Opposition Brief — New Jersey v. Smith

TABLE OF CONTENTS

QuESTIONS PRESENTED

GraTEMENT OF THE CasE

Reasons FoR DenyInc THE Writ:

Point I—This Court should deny certiorari: A)

because this case is limited to a narrow factual

situation and therefore lacks broad signifi-

cance; B) because the decision of the Third

Circuit Court of Appeals does not legaliy con-

flict with the decisions of other jurisdictions;

C€) because the Third Circuit decision is fac-

tually correct

A. The decision to which petitioner seeks

certiorari is limited to a narrow factual

situation. It therefore is of no broad legal

or factual significance

B. The decision to which the state seeks

certiorari is not in conflict with decisions

of the Supreme Court or of other juris-

dictions. The petition therefore does not

meet the tests for certiorari set forth in

Supreme Court Rule 19

C. The Third Circuit correctly found that

there was a prima facie case of discrimina-

tion in this case

Point II—The exclusion of Blacks from the

grand jury denied respondent the equal pro-

tection of the law guaranteed by the Four-

teenth Amendment. This is not harmless error

ConcLUsION

PAGE

11

18

li TABLE OF CONTENTS

Pace

Cases Cited

Akins v. Texas, 325 U. S. 398 —

Alexander v. Louisiana, —— U. S. —,, 92 S. Ct

1221 9, 10, 14, 16

Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966)... 10, 13

Carmical v. Craven, 457 F. 2d 582 (9th Cir. 1971),

cert. denied 41 U.S.L.W. 3208, Docket No. 71-1602

(1972) 10

Carter v. Jury Commission of Greene County, 396

. U.S. 320 16

Cassel v. Texas, 339 U. S. 282 10, 16

Coleman v. Alabama, 389 U. S. 22 9, 15

Davis v. Davis, 361 F. 2d 770 (5th Cir. 1966)... 10

Eubanks v. Louisiana, 356 U. S. 584 16

Hill v. Texas, 316 U. S. 400 10, 16

Jones v. Georgia, 389 U. S. 24 14

Labat v. Bennet, 365 F. 2d 698 (5th Cir. 1966)............ 14

Norris v. Alabama, 294 U. S. 587 9

Patton v. Mississippi, 332 U. S. 463 7,9

Pierre v. Louisiana, 306 U. S. 354 9, 16

Rabinowitz v. United States, 366 F. 2d 34 (5th Cir.

1966) ss

Salary v. Wilson, 415 F. 2d 467 (5th Cir. 1969)... 10

Sims v. Georgia, 389 U. S. 404 14

Smith v. Texas, 311 U. S. 128 10

State v. Rochester, 54 N. J. 85 (1969) 12

Swain v. Alabama, 380 U. S. 202 13

——S

_—

ig T UPOR Peas eoae ———

TABLE OF CONTENTS iii

aye PAGE

Turner v. Fouche, 396 U. S. 346 9, 10, 12, 15

United States ex rel. Seals v. Wiman, 304 F. 2d 53

(5th Cir. 1962), cert. denied 372 U. S. 924............... 10 :

Vanleeward v. Rutledge, 369 F. 2d 584 (5th Cir.

1966) 10

Whitus v. Georgia, 385 U. S. 545 9, 14, 15

Witcher v. Peyton, 405 F. 2d 725 (4th Cir. 1969)... 10

United States Constitution Cited

Fourteenth Amendment 15

Statute Cited

42 U.S.C.:

See. 1983 17

Rule Cited

Rule 19 8

ee — ee =

—

STATE OF NEW JERSEY and HOWARD YEAGER,

The Principal Keeper of the State Prison at

New Jersey, =

ws.

UNITED STATES OF AMERICA ex rel,

JOUN WILLIAM SMITH,

ee ee ee eee > eer we ere ee -

Questions Presented

1. A. Whether this case is limited to a narrow factual

situation, and lacks broad significance!

B. Whether the decision of the United States Court of

Appeals for the Third Circuit conflicts with the

decisions of other jurisdictions!

