The jury that sniper suspect Lee Boyd Malvo will face in Fairfax County when he goes to trial in November on capital murder charges may be significantly different from Fairfax juries of the past nine years.
That's because last month, Fairfax stopped using the list of licensed drivers to gather its pool of potential jurors and is using only the rolls of registered voters, a move many lawyers believe will reduce the number of minorities and young people -- Malvo's peers -- who sit on juries.
The decision was made by Fairfax Circuit Court Clerk John T. Frey for budget and efficiency reasons, he said. Tens of thousands of questionnaires sent out to Fairfax residents from the state Department of Motor Vehicles list were being returned as undeliverable, and many who did return the questionnaire either were not U.S. citizens or did not speak English, requirements for jury duty.
Frey instituted the use of the drivers list in 1994. He said the state's decision to allow voter registration at DMV offices has reduced the disparity between the two lists. "I honestly believe that, because of 'motor voter,' I'm not hurting the diversity of the jury pool," Frey said. "When we started, the two lists were divergent. Now, they are similar."
Fairfax courthouse veterans, who noted that Frey added licensed drivers to improve diversity on the juries, wondered why the drivers now were being eliminated. "That has a pretty dramatic effect on the actual jury pool that you get," said James W. Hundley, a defense lawyer and former Fairfax prosecutor. "It's not nearly as broad in terms of demographics. You'll have fewer minorities, fewer young people and college kids."
Some said socioeconomic classes, rather than racial groups, would be affected more directly by the move to use only registered voters as jurors. "People who are just trying to get by, work their job and raise their kids, they don't have time to go vote," said Michael S. Arif, one of Malvo's lawyers. "I believe you'll have fewer minorities in the entire jury pool. Will it have an impact? God only knows."
Many defense lawyers already felt that Fairfax's juries did not reflect the diversity of the county. The 2000 Census showed that African Americans accounted for 8.6 percent of the county, Asians were 13 percent, and people who considered themselves Hispanic 11 percent. But juries still seemed mainly white. In Fairfax's last death penalty trial in 2001, only two black people were called for a panel of 48 potential jurors, and neither was selected for the jury. The defendant was black.
Virginia law requires that voter rolls be used to summon a jury panel, and jurisdictions may then add other sources.
The change will apply to all Fairfax cases, not just Malvo's. Current and former prosecutors mostly applauded the change, saying registered voters were more established and dedicated citizens, likely to take the responsibility of jury duty more seriously.
Andrew J. Kersey, a former Fairfax prosecutor, said that registered voters "tend to be more interested in the community and better educated, and less inclined to go off on their own. As inexact as the science [of trials] is, it helps to have the best possible pool of people who are interested in citizenship. If you can't pass that threshold, why should we trust you with the awesome power of adjudicating someone's life or liberty?"
Fairfax election officials do not keep records on the racial or economic backgrounds of registered voters. But the qualifications for voting and being a juror are much the same: One must be 18, a U.S. citizen and have no felony convictions. Officials weed out people who are unqualified; the rest are summoned for two-week terms.
Frey said he had been sending out 65,000 questionnaires to get 20,000 eligible jurors. The list from DMV "was not very efficient," Frey said, because drivers don't always update their addresses when they move. "The voter list is cleaned up more often than the DMV list," Frey said.
By eliminating the DMV rolls, Fairfax sent out only 45,000 questionnaires and still was able to qualify 20,000 jurors, of which 15,000 will be called to the courthouse. Fairfax saved $6,000 in postage, Frey said.
Marc Mogil, a jury consultant and former New York trial judge, said juries tended to be more diverse as counties added more sources of jurors. From a trial lawyer's perspective, "by cutting out any of the sources for the [jury] list, you're going to hurt yourself."
But John A. Keats, a veteran Fairfax lawyer, said it was unfair to assume that minority residents vote less than anyone else. "I think you probably wind up, from the voter registration list, with better jurors," Keats said, "because they're more responsible people, black or white. Now whether I want that as a defense lawyer, I don't know."