Defendants, Thomas Ramsuer et als. bring this motion seeking the reversal of convictions and/or dismissal of indictments based upon their claim that they were indicted and tried by grand and petit juries drawn from improperly constituted venires. This motion which challenges the jury selection system in Essex County began as a pretrial motion returnable before the Honorable David Baime, J.S.C. in the case of State of New Jersey v. Thomas Ramsuer, 183-82. Due to the complexity of the proofs necessary to pursue a plenary challenge to a jury system, this motion was bifurcated from the Ramsuer trial. During the course of the hearing the Public Defender's office sought and was permitted, to join in this motion, thirteen other defendants who are also charged with murder under N.J.S.A. 2C:11-3.*fn1
Defendants allege three separate defects in the Essex County jury selection system which they claim entitles them to the requested relief: (1) the juror source list and qualified pool are unconstitutionally unrepresentative; (2) the exclusion of blacks and women from the position of grand jury foreperson; and (3) the violation of New Jersey jury selection statutes.
II. THE JUROR SOURCE LIST AND QUALIFIED POOL
A. THE SELECTION PROCEDURE IN ESSEX COUNTY
Jurors in Essex County are selected from a source list comprised of a merged list of the county's registered voters and licensed drivers. Names appear on the source list alphabetically by municipality and street name, and numerically by house number. Jurors are randomly selected from the source list as needed. Random selection is accomplished by the systematic extraction of names from the list according to a predetermined fixed interval. The interval is arrived at by dividing the number of names on the list by the number of questionnaires that the jury commission sends out. The computer uses the interval to select names from the whole list which guarantees the selection of jurors from each municipality and each street
without selecting more than one person from every household. Anyone who has served on a jury in the past seven years or has received a qualification questionnaire in the past four years is excluded from the selection process. The computer also keeps track of persons who are designated permanently or temporarily ineligible to serve by the jury commission.
The questionnaires are mailed to the prospective jurors who complete them and send them to the jury commission office where they are screened for eligibility. All those deemed eligible are re-entered into the computer. The interval method is used to select a qualified pool of grand jurors from the list of eligible jurors. Those who are not selected for grand jury service are designated to be petit jurors. The jurors on the lists of grand and petit jurors are then given random numbers and are sorted. Sorting the qualified lists consists of placing the jurors in an ascending sequence according to their random numbers.
An order is received from the assignment judge informing jury control of the number of panels, the number of people per panel, and the reporting date for each panel. The petit jury qualified list is divided into panels which conform to the order of the assignment judge. Each panel is divided into subpanels consisting of fifty jurors and then resorted listing the jurors alphabetically. The grand jury qualified list is divided into panels but these panels are left in random sequential order.
Defendants claim that an under-representation of constitutional proportions is revealed when the number of blacks, women, low income groups, young people, students and Newark residents found in the general population of Essex County is compared with the number of these groups which appear on the juror source and qualified lists for the May 1982 term. Defendants undertook to determine the race, sex, and economic status of jurors summoned for jury service by means of two
telephone surveys and a geographic inference analysis*fn2 of every juror on the May 1982 jury list. The results of these surveys were weighed and combined to determine the degree to which a particular group was represented in the Essex County jury selection system. These figures were then compared to the census bureau statistics for Essex County. A summary of the combined result of defendants' statistical evidence appears as follows:
Blacks/qualified list 35.9 21.8 14.1
Blacks/source list 35.9 21.3 14.6
Women/qualified list 53.3 46.5 6.7
Women/source list 53.2 47.2 6.0
Urban/qualified list 36.6 20.9 15.7
Urban/source list 36.6 27.4 9.2
Low income/qualified list 50.0 37.8 12.2
The defendants base their prima facie case upon these statistical disparities.*fn4
Defendants pursue their challenge to the jury selection process under both the Equal Protection Clause to the Fourteenth Amendment and the Sixth Amendment to the United States Constitution as well as under Article I, pars. 5, 9 of the New Jersey Constitution (1947). In order to show that an equal protection violation has occurred in the context of a county's jury selection procedure, defendant must show that the procedure employed resulted in a substantial under-representation of an identifiable group. The prima facie case consists of a showing that a recognizable, distinct class has been singled out for different treatment under the law by its substantial under-representation in the jury system. See Castaneda v. Partida, 430 U.S. 482, 484, 97 S. Ct. 1272, 1275, 51 L. Ed. 2d 498 (1977). Substantial under-representation is shown by a comparison of the proportion of the group in the total population to the proportion called to serve as jurors over a significant
period of time. Ibid. Implicit in the prima facie case of equal protection challenge is a showing of discriminatory intent. Duren v. Missouri, 439 U.S. 357, 368, n. 26, 99 S. Ct. 664, 670, n. 26, 58 L. Ed. 2d 579 (1979). The statistical showing of a substantial under-representation for a significant period of time raises a presumption of discrimination. Once defendant has shown substantial under-representation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the state to rebut that case. Castaneda, 430 U.S. at 495, 97 S. Ct. at 1280.
In order to show that a Sixth Amendment fair cross-section violation has occurred, defendant must demonstrate:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which the juries are selected is not fair and reasonable in relation to the number of persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process. [ Duren v. Missouri, supra, 439 U.S. at 364, 99 S. Ct. at 668.]
A Sixth Amendment challenge differs from a Fourteenth Amendment challenge in that the challenger need not prove purposeful or intentional discrimination. The Sixth Amendment challenge focuses upon the impact the jury selection system has on any particular cognizable group. Id. at 368, n. 26, 99 S. Ct. at 670, n. 26. The prima facie case may only be overcome by a showing "that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury selection process . . . that result in the disproportionate exclusion of a select group." Id. at 367, 99 S. Ct. at 670. Although defendants claim their position is supported by an analysis under the Sixth Amendment, the Fourteenth Amendment, or state constitutional grounds, the thrust of their argument is directed toward a Sixth Amendment analysis of the Essex County jury selection system.
D. THE SIXTH AMENDMENT CHALLENGE.
Defendants have failed to show that Newark residents, young people, students and individuals characterized as having low income are distinctive groups in the community for the purposes of a Sixth Amendment cross-section challenge. Proof of a cognizable group, like the other prongs of the prima facie case, is a question of fact which must be affirmatively proven by the moving party. Hernandez v. Texas, 347 U.S. 475, 478, 74 S. Ct. 667, 670, 98 L. Ed. 866 (1954). To establish the existence of a "distinctive" or "cognizable" group, it is necessary to prove the following:
(1) The presence of some quality or attribute which 'defines and limits' the group; (2) a cohesiveness of 'attitudes or ideas or experience' which distinguishes the group from the general social milieu; and (3) a 'community of interest' which may not be represented by other segments of society. [ State v. Porro, 152 N.J. Super. 259, 267 (Law Div.1977), aff'd 158 N.J. Super. 269 (App.Div.1978), cert. den. 439 ...