Barber v. Ponte

Before: Campbell, Chief Judge, Coffin, Bownes, Breyer and Torruella, Circuit Judges.

TORRUELLA, Circuit Judge

This matter is before us for review en banc of our decision in Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985) wherein we reaffirmed the holding of this circuit, first espoused in United States v. Butera, 420 F.2d 564 (1st Cir. 1970), to the effect that "young adults" (ages 18-34) constitute a sufficiently cohesive group to be cognizable in determining whether they are adequately represented within the jury venires for sixth amendment purposes. Upon further consideration we reverse our prior ruling in this case and overrule our holding in Butera and its progeny.1

We need only a brief restatement of the most relevant facts, which were otherwise adequately covered in our earlier opinion. At his trial before the Superior Court of Massachusetts, appellant challenged the composition of the venires from which was chosen the jury that tried and convicted him. As indicated, his challenge was based on his contention that persons between the ages of 18 to 34, his definition of "young adults," were under-represented in the venires. He supported this allegation by presenting in evidence a study2 that statistically establishes a substantial disparity in the traverse jurors in the 18 to 34 age group as compared with the general population encompassing this age group. Appellant presented no other evidence before the state trial court on this issue. This challenge was denied at all state court levels, as well as by the district court in a petition for relief under 28 U.S.C. § 2254.

Apparently appellant was under the misapprehension, as he has been throughout this appeal, that the establishment of mere statistical disparity in the chosen age group is sufficient to establish a prima facie violation under the sixth amendment. It is beyond argument, however, that the first step in such a claim is the demarcation of a "distinctive" group. Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979); Taylor v. Louisiana, 419 U.S. 522, 530, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). This requires: (1) that the group be defined and limited by some clearly identifiable factor (for example, sex or race), (2) that a common thread or basic similarity in attitude, ideas, or experience run through the group, and (3) that there be a community of interest among the members of the group, such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process. See Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir. 1983), cert. denied, 467 U.S. 1256, 104 S. Ct. 3546, 82 L. Ed. 2d 849 (1984). The reason for these requirements is readily apparent. In choosing a jury we are looking not merely for a statistical mirror of arbitrary segments of the population's composition. The goal that we seek is that the jury generally represent the attitudes, values, ideas and experience of the eligible citizens that compose the community where the trial is taking place.

The Supreme Court has never gone so far as to hold that the constitution requires venires to be, statistically, a substantially true mirror of the community. See Duren v. Missouri, supra ; Taylor v. Louisiana, supra ; Fay v. New York, 332 U.S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947); United States v. Blair, 493 F. Supp. 398 (D. Md. 1980), aff'd, 665 F.2d 500 (4th Cir. 1981). While courts often speak in terms of "fair cross section," they have realized that practical reasons, as well as the sterility of such an endeavor, militate against total realization of this ideal. United States v. Hafen, 726 F.2d 21 (1st Cir. 1984), cert. denied, 466 U.S. 962, 104 S. Ct. 2179, 80 L. Ed. 2d 561 (1984); United States v. Gregory, 730 F.2d 692 (11th Cir. 1984), reh'g denied, 740 F.2d 979 (1984); United States v. Lopez, 588 F.2d 450 (5th Cir. 1979), reh'g denied, 591 F.2d 102 (1979), cert. denied, 442 U.S. 947, 99 S. Ct. 2895, 61 L. Ed. 2d 319 (1980), reh'g denied, 444 U.S. 888, 100 S. Ct. 188, 62 L. Ed. 2d 122 (1980). Some people are simply less available than others to serve as jurors, such as highly mobile people, with few local contacts like college students or traveling salesman; people tied to jobs that are traditionally considered essential to the welfare of the community like firemen, police officers, physicians; and people with social or physical impairments like alcoholics, the hearing impaired, or individuals not versant in the English language. Because a true cross section is practically unobtainable, courts have tended to allow a fair degree of leeway in designating jurors so long as the state or community does not actively prevent people from serving or actively discriminate, and so long as the system is reasonably open to all. United States v. Hafen, supra ; United States v. Gregory, supra ; United States v. Lopez, supra ; Hansen v. United States, 393 F.2d 763 (8th Cir. 1968), cert. denied, 393 U.S. 833, 89 S. Ct. 103, 21 L. Ed. 2d 103 (1969). Strict statistical analysis has been used only in situations where special groups that have been discriminated against are involved. Duren v. Missouri, supra ; Taylor v. Louisiana, supra.

