Shuttlesworth v. Birmingham AL Petition for Writ of Certiorari
Public Court Documents
October 1, 1964

34 pages
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Brief Collection, LDF Court Filings. Carmical v. Craven Brief for Appellant Richard L. Carmical, 1970. 27b429d0-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/08c44e53-8277-4f49-b950-b815f34f1383/carmical-v-craven-brief-for-appellant-richard-l-carmical. Accessed July 30, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 26236 I RICHARD L. CARMICAL, Petitioner-Appellant, vs. WALTER E. CRAVEN, Warden California State Prison at Folsom, Respondent-Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRIEF FOR APPELLANT RICHARD L. CARMICAL William Bennett Turner Oscar Williams, Jr. 1095 Market St., Suite 418 San Francisco, Calif. 94103 Judith Ann Ciravlo 160 Taurus Ave. Oakland, Calif. , Jack Greenberg Charles Stephen Ralston 10 Columbus Circle, Suite 2030 New York, N.Y. 10019 Attorneys For Petitioner-Appellant * I N D E X -Pg.g.e. ISSUE PRESENTED . . . ................................ 1 STATEMENT OF THE CASE ............................. 2 A. State and Federal Court Proceedings .... 2 B. Facts Relating to Jury Discrimination ... 6 ARGUMENT The Facts In This Case Establish A Denial Of Petitioner's Right Under The Fourteenth Amendment To A Jury Representing A Cross- Section Of The Community And From Which Members Of His Class Have Not Been Arbi trarily Excluded ........................... H A. These Facts Establish a Prima Facie Case of illegal Jury Discrimination .... 12 B. The Use of the "Clear-thinking" Test in Question Here was not Sufficient to Overcome Petitioner's Prima Facie Case .............................. ..... 15 C. The "Clear-thinking Test Was an im proper Method for Determining the Intelligence of Potential Jurors ....... 20 CONCLUSION......................................... 23 CERTIFICATE OF SERVICE ............................ 24 \ TABLE OF AUTHORITIES Cases page Avery v. Georgia, 345 U.S. 559 (1953) .............. I 14 Brooks v. Beto, 366 F.2d l(5th Cir. 1966) .......... 13-14 Carafas v. LaVallee, 391 U.S. 234 (1968) ........... 4 Carter v. Jury Commission of Green County, 396 U.S. 320 (1970) ................................. 13,14,15,20 Coleman v. Alabama, 389 U.S. 22 (1967) ............. 14 Gaston County v. United States, 395 U.S. 285 (1969) . 17 Gomillion v. Lightfoot, 364 U.S. 339 (1960) ........ 18 Gregory v. Litton Systems, Inc.,_____F.Supp. 63 Lab. Cas. 91 519485 (C.D. Calif. July 28, 1970) 18 Guinn v. United States, 238 U.S. 347 (1915) ........ 18 Hill v. Texas, 316 U.S. 400 (1942) ................. 14 Jones v. Cunningham, 371 U.S. 236 (1963) ............ 4 Jones v. Georgia, 389 U.S. 24 (1967) ............... 14 Labat v. Bennett, 365 F.2d 698 (5th cir. 1966) ...... 13,18 Local 53, International Assoc, of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) ....................... 18 Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) .... 18 Norris v. Alabama, 294 U.S. 587 (1935) ..... ........ 14 Patton v. Mississippi, 332 U.S. 463 (1947) ......... 14 People v. Craig, Sup. Ct. of Alameda County, No. 41750 ....................................... 7,8,21 People v. Tenorio, 3 C. 3d 89 (1970) ............... 3 Smith v. Texas, 311 U.S. 128 (1940) .’..... .......... 13 ii Pa^e Southern Alameda Span. Sp. 0:<:g. v . Union City. 424 F.2d 291 (9th Cir. 1970) .. 19 Strauder v. West Virginia, 100 U.S. 303 (1879) 13 Thie] v. Southern Pacific Company, 328 U.S. 217 (1946) ............. Turner v. Fouche, 396 U.S. 346 (1970) ..... -L J 14, 15,16,19 20 United States v. Logue, 344 F.2d 290 (5th Cir. 1965) ........... /. _ . 1 Q United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962) ......... i o 1 4 United States v. Sheet Metal Workers, Local 36, 416 F .2d 123 (8th Cir. 1969) ...... 18 i'l Other Authorities EEOC, Guidelines on Employee Selection Procedures, 35 Fed. Reg. 12333 ....... 8-Q U.S. Department of Labor, Validation of Employment Tests by Contractors and Subcontractors subject to the Provisions of Executive Order No. 11246 33 Fed. Reg. 14391 (1968) .... 9 ; iii IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NO. 26236 i RICHARD L. CARMICAL, Petitioner-Appellant, vs. WALTER E. CRAVEN, Warden California State Prison at Folsom, Respondent-Appe1lee. Appeal From The United States District Court For The Northern District of California BRIEF FOR APPELLANT RICHARD L. CARMICAL STATEMENT OF THE ISSUES PRESENTED FOR REVIEW: One issue is present on the appeal: Whether the district court erred in dismissing petitioner's petition for a writ of habeas corpus, holding that a showing that members of his race had been disproportion ately excluded from jury duty, resulting in jury panels that did not represent a cross-section of the community, by use of a so-called "clear-thinking" test did not establish a violation of his rights to due process and equal protection of the laws guaranteed by the Four teenth Amendment? STATEMENT OF THE CASE A . State and Federal Court Proceedings In January, 1966, petitioner-appellant Richard l . Carmical was arrested in Alameda