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The underrepresentation of racial minorities on Boston’s federal juries comes as no surprise to court observers, although they have never before seen it calculated so precisely. More than one US District Court judge has remarked in rulings on the lack of minority jurors. "When I came into federal court, one of the first things I noticed was the extremely homogeneous juries — all white," says Catherine Byrne, who has worked for the Boston federal public defenders’ office for three years, after 14 years defending state cases. Byrne has twice convinced judges to place two questions on a potential-juror questionnaire. The first asked if the juror had any potentially prejudicial feelings or opinions about black people. The second asked if he or she believed black people are more likely to commit crimes. Incredibly, in those two cases, nearly 40 percent of the people in the jury pool answered yes to at least one of the questions.

There is a reason why this is coming up now, instead of in previous death-penalty cases involving white defendants, or in the dozens of non-capital trials of black men in the same courthouse. Put simply, an all-white jury condemning a young black man to death could be the worst thing to happen to race relations in Boston in a very long time.

RIGHT NOW, the matter rests with US District Court judge Nancy Gertner, in whose courtroom Green and Morris landed. Gertner, a sentencing and jury expert with a penchant for "very innovative" judicial solutions, in the words of Chief Judge Young, could say that the minority representation is close enough, and move forward. Alternatively, she could decide to compensate for the problem by drawing extra jury-pool members from the underrepresented areas. If she does that, Young says, he and the other judges would probably consider changing the rules for the court as a whole. It’s also possible that the state courts might decide to review their systems, since they rely on the same problematic citizen lists that the federal court does.

But Gertner could also go a step further. She could dismiss the indictments of Green and Morris altogether, since they were handed down by grand juries that were just as racially skewed. If she does that, Byrne says, you can be sure that every black defendant in federal court will submit similar motions. (Gertner could say that her argument applies only to death-penalty cases, which place a higher burden of responsibility on the courts. However, Byrne counters that "it would be very hard for an appellate court to say it’s okay in one kind of case but not another.") As a result, a huge chunk of the US attorney’s criminal cases could end up back at square one — a growing and disproportionately large chunk, in fact. From 1994 to 1997, 20 percent of those arrested for federal crimes in Massachusetts were black. In 2001 and 2002, the last two years for which data are available, the figure was up to 27 percent. That rate has probably risen even higher since US Attorney Michael Sullivan recently authorized an increasing number of cases against alleged gang members. Often a dozen or more suspects are arrested in a single sweep — almost always men of color.

If anyone is likely to yank the carpet from under a race-biased system, it would be Gertner, who has seemed in the past to regard her court as being under an obligation to counter potential racial biases. In 1998, she gave a black man a lighter sentence than his prior convictions called for because, she argued, those included minor motor-vehicle offenses that were likely the result of racial profiling. The following year she was among the first to admit expert testimony on the reliability of cross-race eyewitness identification. And last year she announced that she considers the federal sentencing guidelines unconstitutional. (A Supreme Court ruling on that issue was expected this week.)

Gertner has also already provided one bold, first-of-its-kind race-related ruling in the Green and Morris cases. She ruled that they will each have one jury for the guilt phase, and, if necessary, a second jury for the penalty phase. Juries deciding on the death penalty must be "death-qualified" — that is, they must have no qualms about imposing capital punishment. That theoretically produces a skewed jury by weeding out anti-death-penalty citizens; but that in itself does not create an unconstitutionally partial jury. However, Gertner wrote in her November decision, "studies suggest that death-qualification leads to the exclusion of a disproportionate number of black and female jurors.... Death-qualifying a jury could significantly deplete the already paltry number of minority jurors in the Eastern District."

In the trial of white nurse Kristen Gilbert, Gertner points out, only 10 black people reached the point of being questioned for the jury; eight opposed the death penalty, and the other two favored it only in special circumstances. None made the jury. Gertner may have to live with that during the penalty phase for Green and Morris, but she figures she can at least take a fair shot at getting some color on the jury that decides their guilt or innocence first.

THE US ATTORNEY’S Office is appealing Gertner’s two-jury decision. It’s likely that her decision on the jury-composition issue will face appeal as well. The US Court of Appeals for the First Circuit, which would hear the cases, has had problems with Gertner in the past — most notably, it ordered her to recuse herself from the Boston school-assignment case in 2001. But the issues at stake here are her bailiwick. "Judge Gertner is an absolutely magnificent colleague," says Young. "She is a nationally known thinker on the law of sentencing, and has written a book on the law of juries."

Gertner figures to take every step of these cases cautiously — as did Mark Wolf, who presided over Sampson’s trial, Young says, and as will Patti Saris, who has the cases of Wurie, Monteiro, Brandao, and Rodrigues. "I think the judges are concerned" about dealing with these cases, says Byrne.

It’s a concern shared by the attorneys defending these cases. You can be sure it’s even felt on occasion inside Sullivan’s office. Which is why all these questions will probably be addressed, appealed, and quite likely appealed again before any actual trial begins.

David S. Bernstein can be reached at dbernstein[a]phx.com