Only if we test the goal of communal attitudinal representation against groups that can be identified through principled criteria can we adequately conclude whether the goal has been met. Furthermore, only if principled criteria are established, can appropriate guidance be given to courts and administrators to allow them to determine, in the future, not only whether the goal has been achieved, but also the composition of other groups that litigants may wish to challenge.

In the present case there is simply no evidence in the record for determining that people between the ages of 18 and 34 (as opposed to some other ages) belong to a particular group. The essence of a distinctive group is that its members share specific common characteristics. Yet, what can we identify as the common characteristics of people in an age group that spans a sixteen-year gap, covering such dynamic years in a person's life as those that are encompassed between the ages of 18 to 34? To be sure, they are all younger than people over 34. But what is the evidence that the attitudes and thinking of, say, 30 year olds have more in common with 18 year olds than they do with 40 year olds, or for that matter, going to the other end of the scale, that 18 years olds have more in common with 28 year olds than with 16 year olds? How do we know that there should not be two groups, 18 to 28 and 28 to 35, or three, or four groups encompassing other boundaries?

The only way to establish the present group, particularly in view of the absence of any scientific or expert evidence in this record, is by arbitrary fiat superimposed on intuition. Even assuming we can be flatly arbitrary, we cannot seriously say that a grouping whose contours are rationally unsupportable is "distinctive." Is not a "distinctive" group, by definition, one whose membership is reasonably set apart from others by clear lines of demarcation?3 See United States v. Potter, 552 F.2d 901 (9th Cir. 1977).

Without much effort we can point to various significant social indicators that would seem to punctuate clear differences in the attitudes, values, ideas and experiences of 18 year olds vis-a-vis 34 year olds, to pick only the outer boundaries of appellant's "young adults" classification. Taking judicial notice4 of official statistics5 we can note meaningful contrasts in such social indicators as their marital and divorce rates,6 school enrollment7 and educational attainment,8 economic status,9 employment rate,10 criminality,11 experience in such matters as service in the armed forces in time of war or even in peacetime,12 mental health,13 attitude towards such important social issues as abortion,14 and participation in the political processes,15 and in the ownership of capital property.16 Such differences emphasize the inappropriateness of grouping potently dissimilar age categories, if we are to do other than pay mere lip service to the teachings of Duren.

Of course, we can say, "It does not matter what the precise contours are -- disproportionality is bad whether the group is 18 to 28, 18 to 35, or 18 to 45." But if we establish this criteria without more, must we not also be prepared to let each complainant's attorney select his own age group, based solely upon the age boundaries that suit his purposes by showing the greatest statistical disparity, merely to gain tactical advantage rather than to meet constitutional standards? If we take this approach, then we are clearly doing something different from what the Supreme Court contemplated when it formulated the "distinctive group" concept in Duren. We are losing sight of the goal pursued, that of seeking attitudinal representativeness, and exchanging it for statistical bureaucracy. And as a corollary to all this, those charged with administrating the day-to-day workings of the jury system would have great difficulty in determining whether they have complied with the Constitution if they have to contend with such a fluid mark. What guidelines or criteria will they use to determine whether all "groups" are properly represented in the venires?

Implying that any important deviation from a statistical cross section is suspect is torturing the words "distinctive group" into a very different concept. The Duren court used the concept of "distinctive group" in a case where women were subjected to discrimination. It is fair to assume that the court wanted to give heightened scrutiny to groups needing special protection, not to all groups generally. There is nothing to indicate that it meant to take the further step of requiring jury venires to reflect mathematically precise cross sections of the communities from which they are selected. Yet if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from under-representation on jury venires. See, e.g., Hill v. Texas, 316 U.S. 400, 86 L. Ed. 1559, 62 S. Ct. 1159 (1942) (blacks); Duren v. Missouri, supra (women); United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 849, 59 L. Ed. 2d 41 (1979) (Indians).