County, California, and was charged with violating §11500 of the California Health and Safety Code (possession of heroin) and §12021 of the California Penal Code (convicted felon in possession of a firearm). He was tried by a jury in the Superior Court in and for Alameda County, convicted, and sentenced in November, 1966. He is presently serving a statutory sentence of from five to twenty years in the California State Prison at Folsom, under the custody of respondent-appellee, Walter E. Craven (R. 4). At his trial, petitioner's counsel raised the claim that ®̂ -i-dence leading to his arrest had been seized in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States. A motion to quash was denied, the evidence was admitted, and petitioner was convicted. An appeal was taken to the District Court Appeal, First Appellate District, Division Four, raising the issue of illegal search and seizure. On January 22, 1968, that Court affirmed the convic tion (see, 258 Cal. App. 2d 103, 65 Cal. Rpt. 504 (1968)). A petition for rehearing was denied on February 21, 1968, and a petition for a hearing by the Supreme Court of California was denied on March 20, 1968. Subsequently, a petition for writ of habeas corpus was filed with the Superior Court of California, in and for Sacra mento County, raising the claim that petitioner was convicted by a jury from which members of his race and economic class had been excluded in violation of his rights to due process and equal protection of the laws guaranteed by the Fourteenth Amend ment to the United States Constitution. The petition was denied on July 9, 1968, as were petitions raising the same issue by the District Court of Appeal, Third Appellate District, Sacramento, and by the Supreme Court of California on July 31, 1968 and November 13, 1968, respectively (R.6). Having thus exhausted all remedies available in state 1/ courts, petitioner filed the present action in the United States 1/ On September 1, 1970, the Supreme Court of California handed down its opinion in People v. Tenorio, 3 C. 3d 89,_____ Cal. Rptr._____, ________ P.2d _______. This decision may affect the legality under state law of the sentence given to petitioner but in no way affects the validity of petitioner's conviction, which is at issue here. Tenorio struck down, as violating the separation of powers doctrine under the California Constitution, Health and Safety Code §11718. That section prohibits a sentencing court from dismissing an allegation of a prior conviction that would change the penalty for the for the offense charged except on motion of the district attorney. The California Supreme Court upheld a trial court's dismissal of a prior conviction allegation in the face of §11718. In a footnote (3 C. 2d at 95, n.2), the Court held its decision to be fully retroactive. It gave leave to any prisoner whose sentence had been augmented by virture of §11718 to file state habeas corpus to in vite the original sentencing court to exercise its dis cretion to dismiss the prior conviction and to resentence. The sentence of petitioner in the present case was aug mented by operation of the section, and a state habeas -3- District Court for the Northern District of California on September 17, 1969. The petition for a writ of habeas corpus urged that petitioner's conviction violated his federal con stitutional rights in the two respects noted above: first, he was convicted by a jury constituted in violation of the Four teenth Amendment and second, evidence was introduced at his trial that had been obtained in violation of the Fourth and 2/ Fourteenth Amendments. Leave to proceed in forma pauperis was granted. Subsequently, on January 22, 1970, the court issued an order to show cause why the writ should not issue. The response to the petition and order to show cause asked its dismissal on a number of grounds.with regard to the jury discrimination claim. The state urged first that the claim had been waived because it had not been raised at 3/ trial. Second, the state urged that even assuming that a 1/ Contd. petition raising only that issue is being prepared on his behalf and will be filed shortly. As pointed out above, this state proceeding will deal only with the length of petitioner's sentence, and in no way will attack the validity of the conviction on which that sentence is based. The relief available in the state proceeding will be limited to a shortening of the sentence. Even if petitioner were now released, either on parole or unconditionally, the jurisdiction of this Court to consider the issues presented here will be in no way affected. Jones v. Cunningham 371 U.S. 236 (3.963) ; Carafas v. LaVallee. 391 U.S. 234 (1968) . As to the legality of petitioner's conviction under the federal constitution, all available state remedies have been ex hausted as shown in the text, supra. 2/ This appeal is limited to the jury issue. 