DALLAS CRIMINAL LAWYERS.: FEDERAL, STATE & APPEALS - BRODEN & MICKELSEN LLP

Lawyer Challenges Jury Pool Legality

County statistics cited for upcoming trial

By Mark Curriden, Legal Affairs Writer of The Dallas Morning News, Published November 10, 2000

A Dallas attorney is challenging the legality of Dallas County’s criminal juries, saying they don’t represent a cross section of the community as required by the U.S. Constitution.

The argument, made in court papers in a case set for trial next week, is the first in what legal experts predict could be a slew of motions contending that the county’s method for generating juries systematically excludes certain segments of society, especially Hispanics.

Separately, state Rep. Domingo Garcia, D-Dallas, said Thursday that he plans to sponsor a bill in 2001 that would overhaul state laws governing jury service in Texas.

The actions follow recent articles in The Dallas Morning News revealing that Hispanics, young adults and low-income individuals are grossly underrepresented in local jury pools.

A survey of the Dallas County jury system by The News found that 7 percent of people who show up for jury service are Hispanic, even though 25 percent of the local population is Hispanic. Eight percent of jury pools are ages 18 to 34, compared with 37 percent of the population. And 13 percent are from households with incomes under $35,000, even though 39 percent fall into that income group.

The challenge to the Dallas system was filed by defense attorney Mick Mickelsen on behalf of his client, Johnny Frank Benton, who is scheduled to stand trial next week on aggravated-assault charges. A hearing is set for Friday before state District Judge Henry Wade.

“In short, Dallas County does not provide a criminal defendant a jury that represents a fair cross section of the community,” Mr. Mickelsen said in his filing.

‘Systematic exclusion’

Citing the statistical survey conducted by The News, the motion blames the lack of Hispanics in the jury pool in particular on “systematic exclusion of this group.”

It argues that Dallas County officials fail “to identify and locate many residents” and that the county “makes jury service so personally and financially onerous that many people cannot or will not serve.”

Mr. Mickelsen also argues that the county fails to enforce jury summonses when people don’t show up, which worsens the problem. The motion doesn’t offer or seek specific remedy in the case.

The Sixth Amendment guarantees every criminal defendant the right to a fair trial by an impartial jury. The Supreme Court in 1975 defined that to mean that the pool of candidates available to hear a trial, rather than the final panel of 12 seated, must reflect all segments of society.

In subsequent cases, federal courts ruled that if certain segments of the community are underrepresented in a jury pool by 10 percentage points or more, the pool is presumed to violate the Sixth Amendment. The prosecution then has to prove a defendant would get a fair trial anyway.

That 10-percentage-point standard has been applied to race and gender but not to age and economic status.

Mr. Mickelsen’s client is African-American, and the biggest disparity in Dallas involves Hispanics. But his filing says the law doesn’t require that the defendant be a member of the excluded group.

Challenges expected

Several judges privately said after publication of The News survey data that they expected scores of legal challenges from defense lawyers or possibly from individual defendants representing themselves. Although the initial challenge involves a case coming to trial, many experts anticipate appeals from people seeking to have convictions reversed.

Last week, the Dallas Trial Lawyers Association formed a task force to prepare model briefs and arguments members can use to attack the makeup of Dallas County jury pools.

“It’s clear that certain segments of our community are not adequately represented in our jury system,” DTLA president Bill Liebbe said. “If these people are not in our jury pools, they obviously aren’t making it onto juries, and that means their voices simply aren’t being heard.”

Although the statistics show a clear disparity, legal scholars say that convincing judges to take action will not be an easy task.

“No matter how strong the argument or how definitive the data, state trial judges are going to be extremely reluctant to start throwing out convictions or stopping trials from taking place,” said Frank Newton, dean of the Texas Tech School of Law.

“These cases are going to require lots of research and a lot of creative lawyering. But remember, earth-shattering and system-changing cases take years to resolve,” he said.

Mr. Newton said the major problem is that no one knows a quick and efficient remedy because the disparities aren’t the result of any intentional act. Mr. Mickelsen, who filed the challenge this week, said Thursday that he doesn’t have a ready answer either.

However, Mr. Garcia said Thursday that he plans to introduce a bill in January that would increase the amount paid to jurors and require Texas employers in most circumstances to continue regular paychecks for workers on jury duty.

Lowest in the nation

Most Texas jurors receive $6 a day, the lowest rate in the nation and a figure unchanged for more than 40 years. Last year, El Paso County raised juror pay to $40 a day, the first Texas county to pay more than the state minimum. The move has been credited with dramatically increasing juror turnout.

A number of states pay $40 a day or more, and several require continued employer pay.

The News survey found that a large number of Hispanics, young adults and low-income people skip jury duty because they can’t afford lost pay and the other costs of appearing.

Mr. Garcia, a member of the state House Judicial Affairs Committee, acknowledged that past attempts to increase juror pay have stalled.

But he said: “We can’t force people to make a choice between doing their civic duty and putting food on their table, and that is exactly the choice facing many Texas families. I think we ought to at least pay people minimum wage for jury service.”

His measure also would expand the basic lists from which jury candidates are randomly summoned so that more minorities will be called for service.

“This is an issue the Legislature had better address on its own or the federal courts eventually will tell us how to,” Mr. Garcia said.