Appellant has challenged the jury selection procedures used to impanel the grand and petit juries of Essex County, New Jersey, which were instrumental in indicting and convicting him of assault and battery.1 He contends that both the "key man" system used to select the grand jury venires, and the system based on voting lists and city directories used to choose the petit jury venires, were constitutionally defective because they excluded disproportionate numbers of Negroes, women, working class, and residents of Newark.

Appellant is a Negro male. He bases his claims on both the equal protection and due process guarantees of the fourteenth amendment to the Constitution, but because of our disposition of this case, we need consider only one question: did the "key man" system employed in Essex County, New Jersey, invidiously discriminate in the selection of Negro grand jurors so as to deny appellant the equal protection of the law.2

All of appellant's claims were rejected by the state courts in State v. Smith, 102 N.J.Super. 325, 246 A.2d 35 (1968), aff'd. 55 N.J. 476, 262 A.2d 868 (1970), cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970), and his habeas corpus petition3 has been rejected by the District Court for the District of New Jersey in an unreported opinion.

These opinions relied heavily on Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), for the proposition that the appellant had to show something more than steady under-representation of the various groups to make out his prima facie case of a denial of equal protection. The Superior Court of New Jersey decided after a full hearing that it was incumbent on appellant to show a deliberate, systematic discrimination against members of his race. 246 A.2d at 46. The Supreme Court of New Jersey affirmed that test. The United States District Court conducted a thoughtful and thorough review of the cases and the facts of Smith's habeas corpus petition, concluding that appellant had to show: (1) a deliberate practice of total exclusion; (2) a deliberate practice of token inclusion; or (3) a deliberate interference with an otherwise valid procedure. It decided that none of the three situations had been shown and that appellant had failed to make out even a prima facie case. It attributed the under-representation of certain classifications of citizens, including Negroes, not to purposeful discrimination, but to the imperfections in the selection process.

In other words, the Superior Court and the District Court believed that it was not sufficient for the appellant's prima facie case to show that the consistent under-representation of Negroes on the grand jury was the likely result of a course of deliberate action by the Jury Commissioners of Essex County in seeking out "key men" who would supply names for grand jury service. We disagree.

For almost one hundred years the Supreme Court has made clear that:

The right to a trial by jury is guaranteed to every citizen of [the state] by the Constitution of that State, and the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.

Strauder v. West Virginia, 100 U.S. 303, 308, 25 L. Ed. 664 (1880).

As such, there should be a truly representative cross-section of the community on a grand or petit jury, Carter v. Jury Commission of Greene County, 396 U.S. 320, 330, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940), although there need not be proportional representation of each element of the population entitled to serve. Cassell v. Texas, 339 U.S. 282, 286-287, 70 S. Ct. 629, 94 L. Ed. 839 (1950). However, "[o]nce the State chooses to provide grand and petit juries, whether or not constitutionally required to do so [footnote omitted] it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. [footnote omitted]. . . ." Carter v. Jury Commission of Greene County, supra, 396 U.S. at 330, 90 S. Ct. at 523.

When one is willing to serve, and deemed fit by the state to serve,4 he cannot be excluded by the consideration of unacceptable or improper criteria. If such exclusion takes place, depriving a defendant of members of his or her race,5 sex,6 or economic class,7 then there may be a denial of equal protection.

The need of a cross-section of the community on a grand jury is particularly important because of its unique functions in the judicial process. On the one hand, that "body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 1373, 8 L. Ed. 2d 569 (1962). On the other, it serves to investigate wrong-doing and invoke the judicial process against those who have broken society's laws. United States v. Neff, 212 F.2d 297, 301 (3d Cir. 1954). Although a state need not provide a grand jury, Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed. 232 (1884), it cannot proceed with one that was discriminatorily selected. Such discrimination, once begun, fatally infects all subsequent proceedings against those who have been denied the equal protection of the laws. Eubanks v. Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991 (1958); Hernandez v. Texas, 347 U.S. 475, 482, 74 S. Ct. 667, 98 L. Ed. 866 (1934); Akins v. Texas, 325 U.S. 398, 401-402, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945).

