Federal courts struggle with jury diversity

2013-04-07T09:00:00Z Federal courts struggle with jury diversityMcClatchy Tribune News Service Herald-Review.com
April 07, 2013 9:00 am  • 

CHICAGO - Defense attorneys were astonished - and U.S. District Judge James Zagel called the development rare - when 50 prospective jurors entered a federal courtroom for William Beavers' trial and not one was an African-American man.

Yet less than two months earlier in the same courthouse, 45 prospective jurors had filed into U.S. District Judge Milton Shadur's courtroom for the drug conspiracy trial of another African-American defendant. Just one was black.

In each instance, defense attorneys cited the racial imbalance in asking that the panel be dismissed and a new one randomly selected. The two veteran judges weighed the legal issues before them but came to opposite conclusions: Zagel retained his panel, while Shadur ordered a new group in.

"I was really startled," Shadur recalled in a telephone interview about the nearly all-white jury panel. "I sent the jury back to the jury room, and we had a new jury a few days later that had a better degree of representation."

Both trials underscore the struggles facing federal courts across the country in trying to randomly select juries that fairly reflect the racial diversity of their communities. Even as the Beavers trial brought the controversy to light, officials at the federal court in Chicago were preparing to draw names from driver's license and state ID records to add to the traditional voter rolls. The move represents the most significant change to the jury selection process for Chicago's federal court in at least two decades and is expected to increase the representation of blacks and Hispanics on juries.

Other districts confronted with similar issues have taken even more dramatic action.

"You want, especially on the outset, (for) this thing to not only be fair but look fair," said David Coar, an African-American who sat on the federal bench for 16 years. " . This court system depends on people believing that you get a fair shake."

Chicago's federal district court, officially known as the Eastern Division of the Northern District of Illinois, encompasses racially diverse Cook County and mostly white DuPage, Grundy, Kane, Kendall, Lake and LaSalle and Will counties.

For decades, the district has relied on voter registration lists to randomly assemble a large group of prospective jurors in a process mandated by Congress in 1968 to eradicate the handpicked juries that had led to the systematic exclusion of African-Americans and other minorities.

That group is composed of 50,000 residents from the eight counties, a list commonly referred to by court officials as the "master jury wheel." The selection of the names is weighted by population, meaning greater numbers of prospective jurors come from the more populous Cook County and Chicago.

The federal court uses the list for two years to seat juries for hundreds of trials at the Dirksen U.S. Courthouse.

As part of the process, court officials regularly mail out to a random cross-section of the pool a questionnaire intended to weed out those unqualified to serve on juries - including those who aren't U.S. citizens, don't understand English well enough or are under 18.

Prospective jurors who had returned the questionnaires and met all the requirements are then selected at random and ordered to report to court on a specific date. At that point, a computer again randomly selects which prospective jurors - called a panel - to send to the courtroom to be potentially questioned and picked to sit in judgment at criminal or civil trials.

How well minorities have been represented on Chicago federal juries is not clear. The clerk's office said it needed a court order to release any juror data.

Other federal courts have identified many reasons why minorities are underrepresented on jury panels.

For one, the databases used to come up with potential jurors might not accurately reflect the diversity of the community, according to Paula Hannaford-Agor, an expert with the National Center for State Courts on jury system management. She pointed to a U.S. Census Bureau study of 2008 voting data that found that registered voters tend to be older, white and more affluent than the general population.

To improve the odds of drawing more minority jurors, courts can supplement voter rolls with other databases, Hannaford-Agor said.

Income, education and employment also play a role in why more minorities don't wind up on juries, she said. Studies have found that those at lower socio-economic levels might miss a court mailing because they moved. They also don't respond to jury summons because they don't understand the process or have financial hardships. A larger percentage of minorities fall into that group, Hannaford-Agor said.

The District of Massachusetts, which uses resident lists from which to find jurors, discovered that wealthier towns with fewer minorities kept more accurate records than more diverse cities such as Boston. As a result, many jury summonses sent to cities with a higher percentage of minorities went unanswered or were returned as nondeliverable because residents had moved.

To try to remedy the discrepancy, the district began mailing a new summons to another resident in the same ZIP code if the summons came back as undelivered.

"We really exposed something that we didn't know about," said Nancy Gertner, a former federal judge who presided over a death penalty case that prompted a study of the Massachusetts system.

