The D.C. Court of Appeals sat en banc this morning to hear oral arguments in a case that explores whether criminal defendants have the right to inspect jury pool records.
The appeal before the court arose after two men challenged their armed robbery convictions on the grounds that the D.C. Superior Court system for selecting jurors violates due process rights and violates the D.C. Jury System Act. The defendants, Larry Gause and Karlepa Wilkey, questioned the fairness of the jury pool, but were denied access to juror records. Lawyers for Gause and Wilkey have argued that the D.C. Superior Court system for picking juries systematically excludes African-American residents of the District.
A three-judge panel ruled in October 2008 that Gause and Wilkey, who were convicted and imprisoned for their roles in robbing a 63-year-old man at gunpoint in 2005, should be able to argue post-conviction for inspection of jury records. In that opinion, Judges Anna Blackburne-Rigsby, Phyllis Thompson, and Frank Schwelb determined that the trial court set an improper standard for accessing the records.
The court ordered an en banc hearing in March.
The issue before the court today was the threshold at which access to jury records must be granted, if at all. Unlike in federal court, Superior Court defendants do not have unqualified access to jury records, which are typically confidential. The judges also questioned whether access to jury records would place undue burden on the Superior Court Jurors’ Office, which maintains the records.
Mikel-Meredith Weidman, a D.C. Public Defender Service attorney representing Gause, argued that litigants should have unqualified access to the records. Weidman said unfettered access to jury records would allow litigants to address allegedly racially biased juries through statistical analysis of which members of the community are being called and seated on juries. “Without inspection of these records, it’s virtually impossible for them to vindicate their rights,” Weidman told the nine-judge panel.
That argument appeared to appeal to Judge Anna Blackburne-Rigsby who called it a “cart before the horse” situation. “That litigant must prove the merits of his constitutional claims in order to gain access to the information necessary to prove the merits of his claim,” Blackburne-Rigsby said. Blackburne-Rigsby filed a dissent when the case was last before the court, writing that the panel’s determination that a defendant must prove that there was a “reasonable belief” of due process violations before gaining access to the records could perpetuate problems with jury selection.
Judge Stephen Glickman focused on the increased burden the Jurors’ Office would face if a barrage of defendants started seeking access to the jury records. “I’m worried that the the burden would be greater than you have acknowledged,” Glickman said.
Weidman countered that there may indeed be an increased burden on the court, but that shouldn’t unfairly affect her client. “Speculation about the burdens on the system shouldn’t be held against Mr. Gause,” Weidman said.
Assistant U.S. Attorney Mary McCord, who argued for the government, said access to jury pool records is not necessarily a bad thing; it’s just not authorized under the Jury System Act. “Good policy is not a reason to strain the text of the D.C. Jury Act,” McCord said. She added, “The United States would fully support a system in which the Superior Court tracked and kept data on jury lists. But that’s not what the law requires.”
McCord argued that the Jury System Act was meant to be read with the understanding of a “reasonable belief” standard. “We think that under the current statute, a defendant’s motion for access has got to have some basis and the party needs to convey that basis to the court,” McCord said.