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State v. Rochester

Decided: December 11, 1967.


Botter, J.s.c.


[105 NJSuper Page 531] This is a motion to quash an indictment on behalf of Herman Rochester, defendant, by his assigned counsel. Herman Rochester was indicted by Indictment S-357-66, filed February 24, 1967, for unlawfully and maliciously

committing an assault upon Donald Baker with a certain offensive weapon and instrument to wit: a .22 caliber six shot Burgo revolver which he, the said Herman Rochester, had in his hand then and there and held contrary to provision N.J.S. 2 A:90-3. The indictment was by the Bergen County Grand Jury in the September term of 1966, the second stated session. The grand jury that actually indicted was organized in early January of 1967. I believe the organization date is the first day of the second stated session which begins right after the new year. In support of this motion to quash some affidavits have been submitted. One is by Frederick Bernstein, one by his secretary, Deidra Dembia, and one by the defendant himself. I mention this because there are several things in the affidavits which may be relevant. For one thing it is the place that describes, to the extent that we have a description, the defendant. Frederick Bernstein in his first paragraph describes him as a Negro youth who was charged with having assaulted a white boy, Donald Baker. The affidavit says, "I understand that a number of the four other white boys who were with Baker at the time of the incident testified before the Grand Jury of Bergen County." The affidavits generally indicate that Mr. Bernstein was not able to obtain all the information he wished to have to support his application quashing the indictment and therefore asked for a hearing so that he could subpoena certain records and obtain additional information.

The motion to quash is in general terms. It says that the defendant will apply for an order "dismissing the indictment on the ground that the grand jury was not selected, drawn, or summoned in accordance with the law and in accordance with the provisions of the Federal and the New Jersey State Constitutions." There was attached to this motion a photocopy of a letter received by defendant's counsel on June 20, 1967. That letter is from the Prosecutor, Guy Calissi. The letter is dated June 16, 1967. It says, "Dear Mr. Bernstein: This will acknowledge receipt of your letter dated June 9, 1967 concerning the above. To the best of my knowledge,

there were no Negro members of the Grand Jury that indicted your client, Herman Rochester. During the period of my term which will be thirteen years on July 1, 1967, there has been one Negro on the Bergen County Grand Jury. This was several years ago, I believe in 1964 or 1965." The record shows that Spencer Wright was a Grand Juror in 1965 and that he was a Negro.

The testimony in this case consists primarily of testimony of members of the jury commission who have the responsibility of preparing lists of prospective jurors for service on petit and grand juries in this county. Unfortunately this motion was first heard in the summertime when Miss Hirt, who I believe is the chief clerk of the jury commission office, was absent. We did not have her testimony the first day. It was then continued on September 12, 1967 when we had the testimony of Mr. Valerio Callazuol, who is a jury commissioner. Then we had to have transcripts of the original hearings before we rescheduled the last hearing and ran into difficulty of counsel and Miss Hirt being on vacation, and we finally heard the balance of the testimony last Friday. That was three days ago. Introduced in evidence were various records of the jury commission's office and certain documents showing population statistics, particularly with respect to the Negro population of the County and various municipalities as compared to the population of the County as a whole. We also have introduced in evidence a manual for the use of jury commissioners of the state of New Jersey prepared by the Supreme Court of New Jersey, revised edition of May, 1961. We have as J-10 a breakdown of the apportionment of grand jurors in the County used in composing the master list of three hundred prospective grand jurors from which the ultimate number of twenty three grand jurors are selected. We have as an exhibit the questionnaire in the form prescribed by the Supreme Court which is used by the jury commissioners in determining eligibility and status of various people in the county for jury service. We have various lists of jurors, master lists of grand jurors, master lists of petit jurors. We

have an order of the Court which prescribes the number of petit jurors and grand jurors to be selected for a certain session.

