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May 14, 1985

NORMAN A.J. McCALL, Plaintiff,

The opinion of the court was delivered by: GASCH


 On May 6, 1985, defendant Shields Associates, Inc. ("Shields") filed a motion challenging the constitutionality of the Modified Plan for the United States District Court for the District of Columbia for the Random Selection of Grand and Petit Jurors (as amended through May 22, 1978) (hereinafter "the Modified Plan"). Shields also contends that the Modified Plan violates the Federal Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. ("the Jury Act"). On May 10, 1985, the Court held a hearing on this motion, which included testimony presented by Ugo Carusi, Esq., Chairman of the Jury Commission of the District of Columbia, and Kathleen C. Beadnell, Chief Clerk to that Commission. The Court denied the Shields motion from the bench. This memorandum is issued pursuant to that ruling.

 The Shields motion challenges only one aspect of the Modified Plan: the automatic excuse provisions contained in Section G(2). Under that section, individuals in specified categories *fn1" may elect to be excused from jury duty. Shields contends that because a higher percentage of white persons receiving jury questionnaires *fn2" elect to rely on one of these excuse provisions than black persons responding to the questionnaires, *fn3" the Modified Plan systematically excludes white persons from serving on juries in violation of the Seventh Amendment, Due Process Clause, and Jury Act.

 Shields relies principally on Duren v. Missouri, 439 U.S. 357, 364, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979), and Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975). Duren, Taylor, and their progeny, however, are not applicable to this case as they address the Sixth Amendment right (made applicable to the states by virtue of the Fourteenth Amendment) of criminal defendants to a jury drawn from a fair cross-section of the community. See, e.g., Bullington v. Missouri, 451 U.S. 430, 436, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981); Taylor, 419 U.S. at 522-23. By its terms, the Sixth Amendment has no relevance to civil proceedings but instead serves to "guarantee[] an impartial jury trial in criminal prosecutions." Taylor, 419 U.S. at 526 (emphasis supplied).

 A review of the cases cited in Shields' brief fails to support Shields' argument that the Seventh Amendment or Due Process Clause provide a civil defendant with a right to a jury drawn from a fair cross-section of the community that is identical to that of a criminal defendant. *fn4" Moreover, even assuming Shields is correct in this regard, it has failed to establish a prima facie case of violation of the fair cross-section requirement. To do so Shields would have to establish that the representation of whites on the qualified jury wheel "is not fair and reasonable in relation to the number of such persons in the community." Duren, 439 U.S. at 364. As the affidavit submitted by Dr. Richard J. Lurito demonstrates, whites make up 18.64 percent of those persons on the qualified jury wheel and 26 percent of the total population in the District of Columbia. Although there is some disparity, the Court finds that the discrepancy is not sufficient to constitute a violation of the fair cross-section requirement. See Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965); United States v. Test, 550 F.2d 577, 587 (10th Cir. 1976). This case is thus distinguishable from Duren where women represented 54 percent of the population but only 14.5 percent of the prospective jurors. 439 U.S. at 365-66. *fn5"

  The Supreme Court has also recognized the Equal Protection Clause protects against discriminatory exclusion or substantial underrepresentation of persons from petit or grand juries. See, e.g., Castaneda v. Partida, 430 U.S. 482, 493-94, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977); Hernandez v. Texas, 347 U.S. 475, 477, 98 L. Ed. 866, 74 S. Ct. 667 (1954). *fn6" Assuming, without deciding, that this line of cases applies both to civil and criminal proceedings, Shields cannot succeed in its challenge under this authority as well. As discussed supra, Shields has failed to establish a sufficient "degree of underrepresentation." Moreover, Shields failed to establish that the selection process is not racially neutral or that it is susceptible of abuse. It is undisputed that the jury lists are compiled from racially neutral sources. The excuse provisions complained of are based solely on objective criteria. See United States v. Lopez, 588 F.2d 450, 451-52 (5th Cir.), cert. denied, 442 U.S. 947, 61 L. Ed. 2d 319, 99 S. Ct. 2895 (1979); Obregon v. United States, 423 A.2d 200, 207 (D.C. 1980), cert. denied, 452 U.S. 918, 69 L. Ed. 2d 422, 101 S. Ct. 3054 (1981). Thus plaintiff has failed to establish a prima facie case as the statistics proffered do not support an inference of intentional discrimination.

 Even if Shields had established a prima facie violation, the testimony of Ugo Carusi, Chairman of the District of Columbia Jury Commission, clearly demonstrated that the Modified Plan was developed, adopted, and implemented without discriminatory intent. Any unequal representation was shown to be the product of racially neutral selection criteria. Washington v. Davis, 426 U.S. 229, 241, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).

 Having rejected Shields' constitutional challenge, the Court next considers the sufficiency of Shields' claim that the Modified Plan fails to comply with the Jury Act. Shields does not contend that the Modified Plan violates the requirement of 28 U.S.C. § 1863(b)(2) that the names of prospective jurors "be selected from the voter registration lists." Rather Shields challenges the excuse provisions of Section G(2) of the Modified Plan as violative of 28 U.S.C. § 1863(b)(5). The Court rejects this challenge as without merit. First, the excuse provisions were adopted pursuant to findings of the District Court referred to in the Modified Plan that mandatory service by the affected categories "would entail undue hardship or extreme inconvenience to the members thereof, and [that] excuse of the members [of these groups] would not be inconsistent with sections 1861 and 1862" of the Judicial Code. Section 1863(b)(5) specifically authorizes such excuse provisions if such findings are properly made. The Court sees no basis for challenging these findings. *fn7" Second, the legislative history of the Jury Act demonstrates that the statute does not contemplate challenges such as that presently before the Court so long as "the initial source list [in] the selection process" produces a fair representation of the make-up of the community. See H.R. Rep. No. 1076, 90th Cong., 2d Sess. at 5, reprinted in [1968] U.S. Code Cong. & Ad. News, p. 1794. The District of Columbia Court of Appeals relied on this reasoning to reject a Jury Act challenge to the Modified Plan in Obregon v. United States, supra, and the Court adopts the reasoning of that decision. See id. at 207-09.

 Oliver Gasch


 Date: May 14th 1985

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