I can’t believe I missed this, but yesterday the First Circuit has issued what appears to be a stay (pursuant to a petition for a writ of mandamus) in a dispute over how to de-Batsonize juries. The District Court (Gertner, J.) issued this opinion, and the fireworks began. (See our earlier coverage of this case here.)
Update: orders avilable here
Although I think it is unethical for lawyers to rely on newspapers (or even to read them), the Boston Globe has these tidbits:
A judge's plan to try to get more African-Americans on a federal death penalty case by targeting certain ZIP codes with additional jury summonses has triggered an extraordinary legal battle that could change how all federal juries are selected in Boston.***
In a 95-page opinion last month, Gertner said it was ''profoundly troubling" that an all or mostly white jury could decide the fate of Green and Branden Morris, who face the death penalty if convicted of killing Terrell Gethers***
She ordered the jury administrator to follow up when a notice is returned as undeliverable by randomly sending a new jury summons to another resident in the same ZIP code. If a summons goes unanswered, Gertner said, court officials should send a second notice. If there's still no response, a new summons should go to another resident in the same ZIP code* * *
The appeals court also granted an unprecedented request yesterday from US District Chief Judge William G. Young to file a brief in the case that will outline his position on the court's jury plan.
Obviously, one can argue persuasively that Judge Gertner’s actions are either that of being an impartial umpire who does not want to conduct any part of her trial with a biased jury (or, a jury made up only of people who passed a certain test that violates the 14th amendment) or an “activist” judge that wants to be “soft on crime” or “make law.” Your personal answer to this question depends entirely on who your clients are and/or which party you want a political appointment from. I look forward to uninformed discussion of this issue from lawyers and bloggers that have never tried a criminal case, or lawyers that deny that "focusing on" "white collar" issues means representing people charged with crimes. Have fun, be whimsical, and remember that someone's life hangs in the balance. See commentary from 1) The Bostonist; 2) Cap Def. Weekly;