In the stated session commencing September 12, 1966 we have four thousand people listed on the petit jury master list as compared with three hundred on the grand jury master list. I believe the evidence shows that the petit jury master list has increased since then because of the increase in the number of judges in the court house and the need for additional petit jury panels. Offered as an exhibit by the defendant is an occupational analysis, this is J-13, of the eleven most recent Bergen County Grand Juries, to and including the first stated session of September, 1967, which shows sixty-six different categories of employment. However, various occupations may be embraced in some designations. For example, the business of builder may embrace the class of blue collar workers who are engaged in the building trade such as building craftsmen, brick layers, or carpenters. This list was offered by the defendant to show that there is an absence from the grand jury list of persons who might be classified or called blue collar workers, members of the factory class, factory working class, truck drivers, and various craftsmen in the non-white collar trades.

The defendant contends that from 1922 to 1965, when Spencer Wright served, there was only one Negro who served on a grand jury of Bergen County and that was a Mr. Morrow, who the defendant claims served at a time which by coincidence occurred around the time of the last attack in Bergen County on the composition of the Bergen County Grand Jury. I don't believe that was the last attack or that this was the only attack since that time. I believe there have been other motions in other cases prior to this one, between 1948 and today questioning the absence of Negroes on the grand jury. It isn't important whether there were other attacks or not. In 1965, a Mr. Wright served. I believe the record also shows that Roosevelt Brown of the New York Giants, a Negro, was drawn for the second panel of the third

stated session of September, 1966; but I don't believe he actually served because that second panel was not used. I think that explains why he was drawn but did not serve.

The Grand Jury list of the third stated session, September term, 1948 may have inadvertently gotten into the list of exhibits. I found it among the exhibits that I have. I'm not sure if it was intended to be an exhibit or not but it does describe -- assuming it's a public record and then I can refer to it -- I think we have a general stipulation that reference could be made to jurors or grand jurors of prior terms -- it describes E. Frederick Morrow of Hackensack, a telephone or telegraph switchman. It says "tel. switchman." There is in evidence a statement of a prosecutor who was involved in the case of State against Van Lewis, Jr. and John David Parker, Bergen County Court of Quarter Sessions. This, I take it, was the case in 1948 where a challenge was made to the composition of the grand jury.

The stipulation of the Bergen County Prosecutor at that time was:

"(1) That the adult population of Bergen County, New Jersey, for the years 1920, 1930 and 1940 is as set forth and classified in the Fourteenth, Fifteenth and Sixteenth Census of the United States, respectively.

(2) That the number of Negro residents of Bergen County, New Jersey, during the period from 1920 down to and including the present time, who possess the qualifications of grand jurors prescribed by Revised Statutes, 1937, Section 2:85-1, bears substantially the same ratio to the number of white residents of Bergen County, New Jersey, possessing said qualifications as the total Negro population of Bergen County bears to the total white population of Bergen County during said period.

(3) That from the period 1922 to and including the present time, no person of the Negro race has served on any Bergen County grand jury."

The accuracy of that stipulation has not been questioned in this case nor has independent evidence been offered to show that, except that Miss Nina Anderson testified that she was with the Bergen County Grand Jury Commission for over forty years and I believe she said to her recollection

there was no Negro juror on the grand jury in that period of time except for Mr. Morrow in 1948 and except for Negroes who have more recently served. The contention of the defendant is that the grand jury as composed violates his rights and violates the statutes of New Jersey because of alleged systematic and intentional and purposeful exclusion of Negroes from the Bergen County Grand Jury.

The defendant points to the occupational characteristics of those grand jurors who have served and contends that the disproportionate number of people who are engaged in professions of white collar type work -- there are many persons of professional background and training and persons who have occupations or various professions such as accountants, nurses, pharmacists, pilots, veterinarians, economists, if we call all of these things professions -- they comprise a large portion of the grand jurors who have served -- he contends that the persons in the laboring class or the daily wage worker type of class have not been selected for service in the grand jury. I'm not certain if the defendant contends that this may be the means or one of the means by which subtly Negroes are excluded from service, possibly on the theory that a greater proportion of the Negro population is engaged in occupations not selected for service on the grand jury.

