DUREN v. MISSOURI

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Argument of Lee M. Nation

Chief Justice Warren E. Burger: We'll hear arguments next in 6067, Duren against Missouri.

Mr. Nation, you may proceed whenever you're ready.

Mr. Nation: Mr. Chief Justice, may it please the Court.

In March of 1976, petitioner Billy Duren appeared for trial on the Jackson County Circuit Court.

Appearing with Mr. Duren was a jury panel.

That panel of 53 people included only five women.

Billy Duren moved to quash the jury panel on the basis that the Missouri procedure for selecting jurors violates his right to a reasonably representative cross-sectional jury.

Justice Thurgood Marshall: Mr. Nation, if you excuse me, there's a crank on the side that you'd -- lift it up.

Mr. Nation: Okay, thank you.

I think I'm okay.

Justice Thurgood Marshall: What I mean that microphone.

Justice Potter Stewart: We can hear you better.

Justice Thurgood Marshall: That microphone.

Chief Justice Warren E. Burger: No, up the other way.

Mr. Nation: Mr. Duren's motion to quash filed before trial was overruled and he was convicted of murder in the first degree by an all male jury. Of course, our challenge here is bottomed upon Taylor versus Louisiana.

Taylor holds first that petitioner Billy Duren can raise such a challenge concerning women on juries.

And second, that if women are not on juries in sufficient numbers, Billy Duren's right to a fair cross-sectional jury panel has been defeated.

The Missouri Court --

Chief Justice Warren E. Burger: Wait a minute, did you say the on the jury or on the jury panel?

Mr. Nation: On the jury panel.

Chief Justice Warren E. Burger: Not the jury.

Mr. Nation: Jury panel.

The Missouri Court and the state here attempt to distinguish Taylor in two ways.

First, that the effect of the Missouri system is different than the effect of the Taylor system. I will speak to that issue.

My co-counsel Professor Ginsburg will speak to the distinction the state makes with respect to the operation of the women's exemption.

The facts of this case speak strongly.

Jackson County is 54% women.

Voters -- the voter registration roles are used to pick the master jury wheel and we would assume that the voter registration roles through the statistics in our brief would mirror the population characteristic of 54%.

Each year, the voter registrations roles are subjected to a random computer search which draws out 70,000 names.

These names are then sent questionnaires to determine whether or not the 70,000 names meet Missouri's law as to eligibility for service.

The questionnaire also contains the women's exemption.

The first question on the questionnaire is “State your sex” and parenthetically, “If you are a woman, and do not desire to serve, see the bottom of the page.”Missouri makes it very easy at this stage for women to opt off and they do in significant

numbers.

This questionnaire procedure unquestionably causes the diminution from 54% women in the community to the panel which is 30% women, excuse me, the master jury wheel which is 30% women.

Our inquiry does not stop there however, because women are given a second opportunity to opt off juries.

Each week before trials, summonses are sent out.

These summonses compel only the attendants of men to serve on the juries.

The questionnaire in red -- excuse me, the summons in red states, “Women, if you do not desire to serve, contact the jury commissioner.”

The jury commissioner John Fitzgerald also testified that if women just ignored the summons, she would be deemed to have exercised her exemption.

She was in Mr. Fitzgerald's words, “an excused female.” Men, however, their names, if they failed to appear would be -- their names would be sent to the bail for the presiding judge who would attempt to contact them.

These summons procedure is the only reason for the diminution between the master jury wheel which is 30% and the number of women appearing for trial week after week.

Justice William H. Rehnquist: Mr. Nation, the Supreme Court of Missouri expressed some dissatisfaction with your numerical claims.

Oh, in what posture do you think we find that factual question?

Mr. Nation: Well, the Missouri Supreme Court cited new -- can you be specific as to which claim they -- you're referring to?

Justice William H. Rehnquist: Well, I am -- I think it's the court's majority and I don't have the opinion directly before me, but it's a phrase that casts some -- gives some indication it is not satisfied in it that you have satisfactorily demonstrated the facts in which you're relying but goes on to treat it --

Mr. Nation: Yes.

Justice William H. Rehnquist: -- as if you had nothing left.

Mr. Nation: There are several things.

First, they didn't like the fact that we used 1970 population statistics which of course are the only statistics that are available.

They didn't like the fact that in the opinion that the master jury wheel count was as they said only an unverified pencil sketch.

Apparently, they forgot to read the transcript because there was testimony concerning the actual count of the jury wheel week after week after week prior to Billy Duren's trial, the panel's average 14.5% women.

They questioned the statistics but I believe the statistics in this case are in such a posture that we can reach the merits certainly.

Further, a woman is again given an opportunity to opt off jury service even after she appears, even after she appears at any point before she has sworn as a juror, she can decide to go home.

Petitioner Billy Duren's jury panel in this case of 53 people with five women, there were almost ten times as many men on the jury panel as there were women.

