Petition for Writ of Certiorari — Manson v. Alston

86-563

No.

In Che 4

Supreme Court Of Che United States

OCTOBER TERM, 1986

JOHN R. MANSON, COMMISSIONER,

CONNECTICUT DEPARTMENT OF CORRECTIONS,

Petitioner,

v.

MICHAEL ALSTON,

Respondent.

JOHN R. MANSON, COMMISSIONER,

CONNECTICUT DEPARTMENT OF CORRECTIONS,

Petitioner,

Vv.

JAMES HASKINS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

WITH ATTACHED APPENDIX

JULIA DiCOCCO DEWEY

Assistant State’s Attorney

State of Connecticut

Division of Criminal Justice

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

Counsel for Respondent

Printed by

Brescia’s Printing Services

66 Connecticut Boulevard

East Hartford, CT 06108

525-6029

QUESTIONS PRESENTED

IN ITS ANALYSIS OF THE CONNECTICUT

JURY SELECTION PROCESS, DID THE COURT

BELOW PROPERLY CONCLUDE THAT THE

OPERATION OF CONNECTICUI'S FORMER

STATUTORY JURY QUOTA SYSTEM BROUGHT

ABOUT UNDERREPRESENTATION OF POTENTIAL

BLACK JURORS?

TABLE OF CONTENTS

QUESTIGNS PRESENTED . 1 «© s&s és oS

TABLE OF CONTENTS .« 2s se eo © eee

TABLE OF AUTHORITIES . .... eoiii

CONSTITUTIONAL AND STATUTORY

PROVISIONS e a a 7 e e e . . . eiv

OPINIONS BELOW. . e e e e e . . ~ix

JURISDICTARN. « 2 ees © ee eee

STATEMENT OF THE CASE . . « « « « 1

REASONS FOR GRANTING THE WRIT. . .3

THE USE OF STATISTICAL

MODELS TO PROVE CLAIMS

OF DISCRIMINATION WAS

IMPROPERLY *¥TENDED

TO A CLAIM INVOLVING

A CHALLENGE TO THE

CONNECTICUT JURY SELEC-

TIGN PROCESS 2 6 6s & 8 e © SF

CONCLUSION . 62% & © & © eee

APPENDIX. es * * oe e * aa e ° e 6 . A

OPINION OF THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT. ..A

ii

TABLE OF AUTHORITIES

Page

Alston v. Lopes, 621 F.Supp.

at een TPOR)s » «+ « + « 08

Castaneda v. Protida, 430 U.S.

482 (1977). o e o . 7 - . o * -10

State v. Haskins, 188 Conn. 432

_. 6s Bo ML > 2 PP

Vasquez v. Hillary, U.S.

a we eee BEF LOPE )e « te le 610

iii

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment

VI;

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have been pre-

viously ascertained by law ....

United State Constitution, Amendment

XIV:

~--No State shall make or enforce

any law which shall abridge the pri-

vileges or immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty or

property, without due process of law;

iv

— |

nor deny to any person within its

jurisdiction the equal protection of

laws.

Connecticut General Statute (1974),

Section 51-220

The number of jurors to be chosen

for each town shall be as follows: In

towns whose population as determined by

the last-completed census of the United

States is less than seven hundred and

Fifty, fifteen; in towns whose popuia-

tion so determined is at least seven

hundred and fifty but not more than one

thousand five hundred, thirty; in towns

whose population so determined is more

than one thousand five hundred but not

more than twenty-five hundred, fifty-

Six; in towns whose population. so

determined is more than twenty-five

hundred but no more than five thousand,

ninety; in towns whose population so

determined is more than five thousand

but not more than ten thousand, one

hundred twenty; in towns whose popula-

tion so determined is more than ten

thousand but not more than twenty-five

thousand, two hundred twenty-five; in

towns whose population so determined is

more than twenty-five thousand but not

more than fifty thousand, three hundred

thirty-seven; in towns whose population

so determined is more than fifty

thousand but not more than one hundred

thousand, six hundred seventy-five; in

towns whose population so determined is

more than one hundred thousand, one

thousand and twelve; provided, for the

purposes of this section, the population

vi

of a town shall not include the patients

of any state institution located in such

town.

