Although the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), attempted to address the issue of the exercise of peremptory challenges based on race, race-neutral explanations for such dismissals are too easy to articulate and too often accepted by courts. Consequently, the goal of selecting diverse juries is hampered.
A basic role of a judge is to ensure that litigants have a level playing field.
The Sixth Amendment to the U.S. Constitution mandates that litigants are entitled to an impartial jury. This has been interpreted by the courts to indicate that individuals are entitled to a jury of their peers.
The policy of the U.S. Courts states that “litigants shall have the right to jurors selected at random from a cross section of the community.”
As a Rochester City court judge and Monroe County court judge, I was disturbed by the fact that jury panels did not appear to reflect our community. I wasn’t alone in my assessment. Local bar associations, community groups, defense attorneys, and even prosecutors expressed concern. A study was conducted that confirmed the suspicions that minorities were not adequately represented on juries. This led to a lack of confidence in our justice system, leading members of minority groups to be reluctant to respond to juror notices, further exacerbating the situation.
A leader in the effort to rectify this problem was the Monroe County Bar Association under the guidance of Attorney Michael Wolford. Community outreach was deemed to be a critical component of the solution to this problem. Members of the Monroe County Bar agreed to visit local churches, schools, and malls to educate individuals on the importance of participating in our jury system. I recall sitting at tables at a local mall with my then young children, distributing literature to customers and explaining how jury service worked. It was rewarding when some agreed to volunteer to have their names added to the roll of potential jurors. Additionally, the Commissioner of Jurors in Monroe County, Charles Perreaud, has been very active in advancing steps to increase jury diversity.
Community outreach, however, was not sufficient to rectify the situation. Consequently, under the direction and drive of then New York State Chief Judge Judith Kaye, legislation was introduced and passed in the State of New York eliminating most of the exemptions for jury service and expanding the source lists to reach a broader segment of the population.
To reach more minority members of the community, these additional lists reach those individuals receiving unemployment benefits or public assistance. In addition, all who have any relationship with the Department of Motor Vehicles or have filed any forms with the Department of Taxation would be included. Accessing these additional lists results in a broader segment of the population being reached for potential jury service.
After many exemptions were eliminated and source lists expanded, both Judge Kaye and I were summoned to appear as jurors.
With the expanded source lists, many courts were experiencing an increase in the number of minority jurors reporting for service. Seeing more people that looked like them, members of the minority community began to react more favorably to their jury summonses.
In 2013, I had the good fortune of being appointed by President Obama to a seat on the District Court for the Western District of New York. During that first year, I presided over 10 jury trials. What I witnessed was that the same lack of diversity that existed in the state court was present here as well. I always take the opportunity to speak to the jurors after a trial, and they expressed concern about the lack of diversity in the prospective jury panels. In the Western District of New York, only two jury source lists were utilized: voter registration lists and Department of Motor Vehicle records. The Western District of New York encompasses 17 counties and is divided into two divisions—Rochester and Buffalo. The Rochester division includes Monroe County and the City of Rochester, while the Buffalo division includes Erie County and the City of Buffalo. The other 15 counties are basically rural and therefore contain a low minority population. The Western District of New York citizen population consists of 87 percent white, 9.1 percent Black, and 4.5 percent Hispanic persons. This explains some of the reason for the lack of minorities in the potential jury panels. Although there clearly was no systemic discrimination in the empaneling of jurors, it was clear that we needed to explore ways to improve our outreach. These efforts had the goal of increasing confidence in our justice system.
While serving as chief judge for the Western District of New York, I was appointed to be a member of the Second Circuit New York State/Federal Judicial Council. This group’s mission was to work on issues that crossed jurisdictional lines. I proposed that we explore the means to improve jury diversity in the federal courts in New York. The council embraced the challenge. Consequently, I suggested that we request that legislation be passed in New York State that would allow the federal courts to use the same juror source lists available to the state courts. Title 28, U.S.C. section 1863 authorizes federal courts to use source lists beyond the required voter registration rolls. Many federal courts have added motor vehicle records to their source list to supplement the use of voter registration rolls. Although such legislation had been sought in the past, the bill never made it out of committee.
