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An order by a Hall County, Ga., judge directing jury clerks to include Hispanics in jury pools may create new headaches for the courts and could have unexpected consequences for defense lawyers. In an order on a challenge to the traverse jury, Hall County Superior Court Judge Kathlene F. Gosselin last week found that Hispanics in Hall County, Ga., constitute a “cognizable group” for purposes of jury selection. She found that the selection procedure for assembling the jury list systematically discriminates against Hispanics and violated the defendant’s Sixth Amendment right to an impartial jury. State v. Smith, No. 00CR726B (Hall Super. Oct. 26, 2001). Gosselin made the rulings in response to a challenge to the traverse jury in the death penalty case against Brandon Dwayne Smith, who is accused of murdering a Hall County man while burglarizing his home. Hall County District Attorney Lydia J. Sartain cautions that while the ruling bars the state from proceeding with a few cases, the other judges have not adopted Gosselin’s order yet. And she doesn’t anticipate a flood of copycat motions in other cases. DEFINING A COMMUNITY While the ruling would seem to ensure that Hispanic defendants will be assured of more sympathetic juries, some experts caution that’s not necessarily the case. The designation “Hispanic” is a broad generalization that glosses over many differences of nationality and class among people of Latino heritage. Trial lawyers may find they have a whole new dimension to consider in selecting a jury: differences within the Hispanic community, which is far from homogenous. Demographer Doug Bachtel, professor of Family and Consumer Sciences at the University of Georgia, says the community encompasses wide differences in nationality, education and income. “The Hispanic community is united by language, but it is really heterogeneous because they’re coming from a lot of different countries with very different cultures,” he says. For example, Hispanic jurors from wealthier South and Central American nations may not be especially well-disposed toward defendants from less developed nations, and vice versa, Bachtel says. But Atlanta lawyer Jesus A. Nerio, former president of the Hispanic Bar Association, discounts the danger of understanding Hispanics as a bloc group. He says he would worry about differences between a Hispanic defendant and a Hispanic juror about as much as he worries about class differences among whites or blacks. It’s more important, he says, to ensure that the court system not exclude Hispanics. “Every time a non-English-speaking person is out in front of the court, having members of their community on the jury, I think it leads to the credibility of being tried by their peers,” he says. “It’s wonderful that [Smith lawyer, Daniel A.] Summer finally got it through.” While the effect on Hispanic defendants’ ability to get a fair trial is conjecture, there is no doubt that Gosselin’s decision, if adopted in other courts, will create headaches for those compiling jury lists. In Duren v. Missouri, 439 U.S. 357 (1978), the U.S. Supreme Court set out a three-prong test for establishing a violation of the Sixth Amendment’s “fair cross section” requirement: The defense has to show that the excluded group is distinctive, that the group’s representation on jury lists is out of proportion with its representation in the community, and that the exclusion is systematic. The standard says nothing about whether the group has to comprise primarily U.S. citizens. Many Hispanic residents of Hall County are legal permanent residents, with permission to live and work in the United States, but without some of the rights that citizens have: the right to vote and the right to serve on juries. Hall County Clerk of Court Dwight Wood says his office has “already gotten the ball rolling” with respect to increasing the presence of Hispanics on county jury lists. He says his office has been reconstituting the county’s master list since the summer. And a simple tweak to the county’s software will enable it to track Hispanics on its jury lists. The commissioners have been relying solely on voter registration lists, he says, but began looking for other sources of names when the Georgia Legislature passed an amendment to O.C.G.A. � 15-12-40, requiring jury commissioners to use “the list of all county residents who hold a Georgia driver’s license or personal identification card” in assembling juror lists. “There are several places in the county we can go pound the pavement,” he says. “And I’m sure we’re going to find other lists we can use.” But Wood says he’s worried the court will require the county to match the absolute proportions of Hispanics in the county population — not the proportion of those eligible to serve on juries. During the hearing before Judge Gosselin, some INS witnesses estimated that the percentage of citizens among Hall County’s Hispanic residents may be less than 10 percent. That makes for a small pool of Hispanics who can serve on juries, Wood says. “If it comes to that I don’t know what we’ll do,” he says. “It’ll have to be up to a superior court judge — or a higher judge.” IMPACT ON JURY REQUIREMENTS John R. “Jack” Martin, lawyer for murder defendant Jamil Abdullah Al-Amin, says this might indicate the need to change the jury requirements in Georgia. Perhaps, he says, legal permanent residents should be allowed to serve on juries. As legal residents they already end up in court as victims and defendants. Martin also has challenged the fairness of the Fulton jury pool, maintaining that his client — an African-American — can’t get a fair trial if the jury pool doesn’t reflect the county’s Hispanic population. In her order, Gosselin recognized some of the obstacles the state faces in compiling a representative list. “The Court appreciates the logistical difficulties now confronting the Hall County jury commissioners and the State may be correct that it is not possible to compile a jury list that will reflect a perfect cross section of the Hall County community,” she wrote. “However, the effort to compile a constitutional jury list must be made.” Hall jury commissioners had been relying on data from the 1990 Census to guide them in striking the proper racial and gender balance on their lists of potential jurors. But the 2000 Census shows that 17,424 — 17.12 percent — of Hall’s 101,760 residents older than 18 called themselves Hispanic on Census forms. However, Hall’s traverse jury list contains only 1,023 Hispanics out of 39,297 names — or 2.6 percent. In her order, Gosselin ruled that such a disparity was sufficient for the defendant to make his prima facia case of underrepresentation. The judge cited another case out of Hall County in setting the numeric limits of what is permissible variation on juries — Morrow v. State, 272 Ga. 691, 692 (2000). In that case the Georgia Supreme Court held that an absolute disparity less than 5 percent is usually constitutional, between 5 and 10 percent is probably constitutional, and more than 10 percent is likely unconstitutional. The Hall disparity is 14.52 percent. The jury commissioners should rely on the proportions established by 2000 Census data to assemble new master lists for potential jurors, Gosselin ruled. However, the judge denied Summer’s challenge to the grand jury, holding that the jury commissioners had assembled that list by relying on the only figures they had at the time: 1990 census data. The commissioners had also made an effort to recruit eligible Hispanics for service on grand juries, the judge ruled. “I don’t think that the sky is falling,” DA Sartain says. “I would expect that the supreme court will want to take a look at this before it goes to trial.”

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