Rule 17.1

Revised Rules of the Supreme Court

of the United States

Considerations Governing

Review on Certiorari-

1. A review on writ of certiorari

is not a matter of right, but of

judicial discretion, and will be granted

only when there are special and impor-

tant reasons thereof. The following,

while neither controlling nor fully

measuring the Court's .discretion,

indicate the character of reasons that

will be considered.

vii

(a) When a federal court of

appeals has rendered a decision in

conflict with the decision of another

federal court of appeals on the same

matter; or has decided a federal

question in a way in conflict with a

state court of last resort; or has so

far departed from the accepted and usual

course of judicial proceedings, or so

far sanctioned such a departure by a

lower court, as to call for an exercise

of this Court's power of supervision.

(b) When a state court of last

resort has decided a federal question in

a way in conflict with the decision of

another state court of last resort or of

a federal court of appeals.

(c) When a state or federal

court of appeals has decided an impor-

viil

tant question of federal law which has

not been, but should be, settled by this

Court, or has decided a federal yuestion

in a way in conflict with applicable

decisions of this Court.

ix

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN R. MANSON, Commissioner,

Connecticut Department of Corrections

Petitioner,

Ve

MICHAEL ALSTON,

JAMES HASKINS,

Respondents

Petition for Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

Petitioner respectfully request a

writ of certiorari be issued to review

the decision and judgment of the United

States Court of Appeals for the Second

Circuit, entered on May 23, 1986, which

judgment reversed the respondent's

convictions.

OPINION BELOW

The Opinion of the United States

Court of Appeals for the Second Circuit

is attached hereto as Appendix A. >,

JURISDICTION

The judgment of the United States

Court of Appeals for the Second Circuit

was entered on May 23, 1986. This Court

has jurisdiction to review that judgment

by writ of certiorari pursuant to 28

0.$.E. 3 4837.

xi

STATEMENT OF THE CASE

The charges against the respondents

arose out of their participation with

others in the robbery of the New Haven

Savings Bank in Westville section of New

Haven, Connecticut on May 3, 1974.

The respondents were arrested on

May 15, 1974 pursuant to a_=e bench

warrant; bond was fixed at $300,000.00.

Shortly after being charged in the state

court, they were indicted on federal

bank robbery charges in the United

States District Court for the District

of Connecticut.

Following the imposition of

sentence in federal court, respondents

were brought to trial in state court in

relation to the same incident. Eviden-

tiary hearing on motions, jury selec-

time, and trial consumed approximately

eight months resulting in a verdict on

August 28, 1975 of guilty of one count

of assault in the first degree and one

count of assault in the second degree.

The respondents were sentenced to a term

of not less than ten nor more than

twenty-years imprisonment to run

consecutively with the federal sentence.

State v. Haskins, 188 Conn. 432, 450

A.2d 828 (1982);

Before their state trial, on

appeal before the Connecticut Supreme

Court and in their habeas’ corpus

‘actions, the respondents’ challenged

several aspects of the Connecticut jury

selection process. In particular they

challenged a town quota system estab-

lished by the former Connecticut General

Statutes § 51-220. The United States

Dietrict: Ceurt for the Ofetrict ef

Connecticut found that this statute

mandated under-representation of blacks

on jury arrays in violation of the Equal

Protection Clause. Alston v. Lopes, 621

F. Supp. 992 (D. Conn. 1985). In the

subsequent appeal, the United States

Court of Appeals for the Second Circuit

affirmed. This petition followed.

REASONS FOR GRANTING THE PETITION

The Question of Whether a Statis-

tical Deviation Analysis Can

Properly Be Used To Prove Claims

of Discrimination In A State Jury

Selection Process’ Is a Topical

Issue of Persuasive And Substan-

tial Proportions Which Needs

Clarification By This Court

The central contention of the

respondents in this case has been that

the estimated number of blacks repre-

sented in the criminal jury panel was a

direct result of the state's former

method for summoning potential jurors.

This conclusionwas available, however,

only through use of the Statistical

Decision Theory. In the present case,

use of that statistical formulationwas

seriously flawed. |

Although this Court has in the past

utilized a statistical formula in

evaluating equal protection claims, in

all previous cases there was no doubt of

the actual number of minority members

summoned for jury duty. See Vasquez v.

Hillery, 106 S$. Ct. 617. - C4962)

Castaneda v. Partida, 430 U.S. 482

(1977). In the present case, the court

below mistakenly relied upon an estima-

tion of both the number of minority

members eligible for jury duty and the

number of those selected. These

=

estimations alone are not sufficient to

establish an equal protection violation.

Similarly, the courts below failed

to take into account the fact that the

Connecticut jury selection process

involved a random selection process.

