Bricker v. Miller

it seems self-evident that allowing people to decide whether they wish to perform a particular task is quite the opposite of randomly selecting . those who, unless within narrow and objectively determined categories of exemptions and excuses, must perform the task. A volunteer is not a random selectee.

Id. at 560, (quoting United States v. Kennedy, 548 F.2d 608, 611 (5th Cir. 1977)).

The plaintiff in Branscombe attempted to justify the court’s volunteer selection system by relying on Anderson, but the Branscombe court found the facts of Anderson were distinguishable. Namely, the Branscombe court did not view the trial court’s action in Anderson as an appeal for volunteers. Id., at 562. Instead, the trial judge in Anderson was merely using a method “to eliminate what would have been a tedious process of examining one by one a large group who would seek to be excused from serving on a petit jury for a considerable period beyond the time for which they had been summonéd'to serve.” Id., 609 F.2d 312. Whereas in Branscombe, the court had already made a hardship inquiry, the subsequent request for voluntéers was a separate and subsequent action and thus, was a substantial failure to comply with the Act’s mandate of random selection. Id.

Unlike the request for volunteers made by the trial court in Branscombe, the request made in the case at hand was not a request made for the purposes of selecting only “volunteer” jurors and dismissing all others from service. The Court, in asking for volunteers for a five-day trial, was not dismissing any potential jurors but was instead merely trying to accommodate jürors with convenient jury duty dates that would fit each juror’s personal schedule. Jurors *311who did not volunteer for this specific period of jury duly were still required to serve another six days at some other point during the term. As the Anderson court noted, a judge can certainly question each juror one by one and ask him or her if the five-day trial will work with his or her schedule, but it is much more efficientto tell the jurors what dates are needed and ask for volunteers. And, as the court in Anderson clearly recognized, such a method of selecting jurors does not create an irregular jury or violate the process of random selection.

3. Even If the Court Were to Find That the Method of Selecting Jurors Did Create an Irregular Jury, the Irregularity is Not a Sufficient Cause for Granting Plaintiff’s Motion for New Trial Because the Irregularity Is Not “Intentional” under Virginia Law

As noted above, § 8.01-352 allows a party to object to an irregular jury after the jury has been sworn in only if the objecting party proves the irregularity was intentional or caused probable injury. Plaintiff argues that the Court did not follow statutory requirements for impaneling a jury, and, under current Virginia law, failure to select jurors according to statutory requirements results in an intentional violation. See Harmon v. Commonwealth, 212 Va. 442, 444, 185 S.E.2d 48, 50 (1971). The trial judge in Harmon failed to adhere to the statutory requirements in place at the time for summoning jurors to serve on defendant’s criminal trial. See id., at 443. Virginia statutes required that the writ of venire facias issued in a felony case contain a certain number of prospective jurors. Code of Virginia of 1950, §§ 19.1-196, 19.1-198, 19.1-199, 19.1-201. The trial judge in Harmon violated this requirement by issuing two defective writs. The first writ did not indicate the number of prospective jurors to be summoned by the sheriff serving the writ, and the second writ ordered the sheriff to summon ten persons more than the statute prescribed. See id., at 444. The defendant objected that the jury was irregular and the prosecution argued that the irregularity was harmless because defendant failed to show that the irregularity was intentional or the probable cause of injustice as the statutes required.3 See id. After noting that “there [was] no order in the record ... showing good cause for [the irregular actions by the trial judge],” the Virginia Supreme Court disagreed with the prosecution and held that “the issuance of writs of venire facias different from what the law prescribes is an intentional irregularity and not within the curative provisions of the statute.” Id.

*312Plaintiff in the present matter argues that Harmon stands for the notion that any variance from statutory requirements resulting in an irregular jury is considered “intentional” under Virginia law. However, the Harmon court only found an intentional irregularity after specifically pointing out the lack of “good cause shown” for ignoring the statutory requirements. It is clear that the Court in the present matter only varied from statutory requirements (if at all) for the purpose of allowing prospective jurors to match their personal schedules to the specific needs of the Court. This is not a sufficient basis to conclude that the Court intentionally created an irregular jury.

4. Plaintiff Has Failed to Prove “Probable Injustice ”

Plaintiff argues that the irregularity in her trial jury “probably caused injustice” as required for a new trial under § 8.01-352 due to the fact she was forced to use her strikes on a panel heavily weighted toward jurors “neither employed nor within her age group.” (Motion for New Trial p. 8.) In support of her argument, plaintiff submits statistical evidence to the Court to show that her jury panel of twenty-four contained an unusually high number of retired jurors and jurors over the age of sixty-five. Based on the number (14) of retired potential jurors in the pool of 125, plaintiff claims the probability of getting 7 jurors on her panel of 24 is .0057, or 57 times out of 10,000 random attempts. Plaintiff cites no Virginia case law to support the claim that she was probably injured.

