jurors must be free from any taint of discriminatory
purpose).
In State v. Dixon, 125 N.J. 223 (1991),
underrepresentation of minorities in county jury pool
did not rise to constitutional deprivation. Although the
comparative disparity concerning underrepresentation of
Hispanics and Puerto Ricans was disturbing, the
statistical significance of discrepancy was very close to two
or three standard deviations from the expected and thus
was not constitutionally suspect and evidence was based
on only one survey of 500 jurors from mailing surveys
earlier, before reforms were made to system.
In State v. Russo, 213 N.J. Super. 219 (Law Div.
1986), defendant failed to make a prima facie showing of
an equal protection violation in the jury selection process
where he could not demonstrate the procedure employed
resulted in the substantial underrepresentation of blacks.
The proper measure for analyzing jury representativeness
was “absolute disparity,” measurement which in this case
would have called for a disparity of 10% between the
percentage of blacks on the jury list from the percentage
of blacks in the population in order to establish a prima
facie case. Only a 3.95% absolute disparity was proven.
Even if defendant had established that there was a
significant underrepresentation of blacks, defendant
failed to prove systematic exclusion. Consequently,
defendant failed to make a prima facie showing of an equal
protection violation.
State v. Ramseur, 197 N.J. Super. 565 (Law Div.
1984), held a county grand jury’s selection procedure
does not violate equal protection principles unless
defendant demonstrates that a recognizable, identifiable
group has been singled out for separate treatment by its
substantial under-representation in the jury system.
Substantial under-representation may be shown by
comparing the distinct group’s proportional representa-
tion in the total population with its participation on
grand juries.
C. Selective Enforcement
State v. Velez, 335 N.J. Super. 552 (App. Div. 2000).
Defendant adverted to the issue of selective enforcement
in the course of his Fourth Amendment motion to
suppress, which was ultimately denied. He thereafter
pleaded guilty to various drug offenses. The Appellate
Division ruled that the guilty plea did not constitute a
waiver of defendant’s profiling claim where it was “raised
or is related to a claim asserted at the motion to suppress.”
The court remanded to determine the scope of discovery
and for further proceedings before the trial court.State v. Willamson, 335 N.J. Super. 544 (App. Div.
2000).Defendant was tried and convicted of various
drug offenses, after which he moved for a new trial
contending that the Attorney General’s Interim Report
constituted newly discovered evidence. He only
inferentially raised the issue of selective enforcement at a
pre-trial motion to suppress. Nonetheless, the appellate
court regarded the issue as preserved, and generally
permitted that defendants who have “been convicted and
sentenced, may assert a claim of selective
enforcement...while...direct appeal is pending.” The
instant selective enforcement claim could be raised in the
form of a motion for a new trial or on the basis of “‘plain
error, since infringement of constitutional rights, if
established, was clearly capable of producing an unjust
result.”State v Ross, 335 N.J. Super. 536 (App. Div. 2000).
Defendant preserved his racial profiling or selective
enforcement challenge to warrantless stop and search of
automobile, where issue was raised at suppression
hearing by codefendant’s counsel, although defendant
failed to present any evidence of selective enforcement.
Trial court’s determination that there was no evidence to
support claim that stopping officer engaged in racial
profiling, which determination was made before release
of the interim report of state police review team regarding
allegations of racial profiling, did not preclude
reconsideration of the issue, after defendant had an
opportunity to conduct discovery, as that information on
racial profiling was not known at the time the motion to
suppress was denied.In United States v. Armstrong, 517 U.S. 456 (1996),
the defendants sought to dismiss a federal indictment on
the grounds that they had been discriminated against by
means of selective prosecution. The Court indicated that
“a selective-prosecution claim is not a defense on the
merits to the criminal charge itself, but an independent
assertion that the prosecutor has brought the charge for
reasons forbidden by the Constitution.” The burden
that a defendant must meet to establish such a claim “is
a demanding one.” Defendant must demonstrate that
the criminal laws were “directed so exclusively against a
particular class” so as to amount to a “practical denial” of
equal protection under the law. Such a classification
could be based on race, religion, or other arbitrary
classification.