389 F.Supp.2d 29 (2005) | Cited 1 time | D. Massachusetts | September 2, 2005


Darryl Green ("Green") and Branden Morris ("Morris") areAfrican-American men who are likely to be tried before all white,or largely white, juries. Such an outcome should be profoundlytroubling, to say the least. Indeed, the District ofMassachusetts has wrung its collective hands over the problem ofminority underrepresentation on its juries for over a decade.However significant the lament before, the prospect is uniquelychilling here: Green and Morris face the death penalty. Their allwhite, or largely white, juries could well decide whether theywill live or die. Morris and Green, along with three codefendants,2 arecharged with participating in a racketeering enterprise — the"Esmond Street Posse" — through which they allegedly sold crackcocaine and marijuana, protected their sales turf, and carried ona violent dispute with a rival gang. That dispute led to a numberof murders and attempted murders during 2000 and 2001. The deathof Terrell Gethers prompted the government to charge Morris andGreen with murder in aid of racketeering under18 U.S.C. § 1959(a)(1) and to seek the death penalty against them.

Defendants claim that the racial composition of the jurywheel3 for the Eastern Division of the District ofMassachusetts ("Eastern Division") violates the Sixth Amendmentand the Jury Selection and Service Act, 28 U.S.C. § 1861 etseq. (the "Act" or "JSSA").4 They allege that thefederal officials use state resident lists that are inaccurateand out of date, particularly from the cities and towns with the highest percentage ofAfrican-Americans. They move to dismiss the charges against them,or, in the alternative, to stay the case until a jury can beassembled that comports with the Constitution and theJSSA.5

Defendants' claims are ironic: Massachusetts pioneered the useof resident lists in place of voting lists for jury selectionprecisely to maximize minority participation. But the duty toprepare and update these lists has remained an unfunded mandate,fulfilled with varying success across the District. According todefendants, the more affluent and whiter communities can affordto properly maintain the lists; the poorer,6 moreracially diverse communities cannot. Put simply, an EasternDivision resident has a better chance of getting on a jury if shehales from more racially and economically homogenous towns likeNeedham or Dover, than if she is from more racially andeconomically diverse towns like Lynn, Brockton or New Bedford.Residents of heavily African-American, poor, and urban communities, likeRoxbury and Dorchester, may fare even worse than those from thelatter towns.

The government opposes defendants' motion. It defends thelawfulness of its procedures for compiling the jury wheel, and,in effect, the overwhelmingly white juries those procedures arelikely to yield. It denies that there is any officialmisfeasance, federal or state, or that misfeasance is responsiblefor the underrepresentation of African-Americans. The governmentargues that the reason for the underrepresentation is thatsubstantial numbers of African-Americans choose not to returncourt questionnaires and that residents of poorer and heavilyminority communities are so transient that their addresses arenot easily captured on any resident list.

The stakes could not be higher. Undermining the right to arepresentative jury casts a pall over all jury trials in ourDistrict. The issue is particularly important for the capitaljury, not only because of the stakes, but also because of thatjury's unique role. It renders not simply a factual judgment —guilt or innocence — but "an ethical judgment expressing theconscience of the community." Jeffrey Abramson,Death-Is-Different: Jurisprudence and the Role of the CapitalJury, 2 Ohio St. J. Crim. L. 117, 119 (2004) (citing Spazianov. Florida, 468 U.S. 447, 469 (1984) (Stevens, J., concurring inpart and dissenting in part)).7 And, as Justice Marshalleloquently noted, "[w]hen any large and identifiable segment ofthe community is excluded . . . the effect is to remove from thejury room qualities of human nature and varieties of humanexperience, the range of which is unknown and perhapsunknowable." Peters v. Kiff, 407 U.S. 493, 503 (1972)(Marshall, J.).8 The result is not merely the appearanceof bias; it may well be its reality. Id.

Defendants do not raise the first constitutional challenge tothe racial composition of the federal venire. There have beenmany such challenges, all unsuccessful, largely because of therigorous standards imposed by the courts, including the FirstCircuit. While others have criticized those standards, includingjudges on this Court, I have no choice but to apply them. Indoing so, I conclude that defendants have not established aconstitutional violation.

But my analysis does not end here. The Constitution provides afloor, not a ceiling, to the Court's obligation to provide representative juries. The JSSA imposes higher standardson public officials to supplement their source lists whennecessary to "foster the policy and protect the rights" to a faircross-section jury selection process. 28 U.S.C. § 1863(b)(2). Ifind that those standards have been violated here.

In brief, my findings are:

All, or nearly all, white juries are made much more likely by asingle decision of the Executive: The United States Attorney'soffice has opted to prosecute "street crime" in federal court,rather than in the courts of the Commonwealth of Massachusetts.With that decision, the available pool of African-American jurorsplummets from 20% in Suffolk County, where defendants' allegedcrimes took place, to roughly 7% in the Eastern District ofMassachusetts. And the punishment escalates from lifeimprisonment in the state courts to the death penalty in thefederal courts. No matter how troubling the impact, the law givesthe federal prosecutor the right to make this decision.

Making matters even worse, however, the 7% African-Americanrepresentation is diluted further before a single juror is swornin federal court. African-American representation plummets toroughly 3% or less in the Eastern Division jury pool after jurysummonses are returned, at least in part because of outdated andinaccurate resident lists. As a result, the vast majority ofEastern District juries will not have a single African-Americanmember. As striking as it is, however, this data is still not enough tomake out a prima facie case of a Sixth Amendment violation, atleast under current standards. Defendants not only have to showthat African-Americans are underrepresented in the jury pool inrelation to their numbers in the population, they also have toshow that the underrepresentation has reached a certain thresholdpercentage. That threshold percentage has been set so high byFirst Circuit precedent that it is virtually unreachable in thisDistrict. And, even if defendants prove underrepresentation of acertain degree, they must also show how thatunderrepresentation occurs — that it is attributable to somethingsystemic, like official action, rather than happenstance.Finally, even if they show that official misfeasance contributesto some degree to the problem but they cannot show precisely howmuch, their claim may still fail.

The constitutional question should not simply be about numbers.The real question is: How much underrepresentation ofAfrican-Americans is constitutionally tolerable in a system thatpromises a representative jury? Does it matter that the choice offorum — the Executive's choice — has already affected the natureof the decisionmaker, diluting the jury pool from 20% to 7%African-American? When the federal government opts to prosecutestreet crime, when it seeks extraordinary penalties, when asubstantial percentage of those defendants are African-American and the overwhelming majority of jurors are white, perhaps even a2 or 3% underrepresentation is far too much. Existingconstitutional standards, however, say otherwise.

Since on this record defendants 1) cannot prove the magnitudeof the disparity that the First Circuit has thus far required,although they have proved substantial disparity, and 2) cannotprove the precise extent to which that disparity is attributableto flaws in the system itself, although they have proved thatofficial action and inaction contributes to the problem, I amobliged to deny their constitutional challenges.

The JSSA, however, sets the bar higher. The statute imposes anaffirmative obligation on districts to use jury selectionprocesses that ensure random selection from a "fair cross-sectionof the community." 28 U.S.C. § 1863(b)(2). However, I find thatthe failure of the Court to direct the Federal Jury Administratorto supplement the existing flawed resident lists amounts to astatutory violation calling for remedial measures. Under the JSSAand my supervisory authority, I will order, among other things,that additional summonses be sent out in this case for eachsummons that is returned as "undeliverable," signifying a badaddress, as well as for each summons that is not responded toafter a second mailing. I will also order that steps be taken tostrike inaccurate addresses from the list, so that the same wrongaddresses do not recur in case after case. The remedy is entirely justified, consistent with the statute, and theDistrict's Jury Plan as the Court's expert9 and the ChiefJudge of this Court have concluded.10

And I will go even further. My findings and the report of thecourt-appointed expert will be submitted to the appropriate courtauthorities for systematic district-wide attention. The goal isto make certain that everything that lawfully can be done toincrease minority representation is done, includinggeographically-weighted mailings that take into account thehistorical data concerning jury response rates across theDistrict, as described infra in Part III.B.2.f. In addition, Iwill urge my state colleagues to address the fundamental problem— an unfunded state mandate to produce accurate resident liststhat is carried out inconsistently across the Commonwealth.

Substantial resources have already been devoted to litigatingthis issue. The parties filed voluminous briefs; the Court heldseveral days of hearings. Defendants sent questionnaires to theclerks of all cities and towns comprising the Eastern Division to determine how they compile their jurylists. They were also given funds for a jury expert, ProfessorAndrew Beveridge of Queens College ("Beveridge").11Although the government did not hire an expert, the Court tookthe extraordinary step of appointing its own, Professor JeffreyAbramson of Brandeis University ("Abramson"), pursuant toFed.R.Evid. 706.12

In the subsequent sections, I will first outline the backgroundof the jury selection processes and the defendants' case. I willthen address the legal arguments, answering the followingquestions: 1. The constitutional fair cross-section guarantee: Whether the evidence presented by defendants establishes any constitutional violation of defendants' right to have petit jurors chosen from a fair cross-section of the community (Section III.A.); 2. The statutory substantial proportionality requirement: Whether the processes for selecting jurors, as delineated in the District Court's Amended Jury Plan,13 violate the provision of the Jury Selection and Service Act requiring that political subdivisions within the Eastern Division be "substantially proportionally represented," 28 U.S.C. § 1863(b)(3) (section III.B.1); 3. The statutory "substantial compliance" requirement: Whether the record establishes violations of the District Court's Jury Plan or the Act, thereby entitling defendants to a remedy under 28 U.S.C. § 1867(d) for "substantial failure to comply with provisions" of the Act (Section III.B.2); 4. Supervisory jurisdiction: Even in the absence of specific findings under 1, 2 or 3 above, what steps can the Court take to address, at least in part, the problems revealed in this litigation (Section III.B.2.e).

One final note: In an earlier decision, I considered whetherdefendants should be tried before one jury determining liabilityand a second determining punishment. Only the punishment jurywould be "death-qualified." United States v. Green,343 F. Supp. 2d 23 (D. Mass. 2004), as amended, 348 F. Supp.2d 1 (D.Mass. 2004). I made this decision as a matter of case management,to avoid the complex jury selection process death-qualificationrequires at the liability stage. I was reversed. United Statesv. Green, 407 F.3d 434 (1st Cir. 2005). I now ask the parties torevisit the issue in the context of the jury selection issuesraised in this opinion. Death-qualification of the jury may wellfurther diminish African-American jury representation in thisDistrict from roughly 3% to nil.

Thus, the following questions are raised: Whether the practiceof death-qualification has a disproportionate impact on the already small numbers of African-Americans in the juryvenire, whether this issue is cognizable under the SixthAmendment, or the Due Process Clause of the Fifth Amendment, andwhether there is another less burdensome means of accomplishingthe government's legitimate goal of seeking the death penaltybefore a jury that is amenable to such a punishment.

The data presented by defendants raises grave concerns. Actionis not only called for but imperative. As the court-appointedexpert concluded: "Metaphorically speaking, there has to be astatute of limitations on how long a District can lament theundesirability of the underrepresentation of minorities in itsjury pools without feeling compelled to act with imagination todo better." Abramson, Report at 64-65.


Before examining the extent and causes of African-Americanunderrepresentation on District of Massachusetts juries, I beginwith an overview of the jury selection process in ourdistrict.14 The process involves six steps: 1)determination of federal district boundaries and selection of aforum (state/federal); 2) creation of a "master jury wheel" fromresident lists; 3) random selection of potential jurors toreceive summonses and questionnaires; 4) selection of the"available jury wheel" on the basis of questionnaire responses;5) creation of the "jury venire" on the basis of qualified jurors who respond to thenotice to appear; and 6) selection of the petit jury after voirdire and the peremptory challenge process.

