Court tackles selection of juries

A federal appeals court in Boston is set to hear arguments today on a long-simmering issue that has galvanized legal and advocacy groups throughout the state: the lack of African-Americans on federal juries.

''The embarrassing and destructive existence of all-white jury panels in this district has been tolerated far too long," wrote Michael Avery, a Suffolk University Law School professor and president of the National Lawyers Guild, in a brief filed with the US Court of Appeals for the First Circuit.

The NAACP, the Massachusetts Black Legislative Caucus, and the Federal Defender Office are among groups that have filed briefs supporting a plan by US District Judge Nancy Gertner to try to get African-Americans on the jury that will decide the federal death penalty case against two black men from Dorchester. The groups say that every defendant has a fundamental right to have a jury that is representative of the community, and that every citizen should have an equal chance to serve on a jury.

But federal prosecutors, who are urging the appeals court to throw out Gertner's plan, argue that it does not matter how well-intentioned the plan is because the judge has overstepped her authority by creating a unique jury-selection process that applies only to her courtroom. Their briefs to the court said their challenge to Gertner's plan was to its ''ad hoc" nature and not to ''the societal merits of the court's order; or to whether the order establishes a better jury selection plan."

In an unprecedented move, however, US District Chief Judge William G. Young filed a brief supporting Gertner's plan as ''a legitimate and a wise exercise of the court's authority." In the brief filed on Young's behalf, Jackie Gardina, a visiting assistant professor at the Vermont Law School, wrote that Gertner is empowered to correct a violation of the federal Jury Selection and Service Act, which guarantees the right to a trial before a cross-section of the community.

Last month, Young appointed a panel of judges, including Gertner, to consider a new jury-selection plan for the entire US District Court in Boston, which covers all counties east of Worcester, that addresses the underrepresentation of African-Americans on federal juries. In August, Gertner ordered her plan, which involves targeting specific ZIP codes with additional jury summonses, be used in the case of five defendants in a racketeering case, including two, Branden Morris and Darryl Green, who face the death penalty for allegedly killing a gang rival four years ago during Boston's Caribbean Carnival. Their trial is set for next year.

Defense lawyers had argued that it was unfair that the defendants would probably be tried by a white or nearly all-white jury, based on statistics that indicate that blacks are underrepresented in US District Court in Boston.

In August, Gertner agreed, ruling that the court's reliance on flawed residency lists provided by cities and towns to call jurors was resulting in an underrepresentation of African-Americans in the jury pool. Gertner cited a study that indicated that less diverse towns with fewer minorities do a better job of keeping accurate residency lists than more diverse cities, including Boston. As a result, she found a higher percentage of jury summonses sent to minorities come back as undeliverable or go unanswered -- often an indication that people have moved or that they do not actually exist.

While 7 percent of the available jury pool for the federal court in Boston is African-American, the number drops to 3 percent after summonses are returned, according to the judge. Federal court officials said they generally do not follow up on unanswered summonses because they do not have the money or staff.

Under Gertner's plan, when a summons is returned as undeliverable, court officials would randomly send a new jury summons to another resident in the same ZIP code. She also ordered court officials to send a second notice to the same address if a summons goes unanswered, then, if it still goes unanswered, send a new summons to another person in the same ZIP code.

Prosecutors contend that Gertner's plan destroys the randomness of the jury-selection process by sending additional summonses to a specific ZIP code. They also argue that it is unfair to assume that an unanswered summons went to the home of someone who moved, when the recipient may have received it but chose not to respond. But the lawyers for Green, Morris, and their codefendants argued in their briefs that Gertner's plan improves the randomness of the jury-selection process. The current jury-selection system, they say, gives residents of less diverse towns a better chance of getting on a federal jury than those from communities that have more minority residents.

The lawyers also noted that the underrepresentation of African-Americans on federal juries in Boston has been a longstanding problem, which the federal court attempted to address in 1989, when it started using residency lists instead of voter lists to summon jurors. The appeals court rejected a similar challenge to the system in 1999, when it refused to grant a new trial for a New Jersey man who had been convicted of mail fraud and claimed his rights had been violated because blacks were underrepresented on the jury. However, the court expressed concerns about the process and suggested the court consider sending follow-up postcards to prospective jurors who did not respond to summonses.

Citing a study that indicated African-Americans are less likely to recommend the death penalty than white jurors, the lawyers for Morris and Green wrote that in the Dorchester case ''this court must ensure that the jury composition is fairly racially balanced because of the strong possibility that a death verdict will be influenced by the exclusion of African-Americans from the jury."

Shelley Murphy can be reached at shmurphy@globe.com.