However, in virtually all of the cases discovered outside of the Commonwealth, courts have held that an alleged underrepresentation of persons within certain age groups injury venires, resulting from their omission by jury selection personnel due to the asserted hardship that jury duty would entail for such persons or their unavailability for jury service, did not violate the defendants’ constitutional rights. See generally United States v. Diggs, 522 F.2d 1310 (App. D.C. 1975) (denying defendant’s motion after holding that alleged statistical underrepresentation of jurors under age thirty was not due to purposeful exclusion but rather was due to the fact that most potential jurors in that age group were excused due to military seivice, caring for young children, practical nursing, and college); United States v. Leonetti, 291 F. Supp. 461 (S.D. N.Y. 1968) (refusing to find violation of constitutional rights where overbalance of jurors in the jury selection system toward older age groups resulted from hardship excuse procedures and not from a systematic exclusion of such persons); State v. Porro, 3 85 A.2d 1258 (N.J. Super. 1978); Bowens v. Stale, 309 So. 2d 844 (Ala. App. 1974); People v. Pinell, 43 Cal. App. 3d 627 (1 st Dist. 1974) (holding that statistical proof of 15.4% underrepresentation of *313jurors age 21 to 30 was not due to improper discrimination but rather due to the fact that such jurors were typically excluded on proper grounds of educational, family, or financial hardship); State v. Holmstrom, 168 N.W.2d 574 (Wis. 1969).

In summary, where challenges have been made to jury panels based on an underrepresentation of younger people, courts have rejected claims by defendants that such juries caused them constitutional injuries. Instead, courts have generally viewed such shortages in the number of younger jurors as the inevitable result of increased hardships faced by younger jurors. While plaintiff in the case at hand may very well have received a jury composed of statistically older jury members than the make-up of the jury pool would have suggested, plaintiff has failed to show how this statistical inconsistency translates into a probable injury. Plaintiff does not claim nor does she offer any proof that the “older” jury members were biased against the plaintiff due to her relatively young age. There is no evidence to suggest that a different jury (one composed of younger jurors) would have reached a different verdict. Also, plaintiff had the opportunity to fully question all of the “older” jurors during voir dire to discover if any were prejudiced against the plaintiff due to her relatively young age. Because plaintiff cannot prove that a statistically older jury deprived her of a constitutional right or otherwise affected the outcome of the case, plaintiff was not “probably injured” by any irregular jury selection procedure utilized by this Court.

The Court received Mr. Murray’s letter of March 5, 2002, referencing First Bank & Trust Co. v. Commonwealth Transportation Commissioner and read the case. The case is not applicable because § 8.01-352 governs amotion for a new trial and, under § 8.01-352, the plaintiff must prove the irregularity was intentional or probably caused injustice to the plaintiff.

II. The Pretrial Order Was Not Violated

Plaintiff argues that the Court violated the Uniform Pretrial Scheduling Order by admitting the testimony and surveillance videotape of James Bates. According to the plaintiff, Mr. Bates’ videotape and corresponding testimony did not present any evidence that contradicted or impeached the plaintiff or any of her witnesses. Therefore, Mr. Bates cannot be considered a rebuttal or impeachment witness and, consequently, should not have been permitted to testify because he was not included on the defendants’ witness list pursuant to the pretrial order.

Plaintiffs argument has no merit. To begin with, although plaintiff initially objected to Mr. Bates as a witness whose name did not appear on *314defendants’ witness list (Transcript excerpt Nov. 7,2001, pp. 4-5), there was never any clear objection that Mr. Bates’ testimony was not rebuttal or impeachment. In fact, before the tape was shown to the jury, plaintiffs counsel responded “We have no objection to showing the film.” (T. p. 12.) Also, contrary to the plaintiffs claims, the Court finds that Mr. Bates’ videotape clearly contradicted evidence put forth by the plaintiff regarding the use of her injured left arm. The video, for example, depicted the plaintiff draping grocery bags over her injured arm and using her arm to shut her car door; activities which the plaintiffs evidence suggested were not possible. Because Mr. Bates’ testimony was impeachment, defendants had no duty to include him on their witness list, and the Court did not violate the pretrial order by admitting his testimony.

Conclusion

For the reasons stated above, the Court holds that it neither created an irregular jury nor violated the Uniform Pretrial Scheduling Order. Plaintiffs Motion for a New Trial is denied on both grounds.