Faced with data showing that federal jury pools in the New Orleans area steeply underrepresent its Black population, the judges of the Eastern District of Louisiana last month changed their rules for gathering those names for the first time in seven years.
The court dispensed with its reliance on voter registration data as the only source for its juror lists. The new rules allow the clerk to pull names from driver’s license records as well. Another change calls for swapping out the court's master jury wheel every two years, rather than four. The wheel is a grouping of 60,000 people from the district that the clerk has deemed qualified to serve on a jury.
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But an attorney for a New Orleans man accused of a murder-for-hire plot argues that those changes, while promising, can’t excuse the court's failure for years to assemble juror lists that “reasonably” reflect the community.
Appellate lawyer Richard Bourke is asking a federal judge to toss the 2017 indictment against Louis Age Jr., based on jury race data that court officials in each of 94 federal districts across the U.S. are required to track by law. Similar challenges in other courts have mostly failed, though Bourke — who has filed similar challenges in several Louisiana state courts — argues that the New Orleans district stands apart in its failures.
Among the 40 courts that responded to his data requests, the 13-parish Eastern District ranked worst in the racial bias found in its current “wheel” of 60,000 qualified jurors, he wrote Monday in a legal filing.
The district stretches from Tangipahoa and Washington parishes south to Terrebonne, Lafourche and Plaquemines parishes; and from St. Bernard Parish west to Assumption Parish. The population is 64% White and 31% Black. The jury wheel, created four years ago, is only 19% Black, the data show.
White jurors make up that 12-point gap – the largest “absolute disparity” in any of the 40 districts, according to Bourke. The figures mean Black people are under-represented by more than a third in the jury wheel, also the biggest “relative disparity” among districts with significant Black populations, he found.
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The district “consistently and predictably underrepresents black jurors more than any other district in the country for which data is available,” he wrote.
The data show Louisiana’s Middle District, based in Baton Rouge, also recorded significant racial disparities, though not as glaring as in New Orleans. The middle district’s population is 34.5% Black; its jury wheel is 26.7% Black, the court found.
The state’s third federal district, the Lafayette-based Western District, was among 37 that ignored Bourke’s data requests over a year, he said. He added that three districts refused outright to provide data, while 14 others said they are preparing responses.
A lack of diversity in jury pools is hardly unique to Louisiana or the South. A 1968 law, the Jury Selection and Service Act, aimed to address it, spelling out a defendant’s right to a jury chosen “from a fair cross-section of the community in the district or division wherein the court convenes.”
But courts nationally have struggled to achieve it. Experts point to struggles delivering juror questionnaires or summonses to poor people, who tend to move more frequently. Some studies have shown dramatically lower response rates to juror summonses from Black residents who live in low-income ZIP codes. The exclusion of people with felony convictions from voter rolls is cited as another obstacle to diversity on jury wheels.
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Carol Michel, who took over the job as clerk of court for the Eastern District this month, said the changes followed a review of the district’s plan by the administrative office of the U.S. court system beginning in late 2019. Michel said the court's master jury wheel was due to be emptied and refilled after the November election.
An appeals court review body approved the new plan on Dec. 18.
“Any further response to your questions could possibly touch on issues currently being litigated,” she wrote.
Louisiana’s Middle District last changed its jury plan in 2015. It stuck with voter registration as the sole source of jurors, while swapping out jury lists every two years. The Western District updated its plan in 2019, still replacing the master jury every four years while using only voter rolls.
The 1968 law requires districts to supplement their voter registration lists when they fail to generate a representative jury wheel. Will Snowden, an advocate for jury diversity who directs the New Orleans office of the Vera Institute of Justice, argued that the court should expand its source lists further, such as with tax or utility records.
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“When the 6th Amendment says you have the right to a jury of your peers, the government has a responsibility to ensure they’re utilizing lists that accurately summon that jury of peers,” Snowden said. “Casting the net is half the battle. What you’re pulling in is important.”
Courts have set the bar high for when racial disparities in jury pools grow intolerable, while rejecting challenges in districts from Southern California to Massachusetts. But one jury expert, University of Texas at Austin law professor Jeffrey Abramson, described the race figures cited for the New Orleans district as "a real wake-up call."
Abramson noted that the disparity eclipsed the 10-point spread that courts have loosely allowed as wiggle room. That kind of double-digit disparity is rare, Abramson said.
“This is a very telling case. If his figures bear out as he alleges, this is precisely the kind of case federal judges should be drawing attention to,” he said. “The court seems to be aware of these problems. This challenge sort of tells us why.”
But Abramson added that courts have usually required defendants to show that a disparity was the result of systematic exclusion, intentional or not.
“It turns out different groups respond to summonses at different rates. Sometimes courts want to see, is it really the system that’s the problem?”
Similar concerns prompted federal courts in Illinois and Kansas to weight mailings to ZIP codes that generate the most non-responses.
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The Massachusetts district court now allows oversampling of summonses by ZIP code, according to a report last year by Connecticut researchers.
Bourke applauded the New Orleans-based district for the recent changes but called it “only further evidence they recognize there’s a problem and they could have been doing this all along.”
He’s asked District Judge Barry Ashe, a nominee of President Trump, to toss the indictment against Age and four others, while downplaying the impact such a move would have.
“You quash the indictment, fix your jury selection method, pick a new grand jury and keep going,” he argued. “Now is the time to do it. Nothing can move because of COVID anyway.”
Trials in the district are postponed until at least March.
U.S. Attorney Peter Strasser’s office hasn’t yet responded to the motion, which could affect other pending indictments against Black defendants.
Age, 71, remains in prison while he awaits trial with four others in an alleged conspiracy to kill a federal witness, Milton Womack, who was 60 when he was fatally shot as he sat in his van in Gentilly in 2012. A guitar player and grandfather of 13, Womack had just agreed to plead guilty and cooperate with the government in a $17 million Medicare billing fraud case targeting Age and others.
A year later, Age was convicted in the fraud case. He’s now about halfway through a 15-year federal prison term.
A trial date was set for last April in Womack's killing before the pandemic hit. Ashe may set a new trial date next week.
