Opinion
CR15432542
12-15-2017
STATE of Connecticut v. Chester JOHNSON
UNPUBLISHED OPINION
OPINION
Jon M. Alander, Judge
The defendant has filed an objection to the composition of the venire panels used to select the jury for his trial on various criminal charges on the grounds that the racial and ethnic composition of the panels violated his rights under the sixth and fourteenth amendments to the United States Constitution. A hearing was held on the defendant’s objection on November 20, 2017 and November 30, 2017. Based on the evidence presented at the hearing, or, more importantly, the lack thereof, I find that the defendant has not met his burden of establishing that there existed an unconstitutional underrepresentation of African Americans or Hispanics on the selected panels.
In his objection to the composition of the panels, the defendant also asserted a violation of Article First, Sections 8 and 19 of the Connecticut Constitution. As the defendant failed to provide any independent analysis of his state constitutional claim, either in his written objection or at the subsequent hearing on his motion, that claim is deemed abandoned. See State v. Robinson, 227 Conn. 711, 721 (1993).
The defendant was charged with five criminal offenses, four involving charges of sexual assault and one being a charge of risk of injury to a minor. Jury selection was held on November 7, November 9, and November 13, 2017. The jury of six plus two alternate jurors was ultimately selected from three panels of thirty members each. The defendant did not object to the venire panel on the first day of jury selection. On the second day of jury selection, the defendant registered an oral objection to the panel and subsequently filed a written objection on the third day. Jury selection continued to completion with the understanding that a subsequent hearing would be held on the defendant’s objection.
The defendant contends that the venire panels violate his sixth amendment right to a jury representing a fair cross section of the community and his fourteenth amendment right to equal protection of the law. Specifically, the defendant contends that there was an underrepresentation of African Americans and Hispanics on the three venire panels used for the selection of the jury in his criminal trial. He asserts that the underrepresentation was due to the failure of the state to take any enforcement action against individuals summoned for jury service who fail to appear and the failure of the Judicial Branch to target minority residents when conducting its jury outreach efforts.
Addressing first the defendant’s sixth amendment claim, such claims " are governed by a well established set of constitutional principles." State v. Gibbs, 254 Conn. 578, 588 (2000). " In order to establish a violation of his federal constitutional right to a jury drawn from a fair cross section of the community, the defendant must demonstrate the following: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id., citing Duren v. Missouri, 439 U.S. 357, 364 (1979). The defendant’s claim founders on the third requirement: that any underrepresentation is due to the systemic exclusion of African Americans and Hispanics in the jury selection process.
The defendant presented evidence through Camille Seabury, a research associate at Data Haven, in an effort to satisfy the second requirement that there was an unfair and unreasonable underrepresentation of African Americans and Hispanics in the jury pool. Using a Bayesian probability model based on surnames and location data, Seabury concluded that five of the ninety members of the three venire panels were African Americans and eight were Hispanics. Seabury further found that the absolute disparity, comparative disparity and standard deviation for the relevant population of adults aged 18 to 74 were .054, .494 and 1.644, respectively, for African Americans and .079, .471 and 2.008, respectively, for Hispanics. The defendant contends that the standard deviation exceeding 2 for Hispanics establishes an unfair underrepresentation as such a deviation is generally accepted as the benchmark for showing a result which is not random. The established law in Connecticut rejects each of these three measures as an appropriate basis for determining underrepresentation with respect to a sixth amendment claim. See State v. Castonguay, 194 Conn. 416, 427-30 (1984) and State v. Gibbs, supra, 590-91. " Ultimately, ... the decision is not one of numbers but rather a subjective determination of whether the disparity is constitutionally significant." State v. Castonguay, supra, at 427. The state further contends that the appropriate population is not all adults aged 18 to 74 but native born and naturalized citizens which, according to Seabury, resulted in a standard deviation less than 2. It is not necessary, however, that I address this issue as the defendant’s sixth amendment claim fails for the reason noted.
The only aspects of the jury selection process which the defendant points to as flaws leading to the underrepresentation of African Americans and Hispanics are the state’s failure to take any action against non-appearing individuals duly summoned for jury duty and its failure to conduct outreach efforts targeted at minority residents. In support of his claim, the defendant presented a stipulation that a greater proportion of blacks and Hispanics in Connecticut does not show up for jury duty after receiving a summons to do so. The defendant offered evidence that the Connecticut Attorney General’s office, the entity charged pursuant to General Statutes § 51-237 with bringing legal action for the imposition of civil fines against non-appearing jurors, has not brought any enforcement actions in the recent past. Evidence was also submitted that, while the Judicial Branch conducts various efforts to increase the positive response to jury summons, such as visits to schools and community events and participation in radio programs, the branch does not specifically focus its efforts on increasing the response by minority members of the community. What the defendant did not present is any evidence that such enforcement or focused outreach efforts would lead to a material increase in the number of African Americans and Hispanics appearing for jury service. Rather, the defendant’s claim rests on an underlying assumption that the imposition of a fine or the implementation of focused outreach would lead otherwise unresponsive individuals to respond to a jury summons in the future. Without knowing the reasons for the failure of African Americans and Hispanics to positively respond to a jury summons, that assumption is unwarranted and unproven.
