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Santa Barbara County attorneys are bracing for a fight before the California Supreme Court over alleged racial inequities in the county’s jury system, where Hispanics and other minorities—which total as much as 30% of the county’s population—make up 4% of its jurors. Criminal defense lawyers statewide have been watching the case as part of a larger concern that a low percentage of Hispanic jurors serve throughout the state. A first round of briefs has been submitted to the state high court, with two more rounds to go. A hearing before the high court has not yet been scheduled. Blair v. Superior Court (People), No. B171673. “It’s absurd that in a county where at least 30% of the population is Hispanic, we look at juries full of retired white folks and not one person of color,” asserted Robert Sanger, the defense counsel who brought the writ. “This has been going on for years and we can’t get the jury commissioner to fix it.” David Nye of Nye, Peabody and Stirling, who represents Court Commissioner Gary Blair, countered that the jury-selection methods were race neutral, and there was no intention to discriminate-a view supported by the appellate court. He added that Blair is currently working at modifying the system. In 2002, a superior court judge ruled that the county jury-selection system produced juries that had disparate numbers of Latinos and African-Americans. That ruling hung up a number of trials for more than a year, until California’s 2d District Court of Appeal decided that the lower court had focused on the wrong definition of disparity. Sanger appealed the ruling to the California Supreme Court, which accepted the appeal earlier this month. Sanger, of Santa Barbara’s Sanger & Swysen, said that the issues on which state Supreme Court justices want to be briefed left him worried. “The questions they asked were focused on the nonconstitutional issues,” he said. “We worried that they want to stay clear of what we see as the most important issue: the Sixth and 14th Amendment promises of the right to a jury of your peers and equal protection under the law.” Nye asserted that the Supreme Court review is moot “because Gary is changing the jury-selection system.” But, according to Sanger and Deputy Public Defender Michael Ganschow, the changes haven’t been made yet. And, he said, Nye has been getting paid to appear in court and tell judges the changes haven’t yet been made to protect Blair’s position in the coming arguments. California offers its counties several methods for calling jurors, including a one-step process where people receive a summons in the mail, and a two-step process where they first receive a questionnaire, then, if qualified by the returned questionnaire, they are summonsed. The larger counties in California have gone to the newer, one-step method, but many counties still use the two-step, Nye said. “[Blair] has been looking at changing to a one-step system for many years, but his consultants have told him: ‘Don’t just do that as a knee-jerk reaction,’ ” Nye said. Two-step battle The defense bar has been battling the jury commissioner for years over Blair’s implementation of the two-step process, both for the grand jury that indicts and the juries that hear trials. And, they say, the longest battle was trying to get the jury commissioner to tell them how he picked juries. “Since 1996, we’ve been bringing motions in criminal cases over juror selection that have been thrown out for lack of compelling data when the data was under protective order,” said Ganschow, who brought the first of nine challenges. “After a year and a half, it became unavoidably clear that the judge was denying me the information he was saying I needed to succeed at the motion.” Two years ago, the third superior court judge to hear the challenge examined the county’s jury-selection process in a murder case handled by Sanger and found it resulted in a disparate number of Latino jurors. The list starts with Hispanic-surnamed people at about 20%, while 5% or less end up on juries, Ganschow said. Not only that, the superior court judge, Frank Ochoa, observed that, under the very design of the process itself, that number would continue to shrink with each cycle. He also noted that the youngest people on the summons list were 22, which meant that people between 18 and 21 hadn’t been included. “That meant ignoring a large portion of the citizens of this college town,” Ganschow said. The commissioner uses a complex filtering process that in itself eliminates Hispanic-surnamed people, Sanger said. Then the commissioner sends out juror questionnaires, and those who send them back make it into a group from which potential jurors are summonsed. If people don’t return the questionnaires at their own expense, they are forever excluded from the group of people who receive summonses. Since Hispanic people failed to return questionnaires at a higher rate, they fell out of the potential pool at a disproportionate rate. “Now you are down to the volunteers,” Ganschow said. “That’s how my young minority clients end up facing a jury that looks like Mr. and Mrs. Santa Claus.”

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