Ve

C. Whether the Third Cireuit correctly found thy

there was a prima facie case of discrimination!

Whether the unconstitutional exclusion of

persons from the grand jury selection process is

harmless error?

2

Statement of the Case

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By 1966-1967, the commissioners had exhausted the names

of prospective Black jurors that had been solicited in the

special effort in 1962-1963 (MT I 383, 10a-11la).

The commissioners were abysmally ignorant of the com.

position of the Essex County community. One commis.

sioner testified that he had not estimated the Black popu.

lation of Essex County, and that he had no idea of the

number of people living in Newark (the city with the

largest Black population in the county) in relation to the

number of people living in Essex County (MT I 366,

lla).°

Moreover the commissioners never analyzed a grand

jury master list to determine whether it represented a

*Q. Now, Mr. Howie, do you have any idea of the number of

people who are living in Newark in relation to the number of

people in Essex County? A. I do not.

Q. Have you estimated the Negro population of Essex County?

A. I have not. (MT I 366)

* > *

Q. Or of any of the cities in Essex County? A. No.

Q. So, it is fair to say that you have not looked into these

questions? A. That's right. (MT I 373)

* * al

Q. Have you examined any occupational statistics relevant to

Essex County and to Newark? A. I have not.

Q. Has anyone on your staff done that, to your knowledge?

A. I don’t know.

oe ae

Q. Mr. Howie, have you given instructions to your staff to

inquire into any of these questions that I have asked? A. I have

not

O. Do vou know whether Mr. Murray, (the other Jury Com-

missioner) has? A. I wouldn't know. (MT I 374)

—

5 |

cross-section of the community with respect to race ;

(lla).° ;

yo

In 1967 the percentage of Essex County residents of

jury age that was Black was 25% (14a, n. 17).°*

—

*(Q. Did you determine whether or not that list yielded a cross-

ection of the Essex County population with respect to occupation,

«ith respect to race, with respect to residence and with respect to

sex? Did you do that? A. No, I didn't.

Q. Have you done that with any Grand Jury Master Lists? A.

No.

Q. Did you do that with respect to the petit jury master lists? A.

No.

Q. And you have never done that? A. No. (MT I 397)

ae

Q. Now, Mr. Commissioner, have you instructed anyone on your

staff to make such an analysis of the Grand Jury Master List?

(ee

A. No.

Q. Have you instructed anyone on your staff to make such an

analysis of the petit jury master list from May, 1966 to May, 1967?

(MT I 398) A. No.

** The state seeks to obliterate the truth by insisting that the cor-

rect figure is 17%. This is the 1960 census figure.

At the habeas corpus hearing of this case on January 15, 1971,

the Federal District Court inquired about the 1970 census figures,

which were then unavailable. (Record January 15, 1971, p. 20)

Counsel furnished the census to the trial Court. The 1970 census

revealed that Placks comprised 30°% of the Essex County popula-

tion. (14a, n. 17).

There is substantial uncontradicted evidence in the record, even

afart from the 1970 census, that proved that Blacks comprised 25%

of the population in 1967. Thus, the Third Circuit noted that the

(Footnote continued on following page)

The percentage of Black persons on the 1966-1967 grand

jury lists was 6%. Blacks were thus under-represented

on the grand jury lists by 75% (l4a-l5a, n. 18). Expert

statistical testimony revealed that the statistical proba

bility of observing 6% or less Blacks on an Essex County

grand jury list in 1967 is less than one in a million

(.000001) (MT IV 1137-1138; 13a, n. 16).

Subsequent to this litigation, the New Jersey Supreme

Court abolished the “key man” system for the selection

of grand juries in New Jersey (9a, n. 11).

There had never been a Black jury commissioner, or

Black person on the commissioners’ staff for at least nine.

teen years prior to this litigation.*

(Footnote continued from preceding page)

ment estimated Gat tm 1566, 27.3% of Eaecx Comny was Rev

ment estimated that in 1966, 27.3% of Essex County was

tion between the ages of 21-74 that was Black in 1966 was 25%

(MT III 1013, 22-1014, 8; MT II 1010, 8-10).

