Metropolitan News-Enterprise


Wednesday, June 16, 2004


Page 1


C.A. Overturns Order Requiring Santa Barbara County To Boost Hispanic Jury Venire Representation


By a MetNews Staff Writer


A Santa Barbara Superior Court judge erred in finding that Hispanics were underrepresented on county jury venires and ordering the county’s jury commissioner to develop remedial measures, this district’s Court of Appeal ruled yesterday.

Judge Frank J. Ochoa Jr. was wrong to base a finding of systematic exclusion on a comparative, rather than an absolute, disparity in representation, Presiding Justice Arthur Gilbert of Div. Six said. The absolute disparity is obtained by subtracting the percentage of Hispanics in the venire from the percentage in the population, while the comparative disparity is the percentage by which the number of Hispanic venire members falls short of the expected number.

Ochoa conducted a hearing after a Hispanic murder defendant, Benjamin Ballesteros, challenged the venire. A declaration by John R. Weeks, a professor of geography and director of the international population center at San Diego State University, indicated that the absolute disparity was only 6 percent, but the comparative disparity was 40 percent.

Gilbert noted that in making his order, Ochoa conceded that the California Supreme Court has consistently looked to absolute disparities in ruling on challenges to jury venires and has found disparities to be significant only when they exceed 10 percent. The Ninth U.S. Circuit Court of Appeals has also found that absolute disparities smaller than 7.7 percent are unsubstantial and do not establish a constitutional violation, the presiding justice said.

“We have found no case in which a California court relied on the comparative disparity test to find a jury venire unconstitutional nor a case from any jurisdiction where a court has held a comparative disparity of 40 percent unconstitutional,” Gilbert declared.

Ochoa reasoned that, since Hispanics fail to respond to juror questionnaires in significantly greater numbers than the non-Hispanic population and the number of Hispanics in the jury pool continues to diminish over time, the court should not wait to impose remedial measures until the absolute disparity reaches a constitutionally significant dimension.

But Gilbert said that was an “unsupported assumption.”

“The trial court projects a worst-case scenario where Hispanic representation on county jury venires eventually will be reduced to zero,” Gilbert wrote, adding:

“The trial court’s pessimistic prognostication assumes unchanging demographics. There is no evidence that the percentage of Hispanics in Santa Barbara County will remain static. Nor can we assume their rate of nonresponse to jury questionnaires will remain constant.”

The presiding justice pointed out that Ochoa acknowledged Santa Barbara was using “race neutral” methods for selecting members of jury venires. But the trial judge said that because of the higher Hispanic nonresponse rate, the county should be resending jury questionnaires to those who did not respond—a step the county was taking only if it obtained a new address.

“We appreciate the trial court’s concerns,” Gilbert explained, “but our Supreme Court has repeatedly said that the effect of race neutral procedures may not be the basis for a finding of systematic exclusion.”

Budget constraints, the appellate jurist said, may prevent the county from taking more aggressive steps to locate those who fail to respond to the questionnaires.

The case is Blair v. Superior Court (People), B171673.


Copyright 2004, Metropolitan News Company