Under this random procedure, a presump-

tion of discriminatory intent is

particularly inappropriate See J. Nowak,

R. Rotunda and Young, Constitutional

Law 602 (2d ed. 1983). The actual

operation of the state jury selection

process is the more appropriate focus

for judicial consideration.

In the present case the courts

below were wholly unconcerned with the

operation of the state's jury selection

process, relying instead upon theory and

conjecture. A selection system in

effect since at least 1875 was invali-

dated, despite the obvious legislative

rationale. The fact that a better

system might have existed,was insuf-

ficient reason to reverse these respon-

dents' convictions.

1 ante

i

l

CONCLUSION

For the reasons set forth above,

the petition for writ of certiorari

should be granted.

Respectfully submitted,

ULIA DiCOCCO DEWEY,

Assistant State's

Attorney

Appellate Unit

Office of the Chief

State's Attorney

Connecticut Division of

Criminal Justice

P.O. Box 5000

340 Quinnipiac Street

Wallingford, Connecticut

06492

(203) 265-2373

RN

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

++

Nos. 942, 943—August Term, 1985

(Argued March 20, 1986 Decided May 23, 1986)

Docket Nos. 85-2358, 85-2361

+

MICHAEL ALSTON,

Petitioner-Appellee,

~ —against—

JOHN R. MANSON, Commissioner,

Connecticut Department of Correction,

Respondent-Appellant.

JAMES HASKINS,

Petitioner-A ppellee,

—against—

JOHN R. MANSON, Commissioner,

Connecticut Department of Correction,

Respondent-Appellant.

3559

Before:

KAUFMAN, TIMBERS and MINER,

Circuit Judges.

—s

John R. Manson, Commissioner of the Connecticut

Department of Correction, appeals from judgments of

the United States District Court for the District of Con-

necticut (T. F. Gilroy Daly, Chief Judge), granting

Alston’s and Haskins’s petitions for writs of habeas

corpus.

Affirmed.

Judge Miner dissents in a separate opinion.

a

DAVID N. ROSEN, New Haven, Conn., for

Petitioner-Appellee Alston.

JOHN R. WILLIAMS, Esq., New Haven,

Conn., for Petitioner-Appellee Haskins.

JULIA DICocco DEWEY, Assistant State

Attorney, New Haven, Conn., for Defen-

dant-Appellant.

+

KAUFMAN, Circuit Judge:

Drawn from hamlet and metropolis alike, jurors daily

give life to the ancient right, enshrined in the Magna

3560

Carta and the Constitution, to a trial by jury of one’s

peers. Although now summoned by statute instead of the

medieval sheriff’s writ of venire facias, a representative

jury array remains the expression of the community’s role

in securing this fundamentai right. Accordingly, both the

sixth and fourteenth amendments mandate that prospec-

tive jurors be chosen free of the taint of racial discrimina-

tion.

It is the interplay of these two provisions that is now

before us. The State of Connecticut appeals from judg-

ments of the United States District Court for the District

of Connecticut, granting Alston’s and Haskins’s petitions

for writs of habeas corpus. Using modern statistical data,

the district court ruled that the jury selection system

employed in 1975 in Connecticut state court, where the

petitioners were tried, violated the equal protection

clause. Agreeing with Chief Judge Daly’s analysis, we

affirm. |

BACKGROUND

A brief factual statement is necessary to understand the

law in this complex area. In Connecticut, each county

compiles a jury array. Conn. Gen. Stat. §§ 51-217 et seq.

Each town in the county, in turn, furnishes a number of

prospective jurors. Unfortunately, section 51-220 estab-

lished a strict quota system which favored representation

of the smaller towns. As an illustration, the smallest town

in New Haven County, Beacon Falls, contributed 4.2% of

its adult population to the array. In contrast, New Haven,

the largest town, was limited by statute to assigning a

mere 1.1% of its adults. It is undisputed that a larger

concentration of the black population in Connecticut

3561

lives in the more populated urban settings. Accordingly,

§ 51-220 was repealed in 1982. Conn. Public Act 82-307

§ 2.

The jury that convicted Michael Alsion and James

Haskins, however, was chosen from an array skewed in

favor of the white majority. Alston, Haskins, and a

co-defendant were convicted in state court of assaulting

two police officers while fleeing the scene of a New

Haven bank robbery. Each had previously been convicted

in federal court of the underlying robbery. Both Alston

and Haskins appealed their convictions to the Connecti-

cut Supreme Court, presenting, inter alia, the same con-

stitutional grounds supporting their subsequent habeas

corpus petitions. The supreme court ruled that the jury

selection system passed constitutional muster. State v.

