Judge Warns of Racial Imbalance on Boston Jury

A U.S. District Court Judge in Boston says the jury selection process will prevent two black men from getting a fair trial in their death penalty cases. The judge has ordered changes in jury procedures; federal prosecutors have appealed. Martha Bebinger of member station WBUR reports.

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The prospect of an all-white jury in Boston deciding the fate of two black men in a federal death penalty case has persuaded a judge to order changes in jury procedures. Darryl Green and Branden Morris are charged with killing a rival gang member to protect a drug trafficking ring. The judge hearing their case has proposed changes that could increase the pool of minority jurors. Federal prosecutors have appealed. From member station WBUR, Martha Bebinger reports.

MARTHA BEBINGER reporting:

It's 8:30 on a Monday morning in a glassed-in auditorium at the federal courthouse in Boston.

Mr. JIM McALEAR: Good morning once again, everyone. Welcome to the United States District Court. My name is Jim McALear.

BEBINGER: McAlear welcomes 88 jurors for service. Almost all of them are white. It's a pattern that defense attorneys representing black or Latino clients in Boston and many other urban areas don't like and have occasionally challenged. Last month, US District Judge Nancy Gertner ordered what she called a limited remedy. For every jury summons the court does not get back with a response, the court will send another notice to a random address in that same ZIP code. Patricia Garin is one of the attorneys for Darryl Green.

Ms. PATRICIA GARIN (Attorney): The way this system works now, there may be an equal opportunity for names to be drawn but a huge proportion of the names aren't real people. So it does no good to just draw a name if there's no body behind it that's going to come in and do jury service.

BEBINGER: Findings in the case show that jurors in largely white towns around Boston are three times more likely to be called for jury duty than are residents of predominantly minority neighborhoods. Officials in some of those low-income communities say that's because they can't afford regular updates of the resident list used for jury mailings. National Lawyers Guild President Michael Avery says the lack of minorities on federal juries is a national concern.

Mr. MICHAEL AVERY (President, National Lawyers Guild): I think people across the country are looking to this case in Massachusetts to see what sort of remedies might be tried out to correct the problem.

BEBINGER: But the US Attorney's Office says the judge doesn't have the authority to change jury rules. Prosecutors add that sending a second round of summons to specific ZIP codes violates the required random selection of jurors. Some legal scholars say it isn't clear whether random refers to the entire court region or to areas within it. Nancy King writes about jury selection at Vanderbilt University Law School.

Ms. NANCY KING (Vanderbilt University Law School): If the order was targeting districts that had a higher proportion of African-American citizens, for example, that would be unconstitutional, but if you're sampling from within certain ZIP codes randomly, it seems to me you have a case for saying that still complies with the statute.

BEBINGER: At the moment, this change would only apply to the trials for alleged gang leaders Green and Morris, but the chief judge of the federal district court in Boston has taken the unusual step of filing a brief in support of the additional summonses and has appointed a committee of five judges to review how the federal court in Boston calls jurors. Chief Judge William Young.

Judge WILLIAM YOUNG: The function of a United States district judge is to give the fairest possible trial in every case. I think that's exactly what Judge Gertner is trying to do.

BEBINGER: Defense attorney Garin says having a diverse jury should be in everyone's best interest.

Ms. GARIN: If the government continues to push its position of having no changes in the way the jury system operates, they will in effect be advocating for an all-white jury for these African-American defendants.

BEBINGER: The spokesman for the US attorney in Massachusetts, Samantha Martin, disagrees.

Ms. SAMANTHA MARTIN (Spokesman, US Attorney): Any suggestion that the US Attorney's Office is opposing the court's order because it supports or wishes to continue any underrepresentation of any segment of the population is misleading and false.

BEBINGER: A federal appeals panel hears arguments today about the legality of increasing the pool of jurors, particularly minority jurors, for defendants Darryl Green and Branden Morris.

For NPR News, I'm Martha Bebinger in Boston.

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