That is not to say, however, that if a classification were specifically and systematically excluded from jury duty the same standard would be used as here, where defendant simply relies on a statistically disparity in the venires to challenge its constitutionality. If certain people are specifically and systematically excluded from jury duty, then the jury-administrating authority would have created its own group. Clearly, the state has no right to deliberately exclude specific classes or groups from juries without some very special reason. Thus, it may not forbid blue-collar workers, chess players, Masons, etc., from serving on juries. But if there are, as in the present case, mere statistical imbalances, unexplained, the problem is different. Statistical imbalances can be due to a host of factors -- younger people may be away at school, serving in the armed forces, surfing in Hawaii, etc. Unless one is prepared to say that there is an affirmative constitutional duty to produce a true cross section on the venire for every imaginable group that exists in our complex society, something which no court has even come close to holding, we should avoid the overwhelming problems and sterile solutions that will result from attempting to subdivide a continuum of ages into "distinctive groups."

Although the Supreme Court has not ruled upon whether age groups are "distinctive" enough for sixth amendment purposes (cf. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 decided July 1, 1985, in which the court indicated its declination "to extend heightened [equal protection] review to differential treatment based on age."), every circuit that has considered this issue, except the First, until now, has ruled against appellant's contention. See United States v. Potter, 552 F.2d 901, 905 (9th Cir. 1977); United States v. Olson, 473 F.2d 686, 688 (8th Cir.), cert. denied, 412 U.S. 905, 93 S. Ct. 2291, 36 L. Ed. 2d 970 (1973); United States v. Guzman, 337 F. Supp. 140, 145 (S.D.N.Y.), aff'd, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 35 L. Ed. 2d 602, 93 S. Ct. 1397 (1973); Brown v. Harris, 666 F.2d 782, 783-84 (2d Cir. 1981), cert. denied, 446 U.S. 948, 102 S. Ct. 2017, 72 L. Ed. 2d 472 (1982); United States v. Gast, 457 F.2d 141 (7th Cir.), cert. denied, 406 U.S. 969, 92 S. Ct. 2426, 32 L. Ed. 2d 668 (1972); Davis v. Greer, 675 F.2d 141, 146 (7th Cir.), cert. denied, 459 U.S. 975, 74 L. Ed. 2d 289, 103 S. Ct. 310 (1982); United States v. Di Tommaso, 405 F.2d 385, 391 (4th Cir. 1968), cert. denied, 394 U.S. 934, 89 S. Ct. 1209, 22 L. ed. 2d 465 (1969); Cox v. Montgomery, 718 F.2d 1036, 1038 (11th Cir. 1983); United States v. Test, 550 F.2d 577 (10th Cir. 1976). We are convinced not by the weight of their numbers but by that of the logic and policy they espouse. We thus join them.

Our earlier decision is vacated and the decision of the district court is affirmed. No costs.

BOWNES, Circuit Judge (dissenting). The list that was used to draw Barber's jury pool contained three items of information: names, addresses, and the dates of birth of potential jury candidates. The jury venires that were selected during a twenty-five-month period from October 1978 through October 1980 contained less than half of the young adults an age-blind selection process should have produced.1 The probability of this discrepancy occurring by chance is less than one in one hundred quadrillion.2 Nonetheless, the court finds that Barber's jury pool and venire contained a fair cross section of the community as required by the sixth amendment. In so finding, the majority holds that young adults 18-35 do not comprise a distinctive group within the community that must be included in the jury selection process although it also finds that such persons cannot be overtly excluded from it.

I believe that young adults between 18 and 35 do comprise a substantial and identifiable group that cannot be systematically excluded from jury pools. Where, as here, the jury pool selectors possessed specific age information on potential jury pool members they had the obvious opportunity to discriminate against jurors on the basis of age. I think it clear that the disparity between the number of young adults under 35 in the jury venires and the number of such young adults in the population is a result of systematic exclusion.

I

Young adults between 18 and 35 constitute both a large (37.82% of the population) and easily identifiable group (all that is needed are birthdates) in Norfolk County. It seems indisputable that an individual's response to nearly every facet of his or her life, including life goals and ambitions, health, personal relationships, family and death, evolve and change over the course of one's adult life. And, despite the fact that societal distinctions based on age are ubiquitous, affecting everything from insurance rates to availability for military service, eligibility for political office and media advertising campaigns, the majority believes this is inadequate justification for finding that adults 18-35 comprise a discernible group for jury selection purposes.

