County jury pools ruled unconstitutional

By DAWN HOBBS

NEWS-PRESS STAFF WRITER

The way jury pools are selected in Santa Barbara County is unconstitutional because Latinos are significantly and consistently underrepresented, a judge determined Wednesday.

Superior Court Judge Frank Ochoa said the disparity is not conscious discrimination but rather a flaw in the county's system that he wants fixed.

"Clearly, in terms of a statistical review, Hispanics are not represented in a fair and reasonable fashion in jury pools in relation to the number of Hispanic persons eligible to serve on a jury in the community," Judge Ochoa said after an often-contentious all-day hearing.

The finding raises the question of whether backlogged jury trials may be placed on hold until the selection process is remedied, and whether verdicts in past cases can be challenged.

Data presented in the case revealed that the percentage of Latinos eligible to serve on a jury has dwindled incrementally each year because of the current system, the judge noted.

"What is the end result?" Judge Ochoa asked, suggesting Latino representation would continue to decrease if the system goes unchecked.

Any ethnic underrepresentation is a violation of the requirement under state and federal constitutional law that jury pools be a fair cross-section of the population.

Under the current system, potential juror names are selected from voter registration and Department of Motor Vehicles lists. Eligible people are then sent questionnaires. If they do not return the questionnaires -- whether the recipients are out of town or threw the forms in the trash -- they are dropped from the potential juror list and never receive a jury summons.

Judge Ochoa suggested the county go to a "one-step" process, which would mean forgoing the questionnaires and sending out summonses for jury duty. Several counties in the state already use the process.

However, Jury Commissioner Gary Blair and his attorney, David Nye, may reject changing the selection process and instead appeal the judge's decision.

"We respectfully disagree with the judge's findings, and we are exploring our options," Mr. Nye said. "The options I see right now are to (appeal) or look into modification of the system."

Mr. Nye and Mr. Blair declined further comment.

If they appeal, the effect on jury selection for upcoming trials is unclear.

The jury composition issue was raised by defense attorney Robert Sanger in the murder trial of Benjamin Ballesteros in June. Judge Ochoa sent home all 134 people in the jury pool for that trial when only 9 percent identified themselves as Latino. The judge then ordered the jury commissioner to turn over two years' worth of jury pool data for analysis.

"The judge's decision is very important in this case, with the defendant being a young Hispanic man, but it's also important from the point of inclusion of our community in the process," Mr. Sanger said.

As for whether defense attorneys would attempt to overturn past verdicts, Mr. Sanger said the issue typically must be raised before a jury is sworn in.

The judge's decision has been a long time coming for Mr. Sanger. He raised this issue 20 years ago with another defense attorney, Bob Helgesen. In 1983, potential juror lists were taken only from voter registration records. The defense attorneys successfully argued that Department of Motor Vehicles lists should also be used.

He again took up the issue 10 years ago when he attacked the grand jury system with Michael Ganchow of the Public Defender's Office, who was also by his side Wednesday. Mr. Ganchow filed a similar motion challenging the jury selection process in another murder case that has been put off until January.

The analysis of two years of jury data found that if juries truly represented the ethnic composition of adults in the community eligible to serve, at least 14 percent of those serving would be Latino, according to John R. Weeks, who was hired by Mr. Sanger. Currently, juries are about 7 percent to 8 percent Latino. Mr. Weeks suggested the disparity was a software problem.

In response, the county hired its own expert, who claimed the findings were the result of faulty science. John E. Rolph found only a minor disparity, which he said was due to factors outside the control of the jury commissioner.

For instance, he stated that of the questionnaires sent to potential jurors, there was at least a 50 percent nonresponse rate from Latinos, compared with a 34 percent non-response rate from non-Latinos.

On Wednesday, Mr. Nye argued it is not up to the jury commissioner to get people to respond to questionnaires. He repeatedly stated that whatever disparity exists is not due to intentional discrimination.

"This was clearly an unconscious, unintentional feature (of the system)," the judge said. "But it is still improper and it leads to an underrepresentation, which is statistically significant in this case. It has not been demonstrated that there is any justification for that feature within our jury selection system, knowing that it causes underrepresentation."

There are statutory provisions the jury commissioner can take in regard to people who don't respond to the summons, the judge said.

Mr. Sanger did not have an explanation for the low response rate among Latinos. The data showed that Latinos did not move more frequently than non-Latinos, he said, and it is possible that the questionnaires are received in households where not everyone reads English and are discarded before they get to the intended recipient.

He suggested that summonses should be bilingual.

"We just don't know," Mr. Sanger said. "But the answer is to correct it. I think going to the one-step system would be so much better because you'd get an actual summons saying you are commanded to appear.

"It can all be done by mail," he said. "They (the county) brought up that it's not cost-effective, but you can't measure constitutional rights in cost-effective terms."