W °

@ .

) °

aw -

) .

«2B *

UD -

wv -

i .

on .

f e

— .

oS ae

oO W

43) iJ

O vd

A. a0

Yv wv

U4 .

UO °

iw .

hu -

4 .

@ -

@ 7

Oo.

Cc Ww

srt ted

4 O

Que

—N

<«

hu e

~ -

q) *

©) °

a3 4,

YU YU

4 +ed

hu bu

4) 4

w WwW

eft «rd

a @)

UO hb

eet ord

fay e

re—

« w

Cc wv

O A,

4A OQ

Go <f

ord

O.4H

Y - oA

r y fe @] e = .

< (x) | ©

” 5

tx] =) ' ~ 7 Ww O Y

Ay _ > S. ® “4 £

mM © rn = : ex’ =. ~ uw

q oO : O ; : on ©) a

hay ba v f v boa a w iw w ie) ©

re) e w e © a — ~

fa oe } oO r- - oe a) . ? hu A v

; Es ,; © W ' ‘ wv) f '

ae i en tC) re 4, Me ” WW fH ) 0

be ) 2. | ' ' ~ WY 4) © Y a 4 . ‘

oO fa} wy 7 uy) OC - : 12) poe tins o Oo O

y oO } #8 | © f wv Ors : 0 A « . w U

[ ) | N O WY oa ‘ B = ow @ a a

WY = | co WwW | e owt as ion v — CG o = — f M4

: J = } e) a i. ‘ A ww = O

fat {x} } : Oo -~-UO wv : ‘ ha 4 ‘

KH | Pa | ow ord f 1 Qt O -_ wv . fal

e “4 x) . ° - r e

<«< | = , ~ a ow = lw : ras eo <<

~~ = a ~ oO A Ou - wv c - vy ~~ to ey

Ji bE v 2. r4 O ~m “‘ - re od a Oo :

‘ a ball on i> 3 oO fa -) M4

) ad VU Q = 4 : ) oO O

[x] = om O ~m a Wt . v Mu 2

fx, “4 -Q + — OO”O ¢ w sf a ” w

—~4 . << al bu e oO “ ra

’ - , uy 4 =) al

ne ; c Sw hy wb = ae

: ) ? YU 4

bal © = , oY) P .

: © > &- wy me eK ~

a Q » +4 ECO oO Oo ” Wo

a wv Wa ws UY) —_ Cc

QD J wey OD A: w

>, mm UO LW ) ord (x) a ba

< 4 >> oO wv su hu OQ 4

oO 9 OVW 5 O @

st yo” O ed (x) V

as rw

Southern District of Florida, and was

taken under submission by the Court upon

the record and briefs on file, pursuant

N CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the order of the District Court

appealed from, in this cause be, and the

same is hereby, REVERSED; and that this

cause be, and the same is hereby:

REMANDED to said District Court in accor-

dance with the opinion of this Court.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5906

Non-Argument Calendar

CANDIDO GIARDINO,

Petitioner-Appellant,

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections, State of

Florida, et al.,

Respondents-Appellees.

Appeal from the United States District

Court for the Southern District

of Florida

(April 5, 1983)

Before HILL, KRAVITCH and HENDERSON,

PER CURIAM:

is whether

trial, in Florid

sought dismissal

grounds pf subst

The state

tion.

the ground that

claim by appeari

ioner lacke

denied the appea

Court denied cer

Petitioner

habeas corpus in

District Court f

ng and testi

pee EO

5 --

ant

Sg |

petiti

d standing

l. The Florida

tiorari.

then sought a wr

the United

or the Southern

aw ©

grand jury selection process, and

Supreme

it of

; :

District

of Florida. The magistrate also deter-

mined that Giardino lacked standing, and

recommended denying the petition. On re-

iew of the entire record, including

! : 1

petitioner s obdjections to tne

a ts : ‘

Magistrate s report, the district court

; coed Os a a at

Cenied tne writ. s1arcino appeais.