3/ The court below reached the merits of petitioner's claim, inferrentially finding that no waiver under federal standards had been shown. -4- disproportionate number of black and poor people had been ex cluded from jury service such exclusion was not purposefully discriminatory. Rather, it resulted from the application of non-racial standards that had the unintended effect of excluding large numbers of blacks and poor persons. On March 20, 1970, a hearing was held on the order to show cause and the state's return asking dismissal of the pro ceedings. At the hearing, petitioner requested that he be allowed to conduct discovery to develop fully the facts relating to the claim of jury discrimination. The state reiterated its position as expressed in its motion to dismiss, viz., that even admitting that large and disproportionate members of petitioner's class had been excluded from the jury rolls, resulting in jury lists that did not represent a true cross-section of the com munity, this would not establish a violation of constitutional rights (R. 14-15). Since the state was willing to admit the factual allegations of petitioner, the court decided to determine the motion to dismiss as a matter of law. By permission of the court, petitioner filed a supple mental memorandum of law and an affidavit by an expert on test ing which upheld the contention that the jury selection methods used were invalid. The state filed a memorandum in response. Subsequently, the district court, in an opinion now re ported at 314 F. Supp. 580 (N.D. Cal. 1970), denied the petition as a matter of law. it held that, accepting petitioner's allegations of fact, no purposeful discrimination in the selection -5 of the jury had been shown. A timely notice of appeal was filed, and the district court signed a certificate of pro bable cause. B. Facts Relating to Jury Discrimination The allegations of the petition for writ of habeas corpus were as follows: The petitioner was denied due process of law and equal protection of the laws because the jury which tried and convicted petitioner was selected from a master panel which itself had been selected in an un fair and biased manner, which operated to prejudice the petitioner. At the time of petitioner's trial, Alameda County used a multiple—choice test as a step in the screening of prospective jurors. The direct result of the ad ministration of the test was gross discrimination along racial, economic and cultural lines. The effect of the test, as applied, was to exclude the vast majority of persons of racial, cultural and economic character istics similar to petitioner, namely persons from black, low income areas of the county. However, the vast majority of persons from middle and upper income white areas passed the test. The test itself is irrational, and is in no way related to testing a person's fitness* to sit on a jury, and there is therefore no rational basis for the county to use the test. In 1968 the Superior Court of Alameda County, California decided that the test used in the county was unconstitutional as a deprivation of due process and equal protection. A court-ordered study showed that 18.5% of the registered voters taking the test in the 1967_selection process, who lived in a selected black, low income area of Oakland, California, passed the test. However, the study showed that 85.5% of those persons taking the test who lived in a white, middle and high income area of Oakland passed the test. This and other evidence produced for the court led it to con clude that the test led to unfair and unconstitutional discriminations in the jury selection process. A copy of the court's decision in that case is attached to this petition as Appendix A. -6- The use of the test, and the discriminatory results its application produced, resulted in disproportionate exclusion of identifiable groups, producing a jury panel which was not representative of the community as a whole, in violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution (R. 4-5). In petitioner's memorandum of law further allegations concerning jury selection methods and their effect were made (R. 10-12). The Alameda county jury commissioner placed 6,000 names from voter registration roles on a master list. These persons were requested to come to his office and there, those who were not excused for other reasons, were given a so-called "clear-thinking" test. Those passing the test (about 1,500) were put on the master jury list and cards made out for each individual. The cards were arranged by precinct for selection when it was necessary to select a master panel. In 1968, the Superior Court, in People v. Craig. No. 41750, ended the use of the test in question on the ground that it excluded too high a percentage of eligible jurors and parti cularly black, low income jurors to accurately be measuring the statutory standard of "ordinary intelligence" (R. 19-29). With regard to the year 1966 when petitioner here was tried, a pre liminary investigation showed a great disparity in the numbers opposed to of white as/ black, low income, persons on the master jury list (R. 14-15). In addition to these allegations, accepted as true by the district judge, petitioner introduced the affidavit of Dr. Jay T. Rusmore, professor of psychology at San Jose State -7- College, who has had extensive practical