A. Step One: Choice of a Federal Forum — from 20%African-American Representation in Suffolk County to 7%African-American Representation in the Eastern Division of theDistrict of Massachusetts

Jury districts are created by statute, court rule, or both. TheDistrict of Massachusetts was created by federal statute; theEastern Division was created by court rule. Pursuant to28 U.S.C. § 1869(e) and the District of Massachusetts Jury Plan,15the District of Massachusetts is divided into three divisions forpetit and grand jury selection — the Eastern, Central and WesternDivisions.16 While legislative districts are drawn withthe representativeness of racial groups in mind, see VotingRights Act, 42 U.S.C. § 1973, et seq., judicial districts arearbitrary, administrative contrivances.

Law enforcement chooses the forum (federal or state) forprosecution of a crime.17 Taken together, administrativedecisions with respect to district boundaries and the Executive'schoice of forum define the geographic areas within which potential jurors will reside, and what "representativeness" meansin connection with jury pools drawn from those areas.

The substantive crimes with which defendants are charged —homicide and street-corner narcotics trafficking — havetraditionally been prosecuted in state courts. Had this case beenbrought in state court, the "community" for the purpose ofdetermining what comprises a "fair cross-section" would beSuffolk County; in federal court, the relevant community includesall of eastern Massachusetts. In Suffolk County, defendants'juries would be drawn from a voting-age population that isroughly 20% African-American. In the Eastern Division ofMassachusetts, only roughly 7% of the voting-age population isAfrican-American.18

Census data for Massachusetts, like most states, shows thatminority populations are clustered in urban areas. By choosingfederal court and thereby expanding the jury district to includethe more racially homogenous suburbs, the government invariablydilutes minority — and even urban — representation in the poolfrom which defendants' juries will be selected. While the SixthAmendment demands representativeness, it does not require courts to second-guess the boundaries of the judicial district. Thus,when the government federalizes local crime in the more diversecities of Lawrence, Lowell, or Boston, on this end of the state,or Springfield, on the other, it homogenizes thedecisionmaker.19 And the law allows it to doso.20

B. Steps Two Through Four: From 7% African-AmericanRepresentation in the Eastern Division to 3% on the AvailableJury Wheel

1. Step Two: From Source Lists to the Master Jury Wheel

The State Office of the Jury Commissioner ("OJC") starts with a"source list" comprised of lists of names and addresses ofpotential jurors, and then randomly draws a percentage of thenames to create a "master jury wheel" for the federal JuryAdministrator. The JSSA defines the procedures for generating names for the master jury wheel, and also mandates the creationof a more specific district court jury selection plan. See28 U.S.C. § 1861 et seq. Federal courts may draw the names ofprospective jurors from either voter registration lists or thelists of actual voters within their districts.28 U.S.C. § 1863(b)(2). But there is an alternative: Each federal districtcourt "shall prescribe some other source or sources of names [ofprospective jurors] in addition to voter lists where necessary tofoster the policy and protect the rights secured by sections 1861and 1862 of this title."21 Id.

A 1992 amendment to the Act specifically provided that theDistrict of Massachusetts "may require the names of prospectivejurors to be selected from the resident list provided for inchapter 234A, Massachusetts General Laws, or comparableauthority, rather than from voter lists" as its source of namesfor the master jury wheel.22 28 U.S.C. § 1863(b)(2). TheAct was amended precisely because of serious concerns about theracial composition of jury pools drawn from voterlists.23 See, e.g., United States v. Levasseur, 704 F. Supp. 1158, 1164 (D.Mass. 1989). Minorities did not vote in the same proportion asdid their white counterparts. See Bernard Grofman et al.,Drawing Effective Minority Districts: A Conceptual Framework andSome Empirical Evidence, 79 N.C.L. Rev. 1383, 1404 (2001)(citing Kimball Brace et al., Minority Voting Equality: The 65Percent Rule in Theory and Practice, 10 Law & Pol'y 43, 47-48(1988)). Using voter lists to compile juror lists effectivelyextended the gap in political participation between the racesinto the jury arena; resident lists represented a pioneeringeffort to produce jury wheels more closely reflecting the racialcomposition of the districts.

For Massachusetts, the OJC compiles a single-numbered statewideresident list from the resident lists allegedly prepared annuallyby every Massachusetts city and town. Every city and town isrequired under M.G.L. ch. 234A to make such a list of allresidents who resided in the town as of each January.24 Unfortunately, no state funds are appropriatedto ensure that the statutory requirements arefulfilled.25

To construct the Eastern Division's master jury wheel, the OJCrandomly draws 1% of the names on that portion of the OJCresident list that represents the 190 cities and towns in theEastern Division.26

2. Steps Three and Four: Determining the "Available Pool" orthe "Qualified Wheel"

During step three, the federal Jury Administrator determinesthe approximate number of jurors needed in any given week ormonth according to the number of jury trials scheduled in thecourthouse. He then randomly selects that number of potentialjurors from the master jury wheel and mails them summonses andquestionnaires. The questionnaire asks potential jurors severalquestions about their citizenship, occupation, and criminalhistory, principally to determine who is qualified to serve on afederal jury.27 The questionnaire also asks potentialjurors information about their demographic characteristics, like age andrace.

During step four, potential jurors who complete and returnquestionnaires, and are not eligible for automaticdisqualification, are placed in the "available jury wheel" — thepool of people who are qualified for federal jury service.

Significantly, returned questionnaires provide the firstopportunity to measure the racial composition of the EasternDivision jury pool.28 However, not all people who aremailed a summons and questionnaire return thequestionnaire.29 Some never receive the summons; othersreceive the summons but fail to respond by returning thequestionnaire. Summonses marked "undeliverable" are clearly inthe former category. "Nonresponses" — summonses sent out andnever returned — may include both individuals who did not receive summonses, becauseaddresses were wrong, and those who chose not to respond. Thethrust of defendants' challenge is that the master resident listis plagued with inaccurate names and addresses, inaccuracies thatstem from the failures of officials in certain cities and townsto generate accurate lists in the first instance and/or updatethem.

Combining data from 2001 through 2003, approximately 88% ofpersons who returned their questionnaires identified their race.Despite some limitations in the data,30 it is abundantlyclear that African-Americans are persistently underrepresented inEastern Division available juror pools. In 2001,African-Americans comprised 6.75% of the Eastern Divisionpopulation according to United States Census ("U.S. Census")estimates, but only 3.08% of those who identified race onreturned questionnaires.31 In 2002, African-Americanscomprised 6.84% of the Eastern Division population but only 3.17%of those who identified race on returned questionnaires. In 2003,African-Americans comprised 6.96% of the Eastern Divisionpopulation but only 3.17% of those identified race on returnedquestionnaires.

C. Steps Five and Six: Jury Impanelment — Venire to PetitJury Selection from 3% to Nil

Once questionnaires are returned and the available jury wheelis compiled, the federal Jury Administrator sends notices toappear to individuals on the available wheel randomly and at apace consistent with the district's need for jurors in any givenmonth. Marking the fifth step in the jury selection process, thenotice to appear directs potential jurors to report to the courthouse on a specified day for selection to a petit jury.Those jurors who appear at the courthouse on the date specifiedcomprise the "jury venire." Judges and parties then selectcitizens from the jury venire to serve on the trial jury (alsoreferred to as the "petit jury") the final step of the process.

Certain features of jury impanelment in capital cases arelikely to aggravate any preexisting minority underrepresentationon the jury venire, an issue that will be dealt with more fullyin a subsequent memorandum. For instance, evidence from previousfederal capital trials in Massachusetts suggests that the processof death-qualifying32 jurors depletes the already smallnumber of African-American potential jurors.33 Concernsabout the impact of death-qualification may well be unique tothis state; Massachusetts has no death penalty, and publicopposition to it runs high. See, e.g., Frank Phillips,Support for Gay Marriage: Mass. Poll Finds Half In Favor, Boston Globe, April 8, 2003, atA1 (Massachusetts public opinion poll finds 41% opposition tocapital punishment).

My November 4, 2004, decision ordering the impanelment of twojuries, one to decide guilt and the other to decide punishment,was entered as a matter of case management to avoid the verycomplex death-qualification process. On May 12, 2005, the FirstCircuit Court of Appeals found jury bifurcation contrary to theplain language of the Federal Death Penalty Act. See UnitedStates v. Green, 407 F.3d 434, 2005 WL 1119791 (1st Cir.2005).34 However, neither my decision nor the FirstCircuit's opinion addressed potential constitutional issuesstemming from death-qualification, particularly in light of analready underrepresented jury venire.

In the context of the findings of this decision — the declinein African-American representation from 20% to 7% (through thechoice of a federal forum) and then from 7% to 3% (through thejury summonsing process) — the parties are ordered to briefwhether death-qualification is likely to exclude minorities atsuch a high level as to raise renewed constitutional concerns notaddressed by Supreme Court precedent; whether the Sixth Amendment applies at this stage of theproceeding at all; and if it does, whether there is a means lessviolative of defendants' rights than the current approach toaccomplish the government's goals (namely, a bifurcated jury).

D. History of Minority Underrepresentation in Massachusettsand Related Federal Litigation

Scant minority representation on Massachusetts jury venires isnot a new problem. Neither is the charge that the resident listsare not being updated annually, although it has never before beenlitigated as fully as in the instant case. While the problem hasbeen recognized at the highest levels of government, all remedialefforts — judicial and extra-judicial — that have been pursuedover the years have apparently failed.

1. The 1993 Boston Litigation

In 1993, the OJC sued Boston over its refusal to comply withchapter 234A's requirement to compile annual comprehensiveresident lists for use by federal and state jury officials. SeeJury Commissioner of the Commonwealth of Massachusetts v. Mayorof the City of Boston, et al., Suffolk Sup. Ct. No. 93-04718(Mass. Dist. Ct. filed August 9, 1993). The litigation ended withthe City's agreement to employ "aggressive" and "diligent"efforts at compliance with the annual resident list requirement,including conducting door-to-door canvassing and follow-upmailings, as well as cross-checking public school enrollment,parking permits, and multiple-dwelling buildings. See id., Stipulation and Memorandum of Understanding, dated November 23,1994.

In the questionnaire defendants circulated pursuant to thislitigation, see infra, Boston reported that it was fullycomplying with its obligations under the 1994 agreement.Defendants, however, suggest that precisely the oppositeinference should be drawn from the dismal return rates forsummonses mailed to Boston residents (62% for Boston versus 75%for neighboring Newton).

2. 1994 Supreme Judicial Court Gender and Race Bias Report

In 1994, the Massachusetts Supreme Judicial Court's ("SJC")Commission to Study Racial and Ethnic Bias in the Courts issued areport sounding themes very similar to those featured in the 1993Boston litigation and the instant case. The Commission concludedthat "[t]he failure of municipalities to comply with state lawrequirements to provide the [state] Office of Jury Commissionerwith accurate, complete, and verified resident lists contributesto minority underrepresentation in jury pools." Commission toStudy Racial and Ethnic Bias in the Courts, Massachusetts SupremeJudicial Court, Equal Justice 55-68 (1994).

Specifically, the Commission noted inaccuracies in mailingaddresses which "contribute? to the large number ofundeliverable summonses, particularly in poor neighborhoods."Id. at 60. The study showed that Suffolk County had the highest rate of undeliverable summonses (24.8%) and the highestnonresponse rate in the state (22%). Id. at 63.

While both the Boston litigation and the SJC report found theunderrepresentation of African-Americans in Massachusetts jurypools to be demonstrable, historically persistent and troubling,the situation has not improved over the intervening ten years.

3. Federal Litigation Between 1984 and 1999

In case after case over the past twenty years, the FirstCircuit concluded that defendants had not made out a primafacie case of a constitutional fair cross-section violation. InUnited States v. Hafen, 726 F.2d 21 (1st Cir. 1984), the courtrejected a claim that African-Americans were underrepresentedbased on a showing of a 2.02% difference between the percentageof African-Americans in the population and their percentage onthe jury wheel. In United States v. Pion, 25 F.3d 18 (1st Cir.1994), the court rejected a challenge to Hispanic representationon the jury venire, concluding that the defendants had not proventhat the 3.04% difference between Hispanic representation in thepopulation and the jury pool was attributable to anything butchance. Four years later, in United States v. Royal, 174 F.3d 1(1st Cir. 1999), the court found a 2.97% disparity betweenAfrican-American representation in the population and on juryvenires to be constitutionally indistinguishable from the disparity in Hafen, although this time the court noted that thestatistics defendant presented were "disquieting" and indicativeof "a situation leaving much to be desired." Id. at 12.

