U.S. v. Gault, CR 95-229 JP.
| Decision Date | 01 April 1997 |
| Docket Number | No. CR 95-229 JP.,CR 95-229 JP. |
| Citation | 973 F.Supp. 1309 |
| Parties | UNITED STATES of America, Plaintiff, v. Anthony GAULT, a/k/a Arthur Hughes, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Joseph W. Gandert, Fed. Public Defender's Office, Albuquerque, NM, for Defendant.
Charles L. Barth, U.S. Atty., for U.S.
The subject of this Memorandum Opinion and Order is defendant's "Motion to Select Jurors from a Constitutionally Representative Venire" (Doc. No. 66), filed December 16, 1996. After thoroughly reviewing all of the relevant evidence before me, I conclude that defendant's motion should be denied.
On December 9, 1996, after a jury was selected for defendant's trial, but before the jury was sworn, counsel for defendant orally moved the Court to dismiss the jury. Defendant wished to have an opportunity to present evidence that the jury selection process in the United States District Court for the District of New Mexico ("the District") systematically and arbitrarily excludes people of color1 from jury service. I dismissed the jury, postponed the trial, and allowed the parties to submit briefs on the issue of the constitutionality of the jury selection process in the District. After the parties submitted briefs, I scheduled an evidentiary hearing to take place on January 6, 1997. The parties requested permission to submit the transcripts of testimony and defendant's Exhibits 1265 A-R and government's Exhibits 1-10 from an evidentiary hearing held before the Honorable Martha Vázquez on November 26 and November 27, 1996, in the on-going case of U.S. v. Cesar Gonzales, No. Cr. 95-0538, U.S. District Court for the District of New Mexico, in lieu of an evidentiary hearing before me. At the November Gonzales hearing, evidence was presented on a range of issues pertaining to the District's jury selection plan and Hispanic and American Indian representation in the jury pools of the Albuquerque/Santa Fe, Roswell and Las Cruces Divisions, in relation to their numbers in the general population.
In addition to the transcript of the November Gonzales evidentiary hearing and the related exhibits, the only other evidence furnished by the parties in this case is the affidavit of Elizabeth Martinez, and Exhibits A-L to that affidavit.
Mr. Hughes argues that the current system for selecting jurors systematically excludes Hispanics, American Indians,2 and Blacks from the jury selection process in the Albuquerque/Santa Fe Division.3 Mr. Hughes contends that this exclusion violates the Sixth Amendment's right to a representative jury and the Fifth Amendment's equal protection clause. Some of the issues raised during the course of the November Gonzales hearing were not mentioned by Mr. Hughes or the government in their briefs. This opinion addresses only the arguments specifically presented in the briefs in this case.
Mr. Hughes only challenges the jury selection process in the Albuquerque/Santa Fe Division of the District. Hence, I have not considered whether the District's jury selection plan has resulted in a constitutionally unacceptable representation of Hispanics, Blacks and/or American Indians in jury venires in the Las Cruces and Roswell Divisions.
I base my conclusion that Mr. Hughes' motion should be denied upon a thorough review of the relevant portions of the November Gonzales hearing transcripts, the affidavit of Elizabeth Martinez, the exhibits attached to the transcript and the affidavit, and matters of which I take judicial notice.
Although the parties did not present information about the history of the District's jury selection process, I take judicial notice of that history. On August 14, 1968, in compliance with the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861, et seq., the District Court judges for the District adopted a "Plan for Random Selection of Jurors." This plan has been amended several times. The most significant change occurred on July 10, 1978. The 1968 plan presumed that members of certain professions or occupations and persons residing far from the court4 would suffer undue hardship or extreme inconvenience and that requiring them to serve on juries would be "inconsistent with the Act." Hence, the 1968 plan provided for automatic excusal from jury service by the Chief Judge upon request by a member of one of these groups. The July 10, 1978 modification of the plan essentially eliminated areas of automatic excusal, thereby, in effect, dispelling elements of subjectivity, making the plan more objective and providing court staff and judges with less opportunity to excuse people. Another amendment to the plan, on July 16, 1984, stated that the "master jury wheel for each division shall be emptied and refilled every two years...." Previously, under the 1968 plan, the wheel had been emptied every four years.