and academic ex perience in developing, using and judging tests used to 4/ measure intelligence and other capabilities (R. 70-73). Dr.j Rusmore examined the test in question at the request of counsel for petitioner. (See R. pp. 28-29, for a copy of the test.) Briefly stated, Dr. Rusmore concluded that on general principles the test was improperly drawn and utilized in that it contains too few questions to produce reliable results, the procedures by which it was administered were inconsistent with sound testing procedures, and the test was never validated, that is, no attempt was made to determine from the results of the test whether it in fact measured what it purported to measure, 5/ i♦e«i ordinary or average intelligence. Further, Dr. Rusmore 4/ Dr. Rusmore testified at length in the case of People v. Craig, Superior Court of Alameda county No. 41750, 1968. His testimony was relied on by the Superior Court in de ciding to prohibit the use of the test in question to select future jury panels in Alameda County. (A copy of this decision may be found in the record herein at pp.19-29. It was attached as an exhibit to the petition for writ of habeas corpus here). 5/ The term "validate" is used in this Brief in the sense that Dr. Rusmore employs it, i.e., as a technical term in the field of testing. As indicated in the text, in order for the use of a test to be justified, it must be validated. That is, an independent determination must be made that the test in fact measures what it purports to measure. This generally requires comparing the results obtained by the test against another acceptable measure. For example, if a test purports to measure whether a person can do a certain job, the performance of those who pass the test should be compared to a control group. Unless this is done, it is impossible to establish whether the test is doing what it is supposed to do. It may be noted that the United States Equal Employment Opportunity Commission and the Office of Federal Contract Compliance have issued guidelines requir ing that tests must be properly validated in order for them to be used to screen applicants for particular jobs. EEOC -8- points out that there are questions in the test which have no I relationship to intelligence as such but, rather, are influenced by cultural factors. In other words, those questions might be | easily answered by persons with white middle-class backgrounds whereas they would present difficulties to persons from minority groups (R. 70-72). In light of the deficiencies of the test, Dr. Rusmore points out that both the percentage of all persons failing the test, 29 percent, and the percentage of persons from minority backgrounds failing the test, 81.5 percent, were too high to be consistent with its measuring orginary intelligence. This is because it is virtually inconceivable that such a high pro portion of persons are below average or ordinary intelligence. Dr. Rusmore drew the overall conclusion that: "it can in no way be said that the test provided an accurate or adequate measure of the intelligence of prospective jurors in Alameda County during the time period in question" (R. 72-73). Rather, the factor of cultural bias in the questions could account for the extraordinarily high percentage of black, low income persons failing the test (R. 72). In summary, petitioner demonstrated through facts 5/ Contd. guidelines on Employee Selection Procedures, 35 Fed. Reg. 12333 at §§16074, 16075, 16077, OFCC, Validation of Tests by contractors and subcontractors subject to the Pro visions of Executive Order 11246, 33 Fed. Reg. 14392, §§ 2,3,5.--These guidelines, of course, are issued to protect against the use of tests that have a discrimina tory effect against minority groups in employment. -9- in effect admitted by the State of California that an extra ordinarily high proportion of persons from his racial and economic background were excluded from jury service in Alameda j County at the time of his prosecution. This exclusion necessarily resulted in a jury panel from which his jury was chosen that failed to represent a cross-section of the com munity. The only justification which the state produced for this disproportion was the use of a test by which persons were weeded out for allegedly not being of ordinary intelligence. Evidence by an expert witness establishes that both in terms of its contents and in terms of the methods of its administra tion the test was so deficient that it could not be said that it measured ordinary or average intelligence. As shown above, the state did not contest the fact that the test resulted in jury panels from which members of peti tioner's class were excluded in gross disproportion to their numbers in the overall community. Nor did it show that the test excluded only, or substantially only, persons unqualified to sit on juries. Nevertheless, the district court took the position that since petitioner had not affirmatively shown that there was a deliberate intent or purpose to discriminate, no violation of his constitutional rights had been shown and the writ was denied (R. 86-90). -10- ARGUMENT