E. Defendants' Case

On November 1, 2004, at defendants' direction, the federal JuryAdministrator, James McAlear ["Jury Administrator" or "McAlear"],mailed questionnaires to the clerk of each of the 190 towns andcities in the Eastern Division. The questionnaire inquired as tothe manner in which each town or city compiles its annualresident list.35 While responses to the questionnairewere not given under oath, the government did not contest theaccuracy of the facts asserted therein and did not object toadmitting the completed questionnaires into evidence. Defendantsalso retained an expert: Andrew Beveridge, Professor of Sociologyat Queens College and the Graduate Center of the City Universityof New York. Professor Beveridge is an expert in demography,particularly the statistical and quantitative analysis of U.S.Census data. He has testified as an expert in demographic andstatistical analysis in nearly twenty court cases. Professor Beveridge analyzed the available Eastern Divisiondata for the years 2001 through 2003,36 and the responsesto the questionnaires. His analyses and conclusions weresubmitted to the Court in six affidavits, coupled with histestimony during the January 11 and January 26, 2005 hearings.McAlear, who is responsible for assisting the Clerk of the Court"in the performance of producing the master jury wheel" testifiedconcerning his responsibilities during the same hearings. JuryPlan, at p. 1. The government did not enlist an expert and didnot present any testimony.

Pursuant to Federal Rule of Evidence 706, the Court appointedProfessor Jeffrey Abramson as an expert witness to assist theCourt in analyzing the extensive data provided by defendants.See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 595(1993) ("Rule 706 allows the court at its discretion to procurethe assistance of an expert of its own choosing"). ProfessorAbramson's appointment became effective on February 18, 2005.See Order Re: The Court's Intent to Appoint An Expert Witness,docket entry #293, dated February 9, 2005.

Professor Abramson produced a report to the Court on April 21,2005, concluding that the defendants had not made out either aprima facie constitutional violation or a violation of the JSSA. See Report on Defendants' Challenge to the RacialComposition of Jury Pools in the Eastern Division of the UnitedStates District Court for the District of Massachusetts, docketentry #329, dated April 21, 2005.

The parties were given until May 9, 2005, to file responses toProfessor Abramson's report. See Order Re: Report Of TheCourt-Appointed Expert Witness, docket entry #329, dated April25, 2005. The government filed a response concurring in ProfessorAbramson's conclusions. See Government's Response to Court'sApril 25, 2005 Order Regarding Report of the Court-AppointedExpert Witness, docket entry #335, dated May 16, 2005. Defendantsfiled a response objecting to many of the conclusions reached inProfessor Abramson's report. See Response of Defendants BrandenMorris and Darryl Green To The Report of Court-Appointed ExpertJeffrey Abramson, docket entry #337, dated May 17, 2005.

For purposes of the constitutional analysis, defendants contendthat there is official misfeasance — haphazard or negligentpreparation of the resident lists in the cities and towns withthe highest African-American populations.37 They couldnot provide direct evidence of official misfeasance in compilingresident lists. Only one town, New Bedford, blatantly admitted in its questionnaire to failing to update its residentlist annually, as it is required to do.38 The task ofexamining or cross-examining the other 189 city and townofficials would have been a daunting one. Moreover, defendantsdid not have access to the 190 resident lists, nor would thelists have disclosed the race of each listed individual.Accordingly, defendants used the data from the only sourcesavailable to them — the master jury wheel, the available jurypools, and the grand jury pools, together with the rate ofnonresponses and undeliverables. They argue, inter alia, thatsubstantial differences between data and the resident census listdata, coupled with high undeliverable and nonresponse rates,prove that the resident lists are woefully inaccurate.

Furthermore, defendants used zip code data to focus onprecisely which cities and towns are suffering from the highestrates of undeliverables and nonresponses. They found these to bethe cities and towns in the Eastern Division with the mostAfrican-American (and poor) residents. Thus, while virtually allof the 190 cities and towns in the Eastern Division claim toconduct an annual census, it appears that only the smaller,wealthier (and whiter) towns are conducting meaningful annualcensus counts. In contrast, the efforts of poorer towns arelackadaisical and inadequate. The government blames the falloff in minority representation,and in particular the non-response rate, not on officialmisfeasance, but on demographic characteristics, like higherlevels of transience among poorer populations, and privatechoices not to answer jury summonses. These characteristics, thegovernment argues, cannot be redressed unless they result in ajury venire that fails to meet constitutional fair cross-sectionminimums, or they are accompanied by statutory violations. Thegovernment does not believe that either condition is met here.

Notwithstanding the limitations of the data, one thing isclear: The data presented here represents the most comprehensiveeffort thus far to capture the causes of African-Americanunderrepresentation in Eastern Division jury pools.


A. Fair Cross-Section Challenge

1. Fair Cross-Section Framework

The Sixth Amendment requires that juries are selected frompools representing a fair cross-section of the community. Durenv. Missouri, 439 U.S. 357, 363-64 (1979); see generallyNancy Gertner & Judith H. Mizner, The Law of Juries, §§2-11-2-19 (1997) [hereinafter Gertner & Mizner, The Law ofJuries]. Although petit juries need not mirror the exactdemographic composition of the community, the process ofselecting petit juries must give members of "cognizable" groups afair opportunity to serve (i.e., they may not be systematicallyexcluded from the pool). Taylor v. Louisiana, 419 U.S. 522, 538(1975).

In Duren, the Court outlined the requirements for finding aprima facie violation of the Sixth Amendment, albeit in verygeneral terms. Defendants must show: (1) that the group alleged to be excluded is a "distinctive" group in the community [cognizable group prong]; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community [underrepresentation prong]; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process [systematic exclusion prong].439 U.S. at 364. Only if a prima facie violation is shown isthe government required to justify its practices — to prove "thata significant state interest [is] manifestly and primarilyadvanced by those aspects of the jury-selection process . . .that result in the disproportionate exclusion of a distinctivegroup." Id. at 367-68.

There is no dispute that Duren's first prong is satisfiedhere: African-Americans unquestionably constitute a cognizablegroup. See, e.g., Hafen, 726 F.2d at 23. The dispute herecenters around Duren's second and third prongs.

Lower courts have struggled to give content to Duren's verygeneral statements about underrepresentation and systematic exclusion. For the most part, the prima facie standards havebeen rigorously defined. The stringency of the prima faciestandards is one explanation for the fate of Hafen, Royal andPion — the First Circuit's three hallmark (and unsuccessful)fair cross-section challenges — although there are recentindications that the Court could revisit its fair cross-sectionstandards. See, e.g., Royal, 174 F.3d at 12-13 (statisticspresented by the defendant were "disquieting" and "a situationleaving much to be desired").

Put simply, Duren raises the following questions regardingthe underrepresentation prong: (1) By what statistical meansshall the exclusion of members of a cognizable group be measured?(2) And, far more significantly, what level of exclusion ofmembers of a cognizable group is tolerable for constitutionalpurposes? See Peter A. Detre, A Proposal for MeasuringUnderrepresentation In The Composition Of The Jury Wheel, 103Yale L.J. 1913 (1994) [hereinafter Detre, MeasuringUnderrepresentation]. Precedent, including the First Circuit'sprecedent, answers the second question with something of acontrivance, a normative determination of how much disparity istoo much. As I describe below, there should not be a magicnumber. The answer should instead depend upon the context inwhich the underrepresentation is found, and upon the degree towhich the goals embodied by the Sixth Amendment are or are not being achieved. This is fundamentally a qualitative, not aquantitative, inquiry.

With respect to question (1), the First Circuit has chosen tomeasure the underrepresentation prong using the absolutedisparity test, which measures the difference between thecognizable group's percentage in the relevant population againstthe group's percentage on the jury wheel.39 SeeHafen, 726 F.3d at 23 (calculating "the difference between thepercentage of eligible blacks in the population and thepercentage of blacks on the master wheel"); see also Pion,25 F.3d at 23 n. 5 (defining the absolute disparity standard as"the gross spread between the percentage of eligible Hispanics . . .in the relevant population and the percentage of Hispanicrepresentation on the Master Jury Wheel"). With respect toquestion (2), the court found that the absolute disparity of2.98% in Royal was "not meaningfully distinguishable from the2.02% absolute disparity accepted in Hafen." Royal,174 F.3d at 10-11.

While the First Circuit surely did not adopt any giventhreshold talismanic figure, it has cited with approval UnitedStates v. Maskeny, 609 F.2d 183 (5th Cir. 1980), which rejectedan absolute disparity of 10%, and United States v. Clifford,640 F.2d 150 (8th Cir. 1981), which rejected an absolutedisparity of 7.2%. See Hafen, 726 F.2d at 23-24. With regard to Duren's systematic exclusion prong, a courthearing a fair cross-section challenge must ask: (1) Is theunderrepresentation caused by happenstance (which is notactionable), or is it caused by official action or inaction ofsome sort (which may be actionable)? (2) And if officialmisfeasance contributes somewhat to the disparity inrepresentation, do the defendants bear the burden of showingprecisely how much? There is little law on these issues becausefew cases have gotten beyond the underrepresentation prong.

One thing is, or should be, clear: Sixth Amendment analysisdoes not require proof that a cognizable group has been excludedbecause of discrimination, as in the case of an EqualProtection challenge under either the Fifth or FourteenthAmendments. The distinction is important. An Equal Protectionchallenge concerns the process of selecting jurors, or theallegation that selection decisions were made with discriminatoryintent. The Sixth Amendment, on the other hand, is concerned withimpact, or the systematic exclusion of a cognizable groupregardless of how benevolent the reasons. It looks todiscriminatory effects, while the Equal Protection clause looksto discriminatory purposes. See Gertner & Mizner, The Law ofJuries, at §§ 2-10-2-13. Even practices that are race-neutralbut have a disparate impact on the representation of a cognizableclass in the jury venire fit within the Sixth Amendment's protections, while theywould not be cognizable under the Equal Protectionclause.40

Defendants challenge First Circuit precedent onunderrepresentation both with respect to the absolute disparitytest and the percentages rejected by First Circuit precedent. Inaddition, they — along with Professor Abramson — suggest analternative formulation, a hybrid test that melds the second andthird prongs of Duren: If defendants can identify a mechanismby which a cognizable class is excluded — here, that city andtown officials are not compiling annual resident lists that areeven remotely accurate — and if they can show that suchmisfeasance contributes to African-American underrepresentationin the jury pool, such a showing should suffice even if theabsolute disparity is "only" 2 or 3%.

Below, I outline the law in this area (and its deficiencies),and then address defendants' proof.

a. Second Prong: Underrepresentation (1) By What Statistical Means Shall the Exclusion of Membersof a Cognizable Group Be Measured?

In Hafen, the Court not only endorsed an absolute disparityanalysis, 726 F.2d at 23-24, but also expressly rejectedcomparative disparity analysis, which measures whether there is adiminished likelihood that members of an underrepresented groupwill be called for jury service.41 Id. ("Although weacknowledge the possibility that the comparative disparitycalculation might be a useful supplement to the absolutedisparity calculation in some circumstances, we do not believethat it necessarily produces a more accurate result where, ashere, the group allegedly underrepresented forms a very smallproportion of the total population."). And in United States v.Royal, 174 F.3d 1 (1st Cir. 1999), the Court refused toreconsider the absolute disparity model, even while concedingthat the "case turn[ed]" on the choice of statisticalmethodology.42 Id. at 5.

I am obliged to adopt the absolute disparity approach, althoughit is worthwhile to urge its reexamination. Absolute disparityanalysis fails to capture the persistent underrepresentation in District of Massachusetts jurypools.43 It clearly does not adequately addresssituations where, as in Massachusetts, the underrepresented groupis a small percentage of the population. See United States v.Rogers, 73 F.3d 774, 776 (8th Cir. 1996) ("Although utilizingthe absolute disparity calculation may seem intuitive, its resultunderstates the systematic representative deficiencies . . .");United States v. Jackman, 46 F.3d 1240, 1247 (2d Cir. 1995).

