The jury’s still out

By Matt Pordum

Sunday, Oct. 30, 2005 | 8:43 a.m.

Clark County court officials say that at least 85 percent of the county's adult population is represented in local jury pools. They say that's how they guarantee every defendant's constitutional right to a jury of their peers.

But those same court officials do not know the races, ethnicities or ZIP codes of the people summoned for jury duty, so the county has no documentation to show that minorities and people from lower socio-economic levels are being adequately represented.

Several prominent criminal defense attorneys say the claim that the county is providing all defendants with juries of their peers is laughable. They say there is a lack of minorities and low-income people in the jury pools.

The problem has been noted since 1993 at least, and three years ago the Nevada Supreme Court suggested that increasing the number of source lists for jury pools would expand the system, but the county has not followed that recommendation. A list provided by the Department of Motor Vehicles is still the only source used, as it was in 1993.

The issue was highlighted in July when WBC lightweight champion Floyd Mayweather Jr.'s trial on battery charges had to be stopped and restarted because none of the initial 50 people who showed up for jury duty was black.

Mayweather's attorney, Richard Wright, successfully argued that a new jury pool should be impaneled because "African-Americans make up a recognizable group in our community, and they obviously have their own experiences and values not shared with non-African-Americans."

District Judge David Wall ordered another group summoned to "protect the rights of Mr. Mayweather."

The second jury pool consisted of 74 people, six of whom were black. One of those six, a man, was selected for the jury.

When the jury pool came in last month for the case of accused serial rapist Ricardo Beltran, out of 60 prospective jurors, only three of them were black and only three were Hispanic, Beltran's lawyer, Chris Oram, said.

Beltran, who is Hispanic, was convicted on Oct. 3 by a jury that included only one Hispanic and one black, who was an alternate, Oram complained.

"That's messed up," Oram said. "Why doesn't the jury pool reflect what's in our population? When we come in for jury selection we should be looking at a jury pool that reflects the makeup of the population of Clark County."

According to the most recent census estimates, in 2004 blacks made up 9.1 percent of the county's population and Hispanics were 25.4 percent.

Defense lawyers say the jury pools hardly ever come close to reflecting those numbers.

Clark County Jury Commissioner Judy Rowland says they don't need to.

"A jury of someone's peers doesn't encompass ethnicity," she said. A jury of one's peers is simply a "randomly selected cross section of the members of your community."

And Clark County Assistant Court Administrator Michael Ware said the Mayweather case "is just one of those situations that, according to the law of averages, will happen once in awhile."

Defense lawyers say they see similar situations almost every day at the courthouse, and that it has been that way for years.

A key critic of the county's jury pools is Phil Kohn, the man in charge of the Clark County public defender's office. He has practiced law for 26 years and tried cases in Lake Tahoe, Sacramento and Santa Barbara, Calif., before coming to Las Vegas 13 years ago.

"Given the amount of diversity in the population, I've never seen more all-white juries in my years of practicing law than I have here in Clark County," Kohn said.

"I think it's really important that we don't have an all-white jury deciding the fate of an 18-year-old African-American male on trial for his life," Kohn said.

"An all-white jury can't see him as a son, brother or relative."

The defense lawyer perspective is that "it's easier to humanize defendants when there are people who went through the same life experiences or can at least relate to them," Kohn said.

District Attorney David Roger, on the other hand, said he and his 150 prosecutors aren't necessarily concerned where the jurors come from or what race or ethnicity they are.

"Just bring them down to the courthouse, and we'll do our best to select a fair and impartial jury," Roger said.

Ware said that as a black man he wouldn't have any concerns about not having a jury of peers in Clark County -- unless he was in a situation similar to Mayweather's or the prosecution was purposefully "excluding people of my culture."

Ware said he trusts the method used to create jury pools, but "would at least like to see one person of my cultural background seated on that jury."

"There is a general black perspective that is present regardless if some grow up affluent and some grow up poor," Ware said. "A fellow black person is more able to identify with another black person."

Deputy Public Defender Scott Coffee estimates 45 percent of the criminal defendants in Clark County are black, 30 percent are Hispanic and 25 percent are Caucasian.