The Facts In This Case Establish A Denial Of Petitioner's Right Under the Fourteenth Amendment To A Jury Representing a Cross Section Of The Community And From Which Members Of His class Have Not Been Arbi trarily Excluded. ( I ' At the time of petitioner's prosecution, the Alameda County jury commission used methods for selecting jurors that had the effect of excluding a substantial majority of eligible blacks and low income persons from jury service in criminal trials. At the same time, a much lower proportion of white, middle income persons were excluded. The instrument that resulted in this discrimination was a so-called "clear-thinking" test which purported to measure "ordinary" intelligence of prospective jurors. This test ex cluded 29 percent of all persons who had been determined at that point eligible to serve on juries. However, the test excluded 81.5 percent of persons from the West Oakland area of Alameda County, a section of the county which is predominantly populated by black and low income persons. On the other hand, the test excluded only 14.5 percent of persons from the Montclair area of the county, an area predominantly populated by white persons---Thus, the use of the test drastically reduced the number of persons of minority race and low economic class i -11- eligible to serve. This resulted in the master jury panel from which jurors could be drawn bexng grossly unrepresentative of such groups and hence of the community as a whole. Petitioner 1/is himself black. A. These Facts Establish a Prima Facie Case of Illegal Jury Discrimination. Over a long period of time the Supreme Court of the United States has spoken numerous times to the issue of jury selection and jury composition. The cases have largely dealt with black defendants who have been tried by juries drawn from jury panels on which there was not an adequate representation of members of their race. It is now clear from the most recent decisions of the Supreme Court that the constitutional require ment imposed on the statS-is that a jury be "'a body truly re presentative of the community' composed of 'the peers or equals 6/ It should be noted that no factual hearing was held below. The district court accepted, for the purpose of ruling on the state's motion to dismiss, the factual allegations made. At the hearing on the order to show cause, counsel for peti tioner requested permission to develop fully the facts re lating to jury selection methods and their results through discovery. Thus, in petitioner's original memorandum of law it was pointed out that law students, in connection with the present case, had examined the master jury lists for 1966, the year in which petitioner was tried. They dis covered that registered voters from the white Montclair dis trict were nearly four times as likely to be eligible for jury service in Alameda County as those from the black West Oakland area. The students attempted to obtain information from the Alameda Jury Commissioner that would show the rela tionship between this disparity and the use of the "clear- thinking" test, but were unable to do so. It was proposed that this and similar information would be developed through discovery. The court, however, took the position that since the state did not deny any of petitioner's factual allegations, no proof was needed of them in order to determine the motion to dismiss. 12- / of the person whose rights it is se2.ected or summoned to deter mine; that is, of his neighbors, fallows, associates, persons having the same legal status in society as that which he holds.'" Carter v. Jury Commission of Green County, et al.. 396 U.S. 320, 330 (1970) citing Smith v, Texas, 311 U.S. 128, 130 (1942); Strauder v. West Virginia, 100 U.S. 303, 308 (1879). See also Thiel v. Southern Pacific Company, 328 U.S. 217 (1946); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966). Thus, the duty of the state is not merely negative, i.e. not to deliberately exclude blacks, but is affirmatively to constitute its jury lists so that they reasonably approximate a cross section of the community and in fact represent the community from which the defendant comes. This does not mean, of course, that every jury must meet some quota; it means simply that the jury selection system must produce the required representation in the general run of cases. In dealing with the problem of proof of discrimination in jury selection, the Supreme Court has developed rules which have been consistently applied in striking down convictions by juries drawn from improperly constituted panels. The main rule of these decisions is that courts should not attempt to read the minds of jury commissioners and seek to determine whether they consciously or deliberately intended to discriminate against prospective black jurors. Rather, the Court has developed a prima facie test which essentially rests on statistical analysis of the composition of jury panels. (As the Fifth Circuit has succinctly put it, "figures speak and when they do, Courts -13- listen." Brooks v. Beto, 36G F. 2d 1, 9 {3th cir. 1966)). Thus, the Court has held in innumerable cases that where 2/ a defendant has shown that a substantial number of his race or class has been excluded from jury service so that juries are unrepresentative of the community, the burden is shifted to the state to affirmatively justify the disproportion shown. Thus, the Court has said that such statistical evidence "in itself [makes] out a prima facie case." Norris v. Alabama, 294 U.S. 587, 591 (1935). See also Jones v. Georgia. 