Despite opinions below, which

interprets at great length the Supreme

Court's opinions in Peters v. Kiff, 407

U.S. 493 (1972) (plurality holds criminal

defendant, no matter what his race, may

challenge systematic exclusion of any

race from grand jury pool) and Castaneda

v. Partida, 430 U.S. 482 (1977) (language

ndicating scope of Peters narrowed to

permit challenge only to exclusion of

one's own race), the issue presented here

is settled in this circuit. In United

States v. Perez-Hernandez, 672 F.2d 1380,

1385 (lith Cir. 1982) we analyzed the

sed

) =

Ww aA

a, aw

w Y a

Ww e

Be ”

iJ od Ww

aia hu

ww O

ea aS) G4

oO ha WY

ola Ww hu

Y) Ww

Ww Ww wr

ha aw ta

‘ ©

w w e

3 |

a oO

” |

‘ a

ie)

oy hee

f w

. ©

w |

e w t

ha ha w

ted a)

UO W”

gh ”

re)

wy Ya

. oO

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 81-1137-CIV-EBD

CANDIDO GIARDINO,

Petitioner,

JER

| 9

VS.

LOUIE L. WAINWRIGHT,

etc., and JIM SMITH,

Le.

Respondents.

THIS MATTER is before the Court on

Petitioner's Objections to Magistrate's

Report, pursuant to Title 28, United

States Code, Section 636(b)(1)(c).

Magistrate Charlene H. Sorrentino entered

the Report on November ‘9, 1981, recom-

mending that the petition for writ of

habeas corpus be denied.

Upon consideration of the Report,

the Objection, the Response and the

entire Record, as well as being advised

ORDERED AND ADJUDGED that the

petition for writ of habeas corpus is

hereby DENIED.

DONE AND ORDERED in Miami, Florida,

this 5th day of March, 1982.

Edward B. Davis

UNITED STATES DISTRICT

JUDGE

Copies To:

Anthony Musto,

Esa.

Michael Zelman,

Esa.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 81-1137-CIV-EBD

CANDIDO GIARDINO, )

Petitioner, )

Vs. ) REPORT OF

UNITED STATES

LOUIE L. WAINWRIGHT, ) MAGISTRATE

Secretary, Department

of Corrections and )

JIM SMITH, Attorney

General, State of )

Florida,

)

Respondents.

)

Candido Giardino, who is represented

by the Public Defender for the Eleventh

Judicial Circuit of Florida, has filed a

petition for writ of habeas corpus

pursuant to 28 U.S.C. §2254, attacking

his convictions for bribery and unautho-

rized compensation for official behavior,

entered on March 9, 1979, after jury

trial in Case No. 77-4260-A in the Cir-

cuit Court of the Eleventh Judicial

A10

Circuit of Florida, at Dade County. He

was sentenced to concurrent terms of six

months to four years incarceration, and

is presently serving these sentences at

the Miami North Correctional Center,

Miami, Florida.

This cause has been referred to the

undersigned for preliminary consideration

and report, pursuant to 28 U.S.C. §636(b)

(1)(€B).

The respondent has filed a response

to an order to show cause. Both sides

have filed numerous documentary exhibits.

The sole claim of this petition is

that the indictment upon which Giardino

was convicted was returned by a grand

jury which was unconstitutionally select-

ed and impaneled, in that Blacks and

Latins were substantially underrepre-

sented in the list from which it was

chosen,

All

Giardino was indicted on June 2,

1977. On June 23, 1977, he filed a

motion to dismiss the indictment upon the

basis raised in this federal petition.

Essentially, the Florida law then in

effect permitted Circuit Judges to submit

names of individuals believed by them to

be morally fit, and grand jury venires

were formed from these submissions.

On September 12, 1977, the Circuit

Judge denied the motion to dismiss on the

basis that it was not timely filed

pursuant to Fla.Stat. §905.05. No evi-

dentiary hearing was held.

The issue was preserved by Giardino

on direct appeal. The state, in its

Brief of Appellee, argued as to this

issue that; 1) Giardino, as a white, non-

Latin male, had no standing, and 2) the

motion was not timely filed pursuant to

Fla.Stat. §905.05.

A12

The Florida Third District Court of

Appeal did not mention the issue of time-

liness, ruling instead that Giardino

lacked standing to raise the issue, and

affirming the convictions. Giardino v.

State, 378 So.2d 302 (Fla. 3 Dist. 1979).

The Florida Supreme Court denied certio-

rari. Giardino v. State, 389 So.2d 1110

(Fla. 1980).

It is apparent that all state reme-

dies have been exhausted as to the issue

raised in this petition.

It further appears that the state

courts have correctly applied the appli-

cable federal Constitutional principles.

