Reply Brief — Smith v. New Jersey

POINT HII

~ POINT IV

. POINT V

CONCLUSION ......... SEMEREREEE EEE Sa aeeE

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TABLE OF CONTENTS

THE PETITIONER’S CONTENTION=

THAT THE TRIAL COURT'S REFUSAL

TO GIVE PETITIONER PHYSICAL POS-

SESSION “OF MORE THAN FOUR

GRAND AND PETIT JURY: MASTER

LISTS OPERATED TO RESTRICT HIS

JURY SIEUDY IS TOFALLY WITHOUT

rin. ct 5 SMSC en are raed De

THE DENIAL OF ‘THE PETITIONER’S

CLAIM THAT. ADVERSE PUBLICITY

DENIED) PETITIONER AN IMPARTIAL

GRAND JURY DOES NOT PRESENT A

BASIS FOR CERTIORARI UNDER THE |

FACTS OF THIGTCARE. ..n co. a OL.

THE TRIAL COURT'S DENIAL OF THE ©

> PETITIONER’S CLAIM. THAT THE .

GRAND AND PETIT JURY LOYALTY

OATHS DEPRIVED HIM OF HIS CON-

STITUTIONAL RIGHTS DOES NOT PRE-

SENT A BASIS FOR CERTIORARI UN-

DER THE FACTS OF THIS CASE ......

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CASE S CITED |

BROWN v. ALLEN, 344 USS. 443, 138. Ct. 397°

Ri eae a Rk.

CASSELL v. TEXAS, 399 U. S. 282. 105. Ct 629

CR os eet, ee

COLEMAN v. ALABAMA, 389 U.S. 2 88S. Ct.

. Slt MORE ES EEL Isa aa ce ea

DOW v. CARNEGIE-ILL INOIS STEE L CORP. 24

.F 2d 414, 424 (3€ WA eh fal pene

JONES v. STATE OF GEORG 1A,.389 US. 24, 88S.

OE WE es a ee

_LEBAT v. BENNETT. 365 IF. 2d°698 (Sth Cj fe

eet... 3 eer) oe nee hs

. NEAL ¥. DELAWARE, 103 U.S. 370, 26 i. Ee.

et da apital SARs Cah ee ‘

NORRIS v. STATE OF AL: ABAMA, 294 U.S. 587.

35 S.Ct. $79, 79 L. Ed. 1074(1935)........

PATTON v. STATE Ot MISSISSIPPI, 332.U. S..

°463,68S. Ct. 184, 92;L: Ed. ;

Fett). eras tasty Sena ee Del

SCOTT v. WALKE R. 358 F.2d S61 (Sth Cir,

aes Se ETN Oe! ei Pn

- SIMS v. STATE OF GEORGIA, 389 U. S. 404.

ee er

SMITH v. TE XAS, ott U8. 128:61 §. Ct.

+ 164, 85 Li Ed. 84(1940). 0000000000. i

STATE v. SMITH. 102.N.J. Super 325, 350 (Law

Div. 1968), 55 N.J. 476,482 .. 0

SWAIN v. ALABAMA, 380 U.S. 202.85 S. Ct

SOR to Led. 2d. 15911965)...

UNITED STATES y. BRYANT. 291 F.Supp. 542

Beh ence 0, ee rn, eae

WHITUS v. GEORGIA, 385 U. S. 545, 87S. Ct.

3-8: 250)

NEW JERSEY STATUTES CITED |

N.J.S. 2A:90—4 ...... Selene. Ee eee

a

PRELIMINARY STATEMENT

The respondent, State of New Jersey, accepts the State-

ments of Opinions Below, Jurisdiction, Questions Presented and

Constitutional aud Statutory Provisions Involved in the brief of

’ the petitioner, except as supplemented or contradicted fra.

‘i.

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5 ely x a : ‘ ; “he

COUNTE R-STATEMENT OF THE CASE.

