March 15, 2007 — Vol. 42, No. 31
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New plan looks to put more minorities on federal juries

Howard Manly

In an attempt to increase the number of minorities on federal juries, the Judicial Council of the First Circuit recently approved revisions to its selection process that are random and ensure “a fair cross section of the community.”

The United States District Court for the District of Massachusetts instituted the revised plans on March 1.

The revisions were the result of an unusual challenge filed two years ago by U.S. District Judge Nancy Gertner, who at the time was presiding over a death penalty case concerning two African American men allegedly involved in a slew of street crimes, including murder and selling crack.

Gertner argued then that the process was based on frequently outdated residency lists and caused the available pool of African American jurors to plummet from 20 percent in Suffolk County to about 7 percent in the Eastern District of Massachusetts, where the federal jury pool is drawn. The Eastern Division includes Essex, Middlesex, Suffolk, Norfolk, Bristol, Plymouth, Barnstable, Dukes and Nantucket counties.

The number of African Americans dwindles to about 3 percent or less after jury summonses are returned because of outdated or inaccurate residency lists.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

Saying the resident lists were “not functioning as the [court’s] Jury Plan assumed they would,” Gertner found that “the resident lists undercount African Americans from the outset … [and that in many cities and towns the resident lists] are not improved and updated annually as required by state law, resulting in disproportionately high rate of undeliverable and non-responses in heavily African American poor and urban communities.”

Though Gertner’s ruling did not conclude that the process was unconstitutional, she did find that the defects in the system “amounted to a substantial failure.”

Gertner’s remedy was 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 Court of Appeals for the First Circuit rejected Gertner’s remedial plan on procedural issues. But U.S. District Judges Mark L. Wolf and Reginald Lindsay were able to devise a plan that would balance issues over “randomness” and “a fair cross section of the community.”

According to the new guidelines, for each summons returned by the U.S. Postal Service as “undeliverable,” the clerk of courts shall draw at random from the supplemental jury wheel the name of a resident who lives in the same zip code area to which the undeliverable summons had been sent and mail that person a juror summons/qualification form.

The revisions apply to all communities, not only those with high minority populations, and are expected to improve the rate of responses to jury summonses from cities and towns which have both substantial minority populations and outdated residents lists.

For years, the federal courts were able to withstand legal challenges to the jury selection process. In 1984, criminal defendants argued that the geographic definition of the Eastern Division — every county east of Worcester — resulted in African Americans being underrepresented. That challenge was denied.

Ten years later, another criminal defendant argued that the Eastern Division’s boundaries also resulted in Hispanics being underrepresented. That challenge, too, was denied.

In 1999, a criminal defendant challenged the constitutionality of the actual residents list, arguing that the list underrepresented African Americans and, as a result, amounted to a “systematic exclusion” of African Americans.

As it is now, those excluded jury duty include: residents who are not citizens; anyone under the age of 18 years old; those who have not resided within the judicial district for a period of one year or more; those who are unable to read, write, understand and speak the English language; those unable to serve because of physical or mental illnesses and those who have a charge pending for a crime that has a punishment of a year or more. Those who have been convicted of a crime in state or federal court that requires a prison sentence of one year or more are also unable to serve as jurors.

Court officials acknowledge that the revisions are not perfect, but do represent a step in the right direction on insuring defendants their constitutional rights.

“This much is certain,” the report stated. “The more flawed the source of potential jurors … the more tension there will be between … the randomness requirement, on the one hand, and the fair cross section requirement on the other. The present revision of the Jury Plan attempts to restore the balance of the two.”

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