Giardino is a white, non-Latin,

male. The thrust of his claim is that

the selection process utilized by the

State at the time of his indictment

resulted in grand juries upon which

Blacks and Latins were substantially

underrepresented.

The cases treating jury challenges

nvolve three federal Constitutional

A defendant in a federal criminal

case has both a Fifth Amendment right to

indictment by a grand jury in a felony

case and a Sixth Amendment right to trial

by an impartial jury. A defendant in a

case has no Fifth Amend-

ment right to indictment by a grand jury.

Castaneda v. Partida, 430 U.S. 482, 509

(1976) (Dissenting opinion); Hurtado v.

lifornia, 110 U.S. 516 (1884). He does,

however, have a Sixth Amendment right to

trial by an impartial jury, since that

right has been incorporated in the Four-

teenth Amendment. Duren v. Missouri, 439

ip)

(vy

57 (1979); Taylor v. Louisiana, 419

U.S. 322 (1975).

The state defendant's Sixth Amend-

ment right to trial by an impartial jury

has been the basis for cases such as

Al4

Duren v. Missouri and Taylor v.

Louisiana, supra, which hold that the

Sixth Amendment right requires trial by a

jury drawn from a fair cross section of

the community, regardless ot whether the

defendant on trial is a member of the

class suffering from substantial

underrepresentation. Those cases, of

course, dealt only with a challenge to

the petit, or trial jury, not to a grand

jury.

This is not to say that a state

defendant may never challenge the compo-

sition of a grand jury. Although he has

no Fifth Amendment right to indictment by

a grand jury, if the state provides such

a procedure, it must do so in compliance

with the Equal Protection Clause of the

Fourteenth Amendment.

The Fourteenth Amendment equal pro-

tection analysis applicable to grand

juries, however, is quite different from

the Sixth Amendment fair cross section

a &

A15

analysis applicable to petit juries. The

standard has been stated by the Supreme

Court as follows:

Thus. in order to show that an

equal protection violation has

occurred in the context of

grand jury selection, the de-

fendant must show that the pro-

cedure employed resulted in

substantial underrepresentation

of his race or of the identifi-

able group to which he be-

longs. Castaneda v. Partida,

Z30 U.S. 482, 494 (1976).

One earlier case, Peters v. Kiff,

407 U.S. 493 (1972), a plurality

opinion, permitted challenge by a state

defendant of a grand jury upon the basis

of exclusion of persons of a race other

than his. That case, however, involved

arbitrary exclusion rather than

underrepresentation, and was decided upon

a Fourteenth Amendment due process

rationale.

The Castaneda rule, quoted above, is

the federal Constitutional rule as

Af ) 2 @) a 1 w |

4 w N & W CS x = >

<s ) ' . c| S) w oO hu w

Wy w wy WW w Y) oO oO} ©) - rs wo

- Oo is . , YU Vv Dw od —/ o| ol 4) w 0) am | <

U S) ved ofa f 4 > © | = w ha “4 a =)

i) 4) » OV rd bu WW ) c . - ord Ay ie ) ww

rw hu +4 oO ,. re) w Oo fr wloow . 3] re) ws ec wo

5 — J WO z ” _ 8) . e) om) | oO e) 9) —_ uw |

( ( {- + SS) A” = | - =. ' hu ”

C C 1 i @ ree) QO ra) oO 3) - oO O rd Od w

ro) N ed 0 f ord - | re) v | > Oo OD

1 ww 1 e rs ww gud < oO | mo ol 4} w cS wv

( ooo] bu {x bu su v @) oc CG w O wo v re) a 0)

) - 4 ok vw OQ, ort a) “4 +4 Yl 9) . a) C

Oo va) ov) w & ©) ae) —/ = W ) — wo re) WJ

>. hu (U ”) UO} t4 WwW hu - ore S “J ww a8)

ii 4 ©) ree a4 i¢p) w . ~ Q. ord . c ie) sed ol -

C iW c)} w ord “4 >| OV oO oO > | “4 Ww) oo 7 O

we | ° ow wO = _ ee) ™ Q | z 18) a

D> Wi rd v rw) cf aD 4 c| ¢c¢ FV on 3

ao ae) hu i) hu fe of oO} . _ UO O| @) w re

WJ 08) hay w 2) = = Cc | Qa = ” |} 4 w” w E

e “4 rel) ©) cA “4 ord w | . Ww ow w .S) .S) ” ha ord

f Q) co QO fx, . E ei WW B Cc | e) Bw w YU o =

rw > a | Vv 4 4°) OO hi ul 6 oo . uw «CS aL

v A 0) ke v iA) Vv 08) od 00 | “4 7 ce) w “4 wed - O ae)