The majority decides that young adults between 18 and 35 are not a cognizable group for sixth amendment purposes because there are differences in attitudes, experiences, and ideas within the group and because petitioner has not shown that all young adults possess a community of interest different from persons 35 and older that would be inadequately represented if persons under 35 are excluded from the jury selection process. If this is a sound premise, it is unclear to me why the majority believes that young adults cannot be " actively " or " systematically " excluded. (See supra p. 10.) The holding that young adults are not a cognizable group and, therefore, need not be included in the jury pool to make it a reasonable cross section of the community, but cannot be overtly excluded is inherently contradictory. Indeed, if the conjunction of age information as to each potential venireman and the dramatic disproportionality of representation of young adults is not enough to prove systematic discrimination, at least as a prima facie matter, the majority's concession would seem to be reserved for the unlikely case in which there is smoking-gun evidence in the form of explicitly discriminatory statements.

I do not agree with the majority's attempt to distinguish this case from others in which the Supreme Court has taken judicial notice of cognizable groups. Diversity within a group and overlap of attitudes and experiences of group and nongroup members are as characteristic of groups the Supreme Court has repeatedly recognized to be cognizable as petitioner's young adult group. In Ballard v. United States, 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261 (1946), the Court found that women constituted a cognizable group despite the government's protestations that women do not act as a class or have common attitudes, experiences and ideas. The Court stated:

It is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference.

Yet a flavor, a distinct quality is lost if either sex is excluded.

Id. at 193-94 (footnote omitted). In Peters v. Kiff, 407 U.S. 493, 503-04, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972), the Court reaffirmed this view:

When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented. [Footnote omitted.]

In addition to women and blacks, the Supreme Court has recognized the cognizability of Mexican-Americans (Hernandez v. Texas, 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667 (1954)), daily wage earners (Thiel v. Southern Pacific Co., 328 U.S. 217, 90 L. Ed. 1181, 66 S. Ct. 984 (1946)), and persons holding personal or religious scruples against capital punishment who are able to act impartially (Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968); accord Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844, 53 U.S.L.W. 4108, 4111 (1985)). Other circuit courts have recognized the cognizability of Indians (United States v. Brady, 579 F.2d 1121 (9th Cir. 1978), cert. denied, 439 U.S. 1074, 99 S. Ct. 849, 59 L. Ed. 2d 41 (1979)), and Jewish persons (United States v. Siragusa, 450 F.2d 592 (2d Cir. 1971), cert. denied, 405 U.S. 974, 92 S. Ct. 1195, 31 L. Ed. 2d 248 (1972)). All of these groups contain persons with a broad and diverse range of attitudes and experiences and many members of these cognizable groups undoubtedly share the attitudes and experiences of persons outside the group. To require a litigant to show that the members of a group are influenced by the same factors or cast their vote as a lot would make a mockery of the democratic values the jury system is designed to protect. It would require a litigant to stereotype and overgeneralize the attributes and experiences of a group in order for it to be recognized as one against which discrimination is unconstitutional. See Thiel v. Southern Pacific, 328 U.S. at 223-24.

The validity of a petitioner's challenge depends, of course, on his showing that a "substantial" group has been excluded. It may well be that narrow age spans would not constitute a large enough percentage of the population to be cognizable. Here, however, where petitioner has used an age span encompassing virtually all those who could be classified as young adults and a group is substantial enough to require inclusion in the process. The majority finds that the contours of the group of persons identified as young adults between 18 and 35, is too amorphous to have constitutional significance. But amorphousness is not confined to age groups. In what generation does a Mexican-American or Puerto Rican become simply a Texan or New Yorker and cease to be part of a cognizable group? Very few groups can be descriptively circumscribed by legal definitions. In Thiel the Supreme Court recognized what this court does not, that broad groups, even if not susceptible to precise definition, contribute to the fabric of our society and the vitality of our justice system and cannot be sifted out of the jury selection process. See 328 U.S. at 220.

The real basis of the court's opinion seems to be the majority's belief that adults between the ages of 18 and 35 do not constitute a "special group" worthy of heightened scrutiny. See supra (Slip Op.) at 9. In their bright-line fever to confine cognizability the majority compresses the sixth amendment cross-section requirement into the equal protection clause. This they do in face of the Supreme Court's long-standing and consistent position that the two are not congruent. See, e.g., Peters v. Kiff, 407 U.S. 493, 499-500, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972) ("even in 1880 the Court recognized that other constitutional values [besides the equal protection clause] were implicated"); Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), and Ballard v. United States, 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261 (finding women to be a cognizable class thirty and twenty-five years before the equal protection clause was found to require heightened scrutiny for women); Thiel v. Southern Pacific Co., 328 U.S. at 220 (identifying cognizable groups as including economic, social, religious, racial, political and geographic groups within a community). The Court has explicitly stated that enforcement of the sixth amendment cross-section requirement is not confined to enforcement of the equal protection clause.