The New Jersey Department of Conservation and Economic

also estimated that the Black population of Newark

in 1966 was 52.3% (Exhibit D-31). Statistics introduced by the

state corroborated this, showing that in 1967, Blacks comprised

52% of Newark’s population, as compared to 34% in 1960 (Ex-

hibit S-1, Summary of Findings).

selection process was “potentially suspect.” (12a, mn. 15) Black per-

sons comprised only 8.36% of the 1966-1967 petit jury master lists.

Only three (3) of the fifty-six (56) (5.5%) petit jurors sum-

moned on the voir dire of respondent's trial were Plack. Respond-

ent was convicted by an all white jury of fourteen in the heart of

Newark, New Jersey.

—_—

REASONS FOR DENYING THE WRIT

POINT I

This Court should deny certiorari: A) because this

case is limited to a narrow factual situation and there-

fore lacks broad significance; B) because the decision

of the Third Circuit does not legally conflict with the

decisions of other jurisdictions; C) because the Third

Circuit decision is factually correct. - «

Whether there has been racial discrimination in the

selection of jurors is a question “to be determined from

the facts in each particular case”. Patton v. Mississippi,

339 US. 463, 466° The instant case turns on the

unique facets of discrimination that existed in Essex Coun-

ty prior to 1968. In addition, subsequent to the events

in this litigation, New Jersey abolished the “key man”

system of jury selection (9a, n. 11).** Therefore the

validity of state procedures is not in issue.

* This court has taken many jury discrimination cases, but vir-

tually all of these have served to correct the results of jury dis-

crimination in the south. Those cases have had the broad purpose

of seeking to change the widespread discriminatory practices that

have been prevalent throughout the south. Here, however, the

Third Cireuit has already corrected the discrimination, and vindi-

cated constitutional rights. The need that prompted the court to

enter other jury discrimination cases, is not present here.

** The federal judicial system has also abolished the “key man”

system as a method of selecting federal grand and petit juries

(10a, n. 12).

— OLA LOL AIOE LE AOI A

It is clear therefore, that a reversal by this Court would

have no implications beyond the bounds of this case. No

important issues are at stake. Indeed the state has not

argued that this case has broad application. All the state

seeks to gain is the right to avoid the reindictment and

retrial of one man. Such a purpose does not merit cer.

tiorari.

B. The decision to which the state seeks certiorari is

not in conflict with decisions of the Supreme Court or

of other jurisdictions. The petition therefore does not

meet the tests for certiorari set forth in Supreme Court

Rule 19.

The state’s petition is basically a cut and paste ver-

batim repetition of parts of its brief in the Third Cireuit.*

It responds to the defendant’s brief in the Third Circuit,

but it does not respond to the opinion of the Third Cireuit.

The State does not directly confront or attack the Third

Cireuit’s reasoning, nor does the State confront or attack

the factual findings on which the court relies. Most im-

portantly, the State does not argue that the Third Circuit

opinion materially conflicts with opinions of the Supreme

Court or of any other jurisdiction. Indeed, the legal

principles applied in the opinion are in harmony with

other cases in the jury discrimination area.

1. In its analysis, the Third Circuit followed the tradi-

tional prima facie and burden of proof rules*in the jury

area (20a, 21a-22a, 15a-l6a, 13a). Thus when an accused

shows a prima facie case of discrimination in the selec-

* For example the petition headings, Point I, and Point IB, refer

to the grand and petit juries, when the Third Circuit did not reach

the issue of the petit juries.

wa——————_, OPO EDEL AIO LO WAIT LE ALIEN A

9

tion of jurors, the burden shifts to the state to rebut the

presumption of discrimination. The state must offer con-

stitutionally acceptable reasons for the disparity between

the percentage of Blacks in the population, and the per-

centage on the jury rolls. Alexander v. Louisiana, ——

US. —— 92 8. Ct. 1221, 1226; Norris v. Alabama, 294

US. 587, 591; Patton v. Mississippi, 332 U.S. 463, 466,

468; Whitus v. Georgia, 385 U.S. 545, 552; Coleman v.

