Craven v. Carmical Petition for Writ of Certiorari to the US Court of Appeals for the Ninth Circuit

    In the Supreme Court of the 
United States

October T erm, 1971 

No. &  X .

W alter E. Graves',
Petitioner,

vs .

R ichard L. Carmical,
Respondent.

Petition for Writ of Certiorari 
to the United States Court of 
Appeals for the Ninth Circuit

E velle J. Y ounger 
Attorney General 

H erbert L. A shby 
Chief Assistant 
Attorney General— Criminal 

Division
Doris H. Maier

Assistant Attorney General 
—Writs Section

E dward P. O’B rien 
Deputy Attorney General 

Gloria F. DeH art
Deputy Attorney General
6000 State Building
San Francisco, California 94102
Telephone: 557-0799

Attorneys for Petitioner

S O R G  P R IN T IN G  C O M P A N Y  O F  C A L IF O R N IA , 3 4 6  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 1 0 5



SUBJECT INDEX

Page
Opinions Below ... ...........-.................................................. 1

Jurisdiction .............................................................-.........  2

Questions Presented ........................-............................... 2

Statutes Involved ............................................................ - 2

Statement of the Case................................ .....................  3

A. Proceedings in the State Courts.......................... 3

B. Proceedings in the Federal Courts...................... 4

Statement of Facts................ ...................—-......-.......-  4

Reasons for Granting the Writ............. - ....— ............. 6

Argument ........................................................................... 8

I. The Doctrine of Deliberate By-Pass Should Pre­
clude a Defendant Convicted in a Fair Criminal 
Trial from Raising on Federal Habeas Corpus 
a Claim That the Jury Panel Was Unconstitu­
tionally Selected Where the Issue Was Not 
Raised at the Appropriate Time in State Court 
Proceedings and the Jury Selected Was Ac­
cepted by Counsel.................................... -............. 8

II. While a Showing of Disproportional Racial Rep­
resentation May Suggest a Prima Facie Case, 
on the Further Showing That Such Dispropor­
tion Is Not Due to Purposeful Racial Discrimi­
nation, No Unconstitutional Selection Is Shown 11

Conclusion    — ......................................—- ....... ......... - 16

Appendices



TABLE OF AUTHORITIES CITED

Cases Pages
Carmical v. Craven, 314 F. Snpp. 580 (N.D. Calif.

1970) .............................................................................  2
Carter v. Jury Commission, 396 U.S. 320 (1970) ....... 13

Donaldson v. California, 404 U.S. 968 (1971) ............  7

Eubanks v. Louisiana, 356 U.S. 584 (1958) ................. - 11

Fay v. New York, 332 U.S. 261 (1947) .................. 10,12,15
Fay v. Noia, 372 U.S. 391 (1963)............................ ......  6, 8

Griggs v. Duke Power Company, 401 U.S. 424 (1971) 11

Henry v. Mississippi, 379 U.S. 443 (1965) ..................  8,10

Lattimore v. Craven, 453 F.2d 1249 (9th Cir. 1972) .... 7

People v. Carmical, 258 Cal. App. 2d 103; 65 Cal.
Rptr. 504 (1968) .................... ...................................-  3, 7

People v. Craig, No. 41750 ............................................ 4, 5, 6
People v. Neal, 271 Cal. App. 2d 826; 77 Cal. Rptr. 56 

(1969) ........................................................................... 8

Swain v. Alabama, 380 U.S. 202 (1965) ........................ 6,11

Turner v. Fouche, 396 U.S. 346 (1970) ....................13,14,15

Statutes

28 U.S.C.:
Section 1254(1) ............................................................ 2
Sections 2241-2255 ......................................................  2

California Penal Code:
Section 1060 .................................................................  3,8
Section 12021 ................................................................ 3

California Code of Civil Procedure, Section 198 ....... 3, 5
California Health and Safety Code, Section 11500 .......   3



In the Supreme Court of the 
United States

October Term, 1971

No................

W alter E. Craven,
Petitioner, 

vs.

R ichard L. Carmical,
Respondent.

Petition for Writ of Certiorari 
to the United States Court of 
Appeals for the Ninth Circuit

Petitioner, Walter E. Craven, Warden of the California 
State Prison at Folsom, appellee below, respectfully peti­
tions that a Writ of Certiorari issue to the United States 
Court of Appeals for the Ninth Circuit to review the deci­
sion of that Court entered on November 4, 1971, reversing 
and remanding the order of the United States District 
Court.

OPINIONS BELOW
The opinion of the Court of Appeals is appended hereto 

as Appendix A.1 The opinion of the United States District 1

1. The opinion was reported in the Advance Reports at 451 
F. 2d B99. The index of the bound volume contains the notation 
“ Withdrawn by Order of Court.”



Court is reported, Carmical v. Craven, 314 F. Supp. 580 
(N.D. Calif. 1970), and is appended hereto as Appendix B.

JURISDICTION
On November 4,1971, the United States Court of Appeals 

for the Ninth Circuit reversed the order of the United 
States District Court for the Northern District of Cali­
fornia denying Richard L. Carmical’s petition for Writ of 
Habeas Corpus. Petitioner-appellee’s petition for rehearing 
and suggestion for rehearing en banc was denied on May 
11, 1972, two judges voting for a rehearing en banc. A copy 
of the order is appended hereto as Appendix C. The juris­
diction of this Court is invoked under Title 28, United 
States Code, section 1254(1).

QUESTIONS PRESENTED
1. Whether the doctrine of deliberate by-pass precludes 

a state prisoner from raising on federal habeas corpus an 
allegation of an unconstitutionally selected jury panel 
where he has not raised the issue in accordance with state 
procedures, where counsel at trial accepted the jury after 
voir dire, and where there is no allegation of unfairness in 
the trial.

2. Whether a case of unconstitutional jury selection is 
shown by allegations that a disproportionate number of 
blacks were excluded from the jury panel when the allega­
tions also establish that the disproportion resulted from 
the application of an objective, if imperfect, standard and 
did not result from intentional or purposeful racial dis­
crimination.

2

STATUTES INVOLVED
This case arises under the Federal Habeas Corpus Act, 

28 U.S.C. sections 2241-2255, but does not directly bring any



section into question. Also involved are California Penal 
Code section 1060 and California Code of Civil Procedure 
section 198 reproduced in Appendix D.

STATEMENT OF THE CASE 
A. Proceedings In tie  State Courts,

Richard L. Carmieal, the petitioner for Writ of Habeas 
Corpus in the District Court, appellant below, and respond­
ent here, was convicted in the Alameda County 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 November 4, 1966, was sentenced to state prison 
for the term prescribed by I aw, the sentences to run con­
currently.

Respondent appealed his conviction, which was affirmed 
on January 22, 1968, by the California Court of Appeal. 
People v. Carmieal, 258 Cal.App.2d 103; 65 Cal. Rptr. 
504 (1968). Petitions for rehearing in the Court of Appeal 
and for hearing in the California Supreme Court were 
denied on February 21, 1968, and March 20, 1968, respec­
tively. At trial and on appeal, petitioner urged that his 
arrest, the seizure of the weapon, and the subsequent search 
and seizure of the heroin were unlawful. No challenge was 
made to the jury panel at trial or on appeal.2

Subsequently, Carmieal filed petitions for Writ of Habeas 
Corpus in the state courts alleging that he was unconstitu­
tionally convicted by a jury panel from which potential 
jurors had been unconstitutionally excluded. The petitions 
were denied without opinion.

2. Carmieal also argued on Ms state appeal that the amount of 
heroin was insufficient to sustain the conviction and that the court 
erred in re-reading testimony and instructions. These issues were 
not urged in subsequent federal court proceedings.

3



B. Proceedings in the Federal Court's.
On September 17, 1969, Carmical filed a petition for Writ 

of Habeas Corpus in the United States District Court for 
the Northern District of California alleging that his convic­
tion 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 Show 
Cause on January 22, 1970, a timely return was filed, and 
on March 20, 1970, a hearing was held at which counsel for 
Carmical and for the Warden appeared. Following the filing 
of supplemental memoranda, the court on July 9, 1970, filed 
its order denying the petition, finding that there was no 
purposeful discrimination on grounds of race in the selec­
tion of the jury panel and that the seizure of evidence was 
lawful. Carmical appealed to the Court of Appeals for the 
Ninth Circuit on the issue of the selection of the jury panel. 
On November 4,1971, that court issued its opinion reversing 
the order of the District Court and remanding the case for 
further proceedings.

STATEMENT OF FACTS
The issues herein were framed and decided on the basis 

of the allegations of the petition and its exhibits filed in 
the District Court. Carmical filed as an exhibit and relied 
on the facts noted in the decision of an Alameda County 
Superior Court judge who in 1968 found the jury selection 
procedure unfair. People v. Craig, No. 41750. A  copy is 
appended hereto as Appendix E. The state accepted the 
allegations as true for the purpose of testing their suffici­
ency to sustain Carmical’s claim that the jury panel uncon­
stitutionally excluded members of his race.