On September 29, 1967 the petitioner, John William Smith,

moved to dismiss two indictments returned against him by the

Grand Jury. of . Essex County, New Jersey, each .of which

@. . . ° > ‘

indictments charged him with assault and battery upon a police

officer contrary to the provisions of NJ.S. 2A:90-4. The basic

ground for the defendant’s motion was that the Grand and Petit

Juries were improperly and unconstitutionally impaneled. More

specifically, he claimed that the procedure employed by the

Essex County Jury Commissioners in the selection’of Grand and

Petit Jurors resulted in a systematic and deliberate exchusion of

ae °

Negroes, women, residents of the city of Newark and persons of

lower economic status. Following extensive hearings and review

of the applicable Case law,.the trial court concluded “that the.

practices and procedures employed by the jury commissioners

in the selection of Grand and Petit Jurors is not -violativeof the -

Federal Constitution nor did such procedure point to a conclu-

> sion of discrimination towardsgany race or class of individuals”.

State». Smith, 102 N.J. Super 325, 350 (Law Diy. 1968).

The defendant was then tried on both indictments and |

convicted on one indictment on April 1, 1968. The jury was

unable to reach a verdict'on the other indictment. The defer. -

dant then appealed his judgment of conviction to the Appellate

‘Division of the Superior Court of New Jersey. The New Jersey

Supreme C ourt, however, certified such appeal before argument

there. The New Jersey Supreme-Court affirmed the defendant's

conviction, indicating its agreement with the trial court’s dispo-

sition, of his argument in regard to the validity of the Grand and:

. Petit Jurors by whom he was indicted dind convicted. State +

Smith $5. NV 476 481-1970): Phe New dersey- Supreme Court

likewise considered and -tejected the defendant’s claim ot .

prejudicial pre-trial publicity and the constitutionality- of the.

statutory® oath required of -Grand und Petit’ Jurors. /d. ‘at uA

481-82. The defendant now petitions this court-fora Writ-of-

Certiorari to the New Jersey Supreme Court to sreview the

affirmance of his conviction. The ‘respondent. State of New |

Jersey, submits that none of the reasons advanced by the

defendant are sufficient to Warrant this Court granting a Writ of

Certiorari to the Supreme Court of New Jersey. e _

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" REASONS WHY WRIT SHOULD NOT. BE GRANTED

POINTI | ea NN

THE GRAND AND PETIT JURIES WHICH INDIC TE D

. AND CONVICTE D THE. DE FENDANT WERE PROPERLY

AND CONSTITUT IONALL Y IMPANEL ED.

It is the State’s position that the trial court properly

4nterpreted and applied the: applicable judicial decisions of this

Court ‘to the facts before it and properly found that under-

representation’ of the four groups cited by the defendant did

not result from discrimination in violation of his constitutional

right of due process. An: tlysis reveals that the cases relied, upon

by ‘the trial court as Well ag other leading: cases Where discrim

“ination in the selection of ‘Jurors was proven fall into three basic

categories. First, those where ‘the. evidence established. total or

virtually «total exclusion. of an identifiable vroup within the

community. Second, those where the evidence showed a sub-

stantial disparity between’ the total number of individuals

within an identifiable group and. their representation\ On jury

panels (withaut regard to qualifications) when coupled with |

‘strong | evidence pointing to the conclusion of discrimination.

For’ example, evidence that there was cither a long continued

absence of | Negroes on Juries .or utilization of a procedure

allowing an opportunity. to. discriminate(such- asa segtegated

‘tax digest. from which jurors’ names aré drawn). Finally, those

cases where the evidence showed: such significant under-repre-

‘sentation of a group, computed with regard to qualifications, us

would necessarily point to discrimination. The ranted S

argument, however, is that a showing of mere disparity betweci

the percentage of the total population of Essex County Dae

~ up by an identifiable group at a given time and the percentage

of the total number of Grand and Petit jurors. made up by such.

k

identifiable group at such time makes out a prima facie case of

discrimination, shifting the burden of proof to ‘the State to

come forward with sufficient evidence in rebuttal thereof. The

petitioner’ s contention is without merit. Pes ‘ “%

A. Proportional representation is not required.

- The defendant in essence ‘contends that" the Essex County

jury rolls do not tepresent a cross-section of the community and |

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that “the federal Constitiition guarantees an accused “due

