STATE OF LOUISIANA
vs.
No.2020-K-00878
DONALD GERMANY
IN RE: State of Louisiana - Applicant Plaintiff; Applying For Writ Of Certiorari,
Parish of East Baton Rouge, 19th Judicial District Court Number( s) 09-16-0105, 1st
Circuit Court of Appeal, Number(s) 2019-KW-0124;
November 04, 2020
Writ application granted. See per curiam.
JDH
BJJ
JLW
SJC
JTG
WJC
JHB
Hughes, J., additionally concurs and assigns reasons.
Supreme Court of Louisiana
11/04/2020 "See News Release 042 for any Concurrences and/or Dissents."

11/04/20
S
UPREME COURT OF LOUISIANA
N
o. 2020-K-00878
S
TATE OF LOUISIANA
v
ersus
DO
NALD GERMANY
O
N WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
P
ER CURIAM:
D
efendant was indicted in East Baton Rouge on September 7, 2016, for second
degree murder in the strangling death of his wife. Defendant filed a motion to quash
the indictment, contending that the pool from which grand jurors was chosen suffered
from the same technological defect as the venire in State v. Cannon, 19- 0590 (La.
4/18/19), 267 So.3d 585 (per curiam). In Cannon, this court quashed the venire during
selection of the petit jury in a first degree murder prosecution in which the State was
seeking the death penalty. This court found that “under the system employed in East
Baton Rouge Parish, persons born after June 2, 1993, otherwise qualified to serve on
the jury, were never given an opportunity to serve, because their names were excluded
from the general venire as a result of a significant error in the process by which the
general venire was composed. ” Cannon, 19- 0590, p. 1, 267 So.3d at 585–586.
Likewise, defendant here contends persons born after June 2, 1993, otherwise qualified
to serve as grand jurors were excluded by technical error from the pool from which the
grand jury that indicted him was drawn.
As noted by a concurrence, the ruling in State v. Cannon was necessitated by
unique circumstances and was issued out of an abundance of caution:

2

Given the unique posture and circumstances of this case, I agree that
commencing jury selection from a newly-constituted venire is prudent,
both out of an abundance of caution and to prevent a possible waste of
judicial resources. Notwithstanding, this court, in my view, has not been
directed to any constitutional provision or jurisprudence, whether federal
or state, that would mandate quashing the general jury venire because of a
software glitch that unintentionally excluded potential jurors born after
June 2, 1993, and I withhold my judgment on that issue.

Cannon, 19-0590, p. 1, 267 So.3d at 587 (Guidry, J., concurring). The circumstances
here are quite different from those presented in Cannon. In addition, because the
technical problem in East Baton Rouge Parish has since been addressed, the present
defendant will be tried by a jury chosen from a venire that was assembled free from
error, and that will not exclude persons born after June 2, 1993. Therefore, the district
court correctly denied defendant’s motion to quash.
After the district court denied the motion to quash, the court of appeal granted
defendant’s application for supervisory writs and remanded with instructions to the
trial court to conduct an in camera inspection of the grand jury venire composition.
State v. Germany, 20-0124 (La. App. 1 Cir. 6/11/20) (unpub’d). The court of appeal
further directed the district court, if it finds that persons otherwise qualified to serve on
the jury were excluded from the grand jury venire because of a significant error, to
give defendant an opportunity to demonstrate that the exclusion caused irreparable
injury, citing State v. Anderson, 315 So.2d 266, 267 (La. 1975). The court of appeal
erred.
In Anderson, the defendant’s constitutional right to be indicted and tried by
juries chosen from a fair cross -section of the community was implicated. Here,
however, defendant has not shown a fair cross-section violation. “In order to establish
a prima facie violation of the fair-cross-section requirement, the defendant must show
(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2)

3

that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of the group in the jury -
selection process.” Duren v. Missouri , 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58
L.Ed.2d 579 (1979). Courts have found that various age spans of young persons are not
distinctive groups for purposes of a fair cross-section analysis. See Ford v. Seabold,
841 F.2d 677 (6th 1988) (ages 18–29); Cox v. Montgomery, 718 F.2d 1036 (11th Cir.
1983) (ages 18–30); United States v. Olson, 473 F.2d 686 (8th Cir. 1973); United
States v. Ross, 468 F.2d 1213 (9th Cir. 1972) (ages 21–24); see also State v. Taylor,
303 So.2d 169, 171 (La. 1974) (“We do not believe that this arbitrarily defined group
is ‘cognizable’ and that its exclusion would prejudice the defendant. In reaching this
conclusion, we are in agreement with the federal and state courts that have confronted
this issue.”).
Accordingly, we reverse the ruling of the court of appeal. We reinstate the ruling
of the district court, which denied def endant’s motion to quash the indictment. We
remand to the district court for further proceedings.
REVERSED AND REMANDED