At the time of Carmical’s trial in 1966, the County of 
Alameda used a “ clear-thinking” test to select master jury 
panels from voter registration lists, in accordance with the

4



requirement of California Code of Civil Procedure section 
198 that a juror be in “possession of his natural faculties, 
and of ordinary intelligence and not decrepit.” The test 
consisted of 25 multiple choice questions which had to be 
answered in ten minutes.3 In order to qualify for the master 
jury panel, prospective jurors had to give correct answers 
to 21 of the questions, but were not told about the time limit.

For the purposes of the hearing on the issue in the Craig 
case, a special analysis of test results was made for areas 
of Oakland selected by defendant Craig’s counsel, one an 
area of predominantly black and low income persons, the 
other one an area of predominantly white and middle or 
higher income persons. The analysis disclosed that in the 
former (West Oakland) area the failure rate was 81.5%, 
and in the latter (Montclair) area the failure rate was 
14.5%. Testimony of a psychologist at this hearing indi­
cated 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 con­
sideration the subcultures of a heterogeneous population; 
that the time allowed for taking the test was too short; that 
it was poor procedure not to inform those that were taking 
it that there was a time limit; and that the grade required 
forpassing the test was too high. See Appendix E at 27. 
In an affidavit filed with the District Court, this psycholo­
gist concluded that because it was “difficult” to come to the 
conclusion that such a high percentage of “non-white” per­
sons are below the level of average in intelligence, the test 
must measure something else. Questions with a “ cultural 
bias” such as numbers 20, 21 and 25 “ could account” for this 
percentage. The psychologist stated that in his opinion, 
“ the test was evidently made up without considering cultu­
ral differences between persons taking it with the apparent

5

3. A  copy of the test is appended hereto as Appendix F.



result that an extraordinarily high percentage of non-white 
persons failed it.”

The analysis made also revealed, as noted in the Craig 
opinion (Appendix E at 25) that in the categories of exclu­
sions where conscious or even subsconscious bias could 
operate, substantially equal numbers from each area were 
excused. These persons were excluded during an initial 
screening process for reasons such as health, hardship or 
occupational exemption before the objective test was admin­
istered.

Thus, the “ facts” stated in the petition and exhibits 
established that there wTas a disproportionate exclusion of 
low income blacks, that it was due to an objective test ad­
ministered to all potential jurors, and that such dispropor­
tion was inadvertent, not purposeful.

REASONS FOR GRANTING THE WRIT
The Court of Appeals on this record erroneously decided 

two important constitutional questions, holding: (1) that 
the doctrine of deliberate by-pass does not apply to a 
defendant who fails to challenge the composition of the jury 
panel in the state proceedings and is fairly tried by a jury 
with which he is satisfied unless the record shows an affirma­
tive waiver; and (2) that a prima facie case of unconstitu­
tional selection of the jury panel is sufficiently established 
by alleging that disproportionate numbers of poor minority 
groups were excluded, despite further allegations showing 
that the exclusion wTas the result of an objective test and 
that there was no purposeful discrimination based on race.

The decision of the Court of Appeals incorrectly inter­
prets the decisions of this Court in Fay v. Noia, 372 U.S. 
391 (1963) and Swain v. Alabama, 380 U.S. 202 (1965) and 
is in conflict with the decision of another panel of the Court 
of Appeals which cited Swain v. Alabama, supra, for a con-

6



Aiding proposition and apparently reached an opposite 
result on the by-pass issue. See, Lattimore v. Craven, 453 ( t,
F.2d 1249 (9th Cir. 1972).4 We also invite this Court’s 
attention to Donaldson v. California, 404 U.S. 968 (1971)

. . .  f> i lin which this Court denied certiorari to review a case up­
holding a selection procedure similar to that at issue here.

The ruling in this case could result in the retrial of every , 
minority group defendant sentenced to state prison in /  /V£«. 
Alameda County since 1957,4 5 although the defendants were ? / ,
satisfied with their juries at the time of trial, there may 
have been any number of their minority group on the juries "t&u* -
which convicted them, there was no unfairness or denial of

+ in,.
due process in the trials, there was no purposeful discrimi­
nation practiced by Alameda County, and the use of the®6̂ -
test at issue was discontinued in 1968. We submit that the 
ruling of the Court of Appeals is not required by the con­
stitution, as interpreted by this Court, and that the poten­
tial effect of the court’s ruling on final, fairly tried state 
criminal cases is unconscionable.

4. In Carmical, the court states:
“ The object of the constitutional mandate is to produce 

master jury panels from which identifiable classes have not 
been systematically excluded. The object is neither to reward 
jury commissioners with good motives nor to punish those 
with bad intentions. When a jury selection system actually 
results in master jury panels from which identifiable classes 
are grossly excluded, the subjective intent of those who 
develop and enforce the system is immaterial.”  App. A at 5.

In Lattimore, in contrast, the court stated:
“ The absence of persons of a particular race on a jury 

panel is no indication of discrimination. To challenge a jury 
panel on the grounds of racial discrimination, there must be a 
purposeful discrimination proven by systematic exclusion 
of eligible jurors of the proscribed race or by unequal 
application of the law to such an intent, as to show inten­
tional discrimination.”  453 F.2d at 1251.

n sc , .£•
K | T v ?*

5. There were 1,161 defendants convicted in jury trials between 
February 1957 and April 1968; of these, 583 were sent to state 
prison. Although the race of those defendants is unknown, and a 
number of them have undoubtedly completed their terms, it is
evident that retrials in the hundreds may be required by this 
opinion.



ARGUMENT
I. The Doctrine of Deliberate By-Pass Should Preclude a Defend­

ant Convicted in a Fair Criminal Trial front Raising on Federal 
Habeas Corpus a Claim That the Jury Panel W as Unconsti­
tutionally Selected Where the Issue Was Not Raised at the 
Appropriate Time in State Court Proceedings and the Jury 
Selected Was Accepted by Counsel.

At Ms trial in the Superior Court, petitioner did not 
challenge the composition of the jury panel on any grounds 
whatever, nor did he raise on appeal any issue concerning 
the jury. He was represented by competent counsel at all 
times.

Under California law, a challenge to the composition of 
the jury panel must he made before the panel Is sworn. 
Calif. Pen. Code § 1060; See, People v. Neal, 271 Cal. App. 
2d 826, 836-837; 77 Cal. Rptr. 56 (1969). The right to an 
impartial jury drawn from a cross section of the community 
has been long recognized. Petitioner was represented by 
counsel. Thus, petitioner failed to assert a known right in 
accord with reasonable state procedure and was 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 a deliber­
ate by-pass is shown. Fay v. Noia, 372 U.S. 391, 438 (1963). 
The deliberate by-pass by counsel of a state procedural 
rule serving a legitimate state interest will preclude an 
accused from asserting his constitutional claim unless the 
circumstances are exceptional. Henry v. Mississippi, 379 
U.S. 443 (1965). (Contemporaneous objection rule.)

In ruling against respondent on the question of deliberate 
by-pass the court below stated: “ There is nothing in either 
the state court proceedings or the record below suggesting 
that Carmical’s attorney declined to raise the issue for 
some strategic purpose.” App. A  at 1. We submit that this

8



conclusion overlooks the nature of the right at issue and the 
compelling state interest in the procedural :rule involved.

The right at issue here is the right to challenge the com­
position of and the process for selecting the jury panel 
from which the jury to try the case is drawn. There are 
obviously two aspects to permitting such a challenge; one 
is the right of the defendant not to have members of his 
race purposefully excluded, the other is the right of mem­
bers of the excluded group to serve on juries. We point out 
that the latter interest is not involved here; the test is no 
longer being used.

The defendant’s right to have his race represented on the 
panel is fully served by requiring that the challenge be 
made before the jury is sworn. In any case of general dis­
proportionate representation in the entire jury panel, it is 
obvious that any single panel may contain substantial num­
bers of the minority group. Conversely, even when general 
representation is proportionate any single panel might not 
contain any members of the minority group. Thus, counsel 
could reasonably conclude that no useful purpose as far as 
his client was concerned would be served by challenging 
the panel.

The court below, in holding that there was no strategic 
purpose evident for failing to raise the issue below, com­
pletely failed to consider that no strategic purpose, except 
delay, would be served by making such a challenge. Indeed, 
if substantial members of Negroes were on the panel, a 
challenge would risk getting a panel with fewer Negroes. 
Counsel’s concern in any case is selecting a jury which he 
believes will give his client a fair trial. After examining and 
accepting a jury, counsel has affirmatively indicated his 
belief that his client can be fairly tried by it. If he does not 
so believe, his challenge should be made at the time, not 
held in reserve to be used if his client is convicted. Either

9



course of action, however, provides the strategic purpose 
for finding deliberate by-pass.®

Finally, we note that this Court has implicitly accepted 
the concept that failure to challenge the jury before trial 
precludes relief. In Fay v. New York, 332 U.S. 261, 266 
(1947) in discussing a challenge to the “ blue ribbon” jury, 
this Court notes that if the challenge was good, all con­
victions by special juries “would be set aside if the question 
had been properly raised at or before trial.”  (Emphasis 
added.)

