Churning up the Jury Pool
At the August 2001 Caribbean Carnival in Boston, calypso music played and the aroma of West Indian food wafted through the crowd of more than 100,000 people gathered in the city’s Dorchester section.
A few blocks away gunshots rattled the air, leaving 20-year-old Terrell Gethers dead. The shooting was the latest skirmish in an ongoing gang turf war between the Esmond Street Posse and the Franklin Hill Giants.
Darryl Green and Branden Morris were among five alleged gang members charged under the federal Racketeer Influenced and Corrupt Organizations Act. The U.S. attorney’s office said they were involved in a criminal enterprise engaged in violent turf wars over drugs.
The federal charges mean that Green and Morris could face the death penalty. They also mean that the African-American defendants would likely be tried by a white or mostly white jury.
Had the two been tried on state charges, Massachusetts’ Suffolk County would have provided a jury pool in which African-Americans comprise 20 percent of the voting-age population. Moving the case into the federal system means the eligible African-American pool was 7 percent. Practically, however, given the high rate of undeliverable jury call letters and the low response rate in the minority communities, the actual number of African-Americans called for jury duty in the federal court’s eastern district is around 3 percent.
Those figures were included in a remarkable 101-page ruling last September in which U.S. District Judge Nancy Gertner devised an alternative way to assemble a jury pool to ensure a fair trial. United States v. Green, 389 F. Supp. 2d 29 (D. Mass.). Her ruling was reversed on appeal. In re United States, 426 F.3d 1 (1st Cir.).
Although Gertner’s order was unusual, not so the problem she was trying to fix, according to legal experts. Minority underrepresentation on federal juries is a consistent problem across the country.
“I think this is clearly a national problem: the failure to represent poor persons in general and certain minorities, … principally African-Americans,” says Brandeis University professor Jeffrey Abramson, who has written on the jury system and who served as Gertner’s court-appointed expert in Green.
While state courts aren’t always models of diversity, Abramson says, the problem is particularly acute in federal districts, which can include inner cities, racially homogenous suburbs and rural areas.
“The problem is particularly pervasive in federal court because of the prevalence of a much less diverse jury pool even though many of the districts are in communities where there is a fair amount of diverse populace,” says Harvard University law professor Charles Ogletree, who submitted an amicus in the case. In Massachusetts’ eastern district—the Green jury venire—the federal courts attempted to resolve the issue of minority jury underrepresentation in 1989 by switching to residency lists from voter lists, used by most federal courts across the country.
AN ELUSIVE CROSS-SECTION
The change was an effort to comply with the 1968 federal Jury Selection and Service Act, which recognizes the right of a defendant to a jury drawn from a “fair cross-section of the community.” Racial and economic gaps in voting had failed to solve the problem, Gertner wrote.
But, Gertner concluded, even the residency approach didn’t gather a more diverse cross-section of jurors. Lower-income municipalities weren’t annually updating resident lists even though required by law to do so.
Additionally, Gertner wrote, low-income residents tend to be more transient. As a result, from 2001 to 2003, the undeliverable rate in wealthier towns with fewer African-Americans was 5.8 percent. Larger municipalities with a greater percentage of African-Americans had an undeliverable rate of 18.4 percent, according to Gertner. The nonresponse rate in heavily African-American areas for the same period was 23 percent; predominantly white areas had an average nonresponse rate of 7.6 percent.
Gertner concluded the court’s system violated the JSSA, so she mandated that selection procedures be changed for that trial. As before, the federal jury administrator sent out juror summonses from the resident lists. If a jury summons was returned undeliverable or there was no response, another questionnaire to an address within the same ZIP code would be sent out.
“One thing is clear,” Gertner wrote. “This court cannot—yet again—return to business as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates.”
The Boston-based 1st U.S. Circuit Court of Appeals threw out Gertner’s order, saying her plan violated the JSSA because it deviated from the uniform jury selection process already adopted by the entire district court.
Several groups, including the Boston Bar Association, the National Lawyers Guild, the Boston branch of the NAACP, and the Charles Hamilton Houston Institute for Race and Justice, filed amicus briefs in support of Gertner’s plan.
The case has plunged the District of Massachusetts into a vast self-examination of jury selection methods. Chief Judge William G. Young, who also filed an amicus in the appellate case, has convened a panel of five judges to study whether it should overhaul its system for selecting jury pools. The report was to be delivered last month.
As a solution, Young offers two ideas. One, he says, “is to try to find better lists. Then use those lists to have a more all-encompassing list.”
Additional lists could be based not only on voter registration, residency or driver’s licenses, but also on state income tax filings, welfare and unemployment lists, and the U.S. Postal Service’s national change-of-address list, according to Tom Munsterman, director of the Center for Jury Studies at the Williamsburg, Va.-based National Center for State Courts and a member of the ABA’s Commission on the American Jury.
Through automation, duplications can be deleted and a master list can be compiled. He cites as examples state courts in New York, which use five different lists, and state courts in Connecticut, which employ four.
Munsterman also mentions the ABA American Jury Project’s Principles for Juries and Jury Trials, which were presented to the House of Delegates last February. One principle urges courts to “use open, fair and flexible procedures to select a representative pool of prospective jurors” and recommends that the “names of potential jurors should be drawn from a jury source list compiled from two or more regularly maintained source lists of persons residing in the jurisdiction.” The lists should be “updated at least annually.”
The second approach Young outlines is geographical: Break the jury selection region into smaller locales, the better to assure representation. “Make sure, demographically, that you have an appropriate number of people from that specific area,” Young says. “The smaller you break it down, the more certain you are that you are reflecting the population of the federal district as a whole because you’re getting an appropriate number of people from each of the subdivisions.”
But tinkering with the system brings with it the twin risks of unintended consequences and legal challenges.
At issue in United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998), was the jury selection plan for the Eastern District of Michigan in which one in five non-African-Americans was removed from the jury wheel in order to obtain a jury pool that more accurately represented the population.
Munsterman notes that the procedure resulted in “a much more representative jury. But the question is, is it a valid method?”
According to the Cincinnati-based 6th U.S. Circuit Court of Appeals, it wasn’t. Hispanic defendants challenged the method as violating the random requirement of the JSSA and the equal protection clause. They said the method purposely excluded Hispanic jurors because most Hispanics classify themselves as white. The court agreed.
“It’s very difficult to control for all the various factors” like ethnicity, race, gender and class, Munsterman says.
Ogletree notes the stakes surrounding the issue could not be higher. “We tell victims and the accused that the right to a fair trial is our highest value, and yet we allow trial after trial to proceed where large segments of communities of color are excluded from jury service while large segments of the communities of color are included as defendants in criminal cases.”
Says Abramson: “The fact of the matter is that we are so far from practicing the theory or the ideal of fair cross-sectional representation that we ought to be somewhat embarrassed by the persistency of the failure.”