Now, the state and the Missouri Supreme Court have said that these facts are not conclusive.

In some, what they want petitioner to do is to prove that there is no conceivable or even inconceivable reason which would cause this underrepresentation.

As was noted in the amicus brief filed by the Solicitor General, the constitutional provision allowing women to opt off juries is the only possible explanation for the under-representation.

Further, petitioner --

Justice William H. Rehnquist: You mean a federal constitutional provision of your Missouri (Voice Overlap)?

Mr. Nation: The Missouri constitutional provision.

Further, it is petitioner's position that we have made a prima facie case that we have shown first that the jury selection procedure in Jackson County is non-neutral, that women are given an exemption which men are not.

And second, we have shown that in week after week, jury panels appear for jury service that are only 14.5% women in a community that is 54% women.

Chief Justice Warren E. Burger: Is that because of some lesser registration in the voting process by women?

Mr. Nation: Well, the statistics that are in our brief indicate that in Missouri, men registered to vote -- 71% of the men were registered to vote and 69.9% of the women registered to vote.

Therefore we -- I think, can assume that right around 54% will be what the voter role is.

Further the --

Chief Justice Warren E. Burger: Then when their -- when the wheel is made up, it doesn't reflect the voter population on your figures, you've got definitely 70 to 60.

Mr. Nation: That's correct.

That's correct.

Chief Justice Warren E. Burger: Any explanation for that in the record?

Mr. Nation: 70 to 69%.

Chief Justice Warren E. Burger: Well, roughly 70.

Mr. Nation: Excuse me, I didn't -- what was your question?

Chief Justice Warren E. Burger: Any explanation for why the drawings don't average out fairly close to the --

Mr. Nation: I imagine the -- the computer selects people from the voter registration rolls and we don't know exactly what percentage of those people selected or those people who were sent questionnaires are men and women because obviously, some of the questionnaires never returned.

People either ignore them or they're lost or people have moved away or died.

So we have no way of knowing who is mailed questionnaires.

But presumably, if it is randomly drawn from voter registration roles, it would be about again 54% female.

Petitioner Billy Duren asserts here that we have made a prima facie case, that we have shown a non-neutral jury selection method and that we have shown underrepresentation.

Thus, it is now incumbent upon the state, upon the respondent to give some constitutionally permissible reason for the fact that Billy Duren's jury panel was 9% women.

There is one point that I agree with respondent and with the Missouri Supreme Court.

Jackson County is not as bad as Taylor.

Taylor's panel of 1% was very, very low.

But I don't believe a fair reading of Taylor that Taylor stands for the proposition that anything above 1% is constitutionally permissible.

Instead, the thrust of Taylor is obviously that any system which denies an accused his right to a panel with reasonably representative participation of the elements of society also violates his right to jury trial under the Sixth Amendment.

The importance of a jury, Your Honor, as everyone knows is -- it is the body that is interposed between the accused and the accuser.

It is our way of guaranteeing a man a fair trial and thus it must be woven from the fabric of the community that we cannot exclude any identifiable group that they must be represented on jury panels so that an individual can have a possibility of having these people on his final jury.

Justice William H. Rehnquist: Where do you get that from that you -- the const -- the federal constitution prohibits a state from excluding any identifiable group?

Mr. Nation: From the past precedents of this Court.

Justice William H. Rehnquist: Such as?

Mr. Nation: Such as Taylor.

Justice William H. Rehnquist: Is that what Taylor said?

Mr. Nation: That it -- a state cannot exclude an identifiable group by -- on juries.

Justice William H. Rehnquist: Would you carry that beyond discrimination between the sexes or what other identifiable groups?

Mr. Nation: Blacks, Mexican-Americans.

Justice William H. Rehnquist: How beyond that?

Mr. Nation: That's -- I think that's about as far as we've gone.

Justice Potter Stewart: How about lawyers and judges and dentists and doctors and clergymen and teachers?

Mr. Nation: That doesn't -- the prior cases in the federal circuits have not held those to be identifiable groups.

Justice Potter Stewart: But they are, and that even in the common meaning of that phrase.

Mr. Nation: Well, they're identifiable groups in a common sense language but as in terms of jury, in the jury cases, they have not been recognized as important enough that we need to include them on juries.

Also they make up of --

Justice William H. Rehnquist: Don't you think a lawyer can make a much bigger impact if he's a member of a jury than a woman as a woman or a Mexican-American as a Mexican-American?

Mr. Nation: Well, perhaps he might be able to.

However, lawyers are very small percentage of the community and they're -- even the possibility of they're being on juries is de minimis.

Finally, the system which denies a defendant his right to a reasonably representative cross sectional jury panel violates the Sixth Amendment and should be reversed.

Thank you.

Argument of Ruth B. Ginsburg

Chief Justice Warren E. Burger: Mrs. Ginsburg, you may lower the lectern if you would like.