The right to challenge a jury is a particularly appro­
priate right to which to apply a rule that failure to properly 
raise the issue precludes subsequent relief without a show­
ing of affirmative waiver, and a particularly inappropriate 
one to apply a rule that personal waiver is required. In this 
respect, it is analogous to the right to present witnesses for 
the defense, the right of the defendant to testify, or the 
right to cross-examine any witness. That these rights have 
been waived is implicit in the failure to exercise them. 
Moreover, the right to challenge the jury panel, while im­
portant, has no necessary effect on the fairness of the en­
suing trial, and no effect on the validity of the fact finding 
process.

We submit that the acceptance of the jury should be a 
sufficient showing of an affirmative waiver of the right to 
challenge the panel without further inquiry into knowledge, 
reasons or trial strategy. Where neither defendant nor 
counsel expresses any dissatisfaction with the jury and 
there is no question that the trial was fair, no legitimate 
interest of the accused is protected by permitting collateral 
attack, and the legitimate, indeed compelling, interest of 
the state in the finality of fair convictions is destroyed.

6. See Henry v. Mississippi, supra, at 451. Any right of the 
excluded group is equally fully served by requiring the challenge to 
be made at this point. Moreover, the excluded group may bring 
an action independent of any criminal case.

10



||. While a Shewing of Disproportionol Racial Representation
May Suggest a Prima Facie Case, on the Further Showing a

That Such Disproportion Is Not Due to Purposeful Racial Dis- ..
crimination, No Unconstitutional Selection Is Shown. )  ( , ^

The allegations of the petitioner established that dis- ' f  j, 
proportionate numbers of minority and low income persons W l . 
were excluded from the master jury panel; that the exclu- 
sion resulted from the use of a “ clear thinking” test of 25 
objective questions used to select juries of “ ordinary” in­
telligence; and that the test did not accurately measure 
average intelligence and may have been culturally biased.
The allegations also established, however, that there was 
no purposeful discrimination based on race.

The decisions of this Court involving jury selection have 
uniformly held that while mere disproportion may establish 
a prima facie case of racial discrimination it is only pur­
poseful exclusion on grounds of race which is unconstitu­
tional. See, e.g., Swain v. Alabama, 380 U.S. 202 (1965);
Eubanks v. Louisiana, 356 U.S. 584 (1958).

The court below held, however, despite the uncontested 
showing that no purposeful discrimination took place and 
the disproportion was due to the application of an objective 
standard, that a prima facie case of unconstitutional dis­
crimination was shown. The reasons for the court’s holding 
were that the test did not measure “average intelligence,” 
that it was culturally biased, and that purposeful discrim­
ination is not a factor. The court noted that Griggs v. Duke 
Power Company, 401 U.S. 424 (1971), epitomizes a trend 
toward the proscription of devices that result in the ex­
clusion of minority groups.7 App. A at 7, N.3.

7. Griggs involved the interpretation of a statute, and held 
invalid the use of intelligence tests which were not job related and 
resulted in the disqualification of disproportionate numbers of 
minority group job applicants. The purpose of the statute was to 
mitigate the effects of previous discrimination.

11



Whatever the trend of the decisions may he in other 
areas, this Court has always found purposeful discrim­
ination the sine qua non of unconstitutional jury selection. 
That the test at issue here did not measure “average” 
intelligence and might have been “ culturally biased” does 
not make it unconstitutional. In Fay v. New York, supra, at 
291, the Court notes:

“ Even in the Negro cases, this Court has never 
undertaken to say that a want of proportional repre­
sentation of groups, which is not proved to be delib­
erate and intentional, is sufficient to violate the Con­
stitution.”

In Fay v. New York, this Court considered the validity 
of New York special juries on charges that their use un­
fairly narrowed the choice of jurors. The criteria used in 
selecting the general panel from which the special juries 
were selected on the basis of further qualifications were: 
citizen; 21-70 years old; the owner or the spouse of the 
owner of property of value of $250.00; not convicted of 
felony or misdemeanors involving moral turpitude; intel­
ligent; of sound mind and good character; well informed; 
able to read and write the English language understand- 
inglv. Fay at 266-267.

This Court noted (at 291) :
“At most the proof shows lack of proportional 

representation and there is an utter deficiency of 
proof that this was the result of a purpose to discrim­
inate against this group as such. The uncontradicted 
evidence is that no person was excluded because of 
his occupation or economic status. All were subjected 
to the same tests of intelligence, citizenship, and under­
standing of English. The state’s right to apply these 
tests is not open to doubt even though they disqualify,

'1 especially in the conditions that prevail in New York, 
a disproportionate number of manual workers. A  fair

1 2



application of literacy, intelligence and other tests 
would hardly act with proportional equality on all 
walks of life.” (Emphasis added.)

As in the instant case, the disproportion only raised the 
question of unlawful representation. Since it resulted from 
the application of an objective standard, it was constitu­
tional.

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, 396 U.S. 320 
(1970); Turner v. Fouche, 396 U.S. 346 (1970). 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 this 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 Constitution does 
not forbid the States to prescribe relevant qualifica­
tions for their jurors. The States remain free to 
confine the selection to citizens, to persons meeting 
specified qualifications of age and educational attain­
ment, 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 rea­
sonably reflects a cross-section of the population suit­
able in character and intelligence for that civic duty.’ ” 
Carter at 332-33 (Footnotes omitted).
This Court subsequently commented:
“ The provision is devoid of any mention of race. Its 
antecedents are of ancient vintage, and there is no

13



suggestion that the law was originally adopted or sub­
sequently carried forward for the purpose of fostering 
racial discrimination.” (Footnotes omitted). Carter 
at 336.

In Turner v. Fou-che, 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 up­
right 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 popula­
tion) who were unknown to the commissioner were ex­
cluded 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 invoiced their subjective judgment rather than 
objective criteria. The appellants thereby made out a 
prima facie case of jury discrimination, and the burden 
fell on the appellees to 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 percent­
age of Negroes disqualified as not ‘upright’ or ‘intel­
ligent,’ nor for the failure to determine the eligibility 
of a substantial segment of the county’s already regis­
tered 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

14



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 discrimina­
tion.’ ” (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 of jurors were excluded.

We note that any test of education or even “ ordinary” 
intelligence is going to be culturally biased. One becomes 
educated by absorbing the wisdom and language of the pre­
vailing culture. “ Ordinary,” too, may be interpreted as the 
prevailing level of intelligence and education among the 
general population and thus connotes cultural understand­
ing. While the state may not exclude persons because of 
their race or economic status, it need not change its stand­
ards to insure proportional representation of any particular 
group.

Finally, standards used to insure that minority group 
members have equal opportunities for jobs have no nec­
essary application to the problem of jury selection.8 The 
reason for allowing challenges to the jury by the defendant 
is because he may well say that a community which dis­
criminates against all Negroes discriminates against him. 
See, Fay v. New York, supra, at 293. Where there is no pur­

8. If the rule on jury selection is to be changed, then it is an 
obvious rule for completely prospective operation. Trials under the 
old standard were completely fair and the validity of the fact­
finding process is not affected. In contrast, the effect on the states 
would be catastrophic.

15



poseful discrimination, no such prejudice exists. Such is 
the case here. We submit that the court below has errone­
ously interpreted governing case law, and has reached a 
conclusion with a potentially devastating effect.

CO N CLUSIO N
Because of the importance of the two cpiestions involved, 

and the potential effect on the state’s system of justice, we 
respectfully request that the Writ of Certiorari be granted.

E velle J. Y ounger 
Attorney General 

H erbert L. A shby 
Chief Assistant 
Attorney General— Criminal 

Division
D oris H. Mater

Assistant Attorney General 
—Writs Section

E dward P. O’Brien 
Deputy Attorney General 

Gloria F. D eH art
Deputy Attorney General
6000 State Building
San Francisco, California 94102
Telephone: 557-0799

Attorneys for Petitioner

16

(Appendices Follow)



Appendix A
United States Court of Appeals 

for the Ninth Circuit

No. 26,236

Richard L. Carmical,
Petitioner-Appellant, 

vs.
Walter E. Craven, Warden, California 

State Prison at Folsoin,
Respondent-Appellee.

[November 4,1971]

Appeal From the United States District Court 
for the Northern District of California

Before: BARNES, HAMLEY, and HUFSTEDLER, 
Circuit Judges

HUFSTEDLER, Circuit Judge:
Appellant Carmical appeals from an order denying his 

petition for a writ of habeas corpus. His petition charged 
that his state court conviction was invalid because he was 
tried by a jury drawn from a jury panel unconstitutionally 
selected.

