Mattie Lee Bryant v. Louie L. Wainwright, Secretary, Florida Department of Corrections ( 1982 )

HENDERSON, Circuit Judge:

The appellant, Mattie Lee Bryant, is a black woman who was indicted by a Palm Beach County, Florida, grand jury for first degree murder in 1978. Prior to trial, she moved to dismiss the indictment claiming race discrimination in the selection of grand jury venires, and race and sex discrimination in the selection of grand jury forepersons, both in violation of the Equal Protection Clause of the fourteenth amendment. The motion was denied after an evidentiary hearing. She then pled nolo contendere to a lesser offense, but reserved the right to appeal the denial of her motion. After exhausting available state remedies, she filed this habeas corpus petition in the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 2254. The district court concluded that the appellant failed to establish a prima facie case of discrimination and denied the petition. For the following reasons, we affirm.

The three essentials for establishing a prima facie case of discrimination under the fourteenth amendment are the same whether it concerns discrimination in the selection of grand jury venires or discrimination in the selection of grand jury forepersons.¹ First, the group allegedly discriminated against must be one that is a distinct class in society. Second, the group must be substantially underrepresented in the grand jury venires, or the office of grand jury foreperson, over a significant period of time. Third, the defendant must show that the selection procedure is not racially neutral or is susceptible to abuse as a tool of discrimination. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). It is not necessary to examine fully the first requirement of this test in this instance since blacks and women have long been recognized as distinct groups in our society. See Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We find, however, as did the district court, that the appellant failed to satisfy the second element of the prima facie test for either of her claims. She did not establish substantial underrepresentation of blacks in grand jury venires, or women and blacks in the office of grand jury foreperson, over a significant period of time.

This second requirement, also known as the “rule of exclusion,” employs statistical comparisons to demonstrate underrepresentation of a particular group. “If a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process.” Castaneda v. Partida, 430 U.S. at 494 n.13, 97 S.Ct. at 1280 n.13. The “rule of exclusion” also requires that the statistical underrepresentation must have occurred over a significant period of time. This also works to eliminate chance or inadvertence as a cause of underrepresentation. Rose v. Mitchell, 443 U.S. at 570, 99 S.Ct. at 3007. There is not, however, a magic formula which can be applied to every factual situation in resolving the question of discrimination. Exact mathematical standards have never been developed, nor should they be. Such a mechanical approach would be too rigid for the wide variety of circumstances and unique factual patterns of discrimination cases arising under the Equal Protection Clause. See Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). As a result, courts have addressed each case on an individual basis.

Most courts, however, have adopted a single method for evaluating a defendant’s statistical evidence.² A determination is made first of the percentage of the relevant general population composed of the particular group or class allegedly singled out for discriminatory treatment. A similar finding must then be made of the percentage of the same group or class represented in grand jury venires or the office of grand jury foreperson. Finally, the two figures are compared, and if the result reveals a significantly large disparity, then there arises a presumption of discrimination. For example, in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), the evidence established that in 1968 sixty percent of Taliaferro County, Georgia, was black, although the same class represented only thirty-seven percent of the grand jury. The Court had no difficulty in concluding that a disparity of twenty-three percentage points in any given year was too large to be explained by any reason other than discrimination. Turner v. Fouche, 396 U.S. at 359, 90 S.Ct. at 539. Likewise, in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), there was a significant disparity of over thirty points in the percentage of blacks in the general population of Mitchell County, Georgia, and the percentage of blacks on the county’s grand and petit jury venires. In contrast, in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), a difference of only ten percentage points was not sufficient to establish a prima facie case of discrimination. These cases serve only as general guidelines, since, as we noted earlier, there is no magic number which can control a court’s resolution. We cannot hold that any disparity over fifteen percentage points is always too great, and any disparity under twelve percentage points is always permissible. In cases where the statistical difference is arguably substantial, a court must look beyond the figures to other criteria such as the number of years involved, the size of the sampling, and the number of the class in the general population. A disparity of fifteen percentage points is much greater in a case where the class or group represents only twenty percent of the general population, than where the class or group represents seventy percent of the population. Similarly, a disparity of fifteen percentage points is much more significant if it has continued for ten years, than if it has occurred in only one isolated year. The magnitude of a disparity may also depend on whether the statistics are based on one grand jury venire of thirty people, or on dozens of grand jury venires representing thousands of people. See Rose v. Mitchell, 443 U.S. at 571, 99 S.Ct. at 3007.

