This is а complaint by Barbara Brunson and Stephen Ware asking this court “to issue a writ of general superintendence” under G. L. c. 211, § 3, as amended by St. 1973, c. 1114, § 44. The primary relief sought by the plaintiffs is the dismissal of indictments pending against them because of alleged constitutional and statutory irregularities in the preparation of the annual jury lists for the city of Boston. These lists are the principal source of members of venires for grand jurors and traverse jurors in Suffolk County. 1 The alternative relief sought by the plaintiffs, in the event the indictments are not dismissed, is to strike the venires of traverse jurors drawn from Boston’s 1973 annual jury list, to refrain from further use of that list, and to “reconstitute the [Boston] Jury List in a nondiscriminatory manner.”
The complaint was submitted to a single justice of this court on the basis of the pleadings and a statement of agreed facts, without evidence. The single justice reserved and reported the case to this court without decision. For reasons discussed below, we hold that this is nоt presently an appropriate case for the exercise of our power under G. L. c. 211, § 3, for the “general superintendence of all courts of inferior jurisdiction.”
The following is a summary of the pertinent proceedings in the Superior Court. The plaintiff Barbara Brunson was indicted in September, 1973, for the crime of possession of heroin with intent to distribute it; the
As to each indictment the defendant named therein filed a motion asking that the indictment be dismissed on the ground that the grand jury which returned it “was selected in violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.” The motions also asked, in the alternative, that the court “strike the array of traverse jurors” drawn or to be drawn for the trial of the indictments. The basic grounds for the motions were substantially the same as those on which the plaintiffs now seek relief by their complaint to this court. After a hearing at which oral testimony and other evidence was received, a judge of the Superior Court denied the motions and the plaintiffs duly excepted thereto. The judge also denied a motion by the plaintiffs that he make an interlocutory report to this court for appellate review of his rulings denying the motions to dismiss the indictments and for other relief. G. L. c. 278, § 30A, inserted by St. 1954, c. 528.
The indictments were scheduled for trial in December, 1974. The motions described above were heard in the Superior Court on December 2, 1974, and denied on December 10, 1974. The cases have not yet been tried on their merits.
The statement of agreed facts submitted to the single justice relates principally to the manner in which Boston’s annual jury lists, required by G. L. c. 234, § 4, as amended, were prepared for the several years in question, with particular emphasis on the representation thereon of women and persons in certain age brackets. We summarize the agreed facts only to the extent necessary for the purposes of this opinion. Certain other
Each year the election department оf the city of Boston adds about 5,000 new names to its jury list. These names remain on the list for three years unless the persons are called in that period for jury service. The basic source of those 5,000 new names each year is the annual list of residents of the city who are seventeen years of age and over. That list has about 450,000 names on it, and the number is reduced to about 330,000 by eliminating the names of all persons exempted from jury service by G. L. c. 234, § 1, and those who are over sixty-eight years of age. The list is again reduced to about 30,000 names by drawing “a certain proportion of names from each ward of the City.”
3
This is done by a computer which is programmed to draw two men for every woman. The list is then again reduced to approximately 20,000 names by eliminating the names of all persons who have served as jurors within the last three years, who are presently on the jury list, or who have disabilities which preclude them from serving, the resulting list also having
“a
certain proportion of names from each ward.”
3
Each of the 20,000 persons whose names are on this list are then given notice to appear at the office of the election commission. After giving the
Women constituted 54.7 % of the population of Suffolk County according to the 1970 United States Census, and 54.5 % of the persons on the 1973 Boston resident list. They constituted 26.6 % of the persons on Boston’s 1973 annual jury list from which 88 % of the traverse jurors for Suffolk County were drawn for the court year from September, 1973, through June, 1974. They constituted 29.5% of the traverse jurors for Suffolk County, for that court year, and 30% for the month of December, 1974.
The parties also agreed on statistics apparently intended to demonstrate that persons in several age groups were underrepresented on Boston’s 1973 annual jury list and in the number of persons summoned to serve as grand jurors and traverse jurors in Suffolk County for the 1973-1974 court year. However, no argument is made in the plaintiffs’ brief as to this point, and we therefore treat any issue based thereon as waived. S.J.C. Rule 1:13,
1. Relief under G. L. c. 211, § 3. General Laws c. 211, § 3, gives this court power of “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided” (emphasis supplied).