_ process and equal protection rigs hits tol an impartial jury repre-

senting a cross-section of the community” 7 (PD 1O): He further

alleges that [4] he term cross- s¢clion “means a very s sample? of

the community” (PbO): Those urgvements are incomplete and

misleading ‘statements of the applicable legal précedents; when

these statements abe viewed in context, teas manifest. that

petitioner's contentions are without ment: cs

* “The American tradition, of trial by. pas considered -

in connection with cither cgiminal Gr civil procecd-

Ings, NECESSATHy contemplates aa tmpartial juris draw

SPOML A CFOSS section of the COMUNUNILS _ This does.

not mean, of cowse. that every Juris must contain

representatives .of -all) the ccononik social ‘racial. -.

religious, political, and-+ geograpiucal groups af the

community, frequentl such comple te representation

would be tmpossihdes But it dogs. mean that prospec-

tive jurors, shall be selected by court officials withsort

systematic and intentional exclusion of ahy of these’ :

groups. Recognition: must be giver’ to the fact that

those. eligible for jury service are to-be found in every

: stratum’ “ol socks = “Dow vy. Carnegie-MMlinois Srrel

‘Corp, 224°P> 2a alae 424 (3 Cir. 1955) (emphasis

/ Added). : ‘

This proposition. ‘has been reiterated in “every Cust ‘dealing with

jury discrimination. A number of these cases are cited in Sivain

v. Alabama, 380-U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759

FF itouiy, where this Court spoke as follows: Hae ip

‘TBut) the defendant in a criminal case ‘is not

constittdionally, cititled to demaiid @ praoporlonate

number of his race on the jury which tries’ him vor or

the venire of Jury roll from which pro ut /UFONS. UFC

drawn.” (C itations Omitted) Naither the jury roll nor

‘the venire need be a perfect mirror of ‘the community

Or wecurately reflect- the proportionate strength of

every identifiable group. Obviously ‘the number of."

races and nationalities | appearing. in the ancestry of

‘our citizens would’ make it impossible to-mect a”

requirement ‘Of ‘proportional representation. Simi- .

larly, since there can be no exclusion of Negroes as a’

race and no discrimination because of color, propor-

tional limitation is not permissible. (Citations Omit-

ted) We cannot say that’ purposeful discrimination

based On race ulone is satisfactorily proved by show-

ing that an identifiable group in a community under-

represented as much as ten percent. 380 U.S. at 208,

85S. Ct. at 829. (Emphasis Added)

A review of the trial court’s opinion reveals that the court was

guided by the correct principles of law as outlined above ‘und

properly applied them to the facts before it! State ve Smith, 102 .

N.J. Super 325, 245 (1968). Thus, the fact that the Essex

County jury rolls migist fall short of representing a sample or

cross-section of the community has no bearing on the propriety

of the trial court’s determination .that defendant ‘did not

establish a prima fucic case of dis -rimination.

B. The -trial court applied the correct standard of proof in

concluding that defendant had failed to present sufficient

evidence to support a prima facie cuse of discrimination in the

selection of grand or petit jury panels.

From his review of Whitus + Gedrgia: 385 U.S $48. 87 S.

Ct. 643, 17 L. Ed. 2d 599 (1967) and earlier Cases the’ trial

court concluded: . .

“The defendant who asserts that there his been

discrimination in the selection’ of the jury panel his

the burden of proving it. (Citation Omitted). Once

the movant establishes a prima fucie case of discrim-

ination, ic., ~@ significant disparity - between those

qualified “for jury service and those of the group

.- actually on the jury lists, the burden Of proof shifts

to the prosecution to explain this disparity.” Stare».

Smith, supra at 346. (Emphasis Added) oo

Defendant alleges that-the principles of law, as stated, are

incorrect. Relying upon Norris vy. State.of Alabama, 294 U.S.