Are Coffee's estimates valid? The county doesn't know.

"We don't keep any records on the demographics of defendants," Clark County Clerk Shirley Parraguirre said.

"We've just never been asked to do it in the seven years I've been the clerk, and I'm almost certain it has never been done in any of the years before my arrival."

Long-standing issue

In 1993, a report by the Nevada Appellate and Postconviction Project noted "a statistically significant disparity between the proportion of members of racial minorities in the adult population and the proportion appearing in jury venires."

The researchers had observed six jury pools during visits in May 1992, September 1992 and July 1993 and found that blacks were underrepresented by 27.7 percent.

The study did not zero in on any other minority group specifically, so there was no corresponding analysis for Hispanic representation. It did note, however, that minorities other than blacks were underrepresented by 21.4 percent.

When the report was released, an independent audit of it was commissioned by court administration and determined the observation of prospective jurors was not, "in our opinion, conclusive evidence of determining minority background."

The audit went on to add that even if the observations of jury pools were to be accepted, the findings couldn't be considered reliable unless jury pools were observed for more than 40 days.

The assessment of the report also stated "while we believe that this report doesn't prove that disparities arise as a result of procedures followed by the Eighth Judicial District Courts, the courts can work to enhance reaching all eligible prospective jurors and non-responsive potential jurors."

The audit concluded saying that "other alternatives are available to enhance the process and should be utilized if feasible."

In the 12 years since the report, however, it's unclear if alternatives have been explored.

People who have criticized the lack of racial and ethnic diversity have long said they believe that the county's use of only the Department of Motor Vehicle lists as its source for jury summons is a root of the problem.

Not every adult in the county has a Nevada driver's license or Nevada identification card.

That's one of the reasons an October 2002 report by the Nevada Supreme Court recommended "three source lists should be utilized by every county or, at a minimum, counties should combine voter registration and DMV records into a single master list of potential jurors."

The high court's report said other sources to consider included utility companies' customer lists, welfare rolls, lists of individuals with children enrolled in public schools, lists of newly naturalized citizens, real estate tax rolls and lists of persons issued hunting and fishing licenses.

District Court administrators were not bound to the recommendations, but they followed the suggestions to increase juror pay and eliminate all statutory exemptions from jury duty. The only occupations that call for immediate exemption are those of legislators and their staffs during the legislative session.

Defense Attorney John Momot says "a convergence of all the lists recommended by the Nevada Supreme Court would be better than what we are forced to work with today."

And Momot says its not just minorities who are underrepresented in jury pools. "Younger professionals who are growing in number rapidly; they are not getting called to serve."

Three of Nevada's neighboring states use multiple source lists in their jury pool selection.

Arizona, which is considered one of the most progressive states regarding jury pools, uses phone books, those who request water service and welfare and unemployment rolls, in addition to its DMV lists.

California uses state tax returns and Social Security rolls in addition to its DMV lists.

Utah augments its DMV lists with voter registration rolls.

Ware said Clark County is currently exploring the option of using Nevada Power Co. customer lists, since everyone uses electricity, but Nevada Power says a state law prevents the lists from being used because Clark County has more than 400,000 residents.

But the six-year-old law, NRS 704.206, includes no such prohibition. It only notes that in a county whose population is less than 400,000, a public utility "shall provide a list of the names and addresses of the customers of the public utility upon the request of any: district judge; or jury commissioner, for use in the selection of jurors."

Nevada Power spokeswoman Andrea Smith said if the company was ordered to turn over its customer lists to the courts for use in jury pool selection it would do so, but otherwise the company's policy is that its "customer information is private."

She said, however, that the information is shared with police and fire departments for use in their investigations and emergency response.

Kohn said before the Sun brought the specifics of the law to his attention it was his belief counties with populations over 400,000 were prohibited from using utility customer lists. But now he is set to press his deputies to raise the issue in court.

If court administrators and Nevada Power don't settle the matter soon, Kohn said he will instruct his deputies to raise the issue during jury selection.

