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State v. Porro

Decided: April 13, 1978.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, whose opinion reported at 152 N.J. Super. 259 (1977).

Halpern, Larner and King. The opinion of the court was delivered by King, J.A.D. Halpern, P.J.A.D. (dissenting).


[158 NJSuper Page 271] These defendants were indicted by a Bergen County grand jury in October 1975 for the crimes of conspiracy and misconduct in office. They brought timely motions at the trial level challenging the array of grand jurors. The motions were denied by the trial judge for the

reasons stated in his reported opinion at 152 N.J. Super. 259 (Law Div. 1977). We granted defendants' motions for leave to appeal and now affirm.

Defendants challenge the method of selection and the composition of the grand jury returning this indictment. They advance two grounds for their position: (1) the systematic exclusion of full-time students who they allege comprise a constitutionally cognizable class, and (2) the alleged substantial under-representation of certain classes of jurors, namely, women, blacks, laborers and blue-collar workers. Defendants claim the procedures utilized in selecting the grand jury violated their rights to due process and equal protection under the Federal Constitution, as well as their state constitutional rights.

As the trial judge properly noted, the federal Fifth Amendment right to indictment by a grand jury has not been selectively incorporated into the Fourteenth Amendment as a fundamental right applicable to the individual states. However, the State of New Jersey has extended the right of indictment to its citizens under the State Constitution. N.J. Const. (1947), Art. I, par. 8. State constitutional principles require that grand jury selection "be so designed as to insure that juries are impartially drawn from community cross-sections." State v. Rochester , 54 N.J. 85, 88 (1969). See also State v. Smith , 102 N.J. Super. 325 (Law Div. 1968), aff'd o.b., 55 N.J. 476, 481 (1970). In the federal "constitutional context, the court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross-section of the community." Taylor v. Louisiana , 419 U.S. 522, 527, 95 S. Ct. 692, 696, 42 L. Ed. 2d 690 (1975).

Since the decision of our Supreme Court in the Rochester case, grand jurors have been randomly selected from voter registration lists. Such lists, as well as supplementary sources, are used in federal courts. 28 U.S.C.A. § 1863. The question before us is whether full-time students are a constitutionally identifiable or cognizable group whose benign,

but systematic, exclusion from grand jury service in Bergen County renders this indictment constitutionally infirm. As the trial judge's opinion notes, this exclusionary practice has been discontinued.

Our state statutes actually criminalize any conduct by officials whereby a qualified citizen is prevented from serving on a grand or petit jury in any court "on account of race, color, creed, national origin, ancestry, marital status or sex." N.J.S.A. 2A:72-7. The federal counterpart prohibits exclusion from service "on account of race, color, religion, sex, national origin, or economic status." 28 U.S.C.A. § 1862. At least legislatively, neither full-time students, nor indeed any occupational status, has achieved cognizability in this context.

The United States Supreme Court has recognized several constitutionally cognizable classes for jury selection purposes: race, gender and economic class. Racial dis-discrimination in jury selection was held violative of the Federal Constitution in Smith v. Texas , 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). Such discrimination was said by Justice Black to be "at war with our basic concepts of a democratic society and a representative government." 311 U.S. at 130, 61 S. Ct. at 165. Most cases raising the issue have done so on racial grounds. See Annotation, "Jury Selection -- Group Discrimination," 33 L. Ed. 2d 783 (1972). See also, Castaneda v. Partida , 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). Clearly, a criminal defendant need not be a member of the excluded group before he has the requisite standing to raise the constitutional objection. Peters v. Kiff , 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972).

In Thiel v. Southern Pacific Co. , 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), a tort claimant challenged a petit jury array from which the clerk and jury commissioner had deliberately and intentionally excluded all persons who worked for a daily wage. The court found this class distinction and discrimination "abhorrent to the

democratic ideals of trial by jury" and a constitutional violation. Justice Murphy stated:

This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community, frequently such complete representation would be impossible. [328 U.S. at 220, 66 S. Ct. at 985.]

The thrust of the Thiel holding was against discrimination by economic class, not any specific occupation.

The high court's latest expression on this subject of systematic exclusion of an identifiable class from jury service is found in Taylor v. Louisiana, supra. See also, Glasser v. United States , 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). The convicted defendant in Taylor attacked the Louisiana petit jury practice which resulted in the virtual exclusion of women from the panels. At the time of defendant's trial, Louisiana law provided that a woman would not be selected for service unless she had previously filed a written declaration of her desire to be called for service. Fifty-three percent of the persons eligible for service from the parishes where the panel was drawn were women. As a result of the local practice only 10% of the persons on the jury wheel were women, only 12 women were actually among the 1800 persons drawn to fill petit jury venires in the calendar year of defendant's conviction, and on defendant's venire , totaling 175 persons, there were no women.

There is little in the Taylor case which aids in analyzing whether a particular group is "cognizable or identifiable" for constitutional purposes. In the opinion of the court, Justice White pointed out that the historic purpose of the jury was "to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." 419 U.S. at 530, 95 S. Ct. at 698. Justice White concluded: "This

prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool." Id. (emphasis added). At least we can discern that the court was obviously impressed with the size of the class systematically excluded, 53%, as being violative of the fair cross-section requirement. In Peters v. ...

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