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State v. Guillory3/11/1998
one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. . . . Next, the degree of under representation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as [foreman], over a significant period of time. . . This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class. . . . Finally . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.' Ibid.
Only if respondents established a prima facie case of discrimination in the selection of the foreman in accord with this approach, did the burden shift to the State to rebut that prima facie case. Id., at 495, 97 S.Ct., at 1280."
443 U.S. at 565, 99 S.Ct. at 3005.
See also Guice v. Fortenberry and State v. James, 459 So.2d 1299, 1307-1308 (La. App. 1st Cir. 1984), writ denied, 463 So.2d 600 (La. 1985), each of which utilized the three-part test of Castaneda in evaluating a claim of racially discriminatory selection of grand jury forepersons.
The applicable procedures pertaining to the selection of grand jury forepersons in East Baton Rouge Parish are contained in La. Code Crim.P. art. 413, which provides, in pertinent part, as follows:
"The grand jury shall consist of twelve persons qualified to serve as jurors, selected or drawn from the grand jury venire."
"In parishes other than Orleans, the court shall select one person from the grand jury venire to serve as foreman of the grand jury. The sheriff shall draw indiscriminately and by lot from the envelope containing the remaining names on the grand jury venire a sufficient number of names to complete the grand jury."
The record reveals that on August 11, 1988, defendant filed a motion to quash the indictment on the basis of his claim of intentional, discriminatory and systematic exclusion of blacks from the position of grand jury foreperson in East Baton Rouge Parish. On September 7, 1988, a hearing was held in regard to this motion.
Id. at 573-574. (emphasis added; footnotes omitted).
The evidence presented by the defendant at the hearing in Young was similar to the evidence introduced by the Defendant at the pretrial hearing in the present case. The defendants in both cases introduced evidence concerning the manner of selecting the general venire from the list of registered voters and licensed drivers; the racial composition of the grand jury forepersons for years past was introduced; and the defendants also introduced the latest census data to establish the racial composition of the parish affected. In the present case, counsel for the defendant introduced additional evidence concerning the percentage of females in the population and grand jury forepersons. In neither case did the defendants introduce any evidence about the racial or gender composition of the general venire. As the Young opinion explains, this is fatal to a defendant's claim of racial discrimination.
It is clear that the defendant has established the first part of the Castaneda test, as the black race, of which he is a member, is a recognizable distinct class which has been singled out for different treatment. See State v. James, 459 So.2d at 1308. In regard to the third part of the Castaneda test, one may assume for purposes of this case that the East Baton Rouge Parish method of selecting a grand jury foreman is susceptible of abuse. Cf. Rose v. Mitchell, 443 U.S. at 565-66, 9
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