Is there any case law supporting the argument that there is a disproportionate representation of lower income earners on a jury?

That this is a legitimate view to take seems to us to follow from Fay v. People of State of New York, supra.²⁶ As we have said, the majority there refused to be convinced by disparities quite as striking as those in the defendants' charts or in their tables of occupations; and thought the inferences to be drawn from such occupational divisions too hazardous to be relied upon. But they also went further, for they held

[183 F.2d 222]

that, even though they had been reliable, it would not have followed that those who made up the "blue ribbon" list had done so unlawfully. On the contrary, they held that the disproportions proved might have resulted from an honest application of a "literacy test" which was more discriminatory than anything shown here. Disparity did not prove unlawful discrimination, they said, unless it also appeared that "the application of the proper jury standards would affect all occupations alike. * * * The percentage of persons employed or seeking employment in each occupation does not establish even an approximate ratio for those of each occupation that should appear in a fairly selected jury panel". 332 U.S. at page 276, 67 S.Ct. at page 1622, 91 L.Ed. 2043. That "a fairly selected jury" might be one subjected to an intelligence test the majority very clearly held; as appeared from the following: "All were subjected to the same tests of intelligence, citizenship and understanding of English. The state's right to apply these tests is not open to doubt even though they disqualify, especially in the conditions that prevail in New York, a disproportionate number of manual workers. A fair application of literacy, intelligence and other tests would hardly act with proportional equality on all levels of life. The most that the evidence does is to raise, rather than answer, the question whether there was an unlawful disproportionate representation of lower income groups on the special jury". 332 U.S. at page 291, 67 S.Ct. at page 1629, 91 L.Ed. 2043. That it was precisely on this score that the minority dissented, is plain, for they protested that the test presupposed that constitutionally a jury need not be a "cross-section" of the community: that is, a random selection not weighted by any superiority of "intelligence" or information.

[183 F.2d 222]