The principle of the representative jury was first articulated by this Court as a requirement of equal protection, in cases vindicating the right of a Negro defendant to challenge the systematic exclusion of Negroes from his grand and petit juries. E.g., Smith v. Texas, 311 U.S. 128, 130, 85 L. Ed. 84, 61 S. Ct. 164 (1940). Subsequently, in the exercise of its supervisory power over federal courts, this Court extended the principle, to permit any defendant to challenge the arbitrary exclusion from jury service of his own or any other class. E.g., Glasser v. United States, 315 U.S. 60, 83-87, (62 S. Ct. 457, 86 L. Ed. 680) (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, (66 S. Ct. 984, 985, 90 L. Ed. 1181) (1946); Ballard v. United States, 329 U.S. 187, (67 S. Ct. 261, 91 L. Ed. 181) (1946). Finally it emerged as an aspect of the constitutional right to jury trial in Williams v. Florida, 399 U.S. 78, 100, (90 S. Ct. 1893, 1905, 26 L. Ed. 2d 446) (1970).

Peters v. Kiff, 407 U.S. at 500 n.9. In Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 24 L. Ed. 2d 549, 90 S. Ct. 518 (1970), the Supreme Court delineated the scope of the cross-section requirement:

The very idea of a jury [is] "a body truly representative of the community," composed of "the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." [Footnotes omitted.]

In Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457, a case involving discretion in the selection of women jurors prior to the application of heightened scrutiny for women under the equal protection clause, the Court spelled out the duties of jury selectors in meeting the cross-section requirement.

The duty of selection . . . must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a "body truly representative of the community," and not the organ of any special group or class. If that requirement is observed [the jury commissioners] . . . may exercise some discretion to the end that competent jurors may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community.

315 U.S. at 85-86.

While the Constitution does not require a defendant's jury to be a true mirror of the community, the Constitution does require that the venire reasonably reflect the composition of the community. Taylor v. Louisiana, 419 U.S. at 538; Carter v. Jury Commission, 396 U.S. at 339; Thiel v. Southern Pacific Co., 328 U.S. 217, 90 L. Ed. 1181, 66 S. Ct. 984 . The position taken by the court that the cross-section requirement of the sixth amendment requires only that "special groups" such as women and blacks not be systematically excluded is contrary to the principles embodied in the sixth amendment and articulated in Supreme Court precedent.

II

To avoid the logical result of their noncognizability finding--that young adults can be completely excluded from all jury pools and venires--the majority also breaks rank with established Supreme Court precedent on the issue of systematic exclusion. My colleagues state that petitioner's showing of a substantial disparity coupled with the opportunity for the selectors to discriminate is insufficient to show systematic exclusion, but had petitioner been able to show active discrimination (i.e., if a statute had specifically excluded young people or a jury selector had testified that he had excluded persons under 35) their conclusion would be different. See supra at 10. Here again, my colleagues focus only on the law of equal protection challenges to the exclusion of sixth amendment principles. Their finding that evidence of intentional discrimination is required is directly counter to the law the Court stated in Duren v. Missouri, 439 U.S. 357, 366, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979):

In order to establish a prima facie case, it was necessary for petitioner to show that the underrepresentation of women, generally and on his venire, was due to their systematic exclusion in the jury-selection process. Petitioner's proof met this requirement. His undisputed demonstration that a large discrepancy occurred not just occasionally, but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the underrepresentation was systematic--that is, inherent in the particular jury-selection process utilized.