W cH w e) re) J wy a. re) Q4 | Q O r | e) hu Oo e) ny)

| tx] hu WJ A. ?) S U4 o - 13) - Ss)

ad 2) O ’ a) A, w Ww w a @) foe) WW ha . +r re | ol o)

3 w buy ws > <t rs 7) 08) N n°) w ae) “4

> oO c ( 3 O wv 2 rs) . w wo | = a “4 a @)

rs 6. . G4 © bu “4 “4 rs.) u} Vv 8) @) w ~ =

4) ” > WW oO CC ew ro) 4 re) rs) o -. ord . “4 GC “4

f ra . 4 “4 hay c| oO 4) ss) Ss) C ow

a yw. Ww wv | oe OD = 7) - s oO) = M4 4

y iJ Y i's) . mn hu hu sed :S] = re) 4J) Ww - 4J oO 13)

v Qy fe) ord : re) —- ow w | oO Cc ” | (@) + ted en

hu et re) rs od re. oO “4 a oO ord co wo ow | oO fo @) we) w oO

A117

was selected from lists on which Blacks

and Latins were substantially under-

represented.

Because no showing has been made

that Candido Giardino is in custody in

violation of the Constitution or laws of

the United States, it is the recommenda-

tion of the Magistrate that this petition

for writ of habeas corpus should be

denied.

Pursuant to 28 U.S.C. $636(b)(1)(C)

and Rules 8 and 10 of the Rules Governing

Section 2254 Cases in the United States

District Courts, the parties may serve

and file objections to this Report with

the District Judge within ten days after

being served with a copy of the Report.

DATED: November 19, 1981

Charlene H. Sorrentino

UNITED STATES MAGISTRATE

1) Y

U <U

O =

om Ww

=. &

m a )

=) >

auld > wv

7) ) c §

WW +4 Ow

re tn YW

Oo .O w i

qe 3 Cc wv

> {<<

€)

Le @)

A21

CANDIDO GIARDINO, Appellant

vs.

THE STATE OF FLORIDA, Appellee

No. 79-549,

District Court of Appeal of Florida,

Third District

December 4, 1979.

Rehearing Denied January 8, 1980.

Appeal from Circuit Court, Dade County;

Wilkie D. Ferguson, Jr., Judge

Flynn, Rubio & Tarkoff and Vincent J.

Flynn, Miami, for appellant.

Jim Smith, Atty. Gen., arc Anthony C.

Musto, Asst. Atty. Gen., for appellee.

Before PEARSON, HUBBART and NESBITT, JJ.

PER CURIAM.

The judgment of conviction and

sentence appealed from is affirmed upon a

holding that (a) the defendant lacks

standing to assert the claim, in a motion

to dismiss the indictment herein, that

the composition of the grand jury which

indicted him denied him equal protection,

a x 4 a 9 7A an

Barnason v. State, 371 So.2d 680

7 — | / bh Ck =

DCA 1979), and (b) the denial of the

trial presents no reversible error.

(1977); See Zamora v. State, 361 So.2d

776, 779 (Fla. 3d DCA 1978).

A23

ROBERT G. BARNASON, Appellant,

VS.

THE STATE OF FLORIDA, Appellee.

No. 78-578

District Court of Appeal of Florida,

Third District.

May 15, 1979.

Rehearing Denied June 15, 1979.

Bennett H. Brummer, Public Defender

and Robert L. Moore, Special Asst. Public

Defender; Greene & Cooper and Sharon L.

Wolfe, Miami, for appellant.

Jim Smith, Atty. Gen. and Susan C. Minor,

Asst. Atty. Gen. for appellee.

Before HAVERFIELD, C.J., and PEARSON and

SCHWARTZ, JJ.

SCHWARTZ, Judge.

The defendant appeals from the judg-

ment and sentence entered after a jury

found him guilty of second degree murder.

We find that neither of the contentions

he advances for reversal has merit.