Ms Ruth B. Ginsburg: Yes, I could do that.

Mr. Chief Justice and may it please the Court.

My argument addresses the citizen's duty tied to a defendant's fair cross section right and the complete absence of justification for exempting any woman.

Though Jackson County jury panels are dominated by men, the Missouri Supreme Court said that the right affected is unimpaired.

That reasoning in two key respects is topsy-turvy.

First, the right central in this case, the right secured by the Sixth Amendment is the criminal defendants.

Here Billy Duren's right to a fair chance for a jury genuinely representative of the community's complexion and second, the vaunted woman's privilege viewed against history's backdrop simply reflects and perpetuates a certain way of thinking about women.

Women traditionally were deemed lesser citizens.

Chief Justice Warren E. Burger: That wouldn't concern Mr. Duren, would it?

Ms Ruth B. Ginsburg: Mr. Duren has a right to a jury drawn from a panel reasonably representative of the community.

Chief Justice Warren E. Burger: Now, as --

Ms Ruth B. Ginsburg: And as this --

Chief Justice Warren E. Burger: -- to who wouldn't -- he wouldn't be interested in the factor you mentioned whether this is fair or unfair to the women, they're called for --

Ms Ruth B. Ginsburg: Yes.

Chief Justice Warren E. Burger: -- a jury service or not called, would it?

Ms Ruth B. Ginsburg: But that was the traditional justification given by states.

First, for excluding women altogether and then second -- the second step was providing an exemption for any women the notion being that the women are not really needed, not really wanted for participation in the democratic processes of Government.

Viewed in that light, this is hardly a privilege.

This is hardly a favor to the supposedly favored class.

But as to the quo right at stake, Judge Saylor dissenting below pointed out a defendant's fair cross section right can be meaningful only if it hinges on a correlative duty, the duty of the citizen to show up for jury service when summoned.

A privilege to avoid service at whim, prominently advertised and readily available to any woman or any man or any other large, stable, distinctive population group, the basis, the defendant's cross section right, that right is real only when the obligation to serve is placed on citizens without automatic exemption based solely on their race, national origin or sex.

Chief Justice Warren E. Burger: I take it that very few doctors serve on juries in Missouri State Courts as is true in most states which -- would you regard that a -- as a --

Ms Ruth B. Ginsburg: Exemptions that apply on the basis of one's occupations reflect determinations by the state that certain occupations for the good of the community should be pursued uninterrupted and it makes no difference whether a person is male/female, black or white, it's the neutral, functional category that is excluded, doctor, lawyer, dentist, clergy not any woman --

Chief Justice Warren E. Burger: Would that preclude the state from saying that without getting into that old cliché about women's places in the home, if the state said in effect, mothers of small children should belong at home not serving on juries.

Now, suppose it were narrowed to housewives with children under 16 --

Ms Ruth B. Ginsburg: There are several --

Chief Justice Warren E. Burger: -- would you still have the same problem?

Ms Ruth B. Ginsburg: There are several states that have exemptions for persons primarily responsible for the care of young children.

Chief Justice Warren E. Burger: So that'd be husbands or wives then.

Ms Ruth B. Ginsburg: It could be husband or wife, yes.

Chief Justice Warren E. Burger: And do --

Ms Ruth B. Ginsburg: But by using the term assuming that it will be the woman here or in a more general, any woman excuse, the state is providing an ineludible message that the male citizens are counted by Government as the essential participants of the administration of justice but the female citizens are not so counted, this service is expendable.

I would like to stress --

Justice John Paul Stevens: Mrs. Ginsburg, may I ask you a question.

If we look at from the point of view of the defendant and you take the view as I think you do that men and women are essentially fungible for purposes of jury service, how is the cross section heard if women are excluded?

Ms Ruth B. Ginsburg: That was an issue that the Court addressed in Taylor against Louisiana.

Yes, men and women are persons of equal dignity and they should count equally before the law but they are not the same.

There are differences between them that most of us value highly.

This Court said twice, first in Ballard against United States and then in Taylor against Louisiana that there is a certain quality that would certainly be missing from that jury --

Justice John Paul Stevens: What is the relevant difference between men and women for the purposes of jury service, from the point of view of the defendant?

Ms Ruth B. Ginsburg: What is the rele --

Justice John Paul Stevens: Yes.

Ms Ruth B. Ginsburg: Is that indefinable something --

Justice John Paul Stevens: That sounds kind of like a stereotype answer to me.

Ms Ruth B. Ginsburg: I think that we -- perhaps all understand it when we see it and we feel it but it is not that easy to describe, yes, there is a difference.

In any event, Missouri's insistence that 9 to 15% representation of women is quite enough although it is an exorbitant argument is understandable for the state to this day has urged no justification whatever for exempting any woman.