Before we discuss the merits of the petition, we dispose 
of appellee’s contention that Carmical had waived his jury 
discrimination claim by his failure to raise the question at 
the time he was tried in the state court in November 1966. 
The state court record contains no indication of any affirm­
ative act on Carmical’s part evidencing his deliberate re­
jection of his constitutional guaranty. (McNeil v. North 
Carolina (4th Cir. 1966) 368 F.2d 313, 315.) There is noth­
ing in either the state court proceedings or the record



2 Appendix
below suggesting that Carmical’s attorney declined to raise 
the issue for some strategic purpose. As the district court 
impliedly found, the ingredients for deliberate bypass spec­
ified in Fay v. Noia (1963) 372 U.S. 391 are lacking, and 
the issue is not foreclosed on collateral attack. (Cobb v. 
Balkcom (5th Cir. 1964) 339 F.2d 95; cf. Fernandez v. 
Meier (9th Cir. 1969) 408 F.2d 974.)

For the purpose of testing the sufficiency of Carmical’s 
averments, prima facie, to sustain his claim for habeas 
relief, the appellee admitted the truth of the matters set 
forth in the petition and exhibits filed in support of it. The 
petition and the exhibits include the following facts: Car- 
mical was tried and convicted for possessing heroin and 
for illegally possessing a firearm. At the time of his trial 
in Oakland, California, Oakland used a “ clear thinking” 
test to select a master jury panel from the voter registra­
tion lists. The test purportedly winnowed voters of below 
“ ordinary intelligence,” leaving only those who satisfied 
California’s statutory commandment that a juror be “ [i]n 
possession of his natural faculties and of ordinary intelli­
gence and not decrepit.” (Cal. Civ. P. Code § 198 (2) (West 
1954).) The test consisted of 25 multiple-choice questions 
which had to be answered in 10 minutes. Prospective jurors 
were not told about the time limit before they took the 
test. To qualify for the master jury panel, prospective 
jurors were required to give “ correct” answers to at least 
80 percent of the questions.1

The use of this test excluded a substantial majority of 
otherwise eligible minority and low income persons from 1 2 3

1. “ Correct”  answers were those supplied by the manufacturer 
of the test. We use “ correct”  pejoratively because we cannot 
describe as “ right”  any of the choices given for some of the 
questions asked. Here are three simples from the test:

“ 4. Why is a man suprior to a productive machine?
1. A man has a sense of humor.
2. A man can think.
3. A  machine requires repairs. ’ ’



Appendix 3
the master jury roll. In the second half of 1967, 81.5 per­
cent of registered voters from predominantly black and low 
income areas of Alameda County who took the test failed 
to pass it. In contrast, only 14.5 percent of those eligible 
jurors from predominantly white areas taking the test 
failed to pass it. A total of 29 percent of all persons tested 
failed the examination. At the time of Carmical’s prosecu­
tion in 1966, registered voters from predominantly white 
areas were nearly four times as likely to pass the test as 
were voters from black and low income areas.

A psychologist who is an expert on reliable testing meth­
ods declared by affidavit that: (1) the test contained many 
administrative flaws; (2) the high failure rate indicated 
that the test was excluding persons of ordinary intelli­
gence; and (3) certain cpiestions measured cultural rather 
than intelligence factors.

In 1968, the Superior Court for the County of Alameda 
prohibited further use of the test because it separated ex­
aminees on some basis other than “ ordinary intelligence.”2

The facts accepted as true for purposes of this appeal 
established a prima facie case of class exclusion from the 
jury selection process. In Whitus v. Georgia (1967) 385 U.S. 
545, jurors were selected from tax digests previously main­
tained on a segregated basis. Blacks constituted 27.1 per­
cent of persons potentially eligible for jury service. Only 
9.1 percent of the grand jury venire and 7.8 percent of the * 1

“ 23. If a person asks you for something you do not have,
you should:
1. Tell him to mind his own business.
2. Say you don’t have it.
3. Walk away.”

‘ £ 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. ’ ’

2. People v. Craig (Super Ct. of Alameda County 1968) No. 
41750.



4 Appendix
petit jury venire were blacks. There was no evidence that 
any of the 27.1 percent eligible black jurors were disquali­
fied from jury service. There existed a 3-to-l disparity 
between blacks eligible for jury service and those on the 
grand jury venire and a 3.5-to-l disparity on the petit jury 
venire. Ten out of 123 persons on both venires, or 8.1 per­
cent, were blacks, a disparity of 3.3-to-l. Here, the test 
excluded from jury service 81.5 percent of the registered 
voters from black and low income neighborhoods, leaving 
19.5 percent. The state offered no evidence that any voter 
disqualified by the test was disqualified for other reasons. 
The ratio of eligible black and low income persons to those 
placed on the master list was 4.2-to-l, a disparity greater 
than that condemned in Whitus.

Once Carmical has presented his prima facie case, the 
state must adduce evidence sufficient to rebut it. (E.g., 
Coleman v. Alabama (1967) 389 U.S. 22; Hill v. Texas 
(1942) 316 U.S. 4001; Norris v. Alabama (1935) 294 U.S. 
587.)

The sole issue on appeal is a narrow question of law: Is 
proof alone that the “ clear thinking” test in fact resulted 
in large-scale exclusion of identifiable classes of veniremen 
otherwise eligible for jury service sufficient to make out a 
prima facie case of constitutionally impermissible jury 
selection, or, as the state contends, must Carmical also 
have offered evidence that the “ clear thinking” test was 
intentionally designed to produce that result?

The narrowness of the question does not obscure its con­
stitutional importance. Trial by jurors selected from the 
broad spectrum of society is a constitutional mandate. 
{E.g., Carter v. Jury Commission (1970) 396 U.S. 320, 330; 
Smith v. Texas (1940) 311 U.S. 128, 130.) A state may not 
systematically exclude persons from the jury selection 
process on the basis of their race, color, national origin, 
or on other identifiable group characteristics. {E.g., Whitus



Appendix 5
v. Georgia, supra; Hernandez v. Texas (1954) 347 U.S. 
475; Strauder v. West Virginia (1879) 100 IT.S. 303.) Token 
inclusion of members of the affected class in the selection 
process does not satisfy that fundamental command. (See 
Jones v. Georgia (1967) 389 U.S. 24; Whitus v. Georgia, 
supra; Smith v. Texas, supra.) Although petitioner is not 
constitutionally required to be tried by a jury including 
persons from his race or class or by a jury proportionately 
representative of the community (e.g., Swain v. Alabama 
(1965) 380 IT.S. 202, 208; Thomas v. Texas (1909) 212 U.S. 
278), he is entitled to a jury selected from a master list 
drawn from the community as a whole.

It is true that almost all of the cases that have come be­
fore the Supreme Court challenging the constitutionality 
of jury selection systems have been cases in which the 
methods of selection were explicitly or implicitly designed 
to exclude Negroes from jury service. {E.g., Whitus v. 
Georgia, supra [segregated tax returns]; Eubanks v. Lou­
isiana (1958) 356 U.S. 584 [judges interviewed prospective 
jurors]; Avery v. Georgia (1953) 345 U.S. 559 [segregated 
jury tickets]; Hill v. Texas, supra [jury commissioners 
failed to search out qualified blacks] ; Smith v. Texas, supra 
[blacks placed last on jury list]; Bush v. Kentucky (1882) 
107 U.S. 110 [blacks excluded by law ]; Neal v. Dela­
ware (1880) 103 U.S. 370 [blacks presumed incompetent 
to serve as jurors].) The opinions take into account the 
historical prevalence of intentional discrimination against 
Negroes, but the Court has never implied that the absence 
of that factor destroys a prima facie case. Rather, the 
Court has charged state officials with an affirmative duty 
to seek, and include within the jury selection process, all 
persons qualified under state law. As the Court stated in 
Avery v. Georgia, supra, 345 U.S. at 561:

“ The Jury Commissioners, and the other officials 
responsible for the selection of this panel, were under



6 Appendix
a constitutional duty to follow a procedure—‘a course 
of conduct’—which would not ‘operate to discriminate 
in the selection of jurors on racial grounds.’ Hill v. 
Texas, 316 U.S. 400, 404 (1942). If they failed in that 
duty, then this conviction must be reversed—no mat­
ter how strong the evidence of petitioner’s guilt. That 
is the law established by decisions of this Court span­
ning more than seventy years of interpretation of the 
meaning of ‘equal protection.’ ”

(Accord, Eubanks v. Louisiana, supra, 356 U.S. at 587, 
quoting from Patton v. Mississippi (1947) 332 U.S. 463, 
469; Cassell v. Texas (1950) 339 U.S. 282, 289.)

To support its argument that the Constitution does not 
forbid a system of jury selection that substantially ex­
cludes identifiable classes of prospective jurors, but only 
forbids systems deliberately designed to accomplish that 
result, the state relies on a passage from Swain v. Ala­
bama, supra, 380 U.S. at 209:

“Undoubtedly the selection of prospective jurors was 
somewhat haphazard and little effort was made to en­
sure that all groups in the community were fully rep­
resented. But an imperfect system is not equivalent to 
purposeful discrimination based on race.”