Haskins, 188 Conn. 432, 436-41 (1982). Currently, Alston

“js on parole from both his state and federal convictions.

Haskins is still incarcerated in federal prison and has not

yet begun to serve his state sentence of ten years.

Subsequently, Alston and Haskins filed habeas corpus

petitions in United States district court. The petitions

contended, inter alia, that the statutory scheme for select-

ing the array evidenced an intent to discriminate against

blacks in contravention of the equal protection clause.

They also argued that blacks were substantially under-

represented among the potential jurors, a violation of the

sixth amendment. At a later hearing, a professor of

statistics from Yale University testified to the adverse

effect upon black representation produced by the existing

town quotas. The statistician estimated the number of

blacks summoned was 368. In the absence cf § 51-220,

however, the number would have been closer to 501. The

total number in the array was 8,405.

3562

Relying on these figures, the district judge decided the

Connecticut plan violated the fourteenth amendment.

Employing the three-prong test set forth in Castaneda v.

Partida, 430 U.S. 482 (1977), Chief Judge Daly found the

petitioners had established a prima facie case of racial

discrimination, and that the State had failed to rebut this

showing. Alston v. Lopes, 621 F.Supp. 992 (D.Conn.

1985).

The district court easily found the first and third

branches of the Castaneda test had been satisfied. The

first requirement is that the excluded group be cogniza-

ble. Because blacks comprised the group underrepre-

sented, this standard was clearly met. Similarly, the third

part of the standard, establishing that the selection proce-

dure was not racially neutral, was also on firm footing.

All parties agree a high proportion of blacks live in the

City of New Haven, and that the quota system could not

help but partially exclude them.

The district court, therefore, devoted most of its anal-

ysis to the second Castaneda standard: whether the

underrepresentation of blacks was substantial. Through

the use of an established and accepted data device,

Statistical Decision Theory, the district judge determined

that the odds against chance alone accounting for the low

number of blacks were simply astronomical. Indeed,

Chief Judge Daly noted the likelihood of only 368 blacks

appearing as potential jurors was three chances in one

billion.

Having found that Alston and Haskins had established

a prima facie case of intentional discrimination, the

district court then inquired whether the State had rebut-

ted that showing. Connecticut, however, persisted in

3563

asserting that the discrepancy was due to the voter regis-

tration lists instead of the town quota system. But, Chief

Judge Daly observed that blacks would be under-

represented even if the use of voter rolls was abandoned,

and accordingly deemed the State’s argument inapposite.

As a result, the district court found that Connecticut

presented no evidence of a neutral intent motivating the

system and granted the petitions for habeas corpus. These

appeals followed.

DISCUSSION

Before us now is the seemingly narrow question

whether the underrepresentation of blacks in the 1975

array was “substantial.” Specifically, we must determine

whether the presence of an estimated 368 blacks instead

of 501 gave rise to a presumption of discriminatory

intent. Our answer, however, requires a careful delinea-

tion of the constitutional standards governing selection of

potential jurors.

The equal protection clause of the fourteenth amend-

ment condemns underrepresentation of minorities only if

it is the product of intentional discrimination. The Su-

preme Court, however, has squarely held that substantial

underrepresentation of a cognizable group can establish a

prima facie case of discriminatory purpose. Castaneda v.

Partida, supra, 430 U.S. 482. In Castaneda, a habeas

corpus petitioner alleged that his indictment by a grand

jury on which Mexican-Americans were underrepresented

violated the fourteenth amendment. The High Court

established a tripartite analysis for analyzing this claim. A

prima facie case is made, stated the Court, if a cognizable

group is substantially underrepresented and if the selec-

3564

tion ._procedure is not racially neutral. Jd. at 494-95. In

Castaneda, as here, the Court found that the State was

unable to rebut the presumption of discrimination raised

by statistical evidence. Jd. at 501.

We agree with the district court that the three branches

of the Castaneda test were satisfied. Blacks, of course,

form a cognizable group. Carter v. Jury Commission, 396

U.S. 320 (1970). Moreover, the third requirement of

Castaneda—that the jury selection system is not racially

neutral—is also fulfilled. The ineluctable effect of the

statutory scheme was to reduce the number of potential

jurors drawn from large towns, especially New Haven,

where it is undisputed that a larger proportion of blacks

resided.