The "key man" system, which is the focus of this appeal, was the product of the latitude given the New Jersey Jury Commissioners in the selection of their jury lists. The state's statutes set forth qualifications for jurors, N.J.S.A. 2A:69-1,8 and exemptions from service, N.J.S.A. 2A:69-2 to 4,9 and preclude any discrimination in selection based on race, color, creed, national origin or ancestry. N.J.S.A. 2A:72-7. But, the method by which the jury commissioners arrive at the list of qualified names they are required to produce under N.J.S.A. 2A:70-110 has, until recently,11 been left to their discretion. State v. Forer, 104 N.J.Super. 481, 250 A.2d 431 (1969); State v. Grundy, 136 N.J.L. 96, 54 A.2d 793, 796-797 (1947).

* * *

Prior to 1962, the Jury Commissioners of Essex County has been fulfilling their duties by drawing names from the county voting list. That year, the Assignment Judge for Essex County determined that the system was not working. He found that it did not produce enough Negroes, women, working class persons, or people from the City of Newark. He ordered the inclusion of such people, and the jury commissioners switched their method of selection to accommodate his wishes.

The theory of the "key man" system they adopted was to find strategically located persons in the county who could suggest capable people for jury duty. Theoretically, by selecting key men located in all the different communities in Essex County, and by taking into account appropriate economic and demographic factors, the key man system was intended to produce well qualified individuals of all races, classes and communities for service on the grand jury.

However, the key man system in Essex County was not an effective system.12 The jury commissioners had no settled method for selecting their key men. It was haphazard and uncertain at best, with absolutely no restraint on the subjective judgment of the jury commissioners. During the period from 1962-64, the Commissioners attempted to correct the lack of Negro names and solicited juror recommendations from some Negroes, including two judges and the director of the Newark Urban League, as well as from civic organizations and other people in the county. This special appeal produced about 250 Negro names. One Commissioner, however, conceded at the hearing in this case that the special effort soliciting Negro names was not continued after 1964. The names that were the fruits of this special effort were exhausted by 1966-67 when the events in question took place.13

At least one of the jury commissioners testified he did not know the size of the component parts of the county's population, and that he had no idea what type of grand jury list his work was producing. This lack of knowledge exacerbated the problems with the key man system. Such conduct was in dereliction of the responsibilities that courts have required jury commissioners to take under the equal protection clause in order to provide a reasonable cross-section. Carter v. Jury Commission of Greene County, supra; Carmical v. Craven, 457 F.2d 582 (9th Cir. 1971). It is also particularly disturbing in view of the affirmative action incumbent upon the jury commissioners following the Assignment Judge's 1962 order. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); James v. United States, 416 F.2d 467 (5th Cir. 1969), cert. denied 397 U.S. 907, 90 S. Ct. 902, 25 L. Ed. 2d 87 (1970); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert. denied, 386 U.S. 975, 87 S. Ct. 1169, 18 L. Ed. 2d 135 (1967), rehearing denied, 386 U.S. 1043, 87 S. Ct. 1489, 18 L. Ed. 2d 618 (1967). Thus, this inaction was an abdication of an important element of a jury commissioner's role when it was patent that only careful tuning and retuning of the key man system would result in appropriate representation.

The Jury Commissioners apparently realized the inadequacy of their procedure because they asked the Chief Clerk of their office to use the petit jury list drawn from the voting list to add names of people from Newark, the city with the largest Negro population in the county, to the grand jury list.14 This supplementation raises at least the inference that the Jury Commissioners knew the key man system was operating ineffectively.15

This haphazard system produced significant under-representation of Negroes. Appellant first attempted to show that as a mathematical probability it was impossible for so few Negroes to show up on a grand jury list absent discrimination. While such information may lend credibility to an over-all presentation, statistical improbabilities are not sufficient to establish a prima facie case. Alexander v. Louisiana, 405 U.S. 625, 629, 92 S. Ct. 1221, 1268, 31 L. Ed. 2d 536 (1972); Whitus v. Georgia, 385 U.S. 545, 552 n. 2, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967).16 However, the same figures illustrate the kind of significant under-representation which is required for appellant's prima facie case. The Essex County key man procedure from May 1966 to May 1967 produced four separate, consecutive grand jury lists of 300 people each of which had only an average of 6% Negro names. By contrast, the county was approximately 25% Negro at that time.17

