Jury Composition Reform: Ensuring the Right to a Jury of One’s Peers in Georgia
| Publication year | 2012 |
| Pages | 0012 |
Jury Composition Reform:
Ensuring the Right to a Jury of One's Peers in Georgia
by Catherine Fitch Lotti
The look of Georgia's juries is becoming noticeably more diverse, especially in counties that experienced significant demographic changes during the past decade. The jury venires, from which potential jurors are chosen, are now more representative and inclusive of county populations than ever before, as a result of the Jury Composition Reform Act of 2011 (the Act).[1]
The Act established a new method of creating county jury pools, with the Council of Superior Court Clerks of Georgia charged with creating and maintaining a statewide master source list of potential jurors.[2] Each year, the state source list must be divided into 159 county master jury lists,[3] from which county clerks will randomly select individuals to comprise their jury venire.[4] This new process ends the "forced balancing" of juries in Georgia, and captures more of the jury eligible population than methods previously used by counties in producing their jury lists.
Effective July 1, 2012, the Act is the product of a seven-year effort by the Supreme Court of Georgia's Jury Composition Committee to assess how the state could develop an inclusive, statewide source for potential jurors and end the forced balancing of jury lists, according to committee member and Cherokee County Clerk of Court Patty Baker.[5] Forced balancing is the practice of adjusting a county jury pool's percentage of men and women, as well as black and white individuals, to be within 5 percent of the group's percentage in the county population as reported by the last decennial U.S. census.[6] Georgia courts have viewed the U.S. census as a comprehensive and objective source for determining the percentage of distinct groups in county populations.[7] However, balancing jury pools based on the latest census data, which can be up to a decade old, attracted increasing scrutiny during the past two decades. During that time, it became apparent some counties' racial and ethnic demographics were changing so rapidly that forced balancing based on the U.S. census was no longer producing jury pools representative of the local population.[8]
Growing Concerns About Forced Balancing
"Forced balancing was started in the late 1960s to ensure the adequate representation of women and African-Americans on juries, but it hasn't kept up with the demographic changes in many of Georgia's counties during the past 20 years,"[9] said Rep. Alex Atwood (R-Brunswick), who sponsored the Act at the request of House Judiciary Committee Chairman Wendell Willard (R-Sandy Springs).[10]
As the last state to force balance its jury venires, Georgia needed to modernize its system of jury administration to renew the public's confidence in the jury system, said Atwood. "Forced balancing often failed to produce jury venires that accurately reflected the percentages of distinct groups in county populations. This made the venires vulnerable to statutory and constitutional challenges."[11]
Georgia law mandates that jury commissioners "select a fairly representative cross section" of county residents for jury lists,[12] and the Sixth Amendment's guarantee of an impartial jury requires "a fair cross section of the community" be included in the jury pool.[13] A county's failure to provide juries that are representative of the local population can give rise to both equal protection and fair cross-section challenges to the grand jury or trial jury lists.[14]
To succeed, these challenges must establish an unreasonable underrepresentation from the jury venire of a cognizable group in the county population due to systematic exclusion in the jury selection process.[15] A cognizable group is any distinct group of individuals who share unique attitudes and beliefs, or "who have traditionally been the object of discrimi-nation."[16] An absolute disparity between a group's percentage in the county population and its percentage in the jury pool of more than 10 percent is usually held unconstitutional, while a disparity between 5 and 10 percent is constitutional in most circumstances.[17]
In late 2010, the potential for challenges to Gwinnett County's jury venire troubled the county's three superior court judges who were presiding over death penalty cases at that time. According to former Gwinnett County Superior Court Judge Billy Ray (who now serves on the Court of Appeals of Georgia), pre-trial motions challenging the makeup of the county jury pool led the judges to stay those cases, until the clerk could redraw the jury lists using certified data from the 2010 census.[18]Although those new lists did not become available until November 2011, the new census numbers proved that proceeding under the old jury lists could have led to a retrial. The percentage of Gwinnett County's population that is African-American increased from 13 percent to 23.6 percent between 2000 and 2010, and the percentage of Hispanic residents increased from 11 percent to 20 percent in that same time period.[19]
"Death penalty cases are the most likely to get federal court scrutiny and no judge wants to try a death penalty case more than once," explained Ray, who testified on behalf of the Council of Superior Court Judges before the House Judiciary Committee. Ray added that people need to believe the jury selection process is fair, or they will never accept the result of a trial.
