Judge slams jury bias
Howard Manly
In a case that has national implications on the racial composition
of juries, a panel of federal judges heard arguments on Monday to
resolve an unprecedented dispute triggered by U.S. District Court
Judge Nancy Gertner’s challenge to the existing system that
all but assures all-white juries.
U.S. Attorney Michael J. Sullivan has opposed Judge Gertner’s
remedy and quickly pointed out that any suggestion that his opposition
was based on wishing “to continue any under-representation
of any segment of the population is misleading and false.”
Either way, federal prosecutors argued that Gertner has no authority
to unilaterally change the way juries are selected and, worse, her
remedy violates existing laws by eliminating the supposed randomness
of jury selection.
Not so, Judge Gertner argued in her 95-page order filed last month
that grew from a death penalty case she now presides involving two
African American men allegedly involved in a slew of street crimes,
including murder and selling crack.
As she sees it, the process, now based on frequently out-dated residency
lists, is seriously flawed and causes the available pool of African
American jurors to plummet from 20 percent in Suffolk County —
were the supposed crimes took place — to about 7 percent in
the Eastern District of Massachusetts where the federal jury pool
is drawn.
It gets worse. The number of African Americans is further dwindled
to about 3 percent or less after jury summonses are returned because
of outdated or inaccurate residency lists. That number is further
reduced in capital punishment cases to about zero, Gertner argued.
The two defendants Darryl Green and Branden Morris “are likely
to be tried before all white, or largely white juries,” Gertner
wrote. “Such an outcome should be profoundly troubling to
say the least…Their juries could well decide whether they
will live or die.”
Gertner cited studies that showed that wealthier geographic areas
keep more accurate jury rolls and thus have a higher response rate
from summoning juries. Poorer areas, where more minorities live,
require a follow-up process when summonses are returned unanswered
in order to reach the intended person. In addition, Gertner argued,
poorer communities have fewer resources to pay for updating residency
lists.
Gertner remedy is relatively simple — resend the jury summons
to each address that is returned “undeliverable” and
for each summons that is not responded to after a second mailing.
Gertner also ordered that the courts eliminate all inaccurate addresses
from its jury list to insure that the same wrong address does not
recur in case after case.
“The goal is to make certain that everything that lawfully
can be done to increase minority representation is done, including
geographically weighted mailings that take into account the historical
data concerning jury response rates across the district.”
The panel of Appeals Court judges is expected to render a decision
soon. It’s unclear whether they will allow Gertner to change
the system on her own.
Sullivan said in a recent statement “any changes to the jury
selection plan should be enacted by the district court as a whole
and applied to all sessions to avoid the potential for inconsistencies
from one case to the next.”
But the clock is ticking. Given the increase of elevating street
crimes to the federal level, where prosecutors can use the death
penalty, the question remains — can a system that in effect
produces all white juries escape future legal challenges?
Brandeis University professor Jeffrey Abramson, a court-appointed
expert, concluded, “Metaphorically speaking, there has to
be a statute of limitations on how long a District can lament the
undesirability of the under-representation of minorities in its
jury pools without feeling compelled to act with imagination to
do better.”
Abramson also defended Gertner’s remedy and characterized
it as race-neutral.
“The proposed remedy is indeed geographically based, and does
not target prospective jurors on the basis of their race,”
Abramson said. “This is crystal clear because the Court has
indicated it wills end out additional summonses to replace every
undeliverable summons, and every instance of non-response, no matter
what zip code the undeliverable summons or non-response comes from.”
Gertner was particularly blunt. “To make the argument that
(the laws) are fulfilled even if the source list is inaccurate,
and summonses are sent to non-existent persons, or the wrong addresses,
is to adopt and empty formalism,” Gertner wrote. “It
is a random selection from phantoms.”
Clearly, Gertner wants to solve the problem rather than continuing
the public hand wringing.
“The court cannot — yet again — return to business
as usual and cast a blind eye to real problems with the representation
of African American on our juries, and the crisis of legitimacy
it creates,” she concluded.
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