If that statement can be considered equivocal, the Court's note two pages later cannot: "In contrast [to the equal protection cases], in Sixth Amendment fair-cross-section cases, systematic disproportion itself demonstrates an infringement of the defendant's interest in a jury chosen from a fair cross section. The only remaining question is whether there is adequate justification for this infringement." Id. at 368 n.26. See also Jones v. Georgia, 389 U.S. 24, 25, 19 L. Ed. 2d 25, 88 S. Ct. 4 (1967) (per curiam); Coleman v. Alabama, 389 U.S. 22, 23, 19 L. Ed. 2d 22, 88 S. Ct. 2 (1967) (per curiam); Whitus v. Georgia, 385 U.S. 545, 551, 17 L. Ed. 2d 599, 87 S. Ct. 643 (1967); Hernandez v. Texas, 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667 .

In Turner v. Fouche, 396 U.S. 346, 360, 24 L. Ed. 2d 567, 90 S. Ct. 532 (1970), the Court held that where "appellants demonstrated a substantial disparity . . . [and where] they further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria[,] the appellants thereby made out a prima facie case of jury discrimination . . . ." In this case, petitioner presented evidence that the manner of selection of jury venires in Norfolk County at the time of his trial was the keyman system, the board of selectmen prepares a list of inhabitants of good moral character, sound judgment, not subject to exception, not exempt, and whom the selectmen think qualified to serve as jurors. The list contains only the names of persons determined to be qualified. The determination is made in one of three ways: upon the knowledge of one of the board; after personal appearance before the board; or after examination of a questionnaire answered under oath. In oral argument the petitioner stated, and the state did not dispute, that the list from which petitioner's jury venire was drawn contained the names, addresses, and birthdates of potential jury venire candidates. Where more than one person lived at the same address, the household members were listed chronologically from oldest to youngest.3 While there is no evidence that the exclusion of young people on the jury venire was motivated by hostility or a belief that young adults were less capable of serving as jurors rather than speculation that young adults might be less available for service, the failure of the keyman system to produce a cross-sectional age representation in jury venires cannot be excused by blameless motives of the jury selectors. Regardless of the intention of the jury administrators, the results produced determine the validity of the process employed. Hernandez v. Texas, 347 U.S. at 482; Thiel v. Southern Pacific, 328 U.S. at 224-25. No jury commission should be exonerated simply because it did not act in bad faith. Alexander v. Louisiana, 405 U.S. 625, 632, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972). Whenever consistent and significant disparities are found between the proportion of a substantial and identifiable group in the community and the proportion of that group in the composition of jury venires and petitioner demonstrates that there is an opportunity for discrimination in the selection process, I believe the burden of proving that the guarantees of the sixth amendment cross-section requirement have been met rests on the responsible officials.4

III

Although I do not think that the analysis offered by my colleagues properly recognizes the principles of the sixth amendment articulated by the Supreme Court, stating just what the test for cognizability should be is not an easy task. The Supreme Court has wrestled with the problem of distinctiveness of groups without much explanation of the criteria used. Rather, the Court has recognized that any group is composed of dynamic individuals with individualized life experiences, perspectives, and beliefs. It has recognized that broad categorizations are not possible and, in fact, not particularly desirable in the pursuit of eliminating discrimination. To that end, when identifying distinctive groups, the Court has never identified what it is that distinguishes a group from other groups; it has identified no particular attitudes, beliefs, or experiences that would necessarily distinguish Mexican-Americans from non-Mexican-Americans, blacks from non-blacks, and women from men. The Court explains that distinctiveness is "a flavor," Ballard, 329 U.S. at 194, or "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable," Peters v. Kiff, 407 U.S. at 503. Under this approach, I would not attempt, as my colleagues do, to compare the relative "flavor" of one clearly identifiable group versus another. I would hold that a petitioner can challenge the nonrepresentation of any substantial and identifiable group. Once identified, the petitioner must show a substantial disproportion between the community group and the jury group and the potential for a nonrandom selection process. Then, I would hold that the burden shifts to the state to explain the discrepancy. The majority finds this would be untenably burdensome to the state. I think they overstate the administrative burden involved.

I do not believe that the number of groups that could be used to successfully challenge a jury venire would be infinitely large unless the jury system is not producing a reasonable cross section of the community. For example, if young persons are underrepresented by 50%, there are three possible causes for it: (1) the pool and venire represent the phenomenal one in millions possibility that is due to pure chance; (2) young adults under thirty-five are being identified and excluded in some fashion;5 or (3) young adults are being selected for the pool and drawn for the potential venire but are not making it into the venire because of exemptions and exclusions. The first possibility is so unlikely that it would not affect the jury selection process in any significant way. The second possible cause, identification and exclusion of a substantial group by the state, appears to me to be inimical to the right to a jury drawn from a fair cross section of the community regardless of what the group is, unless the state demonstrates that the exclusion manifestly and primarily advances a significant state interest.6 See Duren v. Missouri, 439 U.S. at 367-68. If underrepresentation is due to the third possibility--young adults under thirty-five are excused or exempted in greater numbers than other persons--it seems reasonable to require the state to produce evidence of it.

