Carmical v. Craven Appellee's Brief

    UNITED

l O O Q - ^ b o o

STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

RICHARD L. CARMICAL,
Petitioner-Appellant,

vs.
WALTER E. CRAVEN, Warden, 
California State Prison 
at Folsom,

Respondent-Appellee.

)
)
)
)
)
)
)
)
)
)
)
)

No. 26236

APPELLEE'S BRIEF

THOMAS C. LYNCH, Attorney General 
of the State of California

EDWARD P. O'BRIEN
Deputy Attorney General

GLORIA F. DeHART
Deputy Attorney General
6000 State Bldg.
San Francisco, Calif. 94102 
Telephone: 557-0799

Attorneys for Appellees



TOPICAL INDEX
Page

STATEMENT OF ISSUES 1
STATEMENT OF THE CASE 1

A . Proceedings in the State Courts. 1
B. Proceedings in the federal courts. 2 

ARGUMENT
I. PETITIONER DELIBERATELY BY-PASSED 

STATE PROCEDURE IN REGARD TO HIS 
CLAIM THAT THE JURY PANEL WAS UN­
CONSTITUTIONALLY CONSTITUTED;
THEREFORE, THE COURT SHOULD DECLINE 
TO HEAR THIS CLAIM. 3

II. THE DISTRICT COURT CORRECTLY RULED 
THAT ON THE FACTS ALLEGED BY 
PETITIONER THERE HAD BEEN NO 
UNCONSTITUTIONAL DISCRIMINATION ON 
RACIAL GROUNDS IN THE SELECTION OF 
THE JURY PANEL. 7

CONCLUSION 19

TABLE OF CASES

Carter v. Jury Commission,
369 U.S. 320 (1970) 11, 12, 13

Coleman v. Alabama,
377 U.S. 129 (1964) 18

Curry v. Wilson,
405 F.2d 110 (9th Cir. 1968) 5

Eubanks v. Louisiana,
356 U.S. 584 (1958) 8

Fa^ ' U N§ ^ 9 1 ,  438 (1963) 5, 6
Fernandez v. Meier,
408 F.2d 974 (9th Cir. 1969) 5, 7

Gaston County v. United States,
395 U.S. 285 (1969) 15

i.



TABLE OF CASES CONT'D
Page

Gomillion v. Lightfoot, 
364 U.S. 339 (1960) 17

Guinn v. United States, 
238 U.S. 347 (1915) 17

Henry v. Mississippi, 
379 U.S. 443 (1965) 5

Labat v. Bennett,
365 F.2d 698 (5th Cir. 1966) 17

Meredith v. Fair,
298 F. 2d 696 (5th Cir. 1962) 15

Nelson v. California,
346 F.2d 73 (9th Cir. 1965) 5

People v. Craig, No. 41750 7, 9,

People v. Neal,
271 Cal.App.2d 826, 836-37, 
77 Cal.Rptr. 56 (1969) 4

People v. Sparks,
257 Cal.App.2d 306,
64 Cal.Rptr. 682 (1967) 4

People v. Taylor,
2 Cal.App.3d 979, 987,
83 Cal.Rptr. 119, 124 (1969) 18

Southern Alameda Spanish Speaking Org. 
v. Union City,
424 F.2d 291 (9th Cir. 1970)

Swain v. Alabama,
380 U.S. 202, 203-04 (1965)

Turner v. Fouche,
369 U.S. 346 (1970)

8, 18

11, 13, 14, 15

United States v. Logue,
344 F.2d 290 (5th Cir. 1965) 16

Wilson v. Gray,
345 F.2d 282 (9th Cir. 1965) 5, 6

STATUTES AND AUTHORITIES 
United States Code Title 28 § 2254
California Penal Code § 1060

ii.

4
4



UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

)
)
)
) No. 26236
)
)
)
)
)
)
)
)

APPELLEE'S BRIEF 
STATEMENT OF ISSUES

1. Whether petitioner's deliberate by-pass of 
state procedures with respect to his allegation of an 
unconstitutionally selected jury panel precludes him from 
raising the issue on federal habeas corpus.

