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Snith v. State8/25/2000
443 U.S. 545 (1979).
At the hearing on the pretrial motion to dismiss, Smith presented evidence that from spring 1990, until Smith was indicted in spring 1995, 11 grand juries were convened in Tallapoosa County. Of the 11 grand juries convened, two had forepersons who were women -- spring 1992 and one in fall 1993. Smith also submitted the 1990 census for Tallapoosa County. This census reflected that in 1990 women over the age of 18 made up 54% of the population in Tallapoosa County. There was also a stipulation at the hearing that the grand jury forepersons were selected by the local circuit court judges, sometimes with the advice of the district attorney.
Certainly, women constitute a distinct group in Tallapoosa County and Smith's evidence showed that 2 women had been selected as forepersons out of the 11 grand juries that had convened in the period he reported on. The foreperson of Smith's grand jury was male.
However, Smith did not meet the third prong of the Lee and Locke test.
Although there was a stipulation as to how foreperson were generally selected in Tallapoosa County Smith did not present evidence as to how the grand jury foreperson who presided over the grand jury that indicted him was selected. There was evidence presented that the presiding judge did not always follow the district attorney's recommendation and that the judge would, on occasion, select the grand jury foreperson himself.
However, there was no indication how the grand jury foreperson for Smith's grand jury was chosen. Neither was there evidence as to the criteria that the judge used in selecting the grand jury foreperson.
There was no evidence that the standards by which the judges chose grand jury forepersons were discriminatory. Also, defense counsel at the hearing admitted that he did not know the gender composition of Smith's grand jury.
As this Court stated in Drinkard v. State, [Ms. CR-95-055, December 18, 1998] ___ So. 2d ___, ___ (Ala.Crim.App. 1999):
" he appellant did not establish that there was any discrimination in the selection of the foreperson of the grand jury that indicted him. The racial composition of the grand jury is not evident from the record. It would be sheer supposition to conclude that an African-American served on the grand jury that indicted the appellant, and that he or she was not selected to serve as foreperson solely because of racial discrimination in the selection process. ... Even if we were to assume for the sake of argument that racial discrimination played a part in the selection of the grand jury foreperson, the appellant did not establish that the discriminatory selection changed the composition of the grand jury -- the foreperson was chosen from among the members of the grand jury -- or that the foreperson of the grand jury that indicted him exercised more than a ministerial role."
Moreover, there is some question as to whether Smith furnished correct statistical information when attempting to satisfy the second prong of the Lee and Locke test. As the Louisiana Court of Appeals stated in State v. Guillory, 715 So. 2d 400, 413-14 (La.Ct.App.), writ, denied, 726 So. 2d 217 (La. 1998):
"` ince the general venire in East Baton Rouge Parish is composed of `qualified' persons drawn from a random list of registered voters and licensed drivers in that parish, the total percentage of a particular minority in the general population does not have a direct bearing on the make-up of the general venire, from which the grand jury venire is randomly drawn, and the grand jury foreman is selected. Rather, it is the percentage of the particular minority in the general populatio
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