My colleagues have attempted to explain away the substantial disparity in this case between young adults in the venires and young adults in the population by speculating that young adults might be less available to serve as jurors because they are attending college, serving in the Armed Forces or surfing in Hawaii. See supra at 10. I believe that speculating as to such matters without evidence of any sort is hazardous at best and, at worst, an inappropriate injection of personal beliefs into the judicial process. The "some people are simply less available as jurors" speculation can be applied to any group and would completely undermine the cross-section rule if applied across the board. This very argument has been rejected by the Supreme Court in Thiel (daily wage earners) and Ballard (women). Rather than permitting jury selectors or courts to make assumptions about the ability or availability of groups of people to serve, the Court has held that

recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.

Thiel v. Southern Pacific Co., 328 U.S. at 220.

The majority has asserted that requiring a state to explain the reasons for a substantial statistical disparity would lead to overwhelming administrative problems. Experience shows that requiring a state to provide the reason that an individual was not part of the jury venire or a group of individuals were underrepresented on the venire does not disrupt the smooth running of a jury selection system. All it requires is that the state grant excusals and exemptions upon written explanation. The explanations are then filed along with the jury questionnaires that are returned indicating the candidates which are qualified to serve. Both the jury questionnaires and excusals/exemptions are available to defendants and the government. This procedure is currently followed in several Massachusetts counties as well as the federal courts. See Mass. Gen. Laws Ann. ch. 234A (West Supp. 1984-85) (governing Middlesex, Suffolk, Hampden and Worcester Counties); Federal Jury Selection Act, 28 U.S.C. §§ 1863-1866 (1982).

Not only does such a procedure serve to illuminate the composition of the jury venire, promoting the public's perception that it fairly reflects the community, but it should cut down on the number of challenges. Defendants are able to determine for themselves the reasons for excusal from the venire before moving the court for a new jury venire or petitioning the court for money to analyze the composition of jury pools and venires. Under the court's decision, a petitioner (and ultimately the court in indigent cases) will have to bear the burden of engaging an expert to testify as to whether a group is "special" enough to be deemed a necessary part of a jury venire, an investigator to pursue the reasons for the undocumented underrepresentation as well as a statistician to protect his or her sixth amendment rights.

By finding that only a few "special groups" can be assured a place in jury venires and that the "fair cross section" requirement is an impractical "ideal," the court emphasizes one of the distinctions between the young and old to which I would rather not ascribe: "Your old men shall dream dreams, your young men shall see visions." JOEL: 2:28.

Judge Coffin concurs fully in this dissent.

1. See La Roche v. Perrin, 718 F.2d 500 (1st Cir. 1983).

2. Prepared in connection with Commonwealth v. Flaherty, Norfolk Criminal No. 76813.

3. Webster's Third New International Dictionary (Unabridged), 1971 ed., p. 659, defines "distinctive" as: serving to distinguish, setting apart from others, individualizing; characteristic, peculiar; special; discriminating. Black's Law Dictionary, Fifth Edition, p. 425, defines "distinct" as: clear to the senses or mind; easily perceived or understood; plain; unmistakable. Evidently not identical; observably or decidedly different.

4. Fed. R. Evid. 201.

5. Unless otherwise indicated, they are contained in U.S. Bureau of the Census, Statistical Abstract of the United States, 1982-83, (103d ed.), Washington, D.C., 1982, hereinafter referred to as Abstract.

6. Abstract, "Table No. 49. Marital Status of the Population, by Sex and Age, 1981," p. 39. See also "Table No. 124. Marriages and Divorces: 1950 to 1979," p. 82.

7. Abstract, "Table No. 221. School Enrollment and Rate, By Age Sex and Race: 1960 to 1981," p. 140.

8. Bureau of the Census, U.S. Dep't of Commerce, Chap. D, "Detailed Population Characteristics," Part 1, § A: United States Tables 253-310 (March 1984).

