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number of African Americans is further dwindled to about 3 percent or less after jury summonses are returned because of outdated or inaccurate residency lists.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.