In any case, the defendant contends that the absence, the persistent absence of Negroes from grand jury service, together with the occupational composition of grand jurors, represents a systematic, intentional and purposeful discrimination, that the composition does not properly reflect all classes of the community as a whole, that the grand jurors are not properly representative of the community as a whole; and that therefore the defendant's rights have been violated.

I will deal with the contention that Negroes have been systematically, intentionally and purposely excluded from the grand jury.

Most of the cases in other states that have dealt with this problem deal with areas or communities where the Negro population represents a large section of the population as a

whole. Some of the cases cited by the defendant show this. I believe this was the case, I don't have these cases in front of me, but I believe this was the case in Labat. I believe that was a Louisiana case where the Negroes composed 32% of the community as a whole. I think the Rabinowitz case also was a case in that category. Labat v. Bennett, is in 365 F.2d 698 (5 th Cir. 1966); Rabinowitz v. United States is 366 F.2d 34 (5 th Cir. 1966).

In our case the statistical absence of Negroes, considering the population of Negroes compared with the population as a whole, in my opinion does not establish a purposeful, intentional discrimination. That is to say the fact that more Negroes have not served on Bergen County grand juries does not establish from a statistical viewpoint the inference of purposeful, intentional, systematic discrimination. The evidence shows that in 1960 2.24% of the population of Bergen County was non-white. Exhibit J-21 shows that in 1967 Bergen County has a total population of 895,485. In Bergen County in 1967 J-1 shows that approximately 16,531 people were of the Negro race. They apparently are centered mainly in six municipalities, Englewood, Hackensack, Teaneck, Rutherford, Ridgewood, and Westwood. The breakdown of their distribution shows 7,613 in Englewood; 4,450 in Hackensack; 1,955 in Teaneck; 450 in Rutherford; 310 in Ridgewood; and 490 in Westwood. This population incidentally compares with the total population in the various municipalities as mentioned in the exhibit. The Englewood total population is 27,138. As I said, 7,613 are Negroes. Hackensack has a population of 34,654 of which 4,450 are Negroes. Teaneck has a population of 42,970 of which 1,955 are Negroes. Rutherford has 21,058 with 490 Negroes. Ridgewood has 26,302 with 310 Negroes. Westwood has 27,408 with 450 Negroes. The total number of registered voters is as follows: Englewood, 13,751; Hackensack, 14,397; Teaneck, 22,735; Rutherford, 11,181; Ridgewood, 14,265; and Westwood, 5,369. This exhibit, J-1, was offered by the State to show that there are approximately

6,000 registered Negro voters in the county. This represents 1.4% of the entire voting registration list of the county. I believe the total number of registered voters in the county is currently 457,000. I think the record somewhere shows that figure.

Now, the relevance of the percentage of registered voters appears when we consider the system by which prospective jurors are selected in the county. The registration list as I said is a large list. Incidentally, the estimate of the total number of Negroes in the county over 21 is 10,760. So that 6,000 registered Negroes would represent a little less than 60% of the total estimate of the number of Negroes over 21 and this compares with the total registration in the county of 457,000 as against almost 900,000 people in the county at large, or roughly 50%. So that roughly 50% of all the people in the county are registered. However, that figure is not 50% of all the people able to register. The number of people in the county over 21 is certainly less than the total population. So, the total registration of 457,000 may indicate a higher percentage of whites registered who are qualified to register than Negroes registered who are qualified to register. I started to say that the significance of this is that the jury commission uses the registration list as a basis and their principal source for prospective jurors in the county. The statute -- there is a statute which authorizes the jury commission to have access to this list -- N.J.S. 2 A:70-4 provides:

"For the purpose of making up the jury lists, the jury commissioners shall have access to and may copy the assessment rolls and registry lists of the several municipalities and election districts of their county."