2. Whether the district court erred in holding 
that there was no purposeful exclusion on grounds of race 
of persons from the jury panel through use of a clear- 
thinking test.

STATEMENT OF THE CASE 
A. Proceedings in the State Courts.

Petitioner below, appellant here, was convicted 
in the Alameda County Superior Court by jury verdict of 
violations of California Health and Safety Code 
section 11500 (possession of heroin) and Penal Code section 
12021 (convicted felon in possession of firearm) and, on

RICHARD L. CARMICAL,
Petitioner-Appellant,

vs.
WALTER E. CRAVEN, Warden, 
California State Prison 
at Folsom,

Respondent-Appellee.

1.



November 4, 1966, was sentenced to state prison for the 
term prescribed by law, the sentences to run concurrently.

Petitioner appealed his conviction which was
affirmed on January 22, 1968, by the California Court of
Appeal. People v. Carmical, 258 Cal.App.2d 103, 65
Cal.Rptr. 504 (1968). A copy of the opinion of the Court
of Appeal was attached as Exhibit B to the return filed
below. Petitions for rehearing in the Court of Appeal and
hearing in the California Supreme Court were denied on
February 21, 1968, and March 20, 1968, respectively. At
trial and on appeal, petitioner urged that his arrest, the
seizure of the weapon, and the subsequent search and seizure

1/of the heroin were unlawful. No challenge was made to the 
jury panel at trial or on appeal.

Subsequently petitions for writ of habeas corpus 
were filed in the state courts alleging that petitioner was 
unconstitutionally convicted by a jury panel from which 
potential jurors had been unconstitutionally excluded.
B. Proceedings in the federal courts.

On September 17, 1969, petitioner filed a petition 
for writ of habeas corpus in the United States District 
Court for the Northern District of California alleging that 

his conviction was based on evidence seized in an illegal 
search and that potential jurors had been unconstitutionally 
excluded from the jury panel. The court issued its order to

T7 Petitioner also argued on his state appeal that 
the amount of heroin was insufficient to sustain the con­
viction and that the court erred in re-reading testimony 
and instructions. These issues were not urged in subse­
quent federal court procedures.

2.



show cause on January 22, 1970, a timely return was filed, 
and on March 20, 1970, a hearing was held at which counsel 
for petitioner and respondents appeared. Subsequently, 
supplemental memoranda were filed by both petitioner and 
respondents. On July 9, 1970, the court filed an order 
denying the petition, finding that there was no purposeful 
discrimination on grounds of race in the selection of the 
jury panel and that the seizure of evidence was lawful.
Carmical v. Craven, 314 F.Supp. 580 (N.D. Calif. 1970).

_2/
This appeal followed.

ARGUMENT
I

PETITIONER DELIBERATELY BY-PASSED 
STATE PROCEDURE IN REGARD TO HIS 
CLAIM THAT THE JURY PANEL WAS UN­
CONSTITUTIONALLY CONSTITUTED;
THEREFORE, THE COURT SHOULD DECLINE 
TO HEAR THIS CLAIM.

At his trial in the Superior Court, petitioner 
did not challenge the composition of the jury panel on any 
grounds whatever. Neither was any issue concerning the 
jury raised on appeal. Petitioner was represented by 
competent counsel at all times. Subsequent to petitioner s 
trial, one superior court judge in Alameda County issued 
an order sustaining a challenge to the jury selection 
process because the objective test used in that county to 
determine that the jury panel was composed of persons "of 
ordinary intelligence" resulted in the elimination of 
substantial numbers of qualified jurors, primarily from

2”! Pe titioner appeals only on the is sue o f the j ury 
panel.

3.



People v. Craig, No. 41750.low income or minority areas.
A copy of the court's opinion is attached to petitioner's 
petition in this Court. (R 19-27). Petitioner then filed 
petitions for writ of habeas corpus in the state courts.
All were denied without opinion. The petition in the
district court followed.