Missouri makes no claim that this women's excuse is even minimally rational, though to overcome a defendant's Sixth Amendment right as Taylor held merely rational grounds would not suffice.

The Court said in Taylor that is untenable to suggest it would be a special hardship for a woman to perform jury duty simply because of her sex.

Post Taylor then, a woman's work whether at home or on the job and the administrative convenience of treating all women as expendable, these are not even arguable basis for diminishing the defendant's Sixth Amendment right by diluting the quality of community judgment a jury trial provides.

Moreover, eliminating the exemption for any woman clouds no reasonable jury service exemption.

Only two states, Missouri and Tennessee today maintain a solely sex-based exemption.

Other Missouri exemptions are tied to occupation, prior service, individual hardship, not to an unalterable identification each of us is marked with at birth and identification bearing no necessary relationship to one's capacity or life situation and therefore inherently unreasonable as a basis for jury duty avoidance.

In some, no sense at all nourishes Missouri's solely sex-based exemption implemented by Jackson County's prominent invitations to any woman to sign off and the jury commissioner's assumption from a woman's inaction that she doesn't want to serve.

Have it?

Yes.

Surely not analysis or actual reflection accounts for an excuse based simply on a woman's sex and not on what she does or is capable of doing.

Finally, the Court's eight to one judgment in Taylor leaves no room for the Missouri argument that Billy Duren must show how he in particular might have been disadvantaged by a violation of the fair cross-section requirement.

Selection of a criminal trial jury from a representative cross-section, the Court held in Taylor is an essential component of a defendant's Sixth Amendment right.

Neither Missouri nor this Court is at liberty to apply or dispense with the cross-section rule based on the view of prosecutor or of judge of the strength of the evidence against a defendant.

Full respect for the cross-section command is required of the state because the constitutional safeguard is guaranteed to all and it may be relied upon by every person, the most low and the least deserving to the same extent as the most upright and virtuous.

Justice Harry A. Blackmun: Mrs. Ginsburg, somewhere in these briefs, the opposing brief says a suggestion that if Mr. Duren prevails here, the Missouri jailhouse doors might be open, do you have any comment?

What is your response to that suggestion?

Ms Ruth B. Ginsburg: I think it's certainly the case that this objection is available only the defendants who have properly raised it below and pursued it on appeal.

Moreover, it would be relevant only the case of Jackson County.

That questionnaire and that summons in the record that flags and signals repeatedly that women may take themselves off.

Those are used only in Jackson County and no other county in Missouri, so I would say we are talking about one county only, about trials post this Court's decision in Taylor against Louisiana an only in cases where the objection has been properly raised and pursued under Missouri law.

Justice Harry A. Blackmun: Do you know what the follow through in the Louisiana case was?

Ms Ruth B. Ginsburg: Yes.

Billy Joe Taylor was retried and reconvicted.

Justice Harry A. Blackmun: But was that ruling specifically held not retroactive?

Ms Ruth B. Ginsburg: But you held that it was not retroactive.

Justice Harry A. Blackmun: And so the result is that the Louisiana jails were not open and you think this would follow here also?

Ms Ruth B. Ginsburg: In Taylor against Louisiana, you overturn a fairly, a 1961 precedent, Hoyt against Florida.

Justice Byron R. White: But you would think -- you would argue, I suppose that Taylor mandated the invalidation of the Missouri law.

Ms Ruth B. Ginsburg: I certainly think so.

Justice Byron R. White: And that this ought to go back at least to Taylor.

Ms Ruth B. Ginsburg: At least -- yes.

To --

Justice Byron R. White: Yes.

Ms Ruth B. Ginsburg: Although that's not necessary part of the case that's here today, yes, that was a message that New York got and other states, all states except Missouri and Tennessee got that message.

To conclude, the unconstitutionality of Missouri's excuse for any woman as it operates to distort Jackson County jury panels is plainly established.

Any sensible reading of this record juxtaposed with this Court's eight to one judgment in Taylor leads ineluctably to that conclusion.

Justice William H. Rehnquist: You won't settle for putting Susan B. Anthony on the new dollar, right?

Argument of Nanette Laughrey

Chief Justice Warren E. Burger: I think you have no jurisdiction to make that concession, Mrs. Ginsburg.

Thank you.

Ms. Laughrey.

Mr. Laughrey: Mr. Chief Justice and may it please the Court.

I think there are three issues that we have to address here.

First of all, this Missouri's jury selection system systematically excludes women which I believe is what was held in Taylor versus Louisiana to be unconstitutional if it resulted in jury panels which are almost totally male.

I think we also have to find out what degree of disparity must be proven in order to make out a violation of the Sixth Amendment and I think there's also a question as to the allocation of the burden of proof in these cases.

I will first address the question as to whether Missouri's jury selection system systematically excludes women.

I think there is a distinct factual difference between our system and the Louisiana system and that in Louisiana, women were not included in the jury wheel unless they took affirmative action.

