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In a move to reduce the chances that two blacks charged with capital crimes would be tried by an all-white jury due to the scarcity of blacks in the jury pool, a Massachusetts federal judge decided to target high minority-population zip codes with additional summonses. But a panel of the 1st U.S. Circuit Court of Appeals recently ruled that U.S. District Judge Nancy Gertner didn’t have the unilateral right to alter the District of Massachusetts’ jury-selection plan. In Re U.S.A., No. 05-2358. That plan calls for notices to be randomly mailed to residence lists in all zip codes within each of the district’s three divisions. The Boston case is the latest to illustrate a problem that courts throughout the nation are wrestling with: How to get a representative proportion of minorities in their communities into their jury pools. Legislation is pending in Pennsylvania that would allow Allegheny County, which includes Pittsburgh, to use public-assistance and state income tax records to augment voter registration and drivers’ license lists. To be more inclusive, the Indiana Supreme Court ordered that, beginning in January 2006, voter registration lists be replaced by lists from the state tax authority and the motor vehicle bureau-which also issue state IDs. The court expects these lists will capture nearly 100% of those included in the census. Return to sender In the District of Massachusetts, a greater proportion of summonses mailed to minority zip codes than nonminority ones are returned as undeliverable, and a greater proportion of residents in largely minority zip codes do not respond to summonses they do receive. Gertner said that resulted in African-American representation in the jury pool of 3% or less, while the African-American population in the eastern division, which includes Boston, is about 7%. That ensures that the “vast majority” of juries would not have an African-American member, Gertner said. U.S. v. Green, No. 02-10301. The U.S. Supreme Court has held that defendants are entitled to be tried by jurors drawn by a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357 (1979). Gertner raised other racial concerns about the federal prosecution of the alleged drug racketeering and murders that occurred in 2001 and 2002. “[They have] opted to prosecute ‘street crime’ in federal court, rather than in [state court],” Gertner said. “With that decision, the available pool of African-American jurors plummets from 20% in Suffolk County, where defendants’ alleged crimes took place, to roughly 7% in the Eastern [division] of Massachusetts.” When defense attorneys challenged the composition of the jury pool, Gertner found authority to act under the Jury Selection and Service Act, the district plan and the court’s inherent supervisory powers. Even though the act calls for uniformity and randomness in achieving its fair cross-section guarantee, she said, there is a substantial violation of the act when lists are not augmented to achieve that guarantee. Not so, said the appellate panel. “Imagine that the district judge in question adopted this new, zip-code-oriented approach and that another judge in the district insisted on using the pre-existing practice,” wrote 1st Circuit Chief Judge Michael Boudin. “[T]his would result in some defendants getting juries selected under one regime and others under a significantly different one.” “We were thunderstruck by this decision,” said Patricia Garin of Boston’s Stern Shapiro Weissberg & Garin, co-counsel for co-defendant Branden Morris. “The 1st Circuit recognized the vast underrepresentation of people of color in this district and they’re not going to do anything about it,” Garin said. An appeal is being considered, she said. The U.S. attorney’s office in Massachusetts declined comment. Attorneys for amici-including the Boston Bar Association and the Boston branch of the National Association for the Advancement of Colored People-argued that fair and balanced juries not only help to ensure fair trials, but they give the public confidence in the fairness of the criminal justice system. “Judge Gertner has an impartial plan with a single purpose-to establish a criminal justice system that is equally fair to victims and the accused,” said Harvard Law School professor Charles J. Ogletree Jr., a co-counsel for several amici. “The appellate court rejects Gertner’s modest proposal without crafting an alternative.”

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