Alabama, 389 U.S. 22, 23; Turner v. Fouche, 396 U.S. 346,

361; Pierre v. Louisiana, 306 U.S. 354, 361. If the state

fails to rebut the prima facie case, the conviction must

be reversed.

9. In determining the requirements of a prima facie

ease, the Third Cireuit held that the substantial statistical

underrepresentation of Blacks on the jury rolls, standing

alone, did not constitute a prima facie case of discrim-

ination (15a-16a). Following recent Supreme Court de-

cisions, the court held that in addition to underrepresen-

tation, there must be an “opportunity for racial diserim-

ination.” (15a-16a).* Accord: Alexander v. Louisiana,

supra at 1226; Whitus v. Georgia, supra at 552.

3. The Supreme Court has held that a jury commis-

sioner’s failure to take affirmative steps to familiarize

*The petition for writ of certiorari states: “Defendant’s argu-

ment below that disproportion, without more, is sufficient to render

a jury selection system unconstitutional, is wholly without merit.”

(P. p. 12). This point is irrelevant, since as noted above, the

Third Circuit did not take that position.

In Point IB of its petition the State argues at length that grand

and petit juries need not reflect proportional representation of the

various identifiable groups in the community (P. pp. 9-12). This

point is also irrelevant, since the Third Circuit agrees with that

principle (Sa).

|

eA OA AOTC CEILI BAN NY ¥ seo i

10

himself with the community, and with the eligible Blacks

in a community is, standing alone, grounds for reversal,

Cassel v. Texas, 339 U.S. 282; Hul v. Texas, 316 US,

400. See also Smith v. Texas, 311 U.S. 128, 131-139.

See also Brooks v. Beto, 366 F. 2d 1, 23-24 (5th Cir.

1966). The Third Cireuit did not go that far, but in.

stead held that the commissioners’ lack of knowledge

of the community, “exacerbated the problems with the

key man system” (lla). This approach was used in

Turner v. Fouche, supra at 360, 361. See also Davis y.

Davis, 361 F. 2d 770, 775 (5th Cir. 1966); Witcher y.

Peyton, 405 F. 2d 725, 727 (4th Cir. 1969).

4. Although the facts in this case demonstrate inten-

tional exclusion, the Third Circuit correctly noted that

there need be no showing of an evil motive, or of a de-

liberate intent to discriminate, to establish a prima facie

ease (19a). Thus the Supreme Court has consistently held

that “affirmations of good faith” by jury commissioners

are insufficient to dispel a prima facie case of discrim-

ination. See Alexander v. Louisiana, supra at 1226, and

eases cited therein. The fifth and ninth circuits are in ac-

cord: Carmical v. Craven, 457 F. 2d 582 (9th Cir. 1971),

cert. denied 41 U.S. L.W. 3208, Docket No. 71-1602 (1972);

_United States ex rel. Seals v. Wiman, 304 F. 2d 53, 65

(5th Cir. 1962), cert. denied 372 U.S. 924 (1963); Salary

v. Wilson, 415 F. 2d 467, 472 (5th Cir. 1969) ; Vanleeward

v. Rutledge, 369 F. 2d 584, 586-87 (5th Cir. 1966). The

State of New Jersey agrees with this position (P. p. 18).

Thus the legal analysis in this case is in harmony with

that of other jurisdictions. The Third Circuit opinion is

also correct in its factual analysis.

ew ——

IL

C. The Third Circuit correctly found that there was a

prima facie case of discrimination in this case.

The state does not attack or confront the facts upon

which the Third Cireuit relies to find discrimination.