There was an assumption that they were not interested.

In Missouri on the other hand, women are treated at the inception of the process in exactly the same way as are men.

The voter registration lists are used and names are selected at random from those list and questionnaires are sent out.

Chief Justice Warren E. Burger: Are you suggesting that there are generally in the category of physicians and others who's as -- who was conceded by I think your friends in the other side of the table was permissible exclusion on the part of the state for reasons of public policy?

Mr. Laughrey: I think an exemption does not exclude women or doctors.

Chief Justice Warren E. Burger: Well --

Mr. Laughrey: It gives them the opportunity not to participate if they choose.

Chief Justice Warren E. Burger: Well, what do you call it, exemption or exclusion?

Since it gives the woman the opportunity to get off the jury more readily than it goes to other people, carpenters and bookkeepers, then why is it different?

Do you suggest it is essentially the same as that dispensation given the physicians, is that your -- part of your argument?

Mr. Laughrey: Yes, Your Honor it is essentially the same as any exemption which the State of Missouri Courts.

Justice Thurgood Marshall: Is it true that they have -- the woman has two, a woman doctor has two exemptions?

Mr. Laughrey: That is correct Your Honor.

Justice Thurgood Marshall: And you don't see any thing wrong with that?

Mr. Laughrey: I think it is wrong if there is a violation of the Sixth Amendment.

I don't think the question is whether the fact that we give women special privilege is wrong.

I think it's a question of whether as a result of that; Billy Duren's Sixth Amendment Rights were violated.

Justice Thurgood Marshall: Well, isn't that the direct result of them having only 0.9 women on the jury, the direct result of the Missouri practice?

Mr. Laughrey: Your Honor we would submit that no it is not and the --

Justice Thurgood Marshall: And what --

Mr. Laughrey: If petitioner has not shown it to be.

Justice Thurgood Marshall: What would cause it?

What would cause this?

Where you have 54% population, what would make it possible to have such as small amount, lets say among juries?

Mr. Laughrey: Petition -- Your Honor, we do not believe that it is the obligation of the state to show why there was so few women on the jury but rather that the burden of proof was on the petitioner.

Justice Thurgood Marshall: -- if you're unreasonably requested to do so, can you?

Mr. Laughrey: No Your Honor because we --

Justice Thurgood Marshall: You can't justify it, can you?

Mr. Laughrey: What do you mean by justification?

Justice Thurgood Marshall: What the word it says.

Mr. Laughrey: The reduction in the number of women available or the reason for the exemption?

Justice Thurgood Marshall: The reason for the exemption, one.

Mr. Laughrey: One, no.

The exemption originally was given because of the presumed role of women in the home and that there were so many women in that situation that they should be given an exemption.

Also, there was some intimation that women should be given a choice as to whether they wanted to participate in the selection of juries where certain details might be describe that they were uncomfortable in hearing.

Justice Thurgood Marshall: And at a time when --

Mr. Laughrey: Those --

Justice Thurgood Marshall: They weren't even qualified to vote?

Mr. Laughrey: Yes Your Honor, that is true and I think this Court in the past has characterized those as --

Justice Thurgood Marshall: Oh, they make contracts.

Or to make contracts?

Mr. Laughrey: Yes Your Honor and I think --

Justice Thurgood Marshall: They just couldn't do anything but tend a home.

Mr. Laughrey: I think the question Your Honor is not whether we can justify the exemption because we only need to justify the exemption once it has been shown to be a violation of the Sixth Amendment and once it has been shown to operate in such a way that there are so few women on the jury panel that it is no longer fairly representative of the community.

And it is our belief that the figures in this case are sufficient to show that there was a fair cross-section of women on the community, on the panel.

We would point to the fact that there were 29% women on the master jury wheel even after women were given the opportunity to fill out the questionnaire and take their exemption there were still 29% women which is three times more than the situation in Taylor versus Louisiana.

There were 15 times more women on the venires than there were in Taylor versus Louisiana.

In Taylor, you stated that it would be a violation if we could -- if it were shown that the exemption or the exclusion resulted in almost totally male panels.

We submit to you that almost totally male is not an accurate characterization of the panels which tried Billy Duren and which are used in Jackson County, Missouri.

As I said before, I agree that what once were justifications for our exemption maybe outmoded in archaic.

And yet it seems to me that the basis of the petitioner's position is that Billy Duren somehow was deprived of a fair and impartial trial because the indefinable something that distinguishes men and women.

I submit that is equally outmoded in archaic and not a basis for finding a violation of the defendant's Sixth Amendment.

Justice Thurgood Marshall: Didn't Taylor say so?

Mr. Laughrey: Yes Your Honor, Taylor did say so.

Justice John Paul Stevens: Taylor is based on an outmoded stereotype is what you're saying.

That's your argument?

I think it is.

