In Memoriam to the Hon. William J. Caprathe: A Judge’s Judge Dedicated to Diversifying Juries

As an elected state trial judge in Bay County, Michigan, Judge Caprathe promoted the importance of diversifying our American juries. This special edition on jury diversity is dedicated to the memory of Judge Caprathe, a “judge’s judge.” He was well respected by attorneys, litigants, state and federal court judges, and the public at large, and his memory lives on through his life’s accomplishments with innovative jury concepts. He led by example, mentoring judges and attorneys on the important role of inclusive, representative juries and the importance of reassuring the public that juries are fair and impartial within their jurisdictions. Judge Caprathe’s valiant efforts led to positive and significant changes in the composition of juries in many communities. He advocated for judges and lawyers to become more aware of the immense value that updated jury source lists have in achieving more representativeness within jury pools. He believed that, by diversifying juries, the public’s perceptions of justice would be increased, including the importance that the public perceive fairness in the diversity of the people deciding the fates of defendants, or else justice is not met. Judge Caprathe wholeheartedly believed improving diversity ensures justice in the eyes of the public we serve.

Judge Caprathe was thrilled that he was invited to participate in a two-year pilot program in Michigan, which led to sweeping reforms in updating his state’s court rules. These reforms included numerous innovations such as permitting judges to allow jurors to take notes during a trial, allowing jurors to submit written questions to witnesses for the judge to read aloud, and authorizing jurors to request to visit the crime scene. For his achievements with jury reform, Judge Caprathe was awarded the G. Thomas Munsterman Award for Jury Innovation from the National Center for State Courts (NCSC) in 2012.

As a retired, senior trial judge, Judge Caprathe continued his work on improving representation within jury pools. Together with colleagues possessing expert knowledge in this field—Paula Hannaford-Agor, Stephanie McCoy Loquvam, and Shari Seidman Diamond—he coauthored a comprehensive how-to article focused on improving jury diversity. Their well-researched article, entitled “Assessing and Achieving Jury Pool Representativeness,” was featured in The Judges’ Journal in the spring of 2016. In their article, they explained in detail Principle 10(A), adopted by the American Bar Association (ABA), in order to increase diversity in jury pools. They also derived a step-by-step “Checklist for Assessing and Improving Representativeness in Jury Pools” that provides guidance to lawyers and judges and is even more significant today:

Step 1. The master jury list should include at least 85 percent of the jury-eligible adults in the jurisdiction.

Step 2. Consider the source lists used to create the master jury list. Driver’s license/state ID lists may overlap with voting lists if a state ID is required to register and/or vote. Additional juror source lists might include welfare, unemployment, and state income tax rolls.

Step 3. Determine the percentage of the population that is jury-eligible. Eligibility requirements can greatly affect the demographic composition and representativeness of the jury pool.

Step 4. Consider the demographic characteristics of the jury-eligible population.

Step 5. The master jury list should reflect the geographic distribution of the population.

Step 6. The master jury list should be updated at least annually.

Step 7. Improve jury yield. . . . A unified system that combines juror summoning and qualification improves yield rates. If jury yields are too low, consider the undeliverable rate, the nonresponse/FTA [failure to appear] rate, and the excusal rate.

Step 8. An undeliverable mail rate over 12 percent indicates that the master jury list is probably stale. If local migration rates are high, master jury lists should be updated more frequently.

Step 9. Consider using NCOA [National Change of Address System] to update addresses on the master jury list, and for summonses and questionnaires before mailing.

Step 10. A second notice/summons within three weeks is the most effective approach for reducing nonresponse/FTA rates. Including the possible consequences of failing to appear on the summons or reminder postcard helps reduce noncompliance rates. Punitive actions may be used strategically to educate the public and improve compliance.

Step 11. The excusal rate should stay below the national average of 8 percent.

Step 12. One-day or one-trial terms of service result in the lowest excusal rates.

Step 13. Compensation rates should be sufficient to cover reasonable out-of-pocket expenses. Free parking, accessible public transportation, and other amenities can facilitate juror participation and reduce the excusal rate.

Step 14. Deferral rates and excusal rates are inversely related. Initial deferral allowances improve response rates.

Authors Caprathe, Hannaford-Agor, Loquvam, and Diamond include numerous recommendations to assist courts and lawyers in this diversity endeavor. They recommend the use of U.S. Census Bureau demographic statistics as a great starting point to assess whether a current jury pool is inclusive and representative. The end result should be updated jury source lists reflecting the composition of a jurisdiction’s community. Accurate demographic information must be secured as to race, ethnicity, and gender derived from the input of potential jurors. Such input is predicated on the use of U.S. Census Bureau definitions and collection methods to obtain such vital data from potential jurors.

These authors also cautioned about avoiding various pitfalls such as implementing improper, inconsistent jury classifications. If the statistical data collecting methodology used is unreliable, then the statistical data produced will be unreliable and will “undermine the ability of the courts to assess the effectiveness of the jury selection process.” They advocated for applying valid and reliable statistical data collection to improve and assess diversity in jury pools and achieve representativeness in our individual jury panels.

Judge Caprathe not only professed these concepts, but he also applied them because he valued the importance of the public’s perception of fairness as reflected by the composition of his jury panels. Judge Caprathe not only talked the talk about the importance of improving diversity on jury panels, but he also walked the walk. He implemented pivotal changes to update jury source lists to improve diversity.

Judge Caprathe will be remembered for his legacy and devotion to diversifying and improving our juries as well as his participation in various innovative jury projects such as the American Jury Project of the ABA. I can still recall his gentle, contagious smile that contained his effervescent enthusiasm for being a judge. He will be remembered as a down-to-earth and humble person. When he was stumping for election, he noted his electorate had a difficult time pronouncing his Italian last name. He recalled one constituent at the microphone who was hard of hearing loudly announcing phonetically his last name as Judge-to-be “Crap-happy.” We shall cherish our precious memories of participating with him and his lovely spouse, Linda, in many state trial judge events and meetings for the National Conference of State Trial Judges of which he was chair. We feel very fortunate to have known the Honorable William J. Caprathe, who was not only our colleague, but also our dear friend who we truly miss. Judge Caprathe, you made this world a better place to live in, and we thank you for doing so. Your legacy in improving jury diversity will live on!