In April, 2011, Rockdale County District Attorney Richard R. Read wrote to Superior Court Chief Judge Sidney Nation to address the "significant disparities" existing in the grand and trial jury pools regarding race, and possibly regarding ethnicity, which were revealed by the release of preliminary 2010 U.S. Census data.[20] Read concluded "the current grand and traverse jury pools do not represent a fair cross section of the Rockdale community as required by O.C.G.A. Section 15-12-40 and the 14th and Sixth Amendments to the United States Constitution."[21]The letter requested that Nation confer with the County Clerk of Court and convene county jury commissioners to address the disparities "with all due deliberation and speed."[22]
In response, Nation issued an order acknowledging that preliminary 2010 U.S. census data showed the percentage of Rockdale County's adult African-American population had increased by 26.8 percent in the past decade.[23] This meant the county's grand and trial jury lists underrepresented blacks by about 26 percent, making the lists "ripe . . . for equal protection and fair cross section constitutional challenges."[24] In order to meet statutory and constitutional requirements, and maintain the public's confidence in jury selection, Nation ordered "the jury commission compile a completely new jury list for both traverse and grand jurors."[25]
The New Law: Maximizing Inclusiveness and Efficiency
The Jury Composition Reform Act requires the Council of Superior Court Clerks of Georgia (the Council) to establish and maintain a statewide master jury list that identifies every individual who is prima facie qualified to serve as a juror.[26] Every year, the Council will distribute a county master list to each county's board of jury commissioners.[27] The county's superior court clerk, or jury clerk,[28]will then compile the jury venire by choosing random individuals from the county's master list.[29] The venire is the group of individuals summoned to serve as jurors for a particular term of court, from which jury arrays are chosen.[30]
To assist the Council with its new duties, the Act gives it the authority to request from the Department of Driver Services (DDS) the lists of individuals holding a valid or expired driver's license, or a state-issued personal identification card.[31] These lists will provide the name, address, date of birth and gender of such individuals, as well as any racial and ethnic information collected by DDS.[32]
The new law also gives the Council authority to request voter registration records, for both active and inactive voters, from the Georgia Secretary of State.[33] These lists include the date of birth, gender, race, social security number, driver's license number and, when available, the ethnicity of each voter.[34] The Secretary of State must also provide the Council with the names of felons whose civil rights have not been restored and individuals who have been declared mentally incompetent.[35]
The Jury Composition Rule
The merging of the source lists into the state and county master jury lists is governed by the Jury Composition Rule, promulgated by the Supreme Court of Georgia in 2011.[36] The rule in part tracks the framework of the American Bar Associations' Principles for Juries and Jury Trials for ensuring that county jury pools are representative and inclusive.[37] Representativeness considers whether the source lists and resulting jury venire represent the county population "to the extent the percentages of cognizable group members on the source list and in the assembled jury pool are reasonably proportionate to the corresponding percentages in the population."[38] Inclusiveness refers to the percentage of the eligible population "actually included in the primary juror source list."[39]Since the mid-1980s, the National Center for State Courts has promulgated an 85 percent inclusiveness standard for jury pools.[40]
The Jury Composition Rule requires the Council, or its list vendor,[41] to use voter registration and DDS lists as the primary records sources for creating the statewide master jury list.[42]Ineligible individuals must then be removed by using death certification data from the Department of Public Health, names of felons provided by the Secretary of State and lists of individuals who have been...
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