587, 55'S. Ct. 579,°79 L.. Ed. 1074 (1935), he argues that

““{W] here the accused: affirmativ ely shows a continuing pattern

of substantial disparities between the size of identifiable groups

‘within the community and their corresponding numbers on tlic

jury. lists, he has “made out a prima facie case of denial of equal

protection.” (Pb10,11) In other words, it is defendant's posi-~

tion that he need not show -what percentage of the identifiable

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group within the community were qualified as jurors, if any. *

Instead, he contends that the court Mmust.presume that all those

within an identifiable #roup are qualified to serve as jurors. The

State submits that the cases rélied upon by defendant not only

do not support him, but, in fact, reject his contentions.

In Whitus vp. Georgia, supra, this Court held *that) the

petitioner madé out a prima facie case of discrimination by

establishing, a significant disparity between those’ qualificd for

jury. service and those of the group actually onthe jury list,

thereby shifting the burden of proof to the prosecution. td

explain this disparity. In Norras pA labama, supra, the petition-

er’s proof was that Negroes constituted a substaritial segment of °

the population, that some Negroes were qualified’ to serve as”

Jurors and that none had ever been Called for jury service over ar

extended period of time In other words, petitioners evidence

demonstrated a policy:of total exclusion: In that context, the

United States Supreme Court said that “the (State's) evidence

failed to rebut the strong prima facie case which defendant had

made. That showing as to. the -long-continued exclusion of

Negroes from jury service, and as to the many Negroes qualified

for that service could not be met by mere generalities” that no

Negroes were qualified. Norris has absolutely no bearing on the

case at bar. In Essex County, Negroes are not totally exéludcd

from jury service. The same is truce of Patton vy. State of

Mississippi, 332 U.S. “463, 68 S. Ct. 184, 92 L. Ed. 76.1947)

where petitioner urged that there were qualified Negroes in thc

county for jury service, and that no Negro had served on a

criminal court grand or petit jury for a period of thirty years. In

this contgxt the Court in Patton and in other cases has held that:

it would be unreasonable to assume Where Negroes were totally

excluded from Venires that this came about because all Negroes

were unable to serve. The defendant’s reliance on the above -

cases Is misplaced us the} do not support the peétitioner’s

contention that the trial judge applicd an incorrect standard oi

‘proof. —

C. The’ trial court’ correctly concluded -that defendant's

statistical evidence was so unreliable as‘to be insufficient to |

support a prima facie cuse of discrimination in the selection of

the grand and petit juries.

The trial court found that the procedure utilized by the jury

commissioners in selecting grand and petit jury panels were:

constitutional on their face. Moreover, he found that there was

absolutely no- ‘evidence presented to the court indicating. that

the jury. commissioners Tad. deliber ately and systematically

excluded Negroes or anyother qualified group from jury panels.

State v. Smith, 102 NJ. Super. at 350. The defendant does not

really challenge these rulings, but instead argues that the trial

court erred in concluding that there was not such significant

under-representation. on the jury lists of Negroes, women.

_ residents of the City of Newark, and persons of lower economic

-$tatus as would establisti a prima facie case of discrimination.

He contends that the statistical evidence presented to the court

Was ‘sufficient to establish a prima facie case of discrimination,

thereby rebutting the Presumption of the validity of the jury

panels. Defendant relies on Whitus ». State. of Georgia, 385 U.S.

545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967): Swain y. State of

_ Alabama, 380 U.S... 202, 85 S. Ct. 824. 13 L. Ed. 2d 759

rie eh Scott yv. Walker, 358 F. 2d S61 (Sth Cir. 1966): Casséll

. Texas, 399 U. S. 282, 70 S. Ct. 629 (1950): Lebat. r. Bennett,

365 F. 2d 698 (Sth Cir. 1966): Coleman y Alabama. 389 US.

22, 88 S. Ct. 2 (1967): and Sims v. State ‘of Georgia, 389 US.

404, &8 S. Ct. $23 (1967): and Jones vy. State of Georgia, 389

U.S. 24. 88 Ss: Ct. 4:(9967)-A review of these cases manifests:

that they are inapplicable to the factual situation in the case at

bar. Morcover, they demonstrate that defendant’s statistical

. proofs were insufficient to establish a’ prima facie case of

systematic exclusion, intentional or unintentional, of any iden-

tifiable group within the community because my were com. °

piled without regard to qualificiations.