In the court below, respondents argued that 
although petitioner had exhausted presently available state 
remedies for the purposes of 28 U.S.C. 2254, the federal 
courts should decline to consider his claim because peti­
tioner deliberately by-passed the proper state procedure 

to raise the issue.
Under California law, a challenge to the jury 

panel, such as this, must be made before the panel is 
sworn. Calif. Pen. Code § 1060; see People v. Neal, 271 
Cal.App.2d 826, 836-37, 77 Cal.Rptr. 56 (1969); People v. 
Sparks, 257 Cal.App.2d 306, 64 Cal.Rptr. 682 (1967). In 
Neal, the defendant cited the same Superior Court ruling 
cited by the petitioner here as the basis for his claim 
that the jury panel was unconstitutional, and sought to 
raise this issue despite his failure to challenge the jury 
panel at trial on the basis that the court ruling was made 
after his trial. The Court of Appeal in Neal pointed out 
that the right to an impartial jury drawn from a cross- 
section of the community has been long recognized. Thus, 
in the instant case, as in Neal, petitioner has failed to 
assert a known right in accord with reasonable state pro­
cedure. He made no challenge before trial, and was

4.



apparently satisfied with the jury selected. See CT 7.
It is well established that a federal court may 

refuse to consider a constitutional claim on its merits 
when such a deliberate by-pass is shown. "[A] federal 
habeas corpus judge may in his discretion deny relief to 
an applicant who has deliberately by-passed the orderly 
procedure of the state courts and in so doing has forfeited 
his state court remedies." Fay v. Noia, 372 U.S. 391, 438 
(1963). See Henry v. Mississippi, 379 U.S. 443 (1965).

In Fernandez v. Meier, 408 F.2d 974 (9th Cir.
1969), this Court considered the allegation of an illegally 
constituted jury panel on a collateral attack made by a 
federal prisoner. The Court noted that failure to make the 
challenge at the proper time would preclude consideration 
on appeal. However, this Court sent the case back to the 
District Court for further proceedings, since the record did 
not conclusively show a waiver of the right to challenge the 
jury. This Court did not decide whether such a waiver must 
be made personally and explicitly, or whether it was suf­
ficient if made by counsel either explicitly, or through 
failure to act at the proper time, nor did it discuss what
must be shown by the record.

We submit, however, that to be consistent with 
cases in this Court dealing with the waiver of other con­
stitutional rights, such a waiver may be made by counsel 
and shown by the circumstances. See Curry v. Wilson,
405 F.2d 110 (9th Cir. 1968); Nelson v. California, 346 F.2d 
73 (9th Cir. 1965); Wilson v. Gray, 345 F.2d 282 (9th Cir.

5.



1965). In Wilson v. Gray, supra, at 288-89 this Court

stated, in discussing v. Noia:
"Implicit in this statement is the notion

that in the proper circumstances counsel for 
the accused may effectively waive certain 
rights of the accused during the course of his 
representation of the accused and as a matter 
of trial strategy and tactics. This proposition 
has been affirmed and applied by this Court 

[citations]."
we submit that in the circumstances here, counsel effec­
tively waived his right to challenge the jury panel: 
there was no dissatisfaction expressed at the time by 
either petitioner or counsel; the right at issue has long 
been recognized; and there is not even an allegation in 
this petition that Negroes were not substantially repre­
sented on the jury panel or the jury which tried peti- 

tioner.
The right to challenge the jury panel is a 

particularly appropriate one to which to apply the rule 
of the above cases. By examining and accepting a jury, 
counsel has affirmatively indicated his belief that the 
defendant can be fairly tried by it. If he has objections 
to the composition of the panel, they should be voiced at 
this time, not held in reserve to be used to attempt to 
get another trial if the jury he considers satisfactory

convicts his client.
The right to challenge a jury panel is a

6.



particularly inappropriate one to which to apply the rule 
that a personal waiver by the defendant is required. In 
this respect, it is analogous to the right to present 
witnesses for the defense, and the right of the defendant 
to testify, or the right to cross-examine any particular 
witness. That these rights have been "waived" is implicit 
in the failure to exercise them.

