ATTICUS Fall 2024 - NYSACDL

Beyond Batson:

The Hidden Hand - How Court Administrators Keep People of Color Off Juries

This is a story of how court administrators keep people of color off juries before they can ever make it to the courtroom. Atticus readers are all too familiar with the numerous times prosecutors have been caught trying to use peremptory challenges to improperly strike people of color from juries, in violation of Batson v. Kentucky. (1) And there has been much publicity about the history of negating the power of unbiased jurors of color by doing away with unanimous juries, during the early Jim Crow period in Louisiana (2) and Oregon, and now, for the sentencing phase of Death Penalty trials in Florida. In order for the court system’s railroad to smoothly function, juries must be composed of people who reflexively credit police testimony and convict defendants that prosecutors tell them are guilty – because prosecutors and police are who protect “us” from “them.”

A lesser known, but no less damaging tactic to rig juries occurs before a prosecutor ever gets to improperly use a peremptory challenge. It is the misuse by court administrators of the hardship excuse. The two examples discussed here are chosen because of the author’s familiarity with them acquired in the course of capital prosecutions in the Federal District Court for the Eastern District of New York and New York State Court in Brooklyn. In one case, keeping Latinos and immigrants off of juries and in the other, young Black men. Undoubtedly, further research would reveal many other examples. Such hidden practices are particularly destructive of the right to a fair trial because, unlike those that occur in open court and which defense counsel can, therefore, confront, the behind-the-scenes machinations of court administrators are specifically designed to avoid such scrutiny.

In 2007, along with my colleagues Peter Tomao, I represented Wilver Lopez, accused of being a member of the Salvadorian gang MS-13 in what was the first case in the Eastern District’s Central Islip courthouse where the government sought the death penalty. (3) We argued that our client could not get a fair trial in Central Islip because of the jury composition there. The Eastern District includes 3 counties in New York City; Kings (Brooklyn), Queens and Richmond (Staten Island), and two counties east of the City, Nassau and Suffolk. Jurors selected for criminal trials in the Central Islip courthouse were disproportionately made up of residents of Suffolk County where Central Islip lies. Studies of general attitudes towards immigrants demonstrated that Suffolk residents held a greater degree of bias against Latin American immigrants than those in the other counties of the Eastern District. A Newsday/NY1 poll found “Suffolk County has the highest percentage of residents in the state who have negative opinions about undocumented immigrants…. The survey found that Suffolk is the only county in New York where more registered voters think immigrants in the county have had a negative impact on their communities rather than a positive impact.” The poll found that 35% of Suffolk residents felt negatively about the immigrants, compared with 13% in New York City. A Marist poll found that only Suffolk residents made immigration their number one concern, at a rate three times greater than the state as a whole. Census figures showed that jurors drawn for the Central Islip courthouse significantly underrepresented the Latino population of the Eastern District. (4)

Theoretically, the jury pool for the Central Islip Courthouse, like that of the Eastern District’s other courthouse in Brooklyn, consisted of people called at random from the entire Eastern District. So, how did the court administration manage to so skew the composition of actual juries? The device was both ingenious and simple. All those called for jury service in Central Islip received “Federal Court Jury Service Information” brochures – while those called for service in Brooklyn did not. The brochure instructed all those called for service, under the headings “REQUEST FOR EXCUSE OR POSTPONEMENT,” and “HARDSHIP EXCUSE/ POSTPONEMENT,” that anyone for whom travel to the court would pose a “serious transportation problem” is eligible to be excused and receive a later summons for jury duty at the court closer to their home. Travel hardship was defined as a trip from home to court taking more than 75 – 90 minutes. The brochure then stated that the Long Island Rail Road trip from New York City to Central Islip takes about 75 minutes. That does not include the time it takes to get from one’s home to the train station or from the train station to court. Therefore, everyone coming by public transportation could be automatically excused as well as scores of those driving. Of course the time to travel by train in one direction was the same as in the other, but no such automatic hardship excuse was offered in the Brooklyn court.

Thanks to Peter Tomao’s meticulous research and data collection on one of his prior Central Islip cases, we were able to demonstrate the devastating effect of this “hardship excuse” on achieving a fair jury. Of the 600 jury pool members summoned to the courthouse, 104 were from Kings County, 102 from Queens, 29 from Richmond, 156 from Nassau and 190 from Suffolk. Travel hardship requests that courts granted to this pool by county were: Kings 48, Queens 28, Richmond 15, Nassau 3, Suffolk 0. The jurors summoned to the Central Islip courthouse on the first day of jury selection, by county, were: Kings 3, Queens 14, Richmond 0, Nassau 41, Suffolk 62. The panel actually sent to the courtroom contained: Kings 2, Queens 12, Richmond 0, Nassau 33, Suffolk 55. So, although the initial pool contained more residents of New York City (235) than of Suffolk (190), the panel that was sent to the courtroom for jury selection contained three and a half times as many Suffolk residents as New York City residents. While we could not predict that our client’s jury pool would be identical, there was no reason to believe it wasn’t typical.

Similarly, there was no reason to believe that the race/ethnicity data of jurors from the earlier trial was also not typical. Of the 288 venire members on the Clerk of the Court’s report, only 6.17 identified as Hispanic. Of the 55 sent to the courtroom, only one (1.96%) identified as Hispanic. Census data for the Eastern District showed a Hispanic population of 1,474,698. Only a small portion of those, 181,416 lived in Suffolk. The great majority, 1,141,304 lived in the three New York City counties. A further indication of attitudes and biases towards immigrants was reflected in the fact that 11.2% of Suffolk residents were foreign born, while 46.1% of Queens residents and 37.8% of Kings residents were foreign born.

