AARON FALK - Daily Herald | Posted: Monday, October 2, 2006 11:00 pm
One attorney's claim that Hispanics are underrepresented in Utah County's juries will fall by the wayside for now, after a 4th District judge denied a motion to quash the state's jury list Monday.
In a 42-page ruling, 4th District Judge Lynn Davis said attorney Michael Esplin failed to meet a three-prong test for proving the jury-selection process violated the right to an impartial jury as stipulated in the Sixth Amendment. He also noted that it's unclear if the court has jurisdiction over the Administrative Office of the Courts and the Utah Judicial Council to stay jury trials, and that the cases used to bring the challenge aren't "ripe." Jury trials haven't been convened for either defendant.
"The court cannot act ... when the issue is hypothetical or the existence of the controversy merely speculative," Davis wrote.
Esplin said he would have to talk to his clients about what action to take, but said he anticipates appealing the ruling sometime in the next 20 days.
Esplin had filed a motion to quash the jury list and stay proceedings in the cases of Daryl Otterson and Jacob Loveless -- neither of whom is Hispanic.
"I'm disappointed, not surprised," Esplin said of the ruling.
Utah code provides that a jury "be selected at random from a fair cross section of the population." While 2002 Census numbers estimate Hispanics make up about 8 percent of Utah County's population, Esplin argued that Hispanics made up only 3.5 percent to 4 percent of the jury pool.
"We can't just hope for a fair cross section by luck of the draw," Esplin said. "There needs to be a fair cross section across the board."
But since citizenship is requisite for jury service, as much as 70 percent of the Hispanic population could be ineligible, Davis opined.
In the ruling, Davis wrote that Hispanics and Latinos made up 3.8 percent of prospective jurors.
"It appears that the jury selection process is selecting Hispanic/Latino jurors in exactly the right proportions that it should," he wrote.
According to testimony given at an evidentiary hearing in July, efforts to create a jury pool that is racially proportional to the county's population would be further complicated because records used for finding potential jurors don't require that information regarding race be given.
During the hearing, Ed Rhodes, a data processor for the Administrative Office of the Courts, said the database used to compile jury pools is updated daily from driver's license records, weekly from tax records and monthly from both voter registration and Department of Vital Statistics records.
Only driver's license records indicate race or ethnicity, and even then the information is offered voluntarily.
Esplin said improved forms from the AOC with demographic-specific questions would help eliminate problems with the jury pool. The court cited inconclusive demographic statistics as part of the reason for denying the motion, and Esplin said the burden of gathering those numbers should rest on the AOC.
"Our task is to challenge it and to make the best case that we can from the available data that there is an inadequate representation," Esplin said. "They don't have the information and we don't have any way of getting it."
If Davis had ruled in Esplin's favor, the ruling could have had a huge impact on the entire state, potentially halting jury trials until the matter was resolved.
In his conclusion, Davis wrote that he took the challenge "extremely seriously," noting he's "dedicated almost 20 years to advancing equal access to the court for linguistic minorities, particularly Hispanics."
Aaron Falk can be reached at 344-2559 or afalk@heraldextra.com.
This story appeared in The Daily Herald on page A1.