A24

Barnason, a white non-Latin, first

argues, relying almost entirely on

Castaneda v. Partida, 430 U.S. 482, 97

S.Ct. 1272, 51 L.Ed.2d 498 (1977), that

Blacks and Latins were substantially un-

derrepresented on the grand jury which

indicted him.! We need not reach the

merits of this contention because, as the

majority opinion in Castaneda itself

holds, at 430 U.S. 494, 97 S.Ct. 1280, 51

L.Ed.2d 510:

'The members of the Dade County grand

jury involved in this case were chosen by

the circuit judges of the 11th circuit

acting as grand jury commissioners

pursuant to Fla.Laws Chs. 57-500 and

70-1000. The constitutionality of the

System was upheld in Seay v. State, 286

So.2d 532 (Fla. 1973) and State v.

Demetree, 213 So.2d 709 (Fla. 1968) over

challenges which did not involve the

contention and the attempted statistical

showing of purported discrimination which

were presented in this case.

A25

= .in order to show that an

equal protection violation has

cccurred in the context of

grand jury selection, the de-

fendant must show that the pro-

cedure employed resulted in

substantial underrepresentation

of his race or of the identi-

fiable group to which he

belongs.” [emphasis supplied]

Since the defendant is not a member of

the race or group allegedly underrepre-

sented on the grand jury, he clearly

lacks standing to assert the claim that

its composition denied him equal protec-

tion.2

2The rule as to standing is different

when the defendant raises a claim that

the petit jury which convicted him does

not represent a "fair cross section o the

community." Duren v. Missouri, U.$.

99 S.Ct. 664, 58 L.Ed.2d 579 (1979);

Taylor v. Louisiana, 419 U.S. 522, 95

S.Ct. 692, 42 L.Ed.2d 690 (1975). The

reason and constitutional basis for the

distinction are explained in Justice

Powell's dissenting opinion in Castaneda,

430 U.S. at 509, 510, 97 S.Ct. at 1287,

51 L.Ed.2d at 520. Compare also Peters

v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33

L.Ed.2d 83 (1972) in which the Supreme

Court held that a white defendant may

A26

Footnote 2 (cont'd) may challenge both his

grand jury and petit jury on the ground

that Blacks had been arbitrarily,

systematically, and totally excluded

solely by reason of race. As is shown by

the rationale of Justice White's separate

opinion in Peters in which Justices

Brennan and Powell joined so as to make

up a majority of the court concurring in

the judgment, 407 J.S. at 505-507, 92

S.Ct. at 2169, 2170, 33 L.Ed.2d at 95-96,

that situation is to be distinguished

from the claim of grand jury

underrepresentation involved in the

Castaneda case and in this one.

A27

JLONSTLT UTION AND STATUTORY PROVISIONS

endment V of the Constitution

ted States provides that

person shall be held to

swer for a capital, or other-

se infamous crime, unless on

presentation or indictment of

Grand Jury, except in cases

ising in the land or naval

rees, or in the litia

erein actual service in time

War or public danger; nor

all any person be subject for

e same offense to be twice

it in jeopardy of life or

mb; nor shall be compelled in

y criminal case to be a wit-

ss against himself, nor be

prived of life, liberty, or

operty, without due process

law; nor shall private

operty be taken for public

e, without just compensation.

mt no sé:

cr?

a ye 5

aA ren kk

—_

3 0

11 criminal prosecutions,

accused shall enjoy the

t to a speedy and public

1, by an impartial jury of

State and district wherein

crime shall have been

tted, which district shall

been previously ascer-

3 U4

process

ase

States:

ive

possess

depr

zen

;

uris

ted States

reside.

United

State

deny

the

A29

scribed by law shall be disqualified for

service as grand or petit juror in any

court of the United States, or of any

State on account of race, color, or

previous condition of servitude; and

whoever, being an officer or other person

charged with any duty in the selection or

summoning of jurors, excludes or fails to

summon any citizen for such cause, shall

be fined not more than $5,000.

Title 28, United States Code,

Section 2254 provides inter alia that:

(a) The Supreme Court, a Justice

thereof, a circuit judge, or a district

court shall entertain an application for

a writ of habeas corpus in behalf of a

person in custody pursuant to the

judgment of a State court only on the

ground that he is in custody in violation

of the Constitution or laws of the United

States.

