Jury legality hinders cases

Trials delayed after ruling says hispanics lack representation.

By David Downs
The South Coast Beacon

A battle over the legality of local juries has caused months-long delays in a capital murder trial, two homicide prosecutions, and at least 10 other criminal cases in Santa Barbara Superior Court this winter.

Hispanics cannot get a fair hearing because juries under-represent them by about 50 percent compared to the population at large, Santa Barbara Superior Court Judge Frank Ochoa ruled Nov. 12.

The verdict could have far-reaching implications for those already in jail, and for those like Michael Jackson, who await trial.

“It has the potential for causing chaos in the courts,” said Public Defender Tom Allen. “If there were a stay order granted in every case that is set for a jury trial, in every case where an attorney raises it, it’s like putting a stopper in a funnel.”

But Jury Commissioner Gary Blair and District Attorney Tom Sneddon disagree with Ochoa and will take their appeal to a higher court in February.

“I am deeply concerned about the negative impacts on our cases which have and will be created by Judge Ochoa’s ruling,” said Sneddon in a faxed statement Nov. 17. “This tends to create a rather unseemly, contradictory and uncertain situation to the public and to those working within the system.”

The landmark ruling

Ochoa ruled local juries unconstitutional during the 2003 trial of Benjamin Ballesteros, confessed strangler of 17 year-old Anita Laura.

Defense attorney Robert Sanger represents Ballesteros and filed the motion, saying his Hispanic client could not get a fair jury.

“There’s always been a comment that juries are older people who are often retired, or county employees, and you don’t have diversity,” said Sanger, a longtime critic of the local jury selection process. “(In the 90’s) we found that there had been no Hispanics on the Grand Jury for 12 years. Not a single person.”

Still, hard numbers on the demographics of local jury pools did not surface until the Santa Barbara’s Public Defender’s office —also critical of the county jury selection process — won disclosure in court this year.

“We’ve been telling (the jury commissioner) for the last 20 years that his system sucks. He pretends not to have heard it,” said Public Defender Michael Ganschow. “He obstructed, he resisted, he did everything he could not to release the information.”

Ganschow won the release of the jury commissioner’s information, which includes data like who was called in for jury duty, who showed up and who actually served. But it was Sanger in the Ballesteros case who took the new information and ran with it.

Sanger contacted San Diego State University professor John Weeks, who has worked on minority under-representation cases throughout California for 20 years.

“I was genuinely shocked,” said Weeks. “I had to run my numbers a few times because I thought, ‘there has to be a mistake.’ Never had I come across such a large disparity in a California county — not with regular juries.”

According to 2000 census data, Hispanics comprise a conservative 15 percent of the jury-eligible adults on the South Coast. Weeks found that less than 8 percent of those summoned to court were Hispanic, and even fewer Hispanics made it onto juries.

The Jury Commissioner’s attorney, David Nye, said the under-representation is unfortunate, but it is not unconstitutional. Nye filed a writ with the Court of Appeals in Ventura to stay Ochoa’s ruling and restore faith in the system.

The Appeals Court approved the stay in early December, and “it’s like (Ochoa’s) ruling never happened,” said Sneddon. But, he conceded, other judges could rule independently of Ochoa after viewing Sanger’s evidence. Many have, and the success of the appeal is by no means certain.

“There is no black and white line, and that is a part of what is so frustrating about this process,” said Nye. “Both state and federal cases have found disparities much higher than (Santa Barbara’s) that do not rise to the level of constitutional disparities.

“We want them to realize that this is an ever-increasing issue on the South County,” he said. “It’s kind of brought the system to a bottleneck and we’re hoping the appeal can clear it up.”

Falling through the cracks

The problem with the county’s system, said Weeks, is that it rewards people who ignore the courts and creates a select group of people who always serve.

To select juries, a contracting firm called ACS gathers a 230,000-name list of DMV records and voter registration rolls for South Coast residents.

ACS representative Steven Andrews said Santa Barbara County then uses a rare two-step system that begins with sending a questionnaire – followed by a summons – to everyone on the list.

Those who do not respond to the questionnaires, or those who send them in late, are removed from the master list forever and do not receive a summons, said Weeks and others.

This makes the local system akin to hanging up on a telemarketer and never having another one call. Most counties forgo the questionnaire and simply use a summons.

“The reason Hispanics are under-represented is because the non-response rate is 50 percent higher than non-Hispanics,” Nye said.

Sanger, Weeks, Ganschow and others say that is where the problem lies.

“You’re supposed to go out and get them,” said Sanger. “You’re supposed to make them come in.”

Nye, the Jury Commissioner’s attorney, said it’s too expensive to follow up on those who don’t return the first mailing.

“When you get down to it, it really is a volunteer system,” said Nye. “That’s really the way it is and it’s unfortunate.”

South County Public Defender Ganschow said it’s not unfortunate – it’s unconstitutional.

“Of the 230,000 names, only 16,000 pass Gary Blair’s jury eligibility test,” he said. “The system is broken.”

Nye said outreach and education reforms are planned, but budget issues will delay them.

Seeking balance

Many say it is time for reform now.

Sneddon faxed a letter to Santa Barbara County Superior Court judges Nov. 17, advocating immediate review of the jury selection system. His opinion echoes that of judges, defense attorneys and the public defender’s office.

“Judicial council warning from 1996 apparently heeded by our neighbors to the north and south, and the majority of California’s county judicial selection systems, were ignored here,” Sneddon said. “Whether the current system meets constitutional mandates or not … (it) should have been addressed long ago.”

“It is clear from the testimony presented to Judge Ochoa that Santa Barbara is laboring under an antiquated and judicially disfavored system,” Sneddon said.

More than a dozen states across the country will debate measures for more diverse jury pools in 2004, Allen said, and California should be one of them.

Simple economics bar more than just Hispanics from fair representation, he said. Several states approved more money for jurors in financial hardship beginning January 1, 2004.

Others are offering ways for citizens to delay jury duty if they promise to come in at a different time.

“The jury is the ultimate decider of these cases. You ask anybody who knows anything about criminal law — it’s 95 percent of what happens on these cases. When a select group of resources come back time and time again it is going to make a big difference, as opposed to having a cross-section of the community,” Ganschow said.

“The bottom line is that you want — under the Jeffersonian system — a fair cross section of the people within your community to sit as jurors,” said Allen. “And if there’s a big discrepancy then it has to be changed.”

The appeal to contain Ochoa’s landmark ruling goes before the Court of Appeals in Ventura Feb. 11.