U.S. v. Greene

• Decision Date: 23 July 1997
• Docket Number: Cr. No. 95-81082.
• Citation: 971 F.Supp. 1117
• Parties: UNITED STATES of America, Plaintiff, v. Latonya GREENE, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

971 F.Supp. 1117

UNITED STATES of America, Plaintiff, v. Latonya GREENE, Defendant.

Cr. No. 95-81082.

United States District Court, E.D. Michigan, Southern Division.

July 23, 1997.

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David Diebold, Detroit, MI, for Plaintiff.

R. Steven Whalen, Robert A. Sedler, Detroit, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL

ROSEN, District Judge.

INTRODUCTION

On May 17, 1996, Defendant LaTonya Greene was convicted by a 12-member jury of two counts of bank robbery. Defendant Greene, an African-American, has moved for a new trial contending that she was denied her right to a trial by a jury drawn from "a fair cross section of the community" in violation of 28 U.S.C. § 1861 and the Sixth Amendment. She further argues that the Jury Selection Plan in the Eastern District of Michigan, specifically Section VIII(B) of the 1992 Plan, has institutionalized a race-based exclusion of qualified white jurors from jury service in violation of the equal protection guarantees of the Fifth Amendment and 28 U.S.C. § 1862.

Section VIII(B) of the 1992 Plan provides as follows:

The qualified jury wheel shall be composed of persons who represent a fair cross-section of the area of each place of holding court as set forth in Section III of this Plan. To this end, if the Court determines that a cognizable group of persons is substantially overrepresented in the qualified jury wheel, the Chief Judge shall order the Clerk to remove randomly a specific number of names so that the population of each cognizable group in the qualified wheel closely approximates the percentages of the population of each group in the area of each place holding court, according to the most recently published national census report.

[Eastern District of Michigan Jury Selection Plan (1992), § VIII(B).]

The Government has responded to, and opposes, Defendant's Motion for New Trial. Having reviewed and considered the parties' briefs and the entire record of this matter, and having heard the oral arguments of counsel at the hearing held on June 16, 1997, the Court is now prepared to rule on Defendant's motion.¹ This Opinion and Order sets forth the Court's ruling.

DISCUSSION

I. THE EASTERN DISTRICT OF MICHIGAN JURY SELECTION PLAN

To fully address the arguments raised by Defendant in her new trial motion and the Government's counter-arguments opposing the motion, a historical overview of the development of the methods utilized in the Eastern District of Michigan in an attempt to meet the "fair cross-section" requirement of the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. is necessary.

A. JURY SELECTION IN THE EASTERN DISTRICT — GENERAL OVERVIEW

The process of establishing the jury "wheel" from which jurors are summoned for jury service in the Eastern District of Michigan actually is a process that takes almost two years. The Court begins with source lists: voters' registration lists from the various cities, townships and villages that make up the voting precincts within the District, and drivers' license lists from the Michigan Secretary of State's office. Names are randomly selected from the source lists for the District's "Master Jury Wheel". Jury Questionnaires are then sent to the persons whose names were drawn for the Master Wheel to determine whether those persons are qualified for jury service. When the questionnaires are returned, juror qualifications are assessed. The names of those persons whose questionnaire responses establish that they are qualified to serve on a jury are then placed on the "Qualified Jury Wheel". From this Qualified Wheel, names are randomly drawn, generally in groups of 350, and sent summonses to appear for jury duty on specified dates. Those persons who appear on a given date for jury duty comprise the venire pool for that date. From this daily venire pool, venire panels for juries needed for trials that date are drawn, and it is, in turn, from the various venire panels of the day that individuals are randomly selected to serve on petit juries.