Insofar as the decision of this Court in Fernandez 
v. Meier implies that an affirmative waiver by defendant of 
the right to challenge the jury must be shown, we submit 
that the case should be re-evaluated.

II
THE DISTRICT COURT CORRECTLY RULED 
THAT ON THE FACTS ALLEGED BY 
PETITIONER THERE HAD BEEN NO 
UNCONSTITUTIONAL DISCRIMINATION ON 
RACIAL GROUNDS IN THE SELECTION OF 
THE JURY PANEL.

In the court below, petitioner alleged that he 
had been unconstitutionally convicted because the jury 
which tried him had been drawn from a jury panel from 
which a disproportionate number of Negroes and low income 
persons were excluded by means of a clear-thinking test. 
In support of his allegation, he relied on the decision 
of one Alameda County Superior Court judge who found the 
test unfair. People v. Craig, No. 41750 (Attached to the
petition as Exhibit A, R 19-27).

For the purposes of argument, respondents 
accepted as true the factual information contained in the 
petition, the Craig opinion and petitioner's supplemental

7.



memorandum, taking the position that these "facts" even 
if they could be proved did not establish unconstitutional 
discrimination. On these facts as stated, the court below 
found that there was no purposeful discrimination based on 
race in the jury selection method used. We submit that 
the court's decision is correct.

It is true, of course, that petitioner was 
entitled to be tried by a jury drawn from a panel chosen 
without racial discrimination. "Although a Negro defendant 
is not entitled to a jury containing members of his race, 
a State's purposeful or deliberate denial to Negroes on 
account of race of participation as jurors in the admin­
istration of justice violates the Equal Protection Clause." 
Swain v. Alabama, 380 U.S. 202, 203-04 (1965). The same 
rule applies to any identifiable group in the community 
which may be subject to prejudice. I_d. at 205. As Swain 
makes clear, however, it is intentional exclusion based on 
race which is forbidden; purposeful discrimination must be 
shown. See also, Eubanks v. Louisiana, 356 U.S. 584 (1958).

In the instant case, it has been clearly and con­
clusively shown that there was no purposeful discrimination 
based on race. The facts alleged in the petition, the 
opinions expressed in the affidavit filed with petitioner's 
Supplemental Memorandum, and the opinion of the Alameda 
County Court in People v. Craig, No. 41750, show that at 
the time petitioner was tried, a "clear-thinking" test 
was used in Alameda County to select juries of "ordinary 
intelligence." This was an objective test administered

8.



to all prospective jurors who were not excluded during 
the initial screening process for reasons such as health, 
hardship or occupational exemption. As noted by the 
Craig opinion, in the categories of exclusions where con­
scious or even subsconscious bias could operate, substan­
tially equal numbers from each area were excused. See
Exhibit A to Pet. at 5.

During the course of the Craig hearing on the 
issue, a special analysis of test results was made for two 
areas of Oakland selected by defendant's counsel, one an 
area of predominatly black and low income persons, the 
other one an area of predominantly white and middle or 
higher income persons. The analysis disclosed that the 
West Oakland failure rate was 81.5%, and the Montclair 
failure rate was 14.5%. The overall failure rate for the 
entire city is stated in the petition, the Craig opinion

_3/and the affidavit to be 297..
The testimony of the psychologist, on which the 

Craig court relied, indicated that the test, while giving 
the appearance of being an intelligence test, contained 
some items reflecting the cultural bias of the author; 
that it was too short to take into consideration the sub­
cultures of a heterogeneous population; that the time

allowed for taking the test (ten minutes) was too short;

-----Y . The source ot this tigure is not statedT. The
figures given on pages 2 and 3 of the Craig opinion 
(Exhibit A to the Pet.) yield a figure of about 38/,. How­
ever the group of those excluded for other reasons may 
also include some who took the test, thus reducing the
percentage.

