The Atlantic County grand jury indicted defendant Ronald E. Long for murder, armed robbery and related weapons offenses. The State seeks the death penalty. Defendant Long filed a motion challenging the constitutionality of the array of both the grand and petit juries. The court ordered:
(1) an evidentiary hearing, and stayed the trial pending the outcome of the jury challenge. A flurry of similar motions ensued on behalf of other defendants, including some charged with capital murder. The court then:
(2) consolidated all motions in all cases with the Long challenge;
(3) stayed the trials in all cases in which such motions were made;
(4) specifically allowed the Long grand jury challenge to proceed even though out of time;
(5) did not decide whether the challenge to the petit jury was out of time;
(6) barred the dismissal of any challenge motion in any of the cases on the ground that the motion was made out of time.
The State moved for leave to file an interlocutory appeal. The Appellate Division granted the application and heard the appeal, but permitted the trial court to proceed similtaneously with the evidentiary hearing. The Appellate Division rendered its opinion on December 20, 1984. In the interim, the evidentiary hearing below proceeded and final oral arguments in the trial court were scheduled for December 21, 1984.
The Appellate Division affirmed the trial court's order:
(1) granting discovery, an evidentiary hearing, and the stay of the Long trial;
(2) consolidating all challenge motions;
(3) staying the consolidated cases;
(4) and (5) permitting the defendant to attack the composition of the grand and petit jury array out of time;
(6) the Appellate Division reversed the order that barred dismissal of any other challenge to the array because it was made out of time. This last decision left open the trial court's ability to determine, case-by-case, whether dismissal based on timeliness is appropriate.
The challenge to the array began alleging constitutional infirmity by virtue of systematic exclusion of a cognizable class. During preparation for the evidentiary hearing, the defense detected a potential violation of the statutes governing the jury process. Unusual patterns in the names of persons selected to serve surfaced creating suspicion that the selection process did not conform to the statutory mandate. Strategies were adjusted, and the suspected vulnerable link became the focus of the assault.
The attack was simple, direct and to the point. The statutory scheme, letter and spirit, require a random selection of jurors resulting in jury lists that represent a true cross section of the community. Defendant asserts that: (1) random, in the juror selection context, means that all persons have an equal chance to be selected; and (2) the system employed in Atlantic County is not random and, therefore, in violation of the statutes.
He further asserts that the selection process is mandatory and therefore he need not demonstrate prejudice or any additional constitutionally defective consequence to invalidate the process by which jurors are chosen as well as the actions of juries constituted by the process. Therefore he need not demonstrate prejudice, or prove a constitutionally defective consequence to prevail. The relief sought is twofold: (1) the dismissal of the indictment, and (2) the invalidation of the juror selection procedure used by the Atlantic County Jury Commission.
Relying on that stance, defendant did not present any evidence designed to show exclusion of a cognizable class.
An understanding of the issues thus raised requires a detailed discussion of the juror selection process presently employed.
A. Compilation of the " Source List."
Once a year, the Atlantic County Data Processing Department receives a magnetic computer tape on which are listed all the licensed drivers who reside within the county and another magnetic computer tape on which are listed all those persons who reside within the county who are registered to vote. These tapes are then run through a "match-merge" program to produce a source list, that is, a magnetic computer disc on which are listed, hopefully once, alphabetically, each person who resides within the county who is either a licensed driver or a registered voter or both.
The Atlantic County source list contains approximately 180,000 names. According to the 1980 census, there are 130,000 people in Atlantic County between the ages of 18 and 74.
B. Compilation of the " Master List."
The clerk to the jury commission calculates how many jurors, both grand and petit, will be required during the upcoming session. The jury commission clerk divides that number into the total number of names contained on the source list to derive the "interval number" for the compilation of the "master list" of persons to whom juror questionnaires will be sent.
The jury manager calculates how many persons should be sent juror questionnaires by examining past "yields," that is, the percentage of those called or queried who are not exempt, excused or disqualified. The accepted rule of thumb in Atlantic
County is that the number of persons to whom questionnaires should be sent is four-times larger than the number of persons required to serve.
The jury commission clerk advises the data processing department of the number of questionnaires to be sent and the interval number.
At the data processing department, the computer uses the interval number to make selections from the source list. The same number is used as the starting number. Succeeding selections are made at those positions which are equal to twice the interval number, three times the interval number, etc., until one complete run through the source list has been accomplished.
If the initial run through the source list does not yield a sufficient number of names, succeeding runs through the source list are made until a sufficient number of names has been compiled. In succeeding runs through the source list, the computer adds a different constant to the interval number and the first selection for that run is made at that position. Succeeding selections are made by adding twice the interval number, three times the interval number, etc., to the position at which the first selection for that run was made.
The added constant for a second run through the source list is 39; for a third run, 41; for a fourth run, 43; and for a fifth run, 49.
To illustrate the process described above, assume that the source list contains 180,000 names and that 3,000 jurors are required. The starting and interval number for the compilation of the master list would be calculated by the equation 180,000/3,000 = 60. The number of questionnaires to be sent is determined by the equation, 4 (each 4 questionnaires yields 1 juror) X 3,000 (the number of jurors needed) and would therefore be 12,000. In this hypothetical situation, the number 60, as the starting and interval number, and the number 12,000, as the number of names to be selected, would be sent to the county data processing department.
At the data processing department, the computer would make selections from the 180,000 name source list in the following manner until 12,000 selections were made:
First run: positions 60, 120, 180, 240, 300, ...