He said that whenever one of his court-appointed lawyers is presented with a jury pool that is lacking a cross section of the population, that lawyer will challenge the selection system and ask the judge to order that a new jury pool be called using not just driver's licenses and state identification cards, but also utility customer lists.

Kohn's expertise regarding diverse juries goes back more than a decade. He was a member of the Task Force on Racial and Economic Bias, which was created by the Nevada Supreme Court and then taken over by the Legislature. The task force, active from 1993 to 2001, examined problems in the criminal justice system.

Kohn said it was just as obvious to him then as it is now that Clark County juries fail to represent a cross section of the community.

He said one of the keys that the county should be looking at is the census demographic data tied to ZIP codes.

"There are ZIP codes that are high in minorities and where people are poor," and the census data identifies those ZIP codes.

Kohn said using only DMV rolls is a flawed approach because people who are poor move more and are in most cases less apt to keep their addresses current with the DMV.

"Why not use welfare rolls?" Kohn asked. "There are people who criticize people on welfare. I say put them on jury duty, they'll get paid."

But defense lawyer Karen Connolly said, "If you really want a cross section, you have to compensate them better."

"There is no way you can get a cross section of the county on the $40 they get paid a day," Connolly said. "Yes, it's a civic duty to serve, but people have to pay their bills too.

Special Public Defender David Schieck also cited money as an obstacle to getting a cross section of the community in the jury pools.

"Our pools are, for the most part, retired, well-off citizens from Summerlin and not from Eighth Street," Schieck said. "Even if you reach the people from low income areas they are not going to come down to report.

"I'll bet the largest number of no-shows come from the lower income areas in the county because they can't afford not to work."

There's no way to settle that bet, however, because county officials say they don't track who shows up and who doesn't.

The only thing the county knows for sure is that 3,000 juror duty notices are sent out each week. Out of that number half respond by phone or the Internet to indicate they have received their summons and half of those respondees actually report for jury duty.

When someone fails to report for jury duty, a letter is sent asking whether that person received a summons and offering to schedule a new date.

District Court spokesman Michael Sommermeyer said if a person "receives this letter, reschedules and still fails to show up, we send them a new letter asking them to come in and explain to the chief judge why they couldn't attend jury duty, or we give them a new chance to set a new date."

Sommermeyer said if a person fails to show up the third time they receive an "order to show cause" demanding that they report to the chief judge and "explain why they failed to participate in this important civic duty."

He said if "all else fails, a no-bail bench warrant is issued by the court for their immediate arrest."

Judging by the daily jail booking reports that the Sun receives from Metro Police, however, people are seldom if ever jailed for failing to report to jury duty.

People who fail to report for jury duty face fines of up to $500.

Sommermeyer says "it rarely comes to that point."

"By the time someone receives the second letter or find themself before the chief judge, I think they realize the seriousness of the situation."

The right case

Kohn figures Clark County won't change its jury pool system until a high-profile death penalty case gets overturned as a result of a defendant not having a jury of his peers.

He said when that happens, it will anger taxpayers who are forced to pay for the retrial and outrage family members of the victims. Then the court administrators and "the district attorney's office will have to answer to the public and say why they went along with a jury selection system that didn't fully represent a cross section of society," Kohn said.

Since March 2004, when Kohn was put in charge of the public defender's office, he has been instructing his deputies to raise the question of whether defendants have a jury of their peers in every case, with the hope that the "right case" will be overturned by the Nevada Supreme Court or the 9th U.S. Circuit Court of Appeals.

But the Roger said he is not worried because the Nevada Supreme Court has already ruled on a case similar to Kohn's hypothetical "right case."

Roger pointed to the 1994 conviction and sentencing of Vernell Evans Jr. for the May 1992 murders of two young women and two young men. Evans, who is black, later appealed his conviction to the state's high court, saying he deserved a new trial in part because the jury pool used for his case was not a full representation of the cross section of society.

His appeal specifically challenged the jury pool selection system used by Clark County. The Supreme Court upheld the conviction, saying there was no purposeful discrimination present in the county's use of driver's licenses and state identification cards.

Kohn, however, believes the "current justices on the high court are more concerned about fairness and if we can get the right case before them we could see change in the jury pool selection process."