9.



that is, it was poor procedure not to inform those taking 
the test that there was a time limit; and that the 84% 
grade required for passing the test was too high. See
Exhibit A to Pet. at 6-7.

In an affidavit appended to petitioner's 
supplemental memorandum, Dr. Rusmore, who testified in 
the Craig case, essentially repeats the conclusions sum- 
marized above. Dr. Rusmore concludes that because it is 
"difficult" to come to the conclusion that such a high 
pgentage of "non white" persons are below the level of 
average intelligence, the test must measure something 
else. In his opinion, questions with a "cultural bias" 
such as numbers 20, 21 and 25 "could account for this 
percentage. Dr. Rusmore states that in his opinion,
"The test was evidently made up without considering cul­
tural differences between persons taking it with the

-----IT. 1T7 (r. You should not give money to beggars on
the street, because:1. It makes it hard for the beggars to

get work.
2. It encourages living off of others.
3. It takes away the work of organized 

charities.
"21. Bank checks are used to a great extent in 

business, because:1. You can have all the money you need 
by writing checks.

2. Checks are safer and more convenient.
3. Checks are cleaner than bills.

"25. If it rains when you are starting to go
for the doctor, should you:

1. Stay at home.
2. Take an umbrella.
3. Wait until it stops raining."

10.



apparent result that an extraordinarily high percentage 
of non white persons failed it." Affidavit at 3. (See 

R 70-73) .
It is thus clearly shown that there was no 

deliberate and systematic exclusion because of race.
While the test may exhibit some "cultural bias," which 
although not defined in either the opinion or the affi­
davit apparently is a combination of economic and edu­
cational deprivation, and while it may measure something 
higher or somewhat different from "average intelligence," 
it is abundantly clear that what is measured is not race 
or minority status. Moreover, there is not the slightest 
suggestion that low income whites did not fail at the same 
rate as low income Negroes or other minority groups nor 
that middle income Negroes did not pass with the same 
frequency as others of similar "middle-class" education 
and culture. We suggest, moreover, that it is not really
even a "cultural" bias in the test which produced this

5/ . . . .  J iresult, but the ten-minute time limit imposed, unknown
to those being tested. It seems too obvious to require
comment that those with less education and experience in
taking writen tests would respond more slowly.

In two recent cases, the Supreme Court has stated 
that a state may properly use tests of intelligence or 
education to select jurors. Carter v. Jury Commission, 369 
U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970).

5 We note for example that question 25, cited as 
an example of a "culturally biased" question cannot be 
rationally answered as written, except by a person who is 
"test-wise." ^



What it may not do is extend the right or duty of jury 
service to some of its citizens and deny it to others on
racial grounds. Carter, supra at 330.

In Carter the court considered the validity on 
its face of a statute which required the selection for 
jury service "those persons who are 'generally reputed 
to be honest and intelligent and . . . esteemed in the
community for their integrity, good character, and sound 
judgment. . . . "  Carter at 331. The Court declined to

hold the statute invalid:
"It has long been accepted that the Constitu­
tion does not forbid the States to prescribe 
relevant qualifications for their jurors. The 
States remain free to confine the selection to 
citizens, to persons meeting specified qualifi­
cations of age and educational attainment, and 
to those possessing good intelligence, sound 
judgment, and fair character. 'Our duty to 
protect the federal constitutional rights of all 
does not mean we must or should impose on states 
our conception of the proper source of jury lists, 
so long as the source reasonably reflects a cross- 
section of the population suitable in character 
and intelligence for that civic duty. Carter 
at 332-33 (Footnotes omitted).

The Court subsequently commented:
"The provision is devoid of any mention of race. 
Its antecedents are of ancient vintage, and

12.



there is no suggestion that the law was 
originally adopted or subsequently carried 
forward for the purpose of fostering racial 
discrimination." (Footnotes omitted).
Carter at 336.