The third factor of the prima facie test, establishment that the selection process is susceptible to abuse, can also affect the gravity of the disparity. A selection process which can be easily maneuvered in a discriminatory fashion is more likely to give rise to a presumption of discrimination than a selection process which would be difficult, but not impossible, to manipulate. Thus, in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), the. Court held that a disparity of only fourteen percentage points supported a prima facie case of discrimination, but emphasized the ease with which jury commissioners could have used their procedures for discrimination. The goal of this entire balancing process is, of course, to eliminate chance or inadvertence as a cause of the disparity; the statistical evidence must convince the court that discrimination is the only reasonable explanation.

In the present case, the appellant claims that blacks were systematically excluded from serving on grand juries in Palm Beach County between 1974 and 1978. The evidence, however, does not establish a prima facie case. The percentage of blacks in the general population of Palm Beach County during this period varied slightly from 14.3% in 1974 to 13.4% in 1978, for an average of 13.7%. Blacks composed an average of 6.3% of all grand jurors during this five-year time span, ranging from a high of 10.4% in 1975 to a low of 3% in 1978. Thus, the average variance for the period was only 7.4 percentage points. The largest deviation in any given year was 10.4 percentage points in 1978, and the lowest was 3.6 percentage points in 1975.³

These figures alone tend to dispel the appellant’s contention since they are similar to the percentages held permissible in Swain v. Alabama. Nonetheless, our decision on this issue does not rest solely upon the numbers. If these same figures were combined with an easily manipulative selection procedure, we might reach a different conclusion. We find, however, that the selection methods employed by Palm Beach County officials for choosing grand jurors during the period under investigation was essentially neutral. In each of the five years, the secretary to the jury commission maintained an individual card file for every registered voter in the county. These cards were filed by precinct and composed the entire pool from which grand jury venires were drawn. The cards contained various information with respect to each person’s address and age, but no reference to race. Once a year, a jury commissioner constituted a grand jury venire by randomly pulling a specified number of cards from each precinct depending on its size. The only cards rejected were those people who had recently served jury duty. Once selected, the cards were then given to the secretary who typed an individual’s name and address onto a separate strip of paper. All these strips were then placed into a locked jury box and withdrawn by a state judge only as a need arose for a grand jury. The secretary testified that she has never witnessed an irregularity with regard to this entire process. Indeed, there appears to be little opportunity for discrimination within such a system. This case bears no similarity to Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), where the letter C appeared after the name of each black on a jury source list, or to Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), where an individual’s ethnic background was usually identifiable by his surname.

The existing disparities in this case appear to be the result of the use of voter registration lists as a jury source pool, and not because of covert, intentionally discriminatory acts. Only eight percent of the registered voters in Palm Beach County are black, in contrast to a population of fourteen percent black. The appellant vigorously argues that the use of voter registration lists as a source for grand and petit jury venires is, in itself, a tool of discrimination in this case. We disagree. Voter registration lists commonly provide the basis for grand and petit jury lists. This practice is approved by statute in the federal system. 28 U.S.C. § 1863(b)(2). Likewise, section 40.01(1) of the Florida Statutes requires that all state jurors be fully qualified electors. We have previously upheld its constitutionality.⁴ Reed v. Wainwright, 587 F.2d 260 (5th Cir. 1979). Accordingly, we conclude that the appellant failed to prove a prima facie ease of discrimination in the selection of grand jurors in Palm Beach County.

The appellant also maintains that blacks and women were discriminatorily excluded from serving as grand jury forepersons in Palm Beach County. She originally attempted to support a prima facie case based on statistics covering the years 1973 through 1978, but during oral argument her attorney conceded that complete statistical evidence as required by Rose v. Mitchell, 443 U.S. at 570, 99 S.Ct. at 3007, was not gathered for 1973 and 1974. She now contends that a prima facie case of discrimination was realized from statistics covering only a three and one-half year period from 1975 through 1978. During those years, ten grand juries were impaneled in Palm Beach County, and each time the presiding judge selected a white male as foreperson.⁵

We have little difficulty in concluding that these statistics do not establish a prima facie case of discrimination against blacks. In a county where the population is only fourteen percent black, the statistical probability is that only one black would have been chosen as one of the ten forepersons. We cannot presume discrimination when so small an expectancy is not realized. These facts bear little similarity to United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir. 1982), where 50 forepersons, only one of them black, were appointed over a five-year period in a community which was sixteen percent black. In that case, eight black forepersons was the expected number, in contrast to the one black foreperson actually designated. Also, in Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981) (en banc), no blacks held the office of foreperson out of thirty-one persons selected over a fifteen-year period, although the population of the county was sixty percent black. The statistical disparities in these cases were large enough to satisfy the second requirement of a prima facie case of discrimination under the fourteenth amendment. The same is not true in the appellant’s case.

