E-Mail This Article to a Friend Jim Crow, Boston-style Why the US attorney opposes minority jury members

Film buffs may remember Gregory Peck’s Academy Award–winning performance as Atticus Finch, the wise and wily small-town lawyer in the 1962 classic To Kill A Mockingbird. The time was Depression-era Alabama. Finch was appointed by the court to defend a black man named Tom Robinson, who was unjustly accused of raping a young white woman.

The central and searing irony of the film is that the very notion of appointing competent counsel for an accused "nigger," as African-Americans were then quaintly known by their white brothers and sisters, was in and of itself radical progress. Even more radically, Finch mounts an extremely capable and vigorous defense. The clincher is that although Finch demonstrates beyond a shadow of a doubt that Robinson is innocent, the all-white jury finds him guilty.

Flash forward to Boston, Massachusetts. The year: 2005. The place: US District Court, more commonly called federal court, the court run by the United States of America. Here, there are black lawyers and judges. But there aren’t very many black jurors. In fact, African-Americans and Latinos are substantially less likely to be called as jurors than white citizens. It may not be government-sanctioned racial discrimination of the kind that once prevailed in states of the old Confederacy, but it’s Jim Crow all the same — inadvertent, for sure, but still unacceptable and repugnant.

Now comes US District Court judge Nancy Gertner, who has an idea about how to fix that, how to improve the prospects for justice by making it — well, there is no other way to put it — more just. She has the radical notion that members of minority communities should be represented on juries in proportion to their numbers in the at-large community from which juries are selected. Sounds like common sense to us.

It’s well known that Judge Gertner is a liberal, one of those people who, back in the 1960s when To Kill A Mockingbird was made, thought that all men and women, even African-Americans, should not only have the right to vote, but also the right to a fair trial. That, we guess, would mean that black men and women would be called to serve on juries. Yet the idea, if you’ve read a few of the daily-newspaper accounts, has some people — including US Attorney Michael Sullivan — riled up.

If you’re one of those people who, based on the press’s reporting, think that liberal Judge Gertner wants to fix the local version of the United States jury system by imposing complicated quotas or mandating torturous affirmative-action for juries, then you’re wrong. Her fix-up plan would rely on zip codes, those strings of digits on letters that the US Postal Service uses to help make sure that the right person gets the right piece of mail.

Here is how it would work: When a name is selected from the pool of potential jurors, that person receives a letter sent through the mail system summoning him or her to serve on a jury. If the mail were returned to the courthouse, then another letter would be sent to a different person in the same zip code. It’s a pretty neat idea. Simple. And what could be more darn American than the post office?

The reason this simple clerical approach could result in more-representative juries is that minority neighborhoods, which tend to be less affluent than white neighborhoods, are also more transient. By not penalizing African-American and Latino people for moving more often than white people, Judge Gertner reasons, justice can be better served. Her plan would also mean that when minority defendants come to trial, there would be a greater likelihood that fellow minority members participate in determining guilt or innocence, thus making the idea of a trial by a jury of one’s peers more concrete.

The fictional Atticus Finch would be proud of the real-life Judge Gertner.

Not US Attorney Michael Sullivan. He doesn’t like the idea and he’s trying to stop the plan. His staff cite all sorts of respectable law in hopes of keeping more black people off juries. But you have to look outside the law to understand what’s going on. Sullivan, a Republican, was appointed by President Bush, himself a certified tough guy who as governor of Texas, a death-penalty state, never stopped an execution even if questions about the guilty person’s mental competence or ultimate innocence were raised. Sullivan is also an ambitious guy, and many of his fellow Republicans expect him to be appointed to the federal bench or to run for higher office.

Most important of all, however, Sullivan is prosecuting two black men who are accused of being members of a violent street gang. Since under Massachusetts law there is no death penalty, Sullivan has pushed aside the local DA and is prosecuting the men in US courts, which do have the death penalty.

Sullivan’s motivation is as simple as Gertner’s. He wants the federal government to kill two black men in the hope that his reputation as a tough guy will be enhanced. More African-Americans on the jury hearing this case could put a crimp in that. On the one hand, African-Americans are the most frequent victims of the crime and violence perpetrated by the likes of those accused. But they often tend to view the actions of police, who have a penchant for framing more blacks than whites, with suspicion.

So in order to enhance his chances of executing two black men who are accused of very serious crimes, including murder, Sullivan is willing to settle for a less-than-fair trial with a less-than-representative jury. Sounds like slimy racism to us.