Why No Audit in the Middle District of Alabama - Scrushy/Carmichael Jury Challenges Identify Problems

MONTGMERY, Ala., May 20, 2007 --  In December 2006, District Judge Myron Thompson denied the jury challenge by Leon Carmichael as to the composition and method of selection of the criminal grand jury and petit (or trial) jury pools related to the number of African-Americans in the pools.

At that time, I wrote a  short blurb outlining that fact and taking note of the fact that even though the judge found the defendants weren't entitled to a new trial, there were, in fact, several problems that needed addressing with regard to the jury administration system in the Middle District of Alabama.

While not granting the relief sought by the defendants, Judge Thompson clearly stated in his order the following:

"While the defendants are not entitled to new trials, it should not be overlooked that they have identified several undisputed violations of the JSSA and the Middle District's jury plan.  It is also apparent that the defendants are narrowly shy of having satisfied the second Duren factor of the greater-than-10% absolute racial disparity.

I also quickly read over then Magistrate Judge Delores Boyd's recommendation and discovered she had also taken the Middle District to task.

"Notwithstanding this adverse Recommendation, this Magistrate Judge cannot ignore that the same evidentiary record which warrants denial of a new trial to these defendants also documents a compelling need for the Middle District of Alabama to examine, and undertake to remedy, administrative inaction and operational deficiencies which may undermine the integrity of, and public confidence in, the District's Jury Plan. For court personnel assigned to implement the Jury Plan, the Clay decision should have served, at the very least, to heighten an appreciation for the statutory and constitutional imperatives to ensure each criminal defendant's right to a jury which is at once representative of a fair cross-section of the community and representative of a fair selection process.  That it did not is a fact underscored repeatedly and with unmistakable clarity from the testimony and exhibits adduced at the evidentiary hearing.
It cannot be disputed that perfection cannot be the standard for evaluating compliance with the District's Jury Plan. Nor should there be any reticence, however, to acknowledge a reasonable expectation for affirmative action, at minimum, to establish and to monitor policies, practices, and procedures designed specifically to achieve compliance. To its credit, the United States joins the defendants in highlighting the need for remedial action. After addressing for almost a year the discovery issues, hearings, and legal analysis generated by this jury composition challenge, this court is constrained to add its voice to the chorus for operational changes which, if not undertaken, may burden the District with repeated litigation.

According to the Middle District of Alabama's Plan for the Random Selection of Grand and Petit Jurors "this plan authorizes the Clerk of the Court and designated deputies to manage the jury selection process.  In so doing, the Clerk, and the Clerk's deputies shall act under the supervision and control of the Chief Judge of the District Court."

Someone in this chain, either the group of district judges as a whole, Chief District Judge Mark Fuller or Clerk of the Court Debra Hackett has decided that Judge Thompson's recommendation, as worded, "complete audit," is not needed in the Middle District despite extensive documentation in the recommendations and opinions of three judges that there are problems with the process in the Middle District of Alabama.

Former magistrate judge John Carroll tells me the district judges normally get together to decide these things and that if in fact a committee has been formed to review the jury plan that would accomplish the same thing as an audit.  He says the judges may have also deemed that most of the problems had been fixed.  Carroll says if one was not done, cost could be a factor as could be that the Administrative Office of Courts (AOC) may not have wanted to do one.

Another possibility, which I did not talk to the former judge about, is that a complete audit by the AOC with a full written report would most likely be discoverable by these defendants and other past defendants and depending on what was found and detailed have an impact on those cases.

Now Judge Thompson in the Clay decision clearly knows how to state that problems are already fixed.  In United States v Clay, Thompson wrote, unlike in the Carmichael opinion, "In the wake of Clay's challenge to the Middle District of Alabama's jury-selection process, the court as a whole has changed or modified some (of) its jury-selection practices."  Of course, it is clear that although the district's jury plan was re-written as a result of the Clay case the people administering the system did not fully understand what the decision meant to their work.

In an April 2006 evidentiary hearing on the Siegelman/Scrushy challenge Chief Magistrate Judge Charles Coody said, "It is abundantly clear that one, the Court staff don't fully understand either the plan or the operation of the computer program..."