I was fortunate to have a good relationship with New York State Assembly Leader Joseph Morelle, now a U.S. congressman. After explaining the situation to him, he enthusiastically agreed to sponsor such legislation. The cosponsor for the bill was New York State Senator Joseph Robach. It was no easy chore to get this bill passed. It needed to be screened by the Tax Committee, the Labor Committee, the Judiciary Committee, and the Ways and Means Committee. There being no opposition to the bill, it passed without issue. The result was that the federal courts in New York State, through their chief judge, could now have access to the same source lists utilized by the New York State Courts. In addition to voter registration records and Department of Motor Vehicle records, the Commissioner of Jurors now had the ability to receive records from the New York State Department of Labor for those individuals receiving unemployment, the Office of Temporary and Disability Assistance for those receiving public assistance, and the Department of Taxation for anyone who files any forms with the Tax Bureau.
Of course, this was not the end of the process. Chief Deputy Clerk for the Western District of New York Patrick Healy was tasked with the responsibility of coordinating the steps necessary to properly capture the new source information. Memoranda of Understanding needed to be executed with each of these agencies to ensure that only names and addresses were supplied to the commissioners and that the information would be utilized only for jury empanelment. An outside vendor, Michael Sutera, was contracted to merge the various lists and eliminate duplicates. Addresses needed to be updated and deceased individuals would need to be purged from the rolls. Therefore, a subcontractor, Anchor Computer, Inc., was employed to accomplish these additional tasks. Pat did an outstanding job navigating the state bureaucracy and working with the various vendors.
The Western District of New York Jury Plan needed to be updated to reflect the fact that our court was utilizing additional source lists. The judges of our court embraced the changes.
The number of white and nonwhite jurors in the pool samples has increased. In 2020, 11.47 percent were nonwhite. This is the highest number of nonwhites in the past five years. (See the chart on page 12.)
After the implementation of the multiple source lists, we have seen an increase in the number of minority jurors reporting for service as jurors. We have not, however, captured those numbers as well as we should. We hope to initiate a system for gathering those statistics to monitor any progress.
Most importantly, after these steps were implemented, judges reported that they were witnessing an increase in the number of minority members present in the jury panels. Jurors appeared more willing to serve. Confidence in our justice system was enhanced. Comments from jurors regarding the lack of minorities on jury panels has abated.
Even with these improvements, however, our work is not done. Additional community outreach is essential for educating the public about a citizen’s responsibility to serve on our juries. Exemptions need to be largely eliminated. In federal court, members of any state or federal police or fire department and public officers in the executive, legislative, and judicial branches of government are exempt from jury service. Although exempting active members of the military is logical, the rationale for these other exemptions is sorely lacking. As opposed to exemptions, postponements of service could be granted to avoid interruptions in public service.
Title 28, U.S.C. section 1863 articulates the basis for excusing potential jurors from service. They include the following:
- Persons over 70 years of age.
- Persons who, within the past two years, have served on a federal or state grand or petit jury.
- Persons having active care and custody of a child under 12 years of age.
- A person who is essential to the care of an aged or infirm person.
- Volunteer safety personnel to include volunteer firefighters, rescue personnel, and ambulance crews.
- Any person whose services are essential to the operation of a business.
As opposed to simply excusing anyone within these categories, there should instead be a requirement that the individual articulate that service would cause them undue hardship or extreme inconvenience, which is allowed under 28 U.S.C. section 1866 with the approval of the chief judge, presiding judge, or clerk of court.
As previously stated, New York State’s policy of eliminating most exemptions and excuses has resulted in increasing the diversity in jury panels. Federal courts should also eliminate many of the current exemptions.
Studies have shown that minority populations are more transient, and, consequently, more of the qualification questionnaires are returned as undeliverable. It would be prudent to oversample in these zip code areas and resend notices after address checks are conducted. This will allow greater minority participation.
Compensation for jurors needs to be significantly increased. The daily reimbursement rate of $50 is wholly inadequate and causes many to claim significant financial hardship by serving on a jury. Legislation is required to guarantee that a person willing to serve as a juror does not jeopardize their regular income. Jurors need to be compensated for incidental expenses such as parking and lunch. Although some of these measures would increase costs for the courts, justice requires nothing less.
Professor Sam Sommers of Tufts University found, after a research study was completed in 2006, that racially diverse juries made decisions in different ways. They raised a broader range of questions, made fewer factual errors, and were more willing to discuss and debate uncomfortable or controversial issues related to race.
The measures outlined above would enhance our mission of providing justice by leveling the playing field and meeting our mission to provide litigants with jury panels that more accurately reflect our communities.