Judges Respond to Concerns About Jury Pool Diversity

By Henri E. Cauvin
Washington Post Staff Writer
Sunday, July 15, 2007

D.C. Superior Court Judge Neal E. Kravitz had never seen a jury pool quite like the one that walked into his courtroom for the trial of Donnie Ray Horne.

In a city that is nearly 60 percent black, the prospective jury for the sexual assault case against the black defendant was almost 90 percent white. It was the sort of pool that has been raising concerns among defense lawyers in the District, as the city's changing demographics bring white newcomers to a jury roll that has long struggled to reach some of the city's poorer residents.

Kravitz, a judge since 1998, had probably seen jury pools that didn't line up with the racial and economic shifts in the District. "But I have never had a panel in a criminal case that looked like this," he told the lawyers in the case. Then he did something rarely done in a D.C. court.

At the request of the defense lawyer and over prosecutors' objections, Kravitz sent back all 70 prospective jurors -- 61 white, eight black and one Asian -- and called for a new group.

The action in the spring was an assertion of judicial authority and added to a debate over how representative juries must be if they are to be seen as fair -- particularly amid the city's changing face. This month, a judge in another case opened the door to a broader challenge of how jury pools are crafted in the District.

Legally, a jury pool does not have to mirror the population, and, especially in urban areas, a number of factors have skewed the pools. Young black men in the District, for example, are more likely than young white men to have criminal records, which can make them ineligible for service. Poor people, who in the District are more likely to be black than white, may move frequently and be harder to summon.

But such factors do not appear to explain the changes in the past few years. Exactly what does, and how evolving demographics might play a role, are questions without answers, partly because of a lack of data.

Despite a growing awareness of the apparent disparities, it's impossible to ascertain an authoritative racial breakdown of the jury pool in Washington, because most people who are called for service do not answer the optional race question on the summons.

The potential jurors who show up at D.C. Superior Court many weekday mornings do not appear to represent a cross section of the community, as the Constitution requires, said Julia Leighton, general counsel of the D.C. Public Defender Service, which has been pushing for changes.

"There's a stark difference between what you see in the Superior Court's jury boxes and what you see on the residential streets of the District of Columbia," Leighton said. "We're hopeful that Judge Kravitz's decision signals a new willingness on the part of the Superior Court to analyze existing data and to collect new, more accurate data to identify problematic patterns."

In the District, about 80 percent of people arrested are black, D.C. police say. Nothing in the law requires that the jury pool match that. But experts said the makeup of juries can shape a community's perception of the justice system.

"You want justice not only to be done but to be seen to be done, by the public at large, by the minority population and by the individual defendant and witnesses," said Stephan Landsman, a law professor at DePaul University who wrote the American Bar Association's most recent set of principles for juries.

Those who have worked in Superior Court for more than a few years say jury pools have more white faces than they did a decade ago.

The census shows that whites are moving into Washington in greater numbers. But the public defender service has long suspected that flaws in how the Superior Court identifies people eligible for jury duty might be distorting the citywide pool.

In recent years, the District began using new sources for names, such as public assistance rolls, to try to expand a pool that has traditionally drawn on people who file income taxes and are registered to vote and licensed to drive.

In a 1979 decision, the U.S. Supreme Court said that to challenge the makeup of a jurisdiction's jury pool, a defendant has to prove more than just a significant underrepresentation of some group. "You have to show that there's a systematic reason," said David A. Moran, an associate professor at Wayne State University Law School in Detroit.

But with so few prospective jurors in the District listing their race on the questionnaires, it may be hard to determine a pool's racial composition. "There's a lot of information missing, and that's part of what makes a . . . challenge difficult," Moran said.

Lawyers from the public defender service have been asking judges to allow them to examine court data on jury pools, however limited it might be. But judges have denied the motions -- until this month.

After public defenders focused on the right to challenge the jury system, D.C. Superior Court Judge James E. Boasberg ruled that the defense is entitled to information and data about the way potential jurors are identified and summoned.

Boasberg said he will determine what information must be turned over after receiving briefs from the attorney general's office, which represents the court, and Jason D. Tulley, the public defender who is also Horne's attorney.

Boasberg's action is likely to prompt similar challenges. "There are a lot of repercussions and ramifications from this," Boasberg told the lawyers. "I don't act lightly."

In deciding to call for a new group of potential jurors in the Horne case, Kravitz also seemed to recognize that he was on tricky legal terrain. It was impossible to determine from the jury pool that he dismissed whether there had been any systematic exclusion of blacks, he said. And the defense did not have a legal right to get a new group, he said.

"I'm not saying I have a legal basis, but the sort of the spirit of it is we should have a fair cross section," Kravitz told the lawyers.

And so he took action.

U.S. Attorney Jeffrey A. Taylor, whose office prosecuted the Horne case, said in a statement that Kravitz's decision infringed on the prospective jurors' rights.

"As the court and defense counsel both recognized, there was no legal basis to excuse the panel simply because of its racial composition," he said. "It's a fundamental principle of law that individual citizens have a constitutional right to participate as jurors without being discriminated against on the basis of one's race."

In a statement issued in response to questions about the case, Kravitz explained his decision:

"The unusual makeup of the panel created an appearance of unfairness to the defendant, an African American man who faced a lengthy prison sentence if convicted," he said. "I sought a practical, common-sense solution. After determining that other jurors were available and that neither party would be prejudiced by my sending for a new panel, I concluded, in my discretion, that I should request a new panel so that the trial could proceed in a manner that would be accepted as fair and legitimate by all parties."

Horne, 46, who was arrested in May 2006, was to go on trial on charges of second-degree sexual abuse. Authorities suspected that he had sexually assaulted his girlfriend's disabled adult daughter.

Sixty new prospective jurors -- 40 whites, 14 blacks, four Hispanics and two Asian Americans -- were taken to Kravitz's courtroom after he excused the first group. A jury of eight whites (two of whom became the alternates and did not deliberate), five blacks and one Hispanic was seated.

The case moved along and went to the jury, which began deliberating -- and deliberating. After three days and two notes from jurors saying they were deadlocked, Horne decided that he didn't like the new jury.

So, in the midst of deliberations, Horne agreed to plead guilty to lesser charges in a deal contingent upon the judge's accepting a sentence agreed upon by the defense and prosecution. The judge signed off on the agreement.

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