So, the automatic hardship excuse worked fiendishly well to deny Latino and immigrant defendants in federal court in Central Islip a jury of their peers. The Court, Judge Leonard Wexler, accepted our arguments and transferred the place of trial to Brooklyn. In so doing he implicitly acknowledged the risks of a biased jury had he kept us in Central Islip. But he also eliminated a potential appeal issue that could have led the Second Circuit Court of Appeals to scrutinize Central Islip’s Jury Service Information brochure and its blatantly discriminatory intent and effect – An appellate review that could have resulted in the public damning of the practice and a resulting order from the chief judge of the Eastern District to end it. (5)

Court administrators in state court in Brooklyn also devised a similarly simple and nefarious way to limit some people of color from jury service. Throughout the later part of the twentieth century, Black participation in Brooklyn jury pools had steadily grown; first through voter registration projects during the Chisolm and Jackson presidential campaigns, and then through the expansion of the jury pool beyond registered voters, to draw on licensed drivers and government benefit recipients.

In 1998, while representing Darrel Harris in what would be the first capital trial after New York brought back the death penalty (6), my Legal Aid colleagues and I were concerned with ensuring that the special jury pool that would soon be empaneled for the trial, contain a fair cross section of Brooklynites. Prior to the special panel’s appearance date, a visit to the very large central jury room revealed scores of people waiting to be sent out to various courtrooms for jury selection. And although there were a significant number of people of color among them, there was a marked absence of young Black men.

This was a time when the NYPD’s stop and frisk program was revving up. NYCLU statistics showed that literally most young Black men in the city had been stopped by the police for no reason. (7) They were routinely told to empty their pockets and if even a small amount of marijuana was produced, they were arrested on the trumped up charge of having drugs in the open and then spent days in police lockups or city jails. (8) Prosecutors did not want such people, who had been dishonestly mistreated by the NYPD, evaluating police testimony. So, rather than having to count on a judge granting a challenge for cause or having to use up one of their peremptory challenges, it would be much easier for the prosecution if these young men never made it out of central jury.

We met with Jon Besunder, Sr. to inquire about this anomaly. Mr. Besunder was the Kings County Clerk, the Kings County Jury Clerk and the Kings County Jury Commissioner – all at the same time. He controlled who got summoned for jury duty, who got excused and what procedures his staff followed in producing panels for the trial courts. He was also the father of Jon Besunder, Jr., deputy bureau chief in the Brooklyn DA’s homicide bureau – which was seeking to have our client executed. Asked to explain the absence of young Black men, he stated that his office believed it would be an undue hardship to ask anyone who was unemployed and said they were engaged in the important work of finding a job, to take time out from the job hunt, to serve on a jury. So, they excused many unemployed people which just happened to include a lot of young Black men. We strongly believed this rationale was pretextual.

Harris’s jury, we deployed a number of Legal Aid staff to monitor Central Jury the entire time the special panel was processed; ready to document and testify if the bogus hardship excuse or other discriminatory tactics were employed. With the jury clerks now knowing that this was what we were watching for and that we would raise it with the trial judge or, if need be, on appeal, the automatic excusing of job seeking, unemployed young Black men did not happen. But just as in the Central Islip case, while the racist practice was stopped momentarily for the benefit of a single defendant, court administrators dodged the bullet of a broader inquiry into their discriminatory practices that could have led to ending them. (9)

The type of devices court administrators in Central Islip and Brooklyn used to eliminate jurors of color are but typical instances of a larger and long term history. While Jim Crow laws in the South maintained a de jure system of racial discrimination, the Northern version has long been Jim Crow sub silentio. Like realtors steering unwitting prospective home buyers to segregated neighborhoods which then results in segregated schools, the people orchestrating these practices know exactly what they are doing. And they rely on escaping public awareness to continue getting away with them. Some have labeled such practices part of the new Jim Crow, but they really have been around just as long as the old one.

© Russell Neufeld 2024

1 476 US 79 (1986). See, Accountability NY Discrimination Complaints at accountabilityny.org .

2 Thomas Aiello, Non-Unanimous Juries, 64 Parishes, Nov. 15, 2021.

3 United States v. Wilver Lopez, 04-cr-939(LDW).

4 All data citations are contained in Defendant’s motion to change the place of trial. Lopez, Docket No. 220.

5 The death notice was withdrawn by the next administration’s attorney general due to gross government misconduct. (See, R. Neufeld, The Dopey Tapes, Atticus, Fall 2011). The case was resolved through a plea agreement. Following the case resolution, at a meeting with the Chief Magistrate Judge for the Eastern District, she committed to correcting the Central Islip travel hardship policy. However, that did not happen and the discriminatory policy remains in the current juror brochure.

6 Darrel Harris was convicted and sentenced to death. The death sentence was overturned on appeal. See, People v. Darryl Harris, 98 NY2d 705 (2002).

7 NYCLU, Stop-and-Frisk, Report on 2011 Findings, “The number of stops of young Black men exceeded the entire city population of young Black men.” assets.nyclu.org>stopandfriskfactsheet.pdf .

8 See, People ex rel Maxian, 77NY2d 422 (1991).

9 However, unlike in Central Islip, the Brooklyn jury clerk’s office claims to have ended the discriminatory practice.