Battle Over Racial Makeup of Local Juries

While Bostonist loves our fair city (and its accompanying metropolitan area), we must confess that racial segregation and low-level tension among races are a frustrating reality. Lately, that reality has lead to some interesting legal battles, especially in the Federal District Court, where bold steps may be taken to make juries in criminal trials more racially diverse. Or maybe these steps won't be taken. Read on.

Last month, Judge Nancy Gertner ordered a change in the way jurors were summoned for service in a murder trial before her, hoping to increase the presence of minorities. The Federal District Court, it turns out, relies on town governments to keep track of eligible residents, and more affluent (and, as it happens, largely white) towns tend to keep more up-to-date records. (In related news, the city of Boston hasn't been so good about making voting easy and accessible to everyone either.) This leads to a preponderance of white people (and wealthier people) on juries, because summonses sent to poorer, predominantly minority areas are more likely to be returned as undeliverable (because people have moved and the records aren't updated as frequently). Judge Gertner's plan would make it so that when a summons comes back as undeliverable, the court keeps sending summonses to other people in the same ZIP code, rather than taking the next juror picked randomly from anywhere in the state.

This plan seems eminently sensible (and rather clever) to Bostonist, but not, apparently, to U.S. Attorney Michael Sullivan. He appealed to the First Circuit Court of Appeals (which handles appeals from the Mass. District Court) to stop Gertner's plan, and the First Circuit ordered the new system stopped until there could be a full hearing on the matter. So what's going on?

The racial make-up of juries is actually a very thorny issue. Traditionally, the lawyers for each side in a case had a lot of leeway to get rid of potential jurors for whatever reason they wanted ("Looks too forgiving;" "Too much book-learnin';" "Writes for Bostonist;" etc.). In fact, they still do - they're entitled to a certain number of "peremptory challenges," meaning they can reject a would-be juror for any reason. Any reason, that is, except race (although it took until 1986 for the Supreme Court to say so). Enforcing this is terribly complicated and, as a practical matter, it's not too hard for prosecutors to get minorities off the jury, or limit their numbers. In theory, defense lawyers could use their peremptory challenges to get rid of white people, but the pool of people waiting to be chosen in the event of an open seat on the jury (the venire, as fancy-pants, Latin-talking lawyers call it), is (surprise!) overwhelmingly white. Hence, Judge Gertner's plan to have more non-whites in the pool. (There is a constitutional right to a racially representative jury pool in general, but not to a racially representative jury in every case.)

Bostonist would like to think that the good, liberal people of the Commonwealth are too enlightened for the racial make-up of juries to matter. Experience tells us, however, that this is not so. Just a couple weeks ago at the zoo, we overheard two separate conversations between two pairs of white, presumably suburban mothers, in which references to "this neighborhood" (that is, Dorchester) carried the unmistakable flavor of Boston's subtle, modern-day racism. What do you think, dear reader? Can white surbanites pass unbiased judgment on black city-dwellers? Is Judge Gertner's plan a good idea? Is racism in this town as bad as we think?

The Joseph A. Moakley U.S. Courthouse, where all this exciting legal business is taking place.