A helpful reader provides the text of the First Circuit and Judge Getner's order regarding dealing with method of jury notification described in US v. Green et al. See our earlier posts here and here.
I have inserted paragraph breaks where
appropriate I felt like it.
The First Circuit's Order
Norman H. Stahl, Judge Sandra L. Lynch.
Before us is a motion by the United States of America to stay the implementation of the district court's September 2, 2005, order in United States of America v. Darryl Green, et al., Criminal No. 02-10301-NG, pending our resolution of its petition for a writ of mandamus to the district court.
We also have a request by both the government and the defendants to permit supplemental briefing with respect to the government's petition for a writ of mandamus compelling the district court to vacate the September 2 order.
We grant the request for a stay as follows, and we will allow supplemental briefing regarding the petition on an expedited basis as set forth below.
In order to give us time to adequately consider the matter, the stay is granted with respect to the first two numbered paragraphs of the district court's September 2 order, and we further order that any impanelment in this case shall not include potential jurors from the second mailing ordered by the district court until resolution of this mandamus proceeding.
This stay is without prejudice to the district court judge deciding to postpone the present trial scheduled for Monday, September 19, 2005.
The stay also is without prejudice to the United States District Court for the District of Massachusetts proposing a modification to its Plan for Random Selection of Jurors in accordance with the Jury Selection and Service Act, 28 U.S.C. § 1861, et seq.
We should not be understood as having yet taken any position on the legality of any modification mirroring the September 2 order. The case will be expedited as follows. The parties' simultaneous supplemental briefs must be received by this court and opposing counsel by noon on Friday, September 23, 2005; the parties' reply briefs must be received by this court and opposing counsel by noon on Wednesday, September 28, 2005; and the case will be scheduled for argument at 3:00 p.m. On Monday, October 3, 2005, at the federal courthouse in Boston, before this panel. The motion of the Federal Public Defender's Office to appear as amicus curiae is allowed.
Chief Judge Young's letter of September 14, 2005, construed as a motion to appear as amicus curiae through counsel, is allowed, and Chief Judge Young may submit briefing on the same schedule noted above. Permission also is given to the trial judge to address the petition on the same schedule. Fed. R. App. P. 21(b)(4). The length of all filings shall comply with Fed. R. App. P. 32(a)(7).
Judge Gertner's Order
With respect to the above-captioned case, it is hereby ORDERED:
1. For all summonses returned to the Court as “undeliverable,” the same number of new summonses should be mailed to residents who live in the same zip code area as the undeliverable summonses. Replacement summonses will be selected from a supplemental array, merged with the existing array and randomized;
2. For all summonses for which there is no response (“nonresponses”) after a second mailing, the same number of new summonses should be mailed to residents who live in the same zip code area as the nonrespondents. Replacement summonses will be selected from a supplemental array, merged with the existing array and randomized;
3. Federal authorities should inform the OJC when summonses have been returned as undeliverable. More permanent solutions will be submitted to the Clerk, the Chief Judge, and the panel that reviews the District's Plan for the Random Selection of Jurors, such as:
1. Weighted Mailing Approach: The federal Jury Administrator will compare the Census percentages per each zip code with the percentages on the master wheel, and then send out additional summonses to certain zip codes to proportionally reduce the chances that someone in an overrepresented zip code will receive one;
2. Under Yield Approach: The federal Jury Administrator will adjust the number of summonses based not on Census figures but on historical response rates. The response rates will be calculated based on the difference between the number of mailed summonses and the number of returned questionnaires;
3. Federal authorities will work with state authorities to address these problems at their source – the unfunded mandate of cities and towns to prepare accurate residential lists. In addition, defendants Morris and Green are to brief the following issues (as described in the attached decision):
(1) Whether death-qualification is likely to exclude minorities at such a high level as to raise renewed constitutional concerns not addressed by Supreme Court precedent;
(2) Whether the Sixth Amendment applies at the voir dire stage of the proceedings;
(3) Whether there is a means less violative of defendants’ rights than death-qualification. Defendants and the government shall submit a joint briefing schedule for these issues.