updated 10/1/2005 6:00:41 PM ET 2005-10-01T22:00:41

For years, defense attorneys have complained that seating a jury in federal court in Boston usually yields one of two panels: all-white or almost all-white.

After several failed challenges to the system, a judge hearing the federal death penalty case of two black men has issued a ruling that could change things.

Judge Nancy Gertner ordered court administrators to send additional summonses to certain zip codes when mailings are returned as undeliverable. In her ruling last month, Gertner said targeting certain zip codes may increase the likelihood that black jurors will be in the pool for the trial of Darryl Green and Branden Morris, who are charged in the 2001 gang killing of Terrell Gethers.

Without such a change, Gertner said an all-white or largely white jury will likely decide not only their guilt or innocence, but whether they live or die.

“Such an outcome should be profoundly troubling, to say the least,” Gertner wrote.

Her decision has created a stir in Boston’s legal community, and U.S. Attorney Michael J. Sullivan appealed Gertner’s ruling to the 1st U.S. Circuit Court of Appeals, which is scheduled to hear the case Monday.

Ruling draws mixed reactions
More than a dozen defense attorneys and civil rights groups have co-signed legal briefs praising Gertner’s decision. She also won support from William Young, chief judge of the U.S. District Court in Boston, who took the unusual step of filing his own brief.

But prosecutors argue Gertner’s ruling disrupts the goal of selecting the jury pool at random.

Sullivan said Gertner lacks authority to change the jury selection plan. Only the district court as a whole can enact such changes, he said, to avoid the potential for inconsistency.

“Any suggestion that the (office) is opposing the court’s order because it supports or wishes to continue any under-representation of any segment of the population is misleading and false,” he said in a statement.

In her ruling, Gertner agreed with defense attorneys that resident lists used to summon potential jurors are more likely to be inaccurate in areas with the highest percentage of blacks. Resident lists are compiled through town census forms.

Poor often harder to find
She said poorer communities have few financial resources to update their resident lists or follow up on summonses that cannot be delivered.

The situation was ironic, Gertner said, because Massachusetts pioneered the use of resident lists instead of voter rolls for jury selection in an attempt to maximize minority participation.

Other methods to find potential jurors include tax rolls or driver’s license records, said Iloilo Marguerite Jones, executive director of the American Jury Institute/Fully Informed Jury Association, a nonprofit group based in Helena, Mont.

Jones said each method has the potential for under-representing some groups. But Jones praised Gertner’s ruling, which specifies that when a jury summons is returned as undeliverable, the jury administrator should send a second notice. If that notice goes unanswered, a new summons should be sent to another person in the same ZIP code.

‘A step in the right direction’
“I think what this judge has done is to try to find a level of remediation that is both logical and fair,” Jones said.

Morris’ attorney, Patricia Garin, called Gertner’s remedy “a first step,” but said it won’t make juries truly representative of the community.

“But it’s going to be a step in the right direction,” Garin said. “It’s going to make it somewhat more likely that we might see in our case — and defendants in other cases — may see people of color on their juries.”

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