U.S. v. Jackman

• Decision Date: 17 January 1995
• Docket Number: D,No. 133,133
• Citation: 46 F.3d 1240
• Parties: UNITED STATES of America, Appellee, v. Gary W. JACKMAN, Defendant-Appellant. ocket 93-1868.
• Court: U.S. Court of Appeals — Second Circuit

Page 1240

46 F.3d 1240

UNITED STATES of America, Appellee, v. Gary W. JACKMAN, Defendant-Appellant.

No. 133, Docket 93-1868.

United States Court of Appeals, Second Circuit.

Argued Oct. 13, 1994.

Decided Jan. 17, 1995.

Jeremiah Donovan, Old Saybrook, CT, for defendant-appellant.

James Genco, Asst. U.S. Atty., Hartford, CT (Christopher F. Droney, U.S. Atty., New Haven, CT, on the brief), for appellee.

JoNel Newman, Hartford, CT, submitted a brief for amici curiae Connecticut Civil Liberties Union Foundation and Connecticut State Conference of NAACP Chapters.

Before: NEWMAN, Chief Judge, WALKER and CALABRESI, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal concerns a procedure adopted by clerical staff in the District Court for the District of Connecticut to remedy a jury selection process that had inadvertently, but systematically, excluded from petit jury venires all residents of Hartford and New Britain, communities with large minority populations. The adequacy of this procedure, no longer in use, is challenged by Gary W. Jackman on his appeal of judgment of the District Court (Alfred V. Covello, Jr., Judge), convicting him of bank robbery, in violation of 18 U.S.C. Sec. 2113(a). ¹ Because the procedure used to select the venire from which Jackman's jury was selected violates the Sixth Amendment's fair cross-section guarantee, we reverse.

Background

A. Prior History of Jury Selection Process

In United States v. Osorio, 801 F.Supp. 966 (D.Conn.1992), Judge T.F. Gilroy Daly examined the jury selection procedures for the Hartford Jury Division of the District and found that all residents of the cities of Hartford and New Britain had been excluded from the Division's jury pool. Judge Daly ruled that the exclusion violated the Sixth Amendment guarantee of a fair cross-section of the community. At the time of the decision in Osorio, the Division's venires were, at least in theory, composed by following the Plan for the Random Selection of Grand and Petit Jurors, adopted December 4, 1989. See Osorio, 801 F.Supp. at 969-71.

The selection process under this Plan began with the construction of a "Master Wheel." This wheel was composed of ten percent of the names randomly chosen from the voter registration lists of each of the 84 towns and cities within the Hartford Division. From this Master Wheel of approximately 68,000 names, 1,500 names were randomly drawn twice each year, and jury questionnaires were sent to each of these names. When the questionnaires were returned, the jury clerk would divide the jurors into three categories: "qualified," "unqualified," and "uncertain." A district judge would review the clerk's assignments and make a final decision as to those in the "uncertain" category.

The names of those determined to be qualified were placed in the "Qualified Wheel," the source of prospective jurors for all grand and petit jury venires called for service in Hartford. When jurors were needed, names from the Qualified Wheel, which contained in excess of a thousand questionnaires, were selected at random, and jury summonses were mailed to those individuals.

The Hartford Qualified Wheel, however, contained what Judge Daly aptly characterized as "startling anomalies." Id. at 972. While the 1990 census indicated that 6.34% of the voting-age population in the Division is Black and 5.07% is Hispanic, Blacks accounted for only 3.08% of the individuals in the Qualified Wheel, and Hispanics accounted for only 0.77%. Id. at 972. Although at the time of Osorio, 4,631 juror questionnaires had been mailed by the clerk to voting-age residents whose names appeared on the Master Wheel, no questionnaire had ever been sent to a resident of Hartford or New Britain, the two largest cities in the Division. Id. at 972-73.

As a result, no resident of Hartford and New Britain was included in the Qualified Wheel, and none was ever summoned to serve in a venire. Because Hartford and New Britain contain 62.93% of the voting-age Black population and 68.09% of the voting-age Hispanic population in the Division, id. at 972, exclusion of residents of these cities from the Qualified Wheel resulted in a proportion of Blacks and Hispanics in the Qualified Wheel (the jury pool from which venires were selected) significantly lower than their proportion of the voting-age population.