So either Thompson did not mean what he wrote in the Carmichael case when he asked for a complete audit or he recommended what he thought proper under the circumstances and his recommendation was not followed or there's a difference of opinion over what the words "complete audit" mean - although it is unbelievable since he's been at the center of two of the three major jury composition challenges that Thompson did not know exactly what the words "complete audit" meant to himself and others who would read them.

And it is clear from court testimony that the Clerk of the Court Ms. Debbie Hackett does not believe the issues raised by three judges are major.  The following is from the Carmichael evidentiary hearing:

"Q You at that time were not aware of any problems with any way within which Miss Robinson had been running the JMS during the entire time she was the jury administrator?

In Judge Thompson's ruling in the Carmichael case, he apparently disagrees with Ms. Hackett.

"Several of the allegations are undisputed violations of the jury plan,"  and later, "The defendants also allege, accurately, that there were serious deficiencies in the training of the jury administrators, including the failure to instruct them abut the requirements of Clay.  In fact, it appears that in the context of recalling jurors summoned for a pool but not needed for a petit jury, one administrator was affirmatively trained to violate the jury plan by excusing such jurors for two years, rather than one, as called for by the plan."

On May 1, Chief Magistrate Judge Coody issued his recommendation and order denying the jury challenge in the Scrushy case and in it basically took issue with the fact that the challenges to the jury selection system in the Middle District were even being brought:

"Seldom if ever has any district court's plan and process of selecting grand and petit jurors been subject to the degree of scrutiny as represented by the Clay, Carmichael and the Siegelman/Scrushy jury challenges."

In a footnote, the judge did state defendants had the right to do this but apparently questioned whether or not this was a mere diversion to the central inquiry:

"The defendants unquestionably have the right and their counsel have the obligation to insure that their constitutional and statutory rights are respected. At the same time, however, '[t]he central inquiry in a criminal case ought to be whether the defendant committed the crime charged. By diverting the inquiry to another subject, "the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding.' Stone v. Powell, 428 U.S. 465, 489-90, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976)."

But even Judge Coody found an issue to mention with regard to the process, "The magnitude of the undelivered and non-returned questionnaires, 34%, is regrettable at the least. During his testimony, the defendants' expert testified that it is possible at little cost to outsource obtaining better addresses for persons to whom questionnaires were not delivered or not returned. While not required by the JSSA or the District's Plan, securing or at least attempting to secure those addresses is wholly consistent with providing "all citizens . . . the opportunity to be considered for service on grand and petit juries . . . [as well as enabling them to fulfill their] obligation to serve as jurors when summoned . . . " 28 U.S.C. § 1861. The court should establish an internal policy which will insure that reasonable measures are undertaken to insure that to the extent practicable the jury questionnaires are delivered to the citizens of this District.

On May 2, I sent an inquiry to the AOC as to whether or not the AOC had received from the Middle District of Alabama a formal inquiry for an audit as recommended by Judge Thompson.  On May 3, 2007 I received a return phone call from Mr. Dick Carelli, an AOC spokesman, who advised me he had had contact with the jury administration person who handles these matters and advised it had taken him a day because the individual was not in the office but out in "Cheyenne, Wyoming."  I wrote that down because as a child I had spent a couple of good years in Cheyenne and it prompted a lot of good memories so I that that was a fun coincidence.

The spokesman told me the AOC was "aware of that opinion" and that it had "spurred contact with the Clerk of Court."

Mr. Carelli, said there had been "several conversations" between the AOC and the Clerk but "there has not been an audit."  The affable spokesman went on to say the "several contacts included a conference call."  He said the conference call "involved several people" and was an "extended telephone conference."  On further questioning I discovered that meant in excess of two hours, my notes say 2.5.  At that time Carelli told me the conversation took place in late February or early March, which hardly in my mind constituted "immediately" as recommended by Judge Thompson, even taking into account the Christmas and New Year's holidays.

I went over my conversation again with Mr. Carelli and he again told me, "There has not been an audit.  There has been contact and will continue to be."

The spokesman stated that AOC provides its services to the courts and that as a matter of the way business is conducted "it's usually up to the court" to talk about any specifics related to these matters and suggested I may want to talk to the Clerk of Court, Ms. Debra Hackett.

I became involved again in other projects and let this one rest for a while hoping to find a good time to contact the Clerk of Court for follow-up.