To prove an equal protection violation, the defendant must prove " (1) underrepresentation of a recognizable group; (2) substantial underrepresentation over a significant period of time; and (3) a selection procedure susceptible to abuse or not racially neutral." State v. Gibbs, supra, 254 Conn. 593, citing Castaneda v. Partida, 430 U.S. 482, 494 (1977). Proof of these three elements is sufficient to establish a prima facie case of discriminatory purpose. Castaneda v. Partida, supra, 430 U.S. 495. As in Gibbs, the defendant has not shown that the jury selection process in this case was susceptible to abuse or racially biased. In Gibbs, the defendant asserted that proof of discriminatory intent could be found in the use of outdated addresses for jury summons and the large number of no-shows for jury service in the Hispanic community. The court rejected these claims on the grounds that each circumstance was " the product either of random chance, or of factors external to the system." (Emphasis in original.) State v. Gibbs, supra, 254 Conn. 596. The court concluded that the jury array in the defendant’s case resulted from " perfectly legitimate reasons for which prospective jurors of all ethnicities are eliminated from the eventual array" and did not show " a deliberate and systematic denial of rights." (Emphasis in original. Internal quotation marks and citations omitted.) Id., 597. Similarly here, the defendant has failed to establish that the greater propensity of African Americans and Hispanics to fail to respond to jury summons was due to anything other than external factors, such as poverty, residential mobility, linguistic isolation or distrust of the legal system. The defendant certainly has not met his burden of showing that the failure to bring any legal action seeking the imposition of civil fines or to initiate focused outreach efforts is subject to abuse or not racially neutral.
The defendant has also not established, for purposes of his equal protection claim, that there existed an underrepresentation of African Americans and Hispanics in his jury selection process. The defendant presented evidence through Camille Seabury, a research associate at Data Haven, that five of the ninety members of the three venire panels were African Americans and eight were Hispanics. See n.4, supra. Seabury concluded that the standard deviation for the relevant population of adults aged 18 to 74 was 1.644, for African Americans and 2.008 for Hispanics. The defendant contends that, since a standard deviation of two is the common benchmark used to establish lack of randomness, the standard deviation exceeding 2 for Hispanics establishes an unlawful underrepresentation of Hispanics for purpose of his equal protection claim. The defendant’s contention fails for two reasons. First, the test set forth in Castaneda v. Partida, supra, requires a showing of substantial underrepresentation over a significant period of time. The defendant has at best shown an underrepresentation in the selection process for one trial. Second, as the state contends, the appropriate yardstick is not all adults aged 18 to 74 but native born and naturalized citizens as only United States citizens can serve as jurors in Connecticut. Using this population, the calculation, according to Seabury, resulted in a standard deviation less than 2, that is, a number which the defendant admits is insufficient to establish lack of randomness.
Seabury’s calculations resulted in a standard deviation of 1.7394 regarding Hispanics when using the population of native born and naturalized citizens in the Waterbury Judicial District.
The defendant also contends that the failure of the state to require venire persons to disclose their race and ethnicity on juror questionnaires and the failure of the state to maintain data on the race and ethnicity of the individuals on the various lists used to compile the source list of potential jurors renders it impossible to ensure a fair representation of African Americans and Hispanics on juries. While it may be true that the lack of such information makes the prosecution of a claim of underrepresentation more difficult, it does not render it impossible. One only has to look at the statistical evidence offered by the defendant in this case and by the defendant in State v. Gibbs, supra, to see that avenues are available to defendants seeking to challenge the lack of diversity of jury arrays. The defendant has also provided no authority for the proposition that the failure to collect racial and ethnic information regarding prospective jurors is, in and of itself, a constitutional violation. Cf. State v. Moore, 169 Conn.App. 470, 487-88 (2016) (The court rejected the defendant’s request that it exercise its supervisory authority to require the collection of demographic data to allow analysis of the diversity of jury panels in Connecticut.) There has been no showing by the defendant that such a failure constitutes a systemic or deliberate practice that results in the underrepresentation of a cognizable group in the jury selection process.
Pursuant to General Statutes § 51-232(c), the juror questionnaire sent to each prospective juror states that information concerning race and ethnicity need not be furnished if the prospective juror finds it objectionable to do so.
It is undisputed that the lists required by General Statutes § 51-222a to be used to compile the master list of prospective jurors do not contain information concerning the race or ethnicity of the persons named on the lists.
For the foregoing reasons, the defendant’s challenge to the jury array is denied.