A judge's plan to try to get more African-Americans on a federal death penalty case by targeting certain ZIP codes with additional jury summonses has triggered an extraordinary legal battle that could change how all federal juries are selected in Boston.
Federal prosecutors contend that US District Judge Nancy Gertner skewed the randomness of jury selection and overstepped her authority with her plan to change how jurors are chosen in a case set for trial before her.
Defense lawyers argue that prosecutors are trying to keep blacks off juries.
''It seems to me that they're trying to keep black people and poor people off the juries in federal court, in this particular case and every case," said Randolph Gioia, a Boston lawyer who represents Darryl Green. Green is one of two blacks who face the death penalty if convicted of killing a gang rival four years ago. ''I guess they feel it gives them a better chance of conviction with fewer black people and fewer minority people," Gioia said.
A statement issued by US Attorney Michael J. Sullivan's office yesterday said any suggestion that the office opposed Gertner's order ''because it supports or wishes to continue any under-representation of any segment of the population is misleading and false."
The chief judge of the federal court in Boston has asked a panel of judges to consider drafting a new jury plan for the whole court.
In a 95-page opinion last month, Gertner said it was ''profoundly troubling" that an all or mostly white jury could decide the fate of Green and Branden Morris, who face the death penalty if convicted of killing Terrell Gethers during Boston's Caribbean Carnival in August 2001.
While Morris and Green are scheduled to go to trial next spring, two codefendants, Jonathan Hart and Edward Washington, were slated to go to trial Monday on racketeering charges.
In her opinion, Gertner found that court officials rely on flawed residency lists provided by cities and towns when notifying people to appear for jury duty, leading to an underrepresentation of black jurors in federal court.
She cited a study that indicated wealthier towns with fewer minority residents keep more accurate residency lists than more diverse cities, including Boston. As a result, Gertner found, a higher percentage of jury summonses sent to minorities come back as undeliverable or go unanswered, often because the person has moved.
She ordered the jury administrator to follow up when a notice is returned as undeliverable by randomly sending a new jury summons to another resident in the same ZIP code. If a summons goes unanswered, Gertner said, court officials should send a second notice. If there's still no response, a new summons should go to another resident in the same ZIP code, she said.
Additional summonses targeting specific ZIP codes have already gone out for jury selection in Hart's and Washington's case, but yesterday the US Court of Appeals for the First Circuit prohibited court officials from using any jurors who were summoned that way if they go forward with jury selection Monday.
The appeals court said it was only granting the prosecution's request for a stay to give everyone involved in the case more time to file briefs, and was not taking any position on the legality of the new jury selection plan ordered by Gertner.
The Appeals Court scheduled a hearing Oct. 3 to hear arguments in the case.
The appeals court also granted an unprecedented request yesterday from US District Chief Judge William G. Young to file a brief in the case that will outline his position on the court's jury plan.
In a letter to the court Wednesday seeking permission to be heard in the case, Young said he has appointed a committee of five judges, including Gertner, to ''consider the profound issues" raised in her opinion and decide whether to come up with a new permanent plan for the whole court.
On Tuesday, Sullivan's office asked the appeals court to issue an emergency stay to halt Monday's jury selection, arguing that Gertner lacked the authority as an individual judge to change how jurors were chosen in a particular case.
A statement released yesterday by Sullivan's office said it appealed the ruling because ''any changes to the jury selection plan should be enacted by the district court as a whole and applied to all sessions to avoid the potential for inconsistencies from one case to the next."
Although Young said he would not comment on the specifics of Gertner's opinion, he said during a meeting with reporters last week that he believes she had the power to make the ruling. ''I think it places a difficult, challenging and very important issue before the court," he said.
Patricia Garin, a Boston lawyer who represents Morris, said, ''The defendants are all young African-American men and the prospect of facing a jury that has no African-American person on it, no persons of color on it, means to them that they're being judged by people from which a large segment of the community is missing . . . and that means they're not getting a fair trial."
Jonathan Saltzman of the Globe staff contributed to this report.