I eventually got a chance to review my notes and realized I had not gotten a specific answer to the question about whether or not an audit had been scheduled and whether or not there was a formal request from the Middle District for an audit.

Not receiving an answer on Monday, May14, and realizing how busy people are, on Tuesday morning May 15, I followed up with a phone call to Mr. Carelli.  Between my e-mail on Monday morning and my waking up on Tuesday morning, Scrushy attorney Jim Jenkins had filed his response to Judge Coody's denial of the Scrushy jury challenge.  Tuesday morning I quickly read through the document because I had not had a chance to write yet about Judge Coody's recommendation and order and figured I could kill two birds with one stone by eventually writing about both at the same time.  In a footnote, attorney Jenkins says:

"2 On information and belief, this audit process by the Administrative Office of the Courts has been initiated, but not completed. On information and belief, undersigned counsel understand that a committee has been appointed in this District to review the Jury Plan and/or jury selection system. Defendant respectfully reserves the right to seek leave to amend the record in this case when information becomes available from either of these undertakings that affects in any way the merits of this jury challenge."

Well, like a jack rabbit, my ears went up because I had been told there was "no audit" in my conversation with Mr. Carelli on May 3 and had no reason to believe that he was not shooting straight with me based on his best information.  So, wanting to clear up any confusion, I called Mr. Carelli back on Tuesday, May 15 to see if he had received my e-mail from Monday and see if he could check again on the audit question.

Mr. Carelli indicated the words in the footnote related to an audit were "probably false - unless something's changed since the last time we talked" and as he has always done promised to look into the situation and get back with me. (In fairness to Mr. Jenkins I have heard rumors to the effect of a committee but phone calls looking into this were not returned.)

He did and I received the following concerning the audit situation in an e-mail related to the one I had posted on Monday.

"I've now talked to our expert on juries...No, the AO has never received a request from anyone in the Middle District of Alabama for an "audit." And we don't expect to receive one. An audit is a very formal and multi-faceted event, and the district court opted for less formal contact with the AO in reviewing its jury plan."

In reference as to why one was not being done or scheduled, "If you are referring to Judge Thompson's opinion last December, that did not constitute a request to the AO... I can tell you that discussions between the AO and the district court have continued beyond the extended telephone conference call that occurred in early March, and that more discussions are very likely. "

He then advised again that I contact the Clerk of Court and said, "I will send her a copy of our email discussion."

Clearly a difference in what Judge Thompson's recommendation was to the Court and what is being done.

Finally, with a break in Senate action I put in a call to Ms. Hackett.  Ms. Hackett returned the call the next day and said, "I will not comment."  Pressed further, told again about my conversations with the AOC saying there would not be an audit, and asked who decided there would not be an audit she said, "I don't know about that.  It would be inappropriate for me to comment," and hung up.  I am sure Mr. Carelli forwarded the e-mail traffic to Ms. Hackett.

The next logical step in the process would have been to contact Judge Fuller.  However, since he has not written his order regarding the Scrushy/Siegelman jury composition challenge, I felt the likelihood of any discussion was slim.  Also, in fairness to the judge he will most likely address some of these concerns in his ruling.

In the transcripts of oral arguments and hearings related to the jury challenges the testimony of the jury administrators as well as Ms. Hackett are telling.  One jury administrator in an April hearing said, "I don't believe any on-site training could teach me more than what I have learned during this challenge, yes."

That, to put it bluntly, is shocking in a system that at a minimum since the case of United States v. Clay has knowingly had problems with following federal statutes and even its own jury plan, although to what level those problems rise is a matter of contention.

Combine that with the words, as outlined, of the judges in the district and it is clear that since the U.S. v. Clay the system in MDAL has still been mired in muck and little has been done to ensure proper oversight and training regarding the issues related to the jury-selection process and the ensuring that all communities are adequately represented.

Just taking some of Ms. Hackett's testimony during the Scrushy/Siegelman jury composition hearing on April 11, 2006, it is clear at a minimum in spite of the Clay decision the oversight of the jury selection process in the Middle District has suffered from benign neglect.

Although she was Clerk of the Court when the jury challenge in United States v Clay was litigated, Ms. Hackett apparently did not feel it important enough when a new jury management system (JMS) was installed that would directly impact the jury-selection process, to learn the system:

From an evidentiary hearing:

Q.   And some of them were from the computer company which I believe was the predecessor of ACS?

...