Turning to the central issue of this appeal, we hold that

blacks were substantially underrepresented as a result of

Connecticut’s earlier jury selection system. The reliable

tool referred to as Statistical Decision Theory is an

appropriate instrument for analyzing whether minority

underrepresentation in the jury array is substantial. The

goal of such an inquiry is to determine if chance alone

could account for a meager representation of minorities.

See, e.g., Castaneda, 430 U.S. at 494 n. 13; Smith v.

Texas, 311 U.S. 128, 1331 (1940). The Statistical Decision

Theory formulation resulted from an effort to determine

what one effect, chance, could have on the flux of events,

and is therefore an appropriate and acceptable augmenta-

tion to the legal arsenal. It has been adopted in the

context of employment discrimination. See Board of

Education v. Califano, 584 F.2d 576, 584 n.29 (2d Cir.

1978). Moreover, modern statistical approaches have been

employed by other courts in jury selection cases. Cas-

taneda, 430 U.S. at 496 n.17; Moultrie v. Martin, 690

3565

F.2d 1078 (4th Cir. 1982); Villafane v. Manson, 504

F.Supp. 78 (D.Conn. 1980); see generally Finkelstein, The

Application of Statistical Decision Theory to the Jury

Discrimination Cases, 80 Harv. L.Rev. 338 (1966)

(mathematical description of theory).

The Statistical Decision Theory formulation may be

Summarized as a set of mathematical calculations that

indicate whether an observed outcome could reasonably

be ascribed to chance. The district court found, for

example, that the expected number of blacks in the array

was 501. Surely, however, a violation would not be found

if the actual number turned out to be 5V0 or 490. Such a

result could easily have resulted from random factors. In

contrast, the estimated number of blacks who would have

actually served on the array in light of the quota system

was 368. The odds of such a result occurring through

happenstance are an incredible three in one billion. Ac-

cordingly, in light of the scant likelihood of the Connecti-

cut result, the district court correctly ruled that the State

had the burden of producing a plausible justification for

§ 51-220.!

Although not disputing the figures relied upon below,

the State objects that the proper standard was the abso-

lute disparity of blacks excluded. Under this view, one

would first note that the array should have been 5.96%

black. Instead, 4.38% of the prospective jurors were

I Our dissenting brother’s point is that the quota system, applied in

tandem with the voter registration requirement, might in practice not

exclude blacks. The State, however, had the burden of proving the

validity of this claim. In Castaneda, as here, the percentage of

minority potential jurors was compared to the minority percentage of

the population, despite the existe ce of a presumably licit voter

registration requirement. 430 U.S. at 485-86. Moreover, the estimated

number of blacks summoned was more than fair to the State, as Judge

Miner agrees.

3566

black. Connecticut argues the resulting discrepancy of

1.58% is not significant. United States v. Jenkins, 496

F.2d 57 (2d Cir. 1974), cert. denied, 420 U.S. 925 (1975).

The State, however, has confused equal protection and

sixth amendment standards. In an analysis pursuant to

the sixth amendment, a disparity can constitute a per se

violation of an accused’s right to trial by jury. Duren v.

Missouri, 439 U.S. 357 (1979). In Jenkins, supra, we

ruled that a difference of one black in a pool of 60 jurors

was not substantial. 496 F.2d at 66. In the instant case,

however, the use of statistics was not to establish a

violation itself, but to raise ihe presumption of dis-

criminatory intent. The Statistical Decision Theory anal-

ysis is ideally suited for shedding light on this issue

because it reveals the possible role of chance and works

well where a small sample is involved, as here. Villafane,

supra, 504 F.Supp. at 86.

Nonetheless, in light of Jenkins, our result might

appear anomalous. The State argues that the town quota

system would not violate the sixth amendment, although

it is generally thought to set forth a more stringent

standard than the equal protection clause. The sixth

amendment is stricter because it forbids any substantial

underrepresentation of minorities, regardless of whether

the State’s motive is discriminatory. The fourteenth

amendment, however, imposes the additional requirement

of discriminatory purpose. In this case, it appears that a

constitutional transgression was more easily established

pursuant to the equal protection clause, despite the added

burden of proving intent.

The answer to this seeming quandary is easily available.

First, as the appellees strenuously urge, the absolute

3567

disparity approach employed in Jenkins may be out-

moded and should be discarded. In light of our four-

teenth amendment analysis, however, we need not reach

this question, and therefore decline to do so. Nonetheless,

if this Court should subsequently apply modern statistical

theory to the sixth amendment as well as the fourteenth,

then the tw) constitutional analyses would be more con-

gruent. In that case, it would be unlikely that a jury

selection system would be found to violate the equal

protection clause, but not the sixth amendment.