It is undisputed that in 1962 the Assignment Judge of

Essex County ordered the jury commissioners to obtain

more Blacks on the grand jury (9a).* In response to

this order, the commissioners contacted only approximate-

jy seven Black leaders and churches, and obtained only ap-

proximately 250 names (MT I 380, 382, 399, 400; MT IT

402). This is a pitiful effort in a county containing such a

large Black population (15a). The commissioners did not

follow up to see if any of these names qualified for jury

service (MT I 399, 18-20, 400).

It is undisputed that the commissioners discontinued

the use of Black key men and made xo special effort to ob-

tain Blacks after 1964, and that no effort was made to ob-

tain Blacks for the grand jury that indicted respondent

(MT I 402, 383; 10a).** It is also undisputed that the com-

missioners were abysmally ignorant of the composition of

the Essex County community, and that they never exam-

*The commissioner admitted that in 1962 the voter lists were

not producing sufficient Blacks for grand jury service (MT I 383-

384).

** The state contends that jurors were solicited from the NAA

CP, and that special efforts were made to obtain Negroes ( P. p. 4,

n. 4). These efforts occurred prior to 1964 (MT I 402).

The state also asserts, without citation to the record, that ques-

tionnaires were sent to civic organizations whose memberships in-

cluded substantial numbers of members of the excluded groups (P.

p. 22). Aside from the negligible pre-1964 effort, there is no ba-

sis in the record for this with respect to black persons. And there

is no basis in the record that any of the groups solicited prior to

1964 contained large numbers of Black persons.

;

LRP TOOR tate |

PT AEROPLANE a

12

ined a grand jury list to determine if it represented g

cross-section of the community with regards to race. (See

p. 4 of this brief.)

These facts demonstrate not merely a speculative “op.

portunity to discriminate”, but the existence of diserimina-

tion itself. The failure of the commissioners to seek Black

jurors after 1964 represents a conscious decision to eon-

tinue the underrepresentation of Black persons. At the

very least, these facts demonstrate that an “opportunity”

to discriminate existed.

First, in abolishing the “key man” system, the New Jer.

say Supreme Court recognized that “the exercise of disere-

tion by jury commissioners entails some dangers”, and

contains “inevitable discretionary incidents”. State y,

Rochester, 54 N. J. 85, 91-92, 90 (1969).

Second, the commissioners’ extraordinary lack of knowl-

edge of the composition of the community, and of their

jury lists surely played a large role in the opportunity

to discriminate. Turner v. Fouche, supra at 360; Davis vy.

Davis, supra, at 775. The commissioners, who personally

obtained and submitted the bulk of the names for the

grand jury lists, were ignorant of the facts that would

have enabled them to satisfy constitutional standards. In

addition, one surely knows that names submitted from

certain cities, churches, clubs, businesses, ete., where there

are no Black persons, will be white.

After the 1962 order of the Assignment Court, the com-

missioners solicited names from Black key men and .

organizations. These actions,

. indicate that they (the commissioners) obvi-

ously knew that Negro key men and Negro organi-

zations were the source of most Negro names. Their

failure to continue to pursue such sources after 1964

.

amounts to an elimination of the only significant

source of Negro grand jurors in Essex County (19a-

20a).*

13

See Brooks v. Beto, supra at 23-24.

The commissioners knew that their actions resulted in

the severe underrepresentation of Black persons. They

had been warned by the Assignment Judge. They realized

that the 250 names obtained in the special effort were ex-

hausted by 1966-1967 (10a-1la, MT I 383). They had in-

structed their clerk that when the grand jury list was less

than the required 300, that he should add from the petit

jury lists names of persons from Newark, the city with

the largest Black population in the County (see pp. 2-3

supra, and footnote at p. 3; 12a.) This supplementation

raises the strong inference that the commissioners knew

Blacks were underrepresented (12a). The inaction by

the commissioners is further exacerbated by the fact that

the Black population increased steadily in Essex County

after the Assignment Court’s order (14a, n. 17; see also

Exhibit S-1, Summary of Findings).