B. HISTORICAL EVOLUTION OF THE EASTERN DISTRICT OF MICHIGAN'S JURY SELECTION PLAN

As noted above, the Jury Selection Plan at issue is the 1992 Plan, which replaced and superseded the 1982 Jury Plan. The impetus for the development of the 1982 Plan was a comparison of the racial composition of the jury wheel drawn in February 1982 (approximately 11% black) with the 1980 census data which reflected a black population in the nine-county area making up the Eastern District of 19.2%. R. Mossing, Changes in the Eastern District of Michigan Detroit Administrative Unit's Jury System, 63 Mich. B.J. 33 (1984) [referred to hereinafter as "Mossing"]. Before the 1982 Plan was adopted, the qualified jury wheel was established exclusively by drawing jurors from voters' registration lists. Id. However, voter lists in Michigan tend to be unreliable. They are frequently outdated and continue to reflect the names of persons who had moved away or died because, unlike some states, Michigan state law does not require periodic purging of voter lists. During the 1980's, there was a ten-year waiting period before a municipality could remove an inactive voter from a voter list (unless there was proof presented that the voter had died or moved away).² Id. at 34. (The current law prevents a clerk from ever removing someone from a list based solely on inactive voter status. M.C.L.A. § 168.509bb.)³ Thus, it is not uncommon for the federal court jury clerk to draw from the voter lists the names of persons who have moved or died since the list was last purged.⁴

Moreover, voter lists in Michigan are not kept on a county-wide basis. Therefore, to compile a district-wide list for the Eastern District of Michigan, the jury clerk must obtain over 600 separate voter lists from the various cities, townships and villages that make up the voting precincts in this district. This collection process, therefore, must be started two years in advance of the creation of a master wheel, and that two-year delay, alone, results in the lists being further outdated by two years. [Stipulation of Facts, ¶ 4.]

The 1982 Plan contained two innovations in the jury selection process intended to cure the deficiencies in the prior "voter list" only system: First, the source list for jurors, which previously had been based only on voters registration lists, was supplemented with drivers' license lists. Drivers lists tend to be more reliable because licenses are renewed at least every four years; a license can be suspended for failure to notify the Secretary of State of a change of address and an up-to-date address on one's drivers license is often required in order to cash a check or use a credit card. Mossing, supra at 34.

The early figures studying supplementation showed that supplementation alone would have raised the percentage of qualified blacks in the jury wheel to 14.2%. Id. However, there would still be a gap of 5% between the percentage of blacks in the jury wheel and the percentage in the population of the district. Id.

Therefore, the Court decided to couple the voters' list supplementation with a procedure referred to as "transfusion". The transfusion method called for sending a greater proportion of jury questionnaires to certain geographic areas known to have a high proportion of black residents. Id. at 33.

The Plan called for transfusion to take place after a qualified jury wheel was created. If a "cognizable group" was "substantially underrepresented in the qualified jury wheel," the Chief Judge was authorized to "order additional names to be drawn from areas with a high population density of the underrepresented group." The Plan directed that these people "shall be sent juror questionnaires and such names shall be added to the Master Wheel." (Amended Plan, 1983, § 6.)

However, transfusion operated differently in practice, and in the three years that transfusion was implemented (1982, 1984 and 1986), it was done somewhat differently each time. [Affidavit of David R. Sherwood, ¶¶ 4-5.] For example, instead of introducing transfusion after a qualified wheel was created, the Administrative Order signed by then Chief Judge John Feikens on October 10, 1984 called for transfusion at the time of the creation of the new master wheel. Thus, more questionnaires were sent to "black geographical areas that [had] a low-yield rate in comparison to a high population." See A.O. No. 84×00113, attachment, p. 1. The Order targeted certain zip codes for additional jury questionnaires based on the high percentage of blacks that lived in those zip codes and the low response rate of that zip code to the mailing of questionnaires in the previous wheel. All of those zip codes were within the City of Detroit. Id. See also, A.O. No. 86×00185.

Because the Jury Selection and Service Act requires that the master wheel proportionately represent each county, 28 U.S.C. § 1863(b)(3), in sending extra questionnaires to predominately black zip codes in Detroit, the Court's Orders reduced the number that otherwise would have gone to other Wayne County zip codes.

By 1989, however, implementation of transfusion became problematic. [See, Sherwood Affidavit ¶¶ 5-8.] The complaints about the method, however, were not that it did not achieve the desired result. Transfusion, in fact, resulted in an increase in black representation in the Qualified Wheel. [Stipulation of Facts, ¶ 15.]⁵ Rather, the Clerk's office believed that the geographical census data, which was based on the 1980 Census, was already outdated. Certain neighborhoods had changed significantly and some had been virtually eliminated as a result of freeway and factory construction. [Sherwood Affidavit, ¶ 6.] In addition, Robert Mossing, who had developed and implemented the transfusion method almost single-handedly, left the Court and the 1989 Clerk's office staff responsible for creating the...