Put simply, if each and every African-American in the EasternDivision were excluded from jury service, the absolute disparitywould be "only" 6.96% — and within the range cited approvingly inHafen. Such a result would legitimize the intuitivelyillegitimate — a jury trial without African-Americans for urbancrimes that allegedly occurred in a county that is 20%African-American.

Defendants recognize that absolute disparity analysis mustinform my review, but they urge me to supplement it withadditional statistical models.44 One such model iscomparative disparity analysis. But here again, as noted above, the FirstCircuit has rejected comparative disparity analysis because it"distorts reality" where "a very small proportion of thepopulation is black." Hafen, 726 F.2d at 24 ("[T]he smaller thegroup is, the more the comparative disparity figure distorts theproportional representation."); see also Royal,174 F.3d at 7, 9 (citing cases from other circuits).45 Of course, onecould — and perhaps should — draw precisely the oppositeconclusion: Where a very small proportion of the population isAfrican-American (largely because of the government's choice of afederal forum), we have a heightened obligation to ensure thatthe highest numbers of that population will appear on our juries.See United States v. Levasseur, 704 F.Supp. 1158, 1162-63 (D.Mass. 1989) (holding that "only a comparative disparity analysiswill afford sufficient protection to defendants' right to be tried by a faircross-section of the community").46

Defendants also cite to statistical decision theory ("SDT") anddisparity of risk as potential supplements to absolute disparityof risk.47 Using binomial distribution, SDT calculatesthe probability that an observed underrepresentation occurred bychance.48 In other words, SDT is a test of whetherunderrepresentation could be the result of a random processrather than a systematic failure; the smaller the probabilityproduced by the SDT calculation, the less likely it is that the observed underrepresentation occurred by chance. Defendantsassert that the average SDT for the relevant data from 2001through 2003 is 1 in over 507 million.

Also using binomial distribution, disparity of risk describesthe increase in a defendant's chance of drawing anunderrepresentative petit jury as a result of anunderrepresentative jury pool. It measures the likelihood ofhaving at least one African-American juror in a giventwelve-member jury. Defendants calculate that, with a fullyrepresentative wheel for the years 2001 through 2003,approximately 58% of all twelve member juries in the EasternDistrict would have at least one African-American juror. But withthe alleged underrepresentation of African-Americans in theavailable jury wheel from 2001 through 2003, defendants assertthat an average of only 29.48% of juries would include at leastone African-American juror. Thus, defendants argue that thelikelihood of underrepresentation is both more prevalent and moreentrenched than absolute disparity alone indicates.49 The First Circuit has never addressed either SDT or disparityof risk. See Royal, 174 F.3d at 7 n. 3 ("Our case involvesonly these two methodologies [absolute disparity and comparativedisparity] — the only two discussed by the parties and ourendorsement of one should not be taken as a statement that it isthe best of all possible methodologies"). While use of SDT is notwithout precedent in other circuits, see e.g. United Statesv. Jackman, 46 F.3d 1240, 1247 n. 5 (utilizing a derivative ofSDT), both SDT and disparity of risk have faced significantcriticism.50

I urge the First Circuit to supplement the absolute disparitytest with other statistical measures or the hybrid approachdescribed below. No methodology has been mandated by the SupremeCourt. Nor is there anything about absolute disparity thatlogically favors it over a more complex analysis ofunderrepresentation. More significantly, there is every reason toreconsider the approach at this time. To suggest that therelentless pattern of criminal defendants confronting white, orlargely white, juries does not deserve further constitutionalscrutiny is a troubling act of judicial complicity. In 1984, in Hafen, the pattern may not have been clear. Today, two decadeslater, it is.

(2) How Much Exclusion of Members of a Cognizable Group IsSignificant for Constitutional Purposes?

The First Circuit has not adopted a threshold for answering thequestion of how much exclusion of members of a cognizable groupis significant for constitutional purposes. However, it has toldus that 2.02% absolute disparity in Hafen, 726 F.2d at 23, and2.97% in Royal, 174 F.3d at 10-11, were not enough.51

A fair cross-section analysis should not be about picking anumber out of context; it should be about how much exclusion of acognizable group the Constitution should tolerate. Plainly, anentire group does not have to be eliminated from the jury poolbefore constitutional alarms are raised. But how muchunderrepresentation is too much? Perhaps we should take into account the fact that the choice of forum — the Executive'schoice — has already altered the decisionmaker, from a jury poolthat is 20% African-American to one that is 7%. Perhaps we shouldcare that, whatever the numbers, the vast majority of EasternDistrict juries will not have a single African-Americanmember.52

The function of a prima facie case is to set the minimumthreshold of evidence a moving party must offer before the courtscrutinizes the practice further. In the context of this case,the bar should be set lower. Where African-Americanrepresentation in the pool is effectively halved, and where there is evidence of systematic defects, the court should look moreclosely and the government should bear the burden ofjustification.

b. Third Prong: Systematic Exclusion

(1) Is the Disparity Found under the Second Prong Caused byHappenstance (Which Is Not Actionable) or Is it Caused byOfficial Action or Inaction of Some Sort (Which May BeActionable)?

The facts of Taylor and Duren illustrate what sorts ofsystematic defects qualify as potential violations of the SixthAmendment. In Duren, administrators determined that it would bemore convenient to give women an automatic exemption once theyrequested not to serve, since they were likely to claimexemptions based on child-rearing obligations. 439 U.S. 357(1979). And in Taylor, women were required to speciallyregister for jury duty. 419 U.S. 522 (1975). It may have beentrue — especially at the time of these cases — that, becausewomen were more likely to be home with children, "hardship"disqualifications that were neutral on their faces would have ledto their exclusion anyway. But plainly the government cannot putits fingers on the scale. The Supreme Court in both cases foundthat the government action cannot exacerbate a pattern ofexclusion, even one enshrined in the culture.53 In United States v. Pion, the First Circuit found that thedefendant had not identified "a systemic defect" or "anoperational deficiency in the Jury Plan which would account forthe alleged underrepresentation." 25 F.3d at 23. Because namesfor the master jury wheel were drawn from resident lists — whatthe court deemed the broadest data available — there was noreasonable inference that the small number of Hispanics in thepool was attributable to "anything other than the randomness ofthe draw." Id. at 23-24. In contrast, defendants here doidentify an operational deficiency, namely, the inaccuracy ofresident lists that form the source of the jury pool, due toofficial negligence (or worse). They claim that the resident listapproach is an improvement over the use of voter lists only tothe extent that it is executed properly.

Still, the government interprets the evidence to suggest thatthe cities and towns complied with the law, and carried out allstatutory mandates, but still could not capture a more transientAfrican-American community or persuade more African-Americans toreturn questionnaires. Since there is no constitutionalrequirement to take affirmative steps to ensure a representative jury, according to the government, there is noviolation.

The parties' different perspectives beg the question: What ifthe data suggests that both the government and the defendants areright, that the problem is attributable to some degree ofofficial misfeasance, and some degree of demographic factors? Isthat sufficient?

(2) Even if Official Misfeasance Contributes Somewhat to theDisparity in Representation, Do the Defendants Have to ShowPrecisely How Much of the Disparity Is Attributable to SuchFactors?

Defendants claim that they do not have to prove that systematicdefects are responsible for the totality of the problem. In otherwords, while there may be demographic reasons for theunderrepresentation of African-Americans, where official actionor inaction has exacerbated the problem, they have made out aprima facie case. The government argues, and thecourt-appointed expert agrees, that defendants have to prove theprecise extent to which official negligence or misfeasance isresponsible for the disparity to meet constitutional standards.

This debate is similar to the one in employment law about"mixed motive" claims: Does a plaintiff have to show that a givenadverse employment decision was entirely caused by a defendant'sdiscriminatory animus? Or is it enough to show thatdiscriminatory animus played a part in the final decision? In this context, if the goal is a fully representative jury, itshould be enough that official misfeasance played a part indiminishing African-American representation, even if we cannotquantify that role, much less effect a perfect system becausethere will always be some people who will not respond toquestionnaires or who will frequently change residence. Indeed,as Professor Abramson says, a more exact test would be well nighimpossible for defendants to meet. Abramson, Report, at 4 n. 2("[T]he data on the record, though detailed and probably the bestthat is available, cannot with mathematical certainty tell theCourt exactly what percentage of a given town or zip code'sundercount is African American").

First Circuit case law has not addressed this issue. However,given the rigors of the First Circuit's approach on other fronts,I can only assume that they would adopt Professor Abramson'sapproach.

c. Hybrid Approach

The case law suggests that the representativeness and thesystematic exclusion prongs are independent of one another:Traditionally, if the absolute disparity is not high enough, acourt may not even address the mechanism of exclusion. But thereis a hybrid approach, as implied by the analysis above andsuggested by Professor Abramson. He states: [A]s a matter of law, there is some interplay between the "substantial" and "systematic" prongs of the Duren test . . . Thus, the more clear it is that the underrepresentation of a cognizable group is caused by the kind of official misfeasance that defendants allege here, the less tolerance there ought to be for loss of fair representation for that group.

Abramson, Report, at 14.

In effect, the hybrid approach views the second and thirdprongs of the Duren test as relating symbiotically with oneanother. If defendants are able to identify practices that servesystematically to exclude African-Americans from the jury poolsof the Eastern Division, courts should view defendants' absolutedisparity data more favorably than they would in the absence ofidentified exclusionary practices. This approach finds support inthe case law and is an avenue of analysis that has not beenforeclosed by the First Circuit. See, e.g., United States v.Rioux, 930 F. Supp. 1558, 1566 (D. Conn. 1995) ("[T]he secondand third prongs of the Duren test, unfair representation andsystematic exclusion, are intertwined inextricably");Commonwealth v. Arriaga, 438 Mass. 556, 566 (2003) ("Evidenceof a disparity smaller than 10% can support a conclusion ofunconstitutional underrepresentation of smaller minority groups,especially when coupled with persuasive evidence of systematicexclusion") (emphasis added); see also United States v.Biaggi, 909 F.2d 662, 679 (2d Cir. 1990), cert. denied, 499 U.S. 904(1991).

2. Defendants' Case

a. First Prong: Distinctiveness

Because African-Americans are a distinctive group, defendantshave unquestionably satisfied the first prong of the Durentest. See, e.g., Hafen, 726 F.2d at 23.

b. Second Prong: Underrepresentation

Defendants have calculated an absolute disparity of 3.67% for2001, 3.58% for 2002, and 3.79% for 2003 in African-Americanrepresentation in the Eastern Division. Taken together, thesefigures amount to an average absolute disparity of 3.66% for 2001through 2003.54 Defendants concede that such numberswould not ordinarily be sufficient to meet the second prong of the Durentest, given the First Circuit's position in Hafen and Royal.

As Professor Abramson noted, however, the question of whetherthe Sixth Amendment (or the JSSA) is offended by this absolutedisparity "cannot be answered in a vacuum." Abramson, Report,at p. 23. Consider the following:

First, the decline from a 6.96% share of the adult populationto a 3.17% share of names on the available jury wheel "means thatless than half the numbers of African-Americans that randomselection should have placed on the available jury wheel are infact present there." Abramson, Report, at p. 23.

Second, it "means that the defendants in this case suffer astatistically significant decline in the probability that theirjury venire and their jury selected from the venire will have thenumber of African-Americans on it that random selection from aninitially representative pool would be expected to produce."Id.

Thus, as Professor Abramson states: These problems are serious enough that, rather than simply saying formulaically that absolute disparities on the order of 3.79% (i.e., 6.79 minus 3.17) automatically pass muster under the Constitution and the Act, the Court should consider who or what is responsible for a less than desirable result and what difference it might legally make if it were clear that official state action, and not mere private choices, lay behind even a 3.79% absolute disparity.Abramson, Report, at p. 24. Using a hybrid approach, I turn tothe question of whether there is systematic exclusion and to what degree it is responsible for the disparity between ideal andactual African-American representation in the jury pool.

c. Third Prong: Systematic Exclusion

What is novel about defendants' fair cross-section challenge istheir evidence of systematic defects in the way the source lists(resident lists) are prepared. Defendants present persuasivequantitative evidence that, as a result of these defects, theresident lists are not functioning as the Jury Plan assumed theywould. In addition, the questionnaires that were sent to everycity and town bolster the conclusion that the cities and townsvary in the way they update their annual lists — if they prepareannual lists at all.55 As a result, instead of capturingan accurate cross-section of the community, the resident listsare skewed because officials in some towns (white, affluent, andsuburban) are doing a better job of continually updating andimproving their lists than are officials in other towns(African-American, poor, and urban).

