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March 3, 1997

Sociologist testifies about how to overcome racial bias in jury selection

By Jennifer McNulty

[photo of Hiroshi Fukurai] Sociologist Hiroshi Fukurai testified twice in superior court recently about the underrepresentation of racial minorities on California juries. Such underrepresentation contributes to a criminal justice system that is not seen as legitimate by racial minorities and the poor, says Fukurai, who proposed modifications to increase jury diversity.

Early in February, Fukurai testified in Mendocino Superior Court in the case of People v. Eugene "Bear" Lincoln, a Native American man accused of killing a white police officer. Fukurai analyzed the results of a public opinion survey about the case, which has received extensive publicity, and found that 80 percent of whites in Mendocino County believe Lincoln is guilty, compared to 80 percent of Native Americans who believe he is innocent.

Native Americans make up only about 5 percent of the county's population, though, and given the jury selection process, there is little likelihood that Native Americans will be among the 12 jurors selected to hear the case, says Fukurai.

"It's very important to create racially mixed juries, especially in cases involving elements of racism," said Fukurai, referring to the history of racial genocide of Native Americans that looms over the Lincoln case.

Potential jurors in California are selected at random from lists of registered voters and Department of Motor Vehicles records. Because whites are more likely to vote, own vehicles, and have driver's licenses than are minorities, racial minorities are vastly underrepresented at this critical first step of juror selection, says Fukurai.

"If you let the system select the jury, because of discrimination in the selection process, you'll almost never have a jury that represents the community," said Fukurai.

During his testimony, Fukurai, who was hired by the defense, described several mechanisms that would make the jury pool more representative of Native Americans in the county, which has the largest population of Native Americans in the state.

Fukurai encouraged the judge to use tribe lists. There are 10 federally recognized tribes in Mendocino County, and the lists could be used to supplement the voter registration and DMV lists.

He also advocated the use of affirmative action in jury selection. Specifically, he offered three methods:

In the second case, Fukurai testified in San Francisco Superior Court as an expert witness on jury selection on behalf of the defense in People v. Mendes Stanley Brown. The six defendants in that case, all racial minorities facing capital felonies that carry sentences of death or life in prison without the possibility of parole, allege that the grand jury indictment process is discriminatory.

Fukurai described a technique he has developed called cluster sampling with a probability proportionate to size, or PPS cluster sampling. Designed to counter the effects of residential segregation by race and socioeconomic status, Fukurai's method uses U.S. census tracts to identify groups of potential jurors, who are then selected at random within chosen tracts.

For example, San Francisco County has 150 census tracts, each with several thousand residents. But profiles reveal deep pockets of segregation, with some tracts 80-90 percent Hispanic, some heavily African American, some almost exclusively white, and some 80-90 percent Asian.

PPS cluster sampling mandates that an equal number of potential jurors be selected from each census tract to ensure that residents from minority-dominant areas are in the pool from which jurors are selected.

Currently, in grand jury selection in San Francisco, 150 juror notices are sent out from the master lists, which are not stratified by tracts. As mandated by law, the probability of being selected from the stratified lists is the same as the chances of being summoned from the stratified lists, notes Fukurai.

"I showed that there is discrimination in the current process and that better methods are available," said Fukurai, who noted that costs of the two procedures are similar. "These procedures have tremendous implications for the criminal justice system. They would definitely increase the chances that racial and economic minorities serve on juries."

Fair jury representation is critical to building trust in the criminal-justice system, says Fukurai, who cited four recent cases of major urban unrest that followed allegations of racism in the courts.

"There were three cases in Florida in the 1980s involving white police officers accused of killing African Americans. All three were acquitted by all-white juries, and each time the acquittals sparked rioting in the streets because people didn't believe in the system," says Fukurai. "And there were the Los Angeles riots after the Rodney King beating trial, which failed to include a single African American on the jury."

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