Metropolitan News-Enterprise


Friday, June 8, 2007


Page 1


C.A. Bars Access to DMV Data Sought by Defendant Challenging San Diego Jury Selection Process


By TINA BAY, Staff Writer


A murder defendant claiming Hispanics and African Americans are systematically excluded from San Diego County’s juror pool failed to show he was entitled to disclosure of Department of Motor Vehicles information used in generating the Superior Court’s prospective juror list, the Fourth District Court of Appeal has ruled.

In an opinion issued May 16 but ordered published yesterday, Div. One held that Mark Jeffrey Brown could not establish the DMV data was relevant to his investigation into the perceived underrepresentation of minority groups in the county’s jury selection process.

Brown, an African American, was charged in 2001 with the murders of Charmaine Cannon and Faye Williams.  The information alleged the special circumstance as to each charge that he committed more than offense of murder, which made him potentially eligible for the death penalty.

 Last August, Brown served a subpoena duces tecum on San Diego County Jury Commissioner Michael M. Roddy demanding production of certain data relating to the county’s jury selection process during the period from Jan. 1, 2002 5 through Sept. 1, 2006. Among the items listed in the subpoena was a copy of the DMV source list that was merged with voter registration list to produce data from which the court computer system selected prospective jurors.

San Diego’s juror selection process begins with the DMV’s list of licensed drivers and identification cardholders in the county, and the county registrar’s list of registered voters. The court sends these lists to a third party vendor, Jury Services Inc., which merges the two lists, extracts duplicate entries, and loads the resulting combined source list directly onto the Superior Court’s in-house computer server.

Using software called Jury Plus Next Generation, court staff commands the computer to select the names of individuals who should be issued a jury summons. The system does not select the names of individuals who, based on coded descriptions such as illness or death, do not qualify for jury service.

From the remaining list of names the court sends out approximately 25,000 summonses per week to prospective jurors.

Brown argued that as an African American potentially subject to the death penalty, it was essential that he be assured of a trial by a jury selected at random, from a fair, representative cross-section of the community. In support of his demand on Roddy, Brown submitted a declaration by his trial co-counsel, Christopher J. Plourd, who stated there appeared to be a need for “significant jury composition related investigation and/or litigation that is necessary to the competent presentation of a capital case.”

Plourd further asserted that, based on census data and his familiarity with jury composition studies and research, and consultation with qualified demographic experts, “there is a significant disparity between the number of Hispanics and/or African Americans living in San Diego County and the number of Jury eligible Hispanics and/or African Americans who are both called to serve, and those who actually serve on juries in San Diego County.”

At a Sept. 5 hearing, Brown called various witnesses including John Weeks, a defense demographic expert. Weeks confirmed that neither the DMV nor voter registration list contained any information on race or ethnicity, and that the court did not collect data on race and ethnicity of individuals who responded to jury summonses.

But based on a purely statistical analysis of the numbers provided by the jury services manager—those numbers were subsequently adjusted in supplemental declarations—he concluded that “the people who show up in the jury lounge are almost certainly not representative of the jury eligible population in the community” and “[c]ertainly not representative of the master list.”

At the time of Weeks’ testimony, the numbers set forth in the record were about 1.8 million names in the combined source list, 600,000 to 800,000 names after excuses were accounted for, and 2,400 jurors reporting for service pursuant to a summons on a given week.

San Diego Superior Court Judge David M. Gill ruled that Brown made a “particularized showing” supporting a reasonable belief that the county’s jury selection involved some underrepresentation of cognizable groups, raising a due process issue. Therefore, the judge held, Roddy was required to provide Brown with the DMV list.

Gill based his ruling on the standard articulated in People v. Jackson (1996) 13 Cal.4th 1164.

Roddy responded that the court was willing to produce the requested documents subject to a protective order and payment of costs, but with the exception of the DMV data.  He argued that Sec. 197 of the Trial Jury Selection and Management Act— which states the jury commissioner “shall not disclose the information furnished by the Department of Motor Vehicles” pursuant to the section setting forth jury selection procedures “to any person, organization, or agency”—barred him from providing the DMV data to anyone.

Following the filing of supplemental declarations by the jury services manger and president of JSI in October, Roddy asked Gill to reconsider his ruling on the ground that the county’s jury selection system had changed since the September hearing.

Due to the change in procedures, Roddy argued, the information sought by Brown was no longer relevant to an investigation of the current selection process. The defendant’s “particularized showing” had been based on a process that no longer exists, he contended.

Gill denied the motion, but Div. One granted Roddy’s petition for writ of mandate requiring Gill to vacate his order.

Writing for a unanimous panel, Justice Alex C. McDonald said:

“It cannot be reasonably believed, based solely on an apparent statistical disparity between a cognizable group’s representation in the community based on census data and other information and its representation in a master jury list, that either a source list (e.g., the DMV source list) or the practices used in forming that master jury list potentially constitute an improper means of jury selection.”

Dismissing the assertion in Plourd’s declarations and Week’s testimony that the county’s use of the DMV source list constituted a potentially improper practice, he wrote:

“[T]hat assertion is both conclusory and speculative and does not support either a reasonable belief that the perceived underrepresentation of Hispanics and/or African-Americans in the San Diego County Superior Court’s jury pool or venire is the result of improper practices of systematic exclusion or is relevant to potentially verify, prove, or document Defendants’ claim, as reflected in their particularized showing, of the underrepresentation that they reasonably believe exists and that is the result of practices of systematic exclusion.”

Justices Judith L. Haller and Gilbert Nares concurred in the opinion.

The case is Roddy v. Superior Court of San Diego County (Brown), D049796.


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