Defendants document three phenomena that cause African-Americanunderrepresentation: 1) overall, the resident lists undercount African-Americans from the outset; 2) many of theresident lists are not improved and updated annually, as requiredby state law, resulting in a disproportionately high rate ofundeliverables (and nonresponses) in heavily African-American,poor, and urban communities, where geographic mobility is high;3) the decision of some cities — notably Boston — to purgeinactive voters from their resident lists, while other cities andtowns include inactive voters on their resident lists, aggravatesundeliverable and nonresponse rates.

Each of these allegations is addressed in turn.

(1) Shortcomings of The Resident Lists — Undercounting andOvercounting

To illustrate how overcounting and undercounting of residentshave racially disparate effects, defendants created a subset of35 towns (out of 190) in the Eastern Division. Twenty-one ofthose towns represent all Eastern Division towns that have fewerthan 500 African-American residents of voting-age, less than 3%of their residents living in poverty, and a population of morethan 10,000 ("the 21 towns"). The remaining 14 towns are thosewith more than 2,000 African-American residents of voting-age,more than 4% of residents living in poverty, and a population ofmore than 10,000 ("the 14 towns").56 The combinedresident lists for the 21 towns overrepresented theirCensus-expected population (103.48% of the Census estimate), while the combinedresident lists for the 14-town set yielded only 85.3% of theirCensus-estimated population.

The data is even more telling at the zip code level because onecan infer more from smaller, relatively more homogenousunits.57 For example, Dorchester (02121), whereAfrican-Americans constitute 83% of the population, isundercounted and thus underrepresented on the jury wheel by 22%.

Both the government and Professor Abramson argue thatundercounting and overcounting is not necessarily a primary causeof African-American underrepresentation. They explain thatdefendants' data falls short of proving that African-Americanresidents are being undercounted more than the other residents ofthe 21 towns. There is, according to Professor Abramson, aproblem of "ecological inference" — seeking to draw inferencesabout a fraction of the whole using aggregate data about thatwhole.58 To draw definite conclusions based on aggregatedata, there would need to be perfect racial residentialsegregation, which there is not. See G. Thomas Munsterman andDaniel J. Hall, Jury Management Study: Kent County, Michigan(2003). The government argues that even zip code data — the smallestfraction about which reliable geographic data is compiled — doesnot sufficiently disaggregate residential demographics. Whilesuch data may be telling for homogeneous zip codes, likeDorchester, it does not say much about the effects of over andundercounting in the dozens of zip codes that are raciallyintegrated, like Jamaica Plain (02130), where African-Americansconstitute 16% of the population.

The issue, as I have noted, turns on the rigor of theconstitutional test. If defendants can pinpoint where theundercounting is occurring and can even show it substantiallyaffects African-Americans, as they have, but are required to showprecisely how much (i.e., the extent to which African-Americansare disadvantaged by undercounting rather than other groups),then this challenge will fail. And if they have garnered the bestavailable data, better than any other defendant to date, thenevery comparable challenge will also fail. Again, if that is thecase, perhaps the constitutional test should be reexamined.

(2) Shortcomings of Summonsing — Demographics, Logistics andNonresponses

Defendants demonstrate that the greatest drop in theproportional representation of African-Americans in EasternDivision jury pools occurs during the process when individualsare summonsed from the master jury wheel. In other words, the group that arrives at the federal courthouse for impanelment isfar whiter, in terms of percentages, than the master jury wheel.

Boston, with its large percentage of African-Americans (25.3%)is illustrative: Boston's share of the names on the master jurywheel is 11.1% less than it would be if it were proportional toBoston's Census-estimated share of the Eastern Division'svoting-age population. After the summonsing process, Boston'sshare of the jury venire drops to 28.79% less than it would be ifthe pool perfectly represented the Eastern Division's voting-agepopulation. The four zip codes in Boston with the highestabsolute number of African-American residents begin with anunderrepresentation on the master jury wheel ranging from 14.83%to 22.57%. But the initial underrepresentation in these zip codesswells to a range of 31.90% to 41.84% by the time jurorquestionnaires are returned and the available jury wheel iscompiled. Patently, the process of summonsing jurors exacerbateswhatever underrepresentation Boston already experiences at theresident list and master jury wheel stages.

Again, the question is why this is so, and how far defendantsmust go to prove these shortcomings are to be deemed"systematic." Is it enough to show that some of theunderrepresentation is attributable to summonsing from outdatedand inaccurate city and town lists, producing disparate rates ofundeliverable mail in the more racially diverse areas? Or is afinding of a "systematic" exclusion defeated if factors that are beyond the federal court's province are also to blame, like highlevels of transience among poorer populations and individualchoices to ignore jury summonses? Should it be enough to showthat factors, like transience and individual choice, areexacerbated by official action or inaction — as in Duren andTaylor?

(a) Undeliverables

With regard to undeliverable summonses, the combined data from2001 through 2003 shows that 12.4% of all jury summonses werereturned by the post office marked "undeliverable." In contrast,15% of all summonses mailed to addresses in Suffolk County, wherea large portion of the Eastern Division's African-Americanpopulation resides, were returned as undeliverable, and 15.2% ofall summonses mailed to addresses in Boston proved undeliverable.For the 21 towns (with smaller African-American populations), theundeliverable rate was 5.8%, while the undeliverable rate in the14 towns (with larger African-American populations) was 18.4%.

Accordingly, defendants argue that it is more likely that theaddresses of African-Americans will be incorrect or outrightmissing from the resident lists, thereby systematically leadingto higher rates of undeliverable summonses in cities and townswith high concentrations of African-American residents. Inessence, names on the master jury wheel that do not have a corresponding address or have an incorrect corresponding addressmight as well not be there at all.

To be sure, demographic factors also play a role. Towns withhigher poverty rates and larger concentrations ofAfrican-American residents tend also to have higher-than-averagerates of mobility. For the 14 towns in the 35-town subset, therate at which persons move within two years is 8.7% higher thanthe moving rate in the 21 towns.59 In other words, as thegovernment argues, even if officials did everything they could toupdate their resident lists, undeliverable rates would still bepositively correlated with poverty rates and the size of theAfrican-American population.

(b) Nonrespondents

Nonrespondents represent those persons summonsed for jury dutywho fail to respond even though their summonses are not returnedto the post office marked as "undeliverable." Nonrespondents maybe the product of wrong addresses, or individuals who chose notto answer the summons at all. This data is the most difficult tointerpret.

In the Eastern Division, from 2001 through 2003, an average of12.2% of presumably successfully delivered summonses produced no response. In contrast, the nonresponse rate for Suffolk Countyfrom 2001 through 2003 was 22.43%, and the nonresponse rate inBoston for that time period was 23.06%. For defendants' subset of35 towns, the 14 towns (heavily African-American) had anonresponse rate of 16.9%, while the 21 towns (heavily white) hadan average nonresponse rate of 7.6%. At the neighborhood level,of the 32 zip codes in Suffolk County, 16 had nonresponse ratesin excess of 20% (14 of these zip codes are in Boston).

If only some of these summonses were actually delivered, thenthe resident lists are even worse than the undeliverable ratessuggest. The government argues, however, that if we assume thatmost of these summonses were delivered, then high nonresponserates demonstrate that disparate rates of response among racial(and perhaps economic) groups skew the racial composition of theavailable jury pool further. For this, the government suggests,systematic exclusion cannot be blamed.60

Again, the issue is the legal standard: It may not ever bepossible to disentangle choice and transiency from bad lists forconstitutional purposes. In any event, as described below, inconnection with the JSSA, even high nonresponse rates do not absolve federal officials from taking steps to improve orotherwise compensate for African-American underrepresentation onjury pools, particularly where there are practicable steps thatcan be taken.

(3) Inactive Voter Lists

In the course of litigating their challenge, defendants learnedthat the Eastern Division's cities and towns submit theirresident lists to the State Central Voter Registry. The ElectionDivision then forwards two electronic files for each city andtown to the OJC. One file is the city or town's list of allresidents and active voters, and the other is a list of inactivevoters. The OJC leaves it to each city or town to decide whetherthe names in the inactive voter file should be merged with thenames of residents and active voters to form the final residentlist.61

In 2003, 152 cities and towns (out of 190) requested or hadstanding orders to include names of inactive voters on theirresident lists. Boston was among the minority of towns notrequesting inclusion, and it in fact purged 99,716 inactivevoters from its 2003 resident list. The result of this haphazardsystem, according to defendants, is that some towns inflate theirresident count by including inactive voters who have moved, while other towns, like Boston, undercount their residents by purgingall inactive voters, many of whom may still reside in the city.

This phenomenon is worrisome insofar as it shows, at a minimum,that the very definition of "resident list" varies from town totown in ways the District intended to prevent in enacting theJury Plan. But there is little basis for concluding that thechoice to purge inactive voters amounts to systematic exclusioncausing the underrepresentation of African-Americans on the juryvenire. If some towns are listing phantom residents by includinginactive voters, then one would expect this to be revealed inhigher than average rates of undeliverable mail andnonrespondents. The record suggests the opposite.

3. Conclusion: Defendants Have Not Made Out A ConstitutionalViolation

Defendants' data suffers when judged by the insurmountablerigors of the existing Sixth Amendment framework. Even ifdefendants met the absolute disparity threshold — which would benearly impossible — they would have had to prove not merely thatinaccurate lists contribute to a degree to theunderrepresentation of minorities, but the precise degree towhich they are responsible, i.e., that inaccurate lists (asopposed to transience or personal choice) are the main culprit.That burden is far, far, too high; particularly when a primafacie case is involved. It should be enough, as it was in Duren and Taylor, todemonstrate that there are clear procedural defects in the waythe resident lists are compiled, and that these defectsdisproportionately affect a cognizable group, leading to thatgroup's significant underrepresentation in jury pools. But it isnot, under current First Circuit law, and thus defendants havefailed to make out a prima facie case of a constitutionalviolation.

The JSSA's "substantial failure to comply" provision, however,is a different matter.

B. Statutory Challenge

1. The JSSA's Proportionality Requirement

The JSSA defines two sorts of obligations — a requirement ofproportionality, and a requirement of substantial compliance withthe provisions of the Act. I address the former first.

The JSSA requires that every district's jury plan "ensures thateach county, parish, or similar political subdivision within thedistrict or division is substantially proportionally representedin the master jury wheel for that judicial district [or]division."62 28 U.S.C. § 1863(b)(3). The Act further specifies that proportional representation can be measured byusing "either the number of actual voters at the last generalelection in each county, parish, or similar politicalsubdivision, or the number of registered voters if registrationof voters is uniformly required throughout the district ordivision." Id.

The question raised by this case is how to define"proportionality": Is it simply the requirement of randomselection? If the source lists are voter lists, is it enough forofficials to make certain that the master wheel reflects randomselection from those lists? If the source lists are residentlists, does proportionality simply require random selection fromthose lists? Or does proportionality mean something more — thatthe court is to measure the efficacy of the plan in terms ofwhether it accurately captures the actual population as reflectedby Census data, rather than source lists?

At the heart of the debate is the significance of the 1992Amendment to the Act, which provided that the District ofMassachusetts may use numbered resident lists, rather than voterlists, as its source of names for the federal master jury wheel.28 U.S.C. § 1863(b)(2). The government argues that the amendment merely had the effect of changing the benchmark for measuringproportionality from voter lists to resident lists. It reachesthis result through parallel reasoning: The Act directs mostfederal judicial districts to use voter lists as a source ofjuror names, thereby making the test of proportionality in thosedistricts whether their master wheels preserve the county (orother relevant political divisions) proportions as they exist onthe voter lists. Thus, when the Act authorized the District ofMassachusetts to replace voter lists with numbered residentlists, it implicitly made resident lists the measure ofproportionality.