389 U.S. 24, 25 (1967); Coleman v. Alabama. 389 U.S. 22, 23 (1967); Avery v. Georgia. 345 U.S. 559, 562-563 (1953); Patton v. Mississippi. 332 U.S. 463, 468-69 (1947); Hill v. Texas, 316 U.S. 400, 405-406 (1942). Therefore, it is not necessary to show actual ill will, evil motive, or absence of good faith on the part of the state. See, United States ex rel. Seals v. Wiman. 304 F.2d 53, 65 (5th Cir. 1962). There can be no question but that petitioner made out a prima facie case of improper exclusion here. Strikingly similar are the facts in Turner v. Fouche. 396 U.S. 346 (1970), a com panion case to Carter v. Jury Commission, supra. in Turner, the Court was concerned with the application of a Georgia statute required that jurors be "intelligent" and "upright". it noted that in compiling the jury list in question, 96 percent of the total number of persons rejected as not meeting those standards 1_/ Or a plaintiff in a class action seeking affirmatively to end jury discrimination. See Carter v. Jurv Commissioners of Green County, et al., 396 U.S. 320 (1970) -14- were Negroes (396 U.S. at 358). The court remanded the case to the district court because of its failure to respond to the elimination of this disproportionate percentage of Negroes as "unintelligent" by requiring the jury commissioners to present a constitutionally adequate explanation for the disparity. Here, 81.5 percent of eligible persons from a black, low income area were rejected also for being "unintelligent", or at least for not possessing "ordinary intelligence". Just as in Turner, the district court below should have required the state to justify this result by shifting to it the burden of over coming petitioner's prima facie case. B. The Use of the "Clear-thinking" Test in Question Here was not Sufficient to Over come Petitioner's Prima Facie Case. As shown above, the Supreme Court has held that once a substantial disproportion between eligible blacks and blacks chosen for jury panels has been shown, the burden is on the state to provide a constitutionally acceptable explanation for the disproportion. It is simply not enough to profess a lack of intent to exclude anyone because of race; some valid explana tion must affirmatively appear. Turner v. Fouche, 396 U.S. at 361. \ In this case the state has sought to explain the results set out above by pointing to the fact that a test was given to prospective jurors which purported to measure th'eir intelligence and thus weed out persons who were not suited to sit on juries. In so doing, the state has relied on the decision in Carter and -15- in Turner, supra. Petitioner contends, that the state mis construes the holdings of those cases. I It is true that in those cases the Supreme Court declined to hold unconstitutional on its face, as being too vague and as giving jury commissioners discretion that could be abused, a requirement that jurors be intelligent. Petitioner does not quarrel with this holding, nor is his position in any way in- ) consistent with it. Petitioner concedes that, if the state is able to demonstrate that the methods it employed in fact adequately and accurately measured the intelligence of prospective jurors (and only their intelligence) and thus limited the jury panels to persons who possessed ordinary intelligence, they would be proper. However, the burden is clearly on the state to affirma tively demonstrate that the method used did produce such a result. The cases cited above indisputably hold that once a significant disparity is shown in the representation of minority groups the state must justify that disparity by supporting affirmatively the jury selection method used. in the context of this case this means that the state must show that the "clear-thinking" test was a valid test and measured with reasonable accuracy the capacity of persons to serve on juries. A close analysis of Turner supports fully petitioner's position. The fact that the Court declined to hold that the requirement that jurors must be "intelligent" was unconstitutional per .se, did not end the matter. Indeed, the state's mere asser tion that blacks had been excluded because they were "unintelligent" -16- was only the beginning of the inquiry. The Court made clear that the question remained as to whether the standard, however objective on its face, had been properly applied. As stated above, it noted the fact that 96 percent of the total number of persons removed allegedly because of failure to meet this standard were Negroes. The District Court in Turner erred in not considering this "extraordinary high percentage of Negroes eliminated" for those reasons in judging the validity of the methods