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Jury diversity bill now law

The Jury Pool Fair Representation Act was included among a package of 18 bills signed by Gov. David A. Paterson earlier this month.

The legislation “will help provide us with the information necessary to improve jury representation and help us better realize our goals of a fair and equitable court system,” Paterson noted in a release.

The Act enables the collection and submission of demographic data of jurors into an annual report, designed to address several recent studies that show New York State’s minority populations are widely under-represented on juries.

It’s an issue the Monroe County Bar Association has been involved with for more than five years. The Monroe County Public Defender’s Office actually initiated a statistical study of local jury pools in 2003.

Rochester attorney Karen Bailey Turner said recently she is excited by the legislation’s progress. The Brown & Hutchinson associate is the chairwoman of the MCBA’s Criminal Justice Section and the current president of the Rochester Black Bar Association.

“Our local bar associations have been advocating for the diversification of jury pools for quite some time,” Bailey Turner wrote in an e-mail this week.

She credited a seminal study on jury diversification now being conducted in Monroe County “as a result of the tireless efforts of [fellow Rochester attorney] Michael Wolford” and the MCBA’s Diversity Committee, which brought this issue to the state’s attention.”

The county Public Defender’s Office, RBBA, Greater Rochester Association for Women Attorneys “and several other organizations have also taken significant steps to educate the public about the perceived lack of diversity in the jury system.

“Without a doubt, the absence of diverse jury pools supports the pervasive notion that the criminal justice system does not treat defendants fairly,” Bailey Turner wrote.

Local push

Wolford, chairman of the MCBA’s diversity committee, told The Daily Record in May 2009 that the association addressed the diversity issue in 2005, when trial judges “made very clear there was an under-representation of minorities on juries, although there were no statistics to back up that assumption.”

His committee asked Rochester Institute of Technology Professor John Klofas, chairman of the Criminal Justice Department, to design a study of the county’s jury pool to determine the rate of minority representation. Seventh Judicial District Administrative Judge Thomas VanStrydonck, Appellate Division, Fourth Department Presiding Justice Henry J. Scudder and the county’s commissioner of jurors supported the study, but it never was approved.

Wolford and his committee reactivated the study in 2008 and Justice Scudder added it to the state Administrative Board’s agenda.

The bill Paterson signed this month was spurred by a 2006-2007 study by Citizen Action of New York. The advocacy group sent two researchers “to study the physical characteristics of prospective jurors and label each one as black, white, Asian or other, and then to decide again whether they were Hispanic or non-Hispanic.”

Rules prohibited researchers from speaking with the more than 12,000 jurors studied.

Many saw the “bill as a way to provide a more precise analysis of the diversity of jury pools throughout the state, and then use the data to remedy problems that may exist,” The New York Times reported May 7, adding that it will take some time before the data is made available, but it is not “too early to start handicapping the results.”

The Times’ interviews with lawyers, politicians and court officials predicted a variety of results: “Defense lawyers were nearly unanimous in their belief that the jury pools in the Bronx, Brooklyn and Queens were representative of those boroughs. Manhattan, on the other hand, drew more skepticism.”

The article stated that outlying boroughs, with higher populations of traditionally minority groups, would have juries more likely to acquit, and that presumably more upscale Manhattanites would comprise juries more likely to believe police, unable to conceive police might lie on the witness stand.

The Act

The Jury Pool Fair Representation Act, which amends Judiciary Law §506(a), was written to expand the source lists of prospective jurors and requires the lists to be updated quarterly.

New source lists for jurors, might include income and property taxpayers and persons receiving student aid assistance, the senior citizen rent increase exemption, workers compensation, family and individual assistance; persons residing in public housing and persons subscribing to gas, electric, telephone and cable television services.

In a telephone interview Tuesday, Justice Scudder said that had been changed.

“There were too many source lists,” he said, “and they were getting the same people.”

Past studies

Monroe County Public Defender Tim Donaher said that while the bill has been pared down since its introduction last year, his office is encouraged by its passage. The issue has long been a local concern, he said, as there was much anecdotal evidence but a dearth of empirical data showing juries did not truly reflect the county’s population. Donaher said he’s heard of 100-person jury pools, “and in some cases, there would not be one minority.”

In any case, Donaher said the issue is complex and complicated. Wolford has been “the point person” to whom much of the credit must be given for keeping the issue in the forefront, he said.

The public defender’s office did its share, too: In 2003, lawyers in his office began their own study in which they compiled information on felony trials. Lawyers filled out a standard form — The Batson Review Form — on which they identified African-American jurors “in the entire jury pool for the defendant.

According to documents provided by Donaher this week, his office compiled data on 25 trials and found only five had juries “somewhat reflective [of] the community.”

The data underwent statistical analysis and, in 2004, Donaher’s office used the results to bring a motion on behalf of several of clients “asking that the prospective panel of jurors in each case be discharged on the grounds that each Defendant’s Sixth Amendment rights had been violated due to systematic under-representation of African-Americans on their respective jury pools. Each motion was denied.”

An intern for the office, Sam Valleriani, conducted another such study in 2005, this time monitoring 36 felony trials. He determined only 12 had juries that were “somewhat reflective of the community.” The data was again analyzed by the same person, James Halavin, a mathematics professor at RIT, who decided African-Americans were being under-represented on local juries.

Beginning in January, jurors who appeared to serve in Monroe County were asked to fill out a “Juror Information Card,” identifying his or her age, gender, Hispanic origin and race.

“The purpose is to simply make sure we have an unassailable study that can serve as the foundation for going forward if there is a problem of under-representation,” Justice Scudder told The Daily Record in November 2009.

It marked the first systematic countywide jury study conducted in New York State.

On Tuesday, Justice Scudder said the county study is a little more in-depth than the one allowed by the newly signed bill and has been used as a template for the state-mandated jury-data collection. This month’s bill is silent on how the collected data will be used, however, and it appears there is no end date for its collection. Justice Scudder said just who will use the data, and in what way, has yet to be determined.

Monroe County’s study, however, already is being analyzed by a team of experts, who hope to come up with a remedy for any lack-of-minority-representation problems.

Such studies are routinely performed by many courts throughout the country, according to Paula L. Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts.

She is one of three nationally known experts acting as consultants on the Monroe County project. The other consultants are Cornell Law Schoool Professor Valerie P. Hans, who has written four books on the jury, and G. Thomas Munsterman, director emeritus and founder of the Center for Jury Studies at the National Center for State Courts.

“We need to have data that can’t be attacked,” Justice Scudder said, adding that he prefers to refrain from speculating on how it will change jury selection here until everything’s collected and analyzed.

“I want to wait to see what the data says before figuring out what to do,” he said.

In November, state Office of Court Administration Management Analyst Elissa Krauss said she expects to present preliminary results on the county’s study by the end of the year.

Jury diversity consists of two Constitutional rights, Donaher said, one concerning a defendant’s right to trial by his peers, but another concerning a juror’s right to serve on a jury. Minorities often are faced with jury-service problems that most white, middle-class or affluent people don’t have, Donaher said, including a more transient population, language barriers and being poorly paid for time spent in court. Poor and lower-class workers may have trouble obtaining child care, or their employers are reluctant to lose them for the duration of a lengthy trial, he said.

“Many poor people are transient,” he said, “and the truth is many poor people are minorities.”

Poorer people find jury duty a financial burden, he also said: “They are woefully undercompensated. I think they get paid $40 a day. That’s $5 an hour, less than the minimum wage.”