Defendants argue that, because the Act states thatproportionality "may" be measured against benchmarks such as theprevious year's voter lists or resident lists, the language ofthe Act is discretionary. They urge the Court to employ thisdiscretion, in conjunction with its supervisory authority, todetermine that the better test of proportionality compares countyproportions on the master jury wheel to county proportions asmeasured by Census counts. If the addresses on the master wheelare inaccurate, they argue, proportionality is irrelevant; thecounty population figures are chimerical.

The government's interpretation makes sense in light of theplain language of the Act, although it clearly guts theproportionality requirement of any real meaning. In adopting theproportionality requirement, it was Congress' intent that the "initial source lists . . . accurately mirror community makeup."House Report, 1968 U.S.C.C.A.N. 1792, at 1794. If the initialsource lists are missing large portions of the population andconsequently fail to "mirror community makeup" at the outset, asis the case here, they cannot be used to measure proportionalityin a meaningful way. Unless proportionality is measured withrespect to the percentage that each county actually representsof the Eastern Division's entire adult population, the policy ofthe Act is defeated. In effect, under the government'sdefinition, proportionality would require no more than soundarithmetic.63

In resolving defendants' proportionality challenge, the Courtneed not decide this issue of first impression — whether the JSSAgrants the district court the discretion to employ something moremeaningful than resident and voter lists for measuringproportionality — because the master jury wheel percentagesdeviate only a small amount from Census counts when countyrepresentation is considered.

According to defendants' own data for 2003, the variancesbetween county percentages according to Census estimates andcounty percentages as they actually existed on the master jurywheel appear to be less than one percent. Other courts have found that relatively small departures fromproportionality as measured against Census figures are merelytechnical, and thus not actionable. See United States v.Bailey, 76 F.3d 320, 322 (10th Cir. 1996); United States v.Rosenthal, 482 F.Supp. 867, 871 (D. Ga. 1979).

Defendants argue, however, that the important units fordetermining proportionality in this case are not counties, butsmaller localities within Eastern Division counties, like cities,towns, and even zip codes. In 2003, for example, the City ofBoston submitted 31,003 fewer names to the OJC than it shouldhave, according to U.S. Census estimates, yielding a negative6.75% deviation. For the same year, the City of Chelsea submitted10,932 fewer names than their estimated Census population,yielding an alarmingly negative 44.11% deviation.

In United States v. Foxworth, 599 F.2d 1 (1st Cir. 1979), theFirst Circuit rejected a locality-level proportionality challengeeven where there was evidence that certain towns, not clusteredin any one county, had been omitted from the jury wheelwholesale. The defendant in Foxworth argued that "certaincities and towns in the Eastern Division [. . .] were notrepresented in the Master Jury Wheel." Id. at 2. In denying thedefendant's challenge, the court reiterated that § 1863(b)(3)'srequirement of "substantial? proportional[ity]" applies only tocounty-level representation on the jury wheel: Defendant has made no showing, unsworn or otherwise, that any county or parish was not properly represented in the jury pool. It is not suggested that a city or town is a political subdivision similar to a county or parish. Nor has defendant shown that any lack of representation of the excluded cities and towns significantly affected the proportional representation of the counties within which such cities and towns are situated.

Id. at 4.

Without more profound disparities at the county level, theAct's proportionality requirement cannot be used to redress thefalloff that defendants have correctly identified.

2. "Substantial Failure to Comply" with the JSSA

Under 28 U.S.C. § 1867(d), if the court determines that therehas been a "substantial failure" to comply with the provisions ofthe Act, "the court shall stay the proceedings pending theselection of a petit jury in conformity with this title." The"substantial failure" to comply provision is broadly drafted,referring to all aspects of the JSSA.

Defendants argue that they have established a "substantialviolation" of the Act, even if they have not established aconstitutional violation, based on the failure of federalofficials to supplement the available jury list despite itsdemonstrable deficiencies. They point to the JSSA's requirementthat the district's jury plan "prescribe some other source orsources of names" in addition to the usual source list "where necessary to foster the policy and protect the rights secured by"the fair cross-section guarantee.6428 U.S.C. § 1863(b)(2); 28 U.S.C. § 1861.

Morever, even though the Jury Plan of the District ofMassachusetts does not explicitly mention the statutory duty tosupplement from other sources, it includes two provisions thatreflect comparable, if not identical, concerns. Section 11(d)permits the Court to direct the Clerk to draw a supplementalarray from the master wheel, to be added to the regular array "asnecessary" when additional names are needed "because of excusedor increased jury requirements." Section 7(a) gives the Clerk, inconsultation with the Chief Judge, the option of implementing adata processing system that will, inter alia, ensure that, in"[t]he selection of names from the source list and the master wheel . . . the mathematical odds of any single name being pickedare substantially equal."65

Plainly, the "mathematical odds" that any given name will bepicked are not "substantially equal" across the region, as thePlan requires. A citizen's chances of getting on a federal juryare far better in Needham and Sudbury, which update their liststhrough multiple mailings, telephone calls, and even door-to-doorvisits, than they are in Lynn and Brockton, where there is nofollow-up, or in New Bedford, where there has not been an annualcount since 1999. Nor has the random selection of names fromresident lists, rather than voting lists, been sufficient toguarantee a fair cross-section of the community. If the Lynn, NewBedford and Brockton resident lists are inaccurate, it does notmatter how perfectly random the procedures used by the Court areto cull names from resident lists; the names on the list arechimerical. Finally, these deficiencies are hardly insubstantial;they result in high rates of undeliverables and nonresponses tojury summonses, particularly in communities with largeAfrican-American populations.

Defendants propose several sorts of supplementation measures inthis case. They include short-term measures that can be easily addressed in the case at bar, within the four corners ofthe Jury Plan and this Court's supervisory authority, andlonger-term measures that should be addressed by the Clerk inconjunction with the Chief Judge, and the reviewing panel of theJury Plan described in 28 U.S.C. § 1863(a).66

The short term proposals are:

a) For all summonses returned to the Court as "undeliverable,"the same number of new summonses should be mailed to residentswho live in the same zip code area as the undeliverable summonsestargeted;

b) For all summonses returned to the Court as "nonresponses,"the Jury Administrator should take steps to determine if thenonresponders in fact live at the listed addresses or if theseare also "undeliverables" (i.e., sent to inaccurateaddresses);67

c) As an alternative to (b), additional summonses should besent in numbers equal to the number of nonresponses in a given zip code area without determining whether the nonresponses are infact undeliverables.

In addition, defendants propose that the federal authoritiesinform the OJC which summonses have been returned asundeliverable, in the hopes that the source lists can be updatedand inaccurate addressees expunged.

The longer-term proposals are:

a) The weighted mailing approach: The jury staff will comparethe census percentages per each zip code with the percentages onthe master wheel; they will then send out additional summonses tocertain zip codes to proportionally reduce the chances thatsomeone in an overrepresented zip code will receiveone;68 b) The "under yield" approach: The jury staff will adjust thenumbers of summonses based not on Census figures but onhistorical response rates; the response rates will be calculatedbased on the difference between the number of mailed summonsesand the number of returned questionnaires.

I will order a) and c) of the short-term proposals inconnection with jury selection in the instant case, as well asthe proposal for informing the OJC of flawed addresses. Unlessthe jury staff reports to me otherwise, I will assume that thesemeasures can be accomplished without delaying jury selection,scheduled to begin on September 19. While I am nominally orderinga stay under the statute, "pending selection of a petit jury inconformity with this title," 28 U.S.C. § 1867 (d), I have every confidence that the statutory purposes can be achievedwithout a continuance of this trial.

I will submit the longer range issues to the Clerk, the ChiefJudge, and the statutory reviewing panel for further study. Ineffect, these alternatives are the institutional equivalents ofthe ad hoc adjustments I am making in the case before me. Theyinvolve more than simply counting the numbers of undeliverablesand nonresponses in a given case. The long-term proposals requirethat jury staff review historical data or differentials betweenthe current master jury wheel and Census counts, and adjust thesummonses accordingly for all cases in this jurisdiction. Sincethey more directly implicate the terms of the Jury Plan, the"method and manner of random selection" under the Plan, theyshould be considered by other decisionmakers.

Finally, I will also urge our Court to work with stateauthorities to address these problems at their source — theunfunded mandate of cities and towns to prepare accurateresidential lists.

In the final analysis, Professor Abramson sums up the issuesbest: However the Court rules on the motion before it, it is certainly worth the attention of the District Court as a whole as to whether public confidence in the integrity of the jury system is undermined by a jury selection process that is not truly random but makes chances of being called vary according to the diligence of one's town in listing all residents.Abramson, Report, at 26.

In the subsequent sections, I describe in detail what is a"substantial" violation of the Act, what the duty to supplementthe source list comprises, whether the duty has been violated inthis case, and the remedy under the JSSA. Finally, I address eachof the objections raised by the government point by point.

a. What Amounts to a "Substantial" Violation of the Act?

A substantial failure under the Act is not a violation as towhich the defendant must prove prejudice, on the onehand,69 nor is it merely a technical violation of theAct's strictures, on the other hand.70 It is somethingin-between, which violates the letter and spirit of the JSSA. Thestatute plainly leaves it up to the courts to determine themeaning of "substantial failure to comply." See28 U.S.C. § 1867(d); United States v. Calabrese, 942 F.2d 218, 227 (3rdCir. 1991) ("Congress left the content of [substantial] largelyup to the courts," 942 F.2d at 227, citing House Report, 1968 U.S.C.C.A.N. at 1794 ("Your committee wouldleave the definition of `substantial' to the process of judicialdecision")).

b. Section 1863(b)(2)'s Duty to Supplement

(1) The Statutory Language

The JSSA requires that district court jury plans supplementdistrict source lists "where necessary to foster the policy andprotect the rights" of litigants to a jury that reflects a faircross-section of their community. 28 U.S.C. § 1863(b)(2). Thelanguage is that of an affirmative obligation to ensure selectionfrom a fair cross-section of the community. There is norequirement to prove causation or to identify the mechanism bywhich the underrepresentation occurs. There is no inquiry as towhether the underrepresentation was created by discrimination orby the choice of the potential jurors (in not registering tovote, for example, in a jurisdiction where voting lists areused). Rather, the obligation to supplement is triggered by anyset of facts which undermines the "policy" of the JSSA and the"rights secured by sections § 1861 and § 1862."28 U.S.C. § 1863(b)(2). Those rights include freedom from discrimination (§1862), as well as cross-sectional jury selection (§ 1861).

(2) Legislative History The legislative history of the JSSA is consistent with anaffirmative obligation to ensure a fair cross-section.71Before Congress enacted the JSSA in 1968, most jurisdictions usedthe "key-man system," which relied on "key men" in the communityto supply the jury commissioner with names of potential jurors.While the system had been criticized as capable of abuse, theSupreme Court had not found that the system qua system violatedthe Sixth Amendment. See Akins v. Texas, 325 U.S. 398 (1945);Smith v. Texas, 311 U.S. 128 (1940); see also Carter v.Jury Comm'n, 396 U.S. 320 (1970).

The Fifth Circuit in Rabinowitz v. United States,366 F.2d 34, 56-57 (5th Cir. 1966), however, took a different approach. Itsuggested that, even absent discriminatory intent on the part ofthe "key men" who did the jury selecting, the system had to beabandoned. The court noted that "the Constitution and laws of theUnited States place an affirmative duty on the court clerk andthe jury commissioner to develop and use a system that willprobably result in a fair cross-section of the community beingplaced on the jury rolls." Rabinowitz, 366 F.2d at 57(emphasis added).