A30

CHAPTER 70-1000, LAWS OF FLORIDA

Be It Enacted by the Legislature of the

State of Florida:

Section 1. Section 1 of the Chapter

57-550, Laws of Florida 1957, is amended

to read:

Section 1. The provisions of this

act shall apply and relate to all

counties in the State of Florida having a

population of four hundred fifty thousand

(450,000) or more, according to the last

previous federal census.

Section 2. Section 2 of Chapter

57-550, Laws of Florida, 1957, is amended

to read:

Section 2. There is hereby created

a grand jury commission composed of the

Circuit judges of the judicial circuit

encompassing the geographical boundaries

of all counties referred to in section 1

of this act. The chairman of the grand

A31

jury commission shall be elected by its

members and the clerk of the circuit

court shall be the secretary of the grand

jury commission.

Section 3. All laws and parts of

laws in conflict herewith are repealed.

Section 4. This act shall take

effect September 1, 1970.

Vetoed by the Governor July 5, 1970.

Passed the Senate and House over the

Veto October 9, 1970.

Filed in Office Secretary of State

October 13, 1970.

by created

Commission composed of ten

members as follows: the Clerk of the

Circuit Court, Chairman of the Board of

County Commissioners, County Supervisor

of registration, Clerk of the Criminal

Court of Record, and the County Judge

having served for the longest, continuous

term sha’ 1, each, be members of the Grand

Jury Commission, and the five (5)

remaining members of the Grand Jury

Commission shall be appointed by the

A33

Governor, who shall appoint one (1)

member each County Commissioners’

district. The term of office of each of

the appointive Grand Jury Commissioners

shall be four (4) years and upon this act

becoming a law the Governor of this state

shall appoint three (3) Grand Jury

Commissioners for a term of four (4)

years and two (2) Grand Jury

Commissioners for a term of two (2)

years, and thereafter all appointive

Grand Jury Commissioners shall be

appointed for a term of four (4) years.

There shall be a Chairman of the Grand

Jury Commission to be elected by the

members, and the Clerk of the Circuit

Court shall be the Secretary.

Section 3. The Grand Jury

Commission may employsuch clerical

assistants as may be necessary in order

that it may function properly. The Board

A34

of Commissioners of the County shall pay

such assistants such sums as said Board

may determine, and shall also furnish the

Grand Jury Commission with such supplies

and equipment as may be required in order

to permit the proper functioning of the

Grand Jury Commission. The compensation

of such assistants, and the cost of such

supplies and equipment, shall be paid out

of the Fine and Forteiture Fund of the

County.

Section 4. The grand jurors in

each County in this population

classification shall be paid the sum of

five dollars ($5.00) for each day when in

session, or in court, or such sum as the

general laws of the State of Florida may

provide for the payment of grand jurors,

whichever may be the greater. Such

payment shall be made as now provided by

law. That in addition to all other

A35

compensation provided by law, each grand

juror shall receive the sum of five (5¢)

per mile for every mile necessarily

traveled in going from home to the

courthouse, and return, when on official

grand jury duty, whether attending Court,

grand jury sessions or other grand jury

meetings or business.

Section 5. The qualifications of

persons to serve as grand jurors are as

follows:

(a) Shall be a citizen of the United

States of America, and a qualified

elector and resident of the County.

(b) Shall be of sound mind, in pos-

session of his, or her natural faculties

and not infirm or decrepit.

a felony or of a misdemeanor involving

moral turpitude in any court within or

without this state.

A36

(d) Shall not have any pending

criminal charges against him, or her, of

a felony or a misdemeanor involving moral

turpitude in any court within or without

this Stete.

(e) Shall be of good moral charac-

ter, and shall be free of any organized

crime or with those associated therewith.

(£) Shall not be a member of any

association or organization prohibited or

declared to be subversive by the laws of

the State of Florida or declared to be

subversive by the Attorney General of the

United States of America pursuant to law.

(g) Shall be intelligent, well

informed and able to read and write the

English language understandingly.

(h) Shall not be a public officer or

employee of the United States of America,

the State of Florida, or any county or

city therein, but this prohibition shall

A37

not apply to any person serving without

compensation, /pursuant to the provisions

of the United States Training and Service

Act, or any future draft law, nor to any

person serving in the Militia or National

Guard of this State.

(i) Attorneys-at-law shall not serve

on the grand jury, and doctors of

medicine, dentists and clergymen shall be

excused upon request.