Swain will not carry the burden the state puts upon it.
The object of the constitutional mandate is to produce 

master jury panels from which identifiable community 
classes have not been systematically excluded. The object 
is neither to reward jury commissioners with good motives 
nor to punish those with bad intentions. When a jury selec­
tion system actually results in master jury panels from 
which identifiable classes are grossly excluded, the subjec­
tive intent of those who develop and enforce the system 
is immaterial. For example, in Norris v. Alabama, supra, 
294 U.S. at 598, the Court related testimony by jury offi­
cials that they had not considered race or color in prepar­
ing the jury roll. The Court then observed:



“ If, in the presence of such testimony as defendant 
adduced, the mere general assertions by officials of 
their performance of duty were to be accepted as an 
adequate justification for the complete exclusion of 
negroes from jury service, the constitutional provision 
—adopted with special reference to their protection— 
would be but a vain and illusory requirement.”

{Accord, Turner v. Fouche (1970) 396 U.S. 346, 361; Sims 
v. Georgia (1967) 389 U.S. 404, 407-08; Hernandez v. Texas, 
supra, 347 U.S. at 481-82; Smith v. Texas, supra, 311 U.S. 
at 131-32.) The lack of specific intent to discriminate on 
the part of Alameda County’s jury officials cannot offset 
the grossly discriminatory effect of their jury selection 
process. (Cf. Griggs v. Duke Poiver Co. (1971) 401 U.S. 
424 f  Gaston County v. United States (1969) 395 U.S. 285; 
Gomillion v. Lightfoot (1960) 364 U.S. 339.)

However, proof of deliberate intent to discriminate may 
be relevant when, as in Swain, the percentage of excluded 
classes is not gross enough unequivocally to establish dis­
crimination. Evidence that the system was designed to 
discriminate invidiously may add enough strength to such 
statistical data to make out a prima facie case. In short, 
subjective intent may be relevant to prove that a particu-

3. In Griggs the Court struck down the use of a seemingly 
objective test that resulted in inadvertent discrimination, holding 
that Title V II of the Civil Rights Act of 1964 proscribed the use 
of a standardized intelligence test that was not job related and 
operated to disqualify a disproportionate number of black job 
applicants. There was no evidence that the test was adopted for a 
discriminatory purpose. Although the Act appeared to sanction 
testing methods that were not used to discriminate, the Court 
found from the legislative history that Congress intended to pro­
scribe unintentional as well as intentional discriminatory hirings.

Griggs epitomizes a clearly discernible trend toward the pro­
scription of devices that result in the disproportionate exclusion of 
minority groups. (See Gaston County v. United States (1969) 
395 U.S. 285; Labat v. Bennett (5th Cir. 1966) 365 F.2d 698, 
719-20, cert, denied (1967) 386 U.S. 991.)

In Griggs, as well as here, the test was not related to the purpose 
for which it was administered. The examiners’ good faith was not 
questioned. The resulting discrimination was conclusive.

Appendix . 7



8 Appendix
lar system is invidiously discriminatory, but that evidence 
is not an element of the constitutional test.

The Fifth Circuit has squarely held that purposefulness 
is not an element of a prima facie case. After discussing a 
number of Supreme Court cases in United States ex rel. 
Seals v. Wiman (5th Cir. 1962) 304 F.2d 53, 65, cert, denied 
(1963) 372 U.S. 924, the court concluded:

“ Those same cases, however, and others, recognize a 
positive, affirmative duty on the part of the jury com­
missioners and other state officials, and show that it 
is not necessary to go so far as to establish ill will, 
evil motive, or absence of good faith, but that objec­
tive results are largely to be relied on in the applica­
tion of the constitutional test.”

In Mobley v. United States (5th Cir. 1967) 379 F.2d 768, 
772, the court stated:

“ There is, therefore, an affirmative duty imposed by 
the Constitution and laws of the United States upon 
the jury selection officials . . .  to know the availability 
of potentially qualified persons within significant ele­
ments of the community, including those which have 
been the object of state discrimination, to develop and 
use a system that will result in a fair cross section of 
qualified persons in the community being placed on 
the jury rolls and to follow a procedure which will not 
operate to discriminate in the selection of jurors on 
racial grounds.”

(Accord, Salary v. Wilson (5th Cir. 1969) 415 F.2d 467, 
472; Vanleeward v. Rutledge (5th Cir. 1966) 369 F.2d 584, 
586-87.)

The state asserts that Alameda County’s system oper­
ated fairly. The Supreme Court approved the use of in­
telligence or education as a criterion for jury service in 
Carter v. Jury Commission (1970) 396 U.S. 320 and Turner 
v. Touch (1970) 396 U.S. 346. The state says that the jury 
commissioner utilized the purely objective and proper



Appendix 9
standard of intelligence as indicated by the test results in 
preparing the master jury list and that that standard did 
not measure race or minority status and could not result 
in discrimination.

The state’s argument ignores the record. For the purpose 
of the district court’s ruling and upon this appeal, the 
state assumed the truth of the contents of the complaint 
and the accompanying affidavits. The state has thus con­
eeded that the test did not measure average intelligence 
for the purpose of posing the legal issue.

In Turner v. Fouche, supra, the Court expressly disap­
proved the elimination of 171 blacks on the ground that 
they were not intelligent or upright. Although intelligence 
was a valid requirement for jury service, the mere asser­
tion that a large number of blacks were not intelligent did 
not justify their exclusion. Because Alameda County’s test 
did not measure intelligence, any reliance on test results 
is no more than an unsupported assertion that those per­
sons excluded were not intelligent. We perceive no mean­
ingful distinction between Turner and this case.

Moreover, the state has also assumed at this juncture 
that the test reflected cultural bias. The use of a test that 
was culturally biased and that resulted in the substantial 
exclusion of those classes against whom the bias existed 
is itself prima facie proof that the selection process vio­
lated the Fourteenth Amendment. “ An accused is entitled 
to have charges against him considered by a jury in the 
selection of which there has been neither inclusion nor ex­
clusion because of race” or other identifiable minority char­
acteristics. (Cassell v. Texas, supra, 339 TJ.S. at 287.)

The order is reversed and the cause is remanded for fur­
ther proceedings consistent with the views herein ex­
pressed. Upon remand, the state shall have the opportunity 
to disprove each of the averments that it has conceded for 
the purpose of the prior district court ruling and for the 
purpose of this appeal.



10 Appendix

Appendix B

In the United States District Court 
for the Northern District of California

No. 52246

Filed—Jul 9 1970 
C. C. Evensen, Clerk

Richard L. Carmical,
Petitioner,

vs.
Walter E. Craven, Warden,

California State Prison at Folsom,
Respondent. ,

Charles Stephen Ralston 
Oscar Williams 
1095 Market St., Snite 418 
San Francisco, Calif. 94103

Judith Ann Ciraolo 
160 Taurus Avenue 
Oakland, California

Attorneys for Petitioner

Thomas C. Lynch 
Attorney General of the 
State of California

Deraid E. Granberg 
Deputy Attorney General

Gloria F. DeHart 
Deputy Attorney General
Attorneys for Respondent

OPINION AND ORDER DENYING PETITION 
FOR WRIT OF HABEAS CORPUS

GERALD S. LEVIN, District Judge



Appendix 11
Petitioner was convicted and sentenced on November 4, 

1966, by the Superior Court in Alameda County, California, 
for violations of California Health & Safety Code § 11500 
(possession of heroin) and California Penal Code § 12021 
(convicted felon in possession of a firearm). He petitioned 
this Court for a writ of habeas corpus and on January 22, 
1970, this Court issued an Order to Show Cause. Petitioner 
bases his petition upon two grounds: First, that the “ clear 
thinking” test used in the screening of prospective jurors 
at the time of petitioner’s trial “was a gross discrimination 
along racial, economic and cultural grounds,” and Second, 
that the evidence used to convict petitioner was obtained 
as a result of an illegal search and seizure made in the 
course of an arrest, which arrest wTas unlawful because of 
lack of probable cause for the arrest.1
The Test Used to Screen Prospective Jurors

At the time of petitioner’s trial in 1966, a clear thinking 
test was used to select a master jury panel from the voter 
registration lists. This test consisted of twenty-five mul­
tiple-choice questions which had to be answered in ten 
minutes. In order to qualify for the master jury panel 
prospective jurors were required to give correct answers 
to at least 80 per cent of the questions.

The jury for petitioner’s trial was drawn from this 
master jury panel. Petitioner, a Negro, claims that this 
clear thinking test excluded a disproportionate number of

1. Although the court is cognizant of its obligation to make an 
independent determination of this ground, the court notes that 
this contention was passed upon by the California Court of Appeal 
and found to be without merit. People v. Carmical, 258 Cal.App.2d 
103, 65 Cal.Rptr. 504 (1968); hearing denied by the California 
Supreme Court March 20,1968.



12 Appendix
Negroes and low income persons. In People v. Craig,2 adju­
dicated subsequent to the trial of petitioner, the Court con­
sidered this test as used to screen prospective jurors and 
found that it excluded a disproportionate number of 
Negroes and persons of low economic income. The expert 
testifying in that case expressed the opinion that the test 
had a tendency to exclude people from the ghettoes because 
of “ inadvertent discrimination.” The Court did not hold 
this test to be unconstitutional or unfair but merely directed 
the Jury Commissioner to summon a panel of jurors “ in a 
manner consistent with this decision.”

