Defense Claims Potential Jury Bias in 86 Cases Linked to COVID

By Jeff Levine - September 5, 2023
Court | Daily Stories | Homicides | Juveniles | Shooting | Suspects | Victims |

Attorneys for the DC Public Defender Service, the US Attorney’s Office and the DC Superior Court debated how much data should be released in a Sept. 5 hearing about whether jurors fairly represented a cross-section of the community during the pandemic.

At issue in the proceeding before DC Superior Court Judge Marisa Demeo is whether attorneys representing 86 defendants should have access to identifying information including names and addresses of those the DC Superior Court uses to build its jury pools.

The matter has been linked to the COVID pandemic which defense lawyers claim has had a disproportionate impact on communities of color and by implication trial outcomes which could be invalidated. 

In an Aug. 17, 2022 motion filed on behalf of defendant Tony McClam, attorney Jason Tulley asked for more information about “[T]he selection of [trial] juries during the COVID-19 pandemic, specifically since November 2021, in order to ensure that… jurors have been selected from a fair cross-section of the DC community as guaranteed by…the Constitution.” 

McClam, originally accused of killing 11-year-old Karon Brown in 2019 in the 2700 block of Naylor Road, SE, was found not guilty of first degree murder in January of 2022 in a seven-count indictment but the jury was hung on the other six charges.  The prosecution intends to retry the case.  

In response, Tully’s motion contends, “Mr. McClam is charged by indictment with first degree murder and other related charges [upcoming trial date, December 6], and the defense suspects, based on the data analyzed so far, that the… jury selected for this trial will…violate…the Fifth and Sixth Amendment [guaranteeing the jury fairly represents the community].”

To back up the assertions of racial imbalance, defense lawyers submitted an analysis by a data scientist concluding:  “45.8% of the jury eligible population in Washington, DC are Black.  35.3 % of the [trial] jurors are Black. 34.7% of the grand jurors are Black.  

“The absolute disparities exceed ten points.  Hence I conclude that Blacks are substantially underrepresented.”

A source familiar with the litigation tells D.C. Witness that the District is making a good faith effort to diversify jury panels and that there’s no systematic attempt to discriminate against minorities.

However, getting a proportionate mix of people to respond to jury summonses is challenging.

Given other enforcement priorities, the source estimates that only about half of those summoned actually show up as required by law.  That means the final trial juries may not meet the constitutionally required racial mix.  

The controversy has put the DC Superior Court in a legal bind, because they supply the juries. Thus, the court is caught between the US Attorney’s office which says the COVID cases were properly prosecuted, versus the Public Defender Service wanting them reconsidered for fairness.  

Courthouse officials, say the source, believe they can show they don’t have their “thumb  on the scale” when it comes to picking juries–that even though the outcome isn’t perfect, they say the process is fair. 

Meanwhile, the number of cases joining the COVID action for reconsideration on constitutional grounds has grown to nearly 100.

Judge Demeo said she’s considering how much jury pool information can be released for the next hearing on Oct. 13 at 9:30 a.m.