Mr. Laughrey: I submit that that is in fact.

I think an important question here also is where the burden of proof is going to be allocated in these cases.

In other cases which are pending before this Court on petitions for cert, you are aware that there has been evidence introduced to show that the reduction from 54% to 29% on the jury wheel was the basis of the questionnaires and the exemptions for women.

This however is not in the record before this Court and we submit that it should not be considered by this Court since it was not considered by the Missouri Supreme Court in making of their decision.

Even however, if you do consider that evidence, there is still no explanation for the diminution of the amount of women from 29% to 15% because we submit that if a woman has a right to check the questionnaire and say, "I don't want to serve" and she doesn't then we can assume that she's later when she's called to serve going to say, “Well, the only reason I'm not interested in serving it's because I am a woman.”

And there is no proof in the record here as to why women were excused for cause by the judge as evidenced in the tables which are in the appendix.

Justice William H. Rehnquist: Ms. Laughrey, let me get back for a moment if I may to your comment about the outmoded stereotype in response to Justice Stevens' question.

Actually, a jury -- lawyers who pick juries operate largely on stereotypes, don't they?

In the sense that, you know people of certain nationalities are believed to award higher personal injury verdicts than others.

And others -- there's types that are supposed to be more favorable to criminal defendants, others are kind of hard hearted and favorable to the prosecution, there maybe very little to them, to the stereotypes, perhaps, they're not justified but certainly a lot of lawyers use them in picking juries in using their preemptory challenge.

Mr. Laughrey: That may be Your Honor, I don't know, is there a question?

Justice William H. Rehnquist: Well, the question, you say in effect that it didn't make any difference to Billy Duren that there weren't that many women on the jury because there really isn't much -- the concept that women would react differently than men is outmoded or did I misinterpretation your --?

Mr. Laughrey: No, that was correct Your Honor.

I think though that when we're talking about a violation of the Sixth Amendment and saying that he did not have a fair and impartial trial that -- and not allowing the State of Missouri to justify their exemption on the basis of outmoded in archaic ideas.

It seems inconsistent to rely on those kinds of ideas to fashion the Sixth Amendment violation.

I'd like to discuss the question of burden of proof for a minute as it relates to the reduction of women from 29% to 15% and from 54% to 29%.

The Solicitor General would like this Court to say that there some kind of a prima facie case made out when you show a non-neutral selection process.

And you show underrepresentation and they try to relate this to the situation in which this Court has found discrimination and exclusion of a particular group from a jury on the basis of a lower representation of that group and a non-neutral selection process a subjective selection process.

And if shifted, the burden to the state, we submit that there is no reason to make such an allocation of the burden of proof in these cases because of the fact that the same situation is simply inapplicable here that is applicable in a discrimination case.

When you're talking about trying to point at some place in a subjective process where discrimination has occurred, it is impossible for the defendant to go into that process and find out at what point that happens and therefore there is a reason for developing these rules about the prima facie case in shifting the burden of going forward with the evidence of the state.

We submit that there is no similar reason here that there is nothing in our process which makes it easier for the state to show why it is not the exemption for women than it is for the defendant to show that it is the exemption for women that results in the underrepresentation.

As evidenced by the fact that they have counted the questionnaires, they have found out the reason as far as other cases go.

Justice Byron R. White: Suppose, it was sought that prima facie case had been made out, does the state -- what's the state's strongest argument in justification or do you have one?

Mr. Laughrey: Are you talking about justification for the exemption?

Justice Byron R. White: Yes, for treating women different than men and in terms of excuse.

Mr. Laughrey: We recognize that women still play a primary role in the home that even though women may in fact be working mothers does not mean that they have been relieved of the responsibilities of their obligations to the home or to their family.

And that just because their work is not a sufficient reason for saying that they no longer carry the responsibilities that they were once thought to have.

Justice Byron R. White: Is that -- is that a -- do you think that's the legislative decision?

Mr. Laughrey: The justification for this exemption?

I don't know what the legislative justification was.

We do not have any evidence.

I submit that that is the strongest justification that the State of Missouri can make for the exemption.

Chief Justice Warren E. Burger: Well, under McGowan against Maryland if there was any rational reason for it, we'd give that considerable weight I suppose, would we, should we?

Mr. Laughrey: Yes, but again, it's not an equal protection case.

I don't think the question is whether our exemption is good or bad.

It's a question of whether it fits in to the mold of Taylor versus Louisiana.

And in Taylor versus Louisiana, there were certain statements about what made out a violation of the Sixth Amendment.

There had to be systematic exclusion of women.

We submit that there was not exclusion of women here because we did not assume that they were not going to serve on juries merely because they did not opt in to the jury selection process.

I would like to point to one place in the petitioner's reply brief that I think it's an inaccurate characterization of the fact.

On page 3, they indicate that if women do not return their questionnaires and do not respond to the jury service summons it is assumed that they will -- that they do not want to serve and that is not true.

