Editorial: Why So Few Black Jurors?

Detroit Free Press, June 3, 2012

It’s a conundrum that has bedeviled metro Detroit for decades: In a federal judicial district whose population is more than 20% African American, fewer than 1 in 10 citizens who report for jury duty in Detroit’s U.S. District Courthouse are black.

Now, with a well-known black businessman on trial and his alleged partner in a massive kickback scheme, former Mayor Kwame Kilpatrick, scheduled to square off with federal prosecutors later this summer, the prospect of all-white or mostly-white juries sitting in judgment of prominent African-American defendants has rekindled long-standing resentment and suspicion in the black community.

Late last week, U.S. District Judge David Lawson, the Clinton appointee presiding over the bid-rigging trial of Detroit contractor Bobby Ferguson, rejected Ferguson’s assertion that his constitutional rights were violated when his jury was drawn from a pool that was less than 7% African American.

Acknowledging that blacks are frequently underrepresented in the Detroit jury pool, Lawson ruled that the process by which federal juries are selected was imperfect but not unconstitutional, and that Ferguson’s trial—by a jury that includes 10 whites and two blacks—must go forward.

Why are African Americans so underrepresented in Detroit’s federal courtrooms?

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Today, in a special question-and-answer feature, the Free Press editorial board explores the history of the problem and what those inside and outside the judicial system are doing to address it.

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Q: If the law doesn’t require racial minorities to be proportionally represented on any given jury, how can anyone say that African Americans (or any other group) are underrepresented?

A: The U.S. Supreme Court has ruled that the race and ethnicity of those selected for jury duty should be roughly proportional to the race and ethnicity of those eligible for jury service. When critics complain that African Americans are underrepresented on federal juries in Detroit, they are simply pointing out that the percentage of African Americans in the pool from which juries are selected is much smaller than the percentage of African Americans eligible for jury service in the nine counties that constitute the Detroit division of the U.S. District Court for the Eastern District of Michigan.

Q: How are people chosen for federal jury duty in Detroit?

A: Once every couple of years, the names and addresses of about 300,000 adults presumed qualified for jury service are randomly selected from a database that includes registered voters, licensed drivers and those who hold state identification cards.

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The court then mails questionnaires—about 5,000 every two months or so—to residents selected at random from the master jury wheel to determine if they are legally qualified to serve on a federal jury.

Q: Why wouldn’t someone whose name appears on one of the three lists the court uses be qualified?

A: Prospective jurors are automatically disqualified if they are not citizens, lack the literacy skills to understand and complete the questionnaire without assistance, or have not resided in the Detroit division for at least a year. They may exercise their right to be excused from jury duty if they are over 70, have some mental or physical infirmity that prevents them from participating, are in active military service, or are working as police officers or firefighters.

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Q: So where do prospective African -American jurors fall away? Are blacks underrepresented because judges or prosecutors tend to exclude them from jury service, especially when the defendant is black?

A: There’s little evidence to support that. Attorneys for both sides in a criminal trial typically have the right to exclude a limited number of prospective jurors without saying why, but excluding anyone solely on the basis of race is illegal. Judges are required to seat a juror challenged by either side if the court believes the challenge is motivated exclusively by racial or ethnic considerations.

Q: If judges are doing their job, why do so few African Americans end up seated on federal juries?

A: Almost everyone agrees the problem arises because a disproportionately high number of African-American residents don’t respond to the initial questionnaire.

Q: If the court doesn’t know the race of those summoned for jury duty, how does it know the race of those who fail to respond?

A: It doesn’t. But the nonresponse rate for juror questionnaires mailed to Wayne County has consistently been at least twice as high as the nonresponse rate in other counties. And Wayne County is where most of the region’s African-American citizens live.

For example, 25% of prospective jurors in Wayne County failed to respond to jury questionnaires mailed in August 2008, compared to 10% or less in six surrounding counties. By August 2010, the recession had pushed nonresponse rates higher everywhere, but Wayne’s 53% nonresponse rate was again nearly double that of any other county.

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Q: Why not keep sending additional summonses to ZIP codes where high concentrations of African Americans live until a proportionate number of questionnaires are returned?

A: That’s essentially what the committee proposes. But it’s difficult to reach any particular threshold of African-American representation without violating legal requirements that the jury selection process remain random.

In the 1990s, the Detroit district tried subtracting names drawn from less racially diverse areas from the jury pool to boost the proportion of African-American jurors. The U.S. Court of Appeals eventually ruled that practice unconstitutional.

What the Hood-Roberts committee is proposing now is to make sure that any summons that is returned as undeliverable triggers a new mailing to another resident in the same ZIP code, or an adjoining ZIP code that is demographically similar.

This strikes us as a practical and constitutionally sound accommodation, and we hope the U.S. Court of Appeals will approve it.

Q: As long as court administrators are going out of their way to make sure that African Americans have the opportunity to serve on juries, why is it the court’s problem—or society’s, for that matter—if black citizens fail to exploit that opportunity?

A: Because, in a democratic society, the legitimacy and moral authority of the courts hinges on the participation of everyone. When African Americans are consistently underrepresented, for whatever reason, confidence that minority defendants can obtain equal justice under the law inevitably suffers.

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