[213 NJSuper Page 223] Defendant, David Mark Russo was indicted on 18 counts of criminal offenses including murder (death penalty), weapons and other related offenses. He brings this motion seeking dismissal of the indictment based upon the claim that he was
indicted by a grand jury which was unlawfully and unconstitutionally selected. He further requests the entry of an order staying his jury trial or re-indictment until the appropriate defects are cured. Defendant alleges four separate defects in the Gloucester County jury selection process which he claims entitles him to the requested relief: (1) there exists a substantial underrepresentation of blacks in the qualified jury pool; (2) the statutorily mandated use of driver license lists has been abrogated as to 24.3% of the eligible jury population of the county; (3) the voter and driver lists are merged with a computer program that fails to eliminate obvious duplicates; and (4) the grand jury was improperly empaneled.
Evidentiary hearings were held on April 1, 2 and 7, 1986. The prosecution opposed point (1) of defendant's allegations but offered no opposition to points (2), (3) and (4). The court stayed the trial date of April 15, 1986 and reserved oral decision on all issues in order to submit a written opinion.
Selection Procedure in Gloucester County.
Jurors in Gloucester 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 zip code 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 determined 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 total 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 four years or has received a qualification questionnaire in the past three years is
excluded from the selection process. The computer also keeps a record of persons who are designated permanently or temporarily ineligible to serve by the jury commission.
The questionnaires are mailed to the prospective jurors who should complete and return them to the jury commission office where they are screened for eligibility. All those deemed eligible are re-entered into the computer. The random number generator 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 as petit jurors. The jurors on the lists of grand and petit jurors are then given random numbers and are arranged which consists of placing 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 conforms to the order of the assignment judge. Each panel is divided into subpanels consisting of 50 jurors listed alphabetically. The grand jury qualified list is divided into panels but these panels are left in random sequential order.
Defendant claims that an underrepresentation of constitutional proportions is revealed when the number of blacks, ages 18 to 74, in the population of Gloucester County is compared with the number of blacks in the qualified jury pool. Defendant conducted a telephone survey of 363 members of the qualified jury pool for the February 1985 mailing period and found that 4.63% of the pool consisted of blacks.*fn1 This figure was compared to census bureau statistics for Gloucester County which determined that blacks, ages 18 to 74, constituted 8.58% of the
population. It is this disparity that forms the basis for defendant's claim of underrepresentation of blacks in the qualified jury pool. Before addressing the merits of this claim, a brief discussion of defendant's other allegations follows.
In point (2) defendant asserts that the statutorily mandated use of driver license lists has been abrogated as to 24.3% of the eligible jury population of Gloucester County. Specifically, the names of Gloucester County licensed drivers residing in zip codes 08012, 08020, 08032, 08081, 08094, 08343, 08344 and 08360 are omitted from the driver list that is merged into the source list, as mandated by N.J.S.A. 2A:70-4. People residing in these zip-code areas who are licensed drivers but not registered voters will not be included on the jury source list and will be excluded from jury service. The reason for the exclusion of these zip codes is that all of them, except 08020, contain names of persons who do not reside in Gloucester County.*fn2 Before these zip codes were removed, a great deal of time and money was expended in mailing, receiving and sorting questionnaires to and from persons who did not reside in Gloucester County. Though the decision to remove these zip codes was made in good faith and based on cost-benefit analysis, it was not in compliance with N.J.S.A. 2A:70-4 and must be corrected.*fn3 See State v. Wagner, 180 N.J. Super. 564, 567-568 (App.Div.1981).
The failure to include licensed drivers in all zip-code areas assigned to residents of Gloucester County decreased or eliminated the opportunity of those affected residents to be included in the jury source list. Conversely, such failure improperly increased the opportunity of those otherwise eligible residents of this county to be included in the jury source list by virtue of the fact that their names were registered on both voter and
driver license lists. The grand jury and petit jury panels so drawn were improperly empaneled and the system must be corrected, immediately, to include in the jury source list those persons enumerated by N.J.S.A. 2A:70-4.
In the legislative statement appended to L. 1979, c. 271 the Assembly Judiciary, Law, Public Safety and Defense Committee provided:
Juries chosen from a representative community sample are a fundamental component in our system of justice. However, the limitations on sources which jury commissioners may use in compiling prospective jury lists and the reluctance of citizens to serve on juries because of the financial sacrifice involved have greatly hampered the justice system's ability to get juries which truly reflect community standards. The purpose of this bill is to improve this situation by requiring the jury commissioners to select jurors from a single list composed of all registered voters and all holders of motor vehicle drivers licenses in the county.
Defendant suggests that additional areas may be utilized in order to supplement the jury source list; however, it is apparent that the law makers were concerned with enabling jury commissioners to provide juries chosen from a representative community sample, and they were also aware of the limitations on sources to be utilized in compiling jury source lists which truly reflect community standards. They mandated that only two lists shall be so utilized. The statute is mandatory, not discretionary. The law is clear and we are bound to comply. Only legislative action can modify or amend the statute to include other sources to supplement the jury source list. Compliance with the statute is ordered.
In point (3) defendant attacks the procedure that is used to merge the voter and driver lists into the jury source list. The computer program that is utilized for this task only eliminates exact duplicates and fails to eliminate other obvious duplicates. This affects the randomness of the jury selection
process. For example, if an individual in Gloucester County records his name as William J. Legal for the purpose of driver license registration and as William Legal for the purpose of voter registration, when these lists are merged, this obvious duplication will not be recognized and his name will appear twice on the jury source list. Similarly, if an individual records one name with two different addresses (one as a licensed driver and one as a registered voter) duplication will occur. Under these facts, Mr. Legal has twice the chance of being selected for jury service as an individual who is listed only once on the source list. As previously stated, 24.3% of the eligible jurors of the county will not find their names on the driver license list that is merged into the source list; therefore, duplications on the source list of residents in these zip codes are virtually non-existent (1.1% duplication rate), while duplications in the rest of the county are much more prevalent (12.2% duplication rate). The net result is that individuals residing in these zip code areas are less likely to be summoned as jurors as compared to the rest of the county. This defect has a negative impact on the randomness of the jury selection process and must be corrected. See State v. Wagner, supra.
In point (4), defendant asserts that the assignment judge failed to comply with the statutory requirements when selecting the foreperson and deputy foreperson for the grand jury. The assignment judge examined the questionnaires of all grand jury panel members present, then first selected the foreperson and deputy foreperson; the remaining members of the panel were then randomly selected. The assignment judge and his predecessors employed this procedure in good faith, in compliance with the spirit of the law and with the intention of selecting from the entire panel, the most qualified foreperson and deputy foreperson to serve on the grand jury; however, it is a matter which requires adjustment. N.J.S.A. 2A:73-1 and R. 3:6-4 mandate that the grand jury of 23 be randomly selected first, then the foreperson and deputy foreperson to be
selected from among the total of 23 members. The statutory mandate has been ...