It is clear that the commissioners violated their duty

_ not to pursue a course of conduct in the ad-

ministration of their office which would operate to

discriminate in the selection of jurors on racial

grounds. I/ill v. Texas, 316 U.S. 400, 404.**

* The discontinuance of Black key men is exacerbated by the fact

that there had never been a Black jury commissioner, or a Black

rson on the commissioners’ staff. (See p. 6 of this brief

pe

** The federal trial court basically agreed. Citing Swain v. <lla-

bama, 380 U.S. 202, it described the grand jury selection

procedure as “somewhat haphazard,” and stated that “little effort

was made to ensure that all groups in the community were fully

represented.” (36a)

y this court. In Whitus v. Georgia, supra, this

invalidated a smaller disparity (21.7% Blacks op

digests; 9.1% Blacks on grand jury venire, a dis.

HIF

;

;

:

:

sary for a prima facie case (1a; 1a, n. 16; Va, n. 18).

Accord: Alerander vy. Louisiana, supra at 12%, n. 9.

Whitus v. Georgia, supra, at 552 n. 2 (1967).°

(Footnote continued on following page)

POINT Il

The exclusion of Blacks from the grand jury de-

nied respondent equal protection of the guaran-

grand jury from which Negroes were excluded by

(Footnote continued from preceding page)

$5). This statement is untrue, since all of respondent's stacistics

were based on the age qualification 21-74. However, the Third

2% Turner v. Fouche, supra at 359, 361-362; Whitus v. Georgia,

supra at 551-582.

reason of their race. Alerander v. Lowisiana, suprs

at 124.

on the grounds that Blacks were excluded from the grand

jary. See particularly Pierre v. Louisiana, 306 U.S.

where Justice Black stated:

Principl hich forbid discrimination in the

lection of Petit Juries also govern the selection

of Grand Juries. “It is a right to which every cob

ored man is entitled, that, in the selection of jurors

to pass upon his life, liberty, or property, there

shall be no exclusion of his race, and no discrim

ination against them because of their color.” Pierre

v. Louisiana, supra at 362.

See also Smith v. Texas, 311 U. S. 128; Eubanks v. Louis.

tana, 356 U. S. 584; Hill v. Texas, 316 U. S. 400; Akins

v. Texas, 35 U. S. 398. In 1970 this court reaffirmed

that,

[o}mee the State chooses to provide grand and petit

juries, whether or not constitutionally required to

do so, (footnote omitted] it must hew to federal

of membership is free of racial bias, [footnote

omitted] . .. Carter v. Jury Commission of Greene

County, 396 U. S. 320, 330.

The state’s argument in Point ITI of its petition is

hasically a repetition of Justice Jackson's dissenting opin-

ion in Cassell v. Texas, 329 U. S. 282, 288-305. The court

in Cassell declined to accept that reasoning.

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18

rights—the right to equal protection—were considered

harmless error.

The injury is not merely to the defendant.

“... [T]here is injury to the jury system, to the lay

as an institution, to the community at large, and

to the democratic ideal reflected in the processes of

our courts.” Rabinowitz v. United States, 366 F.

2d 34, 59-60 (5th Cir. 1966) (en banc).*

Since there are no conflicting judicial decisions on this

issue, and since the law has been well settled for so long,

certiorari on this issue should be denied.

CONCLUSION

For the reasons submitted, respondent respectfully

prays that the petition for writ of certiorari be denied.

Harris Davin,

Newark-Essex Joint Law

Reform Project

463 Central Avenue,

Newark, New Jersey

Of Counsel:

Cart Brorce

* These considerations far outweigh those presented by the state’s

speculation that the Third Circuit decision “may” set defendant

free (P. p. 23, n. 15). If this happens, justice will be served. Re-

spondent, who is innocent, received a severe beating, including a

cracked rib, and groin injuries from the police. He has had the

threat of jail hanging over his head for over five years. He cannot

locate two key witnesses, who saw the beating in the patrol car.

If the statute of limitations prevents reindictment, the state cannot

complain. For it was the state’s racial discrimination that forced

this lengthy litigation.

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