When Michael Grafton went on trial earlier this month in Schenectady County on attempted murder and other charges, the jury came back with a mixed verdict.
The jury acquitted on some counts, convicted on others and deadlocked on still another.
The jury was all white. Grafton is black.
Whether race made a difference in the case is not knowable; the jury foreman afterward said the case was decided, as verdicts are supposed to be, purely on the evidence. The prosecutor also noted that the split verdict shows there was no rubber stamping of the prosecution’s case.
But the racial makeup of the jury was an issue brought up toward the end of jury selection, as Grafton’s defense attorney Leah Walker-Casey questioned a potential black juror’s dismissal from the pool.
“I can’t comment on whether it had an impact,” Walker-Casey said after the verdict, “but I can say that when there’s a single person of color in the courtroom, and that person’s the defendant, that makes us all at least ask the question.
“I don’t have the answers, but it’s a question that I think it’s important for us to ask.”
Advocates say jury diversity is important, making sure defendants get fair trials and eliminating any hint of racial bias.
It’s an issue that the state court system has been working on for years: to provide pools of potential jurors that better reflect the communities from which they are drawn — expanding selection lists and eliminating exemptions and even getting snapshots of the current racial makeup of the pools.
Since September 2010, the court system has been gathering demographic data from those who appear for jury selection, compiling a glimpse of the racial makeup of jury pools at the state and county levels. The makeup of the Grafton jury pool was unclear, though there were other black members who took themselves out of consideration for various reasons.
That same year, 2010, the state Office of Court Administration also conducted a study looking at jury diversity in Monroe County, surrounding Rochester, looking at response to jury questionnaires, the first step at summoning the jury pools. That study found lower rates of response — both no response and undeliverable addresses — from black and low-income neighborhoods.
Melanie Trimble, executive director of the New York Civil Liberties Union, said the defense must be vigilant in making sure the jury pool and juries are diverse as they guard against any imbedded prejudice.
“Diverse juries make for better juries that we can trust,” Trimble said.
As far as selecting jurors, race is to play no part. If attorneys want to challenge their opposition’s decisions based on race, attorneys can make a challenge with the judge, as Walker-Casey did in the Grafton case. If directed by the judge, the opposition must then give a reason why the juror was dismissed.
Schenectady County District Attorney Robert Carney said greater diversity needs to be encouraged.
“It’s an issue that lawyers need to be cognizant of and understand,” Carney said. “Lawyers all have to work together to avoid the possibility that improper motivations seep into their thinking in jury selection.”
To get a better handle on the current state of jury pools, the state began collecting data on the pool members, handing out information cards for them to fill out when they arrive. On the cards, the state asks for the prospective jurors’ race, ethnicity, age and sex. It’s an anonymous form that can be read by a computer.
The cards are not mandatory, but the court system gets good responses. Out of 485,000 jurors called statewide during that year, the state received more than 463,000 cards back. In some counties, more cards were received than jurors, a discrepancy attributed to records processing.
Hope Splittgerber, Schenectady County commissioner of jurors, said she has had little difficulty getting the cards filled out by prospective jurors. They’re given the cards as they arrive, a time that involves some waiting. “It gives them something to do,” Splittgerber said.
The data collected is then compiled into an annual report, the first of which was released in late 2011. The second annual report is due out in the coming weeks, state court officials said.
The first report outlines the data from the first year of collection, giving the racial makeup of the jury pools statewide, as well as on the county level. It also identifies areas where improvements could be made in turnout.
Statewide, the survey found 61 percent of prospective jurors identified themselves as white, while 17 percent identified themselves as “Black, African American, or Negro.” Those numbers compare to the 18-and-over statewide population from the 2010 Census of 67 percent white and 15 percent black, according to the report. The cards also allow for 13 other choices for race, from “American Indian or Alaska Native” to “Guamanian or Chamorro” or Samoan.
In Schenectady County, where Grafton’s trial was held, 87 percent of prospective jurors reported as white, while 5 percent reported as black. Those numbers compare to Schenectady County’s total population of 83 percent white residents and 8 percent black residents. (The city of Schenectady itself is 64 percent white, versus 20 percent black, according to the 2010 census. However jury pools in county court, where felony-level cases like Grafton’s are held, are drawn from the entire county.)
Those called in to make up the jury pools are selected from multiple lists, five in all: Voter registration, driver’s licenses or DMV-issued ID cards, tax filers, unemployment recipients and those receiving family assistance or home relief.
The report also cites a host of other methods of ensuring the source lists are up to date. New York has also long since done away with statutory exemptions from jury service, such as doctors and lawyers.
But the report also gives suggestions on increasing the response rate, citing the 2010 Office of Court Administration study from Monroe County. There, 12 percent of the population was estimated to be black, but with a qualified jury pool at 9 percent black. After excusals from service, such as a temporary scheduling conflict, medical or financial hardship, only 7.3 percent of the pool was black.
According to that study, rates of non-responses to questionnaires and undeliverable questionnaires were higher in black and low-income communities. The result was lower representation of black residents in the jury pool, as opposed to the general population.
The statewide report tries to suggest solutions to that, including a public outreach program that would seek to increase participation in areas that see a high number of undeliverable and non-response rates. It suggests working with community organizations to improve communication, and also getting tougher with non-responders.
The report also offered another approach of increasing proceedings against those who fail to respond.
In dealing with undeliverable mailings, the report offered “targeted replacement mailing,” an option that would require legislative authorization. When a mailing isn’t returned, a replacement would be selected from the same ZIP code or census tract, rather than randomly pulled from the entire county.
Fred Clark, chair of the direct action committee for the local chapter of the Southern Christian Leadership Conference, has been an advocate for ensuring diverse juries for years. Clark has suggested emphasis on ZIP codes to ensure each area of the county is represented in the random sample.
“When you get a diverse jury, you get a diverse outlook on what the evidence is,” Clark said. He also suggested that if the prosecution wants to eliminate a potential black juror, they should be made to explain why for each.
In the Grafton case, the prosecutor said he called for the black juror’s elimination because he relayed that a loved one had been prosecuted by the Schenectady County District Attorney’s office. The judge accepted the reason, calling it clearly non-discriminatory.
Peter Willis, the prosecutor in the Grafton case, said after the verdict that his experience is that jurors consider the facts in the case, and nothing else.
“I don’t think juries, in my experience, have ever rubber-stamped any prosecutions that have been brought before them,” Willis said. “They certainly didn’t here.”
Willis’ comments were echoed by the foreman of the Grafton jury, who happened to be a man trusted by many in the Capital Region for his four decades in local broadcasting, Jack Aernecke. Aernecke was the foreman because he happened to be the first juror picked.
As he and the other jurors left the courthouse, Aernecke declined to discuss the specifics of the deliberations.
Asked about the concerns raised by the defense toward the end of jury selection, which were raised outside the presence of the panel, Aernecke said the jurors focused on the case that was presented to them and that’s how they came to their verdict.
“It was purely evidence, purely evidence,” Aernecke said. “As far as I’m concerned, you’re a human being. I don’t care if you’re black, white or sky blue pink, you’re a human being and race makes absolutely no difference.
“And everyone else in that jury room, I’m confident, felt exactly the same way,” Aernecke added. “It’s purely based on evidence and nothing else.”