E-Mail This Article to a Friend Black death The first African-American capital defendant in Massachusetts since 1973 is testing the notion of a fair death-penalty trial BY DAVID S. BERNSTEIN

MITT ROMNEY TOOK some gentle mocking from the New York Times Magazine recently, which listed his proposed "foolproof death penalty" in its annual "Year in Ideas" issue. "This may be the first effort to write a purely symbolic criminal statute," a Berkeley professor is quoted as saying. "We have entered the postmodern era of death-penalty discourse."

To public officials who deal with the reality of death-penalty sentencing, the issues are neither symbolic nor funny. At a time when we constantly see wrongful convictions, faulty investigations, and evidence of bias, can society really find a way to ensure fairness, equal treatment, and correct outcomes with death at stake? Indiana governor Joe Kernan announced last week that, for the second time in less than a year, "doubt about an offender’s personal responsibility and the quality of the legal process" has led him to grant clemency to a death-row prisoner. In Texas, Ernest Willis became the 117th death-row inmate exonerated nationally since 1973, and the fifth last year, when the local district attorney announced in October that Willis "simply did not do the crime." California, which has the largest number of death-row prisoners in the country, has commissioned a study of flaws in its death-penalty system. A federal judge in New York recently declared the federal death penalty unconstitutional, and the state may move to empty its own death row. The US Supreme Court is mulling whether states may execute those who were younger than 18 when they committed the crime.

Here in Massachusetts, which has been through two federal death-penalty cases in the past few years, the topic is especially potent. In March, the state is scheduled to host its first capital trial of an African-American defendant in three decades — the first of as many as six in the works. This adds the well-documented concerns of racial bias in the application of the death penalty to the already complicated process of ensuring fairness. Nobody made a fuss, for instance, over the fact that the juries were entirely white in the death-penalty trials of nurse Kristen Gilbert, in 2001, and double murderer Gary Lee Sampson, both of whom are white, in 2003. But it would raise huge issues in the trials of Darryl Green and Branden Morris, two African-Americans accused of killing Terrell Gethers in 2001; or for Brima Wurie, Amando Monteiro, Angelo Brandao, and Louis Rodrigues, all alleged members of Dorchester’s Stonehurst Street gang, who will find out by January 27 whether they will face death if convicted. (Monteiro, Brandao, and Rodrigues are charged with the 1999 killing of Dinho Fernandes; Wurie is charged with killing Luis Carvalho in 2000.)

"We are all as an institution wrestling with this," says William Young, chief judge of the US District Court of Massachusetts.

"It’s a terrifying time, in my view, as a public defender," says Catherine Byrne, an assistant federal public defender for the District of Massachusetts, New Hampshire, and Rhode Island.

ON TUESDAY, defendants Morris and Green sat in their orange jumpsuits in a jury box as Patricia Garin, of Boston law firm Stern, Shapiro, Weissberg & Garin, questioned witnesses about the technicalities of the "jury wheel," the method used by the court to summon potential jurors to the John Joseph Moakley United States Courthouse, in South Boston. Garin is arguing that the system, while colorblind on its face, in fact vastly underrepresents African-Americans and other minorities. She had even hired Andrew Beveridge, a sociology professor at Queens College/City University of New York, to prove it.

Beveridge’s report, and 19 accompanying tables, are disturbing: they show that the pool of more than 50,000 citizens who came to the Moakley Courthouse as potential jurors from 2001 through 2003 contained fewer than half the number of African-Americans needed to accurately reflect the population. Nearly seven percent of the adults in the Eastern Division of the District of Massachusetts are African-American, but blacks made up barely three percent of the available jurors. Hispanics were also underrepresented.

It might not seem like a big deal — just a few percentage points’ difference. But, as Beveridge shows, it can have a huge effect. He calculates, for instance, that if the jury pool reflected the true racial make-up of the population, the odds of having at least one black member on a 12-person jury would be nearly three in four. With the current skewed jury pool, the odds are barely one in two.

This minority underrepresentation stems in part from inaccurate lists of citizens available for jury duty. But fixing the lists, it turns out, would be nearly impossible. The courts rely on lists submitted by each of the 190 individual towns in the Eastern Division, and, not surprisingly, the towns compile and update their lists in a somewhat scattershot manner. Small towns with relatively stable populations — which are home to few African-Americans — tend to have more accurate counts. Boston, Lowell, Somerville, Cambridge, and Chelsea have a tougher time keeping tabs on their residents. In fact, Beveridge was able to show that the division’s 52 zip codes with more than 750 African-American residents had, as a group, 10 percent fewer people in the jury pool than their populations merited. Taken together, the four zip codes with the greatest number of African-Americans, all in Roxbury, Dorchester, and Mattapan, had 16 percent fewer people in the jury pool than they should have.

Legally irrelevant to the federal-jury-composition question is the fact that Morris and Green should probably be facing a jury drawn from residents of Suffolk County, where racial and ethnic minorities make up half the jury pool. Suffolk Superior Court is where almost all homicide trials for Boston murders end up, and where Suffolk County DA Dan Conley wanted to bring the cases. But in state court, the death penalty would not have been available. US Attorney Michael Sullivan insisted on bringing the cases in federal court as gang-related racketeering killings (despite one judge’s finding that the cases involved neither gang activity nor racketeering; see "Fedz in the ’Hood," News and Features, June 25, 2004).