A longtime defense attorney is pushing Hennepin County to change how it selects jurors, with the aim of creating more diverse juries.
"Black people are a distinctive group who have been underrepresented in Hennepin County juries for years," Emmett Donnelly wrote in a motion made in a second-degree assault case to be heard Thursday before District Judge Martha Holton Dimick.
His motion is part of an intensified push by public defenders to get juries more representative of the community, one of the concerns to arise since the murder last year of George Floyd at the hands of Minneapolis police officer Derek Chauvin.
Defense lawyers say that while lack of racial diversity on juries long has been a concern, the COVID-19 pandemic has only made the problem worse.
"All jurisdictions across the country are much more attuned since last year about systemic racism and justice inequality," said Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts in Williamsburg, Va.
A racially diverse jury in April convicted Chauvin of Floyd's murder. The 12 jurors who found him guilty included one Black woman, three Black men, two multiracial women, two white men and four white women. Two white women were alternates and were dismissed before deliberations.
However, according to Donnelly's motion, Black jurors were represented in Hennepin County jury pools last year at a rate of less than half their population. While the county has a Black population of 13%, the percentage of Black jurors in 2020 was 6.2%, Donnelly wrote.
That's down from 8.2% in 2019 and 7.7% in 2018, he wrote. Year-to-date numbers in 2021 are even lower: 5.2%.
"At a time when the American public is distrustful of the fair administration of justice, [Hennepin County] has a strong interest in ensuring that its juries come from a fair cross-section of the community," Donnelly wrote.
Donnelly's motion comes in the second-degree assault case against his client Keenan Crawford, who the lawyer argues will be denied his constitutional right to a jury of his peers because Hennepin County's selection process "habitually" results in panels that don't include a representative number of Black jurors.
Donnelly said he was shocked at the diversity of the Chauvin jury. Generally, seating three people of color on a 14-person panel is considered a "home run," he said in an interview.
"We have cases all the time where there are no Black people on the jury or maybe just one. … It's hard to talk about inclusion and not talk about jury diversity," he said.
Mitchell Hamline law Prof. Bradford Colbert, who runs the Legal Assistance to Minnesota Prisoners (LAMP) Clinic, also was shocked — but pleased — by the composition of the Chauvin jury.
"When you have diverse juries, I also think you get better results" from the diversity of life experiences, he said.
Hennepin County Chief Judge Toddrick Barnette, who directs much of the procedure and sets the tone in the busy district, declined to comment.
A compelling interest
In his motion, Donnelly cites a 1997 concurrence by Minnesota Supreme Court Justice Alan Page, who wrote about reforming the selection process for grand juries, which he said disproportionately excluded people of color.
"The compelling interest in including people of color in the justice system's decisionmaking process is starkly illustrated by the reactions of communities of color when they feel that they have been excluded from the system," Page wrote.
"The riots that have taken place in those cities, while deplorable and unacceptable, illustrate the frustrations of a segment of our society that feels alienated from and excluded by the one branch of government whose singular purpose is the dispensation of fair and impartial justice."
Donnelly proposes to address the issue in two ways: Expand the public lists from which the names of jurors are drawn, and collect more data about who isn't showing up for jury duty.
Currently, the names of jurors are pulled randomly from the lists of registered voters as well as driver's license and state identification card lists. Donnelly wants the court to start pulling prospective jurors from tax rolls as well.
Prosecutors opposed Donnelly's motion for a "representative jury" in a two-page response, saying that Hennepin County reaches 98% of its citizens through the current jury selection process.
The state also cites a 1995 state Supreme Court case that held as constitutional a selection process that takes jurors from lists of registered voters, driver's licenses and state identification cards.
"More than likely the same selection process will be used in this case," Assistant Hennepin County Attorney Craig Green wrote, adding that the defense had failed to support its claim that the court has authority to supplement the list.
Recognizing the problem
Donnelly said Hennepin County needs to collect more data about who isn't showing up for jury duty and why. The jury office doesn't track demographics for those who fail to show up or defer duty, he noted.
He cited the sworn testimony in January of jury office supervisor Brenda Langfellow in an unrelated case. She was asked if she knew why Black people were underrepresented on juries in the past three years, and responded that she did not, according to a transcript.
Asked whether the office makes adjustments if it sees a trend in jury demographics, Langfellow said: "We don't analyze for race."
In that case, Hennepin County District Judge Todd Fellman denied the defense's challenges to the composition of the jury pool, saying the defendant had failed to show a "systematic exclusion" of a group.
Donnelly argues that failing to collect racial data on who shows up for jury duty is a systemic failure and violates court rules. He noted the state requires counties to "collect and analyze information" about the performance of the jury system.
"It's a matter of there being some willingness to recognize the problem and do something about it," he said.
Hannaford-Agor said there are proven ways to address underrepresentation in jury pools. One is to update jury lists more frequently so addresses don't get outdated. Better pay and enforcement also encourage participation.
In Hennepin County, jurors are paid $20 daily. That's unlikely to make up for lost wages for jurors whose jobs don't pay them while they're away. Hannaford-Agor said some states require employers to pay employees away on jury duty. Massachusetts does and sees more diverse juries, she said. Minnesota doesn't.
Though a jury summons is a court order, many jurisdictions don't track down missing jurors, she said.
"If people fail to appear and nothing happens, that kind of message gets out into the community pretty quickly," Hannaford-Agor said.
Both Colbert and Donnelly argued Hennepin County could do better in figuring out why more diverse jurors aren't showing up — and make it a priority.
"Whether it's Black people's unwillingness to be part of the system or white people's unwillingness to let them be part of the system, we need to take a look at it," Colbert said. "To make the system more diverse, you have to work harder at it and that's where we're at now."
Rochelle Olson • 612-673-1747