The appeals court on Thursday rejected the challenge of a man convicted in January 2023 of being a felon in possession of a firearm. The defendant, Ellva Slaughter, hired an expert witness who said Black people are 21% of the local population but make up only 16% of the district's Manhattan Qualified Wheel of potential jurors. Similarly, Latino people are almost 28.5% of the population but make up under 19.5% of the qualified wheel. The government's own expert "presented similar figures," the Second Circuit said.
"We assume without deciding that the underrepresentation of Black and Hispanic or Latino people on SDNY venires is significant, but conclude that Slaughter has not met his burden of proving systematic exclusion," the panel said.
"Our assessment is driven by a review of the evidence in the record, not broad conclusions of law. And nothing in our opinion precludes the possibility that a future challenge with greater proof might establish that the disparities identified in the record are systemic," the opinion said.
One thing Slaughter's expert failed to do was show that there was anything within the district's own control that would have brought the qualified percentages closer to the population percentages, according to the three-judge panel.
The district's juror selection procedure is based off of voter registration rolls. Under its plan, the district reaches out to active registered voters but does not follow up with jurors whose summons is returned undeliverable or who otherwise do not respond.
Leading jury fairness expert Elisabeth Semel and others have found that taxpayer records are a more inclusive and representative source for juror master lists than voter registrations or driver's license lists. Databases of registered voters and drivers often aren't representative of the community and tend to skew more affluent and more white, Semel has told Law360.
"The disparities presented in this case are greater than any that have previously passed muster in this court," the Second Circuit acknowledged Thursday.
"These disparities are troubling, especially considering the fact that underrepresentation of Black and Hispanic or Latino people in SDNY venires has only increased," it also said.
The alleged failure to provide a jury that reflects the population implicates the Sixth Amendment of the U.S. Constitution as well as the Jury Selection and Service Act of 1968. The SDNY's venire plan was created under the JSSA in 1983 and has been amended numerous times, most recently in 2023 and, before that, 2009.
The 2009 plan, at issue here, is based only on voter registration lists and excludes inactive voters. SDNY does not follow up on any questionnaire returned as undeliverable. It used to update the master juror list only every four years, but with the 2023 change, it updates every two years.
Based on the disparity percentages found by both sides in Slaughter's challenge, "assuming that the average venire contains 60 people, the SDNY would have to add, on average, between 3-4 Black people and 5-6 Hispanic or Latino people to every venire to eliminate the disparities," the Second Circuit said.
Unfortunately, Slaughter "has provided no evidence that the challenged practices actually cause underrepresentation of Black and Hispanic or Latino people in SDNY venires. The assertion of his expert that certain aspects of the plan cause underrepresentation, without data to back that up, is not enough to demonstrate systematic exclusion."
Representatives for the parties were not immediately available for comment.
U.S. Circuit Judges Dennis Jacobs, Beth Robinson and Alison Nathan sat on the panel for the Second Circuit.
The U.S. is represented by Danielle Sassoon, Matthew Weinberg and Stephen Ritchin of the U.S. Attorney's Office for the Southern District of New York.
Ellva Slaughter is represented by Edward Zas of the Federal Defenders of New York.
The case is U.S. v. Slaughter, case number 23-6055, in the U.S. Court of Appeals for the Second Circuit.
--Additional reporting by Jack Karp. Editing by Alex Hubbard.
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