At the time of the decision in Osorio, there was no explanation for the omission of Hartford and New Britain residents from the jury pool. Subsequently, it was discovered that no jury questionnaires were sent to Hartford residents because a computer programming error had caused the letter "d" in "Hartford" to communicate to the computer that all potential jurors from Hartford were deceased and thus unavailable for jury service. No explanation has ever been provided as to why the names of New Britain residents were never even entered into the computer.

To remedy this "systematic exclusion" of two-thirds of the Blacks and Hispanics in the Division, id. at 973-80, as well as to improve the overall fairness of the system, the District of Connecticut adopted a new jury selection plan. See Second Restated Plan for Random Selection of Grand and Petit Jurors Pursuant to Jury Selection and Service Act of 1968 (as amended) (D.Conn. Nov. 23, 1992) (requiring, among other things, that Master Wheels be drawn from both voter registration and motor vehicle operator lists).

In addition, the Qualified Wheel condemned in Osorio was abandoned and, as an interim measure until the Second Restated Plan could be implemented, the Clerk's Office directed the Yale University computer programmer responsible for the administration of the jury system to make sure that all names of New Britain residents drawn from voter registration lists were placed into the Master Wheel, and to correct the computer error that had led to the exclusion of Hartford residents. One thousand names were then drawn at random from the revised Master Wheel that included Hartford and New Britain residents, a jury questionnaire was sent to each name drawn, and, after elimination of unqualified and exempt persons, the remaining names constituted a new, representative Qualified Wheel. This interim measure, as such, is not challenged, but the Clerk's procedure for drawing names for venires in the aftermath of Osorio has precipitated the pending appeal. That procedure was explained at a hearing in appellant's case, to which we now turn.

B. Selection of Appellant's Venire

On September 14, 1993, the jury was scheduled to be selected for appellant's trial. Prior to the venire's entry into the courtroom, appellant objected to being required to select a jury from a venire that contained no Blacks and only a single Hispanic. Judge Covello instructed Jackman to file a written motion, but jury selection began, and a jury was selected from the venire as constituted.

On September 21, 1993, prior to the swearing of the jury, the Court conducted an evidentiary hearing on appellant's motion. Maria Carpenter, the jury administrator ("jury clerk") for the Hartford seat of court, testified that she maintained in her computer a pool of names of persons whom she contacted when a jury venire was required ("the Jury Clerk's Pool"). These names, which came from the Qualified Wheel, first entered the Jury Clerk's Pool from the summonses provided by the Yale computer programmer. Prior to the decision in Osorio, the clerk never received from the programmer a summons for anyone residing in Hartford or New Britain.

Upon the initial service of a summons upon a juror, the clerk would enter the juror's name into the Jury Clerk's Pool. Thereafter, she would notify the jurors in the Jury Clerk's Pool to appear for venire panels that were convened during the course of the two-year period following the juror's initial summons. The names of jurors remained in the Jury Clerk's Pool for two years or thirty days of service, after which the juror was dismissed. When the Jury Clerk's Pool required replenishing, the clerk obtained more summonses from the Yale programmer, who in turn obtained the names for these summonses from the Qualified Wheel.

When she was notified that a venire was required, the jury clerk would enter certain selection criteria into her computer in order to cull from the Jury Clerk's Pool a "picking list." This list, for example, omitted the names of jurors who had served the previous month. Before sending out letters notifying jurors to report, the clerk would remove from the "picking list" jurors whose two-year term of service was about to expire, jurors who had written to indicate that they would be out of state for business or a vacation, and jurors who were pregnant or who had just delivered a child.

The clerk reported that, after the Osorio decision and the abandonment of the old Qualified Wheel, Hartford and New Britain names were entered into the Master Wheel, from which a new Qualified Wheel was drawn. However, this new Qualified Wheel did not become the exclusive or even the primary source of names for jurors, a circumstance that is the basis of appellant's Sixth Amendment challenge. The jury clerk did not create a new Jury Clerk's Pool from the new Qualified Wheel. Instead, when a venire was required, the clerk would first create a "picking list" from those names in her computer, all of which had come from the pre-Osorio Qualified Wheel. If there were not enough names on the "picking list" for a venire, the clerk would supplement the list with some additional names from the new Qualified Wheel that included Hartford and New Britain.

For appellant's jury selection, the clerk generated a "picking list" of 78 names from the Jury Clerk's Pool--a pool that excluded Hartford and New Britain residents. Needing to summon 100 persons in order to have a venire of adequate size show up for jury selection, she then added 22 names drawn from the new Qualified Wheel and sent out letters to all 100 individuals....