July 2007

Courts Try to Maximize Jury Diversity

The Constitution, federal law and a series of Supreme Court rulings guarantee the right to impartial juries, selected at random from a fair cross-section of the community. Increasingly, federal trial courts are seeking to move beyond those legal imperatives and find new ways to maximize jury diversity.

“Originally, an impartial jury only had to be comprised of men who owned property. We’ve come a long way. But the system, which may never be perfect, needs to reflect today’s reality,” said Judge Reginald Lindsay in the U.S. District Court for the District of Massachusetts.

Lindsay led a committee of district court officials who, after a year-long study, revised the court’s jury plan earlier this year in an effort to get more racial and ethnic minorities on juries.

Why was such an effort needed, and why was it deemed to be important? The answers require a look at “today’s reality.”

As do all 94 federal trial courts, the District of Massachusetts has a written jury plan to assure compliance with constitutional mandates and the federal Jury Selection and Service Act, which for nearly 20 years has prohibited the exclusion from federal jury service of any person “on account of race, color, religion, sex, national origin, or economic status.”

The district, however, is unique in using resident lists, the result of an annual census taken in each city and town in Massachusetts, as its source of jurors.

But a study ordered in 2005 by Judge Nancy Gertner (D. Mass.) found that wealthier towns with few minority residents did a better job of keeping accurate residency lists than more diverse communities. The result: a higher percentage of jury summonses sent to minorities came back as undeliverable or went unanswered.

Under the district’s revised jury plan, a jury summons returned as undeliverable from any of the court’s three geographic divisions will spur the court to send another summons to another resident in the same zip code. Two other innovations: The list of potential jurors will be submitted to a Postal Service check for address changes twice a year instead of annually; and a brochure being developed to perhaps accompany summonses will explain the importance of jury service.

“There is no perfect source of potential jurors: voter registration lists, lists of actual voters, and annual resident lists all have proven to have flaws,” the district’s jury plan committee concluded. “It is likely that any new source . . . will also have flaws. The question is what source gives us the closest approximation of the fair cross-section ideal. Answering that question remains the committee’s principal work.”

Lindsay added: “The perception of fairness counts. A white jury may be fair, but a non-white defendant likely will think ‘the jurors can’t be fair because they don’t understand me.’”

The U.S. District Court for the District of Kansas monitored the Massachusetts court’s efforts very closely, Chief Judge John Lungstrum said, because “a disproportionate number of bad addresses or people not responding had become a concern.”

“We weren’t comfortable with the representative nature of the resulting jury pools, especially regarding racial and ethnic minorities,” Lungstrum said.

The district’s amended jury plan, which took effect June 1, also calls for a “supplemental draw” in which a summons returned as undeliverable will spark the sending out of a new summons to someone else in the same zip code.

In the Fresno division of the U.S. District Court for the Eastern District of California, Judge Oliver Wanger reports that judges have focused for years on jury composition. “We’ve looked out at the panels and, candidly, we and the litigants before us did not see people who look like them. There were very few African-Americans. This is, in part, a function of the unique demographics of our division.”

Under a pilot program approved by the Judicial Council of the U.S. Court of Appeals for the Ninth Circuit, federal juries in Fresno later this year will be drawn not only from voter registration lists but also from Department of Motor Vehicle records.

“We hope that combination will result in more diverse jury panels,” Wanger said.