In Turner v. Fouche, supra, the Court also 
declined to strike down similar provisions as invalid. 
However, in Turner, the record disclosed that of 178 
potential jurors rejected by the jury commissioner 
"as not conforming to the statutory qualifications for 
juries either because of their being unintelligent or 
because of their not being upright citizens," 171 were 
Negroes. The court held that the district court should 
have responded to this fact and to the fact that 225 
potential jurors (9% of the county population) who were 
unknown to the commissioner were excluded without further 

inquiry:
"In sum, the appellants demonstrated a 

substantial disparity between the percentages 
of Negro residents in the county as a whole and 
of Negroes on the newly constituted jury list.
They further demonstrated that the disparity 
originated, at least in part, at the one point in 
the selection process where the jury commis­
sioners invoked their subjective judgment rather 
than objective criteria. The appellants thereby 
made out a prima facie case of jury discrimina­
tion, and the burden fell on the appellees to

13.



overcome it.
"The testimony of the jury commissioners 

and the superior court judge that they 
included or excluded no one because of race 
did not suffice to overcome the appellants 
prima facie case. So far the appellees have 
offered no explanation for the overwhelming 
percentage of Negroes disqualified as not 
’upright' or 'intelligent, nor for the 
failure to determine the eligibility of a 
substantial segment of the county s already 
registered voters. No explanation for this 
state of affairs appears in the record. The 
evidentiary void deprives the District Court s 
holding of support in the record as presently 
constituted. 'If there is a 'vacuum it is one 
which the State must fill, by moving in with 
sufficient evidence to dispel the prima facie 
case of discrimination.'" (Footnotes omitted.) 

Turner at 360-61.
Applying the standards of these cases to the 

facts in the instant case, it is clear that there is no 
discrimination based on race. Here, in contrast to 
Turner, the facts disclose that the "disparity in 
percentages occurred at the point in the process where 
completely objective criteria were used. At the point in 
the selection process where even unconscious bias could 
contribute to the result, proportionately equal numbers

14.



of jurors were excluded. Contrary to petitioner's 
argument that Turner requires that the state must justify 
the method used, i.e. the "validity" of the intelligence 
test, Turner requires only that the state must establish 
that the standard was applied objectively and that the 
disproportion was not caused by purposeful racial dis­
crimination. This the state has done.

Petitioner, however, argues that the court 
below erred in accepting the proposition that there was 
no constitutional violation since the test was objective 
and racially neutral by failing "to take into account a 
line of authority which establishes that if purportedly 
'objective' criteria have the effect of racial discrim­
ination, equal protection is denied." (AOB 17). The 
cases petitioner cites for this proposition have no 
application here.

Gaston County v. United States, 395 U.S. 285 
(1969), involved the interpretation of the Voting Rights 
Act of 1965 which suspended the use of any test or device 
as a prerequisite to registering to vote in a jurisdiction 
in which less than 50% of the voters were registered. The 
burden was on the jurisdiction to rebut the presumption of 
discrimination. The court concluded that it was appro­
priate to consider whether a test had the effect of deny­
ing the right to vote because the jurisdiction had main­
tained separate and inferior schools.

In Meredith v. Fair, 298 F.2d 696 (5th Cir.
1962), a Negro student brought an action to enjoin the

15.



University of Mississippi from limiting admissions to 
white people. The trial court found that Meredith was 
not denied admission because of his color or race, but 
on the basis of a number of factors, including his 
failure to submit required certificates from university 
alumni. The court on appeal noted, "This case was tried 
below and argued here in the eerie atmosphere of never- 
never land. Counsel for appellees argue that there is no 
state policy of maintaining segregated institutions of 
higher learning and that the court can take no judicial 
notice of this plain fact known to everyone." The coyurt 
then took judicial notice of this "plain fact" and stated 
that the existence of the policy was an important factor 
in determining the purposes and effects of statutes and 
actions superficially innocuous. The court then found 
the requirement of alumni certificates was a denial of 
equal protection because in the circumstances it imposed 
a strong burden on Negro students and no burden on white 
students, also noting that the requirement was adopted a 
few months after Brown v. Board of Education was decided. 
The case was sent back for a full trial on the merits to 
determine whether Meredith was denied admission on non- 

discriminatory grounds.
Similarly, in United States v. Logue, 344 F . M  

290 (5th Cir. 1965), the court invalidated a requirement 
that those seeking to register to vote must produce a 
qualified voter to "vouch" for them, because it was 
Inherently discriminatory in the circumstances and

