Oregon State Bar Bulletin — JANUARY 2003

Jury Pools
A proposal for a modus vivendi
By Rose Jade

In the last three years, the Oregon Supreme Court has seen fit to grant emergency pre-trial appeals in close to a dozen criminal cases, and over the same issue each time. In one case, the court granted a defendant’s petition for alternate writ of mandamus, where the petition was filed six months after the trial order had been entered. In a similar demonstrative vein, the Oregon Supreme Court — on its own motion — took jurisdiction back again over several pending death penalty cases that were still in the pre-trial stage. What mysterious pre-trial issue is driving the court to spend its valuable time being briefed, hearing oral argument and writing decisions? And why is it taking so many mandamus proceedings to state what the law is?

The issue is this: Can a litigant have access to jury records in order to investigate the cross-representativeness of his jury pool? To be specific, does a litigant have a right to review source, master and term jury lists without first having to prove that something is wrong with the court’s jury system? See e.g., State ex rel Click v. Brownhill, 331 Or. 500, 15 P.3d 990 (2000); State v. Staudinger, 332 Or. 477, 31 P.3d 426 (2001)); State v. Rogers, 334 Or 633, 55 P3d 488 (2002).

The fact that this is an issue at all may shock readers familiar with ORS Chapter 7,1 the Oregon Public Records Law, ORS Chapter 192 et seq.,2 the First Amendment to the U.S. Constitution, and the state counterpart, article I section 8 of the Oregon Constitution.

It may further shock those readers who understand that each state court jury list is made up from two very public lists: the voter registration list and the Department of Motor Vehicles list, both of which are readily available for purchase, and each of which contains much more information than any state jury list. The problem for litigants is that neither the DMV nor the Elections Office keeps a copy of the exact lists they send to the state courts, and the lists are updated daily. So when litigants wish to audit the actual list that will be used for his jury pool — and this is the only list with any evidentiary value — they can only obtain a copy of that exact list from the state court or trial court administrator.

The fact that access to court jury records continues to be an issue — especially in death penalty cases where heightened due process must be afforded to the defendant — is arguably both intellectually and politically embarrassing for the state, and particularly so for the judicial branch, whose own behavior is in the spotlight.

Leaving aside the details of what is now a five-year battle over access to jury records, suffice to say that during the most recent oral argument on this issue, in State v. Rogers, SC SC S49361, held July 30, 2002, one Oregon Supreme Court justice chastised the parties for failing to work out a modus vivendi — a working agreement — among themselves, and expressed his frustration with having to settle the issue on a piecemeal basis (due to the extremely narrow issues presented by the parties each time it comes up on appeal).

Our Legislature may be surprised by this request from the bench, as they passed legislation in 2001 that was — according to Bradd Swank on behalf of the Judicial Department — supposed to solve the whole problem (HB 2335). The problem with that legislation is that it added — for the first time in Oregon’s history — an evidentiary burden to the person seeking access to the jury lists. That person must now first prove there is something wrong with the state jury system in order to get access to those government records — the jury lists — that factually reveal how the system is implemented. As is being argued by many a defense counsel, this is putting the cart before the horse, and raises state constitutional questions relating to Article III, section 1 (separation of powers), Article VII, section 1 (undue interference with the courts), Article I section 8 (freedom of speech and press) and Article I section 10 (public courts and open administration of justice). When I spoke to the 2001 Legislature about the pending legislation, I told them that far from solving any alleged problem, not only was the new statute wholly unnecessary, it would only create more litigation. I am sad to say that I was right. To make matters worse, it is the type of litigation that most courts would seek to avoid: it requires the court to rule on issues of access to its own unsealed records. For some of you it will bring back memories of State ex rel Frohnmayer v. Oregon State Bar, reported at 91 Or App 690 (1988) and then again at 307 Or 304 (1989).

In the spirit of reconciliation, and forward thinking, I would like to offer my suggestion for a modus vivendi: Let us return to letting the sun shine in on the state circuit court jury process. Historically, Oregon courts have allowed and carefully supervised public access to jury records. At least 15 studies of Oregon jury systems have been undertaken in the last 36 years, and these have produced a mountain of fascinating and useful data (contact me for the list). Most notably, back in the 1970s, the Multnomah County Circuit Court participated in an a three-year study involving a detailed data collection and analysis project, described as a 'census of 32 jury panels...from July 1973 through March 1976... The file contains 199 variables for 6,657 jurors and 1,159 trials.'3 The Hon. Robert Jones of the Multnomah County Circuit Court and Michael Shrunk from the District Attorney’s office fully cooperated in the research project.4 They made sure that the researchers were provided court-supervised access to three years of court jury records to allow a study of juror behavior. (The researchers discovered that jurors exhibited great gender and class bias when allowed as a group to pick the jury foreman, a conclusion that supports having the court randomly assign the foreman, and the researchers also found that novice jurors were less conviction-prone than repeat jurors.5)

It is obvious that we can all gain from public and litigant audits of our jury systems. I recently was allowed to conduct a partial jury system audit in Lincoln County, on behalf of the public, through the Jury Service Resource Center. In allowing me access, that court obviously took a risk that I might find something amiss, and I did. I discovered that the staff was erroneously eliminating everyone over 70 years of age from the jury pool. The practice was immediately halted and the system has since been corrected. No one was fired, the court went on with its business, and the district attorney quickly and efficiently began dealing with the issue. Everyone benefited. The jury pool is now a better cross-section of the community. That is the point.

The Indiana Supreme Court recently vacated a death sentence in a post conviction relief case, because the state court's computerized jury system had erroneously deleted an entire township from the capital defendant's annual jury pool. See Azania v. Indiana, 2002 Ind. LEXIS 890 (Nov. 2002). See also, Lewis v. State, 332 Md 639, 632 A2d 1175 (1993). The Federal District Court for the district of Connecticut granted state litigants relief where a state computer programmer error caused the state's computerized jury system to erroneously delete two entire towns from the annual jury lists. See U.S. v. Osorio, 801 F Supp 966 (1992).

Courts, like any other state agency, have the right and responsibility to supervise access to their business records. And — have no doubt about it — there are plenty of existing laws that protect against tampering with a jury and harassment of past or future jurors. The state’s continued resistance to good-faith requests for audits is simply an exaggerated response that has had its 'day in court' and should now be abandoned. All three branches of government should return to the practice of welcoming and providing for public audits of our jury systems and the constructive criticism and improvements that they can bring.

Rose Jade is an attorney with an office in Newport. She can be reached at www.juryaudit.com or srjade@alum.mit. edu.


1. See e.g., ORS 7.130 mandating that whenever requested, the clerk or court administrator shall furnish to any person a certified copy of any portion of the records or files in the custody of the clerk or court administrator.

2. See e.g., ORS 192.001(1)(a) stating that the interest and concern of citizens in public records recognizes no jurisdictional boundaries; ORS 192.005(6) stating that 'State agency' includes 'any...court created by the Constitution'; and ORS 192.420(1) mandating that every person has a right to inspect any public record of a public body in this state.

3. Bernard Grofman, Multnomah County [Oregon] Jury Project, 1973-1976, pg 11. The Report has recently been made available online at , File No. ICPSR 9030.

4. Id., pg 99.

5. See Bernard Grofman, Michael Migalski, Deborah Dunkel, Jury Foreman Selection: The Effects of Status, Gender, and Jury Composition Context, (Fifth Draft, 2/4/1987 unpublished) copy on file with the Jury Service Resource Center, www.juryservice.org.

© 2003 Rose Jade

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