Basically the plaintiffs are challenging the manner in which the grand jurors who returned the indictments against them were selected, and the manner in which the
As аlready noted above, the plaintiffs, presumably acting under G. L. c. 277, § 47A, filed motions to dismiss the indictments returned by the grand jury, and to “strike the array of traverse jurors and direct the clerk to issue new venires for jurors to be drawn from a constitutionally prepared list,” and the judge denied the motions on December 10, 1974. On the same date the judge also denied the plaintiffs’ request that he report his ruling to this court for interlocutory review under G. L. c. 278, § 30A. This left the plaintiffs in the position where the only apрellate review available to them on the denial of their motions to dismiss would be after trial of their cases on the merits, and as a part of the appeal from any other rulings made before or during trial.
On December 13, 1974, the plaintiffs filed their present complaint for relief under G. L. c. 211, § 3. The parties and the single justice then handled the matter with
In the circumstances existing when the single justice reported this case to the full court it appeared to be an appropriate case for the existence of our extraordinary power under G. L. c. 211, § 3, notwithstanding the availability of a remedy in the Superior Court expressly provided by G. L. c. 277, § 47A, by way of a motion to dismiss the indictments. For examples of cases in which we have granted relief under G. L. c. 211, § 3, see
Gilday
v.
Commonwealth,
The appropriateness of the case for relief under G. L. c. 211, § 3, was enhanced when, on January 21, 1975, the United States Supreme Court rendered its decision in
Taylor
v.
Louisiana,
2.
Interim Developments Relating to Traverse Jurors.
The plaintiffs entered their complaint in this case on December 13, 1974. By its decision in
Taylor
v.
Louisiana,
The parties have stipulated that the Chief Justice of the Superior Court took the following action subsequent to the decision in
Taylor
v.
Louisiana, supra:
(1) On January 22, 1975, he instructed court officers in charge of the jury pool that from that day on they were to send
If the plaintiffs are hereafter put to trial before a jury, the veniremen available to them will have been chosen in large part (about 88 %) from a Boston jury list prepared in accordance with the instructions and suggestions given by the Chief Justice of the Superior Court as described in the preceding paragraph of this opinion. Those instructions and suggestions are in substantial accord with G. L. c. 234, § 4, as amended by St. 1973, c. 1059, prescribing the manner in which jury lists are to be рrepared. We cannot properly assume, and we do not assume, that women or persons in the age groups of the plaintiffs will be intentionally underrepresented on jury lists thus prepared, or that such lists will not represent a fair cross section of the community. There is no current necessity for us to grant any relief with respect to any venires of traverse jurors heretofore drawn from Boston’s 1973 jury list. There is nothing before us requiring any order, ruling or judgment with reference to any Bоston jury list for any year after 1973.
3.
Dictum Concerning Grand Jury.
We have concluded above that the complaint is to be dismissed.
The plaintiffs urge two separate grounds in support of their motions to dismiss the indictments against them, the first a constitutional ground, and the second a statutory ground. Common to the argument on both grounds is the fact that under G. L. c. 277, § 2, the city of Boston furnishes thirty-two of the thirty-five veniremen called for the empanelling of each grand jury in Suffolk County, and the further fact, to the extent stipulated in the рarties’ statement of agreed facts, that “ [w jomen were intentionally underrepresented” on the annual jury lists of the city of Boston.
The plaintiffs argue that the manner in which the pertinent Boston jury lists were prepared violates the Sixth and Fourteenth Amendments to the Constitution of the United States, and that such violation requires the dismissal of the indictments. We do not agree.
The plaintiffs place great reliance on the decision in
Taylor
v.
Louisiana,
If we assume for the purposes of the present discussion, but without so deciding, that the constitutional rule declared by the
Taylor
case applies equally to grand juries as it does to petit juries, and that the stipulated intentional underrepresentation of women on the Boston jury lists is a violation of that constitutional rule despite the fact that women constituted 26.6 % of the persons on the 1973 jury list, 29.5 % of the Suffolk County traverse jurors for the 1973-1974 court year, and 34 % and 30 % respectively of the two indicting grand juries, we are brought squarely to the question whether the rule of the
Taylor
case should be applied retroactively in this case in view of the later decision in
Daniel
v.
Louisiana,
Whether any particular new constitutional rule in the field of criminal law should be applied retroactively or
No useful purpose would be served by prolonging this discussion, which is intentionally identified as dictum in this opinion, by further discussion of the varying situations in which a new constitutional rule should be applied retroactively or prospectively. We believe that the rule of the Taylor case should not be applied retroactively on the facts of the case before us.