used. The court below, in rejecting petitioner's claim, simply accepted the proposition that since the device which resulted in the exclusion of blacks was racially neutral and "objective", no violation of Fourteenth Amendment rights was shown. This approach, however, in addition to failing to make the inquiry required by Turner, failed to take into account a line of authority which establishes that if purportedly "objective" criteria have the effect of racial discrimination, equal pro tection is denied. Thus, in the case of Gaston County v. united States, 395 U.S. 285 (1969), the Supreme Court held invalid voter literacy tests which on their face were evenhandedly applied to both white and black applicants. The basis of the decision was that, because of the past history of racial discrimination in public education, Negro graduates of North Carolina schools had not been provided with educational opportunities comparable to those provided whites. Since Negroes were disadvantaged as 17- compared to whites in the application of the literacy tests, the effect of what otherwise was an objective standard was to dis criminate against black registrants. Similar "objective" criteria have been struck down because of their discriminatory effect in cases involving admission to a state university, Meredith v. Fair, 298 F.2d 696, 701-02 (5th Cir. 1962)(require ment that applicant be recommended by six alumni held inapplicable to blacks), voter registration rules, United States v. Logue, 344 F.2d 290 (5th Cir. 1965)(requirement that registrant be re commended by a registered voter struck down where no blacks registered), and jury selection, Labat v. Bennett, 365 F.2d 698, 719-20 (5th Cir. 1966)(exclusion of wage earners from jury duty held invalid, conviction reversed, since black persons eligible for jury service wer a high percentage of wage earners). See also, Guinn v. United States, 238 U.S. 347 (1915)(grandfather clause as a voting requirement invalid because of discriminatory effect); Gomillion v. L-ightfoot, 364 U.S. 339 (1960) (redrawing of town boundaries invalid because of effect of excluding Negro 8/ voters). In a recent decision this Court recognized the validity of looking to the effect of governmental action in determining V 8/ See also, cases arising under Title VII of the Civil Rights Act of 1964 striking down "objective" or "neutral" standards because their effect was to exclude a high proportion of blacks. E.g., Local 53, International Assoc, of Heat and Frost Insulators and Asbestos Workers v. Vaqler, 407 F.2d 1047 (5th Cir. 1969); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969); Gregory v. Litton Systems, Inc.,____ F.Supp.______, 63 Lab. Cas. 91 $9485 (C.D. Calif. July 28, 1970). -18- whether there has been a denial of equal protection. Southern Alameda Span, Sp. Orq. v. Union City, 424 F.2d 291 (9th Cir. 1970) involved the validity of a referendum rejecting an ordin ance which would have allowed the building of low income housing. The Court said: I ' ."Appellants' equal protection contentions, however, reach beyond purpose. They assert that the effect of the referendum is to deny decent housing and an integrated environment to low income residents of Union City. If, apart from voter motive, the result of this zoning by referendum is discrimina tory in this fashion, in our view a substantial constitutional question is presented." 424 F.2d at 295 (emphasis added). The court below was faced with the following facts to be considered in the light of these principles : (1) the jury lists used in petitioner's case failed to reflect a cross- section of the community, since a greatly disproportionate number of blacks and persons of low income had been excluded from service; (2) this resulted from the application of a pur ported standard of intelligence which had the effect of exclud ing 81.5 percent of blacks and only 14.5 of whites. Under the rule set out in Turner v. Fouche the court erred in simply accepting the validity and objectivity of the intelligence test used. Rather, it should have required the state to establish that the racially discriminatory effect shown was the result of the application of a constitutionally acceptable standard. In the context of this case, this meant shifting to the state the burden of showing that the "clear-thinking" test used measured 9/ what it purported toT 9/ See pp.14-15 infra -19- Petitioner wishes to reiterate that his position is not that the mere exclusion of persons who are truly "unintelligent" from jury duty, violates the Fourteenth Amendment simply because that exclusion results in a non-representative jury list. Both Carter and Turner make clear that the proper application of such a standard is permissible. However, he does contend that Turner also clearly establishes that when, in purportedly apply ing such a standard, a significantly disproportionate number of an identifiable group have been excluded, a federal court must inquire into the administration of the standard. Thus, Turner requires at least that the decision below be vacated and the case remanded with directions that the state