If a woman does not return her questionnaire, she is automatically put in the pool from which juries are selected.

Second part of that statement is true.

If a woman does not respond to the summons, they do assume that she's going to exercise her right to an exemption.

But I think there is a distinct difference between a process which at the beginning does not include women in the jury selection system.

And a process at the end which does not send the police out to arrest women because they may use their exemption is a distinct factual deference.

I think also if you look at the statistics in the appendix and the tables which the petitioner has provided, you will see that the number of women who do not respond to summons is insignificant in comparison to the number who have appeared for jury duty who are excused and for other reasons and end up appearing on the jury wheel (Voice Overlap).

Justice Potter Stewart: What happens to a man who does not respond to the summons?

Mr. Laughrey: The testimony is that the police will make an attempt to find out why he has not responding.

Justice Potter Stewart: Well, (Voice Overlap) if they find out, I just -- if they didn't want to serve.

Mr. Laughrey: There is a distinction at that point.

Justice Potter Stewart: And he tells the police I just didn't want to serve, that's a reason I didn't respond.

Then what happens to him?

Mr. Laughrey: He is subject to be in held in contempt of court.

Now, in the record in this case there is no great discussion about how many men in fact are found to be held in contempt of court whether they do anything about it.

I would point you however to a footnote in the petitioner's reply brief at page 2, footnote 1, when they talk about the Saint Louis jury system and state that if we were to amplify we would indicate that in Saint Louis they do not assume from the fact that women do not answer the summons that they do not want to serve.

In talking with Mr. Ruland (ph) who is the author of the Authority which they cite, the situation in Saint Louis is that for a period of time, they experimented and they went out and try to find out why people did not show up.

And if a woman did not show up, they did nothing to her in exactly the same as in Jackson County.

What they really --

Justice Potter Stewart: Is Jackson County a Kansas city?

Mr. Laughrey: Jackson County is Kansas City, Missouri.

Justice William H. Rehnquist: How many counties are there in Missouri?

Mr. Laughrey: Your Honor I do not have the answer to that question.

There are more than a hundred.

Jackson County, Missouri of course is one of the largest population areas.

Justice William H. Rehnquist: So a case based on statistics from Jackson County although it would affect the substantial number of people in Missouri would not be determinative of other convictions obtained in other counties, I take it?

Mr. Laughrey: I think that is the -- certainly the import of Taylor is that it is only when it results and in underrepresentation in a particular case and if it doesn't result in under representation in Saint Louis or Boom County, does that mean that, you know the exemption is still valid.

Justice William H. Rehnquist: So a federal habeas judge sitting in the Western District of Missouri maybe scanning convictions of -- if the Supreme Court of Missouri has reversed 50 different counties and he's going to have to get evidence as to the functioning of the jury system and each of those counties before he can decide.

Mr. Laughrey: Well, that's true Your Honor but we would submit that even if the Missouri Supreme Court were reversed in this case that this is not a situation that should be made retroactive that we think that the rules which were applicable in Taylor versus Louisiana are equally applicable in this case for two reasons.

Number one, because of the factual distinctions between Taylor versus Louisiana and the situation of Missouri.

We do not think that Taylor is so dispositive of the question that we can just say, “This is an application of Taylor.”

We submit that it is an extension of the rational in Taylor largely because it's based on statistics.

We never know what is going to be a fair-cross-section of the community Your Honors.

We know that 1% is too small and we know that 54% would be in exact mirror.

We never know where in between that the Sixth Amendment violation occurs and therefore, to say that it's merely an application of Taylor I do not think it's correct.

And before you have stated in Daniels and in Stovall versus Daniels the standards that you want to consider when you're deciding whether something is retroactive or not to the standards in addition to our reliance on prior law would be the interest that the constitutional provision was intending to protect and as you stated in Daniel, you're not submitting that Billy Duren was prejudiced in any way that you know, it may not have made one iota a difference of Billy Duren whether there were women in his pool or in his jury or whatever.

So, there's not the kind of inherent prejudice and problems that would be where a defendant is denied the right to an attorney during the process of a trial.

Chief Justice Warren E. Burger: Are you hinting at a harmless error even assuming all that your friends say that it's harmless error?

Mr. Laughrey: No Your Honor.

We of course submit that we do not think --

Chief Justice Warren E. Burger: No, but --

Mr. Laughrey: -- that there is any prejudice in this case.

Chief Justice Warren E. Burger: -- an alternate, I wonder whether you're making an alternative argument that this is harmless error even if otherwise (Voice Overlap) --

Mr. Laughrey: No, I'm saying that if you decide that it was error and it was unconstitutional and you're considering whether it is retroactive or not you look at the question of what did the constitutional provision protect.

And in Daniels, you indicated that what the Sixth Amendment fair-cross-section protects is not of the kind that would necessitate a retroactive application.