9. Abstract, "Table No. 671. Median Weekly Earnings of Full-Time Wage and Salary Workers, By Selected Characteristic: 1970 to 1981," p. 404; Abstract, "Table No. 711. Money Income of Households - Aggregrate and Mean Income, By Race and Spanish Origin of Householder: 1980," p. 431, see Columns on age of householder, for all races; and Abstract, "Table No. 723. Median Money Income of Year-Round Full-Time Workers with Income, By Sex and Age: 1970 to 1980," p. 438.

10. Abstract, "Table No. 626. Civilian Labor Force and Participation Rates, By Race, Sex, and Age: 1960 to 1981," p. 377.

11. Abstract, "Table No. 303. Persons Arrested - Sex, Age and Race: 1970 to 1981," p. 181; Abstract, "Table No. 330. Jail Inmates - Selected Characteristics: 1978," p. 192.

12. Abstract, "Table No. 612. Living Veterans, By Age and Period of Service: 1981," p. 366.

13. Centers for Disease Control, U.S. Dep't of Health and Human Svcs., "Suicide Surveillance, 1970-1980" (April 1985).

14. Centers for Disease Control, U.S. Dep't of Health and Human Svcs., "Abortion Surveillance, 1979-1980" (May 1983).

15. Abstract, "Table No. 805. Voting-Age Population, and Percent Reporting Registered and Voted: 1972 to 1980," p. 492.

16. Abstract, "Table No. 860. Stock Ownership - Characteristics of Shareholders: 1959 to 1981," p. 519; Abstract, "Table No. 1146. Farm Operators - Tenure and Characteristics: 1974 and 1978," p. 654; Abstract, "Table No. 1367. Recent Home Buyers - General Characteristics and Downpayments: 1976 to 1981," p. 762.

1. In the period between January 1, 1978, and October 31, 1980, 37.82% of the general population of Norfolk County consisted of persons aged 18 to 35 and 18.16% of the jury venire consisted of persons 18 to 35. If adults over the age of 70 are excluded from the analysis because they can elect to exempt themselves under Mass. Gen. Laws Ann. ch. 234, § 1 (1984), then young adults constitute 41.46% of the eligible jurors and were selected for the venire only 18.68% of the time. The difference between the proportion of young adults in the population and the proportion of young adults on the venires was 19.56%. Excluding adults over 70, the discrepancy was 22.78%.

2. Based on statistical evidence presented by petitioner in his motion to dismiss the jury venire. The evidence consisted of a report on jury venires in Norfolk County 1978-1980 compiled by a court-appointed special master in Commonwealth v. Flaherty, Norfolk County Criminal No. 76318.

3. The petitioner has suggested that the jury selectors in compiling the list chose the older members of a household of more than one eligible jury candidate. This case seems to be very closely analogous to the facts in Hernandez v. Texas, 347 U.S. 475, 480 n.12, 98 L. Ed. 866, 74 S. Ct. 667 (1954), wherein the Supreme Court found systematic exclusion where the petitioner showed a significant disparity between Mexican-Americans in the population and in the jury pool and on the grand jury and the Supreme Court hypothesized that people with Spanish-sounding surnames had been passed over by the selectors.

4. The burden is particularly appropriate in this case: the Massachusetts Supreme Judicial Court had considered an age-group challenge to the composition of jury lists drawn under the keyman system in Massachusetts approximately one year prior to petitioner's motion to dismiss the unrepresentative venire. Commonwealth v. Bastarache, 382 Mass. 86, 414 N.E.2d 984 (Mass. 1980). In Bastarache, the Supreme Judicial Court expressed concern with the underrepresentation of young adults and directed the attorney general to prescribe new jury selection procedures for the compilation of jury lists in those cities and towns not using a random selection process. Id. at 995.

5. Another related possibility is that adults under thirty-five are part of a larger group or contain a significant small group against which there is direct discrimination.

6. See Hamling v. United States, 418 U.S. 87, 137-38, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) (filling of jury wheel every four years not unconstitutional, although it means some persons will not be qualified as soon as eligible); United States v. Benmuhar, 658 F.2d 14 (1st Cir. 1981), cert. denied, 457 U.S. 1117, 73 L. Ed. 2d 1328, 102 S. Ct. 2927 (1982) (government interest in conducting court in national language is significant).