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San Diego Lawyer Says Jury-Selection Process Flawed

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This segment originally aired November 14, 2006.

A trial by a jury of one’s peers is not only thought of as the best way to get at the truth, it’s also a constitutional requirement. But some local defense attorneys say that not all San Diegans accused of crimes may be getting the benefit of a fairly chosen jury. That’s because, according to the lawyers, the jury selection process in state court is flawed. Reporter Amita Sharma has more.

It was an inside tip that led San Diego defense lawyer Chris Plourd to start asking questions about how juries are selected in San Diego state court. What he found he says inspired anything but confidence.

Chris Plourd: We think a lot of the summons are getting sent to the wrong addresses. There are people that move and aren't followed up on and we think that there are some problems with the way they eliminate the duplication names from the list where people don't appropriately get summonses and where people are getting arbitrarily excluded from jury service because they're being coded not to have jury summonses sent to them. 

The court deems 1.8 million people eligible to serve on juries from DMV and voter registration records. However, it eliminates more than 500,000 individuals from the list because they are disabled, have died or they’ve recently been summoned. Plourd contends too many people are kicked off the list by mistake.

Chris Plourd: We're not sure how they're doing it or even why they're doing it and we're not sure they even know why they're doing it.

But what Plourd says he is sure of is the effect.

Chris Plourd: There appears to be a significant underrepresentation of Hispanic individuals on downtown jurors that are called to our system as it works today and it's much more than just 10 or 20 percent, it's on the order of 50 percent underrepresentation, which we think is very significant.

Plourd says the system needs reform.

Chris Plourd: I think it goes to fundamental fairness of the system that everybody from all walks of life and all minority groups get adequately represented, which makes very important decisions in our justice system.

A judge has granted Plourd’s request to analyze the jury selection system in San Diego. Plourd represents a local man accused of murder. He says his inquiry won’t directly affect his client because the case doesn’t go to trial until next July. But Plourd’s jury analysis has other defense attorneys in town scrambling for delays.

Michael Roddy, executive officer of San Diego Superior Court: There are a number of cases that are on hold. They're waiting for the outcome of this particular challenge and they're taking a very cautious wait and see attitude.

Roddy stands by the court’s current jury selection process, calling it random and fair. But he concedes attorney Plourd’s inquiry into the process has forced the court to take a harder look at how it issues summons and the findings have been less than perfect.

Michael Roddy: There were some errors that had crept into the process.

Reporter Amita Shara: What were those errors?

Michael Roddy: We had some categories of people, for example, police officers who had been inadvertently been given a permanent excuse from jury service when they should have been given a temporary excuse. And we go through a process of updating our lists every year. Those individuals should come back on and they had not so we've corrected those mistakes.

Roddy says the mistakes don’t mean the jury system is flawed or biased.

Michael Roddy: We don't think those errors are constitutional or fundamental to the operation of the system.

Plourd says he’s glad court officials are admitting mistakes.

Chris Plourd: But I think they need to admit more and fix different things that they're just not admitting are wrong at this point.

The state court’s jury system isn’t alone in the scrutiny. Sandra Lopez is an appellate attorney for the federal public defender in San Diego. She’s filed a challenge to the federal jury selection process. The case is pending before the Ninth Circuit Court of Appeals. Lopez says while 78 percent of the federal defender’s clients and nearly 25 percent of the Southern District population are Hispanic, only 10 percent of jurors in federal court are Hispanic.

Sandra Lopez: The 6th Amendment guarantees that every criminal defendant will receive a right to an impartial jury and a jury that represents a fair cross-section of the community. Like I said, 78 percent of our clients are Hispanic. It's really important for our jury to understand our defendants when we're in trial, when we're presenting defenses, that they understand our clients. It's hard to do that when they're coming from a completely different world.

But some jury experts say race and ethnicity are no longer reliable indicators of sympathy for a defendant.

Jilien Rubin, jury consultant: You might have been able 15 or 20 years ago to profile and say I want people of color or certain ethnicity to be in my jury because they're better for one side or the other.

Jilien Rubin: Society has changed so dramatically in the last 20 years in terms of people of color becoming middle class, working their way up and becoming middle-class American citizens. You can't say that anymore because in San Diego, with a moderate to conservative jury pool, middle class people with a strong work values and strong values of law and order do have a tendency to side with the prosecutor.

Plourd disagrees. Times may have changed, he says but people, especially those accused of crimes haven’t.

A Superior Court judge has ordered a survey of the county's jury system to assess its fairness. But Superior Court lawyers are expected to appeal the judge's order.

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