The third most important thing is what happens if you make this retroactive.

That if petitioner has tried to minimize the effect that it would have on the administration of justice in Jackson County by saying that it is only one county in Missouri.

I'm sure that this Court is aware of that half of the population in the State of Missouri is in the metropolitan Kansas City area.

And that there is going to be a substantial undermining of the administration of justice in Jackson County, Missouri.

Justice Byron R. White: And does a -- what percentage of the convicts who were convicted in Jackson County -- what percentage of those are still in -- who've been convicted since Taylor are still there?

Mr. Laughrey: Your Honor we of course do not have those statistics at this time.

You are aware though of how many petitions for cert have already been filed in this Court that they are in Limbo at this time that the petitioner can certainly tell you that there is certainly more than 150 cases in which this issue has been raised and in which the statistics have been made out.

And one of the issues that you indicated that you would consider in Stovall versus Denno and in Daniels versus Louisiana is the effect on the administration of justice and to make the State of Missouri we try all of those cases would have a devastating effect on the administration of justice in our state.

Justice Potter Stewart: Daniels against Louisiana was the case that held the Taylor doctrine not retroactive?

Mr. Laughrey: That is correct Your Honor.

Justice Potter Stewart: I don't -- is it cited in your brief?

Mr. Laughrey: No it is not.

We did not discuss it --

Justice Potter Stewart: Do you remember the citation, 400 and something, 15 or --

Mr. Laughrey: I do not have the citation with me.

Justice Potter Stewart: After Taylor, 420 something.

Mr. Laughrey: If there are no further questions, thank you very much.

Rebuttal of Lee M. Nation

Chief Justice Warren E. Burger: Very well.

Do you have anything further Mr. Nation?

Mr. Nation: Yes.

Chief Justice Warren E. Burger: You seem didn't have -- there seems to be disagreement on the factual situation between you and the state about the women who do not return their questionnaires.

She says they are automatically put -- and you said they were automatically out --

Mr. Nation: The statement made in our reply brief was that women who do not return the questionnaires and who do not follow the request of the summons do not appear for jury service.

Chief Justice Warren E. Burger: That isn't quite the way you put it in your argument.

I think there was a little difference --

Mr. Nation: It was something like that in the brief that -- yes, and that's the reason that the wheel is as high as it is.

That's the reason that there is 29% women on the wheel it's because if they don't return the questionnaire, they're put onto the wheel and then, they opt off when they receive the summons.

I'm not sure what we could further prove prior to trial.

To prove a case I believe under the precedence of this Court of prima facie case has been made.

We showed a non-neutral selection procedure and we showed marked underrepresentation of women.

Now, it is incumbent upon the state to come up with some reasonable explanation and attributing the fact that 14.5% of jury panels could possibly be random chance or something else.

The possibility of that happening is infinitesimal.

Justice William H. Rehnquist: You don't claim the Missouri statute though is unconstitutional in all situations.

It has to be accompanied by your Jackson County statistical showing?

Mr. Nation: Well, under Taylor, you have to prove that there is an exemption and that there is underrepresentation.

No statute is would -- is per se unconstitutional but in its effect here in Jackson County it is.

Further, the only reason --

Justice Potter Stewart: That is because of your statistical showing as well as because of the practices and procedures in Jackson County?

Mr. Nation: Yes.

The exemption is the same for other counties in the state but other people hide the exemption from their women.

Chief Justice Warren E. Burger: In the -- in a specific case, could this ever -- in your view be harmless error?

Mr. Nation: Only in a case where there is absolutely no question of credibility for the jury.

In any case where the jury has to determine the credibility of witnesses it is impossible to say that it's harmless error or harmless constitutional error.

Chief Justice Warren E. Burger: Well, what if a defendant on the stand under cross-examination has as it has happened in some cases, testified in a way that its added up to essentially a judicial confession of the crime, would you think that'd be the kind that could be harmless error?

Mr. Nation: Well, Your Honor as a criminal defense lawyer, I have occasionally had instances where my client -- the only reason where a trial is not to contest the facts but to try and receive a light sentence because in Missouri the jury sentences and it's my experience that women are much more sympathetic towards defendants than men are.

So, in that instance, even in that situation --

Chief Justice Warren E. Burger: (Voice Overlap) fungible, it's a -- was --

Mr. Nation: I don't think they're fungible.

Justice Thurgood Marshall: I think we're going to give a lot of trouble cause that wasn't my experience.

Mr. Nation: There is -- I don't know how many, there are seven I believe petitions for certiorari on this issue before the Court.

And I have nowhere near 150 cases.

I'm not sure what the number is.

But we believe as far as retroactivity that this case falls squarely under Taylor and that anyone who raised it prior to trial introduced evidence requested the court to quash the jury panel and give him a reasonably representative jury at trial should be afforded a new trial.

Thank you.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.