Congress passed the JSSA in response to Rabinowitz, doing viastatute what the Supreme Court had chosen not to do through its constitutional analysis. See S. Rep. No. 891, 90th Cong.,1st Sess. 10-11 (1968) [hereinafter "S. Rep."]; H.R. Rep. No.1076, 90th Cong., 1st Sess. 4 (1968) [hereinafter "H.R. Rep."].The legislative history is extraordinary, reflecting severalimportant themes, which have perhaps been forgotten in theadministration of the JSSA:

First, Congress decried the underrepresentation of minoritiesin the "key-man" system, whatever the cause, whetherintentional discrimination, or the natural, evenwell-intentioned, tendency of the key men to draw upon theirlimited circle of acquaintances. H.R. Rep. at 4; S. Rep. at 10.The statute's goal was broad and remedial: "The defect that callsfor congressional action is that the representational goal ofjury selection is impaired when the methods used are haphazardor less than adequate to ensure fair selection from a fairsample." S. Rep. at 10 (emphasis added).

Second, even though Congress chose to use voter registrationlists as the default source list, it recognized theirinadequacies. It left it to the courts to define when aparticular voter list is so underrepresentative that it requiressupplementation, as in communities in which a substantialpercentage of the population has not registered to vote. S. Rep.at 16-17, 25. Third, and relatedly, Congress recognized that the fact that acitizen chose not to register to vote did not necessarily mean itwas appropriate to disqualify him or her from jury service. Theissue was not that potential juror's individual choice. Rather,it was the right of the defendant to a jury drawn from a faircross-section of the community; a goal that would be underminedif juries consisted exclusively of those "who have manifestedtheir civic interest by registering to vote."72 Handman,Underrepresentation of Economic Groups on Federal Juries, at207, 208.

Fourth, the standard for triggering supplementation wasintentionally broad. Both the House and Senate Reports state thatthe affirmative obligation to supplement is triggered wheneverthere exists "any substantial percentage deviation" between thesource lists and an ideal fair cross-section of the community, nomatter how that deviation came to pass. S. Rep. at 17 (emphasisadded); see also Handman, Underrepresentation of EconomicGroups on Federal Juries, at 205 ("Apparently, the only inquiryrelevant to supplementation is whether the prohibited deviationactually exists"). The definition of "substantial deviation" was left to the courts. S. Rep. at 17;73 H.R.Rep. at 3.

Finally, neither the language of the Act nor its legislativehistory indicates that Congress intended for the finding of aSixth Amendment violation to be a prerequisite to supplementationpursuant to § 1863(b)(2). After all, as described above, at thetime the JSSA was passed, Sixth Amendment law was very narrowlydrawn, focusing on intentional discrimination. It was not untilTaylor in 1975 that Sixth Amendment law diverged from thatapproach and focused on concerns for a cross-sectionaljury.74 (3) The District of Massachusetts Resident List Exception

Two questions may be raised in connection with the applicationof the statutory language to this case. First, one could arguethat Massachusetts has already met its burden of supplementationby choosing to use resident lists instead of voter lists. Second,the statute appears to be directed at the district court "Plan,"and not at the discretion of any given district court judge.

As described earlier, § 1863(b)(2) directs the district courtto supplement "voter lists" where their use produces jury veniresthat insufficiently capture a cross-section of the community.Pursuant to that provision, in 1989, our district switched toresident lists. See supra note 18. In 1992, the JSSA wasamended to reflect that change. See 28 U.S.C. § 1863(b)(2).

As to the first issue, the 1992 amendment (and Massachusetts'choice of resident lists) should not be read to have fulfilledthis Court's obligation to ensure selection from a faircross-section of the community. Section 1863(b)(2) refers tosupplementing by using "some other source or sources ofnames," implying that any single list, whatever it consists of,may not be sufficient. Moreover, as the legislative historydiscussed above suggests, the supplementation provision is concerned with achieving cross-sectional jury pools, nomatter what the original source list or what the form ofsupplementation. Accordingly, the better interpretation of thestatute is that the provision mandating supplementation of voterlists be read as mandating supplementation of resident listsin the case of the District of Massachusetts where those lists donot achieve the Act's underlying purposes. Indeed, § 5(b) of theJury Plan implies as much. It makes what is, in effect, a findingthat "numbered local resident lists submitted annually [to theOJC] . . . in accordance with Massachusetts General LawsChapter 234A includes all registered voters, supplemented by allresidents not registered to vote . . .," a finding that isplainly wrong in many Eastern Division cities and towns. JuryPlan § 5(b) (emphasis added).

This Court has previously had occasion to interpret theinterplay between § 1863(b)(2)'s supplementation clause andMassachusetts' use of resident lists: In Levasseur,704 F. Supp. 1158 (D. Mass. 1989), which predated the switch to residentlists, the defendants asked the court to require that potentialjurors be drawn from resident lists rather than voter lists. Ininterpreting § 1863(b)(2), the court distinguished betweensupplanting and supplementing source lists, declaring thatthe District of Massachusetts would need express permission fromthe reviewing panel of the Jury Plan before it could supplantvoter lists with resident lists. Id. at 1164. In other words, theCourt found that switching to resident lists was not akin tosupplementation pursuant to § 1863(b)(2), but a form ofsupplanting the statutorily provided source list with another.

Having established that Massachusetts' use of resident listsdoes not in itself fulfill the duty to supplement under the JSSA,the question is whether an individual judge has the authority toorder supplementation. Section 1863 also refers explicitly to aduty to supplement in the jury "Plan" rather than as a remedyordered by an individual judge in an individual case. However,the remedy section of the JSSA, § 1867, addresses a finding by anindividual court of a "substantial failure to comply with theprovisions of this title," calling for the court to "stay theproceedings pending the selection of a petit jury in conformitywith this title." 28 U.S.C. § 1867(d). To be sure, this languagecould suggest a stay in an individual case until the reviewingpanel formally amends the Plan, but such an interpretation is notthe only one. Surely, certain kinds of limited remedies, namelythose which do not fundamentally alter the "Plan" (the kind of"supplementation" and not "supplanting" that the Court referredto in Levasseur), are fully consistent with § 1867 and theCourt's supervisory authority. See infra Part III.B.2.e.

Indeed, the Massachusetts Plan on its face permits certainadjustments in individual cases. Section 11(d) of the Plan allows a court to direct the Clerk to draw a supplemental juryarray from the master jury wheel to be added to the regular arrayas necessary when additional names are "needed." Where the namesfrom urban and minority areas are not accurate where sending outsummonses to illusory addresses is nothing but an emptyformulation, plainly additional names — of real people at realaddresses — are needed in order to effect jury selection from areal cross-section of the community.

c. Have Defendants Proven a "Failure to Comply" WithoutSupplementation?

As described previously, the District's overall rate ofundeliverable summonses and nonresponses to summonses aretroubling; for the years 2001 through 2003, 12.4% of summonseswere returned by the post office to the federal JuryAdministrator marked "undeliverable," and another 12.2% ofsummonses received no response. In other words, for these yearsroughly one-quarter of all summonses mailed by the federal JuryAdministrator using the names and addresses provided by the OJCwere fruitless.

The District's rates of nonresponses and undeliverables wouldbe tolerable if they were uniform across the Eastern Division,but they are not. For example, among the group of summonsesmailed to addresses in the Town of Lexington from 2001 through2003, 3.7% were returned as undeliverable, and 5% were neverreturned (nonresponses). Meanwhile, among the group of summonses mailed to addresses in the City of Boston during thatsame period, 15.2% were returned as undeliverable, and 23% werenever returned (nonresponses). There are blatant differences inthe way cities and towns prepare the lists — how frequent, howcareful — which further undermines minority representation.

The government highlights the difference between undeliverablesand nonresponses. While the undeliverables involve wrongaddresses, the nonresponses may involve correct addresses withnoncooperative residents, though the data is not clear.Regardless, while this distinction may have some resonance withrespect to a constitutional analysis, it is largely irrelevant inthe context of the JSSA's affirmative obligations. As describedabove, the statute and its legislative history define the duty tosupplement voter lists, even though citizens may choose not tovote. Likewise, there should be a duty to supplement residentlists, even when citizens choose not to respond to summonses.

On their face, these disparities undermine the JSSA's policiesof uniformity and randomness; representation of given communitiesis "haphazard" in the language of the legislative history. Butthey cut even deeper into the spirit of the Act, insofar as theycontribute to the underrepresentation of African-Americans, notto mention urban and poor Eastern Division residents on EasternDivision jury venires. For instance, for the Eastern Division's 21 most heavilyaffluent and white towns, the average undeliverable rate was only5.8% for the years 2001 through 2003. Meanwhile, for the threeBoston neighborhoods that make up 76% of the city'sAfrican-American population and 38.7% of the Eastern Division'sAfrican-American population — Roxbury, Dorchester and Mattapan —the undeliverable rate was 11.5% and the nonresponse rate was analarming 35.6% for the years 2001 through 2003. These three urbanneighborhoods are also heavily poor, with 23.7% of their combinedpopulation living at or below the poverty line. In contrast, theaverage poverty rate at the time of the 2000 Census for theEastern Division as a whole was 9.3%.

Defendants also show that undercounting of residents is thegreatest in Suffolk and Middlesex Counties, home to a majority ofthe Eastern Division's African-American residents (roughly 64%).Indeed, in 2001, the resident list count of the voting-agepopulation of Suffolk County differed from the Census estimate bynegative 13.51%.75

It is hard to imagine a situation more worthy of remedialaction pursuant to § 1863(b)(2)'s supplementation provision.Admittedly, the federal court has no authority to order the city and town clerks to prepare their resident lists morepainstakingly — the OJC-provided single numbered resident listscome to the federal court "as-is." But that does not absolve us;rather, the JSSA specifically mandates mechanisms for redressingdeficient source lists.

d. Does Failure to Supplement the Resident Lists Amount toa Substantial Statutory Violation?

The government argues that, even if the federal JuryAdministrator's failure to supplement resident lists amounts to aviolation of § 1863(b)(2)'s mandate, that violation is not"substantial." I disagree. As stated above, "substantial" ismeasured "against the underlying principles of the Act."Calabrese, 942 F.2d at 227; see also Brummitt,665 F.2d at 528; Gurney, 393 F. Supp. at 701-02 (substantialnoncompliance is "a patent violation of the spirit and letter ofthe Act"). By that measure, this violation is significant. It isnot clerical, incidental, or inconsequential; rather, it strikesat the core of what the JSSA was intended to achieve. Cf.United States v. Nelson, 718 F.2d 315 (9th Cir. 1983)(permitting a summoned juror who mistook his duty date to serveas a "volunteer" was technical violation); United States v.Tarnowski, 429 F. Supp. 783 (E.D. Mich. 1977) (failure to abideby district's jury plan requirement that the master jury wheel beemptied and refilled every two years was technical violationbecause time is not the essence of the Act); Gurney,393 F. Supp. 688 (failure to follow district's jury plan requirement that the names of residents from one countybe transferred to a different division in order to comply with adivision-modification order was technical violation).

Finally, failing to supplement deficient source lists is nottrivialized by this Court's finding that the underrepresentationidentified by defendants' data does not constitute a SixthAmendment violation. If Congress had trusted that constitutionalreview would ensure truly cross-sectional jury pools, they wouldnot have had reason to codify a fair cross-section ideal andenact mechanisms for its enforcement. Indeed, even if thelongstanding pattern of underrepresentation of African-Americansin Eastern Division jury pools — a pattern that has beencondemned by every court that has dealt with it, all the whilefinding it lawful — is not constitutionally actionable, thedistrict court's failure to take affirmative steps to improve thesituation is actionable under the statute.

e. Supervisory Powers

While I believe that I have full authority to make certain ofthe adjustments that the defendants request as a matter ofstatute, and under this District's Plan, there is another sourceof authority, namely this Court's supervisory authority. "In theexercise of its supervisory authority, a federal court `may,within limits, formulate procedural rules not specificallyrequired by the Constitution or the Congress.'" Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988), quotingUnited States v. Hasting, 461 U.S. 499, 505 (1983). To be sure,my supervisory power is not unfettered; it "is applied with somecaution even when the defendant asserts a violation of his ownrights." United States v. Payner, 447 U.S. 727, 734-35 (1980).