These figures are as serious as the disparities disapproved by the Supreme Court in recent cases. In Alexander v. Louisiana, supra, 405 U.S. 625, 627, 92 S. Ct. 1221, 1223, the selection procedure produced a grand jury venire that was 6.75% Negro in a county with 21% Negro population. Turner v. Fouche, supra, found inadequate representation when 37% of the grand jury list was Negro in a county with 60% Negro population. While the parties in this case have quibbled over how this court should interpret such percentage diminution,18 significantly, approximately three-quarters of the adults in a segment of the community numbering approximately 260,000 at the time in question seem to have been excluded from consideration for jury service. "In the face of the commissioners' unfamiliarity with Negroes in the community and the informality of the arrangement by which they sought to remedy the deficiency in their knowledge upon recompiling the jury list, we cannot assume that inquiry would not have led to the discovery of many [more] qualified Negroes." Turner v. Fouche, supra, 396 U.S. at 360, 90 S. Ct. at 540.

However, the disparity between population and jury representation is not the sole consideration in this litigation. The Supreme Court's most recent jury discrimination decision, Alexander v. Louisiana, supra, reaffirmed the conclusion reached in Swain v. Alabama, supra, that under-representation alone was not sufficient to show a prima facie case of discrimination.19 Alexander required that there be an opportunity for racial discrimination, 405 U.S. 625, 92 S. Ct. 1221. The parties vigorously dispute whether the key man system offered the opportunity for racial discrimination contemplated by the Supreme Court.

The State of New Jersey contends essentially that one general principle which can be abstracted from all relevant Supreme Court decisions is that each fact situation included a specific step when the jury commissioners could look at a list, or at a man's face, to separate people on the basis of race and produce a monochromatic list. Because that opportunity is not present here, the state asserts no opportunity to discriminate exists. We disagree.

The state is correct in asserting that the Supreme Court's cases have almost invariably faced instances of direct discrimination potentially designed to exclude Negroes. For instance, Alexander v. Louisiana, supra, is paradigmatic of the recent cases which have confronted improper exclusion of Negroes from jury service.20 In Alexander the jury commissioners selected names of potential jurors from a variety of sources and then mailed out questionnaires. The questionnaires included a space for indication of race. When these were returned, the commissioners culled from the pile those people who were either unqualified or exempt from service. Finally, they selected "at random" names for the grand jury venire.

However, these facts do not delineate the breadth of those decisions The Supreme Court requires those who select jury panels to follow a procedure-a course of conduct-which does not operate to discriminate in the selection of jurors on racial grounds. Avery v. Georgia, 345 U.S. 559, 561, 73 S. Ct. 891, 97 L. Ed. 1244 (1953); Hill v. Texas, 316 U.S. 400, 414, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942). The opportunity to discriminate as required for a prima facie case of discrimination is shown when a party:

demonstrate[s] that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment rather than objective criteria. Turner v. Fouche, supra, 396 U.S. at 360, 90 S. Ct. at 540.

The opportunity to discriminate in Alexander occurred because the jury commissioners had the ability to invoke such subjective selection. The possibility of identifying each potential juror only provided the factual information on which the tainted subjective decision could be based. Decisions rendered by other courts of appeals make clear that the opportunity to discriminate by the exercise of subjective judgment which can in some way consider race is sufficient in conjunction with the requisite under-representation to make a prima facie case.

In Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S. Ct. 1303, 18 L. Ed. 2d 334 (1967), the 5th Circuit concluded that the systematic granting of excuses to day laborers in New Orleans Parish was discriminatory. There was no general state policy in favor of systematically excluding day laborers, and the court found the exercise of the jury commissioner's subjective judgment unacceptable since it was common knowledge that a large percentage of all day laborers in the Parish were Negro. The inability to match individual jurors and their race was unimportant so long as the effect of the system was to produce a significant constant under-representation of Negroes.