The Eastern District of Michigan, based in Detroit, found no evidence that minorities were underrepresented in its master jury wheel built from voter registration lists and driver's license and state ID records. But Hannaford-Agor, who was hired to study the process, discovered that a disproportionately high number of African-American residents were not responding to the initial eligibility questionnaires.

While experts attributed some of the problem to residents simply ignoring the questionnaire, court administrators concluded that migration out of the region had led to an increasing number of jury service mailings being delivered to houses or apartments that were vacant or occupied by others.

A committee of judges devised several changes to address the problems, including consolidating the questionnaire and summons into a single mailing to give it more legal force, and, like Massachusetts, ensuring that any summons returned as nondeliverable triggered a new mailing to another resident in the same ZIP code. They also recommended intensive outreach in communities with lower response rates.

In March, the 6th Circuit U.S. Court of Appeals in Detroit approved the changes, described by Hannaford-Agor as among the most comprehensive of any federal court in the country.

"So we are doing the part that the courts should do in order to make it easier and better to get the information to potential jurors," said U.S. District Judge Denise Page Hood, who co-chaired the committee. "But it is a two-sided process. People also have to be willing to fill out the form and respond."

The federal court in Chicago has considered before how to increase minority representation in its jury pools. In 1994, the court looked into adding driver's license records to the voter registration lists. But the idea was scuttled after an extensive study concluded that the move would decrease African-American representation.

The district has always run names of prospective jurors against databases of residents who have recently moved and tried to re-send questionnaires that bounced back. They also sent out a second mailing to those who didn't respond.

Just last week, the clerk's office in Chicago's federal court was awaiting the arrival of driver's license and state ID records from the Illinois Secretary of State's office, data that will be added to the voter registries as the office prepares to build its next master wheel in a few weeks.

Driver's licenses alone would not have helped draw more minorities into the mix 20 years ago, but Ted Newman, judicial services manager for the clerk's office, said adding state IDs will make a difference now.

It was in January that Judge Shadur called Newman to his courtroom when only one African-American appeared in the 45-person jury panel for the drug trial of Vernon Chapman. Newman concluded that what had happened was "statistically highly unusual."

But that was not how it felt to Chapman.

"He feels like he is going on trial in Georgia," a court transcript quoted Michael Bolan, Chapman's attorney, telling Shadur.

Assured that procedures had been properly followed, Shadur was still troubled by the end result and ordered a new group of prospective jurors be brought to the courtroom. The trial was ultimately delayed when Chapman fired his attorneys at the last minute.

When the jury panel for Beavers didn't include a single African-American man, Judge Zagel ruled that he didn't have the legal grounds to dismiss the jury panel if the random selection process had been properly followed. Beavers, a Cook County commissioner charged with tax evasion, was convicted two weeks ago by a jury that included two black women.

Still, Beavers' attorneys are expected to raise the issue on appeal.

"At this point the clerk's office has indicated they followed every aspect of the jury plan, but clearly if we have this problem in the Beavers jury, and from what we have heard there have been similar problems in other cases, then it needs to be addressed," said Lauren Kaeseberg, one of Beavers' attorneys. "And it's a problem of constitutional magnitude."

Defendants, though, are not guaranteed jurors who share their race, ethnicity, gender or religion. Even with a more representative jury wheel for the eight-county Northern District of Illinois, the resulting panels would still include more whites than those pulled for service in Cook County court, for instance.

It's a reality that attorney Gregory Mitchell tries to prepare his clients for at trials in federal court in Chicago.

"When I have represented clients who have had experience with state (trials), the defendants do make comments that they expected to see more minorities," said Mitchell, a former assistant U.S. attorney who is African-American. "One of the things I have to tell them is, 'No, this is federal now.'. The pool must be representative of the Northern District, not a particular county, not a particular defendant."

Lori Lightfoot, a former federal prosecutor now in private practice, said race always hovers over a trial - with the potential to impact decisions.

Lightfoot, who is African-American, has felt it personally, including once when a prospective white juror scowled at her while forcefully telling the judge she lived in one of Chicago's most racially segregated neighborhoods.

But issues like affluence, gender, education and the nature of the charges all have potential impact as well, she said.

"I am going to be troubled if I have a client of color and I have no diversity in a jury pool," said Lightfoot, a finalist to succeed former U.S. Attorney Patrick Fitzgerald. "But I wouldn't necessarily say without having done a lot of analysis ahead of time that having someone who meets the same racial or gender demographics as my client is presumptively going to be the best juror.

"Jury selection is still more art than science," she said. "There is no mathematical equation you can put in and spit out: Here's my perfect juror."

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