Assuming that this test excluded proportionately more 
Negroes and more persons of low economic income as com­
pared to persons in middle or upper income classes, there 
is no evidence or showing that there was any purpose to 
exclude a disproportionate number of Negroes or low in­
come persons. Furthermore, this test was administered 
equally to all persons regardless of race or income.

In Swain v. Alabama, 380 U.S. 202 (1965), the Court 
affirmed petitioner’s conviction despite his allegation of 
racial discrimination in the selection of jurors. While 
Negroes constituted 26% of the males over 21 in that 
county, only 10% to 15% of the grand and petit jury panels 
were Negroes. Alabama law required the jury commis­
sioners to place on the jury roll all male citizens in the 
community over 21 who are reputed to be honest, intelligent 
men and are esteemed for their integrity, good character 
and sound judgment. The Court found that in practice the 
commissioners do not place on the jury roll all such citizens,

2. The Court found in People v. Craig (Alameda County Supe­
rior Court, No. 41750, April 18, 1968) that 81.5% of the registered 
voters of West Oakland, who are predominantly black and of low 
economic income, failed the test while only 14.5% of the registered 
voters of Montclair, who are predominantly white and of middle 
or higher economic income, failed the test.



Appendix 13
either white or Negro. The Court referred to this jury selec­
tion procedure and held (pp. 208-209):

Venires drawn from the jury box made up in this 
manner unquestionably contained a smaller proportion 
of the Negro community than of the white community. 
But a defendant in a criminal case is not constitu­
tionally entitled to demand a proportionate number of 
Ms race on the jury which tries him nor on the venire 
or jury roll from which petit jurors are drawn.. . .  
There is no evidence that the commissioners applied 
different standards of qualifications to the Negro com­
munity than they did to the white community.. . .  Un­
doubtedly the selection of prospective jurors was some­
what haphazard and little effort was made to ensure 
that all groups in the community were fully repre­
sented. But an imperfect system is not equivalent to 
purposeful discrimination based on race.

Accord: Akins v. Texas, 325 U.S. 398 (1945); and Thomas 
v. Texas, 212 U.S. 278 (1909).

The decision in Swain fairly controls the contentions here. 
Petitioner does not have a constitutional right to have a 
proportionate number of his race or economic class on the 
jury or the master jury panel. Swain, supra at p. 208. The 
test given to Negroes was exactly the same as that given 
to others and it was administered and graded on equal 
terms with respect to all persons. Although this test may 
have been imperfect and resulted in excluding a dispropor­
tionate number of Negroes and persons of low economic 
income, this does not amount to purposeful discrimination 
based on race or income.

Objective criteria were used to select the members of the 
jury panel. The criteria were designed to test the intelli­
gence of the prospective jurors. The Supreme Court of the 
United States recently has given approval of such a test. 
Carter v. Jury Commission, 396 U.S. 320 (1969); Turner v.



14 Appendix
United States, 396 U.S. 398 (1969). In Carter the District 
Court refused to invalidate the Alabama law requiring the 
jury commissioners to select 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. . . .” In affirming the judg­
ment of the District Court, the Supreme Court said (pp. 
332-333):

It has long been accepted that the Constitution does 
not forbid the States to prescribe relevant qualifica­
tions for their jurors, The States remain free to 
confine the selection to citizens, to persons meeting 
specified qualifications of age and educational attain­
ment, 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.”

Turner follows Carter in upholding the constitutionality 
of the jury selection law which gives the jury commissioners 
the right to eliminate from grand-jury service anyone they 
find not “upright” and “ intelligent.” The distinguishing 
feature of Turner vis-a-vis the instant case is contained in 
the opinion of the court as follows (pp. 360-361):

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 discrimination, and the burden 
fell on the appellees to overcome it.



Appendix 15
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 percen­
tage of Negroes disqualified as not “upright” or “ in­
telligent,” or for the failure to determine the eligibility 
of a substantial segment of the county’s already regis­
tered voters.

There is no showing in the instant case of purposeful 
exclusion from jury service because of race. Negroes of low 
economic income were treated in the same manner as whites 
and members of other minority groups who are persons of 
low economic income. Even though the use of the clear 
thinking test may have resulted in a high proportion of 
persons of petitioner’s racial and social background failing 
the test, that is not adequate proof that persons of peti­
tioner’s or any other race were purposefully excluded from 
the master jury panel in Alameda County because of the 
employment of the test, and it is not sufficient to demon­
strate a violation of petitioner’s constitutional rights.

Petitioner’s Arrest and the Search and Seizure
Petitioner alleges that police officers searched him in the 

course of an arrest which was unlawful because there was 
no probable cause to make an arrest. The following facts 
are either admitted or not controverted by petitioner.

Officer Alves and Agent Woishnis were aware of the fact 
that petitioner had been arrested on previous occasions for 
using narcotics, that he had been under an investigation 
since 1964, and that he had been convicted of a felony in 
1957. Officer Alves received a call at 2 :30 P.M. on January 7, 
1966, from an anonymous caller who told him that petitioner 
was known as “Black Richard” and that he was parked in 
front of 1007-45th Street in Emeryville with “more nar-



16 Appendix
cotics than he [could] swallow.” The agent and officer pro­
ceeded immediately to the area in two cars.

After they had “ staked-out” 1007-45th Street for two 
hours, petitioner came out and walked toward a 1957 Cadil­
lac sedan parked in front. Agent Woishnis had previously 
observed petitioner in that vehicle. Petitioner opened the 
car door and sat behind the wheel with the door ajar. He 
then stepped out of the car and looked over the top toward 
two other persons coming from the porch. Agent Woishnis, 
communicating by radio, told Officer Alves that they should 
now go and talk with petitioner. Agent Woishnis drove his 
car and slowed it down for a stop as it passed petitioner. 
As the car was slowing for a stop Agent Woishnis observed 
petitioner pulling what appeared to be a pistol in a holster 
from his waistband. Agent Woishnis immediately jumped 
from his car and ran toward petitioner, and as he did he 
saw petitioner put the pistol on the car seat.

Meanwhile, Officer Alves had parked his car and was 
walking toward petitioner who was standing beside his car 
talking with the persons on the porch. When Officer Alves 
was about ten feet away, petitioner brought into view his 
right hand holding an object which appeared to be a pistol 
and a holster. Petitioner then made a movement as if to 
throw something into the car.

Agent Woishnis placed petitioner under arrest and im­
mediately “ patted him down.” In the left front pocket of 
petitioner’s trousers Agent Woishnis found a balloon con­
taining a powder which he believed to be heroin and that is 
what it subsequently turned out to be. Officer Alves took 
the loaded pistol and holster from the car.

At the trial Agent Verbrugge testified that about a month 
prior to this arrest he conversed with petitioner concerning 
a sale of heroin by petitioner.



Appendix 17
A police officer may in appropriate circumstances and 

manner approach a person for purposes of investigating 
suspected criminal behavior even though there is no prob­
able cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 
22 (1968); Lowe v. United States, 407 F.2d 1391, 1394 (9th 
Cir. 1969). The actions by Agent Woishnis and Officer Alves 
in approaching petitioner in order to talk with him about 
possible criminal behavior were lawful.

An arrest by officers can be supported by their reasonable 
cause to believe that a felony was being committed in their 
presence. Rios v. United States, 364 U.S. 253, 262 (1960); 
Morales v. United States, 344 F.2d 846 (9th Cir. 1965). In 
the present case petitioner was not arrested until the officers 
had seen him place a pistol on the seat of his car. This 
together with their knowledge that he had been convicted 
of a felony was sufficient to justify the officers’ belief that a 
felony was being committed in their presence.3 Conse­
quently, the arrest of petitioner was lawful.

The search of petitioner’s person was lawful because it 
was “ incident to a lawful arrest.” Harris v. United States, 
331 U.S. 145 (1947); United States v. Rabinoivitz, 339 U.S. 
56 (1950). The Court is of the opinion that Chimel v. Cali­
fornia, 395 U.S. 752 (1969) is not applicable here,4 but even 
if it were, the search of petitioner would be lawful because 
it was in an area “within his immediate control” as defined 
by that case.

3. Cal.Pen.Code § 12021 provides in part as follows:
Any person who is not a citizen of the United States and 

any person who has been convicted of a. felony under the laws 
of the United States, of the State of California, or any other 
state, government-, or country . . .  is guilty of a public 
offense. . . .

4. The rule of Chimel does not apply to searches conducted 
before June 23, 1968, the date of the Chimel decision. Heffley v. 
Hocker, 420 F.2d 881 (9th Cir. 1969); William v. United States, 
418 F.2d 159 (9th Cir. 1969).



