Kalodner, Hastie and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
Appellant has challenged the jury selection procedures used to impanel the grand and petit juries of Essex County, New Jersey, which were instrumental in indicting and convicting him of assault and battery.*fn1 He contends that both the "key man" system used to select the grand jury venires, and the system based on voting lists and city directories used to choose the petit jury venires, were constitutionally defective because they excluded disproportionate numbers of Negroes, women, working class, and residents of Newark.
Appellant is a Negro male. He bases his claims on both the equal protection and due process guarantees of the fourteenth amendment to the Constitution, but because of our disposition of this case, we need consider only one question: did the "key man" system employed in Essex County, New Jersey, invidiously discriminate in the selection of Negro grand jurors so as to deny appellant the equal protection of the law.*fn2
These opinions relied heavily on Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), for the proposition that the appellant had to show something more than steady under-representation of the various groups to make out his prima facie case of a denial of equal protection. The Superior Court of New Jersey decided after a full hearing that it was incumbent on appellant to show a deliberate, systematic discrimination against members of his race. 246 A.2d at 46. The Supreme Court of New Jersey affirmed that test. The United States District Court conducted a thoughtful and thorough review of the cases and the facts of Smith's habeas corpus petition, concluding that appellant had to show: (1) a deliberate practice of total exclusion; (2) a deliberate practice of token inclusion; or (3) a deliberate interference with an otherwise valid procedure. It decided that none of the three situations had been shown and that appellant had failed to make out even a prima facie case. It attributed the under-representation of certain classifications of citizens, including Negroes, not to purposeful discrimination, but to the imperfections in the selection process.
In other words, the Superior Court and the District Court believed that it was not sufficient for the appellant's prima facie case to show that the consistent under-representation of Negroes on the grand jury was the likely result of a course of deliberate action by the Jury Commissioners of Essex County in seeking out "key men" who would supply names for grand jury service. We disagree.
For almost one hundred years the Supreme Court has made clear that:
The right to a trial by jury is guaranteed to every citizen of [the state] by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.
Strauder v. West Virginia, 100 U.S. 303, 308, 25 L. Ed. 664 (1880).
As such, there should be a truly representative cross-section of the community on a grand or petit jury, Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940), although there need not be proportional representation of each element of the population entitled to serve. Cassell v. Texas, 339 U.S. 282, 286-287, 70 S. Ct. 629, 94 L. Ed. 839 (1950). However, "once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so [footnote omitted] it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. [footnote omitted]. . . ." Carter v. Jury Commission of Greene County, supra, 396 U.S. at 330, 90 S. Ct. at 523.
When one is willing to serve, and deemed fit by the state to serve,*fn4 he cannot be excluded by the consideration of unacceptable or improper criteria. If such exclusion takes place, depriving a defendant of members of his or her race,*fn5 sex,*fn6 or ...