On appeal from Superior Court, Law Division, Mercer County.
Pressler, Landau and Lowengrub. The opinion of the court was delivered by Lowengrub, J.s.c., t/a.
The State of New Jersey, Division of Criminal Justice, appeals, on leave granted, from an order of the Law Division which authorizes the mailing of a questionnaire on the court's stationery to each of the 575 members of State Grand Juries 171-195, requesting recipients to identify their race and ethnic background. Defendants reason they require the data as an intermediate step in gathering facts necessary to prove their entitlement to an evidentiary hearing to challenge the selection process of state grand juries. We affirm.
The indictment against defendants by State Grand Jury panel 195 charged them with unlawful disposal of hazardous substance into the environment. On March 11, 1988, defendants filed a notice of motion for an order, inter alia, dismissing the indictment, staying the proceedings and granting discovery concerning the state grand jury selection system . On November 1, 1988 an order was entered permitting limited initial discovery with regard to defendant's proposed grand jury challenge subject to certain terms and conditions. However, the discovery order prohibited defendants from contacting "any past, present or anticipated individuals questioned or to be [240 NJSuper Page 514] questioned regarding or summoned for jury service." By motion dated April 28, 1989 defendants sought to expand the prior order to permit "limited direct or indirect contact with individuals who have served or been called for state grand jury service." Counsel's certification filed with the motion stated that in support of defendants' challenge to the composition of the state grand jury they have "focused upon the possible under representation of two cognizable groups from many panels, blacks and Hispanics." That certification was supplemented by a certification of Dr. John Lamberth*fn1 who prepared a preliminary analysis of the race and ethnic background of State Grand Juries 171-195 from information on hand. The results of the analysis produced by Dr. Lamberth were asserted to raise a reasonable suspicion that there is an underrepresentation of blacks and Hispanics in the jury pools. The statistical analysis Dr. Lamberth used was the geographic inference method.*fn2 Of the 575 individuals constituting the 21 state grand juries 450 or 78.3% of the total could be classified as to race and ethnic
background using the method described.*fn3 Of those classified, 97.56% were white and 2.44% were black. Dr. Lamberth asserted that the State of New Jersey has a population of individuals 18-74 years old that is 11.37% black. The disparity between the black population and the percentage of black people serving on the State Grand Juries yielded an absolute disparity of 8.93% and a comparative disparity of 78.54%. The absolute disparity is the difference arrived at by subtracting the percentage of the number of black people on State Grand Juries, 2.44%, from the black population of the State, 11.37%. The comparative disparity is calculated by dividing the absolute disparity, 8.93%, by the black population of the State, 11.37%.
Of the 575 people serving on State Grand Juries 171-195, 17 or 2.96% were Hispanic. Counsel stated that comparing the Hispanic population of the State to the percentage of Hispanic people serving on State Grand Juries yielded an absolute disparity of 2.99% and a comparative disparity of 50.25%. Therefore, counsel postulates that if the data used is accurate there is a prima facia case of discrimination in the selection of state grand juries. Defendants, however, claim to require accurate information of the race and ethnic background of the jurors who served on the 25 State Grand Juries, Nos. 171-195 to authenticate the accuracy of their preliminary findings. Based on the results found by Dr. Lamberth, the motion judge found "it is extremely unlikely that . . . a full challenge could be presented" without information as to the actual race and ethnic background of the state grand jurors. He found there was reasonable cause to believe there may be a defect in the procedure leading to the impaneling of the grand jury, See, Rojas v. State, 288 So.2d 234 (Sup.Ct.Fla.1973), and that defendants
had established a sufficient predicate to entitle them to the data they requested.
Judge Lenox then issued an order supplementing the prior discovery order and permitted a questionnaire on his stationery to be mailed to the 575 people who constituted State Grand Juries 171-195. The respondent was to return the questionnaire to the court in the envelope provided. The questionnaire consists of two questions:
We have stayed the mailing of the questionnaire pending our determination of this appeal.
Defendants claim they have a right to information concerning the race and ethnic background of each of the 575 grand jurors predicated upon both federal and state constitutional precepts, viz., that the grand jurors were selected in a manner that is not violative of defendants' due process and equal protection rights, and that the grand jurors were drawn impartially from cross-sections of the community. State v. Ramseur, 106 N.J. 123, 214, 524 A.2d 188 (1987); State v. Rochester, 54 N.J. 85, 88, 253 A.2d 474 (1969), citing 28 U.S.C.A. § 1861; State v. Porro, 158 N.J. Super. 269, 272, 385 A.2d 1258 (App.Div.1978). Defendants further assert that unless they are provided with information which identifies the race and ethnic ...