Nor does it appear the Clerk of Court ensured the knowledge the jury administrator in place when the system was installed had attained on the JMS was passed on and understood:

Q.   Do you recall whether or not you were involved in any way in the training process, to pass the knowledge from Ms. Kimbrell to Ms. Robinson?

...

Q.   Once Wanda Robinson became the jury administrator tell us how you supervised her.

In another hearing, Ms. Hackett basically said it was enough to just barely be within the window ensuring African-Americans are adequately represented in the jury pools.  Something as vital to the functioning of the legal system, such as the Court and the jury selection system should be more than adequate.  Especially in light of Montgomery's history related to justice for all its citizens it would seem the federal court of former Judge Frank M. Johnson would want to be the best it could be and not squeak by on the "good enough for government work" theory.

Q And that indicates that while your community is 30 percent African-American, your qualified jury wheel at that time according to this report was 20.74 percent.

......

It seems as long as jurors showed up, life was dandy in the Middle District:

Q What, if anything, did you do to check up on whether Miss Robinson was able to take in fully the quality of training that you had confidence in Miss Kimbrell gave her?

The Clerk of Court has a difficult job and there have been no allegations that she or anyone involved in the jury selection process is deliberately trying to ensure the underrepresentation of African-Americans in the jury pools.

Many people feel that anything done by defendants named Leon Carmichael and Richard Scrushy or their attorneys should be immediately dismissed as something frivolous;however, it is abundantly clear from judges Boyd, Thompson and Coody that the system is at the least adequately limping along at a level far beneath the level at which it could operate.

Jury challenges are complex, expensive, and generally are not successful.  But if defendants with the means to bring these issues into the sunshine do not do so, defendants who do not have their means, and that includes most defendants, are the real losers as are the third of the African-American population whose voices are not heard in the jury process.

Magistrate Judge Delores Boyd did say the "court can make a factual finding that 27 of the last 44 pools included African-Americans in percentages which, if compared to their 30.466% in the community would reflect an absolute disparity in excess of 10%."  Judge Thompson disagreed with the process and number Boyd used to come to her conclusion raising an issue of 546 jurors whose race was not known.

It is clear without the challenge to the system by the two challenges the Middle District of Alabama would have continued to wallow like a pig in the mud content to conduct business as usual - with the full acknowledgement, as documented by three judges and hearing testimony, that there have been and are problems in the system.

Simply writing a new jury plan, as witnessed by what has happened in years following the Clay decision, without ensuring the plan is followed is useless folly.

People may believe, just like Judge Coody, that these types of issues take away from the main issue of whether or not defendants like Carmichael and Scrushy committed the crimes they are accused of and now stand convicted of.

However, the adage about sunshine being the best disinfect applies as it does to politics to court systems that operate in the dark but which have an impact on the lives of everyday citizens.  Were it not for defendants that could bear the cost of pursuing every legal option available to them, those defendants who face the same system would never stand a chance.

At the heart of the Scrushy jury challenge, as related in Monday evening's court filing is their "claim that the jury system in both these periods failed to fairly represent the African-American citizens that live in the Middle District of Alabama. While the statistical analyses as to the extent and precise causes of this underrepresentation can be debated and parsed in many ways, as the instant R & R and rulings of the District Judge and Magistrate Judge in a contemporaneous jury challenge filed in the unrelated case of United States v. Leon Carmichael, Sr., Case Number 2:03cr259-MHT1 surely do, one fact is indisputable: The jury system in the Middle District of Alabama has consistently and systematically produced juries that exclude over one-third of the African-American community that resides in this District."

Whether or not the combined problems in the system rise to the level of "substantial violations" and the final sentence of the above statement has been proven by the defendants is a matter that will be taken up by the learned judges of the 11th Circuit.  The purpose of this article has not been to debate that issue, but to point out what is clearly already known about the jury-selection process in the Middle District of Alabama.  No system will ever be perfect, but to settle for absolutely adequate undermines justice.

Even in Judge Coody's ruling, recommending the Scrushy challenge be denied, he says the Court has a duty:

"When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.  Peters v. Kiff, 407 U.S. at 503-504 (opinion of Marshall, J.).

So the question remains, with all of these problems in the process - why no audit?

Reported by:  Helen Hammons