Opinion
6 Div. 97.
November 17, 1970.
Appeal from the Circuit Court, Jefferson County, Elias C. Watson, J.
Demetrius C. Newton, Birmingham, Norman C. Amaker, New York City, for appellant.
Evidence that the Negroes represent a substantial percentage of the population within an area but, represent a minuscule percentage on the jury roll establishes a prima-facie case of invalid exclusion of Negroes from the jury roll and discrimination of the jury selection process. Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181 (1968) aff'd sub nom.; Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549; Salary v. Wilson, 415 F.2d 467 (1969); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567. Statistical proof of the mathematical probabilities of the result of a jury selection system is proper. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Salary v. Wilson, 415 F.2d 467; Alabama v. United States, 304 F.2d 583; United States ex rel. Goldsby v. Harpole, 263 F.2d 71; Brooks v. Beto, 366 F.2d 1; Finkelstein, "The Application Of Statistical Decisions Theory To The Jury Discrimination Cases", 80 Harv.L.Rev. 338.
MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.
The aim and purpose of the law is to obtain juries which truly represent a cross-section of the community, but there is no constitutional requirement that said juries represent the proportional strength or exact percentage of the various components of the population. Billingsley v. Clayton, 359 F.2d 13; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 739. The procedures for compiling jury rolls in Jefferson County are not violative of the constitutions of Alabama and the United States and do not have the practical effect of systematic exclusion of members of the Negro race. Billingsley v. Clayton, 359 F.2d 13.
Murder, first degree: life sentence.
The sole question here is raised by a denial of a motion to quash the indictment on an allegation of systematic exclusion of Negroes from the grand jury. The indictment was in the Birmingham Division of the Jefferson Circuit Court.
We consider the appellant failed to carry the burden of proof of purposeful omission.
The defense hypothesis was that in certain precincts of that part of the county a sampling (not always uniform) showed a discrepancy between the jury rolls and the purported population in the respective black and white ratios. However, the samples were not coextensive with all the county less the Bessemer cutoff. According to Salary v. Wilson, 5 Cir., 415 F.2d 467 (footnote 5), the Bessemer Division had 51% Negroes over age 21.
In the 1960 census, the entire county had less than one-third Negroes in the 21-64 year age brackets. Since the jury roll for the Birmingham Division is separate it would follow that therein an even smaller percentage of Negroes should be expected than the county-wide 31%.
We are aware of the formidable task of combing through the jury roll of some 57,736 names. However, the grand jury which indicted Richardson had two Negroes out of 18, a percentage not more discrepant than that shown in Swain v. Ala., 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. Since July of 1967, grand juries varied from 1:18 to 5:18.
We consider that the burden did not shift to the State. Billingsley v. Clayton, 5 Cir., 359 F.2d 13; State v. Smith, 55 N.J. 476, 262 A.2d 868; State ex rel. Bush v. Tahash, Minn., 161 N.W.2d 326.
We have reviewed the entire record under Code 1940, T. 15, § 389 and conclude the judgment below is due to be
Affirmed.