More recently, the 9th Circuit has held that the administration of inaccurate intelligence tests that eliminated disproportionate numbers of Negroes from the jury rolls in Alameda County, California, was a violation of a defendant's right to equal protection. Carmical v. Craven, supra. This decision amply illustrates that there need be no direct discrimination against individual jurors. It was a sufficient exercise of discretion for the jury commissioners to select a test which the state conceded did not test intelligence and which was culturally biased against members of minority groups.21

In addition, the State of New Jersey has contended that there must be a showing of deliberate discrimination in making out a prima facie case but there is no support for that view. While actual animus against Negroes will obviously be an element in establishing a prima facie case, Carmical v. Craven, supra, 457 F.2d at 588, the issue of good faith need not enter into consideration. Protestations of such good faith will not aid the state in discharging its burden, Alexander v. Louisiana, supra, 405 U.S. at 631, 92 S. Ct. at 1225; Whitus v. Georgia, supra, thereby making the issue of motive or intent irrelevant in assessing a challenge to the jury selection system.

This case reveals an equivalent opportunity for racial discrimination. There is an unavoidable inference that certain key men were much more likely to produce names of whites, while others were more likely to produce names of Negroes. Further, the actions of the Jury Commissioners indicate that they obviously knew that Negro key men and Negro organizations were the source of most Negro names. Their failure to continue to pursue such sources after 1964 amounts to an elimination of the only significant source of Negro grand jurors in Essex County. Whether such conduct was intentional or simply negligent, its results were reasonably foreseeable to jury commissioners if they were exercising due diligence in the conduct of their duties. Moreover, the discontinued use of Negro key men was in direct contravention of the Assignment Judge's order to produce a more balanced grand jury list. Although the commissioners were not responsible for the racial division of society in Essex County, they were at least responsible for considering it when they chose a method to select jurors.

We hold, therefore, that the appellant in this cause of action has made out a prima facie case of a denial of equal protection.

The situation in Essex County is closely analogous to the jury selection procedures challenged in Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969). The court noted that the problem with that selection system probably arose from the failure of the key men to supply adequate numbers of Negro names. As in the instant case, there was no direct discrimination by the commissioners themselves. However, that was not a sufficient answer. The court held that they had an affirmative duty to provide a representative cross-section of the community for jury service; and they could not shift the responsibility to the key men.

The State of New Jersey argued at the hearing in this case that the disparity between the overall Negro population and the number on the grand jury lists must be approached warily because it does not take into account the various disqualifications and disabilities, to which the Negro community is more vulnerable than the white community. However, the state adduced scant evidence on the issue, and presented nothing to dispel the serious questions of discrimination raised with regard to the key man system. As the 5th Circuit held in Salary, the failure of the white key men and major civic organizations to produce Negro names did not rebut a prima facie case of discrimination. Therefore, in the absence of evidence to the contrary, we must assume that there are qualified Negroes available for jury service. Alexander v. Louisiana, supra, 405 U.S. 536, 92 S. Ct. 1221; Turner v. Fouche, supra, 396 U.S. at 360, 90 S. Ct. 532. On this record, "there is no room for inference that there are not among [the Negro population] householders of good moral character, who can read and write, qualified and available for grand jury service." Hill v. Texas, 300 U.S. 400, 404, 62 S. Ct. 1159, 1161, 86 L. Ed. 1559 (1942). Accord, Cassell v. Texas, supra, 339 U.S. at 289, 70 S. Ct. 629, 94 L. Ed. 839; Patton v. Mississippi, 332 U.S. 463, 468, 68 S. Ct. 184, 92 L. Ed. 76 (1947).

Although a jury commissioner has a thankless, underpaid job,22 often done out of a sense of civic responsibility, he cannot perform his duties wholly oblivious to his responsibilities. He is charged with producing a cross-section of the community the state deems appropriate for jury service. It is a necessary consequence of that responsibility that he know the population which comprises his community. In the absence of a randomized procedure, he must conform his method of selection to a system that will produce jury lists reasonably approximating that cross-section. When such a cross-section is not produced, and the circumstances offer an opportunity for discrimination, it is then his burden to justify his inability to fulfill his duties.

While a jury selection system without racial consideration is much to be desired, the realities of the present, however, cannot be ignored. For the moment, only appropriate consideration of race can correct racial imbalance. Turner v. Fouche, supra; James v. United States, supra.

The appellant has established at least a prima facie case. The state has failed to rebut it. The grand jury impanelled on the basis of such a procedure did not meet constitutional standards for equal protection and the indictment it returned against appellant should have been dismissed. The subsequent conviction by the petit jury therefore cannot stand.

The judgment of the lower court will be reversed and the case will be returned to the district court for proceedings not inconsistent with this opinion.