Geri L. Dreiling, ABA Journal
January 10, 2006
Gertner wrote, low-income residents tend to be more transient. As a result, from 2001 to 2003, the undeliverable rate in wealthier towns with fewer African-Americans was 5.8 percent. Larger municipalities with a greater percentage of African-Americans had an undeliverable rate of 18.4 percent, according to Gertner. The nonresponse rate in heavily African-American areas for the same period was 23 percent; predominantly white areas had an average nonresponse rate of 7.6 percent.
Gertner concluded the court’s system violated the JSSA, so she mandated that selection procedures be changed for that trial. As before, the federal jury administrator sent out juror summonses from the resident lists. If a jury summons was returned undeliverable or there was no response, another questionnaire to an address within the same ZIP code would be sent out.
“One thing is clear,” Gertner wrote. “This court cannot—yet again—return to business as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates.”
The Boston-based 1st U.S. Circuit Court of Appeals threw out Gertner’s order, saying her plan violated the JSSA because it deviated from the uniform jury selection process already adopted by the entire district court.
Several groups, including the Boston Bar Association, the National Lawyers Guild, the Boston branch of the NAACP, and the Charles Hamilton Houston Institute for Race and Justice, filed amicus briefs in support of Gertner’s plan.
The case has plunged the District of Massachusetts into a vast self-examination of jury selection methods. Chief Judge William G. Young, who also filed an amicus in the appellate case, has convened a panel of five judges to study whether it should overhaul its system for selecting jury pools. The report was to be delivered last month.