be required to justify the methods it used to establish the intelligence of potential jurors when petitioner was tried. Petitioner urges further, however, that it would be appro priate for this Court to go beyond such a remand and order that the writ of habeas corpus be issued. As will now be shown, not only has the state failed to meet the burden imposed by Turner, but petitioner has already himself established that the method used to determine intelligence - the "clear-thinking" test - was invalid. s C. The "Clear-thinking" Test Was An Improper Method For Determining the Intelligence of Potential JurorsT As shown above, at the time petitioner was tried, the Alameda jury commissioners used a so-called "clear-thinking" 20- test to screen potential jurors. Its purpose was allegedly to establish that persons otherwise eligible to serve on juries possessed "ordinary intelligence". Its discriminatory effect in weeding out vastly disproportionate number of blacks and of the poor has been shown supra. In 1968, after petitioner had been tried, Judge Avakian 11/of the Alameda Superior Court in the case of People v. Craig prohibited any further use of this same test. His reasons were basically two: (1) he noted the discriminatory impact of the test; and (2) he held that the test did not actually test "ordinary intelligence" as it purported to do. His findings on the latter point were based on extensive testimony by Dr. Jay Rusmore, a professor of psychology at San Jose State College with long experience in constructing, evaluating, and administer ing tests used to measure fitness for employment, etc. Petitioner in the present action offered an affidavit from Dr. Rusmore in which he, after re-examining the test in wquestion basically reiterated his testimony in Craig. He pointed out the following: 1. The test contains only 25 questions, too few to produce reliable results under sound testing procedure; 10/ A copy of the test can be found in the record herein at pp.74-75 21/ A copy of Judge Avakian's decision appears in the record at pp. 19-27 22/ See R. pp.70-3 for the complete affidavit. The court below, while neither accepting nor rejecting the contents of Dr. Rusmore's uncontradicted affidavit, did note that the test "may have been imperfect ..." ( R. p.88). 10/ -21 2. The test was improperly administered in that persons were not told that they would be stopped after ten minutes, thus penalizing persons attempting to examine the questions carefully; w3. The test was never validated in order to determine that it in fact measured "ordinary intelligence"; 4. The cut-off score was too high, i.e. 80 percent; 5. The failure rate of all persons taking the test (29 percent) and especially that of persons from black neighbor hoods (81.5 percent) was much too high to indicate that the test actually measured ordinary intelligence. 6. Certain questions were culturally biased against persons from non-white, non-middle class backgrounds. In summary, Dr. Rusmore concluded that in light of these factors the test could not be said to measure accurately intelligence at all, and hence results obtained from its use were not valid. Thus, petitioner has already made a clear showing, completely unrebutted by the state, and blacks were in fact not excluded because they failed to meet any valid standard of intelligence. To summarize, petitioner has established the following: (1) he was tried by a jury selected from jury lists from which a greatly disproportionate number of members of his race and economic class had been excluded; (2) as a result, the jury lists failed to represent a true cross-section of the community as required by decisions of the Supreme Court; 13/ See note 5, supra p. 5 -22- (3) the exclusion of blacks and poor persons was by applica tion of an alleged standard of intelligence that had the effect of discriminating against members of his class; (4) the state has made no showing that the exclusion of minority persons was justified; (5) the method used - the "clear-thinking" test - was invalid and cannot be said to have measured the intelligence of prospec tive jurors. Thus, the court below erred in denying the petition for writ of habeas corpus. CONCLUSION For the foregoing reasons, the judgment below should be reversed with directions to issue the writ of habeas corpus. Respectfully submitted, OSCAR WILLIAMS, JR 1095 Market St., Suite 418 San Francisco, Calif. 94103 JUDITH ANN CIRAVLO , 160 Taurus Ave Oakland, California JACK GREENBERG CHARLES STEPHEN RALSTON 10 Columbus Circle, Suite 2030 New York, N.Y. 10019 Attorneys For Petitioner-Appellant -23- CERTIFICATE OF SERVICE I hereby certify that I have this day served by United States mail, postage prepaid, a copy of the attached Brief For Petitioner-Appellant on the Attorneys for Respondent-Appellee: Hon. Thomas c. Lynch Attorney General of the State of California 6000 State Building San Francisco, California Gloria F. DeHart, Esq. Deputy Attorney General 6000 State Building San Francisco, California Dated: October 23, 1970 Charles Stephen Ralston Counsel for Petitioner-Appellant Richard L. Carmical s 24-