based on sex were suspect. Had a fifth Justice joined in this conclusion, a state would be required to show a compelling justification for the differential treatment accorded males and females under the hardship excuse. Although as Chief Justice Burger lamented in Dunn v. Blumstein, 405 U.S. 330, 363-364, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (Burger, C. J., dissenting), the Court has never deemed a “state interest” sufficiently compelling to override the stigma of suspectness, one could convincingly argue that a hardship excuse should qualify as such. 87 . See United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1968); United States v. Bryant, 291 F.Supp. 542 (D.Me.1968). 88 . 28 U.S.C. § 1867(a). 89 . See Cassell v. Texas, 339 U.S. 282, 287-288, 70 S.Ct. 629, 94 L.Ed. 839 (1950) (<HOLDING>). 90 . Brooks v. Beto, 366 F.2d 1, 22 n. 40
holding prima facie case shown where despite the absence of any disproportion between eligible population and composition of grand juries evidence showed jury commissioners selecting on the basis of personal acquaintances made no effort to familiarize themselves with other eligible voters holding that the mathematical disparity between 197 of africanamericans in the population and 47 of africanamericans on grand jury lists was adequate for a prima facie case under an equal protection analysis holding that the plaintiff made out a prima facie case of disparate impact despite a lack of statistical significance based on past discrimination which reduced the number of africanamericans eligible to sit for the promotional exam holding that although a jury instruction that included the phrase prima facie case and referred to defendants burden of production created a distinct risk of confusing the jury in certain instances it would be appropriate to instruct the jury on the elements of a prima facie case holding the plaintiff satisfies the burden of a prima facie case by a preponderance of the evidence