(j) Shall not have served on a grand

jury in the County within a period of the

last five (5) years.

Section 6. The Grand Jury Commis-

sion shall meet annually, on or before

the first Monday in March of each year,

and prepare a list of five hundred (500)

names of persons qualified under the pro-

visions of this act, and morally fit to

serve as grand jurors, and shall file the

same with the Clerk of the Circuit Court;

A38

and the names of each of said persons

shall be written upon a separate slip of

paper and folded and placed, together

with the list itself in a secure metal

box to be known as the "GRAND JURY BOX",

which shall be securely locked and

sealed, and the names of one or more of

the Grand Jury Commissioners, together

with the date, shall be written across

the seal, and the box shall be delivered

to the Clerk of the Circuit Court, who

shall securely keep the same in a safe

place, and the key thereto shall be kept

by the Grand Jury Commission.

In preparing a list of names of pro-

spective grand jurors, as provided by

this act, the Grand Jury Commission shall

make such investigation as it may deem

necessary to determine the qualifications

and moral fitness of persons to serve

upon the Grand Jury. That upon the GRAND

JURY BOX becoming depleted of names, the

A39

Grand Jury Commission shall immediately

meet and refill the same, as provided by

this act.

If the list of names of prospective

grand jurors or the number of names of

prospective grand jurors written on slips

of paper and placed in the GRAND JURY BOX

is more, or less than five hundred (500),

it shall not affect the validity of the

GRAND JURY BOX or any Grand Jury drawn

therefrom.

Section 7. That the Grand Jury

shall be drawn as provided by law, how-

ever, the members of the Grand Jury

Commission shall be notified by the Clerk

of the Circuit Court of the time and

place of drawing the Grand Jury, and

majority of the members of the Grand Jury

Commission shall appear at the drawing of

the Grand Jury, and be present when the

seal on the GRAND JURY BOX is broken and

the box unlocked and when the Grand Jury

A40

is drawn, and thereafter the GRAND JURY

BOX shall be locked and resealed by the

Grand Jury Commissioners or so many

thereof as are present. The Court shall

draw from the GRAND JURY BOX a sufficient

number of names as the Court determines

to be necessary, not less than seventy-

five (75), and summonses shall be sent by

the Clerk of the Circuit Court to each

prospective grand jury, by registered

mail, return receipt requested, not less

than thirty (30) days prior to the return

date for their appearance in Court.

* * *

Section 12. This act shall take

effect immediately upon its passage and

approval by the Governor, or upon

becoming a law without such approval.

Became a law without the Governor's

approval.

Filed in Office Secretary of State

May 21, 1957.

A41

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 82-5906

CANDIDO GIARDINO,

Petitioner-Appellant,

versus

LOUIE L. WAINWRIGHT, Secretary,

etc., and JIM SMITH, Attorney

General, etc.,

Respondent-Appellees.

Appeal from the United States District

Court for the Southern District

of Florida

ORDER

( ) The motion of Appellees, LOUIE L.

WAINWRIGHT, ET AL., for stay and stay of

the issuance of the mandate pending

petition for writ of certiorari is

DENIED.

(x) The motion of Appellees, LOUIE L.

WAINWRIGHT, ET AL., for stay and stay of

issuance of the mandate pending petition

for writ of certiorari is GRANTED to and

including June 5, 1983, the stay to con-

tinue in force until the final disposi-

tion of the case by the Supreme Court,

provided that within the period above

A4S2

mentioned there shall be filed with the

Clerk of this Court the certificate of

the Cierk of the Supreme Court that tne

certiorari petition has been filed. The

Clerk shall issue the mandate upon the

filing of a copy of an order of the

Supreme Court denying the writ, or upon

the expiration of the stay granted

herein, unless the above mentioned certi-

ficate shall be filed with the Clerk of

this Court within that time.

( ) The motion of Appellees, LOUIE L.

WAINWRIGHT, ET AL., for a further stay of

the issuance of the mandate is GRANTED to

and including , under the same

conditions as set forth in the preceding

paragraph,

( ) IT IS ORDERED that the motion of

Appellees, LOUIE L. WAINWRIGHT, ET AL.,

for a further stay of the issuance of the

mandate is DENIED.

PHYLLIS KRAVITCH ari

UNITED STATES CIRCUIT J E

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.