The appellant’s claim of discrimination against women in the selection of grand jury forepersons is based on more disparate statistics. The record indicates that women represented approximately fifty-four percent of Palm Beach County’s adult population during the years under investigation, although ten men were successively chosen as grand jury forepersons.⁶ Nevertheless, we find that the appellant still failed to present a prima facie case of discrimination. A test sample of only ten selections from a brief three and one-half year period simply is not sufficiently large to allow a meaningful statistical comparison. The sample must be large enough to convince a court that any disparity is not due to chance or inadvertence. Rose v. Mitchell, 443 U.S. at 571, 99 S.Ct. at 3007. Castaneda v. Partida, 430 U.S. at 494 n.13, 97 S.Ct. 1280 n.13. Obviously, we are faced with another line-drawing problem. No one would deny that two foreperson selections are not an adequate basis on which to compute reliable statistics necessary for a presumption of race or sex discrimination in any community. By the same token, a sample of twenty-five or thirty foreperson appointments would be sufficient in almost all cases. We refuse, though, to draw an inflexible line somewhere between two and thirty. We conclude only that ten is not enough in this case. Therefore, the appellant did not provide sufficient statistical evidence necessary to demonstrate a prima facie case of discrimination against women in the selection of Palm Beach County grand jury forepersons.

For the above reasons, the district court did not err in denying the appellant’s petition for a writ of habeas corpus.

AFFIRMED.

1 . Cases challenging the appointment of a grand jury foreperson are relatively new to federal courts. Three years ago the Supreme Court assumed without deciding that “discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire jury venire.” Rose v. Mitchell, 443 U.S. 545, 551 n.4, 99 S.Ct. 2993, 2997 n.4, 61 L.Ed.2d 739 (1979). The same assumption was made in Williams v. State of Mississippi, 608 F.2d 1021 (5th Cir. 1979). The judges of this court have now adopted that assumption as law: “If convictions must be set aside because of taint of the grand jury, we see no reason to differentiate the result because discrimination affected only the foreman.” Guice v. Fortenberry, 661 F.2d 496, 499 (5th Cir. 1981) (en banc). For a full discussion of a defendant’s rights respecting the grand jury foreperson, see United States v. Perez-Hernandez, 672 F.2d 1380 (11th Cir. 1982).

2 . There are several other formulas which have been utilized by various courts at one time or another. See generally Kairys, Jury Representativeness: A Mandate for Multiple Source Lists, 65 Cal.L.Rev. 776 (1977).

3 . The following chart details the exact figures:

% of % of

population grand jurors

who are who are

black black Disparity

10.4 1978 13.4 3.0

5.7 1977 13.4 7.7

7.4 1976 13.5 6.1

%of %of

population grand jurors

who are who are

black black Disparity

1975 14.0 10.4 3.6

1974 14.3 4.3 10.0

13.7 6.3 7.4 Average

4 . Of course, if the use of voter registration lists as the origin for jury venires were to result in a sizeable underrepresentation of a particular class or group on the jury venires, then this could constitute a violation of a defendant’s “fair cross-section” rights under the sixth amendment. The statistical comparisons in this case, however, do not establish a sixth amendment violation. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

5 . A grand jury foreperson in the Florida system is selected and appointed by the presiding circuit judge from the grand jury panel after it has been installed. Fla.Stat.Ann. § 905.08 (West). The record in this case is silent as to how many judges were involved in the selection process for these years. Nor does the record disclose the duties of a grand jury foreperson in Palm Beach County, although their statutory responsibilities appear to be only ministerial and relatively unimportant. See Fla.Stat.Ann. §§ 905.-13, 905.15, 905.195, 905.22 (West), and Fla.R. Crim.Proc. 3.140(f).

6 . The magistrate found there was no evidence of the percentage of women in the general population of Palm Beach County. Indeed, the record originally before this court did not contain such information. However, the census figures and other population studies were introduced in the state court hearing. For some yet unexplained reason, this portion of the state court record was not a part of the record on appeal, but was later transmitted to the clerk of the court by the Florida Attorney General’s office. Both parties to this appeal referred to this missing material in their arguments. Since both parties assumed that their exhibits were before the district court, we consider the evidence contained therein.