The Supreme Court has explicitly dictated the three purposesunderlying the use of the supervisory powers: "to implement aremedy for violation of recognized rights; to preserve judicialintegrity by ensuring that a conviction rests on appropriateconsiderations validly before the jury; and finally, as a remedydesigned to deter illegal conduct." Hasting, 461 U.S. at 505.Plainly, the remedies sought by these defendants are in responseto a violation of "recognized rights." Moreover, these remediesgo to the very core of the system's integrity. Nor do theyconflict with any other constitutional or statutory provisions.Nova Scotia, 487 U.S. at 254 ("even a sensible and efficientuse of the supervisory power . . . is invalid if it conflictswith constitutional or statutory provisions") (internalquotations omitted).

Indeed, long before the JSSA and the development of the SixthAmendment, the Supreme Court has regularly invoked the federalcourt's supervisory authority to address jury selection issues,including discrimination claims. See Thiel v. Southern Pac.Co., 328 U.S. 217, 220-221 (1946) (condemning the exclusion of"daily wage earners" from the venire, noting, "the choice of means" by which a jury is chosen fairly "rests largely in thesound discretion of the trial courts and their officers" so longas that judgment is "guided" by pertinent statutory provisions);Ballard v. United States, 329 U.S. 187, 192-93 (1946) (invokingfederal court's power of supervision over the administration ofjustice and reversing conviction of female defendant who wasconvicted by a jury consisting of no women).

In addition, for two defendants, death is a possiblepunishment, and for the three others, life imprisonment. Thecircumstances are all the more appropriate for exercising mysupervisory powers to fashion a remedy for the Eastern Division'sunrepresentative jury pools. See, e.g., Fay v. New York,332 U.S. 261, 287 (1947) (federal courts may exercise supervisorypower over the selection of federal jurors "to reflect . . .notions of good policy" and not simply constitutional minimums);United States v. Whitley, 491 F.2d 1248, 1249 n. 1 (8th Cir.1974) (same).

f. Remedy

Defendants have moved for dismissal of the indictment, or,alternatively, for a stay while the District Court corrects theproblem. See Corrected Second Declaration of Andrew A.Beveridge in Support of Defendant Branden Morris' Motion ToDismiss, Defendants' Exhibit 6, docket entry #306, filed February18, 2005; see generally Ellis and Diamond, Race, Diversity, andJury Composition, at 1055-58.

I decline to dismiss because I believe that the statutoryviolation can be redressed with the measures I describe. Thus, Iam effectively choosing to stay the jury selection proceedings,but the stay is a nominal one. The Federal Jury Administratorconfirmed (in open court) that adequate remedial measures can becompleted in time for the scheduled trials.76 Defendantshaving been detained pending trial since 2002, it is imperativethat a remedy is fashioned in a timely manner.

Accordingly, I invoke the statutory remedy provided in §1867(d), as well as my supervisory authority over jury selectionin my session. From this platform, I will instruct the federalJury Administrator to conduct a targeted second mailing ofsummonses to account for the numbers of undeliverables no matterwhere they occur. As defendants describe it: The Jury Administrator plans to mail out approximately 2,000 juror summonses for each of the trials in this case. For all summonses returned to the court as `undeliverable,' the same number of new summonses should be mailed to residents who live in the same zip code area as the undeliverable summons. The replacement summonses could be randomly drawn by computer programming. The Federal Jury Administrator should submit the names and address of the "undeliverables" to the OJC, and the OJC should instruct the cities and towns to remove these names and addresses from their resident lists.77Defendant Jonathan Hart's Motion to Supplement The JurorSelection Process, docket entry #382, filed July 15, 2005 at 1[hereinafter "Defendants' Motion to Supplement"].

With respect to nonresponses, I will not order a procedure,such as home visits, for determining whether these are realaddresses. The administrative burden would be too substantial.Moreover, as I have suggested, such steps are unnecessary.Whether the reason for the nonresponse is that the address wasinaccurate, or that the resident chose not to respond, isirrelevant. The issue is not the citizen's choice to be includedin the jury selection system; it is the defendant's right to afair cross-sectional jury pool. Thus, I will order "follow-up"questionnaires to be sent to the nonresponders, but if therecontinues to be no response, I will order the Jury Administratorto treat these addressees as undeliverables in the fashiondescribed above.

I will also instruct the federal Jury Administrator to takeother measures to help the OJC improve the accuracy of its single-numbered resident list; a dialogue that should have begunyears ago when the District Court first became aware of theshortcomings of the resident lists.

I will also submit this opinion and Professor Abramson'sreports to the District Court, and the statutory reviewing panelto consider other options, including the "weighted mailing" and"under yield" approaches, for a more permanent solution.

While defendants' proposal for weighted summonsing may well bea fitting approach for the District Court to consider in thefuture, it is not necessary in the case at bar, in the light ofthe other remedies I have selected. In addition, since the"weighted mailing" or "under yield" approaches would involveadjustments to jury selection procedures, it may be moreappropriate to submit this issue to other court decisionmakers.As Chief Judge Young announced when asked to invoke hissupervisory powers to significantly modify the Jury Plan forselecting jurors, there should be reluctance for a single judgein a multi-judge district to unilaterally alter the standing juryplan in this fashion. See Levasseur, 704 F. Supp. at 1164 n.10. In contrast, the remedy I have ordered,geographically-targeted second-round mailing of summonses tocompensate for specific undeliverables and nonresponses, does notrequire altering the Plan at all, and thus does not present theprudential concerns faced by Chief Judge Young in Levasseur,704 F. Supp. at 1164 n. 9. See Defendants' Motion toSupplement. g. Afterward: The Government's Objections to the ProposedRemedy

After this decision had been submitted in draft form to theparties (and the public), the government noted its objections.Although the United States Attorney's office agreed with theCourt's conclusions that there was no constitutional violation,that the Act's proportionality requirement was not violated, thatthe weighted mailing approach should not be implemented by asingle judge, it disagreed — sadly, rather vehemently — with eventhe limited remedy proposed here: It argued that whenever asummons is returned as "undelivered," whenever there is noresponse after at least one subsequent mailing, this Court lackedthe authority to send out additional summonses to others withinthe same zip code. Put otherwise, there is essentially nothingthis Court can do (except the usual hand wringing) to amelioratethe unrepresentativeness of Eastern District juries in thiscapital case. The government's position, troubling in itsimplications, is worth addressing in detail.

First, the government claims that only the Clerk, inconjunction with the Chief Judge, has the authority to implementeven this remedy under the Jury Plan. Not so. The Chief Judgeagreed that the steps I have taken are entirely consistent withthe Jury Plan. (Transcript, August 31, 2005, at 71.) Second, the government claims that the remedy I have proposedconflicts with Professor Abramson's position.78 Again,not so. Professor Abramson noted: 1. I agree with and support the Court's proposed remedy. Under both 28 U.S.C. 1867(d) and the Court's inherent supervisory powers over jury selection, the Court has the authority, and arguably the duty, to issue a remedy tightly and narrowly tailored to failures of jury selection in a particular case to conform to the policies of the Jury Selection and Service Act. This kind of narrowly tailored remedy, specific to a particular jury selection, is precisely what the Court has indicated it will order. 2. The proposed remedy is indeed geographically based, and does not target prospective jurors on the basis of their race. This is crystal clear because the Court has indicated it will send out additional summonses to replace every undeliverable summons, and every instance of nonresponse, no matter what zip code the undeliverable summons or nonresponse comes from. Indeed, the Federal Jury Administrator will have no knowledge of the race of persons to whom a second mailing is made. 3. The proposed remedy does not alter the District's Jury Plan one iota and is thus different from a "weighted" jury selection. The Court is scrupulously following the Jury Plan and doing nothing more than attempting to fashion a remedy to achieve the paramount purpose of the Jury Plan, which is to summons persons randomly from a cross section of the community. 4. My initial report did not advise the Court that remedies such as these, or indeed weighted jury selection proposals, were a violation of the Jury Plan or the Jury Selection and Service Act. Rather, my report attempted to draw the Court's attention to arguments that have been made on both sides of the issue as to whether weighted or stratified jury selection is consistent with the policy of random jury selection mandated by the Act and by the Plan.Letter of Professor Abramson, dated September 1, 2005, document#428.

Third, the government mischaracterizes the remedy ordered here,conflating it with the race conscious remedies that other courtshave tried. This supplementation is not race-based; the secondset of summonses will be mailed to addresses on the basis oftheir geographic location, and not on the prediction that theybelong to prospective jurors of a particular race.79 If asummons is returned from one of the more homogenous zip codes, asecond summons will be sent to that area, without regard to the race of the addressee. No one will be overlooked. At the sametime,"(a) key feature of this approach is that if a minoritygroup clusters in particular locations" — as is largely true inthe Eastern Division — "the system will correct forunderrepresentation of that minority. The correction will occurautomatically." Ellis and Diamond, Race, Diversity, and JuryComposition, at 1057.

Fourth, a second round of summonsing does not jeopardize therandomness of the jury selection process, as randomness isdefined by both the JSSA and the Jury Plan. See28 U.S.C. § 1861; Jury Plan, at ¶ 5(c). The government maintains that thesedocuments strictly define randomness as the method of selectingnames from the Master Jury List to create the federal jury pool.Once the computer generates the federal list from the OJC'sMaster Jury List, summonses must be sent out to the names onthose lists and only those names, no matter how inaccurate theyare. Any other procedure violates the law.

The government's position is extraordinary. It elevates oneconcern of the Act over all others. The Act by its terms focusesnot merely on the selection process — that it be "at random" —but also on the source of the names, "a fair cross-section of thecommunity." 28 U.S.C. 1863(b)(3). The legislative historypointedly suggests that Congress was as concerned with therepresentativeness of the source lists, the "fair cross-section"issue, as with the means of selection. To make the argument that the Act's purposes are fulfilled even if the source list isinaccurate, and summonses are sent to nonexistent persons, or thewrong addresses, is to adopt an empty formalism. It is a randomselection from phantoms.

To the extent Congress was concerned with the means ofselection, the focus was not statistical perfection. Indeed, theorigins of the JSSA lie in attempts to dismantle the key mansystem. "Random" selection means the absence of any arbitraryattempt to include a particular class of persons. United Statesv. Davis, 518 F.2d. 81 (10th Cir. 1975) ("The essence ofrandomness . . . is not number, but the absence of any arbitraryattempt to exclude a class of persons from the jury").

Finally, as Professor Abramson notes, this remedy would in factincrease the randomness of the selection process because eachperson — each real person not each phantom — would have more ofan equal chance of receiving a summons. As Professor Abramsonnotes: While there may be a certain strict logic to the government's interpretation of the meaning of randomness, it is a position that would render an individual federal judge presiding over a jury selection virtually powerless to fashion a remedy, when as here in a particular case, there is evidence that the paramount policy of random selection which inspires both the Act and the Plan will not be met.Abramson letter, supra.

The remedial procedure will be as follows: The Jury Administrator will create a supplemental list ofjurors from the names on the jury wheel that are not necessaryfor this year's jury selection. (Each year there are extra jurornames on the federal list that are not called up for the monthlyvenires.) He will send out additional summonses andquestionnaires to individuals on that supplemental list toreplace undeliverable or unresponded to summonses from the samezip code. Assuming these questionnaires are answered, theadditional names will be merged with the names from the initialmailing, and then randomized into a single list.

Again, Professor Abramson summed it up best,"At some point, thelife of the law is justice, not abstract logic, and I believe theCourt's carefully and limited remedy captures the better meaningof random jury selection in this case." Abramson letter,supra.80 IV. CONCLUSION

In light of the District Court's failure to direct the federalJury Administrator to supplement deficient resident lists, as isrequired by the JSSA, § 1863(b)(2), the jury selection of thedefendants is stayed pursuant to § 1867(d) until the measuresdescribed above are implemented. The Court's orders, however, areto be immediately implemented. The Court has every confidencethat the remedial measures will be effected by the scheduledtrial date.81

One thing is clear: This Court cannot — yet again — return tobusiness as usual and cast a blind eye to real problems with the representation of African-Americans on our juries, andthe crisis of legitimacy it creates.


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