~ In Coleman vy. Alabama, supra, no Negro served on the

grand jury which indicted or the petit jury which convicted:

petitioner. Up to the time-of his trial, no Negro-ever served on

the grand jury and few, if any, Negroes had served on the petit

jury. panels. The court held that this testimony ia itself made

out a primg facie case of denial of equal protection. The court's

‘conclusion rested on the fact that the evidence was tantamount

toa demonstration of: total exclusion’ of, Negroes as in Norris».

State of Alabama: supra See’also: Patton v. State of Mississippi

supra. In Lebat r. coast Supra, the Court found that there was

a! :

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a policy of systematic total exclusion of daily wage earners as a

Class. At 721. In the instant case there has been no total or

virtually total exclusion of any identifiable group. In Whitus >

Georgia, supra jury selections were. made from segregated tax’

digests which. this Court held allowed for the opportunity. of

discrimination. Moreover. no Negro had ever served on a jury in

the county and although the percentage of Negroes qualified

because of inclusion in the tax digest was in excess of twenty-

seven per cent, only nine-per-cent had been called for grand”

jury service and less than eight, per cent, for petit, jury SeTVICe.

This Court, therefore, conchuded that the opportunity to-

discriminate by use of the Segregated tax digests had been

utilized. In’ Jones» Georgia. supra the facts were almost

identical to those in Whitus. and the court therefore rested its

decision on Whitus. Again in Sims v. Georgia the opportunity to

discriminate was ‘available: through the use of segregated tax

digests and it was readily apparent that this opportunity was

utilized. In the instant case the trial court found that there were

no markings as to race, color or ethnic background on. the

source from which names were obtained. In addition, there had

been ‘no continued absence of Negroes on grand and petit juries.

Clearly, there is nothing’ about. the procedure employed: in

selecting jurors in the instant case Which points to the conelu-

sion of discrimination as.in the Cases cited by defendant.

In Scotty. Walker, supra the Court found that the evidence

pointed to a systematic limitation of Negroes. However, the

evidence showed that no more-than one per cent of the Negro

population were on a panel, although some thirteen per cent of

their population were qualified |

— ‘It*should be noted that'in Brown v Allen, 344 U.S. 443. 73

S. Ct. 397 (1953) petitioner offered no evidence to support a

charge -of limitation against the jury service of Negroes except

the fact that fewer Negroes than.whites, having regard for their

proportion of the population, appeared on the jury panels. This

Court held that it would not condemn good faith efforts to

secure competent jurors merely. because: of varying racial pro-

portions. 344 U.S. at 471-2. 73S. Ct. at 415. In the instant

case, defendant has shown no more than that certain groups

within the community have. lesser ‘percentage participation on

grand and petit juries than other groups, having regard for their

-8-

proportion of the population. Defendant has not .established

that the failure of the jury selection system to. provide statistical :

perfection resulted from. the systematic: exclusion, intentional

or unintentional, 6f- any. identifiable class or group of qualified

persons in the community. The trial court was therefore correct

in concluding that defendant had not sustained his burden of

proof. United States ¥. Bryant, 291 F. Supp. 542 (Md. 1968).

POINT I a :

‘NOT DISCRIMINATE IN .THE SELECTION OF GRAND

JURORS AND PETIA JURQRS EITHER BY AFF IRMATIVE

ACTION OR A FAILURE TOACT. sittin

All those. cases cited by whe petitiongr in support of his

proposition that the Jury Commissioners faited in their affirm: =

tive. constitutional duty to*familiarize themselves - with the

ee z 2 ;

THE JURY rere OF ESSEX COUNTY DID.

composition of the fssex County Community and to insure

constitutionally sckected: jurors involved situations where racial

discrimination: was patent. In Cassell. Texas, 339 US. 282,70 ©

S. Ct. 629, 94 L. Ed. 839 (19507 not more than one Negro

served on cach of 21 consecutive grand juries over a five and

one half year period, An Smith vy. Texas. 311 US. 128 61S. Ct.