The current plan is largely a reflection of the 1968 plan with the amendments noted above and other minor changes which have no substantive effect on the issues before me. Under the plan there are three divisions in the District of New Mexico: Albuquerque/Santa Fe, Roswell, and Las Cruces. Prospective jurors within the Albuquerque/Santa Fe Division are selected from voting registration rolls from the following New Mexico counties: Bernalillo, Catron, Cibola, Colfax, Guadalupe, Harding, Los Alamos, McKinley, Mora, Quay, Rio Arriba, Sandoval, San Juan, San Miguel, Santa Fe, Socorro, Taos, Torrance, Union and Valencia.
Under the plan, persons are selected for jury service in the following manner. The Court Clerk ("clerk") determines a total number of jurors needed for a particular division of the District — Albuquerque/Santa Fe in this case. In open court, one of the District's judges draws a "starting number." An "increment number" is arrived at by dividing the total number of jurors needed into the total number of people appearing on the list of all registered voters in the Division. The "starting number" and the "increment number" are used to identify names, from among those on the list of all registered voters in a division, which then are included in a "Master Juror Wheel." The "Master Juror Wheel" consists of all persons whose names fall at multiples of the "increment number," beginning with, and including, the "starting number." For example, if the "starting number" is 11, and the "increment number" is 8, then the names on the Division's voter list corresponding to the numbers 11, 19, 27, 35 and so forth would be placed in the Master Juror Wheel.
Form A0904 juror questionnaires5 are sent to every person whose name appears in the Master Juror Wheel. Question No. 11(A) of Form A0904 asks the recipient to identify the person's race as "Black," "Asian," "White," "American Indian," or "Other." Question No. 11(B) asks the recipient to answer yes or no to the question, "Are you Hispanic?"6
The names of the registered voters who return the questionnaires and who are not disqualified, not excused, and not exempted,7 are then placed in each division's "Qualified Juror Wheel."8 All grand and petit juries for a division come from that particular division's Qualified Juror Wheel. The clerk, periodically, as needed, selects a group of jurors from the Qualified Juror Wheel on a random basis.9 The clerk mails voir dire forms10 to the qualified jurors who are randomly selected.
The petit jury in this case was selected from the 1995 Qualified Juror Wheel for the Albuquerque/Santa Fe Division. The Tenth Circuit instructs judges, who analyze jury composition challenges, to look to the appropriate Qualified Juror Wheel. United States v. Yazzie, 660 F.2d 422, 427, 431 (10th Cir. 1981), cert. denied, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982).
The chart, infra, summarizes the relevant data underlying Mr. Hughes' motion. Column I identifies the groups which Mr. Hughes contends have been substantially underrepresented in the District's jury selection process and the pertinent years — 1993 and 1995 — for which the court was given data.
Column II gives the percentages of each group in the 1993 and 1995 Qualified Juror Wheels. Importantly, 68 of the 1025 persons included in the 1993 Qualified Juror Wheel and 93 of the 1186 in the 1995 Qualified Juror Wheel did not (1) identify their race in answer to Question No. 11(A), and (2) either did not answer, or answered "no," to Question No. 11(B), regarding whether they are Hispanic. In arriving at the percentages listed in Column II, I excluded these unidentified jurors from the total number in each Qualified Juror Wheel. See U.S. v. Haworth, 948 F.Supp. 981, 984 (D.N.M. 1996) (Judge C. Leroy Hansen) (). I calculated the percentages shown in Column II by using a total number of 957 for 1993 and a total of 1093 for 1995.
I excluded the unidentified jurors for several reasons. First, Alok Bohara, the only expert in statistics who testified at the November Gonzales hearing, stated that it is the standard practice of statisticians to exclude the missing or unidentified category in cases like this in which the focus is on a variable such as race and/or ethnicity. Second, to include the unidentified jurors in the totals would produce inaccurate results because it would assume that, for a particular racial or ethnic category, none of the unidentified jurors fell within that category. There is no reliable way of determining, from the evidence in this case, the racial and ethnic composition of people who did not identify themselves as being members of specific racial groups and/or Hispanic. Intuitively, it makes more sense to assume that those who did not identify themselves are likely to be in racial or ethnic percentages roughly the same as those who did.
Column...
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... ... See United States v. Gault, 141 F.3d 1399, 1402 (10th Cir.1998) (noting that Hispanics, Native Americans and African ... ...
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U.S. v. Gault, 97-2235
...After considering the material presented by the parties, the district court, in a thorough and well-reasoned opinion, United States v. Gault, 973 F.Supp. 1309 (D.N.M.1997), concluded that the District's jury selection process was constitutional. We review the district court's findings for c......