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Jim Kenyon: Everyone Into the (Jury) Pool

Last Tuesday morning, I reported for jury duty at the U.S. District Court in Brattleboro. Having never served on a jury, I looked forward to seeing how the sausage is made.

The jury pool consisted of 50 or so Vermonters, of which 12 jurors (plus two alternates) would be chosen to decide the fate of a man charged with dealing crack cocaine and prescription painkillers in the state. During the selection process, a prospective juror (not me, I didn’t have the courage) posed a question to federal Judge J. Garvan Murtha that went something like this: How come with 60 people, including jury candidates, lawyers and the judge himself, the only “person of color” in the courtroom was the defendant?

Talk about a white elephant in the room.

Murtha explained that the Brattleboro federal court draws its jurors from Windsor, Orange and Windham counties. The court uses voter registration and motor vehicle records to randomly select potential jurors, regardless of race, he said.

The system is straightforward and efficient. I’ll give the judge that. But as far as protecting a minority defendant’s constitutional right to a fair trial by an impartial jury? It leaves a lot to be desired.

Then again, it is Vermont, where 95 percent of the population is white. The black defendant in the Brattleboro case probably had a better chance of winning the Megabucks than getting an African-American seated in the jury box at his trial, which is scheduled to begin Monday. In the three counties that the Brattleboro court draws jurors from, only 858 residents, or 0.7 percent, are African-American, according to the most recent U.S. Census.

It’s hardly breaking news that Vermont is as lily-white as it gets.

But when brought face-to-face with that reality in a courtroom, where a man’s freedom hangs in the balance, Vermont’s near total absence of racial diversity becomes all the more stark. I described the Brattleboro courtroom scene — a black defendant engulfed by 50 prospective white jurors — to a lawyer, who isn’t involved in the case. His reply: “I don’t like his chances.”

Now throw in that the law enforcement agency that investigated the alleged drug dealer is whiter than snow, and I see why some lawyers are skeptical about the Vermont criminal justice system’s ability to treat minorities fairly. In 2012, the Vermont State Police reported the racial breakdown of its troopers. Of 321 sworn officers, six were African-American.

I’m not suggesting that race will determine the outcome of the upcoming trial in Brattleboro. On Tuesday, Murtha reminded prospective jurors that the law requires them to assume the defendant’s innocence. (Like the rest of the jury pool, I hadn’t heard of the defendant and knew nothing about his case.)

But I wondered how many of us would tolerate the system if the issue were gender instead of race. Would a man accused of sexual assault feel comfortable with an all-female jury pool? Would a woman charged with killing her husband want her prospective jurors to be only men?

I emailed Jessica West, an associate professor at Vermont Law School. She’s a former trial lawyer who has studied and written about juror bias nationally. Over the years, the U.S. Supreme Court has re-enforced the need for juries to represent a “fair cross-section of the communities” from which they are drawn, she said.

That means even in Vermont, 4 or 5 percent of jury pool participants should be minorities. “But that doesn’t happen,” said West.

It has to do with the way potential jurors are picked, she told me. Starting in the 1970s, Congress and the courts determined that a “fair cross-section” could be achieved by relying on so-called source lists. The easiest — but far from the most comprehensive — way for courts to identify prospective jurors is to rely on a checklist of registered voters. Sometimes, courts supplement their jury pools by turning to other public records, such as a list of licensed drivers, which is what Murtha talked about.

“That’s still not the best system,” said West. Studies have shown that minority groups and lower-income individuals tend to be underrepresented on many of the standard lists, said West. She points out that not everyone drives or votes.

She’d like to see the courts expand their horizons a bit. For instance, some prospective jurors could be randomly selected from a list of people who receive public assistance. “A representative cross-section of a community needs to include people who, because of their circumstances, have become marginalized,” said West.

Expanding jury pools would require some work. Courts might have to arrange transportation for non-drivers. (Currently, the federal government reimburses drivers at 56 cents a mile.) Increasing juror compensation could also help people who now ask to be excused because they can’t afford to miss work. (Murtha told prospective jurors that judges support an increase in the $40-a-day rate, but Congress hasn’t gone along.)

West also sent me an article by Tufts University psychology professor Samuel Sommers. His research found that everyone benefits from making jury pools more inclusive. White jurors are better able to set aside their biases and shared assumptions, to look at different experiences or opinions about the case facts when serving on juries composed of people of different races, Sommers said. And what’s even more interesting, he added, is that the research showed a “diverse jury deliberated longer and discussed more evidence than a white jury.”

At the end of the day in Brattleboro, I wasn’t among the 14 jurors selected, but I considered myself in good company. The middle-aged white guy who asked the race question wasn’t picked, either.

Jim Kenyon can be reached at