The statute that prescribes the qualifications of jurors is N.J.S. 2 A:69-1:

"Every person, male and female, summoned as a grand juror, and every petit juror returned for the trial of any action of a civil or

criminal nature in any of the courts of this State, shall be a citizen of this State for at least 2 years; over 21 and under 75 years of age; a resident of the county from which he shall be taken; shall not have been convicted of a crime; and shall not, at the time of his selection, be a person who through his office, position or employment is either directly or indirectly connected with the administration of justice. Such person shall be able to read, write and understand the English language and shall not have any mental or physical disability which will prevent him from properly serving as a juror."

It is certainly reasonable for the jury commissioners to use the registry list to get a large group of people who would fit at least prima facie the qualifications set by the statute. To start with our voting age is 21; so the voting registry list would begin with all of the people who were 21 and older. I might mention that there was testimony that the jury commissioners sometimes have placed on the jury list people whom they have personally known, and they have also on occasion obtained recommendations. More recently, beginning with the tenure of Morris Pashman as Assignment Judge of this county, an effort has been made to seek out names of Negroes who in the opinion of the jury commissioners would be qualified to serve as grand jurors and for that purpose names were obtained from some judges. Ultimately, as one of the exhibits shows, the jury commission wrote letters to various organizations, including Negro organizations in the county, in order to solicit names of prospective jurors. I mention this only to indicate the other sources from which prospective jurors are obtained. There is no evidence that assessment lists or rolls were used. Directories were not generally used. Prior to December of 1966 when Judge Pashman became Assignment Judge there was no effort made to communicate with organizations interested in Negro affairs to solicit names of prospective jurors. I believe that Mr. Callazuol did testify that he asked some friends of his who were Negroes for names, and apparently that's how Spencer Wright came on the grand jury. He was known to the jury commissioner. His name was included in the master list. Ultimately he was selected as one of twenty three from that list.

To start with then the search for jurors begins primarily with the registry list, the list of registered voters. As I've indicated it appears that only 1.4% of the total registration list of the county are Negroes.

Now, dealing with grand jurors, we have twenty three people in our state comprising the grand jury. Three grand juries are usually empanelled each year. If pure statistics would be used and we assume enough chances mathematically to produce a uniform result, 1.4% of all the grand jurors would be Negro. Even if we use the percentage of non-white in the county of 2.2% and apply that to the twenty three grand jurors we would come out with approximately .5 grand jurors for every grand jury who would be Negro or one grand juror for every two grand juries. 2.2% of 46 grand jurors would produce one Negro grand juror. 1.4% would probably mean we statistically should have one Negro grand juror for every four grand juries.

Now, the record shows we have not had even that percentage of grand jurors who are Negro. The question is whether we can infer from these statistics purposeful, and intentional, systematic discrimination through the elimination of Negroes. Up to 1948 a different system was used apparently in testing the qualifications of jurors. The prospective jurors were summoned in and examined. In that fashion it could be ascertained to some extent at least who were Negroes and who were not. Since 1948, the period that we are primarily concerned with, a different system was used. In 1947 New Jersey got a new constitution and our court system was reorganized. The testimony was from one witness that under Chief Justice Vanderbilt the questionnaire started to be used. We have a questionnaire in evidence, as J-3. It is a form prescribed by the Supreme Court. It is sent out to all prospective jurors, and when returned it is examined for qualifications and exemptions. I might note at this time that our statute (N.J.S. 2 A:69-2) provides for certain exemptions:

"The following persons shall be exempt from service on any panel of grand or petit jurors:

a. Members or employees of police forces, State or local.

b. Members of any fire department or fire patrol, volunteer or paid.

c. Persons appointed as fish and game wardens or protectors.

d. Regularly licensed and practicing physicians and ...

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