Finally, the plaintiffs argue that the manner in which the pertinent Boston jury lists were prepared violated the applicable sections of G. L. c. 234, with particular reference to the action of the election department in causing the namеs of two men to be placed on the lists for the name of each woman placed thereon. Despite
We note at the outset of this discussion that there is nothing in the record before us to demonstrate whether or how the plaintiffs were prejudiced by the underrepre-sentation of women on the annual jury lists for Boston. The plaintiffs contend that they need not show actual prejudice, and that it is enough to show the facts stipulated in the statement of agreed facts about the process which resulted in fewer women appearing on the jury list than men. We do not agree with that contention.
This is not a case where, as in
Taylor
v.
Louisiana, supra,
all or practically all women were excluded from the basic jury lists. In the present case, 26.6 % of the names on the pertinent annual jury lists were those of women, and 29.5 % of all traverse jurors for Suffolk County fоr the 1973-1974 court year were women. By G. L. c. 277, § 3, grand jurors are “drawn, summoned and returned in the same manner as traverse jurors,” and from the same basic jury lists. Thus drawn the Brunson grand jury included 34 % women and the Ware grand jury included 30 % women. These results indicate a substantial representation of women on the annual jury
The facts of this case do not compel a conclusion that the plaintiffs suffered any prejudice solely by reason of the alleged violation of the applicable statutes in preparing Bostons jury lists. The probability of prejudice is considerably more remote when we consider the function of a grand jury as contrasted to that of a petit jury. The grand jury is an investigatory and accusatory body only. It cannot and does not determine guilt. Only a petit jury may determine the guilt or innocence of a defendant, and it can find a defendant guilty only by a unanimous vote of all twelve jurors. By contrast, a grand jury may return an indictment by the vote of a majority of their entire membership of twenty-three persons. Whereas a single negative vote may prevent a petit jury from convicting a defendant, a much higher number of negative votes is required to prevent a grand jury from returning an indictment. The latter number will vary, depending on the number of grand jurors, and it may be as high as twelve if all twenty-three grand jurors are participating.
If the question were directly before us whether the indictments against the plaintiffs should be dismissed because of the alleged statutory violations in preparing the Boston jury lists, we would hold that they should not be dismissed; but for reasons already stated above, that question is not now before us.
4. For the reasons stated in part 1 of this opinion, the complaint in this case is hereby dismissed.
So ordered.
Notes
General Laws c. 277, § 2, as appearing in St. 1966, c. 415, § 2, provides that each grand jury venire for Suffolk County shall be "for thirty-five veniremen of whom thirty-two shall be from Boston and one each from Chelsea, Revere and Winthrop.” Customarily, approximately 88% of the traverse jurors for Suffolk County are provided by the city of Boston.
Because this case was reported to the full court on the basis of the complaint and a statement of agreed facts, the following additional materiаl is not properly before us: (a) a transcript of a hearing in the Superior Court on the motions to dismiss the indictments and for certain other relief, (b) references to that transcript in the briefs, and (c) a twenty-eight page document incorporated in the record appendix of the plaintiffs and entitled “REPORT OF JURY STUDY, SUFFOLK COUNTY.” This appears to be a self-serving document, prepared by counsel for Brunson, purporting to report on a study unilaterally and voluntarily undertaken at the rеquest of Brunson, dated before the hearing in the Superior Court, and referred to in the transcript of that hearing, but not offered or admitted in evidence.
These words quoted from the statement of agreed facts are not further defined therein or in any other part of the record.
In the Taylor case, which involved a judicial district consisting of two parishes, 53 % of the persons eligible for jury service in the district were women. In the particular parish involved, no more than 10% of the persons on the jury wheel were women, of the 1,800 persons drawn to fill petit jury venires in the pertinent year, only twelve were women, and of the 175 persons on the venire drawn for the month of the trial in question, no women were included.
General Laws c. 234, § 1, formerly exempted "women trained nurses; women assistants in hospitals; [and] women attendant nurses.” By St. 1969, c. 148, § 1, these exemptions were extended to men. Also, G. L. c. 234, § 1, formerly exempted “mothers of children under sixteen years of age or women having custody of such children.” By St. 1973, c. 582, § 1, these exemptions were repealed.