Shuttlesworth v. Birmingham AL Petition for Writ of Certiorari

    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

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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).

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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

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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"

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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/

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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

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(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

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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

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