18 Appendix
After arresting petitioner the officers seized the pistol 

from the seat of the car and in the trunk of the car they 
found a raincoat with a balloon containing milk sugar in 
one of the pockets. The warrantless search and seizure of 
this evidence is lawful under the circumstances because 
there was probable cause and because the car could have 
been removed quickly from the locality or jurisdiction in 
which the warrant would have been sought, or the evidence 
could have been removed from the car and destroyed ox- 
concealed. Carroll v. United States, 267 U.S. 132, 153 
(1925); Brinegar v. United States, 338 U.S. 160 (1949); 
Call v. United States, 417 F.2d 462, 465-466 (9th Cir. 1969); 
and Travis v. United States, 362 F.2d 477 (9th Cir. 1966).

Accordingly, it is hereby ordered as follows: the petition 
for a writ of habeas corpus is denied; the order to show 
cause is discharged and the proceeding is dismissed.

Dated: Jul 9 1970

/ s /  Gerald S. L evin 
United States District Judge



Appendix C

United States Court of Appeals 
for the Ninth Circuit

Appendix 19

No. 26,236

Filed—May 10 1972,
Clerk

Richard L. Carmical,
Petitioner-Appellant,

VS.

Walter E. Craven, Warden,
California State Prison at Folsom,

Respondent-Appellee.

ORDER

Before: BARNES, HAMLEY and HUFSTEDLER, 
Circuit Judges

All members of the court in active service, together with 
the two senior judges who served on the original panel, 
have considered the suggestion of a rehearing en banc. A 
majority of said judges have voted against a rehearing en 
banc. The votes of Chief Judge Chambers and of Judge 
Wright in favor of rehearing en banc are recorded.

The petition for a rehearing is denied. The suggestion of 
a rehearing en banc is rejected.



Appendix D

PENAL CODE SECTION 1060
Time for challenge to panel; method of making
WHEN AND HOW TAKEN. A challenge to the panel 

must be taken before a juror is sworn, and must be in writ­
ing or be noted by the Phonographic Reporter, and must 
plainly and distinctly state the facts constituting the ground 
of challenge.

CODE OF CIVIL PROCEDURE SECTION 198
Competency
A person is competent to act as juror if he be:
1. A citizen of the United States of the age of twenty- 

one years who shall have been a resident of the state and of 
the county or city and county for one year immediately 
before being selected and returned;

2. In possession of his natural faculties and of ordinary 
intelligence and not decrepit;

3. Possessed of sufficient knowledge of the English 
language.

20 Appendix



Appendix 21
Appendix E

In the Superior Court of the State of California 
In and for the County of Alameda

BEFORE THE HONORABLE 
SPURGEON AVAKIAN, JUDGE

Filed—Apr 18 1968 
Jack G. Blue, County Clerk 

T. J. Chamberlin 
Deputy

DEPARTMENT NO. 6

No. 41750

The People of the State of California,
Plaintiff,

vs.
Mark Twain Craig,

Defendant. * 1

MEMORANDUM DECISION ON CHALLENGE TO 
JURY PANEL

By a timely challenge to the jury panel drawn for the 
trial of his case, Defendant questions the whole process by 
which trial jurors are selected in Alameda County. Four- 
days of testimony were devoted to developing the factual 
basis for the challenge.

The grounds of challenge consist essentially of the fol­
lowing :

1. The jury selection process results in the dis­
proportionate exclusion of identificable groups (specif­
ically, racial minorities and lower income citizens) and 
consequently produces a master panel which is not



representative of the community at large, in violation 
of the clue process and equal protection clauses of the 
Fourteenth Amendment;

2. The jury selection process departs from the 
legislative pattern by eliminating persons who possess 
“ ordinary intelligence,” particularly by use of a written 
test which is not geared directly to the measurement of 
“ ordinary intelligence” ;

3. The Jury Commissioner grants excuses from 
jury service under oral instructions instead of under 
written rules adopted by the Court under C.C.P. sec­
tion 201a.

The master panel of trial jurors is compiled by the Jury 
Commissioner for half-year periods at a time. The current 
master panel was processed during the second half of 1967. 
Tnit.ifl.11y, 6,336 names were selected at random from the 
list of registered voters of the county. The selection was by 
a formula designed to provide an equal number of men and 
women, and a number from every precinct in the county 
substantially proportionate to the number of voters regis­
tered in such precinct. Notices were then sent to these per­
sons to report at stated times for interview and inquiry into 
qualifications. Such contact was actually made with 5,079 
of the total group. The remaining 1,257 are accounted for as

22 Appendix

follows:
Letters returned by Post Office ..............  608
Failure to Respond to Notice ..................  175
Deceased ................................... —-....... -  79
Moved out of County.................. ......... .....  395

1,257

From the 5,079 who were actually processed by the Jury 
Commissioner, 1,659 were found to be qualified and not ex­
cused. Service of 113 of these was deferred, at their request, 
to a later period, and 1,546 were certified to, and approved



Appendix 23
by, the Court as the master panel for jury trials during the 
first half of 1968. The men numbered 790, and the women, 
756.

With respect to the number who were processed but 
either excused or found not qualified, the total of 3,420 is
made up of the following groupings:

Poor health ......................................   704
Occupational exemption...................     542
"Women with small children ......... ............. 454
Lack of understanding of English............  112
Prior jury service ...................................   244
Poor hearing .......................      125
Business and personal hardship ............. . 161
Travel .............................................     17
Conviction of high crime ........................  68
Lack of transportation .............................  34
Mental instability ..................................   19
Failed written test ......    940

3,420

As indicated below, the main thrust of the contention that 
the master panel is not a fair cross-section of the popula­
tion of the county is aimed at the written test. There is no 
indication in the record of any racial or socio-economic 
discrimination by the Jury Commissioner’s office in the 
other categories of elimination listed above.

The statutory qualification for jury service, insofar as 
the validity of the written test is concerned, is that jurors 
be “ of ordinary intelligence” and “ possessed of sufficient 
knowledge of the English language.” C.C.P. 198. No defini­
tion of those terms is set forth in the statute, but the deci­
sional law requires non-discriminatory selection from a 
broad base of the community and forbids a so-called “blue 
ribbon” approach. Thiel v. Southern Pacific Co., 328 U.S. 
217 (1946). The use of written tests in applying this stand­
ard is neither uniform nor unusual in this state.



24 Appendix
In Alameda County, the test currently in use was adopted 

by the Court in 1956, after having been prepared by a 
psychologist for this particular use. It consists of 25 mul­
tiple choice questions. To pass, the juror must have at 
least 21 correct answers (84%) in ten minutes. Prior to 
taking the test, the juror fills out a questionnaire-affidavit 
consisting of fourteen items. This covers such things as 
length of residence, family status, education, employment, 
health, prior jury service, criminal record, any confinement 
in a mental institution, and willingness to serve as a juror 
(or reasons, if unwilling). This affidavit is reviewed by a 
staff member in the Jury Commissioner’s office. If grounds 
for exemption or disqualification are clearly present, no 
further processing occurs; as to the others, the written test 
is administered, and a pass or fail grade is assigned. Some 
who pass the test are then referred to the Jury Commis­
sioner or the Presiding Judge for final decision on close 
questions of whether a request for excuse or exemption 
should be granted or a ground for disqualification exists.

The statistical record in the Jury Commissioner’s office 
does not show how many people took the test, because no 
list is compiled of those who passed the test but were later 
eliminated for other reasons.

However, for purposes of this case, a special analysis 
was made by the Jiirv Commissioner of two areas desig­
nated by Defendant’s attorney. One area consists of 24 
contiguous precincts in West Oakland with a total voter 
registration of 10,862. The other consists of 27 contiguous 
precincts in the Montclair section of Oakland with a total 
voter registration of 11,070 .

The residents of the West Oakland area are predomi­
nantly black and of low economic income. The residents of



A p p e n d ix  2 5

Montclair are predominantly white and of middle or higher 
economic income.

W e s t  O a k la n d
Area

Number of Registered
V oters........................ 10,862

Number drawn from
Voter Registers ....... 133

Non-responses, deaths, 
moved, etc....... ........... 39

Number processed....... 94
Excused without test.... 40 (42.5%)
Took written test......... 54
Failed test* ..................   44 (81.5%)
Passed test ......    10
Excused after passing

test.............................  1
Qualified........................ 9
Service deferred........... 1

M o n t c la ir
A r e a

11,070

145

23
122
53 (43.3%)
69
10 (14.5%) 
59

_7
52
2

Certified to current 
panel ..........................  8 50

*For the two areas combined, 123 took the test and 54
persons, or 44%, failed it.

It should be noted that in the categories in which con­
scious or even sub-conscious bias could operate—namely, 
the excuses by the interviewers without administering the 
test—a substantially equal percentage was excused from 
each area. And, as already stated, Defendant disclaims any 
contention that there has been any intent to discriminate 
on the part of either the Court or the Jury Commissioner’s 
office.

We come, then, to the test, a copy of which is attached 
hereto. Why do 14.5% of the Montclair registered voters 
fail it, and why is the failure rate 81.5% in West Oakland!

A consideration of the test raises a number of questions:



26 Appendix
(1) To what extent does it measure moral and social 

attitudes and level of education rather than mental capa­
city?

(2) Does it contain cultural, educational or environmen­
tal biases which are not present equally in high and low 
income groups and in different racial groupings?