16.



because it was applied in a discriminatory fashion. The 
population of the county was 70% Negro, but there were no

Negro voters registered.
In Labat v. Bennett, 365 F.2d 698 (5th Cir.

1966), a total exclusion of wage earners from jury duty 
was held to be unconstitutional. This exclusion was 
unconstitutional without regard to the race of those 
excluded, and, in addition, the court found that there 
was deliberate and purposeful racial discrimination.

Thus, in the special circumstances shown in all 
of these cases, the "racially neutral" standard had as^its 
purpose and effect, discrimination on racial grounds.
This purpose is in striking contrast to the situation in 
the instant case. There is no question here that the 
disproportion was due entirely to the use of an objective 
standard and that the use of this standard was totally
without discriminatory purpose.

Petitioner also cites a recent decision of this
Court to urge that one must look to the effect of govern­
mental action in determining whether there has been a 

denial of equal protection. Southern Alameda Spanish 
Speaking Org. v. Union City, 424 F.2d 291 (9th Cir. 1970). 
The case involved a referendum to block rezoning for low 
income housing. In dictum, this court indicated that in 
the special circumstances of housing and the responsi­
bility of city officials to accommodate the needs of
---a Tn two "other cases cited by petitioner, the
deliberate nature of the racial disccirimxnatxon xs ^ 
clearlv shown. Gomillion v. Lightfoot, 364^.5^339 
(I960); Guinn v .-OTTlTgr-States, 238 U.S. 347 (191}).

17 .



low-income families, exclusion of the poor from the 
benefits of land-use planning might present a substantial 
federal question. This is totally inapposite to the 
issue here.

Although the Alameda County Superior Court in 
Craig may be commended for requiring a change in selec­
tion procedures to result in greater parity between 
sections of the city, this is not to say that there was 
constitutional infirmity in the selection process used.
The California Court of Appeal, in reviewing a similar 
claim based on the Craig case, rejected it. "Most 
clearly, there was no systematic exclusion of Negroes from 
the jury panel as condemned in Coleman v. Alabama, 377 U.S. 
129." People v. Taylor, 2 Cal.App.3d 979, 987, 83 Cal.Rptr. 
119, 124 (1969).

The most that can be said is that Alameda County 
was using a poorly drawn test which was eliminating too 
many people of ordinary intelligence both black and white, 
and which resulted in more voters being eliminated in areas 
claimed to be largely poor and black than in those claimed 
to be affluent and white. As the court stated in Swain v. 
Alabama, supra at 209: "Undoubtedly, the selection of
jurors was somewhat haphazard and little effort was made to 
insure that all groups in the community were fully repre­
sented. But an imperfect system is not equivalent to 
purposeful discrimination based on race."

Since in this case, the alleged facts conclu­
sively show that there was no purposeful discrimination on

18.



race or any other grounds, we submit that the court below 
correctly denied the petition.

CONCLUSION
For the reasons stated above, we respectfully

urge this Court to rule that petitioner has by-passed 
orderly state procedure and may not raise this issue in 
the federal courts, and that, in any event, the District 
Court properly found on this record that there was no 
systematic exclusion on racial grounds.

Dated: December 28, 1970.
THOMAS C. LYNCH, Attorney General 

of the State of California
EDWARD P. O'BRIEN
Deputy Attorney General

Deputy Attorney General
Attorneys for Appellees

GFDrEB
CR-SF
013359

19.