More importantly, the.statistics herein employed raised

only a presumption of discrimination. The State was free

to rebut this presumption, but failed to do so. Indeed,

Chief Judge Daly flatly stated that “[n]o attempt has been

made to demonstrate that the town quota system serves a

legitimate state purpose.” 621 F.Supp. at 998.

Accordingly, the judgments of the district court grant-

ing Alston’s and Haskins’s petitions for habeas corpus

are affirmed.

aos

MINER, Circuit Judge, dissenting:

Because I believe that the statistical analysis employed

by the petitioners was seriously flawed and therefore

insufficient to raise the presumption of discriminatory

intent, I respectfully dissent.

Since the Connecticut quota system for summoning

jurors favored representation of the smaller towns, the

district court concluded that the statute discriminates

against blacks, who reside predominately in the more

populated regions of the county. The conclusion was

3568

based entirely on the expert testimony of a Statistician,

who estimated that 368 blacks would be summon.d under

the quota system instead of the 501 who would appear if

they were summoned in proportion to their representation

in the entire county population.

Apparently lacking information as to the number of

blacks registered to vote and therefore eligible for jury

duty, the statistician presumed black voter registration (as

well as white voter registration) to be 100% of the adult

population for the purposes of his model. This approach

was believed to be more than fair, because the effect of

the voting registration requirement was to decrease the

number of blacks actually summoned. Indeed, the State

conceded that the use of voter lists “has traditionally

resulted in an under-representation of blacks for blacks as

a group tend to register to vote less frequently than do

whites.” Brief for the Appellant at 5.

In order to find intentional discrimination on the part

of the State of Connecticut, however, it is not enough

simply to demonstrate an underrepresentation of blacks

in the array of jurors. What must be shown is that the

Connecticut statute brought about that underrepresenta-

tion. In the absence of actual information as to the

number and distribution of blacks registered to vote, i.e.,

eligible for jury service, in the county population, that

showing cannot be made. The reason it cannot is that the

black proportion of those registered to vote in the towns

may be greater than the black proportion of those regis-

tered to vote in the city, and the statute, since it favors the

towns, would therefore have no pernicious effect insofar

as jury service by blacks is concerned. Underrepresenta-

tion of blacks, if found under those circumstances, would

3569

be due to some factor other than the statute challenged by

these petitioners.

Two other considerations favor the denial of the writ

sought by the petitioners. First, the number of blacks in

the array summoned under the challenged statute is esti-

mated. In previous cases involving fourteenth amendment

violation claims, the actual number of the minority mem-

bers summoned was known. Vasquez v. Hillery, 106 S. Ct.

617 (1986) (total absence of blacks from grand juries was

known fact); Castaneda v. Partida, 430 U.S. 482 (1977)

(actual number of Mexican-Americans summoned over

an extended period was “observed”); Villafane v. Man-

son, 504 F. Supp. 78 (D. Conn.) (actual percentage of

Puerto Ricans in the electorate, as well as actual number

summoned, was known), aff’d mem., 639 F.2d 770 (2d

Cir. 1980). Here, not only is the actual number of blacks

summoned under the quota system unknown, but the

estimate is not even based on the universe of blacks

eligible for jury duty. Second, the use of statistical models

to prove claims of discrimination in jury selection proce-

dures has been limited heretofore to cases involving a

subjective selection process. J. Nowak, R. Rotunda & J.

Young, Constitutional Law 602 (2d ed. 1983); see Brown

v. Allen, 344 U.S. 443 (1953). When, as here, jurors are

selected randomly, in accordance with objective statutory

criteria, there is no basis for the use of statistical analysis

to raise a presumption of discriminatory intent. Under

these circumstances, we are required to presume that the

Statute meets constitutional standards, absent a showing

of discriminatory intent on the part of the legislature.

Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252, 265 (1977).

3570

We deal here with two people who stand convicted of

serious crimes involving the wounding of police officers

by gunfire in the course of a robbery. Their convictions

were affirmed after appeal to the Connecticut Supreme

Court, where the same argument presented here was

advanced and rejected. Before granting the writ to these

petitioners, thereby making possible the release of an

unknown number of offenders convicted by juries drawn

under the challenged statute, | would at least remand to

the district court for further findings as to the actual

operation of Connecticut’s statutory jury quota system.

357]