(3) Is it sufficiently comprehensive to test intelligence?
(4) Is the pass-fail cutting point placed so high as to 

eliminate substantial numbers of people who do possess 
“ ordinary intelligence” ?

Ten questions in the test (Nos. 2, 5, 6, 7, 14, 15, 18, 19, 
22, 24) appear to relate primarily to vocabulary or word 
recognition. Nine are answered as much or more on the 
basis of personal temperament and attitude or social, polit­
ical or moral philosophy as on the basis of intelligence 
(Nos. 4, 8, 9, 10, 11, 14, 20, 23; 25). One (No. 19) calls for 
knowledge of the law (and, incidentally, has a legally incor­
rect statement listed on the score sheet as the correct 
answer).

Only a few questions call primarily for the application 
of reasoning processes to situations described so as to 
neutralize cultural or educational differences.

The risk of built-in bias in favor of what is commonly 
referred to as middle class mores and vocabulary is obvious 
in such a situation. The startling difference in the pass-fail 
rate in the two areas previously mentioned, as well as the 
high over-all failure rate, strongly suggests that the test 
separates people on some basis other than “ordinary intelli­
gence.” One can well imagine how different the results 
might have been if half of the vocabulary questions were 
related to “ soul” food, people and music and other terms 
commonly spoken in West Oakland but almost unheard and 
unread in Montclair.

It should be noted that the test is not a standardized test 
and has not been validated by comparison with standard



Appendix 27
intelligence tests administered to any sampling of the same 
groups of people; and, obviously, evaluating the compara­
tive performance as jurors of those who passed and those 
who failed is a practical impossibility.

A psychologist with long experience in constructing and 
evaluating tests for different purposes testified that the 
test in question has the appearance of being an intelligence 
test but contains some items which reflect the cultural bias 
of the author. He also testified that at least fifty items would 
be needed in a well-constructed intelligence test to take into 
account the sub-cultures of a heterogeneous population.

Furthermore, he expressed the opinion that ten minutes 
is too short a time to allow for this test, that it is not good 
test procedure to withhold the time limit from those taking 
the test, and that irrespective of time, 84% is too high a 
cutting point for a passing grade.

He also expressed the opinion that the test has a ten­
dency to exclude people from the ghettoes because of “ in­
advertent discrimination”—that is, unintended discrimina­
tion resulting from cultural factors.

In terms of the results, he also expressed the opinion 
that the failure rate in both of the comparison areas was 
much too high and indicated that a substantial number of 
people who possessed “ ordinary intelligence” were being 
eliminated in both areas.

The realities of our society emphasize the importance of 
jury panels drawn from a representative cross-section of 
the community. We have significant cultural differences al­
most unknown in our county thirty years ago. Litigants 
and witnesses come into Court from all walks of life in a 
highly varied community. Unless jury panels represent the 
same walks of life and the same pattern of cultural dif­
ferences, thev will be less likely to understand fully the 
implications of the testimony they hear and the situations



28 Appendix
they must evaluate, and less likely to bring into their delib­
erations the background of experience and wisdom required 
for a just result. Similarly, the narrower the cultural spec­
trum of our jury panels, the less confidence the under­
represented groups will have in the courts as temples of 
justice.

The general term, “ ordinary intelligence,” must be in­
terpreted and applied in this context. The Court cannot 
conclude that 81.5% of the registered voters in a large sec­
tion of Oakland are below the level of “ ordinary intelli­
gence” .

Accordingly, the challenge to the panel must be sustained.
In ordering a new panel for this case, the Court must 

consider whether the limitation of the jury panel to regis­
tered voters is itself too narrow. Unquestionably, some 
adults otherwise qualified for jury service fail to register. 
However, the percentage is probably small in Alameda 
County, since intensive voter registration drives take place 
before each state and national election and no group is dis­
couraged from registering or voting.

This same question was considered by the House Judi­
ciary Committee in its report on S.B. 989, subsequently 
enacted on March 27, 1968, as the “ Jury Selection and Serv­
ice Act of 1968” (28 U.S.C. 1861, et seq.) That act requires 
juries in federal courts to be chosen from a “ random selec­
tion of a fair cross section of the persons residing in the 
community . . . wherein the court convenes.” (Sec. 1863(b) 
(3).) It provides for the use of voter lists as the basic 
source of juror names, to be supplemented by other sources 
where necessary to foster the policy of the act. In comment­
ing on this, the House Judiciary Committee report stated 
(p. 5):

“ The voting list need not perfectly mirror the percent­
age structure of the community.”



Appendix 29
“In a sense the use of voter lists as the basic source 

of juror names discriminate against those who have 
the requisite qualifications for jury service but who do 
not register to vote. This is not unfair, however, be­
cause anyone with minimal qualifications—qualifica­
tions that are relevant to jury service—can cause his 
name to be placed on the lists simply by registering or 
voting. No economic or social characteristics prevent 
one who wants to be considered for jury service from 
having his name placed in the pool from which jurors 
are selected.”

The Federal Act declares that sufficient proficiency in 
the English language is shown by anyone who satisfactorily 
fills out a juror qualification form quite similar in context 
to the affidavit required in this County.

It is unnecessary to consider the question of whether the 
Jury Commissioner’s instructions for granting excuses 
under C.C.P. 201 must be in writing. It may be noted, how­
ever, that the detailed analysis of the Montclair and West 
Oakland areas clearly indicates the absence of any dispro­
portionate elimination of jurors in the granting of such 
excuses.

The Jury Commissioner is directed to summon a panel 
of jurors for the trial of this case selected in a manner con­
sistent with this decision. In order to allow sufficient time 
for this, the trial of the case in continued to Monday, April 
29, at 10:00 a.m.

Dated: April 18,1968.

/ s /  Spurgeon A vakian

Spurgeon Avakian
Judge of the Superior Court



Appendix F

Directions: Please answer the following questions by put­
ting a circle around the number in front of the best possible 
answer. Work rapidly. I f you do not know the answer, 
guess, and go on to the next question.

1. 423768323932
In this number, how many 3’s are immediately 
followed by a 2 ?

1. one
2. two
3. three
4. four

2. The exact opposite of “never”  is :
1. often
2. frequently
3. always

3. 5 :00 p.m. is a rush hour on busses, because
1. Working people are going home at that hour.
2. So many people live in the country.
3. Busses are the best cheap means of transportation.

4. Why is a man superior to a productive machine1?
1. A man has a sense of humor.
2. A man can think.
3. A machine requires repairs.

5. The opposite of “ thrifty”  is :
1. Stubborn
2. Wasteful
3. Stingy.

6. Which of the following is a trait of character?
1. Generosity
2. Health
3. Personality

30 Appendix



1.
2.
3.

1.
2.
3.

1.
2.
3.

1.
2.
3.

1.
2.

3.

1.
2.
3.

1.
2.

Appendix 31
7. The statement that the moon is made up of green 

cheese is :
Absurd
Misleading
Wicked

8. Why was Civil Service established!
As a sound political move.
To provide qualified workers for government jobs.
To increase the number of government bureaus.

9. If you were asked what you thought of a person 
whom you didn’t know, you should say:

I will go and get acquainted.
I think he is all right.
I don’t know him and can’t say.

10. The government of the United States is sound, 
because:

It follows the will of the majority.
It does not allow representative government.
It permits the development of dictators.

11. The most desirable quality of a juror is : 
Ambition.
Kindly attitude.
Logical thinking.

12. A man is judged by what he does rather than by 
what he says, because:

What a man does shows what he really is.
It is wrong to tell a lie.
A deaf man cannot hear what is said.

13. Why do inventors patent their inventions?
It gives them control of their invention.
It creates a greater demand.

3. It is the custom to get patents.
14. A man’s influence in a community should depend 

upon his:



32 Appendix
1. Wealth . . .
2. Character . . -
3. Ambition

15. Of the five acts below, four are alike in a certain 
way. Which is the one not like these four?

1. smuggle
2. steal
3. bribe
4. cheat
5. sell

16. The purpose of administering the oath to a wit­
ness is :

1. To check his background.
2. A  means taken by law to obtain true testimony.
3- To see if a person believes in God.

1 7 .  Short men can be admitted to the army, because:
1. They want to enlist.
2. They are more intelligent than tall men.
3. Usefulness does not depend on height.

18. What people say about a person makes up his:
1. Reputation
2. Personality
3. Disposition

19. What is the difference between “ falsehood” and 
“perjury” ?

1. No difference. They are the same.
2. Perjury is a falsehood under oath.
3. Falsehood refers to a misdemeanor; perjury refers to

a felony.
20. 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.



Appendix 33
21. Bank checks are used to a great extent in busi­

ness, 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.

22. The opposite of ‘ ‘hope”  is :
1. despair
2. hate
3. misery

23. If a person asks you for something you do not 
have, you should:

1. Tell him to mind his own business.
2. Say you don’t have it.
3. Walk away.

24. If a dispute is settled by agreement, it is called a :
1. Bond
2. Compromise
3. Argument

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.



/

;s