164, $5 L.Ed. 84 (1940) only three Negroes served on grand

juries Over an cight year pertod. In Nealy. Delaware, 103 U.S.

370, 26 L. kd. 567 (1881) no colored. citizen had ever been

‘summoned as a juror in the courts of the State of Delaware. ‘In

addition, in both Cusscl/y. Texas and Smith v.Texas the jury

commissioners iyvolved testified that they were not personally

acquainted with any Negroes and that they chose jury men only -

from those people with'whom they were personally acquainted.

Cassell vy. Texas. supra. 339 US: at 278, 70S. Ct. at 632. 94°L.

Ed. at 847. The Essex County Jury: Commissioners did not fail

in any’ affirmative duty to familiarize themselves with the

county community. under the evidence presented below. Assum-

ing arguendo that they did fail in such duty and under-represen-

tation of Negroes and other groups has resulted, there was no:

evidence below to support the premise that such result has*been

caused by discrimination of the’ kind encountered in Cassell

Texas, Smith rv. Téxas cand Neal vy) Delaware. See Cassell v

Texas, supra, 339 US. at 288-89, 70S. Ct. at 632 -33,94L.E d.

at 848. Thus, the petitioner's contention when placed in —

context under. the above cases is without merit.

-10-

POINT IIL

THE PETITIONER’S CONTENTION THAT THE TRIAL

COURT’S REFUSAL TO GIVE ‘PETITIONER PHYSICAL

POSSESSION OF MORE THAN FOUR GRAND AND PETIT |

JURY MASTER LISTS OPERATED TO RESTRICT HIS JURY .

STUDY IS TOTALLY WITHOUT MERIT.

— The Grand, and Petit Jury lists to which the petitioner refers

under his Point I are a matter of public record, open to the

— examination of any citizen who desires to view them..Such lists

are kept iy the Essex County Clerk’s Office. It is significant to

note that in. this regard the petitioner makes no citation

whatsoever to the transcript’ of proceedings below. In the

absence: ol evidence showing that the petitioner was actually:

deprived, access to ‘the juryists in question, the- defendant's

contention that physical possession. of such jury lists was

_ necessary for his jury study without more explanation lacks

merit. ; ‘

POINT IV

THE DENIAL OF THE PETITIONER’S CLAIM THAT

ADVERSE PUBLICITY DENIED PETITIONER AN IMPAR- .

TIAL GRAND JURY DOFS NOT PRESENT A BASIS: FOR -

CERTIORARI UNDER THE FACTS OF THIS CASE.

The defendant’s contention in, this regard was raised before

the trial court and rejected. The respondent relies upon the trial

court’s opinion, finding no evidence in the record to support

the petitioner’s contention. State’ v. Smith, 102 N.J. Super at ;

338-39, (Pa 27; 28). ; 3

POINT V

THE TRIAL COURT’S DENIAL OF THE PETITIONER’S

CLAIM THAT THE GRAND AND PETIT JURY LOYALTY

“OATHS DEPRIVED HIM OF HIS CONSTITUTIONAL ©

RIGHTS DOES NOT PRESENT A BASIS FOR CERTIORA.2!

UNDER THE FACTS OF THIS C ASE.

The petitioner's contention m this regard was again raised ©

~ before the trial court and the New Jersey Supreme Court, both

of which rejected it. The respondent relies upon the opinion of

the New Jerscy Supreme Court, 55 N.J. 476, 482 (Pa 7) as well

as the opinion of the trial court, 102 N.J. Super at 332-337 (Pa

21, 26), finding that the petitioner kicks standing to challenge

such oaths and, assuming he does seat standing, such oaths

~ are constitutional.

«$3.

CONC LUSION ;

For the ‘hens reasons the naan State of New

Jersey, submits that a petition for a Writ of Certiorari to the

— Court of New Jersey should not ws granted.

Respectfully submitted; . .

* JOSEPH-P.LORDI -— > |

ESSEX COUNTY PROSECUTOR -

By. re aa:

-George N. Pappas

Assistant. Prosecutor

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