“Random” is a commonly used word whose meaning can be ascertained from a recognized dictionary. See, e.g., Orion Flight Serv. v. Basler Flight Serv., 2006 WI 51, ¶¶ 16, 24, 290 Wis. 2d 421, 714 N.W.2d 130. Something is “random” when it has no regular or specific plan or pattern. The American Heritage Dictionary 1496 (3d ed. 1996); Webster’s Third New International Dictionary 1880 (Unabridged ed. 1986). There must be the same or equal chance of occurrence for each and every member of a group. Id. Deliberately summoning different numbers of potential jurors from different districts plainly constitutes a plan or pattern that is contrary to the concept of randomness. Randomness is also skewed because the plan or pattern gives residents of some areas a greater chance, while offering others a lesser chance, of being summoned.
Moreover, because some persons have a greater chance of being summoned than others, this plan or pattern does not strictly comply with the statutory requirement that the method of selecting potential jurors must provide each qualified person with an equal probability of selection for jury service.
While increasing the proportional representation of minority groups on juries might be a desirable goal, it cannot be accomplished by means that conflict with the statutes which are designed to guarantee equality of individual, not group, participation on juries. This goal cannot be accomplished at the expense of individuals who are not members of minority groups by decreasing the chances that they will be summoned for jury service by sending fewer summonses to persons who live in areas predominantly populated by groups that are not considered minorities.
A federal court recently invalidated a similar jury selection plan in In re United States, 426 F.3d 1 (1st Cir. 2005). In that case, to compensate for misdeliveries and nonresponses that occurred proportionally more in minority areas, a district judge ordered the jury administrator to draw an additional name from the same zip code for each person to whom a summons could not be delivered or who did not return a summons. Id., 426 F.3d at 4. This procedure drew proportionally more supplemental names from areas that had larger than average populations of minorities. Id. The Court of Appeals for the First Circuit held that this plan violated the statutory requirement that persons considered for jury service must be selected at random to insure that the odds of any individual name being selected are substantially the same. Id. at 6. The court held that a plan which gave preference to those in certain areas failed to provide equal odds of selection to every person on the jury list. Id.
In United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998), the Sixth Circuit invalidated a jury selection plan that tried to achieve racial balance by removing the names of non-minority persons from the jury wheel, thereby increasing the proportion of minorities represented on the wheel. The court held that this plan also violated the statute that required all citizens to have an equal opportunity to be considered for service as jurors. Id., 136 F.3d at 1099-100. The court said that although the government had a strong interest in increasing the representation of minorities on juries, it could not do so by means that denied non-minorities an equal opportunity to serve on juries. Id. at 1105-06. The court said that the government’s goal should be achieved by supplementing driver and voter lists with names from alternative sources to avoid discriminating against individuals. Id. at 1106.
Although dealing with a different situation, the Wisconsin Court of Appeals has expressed similar reasoning. In Oliver, the court held that ordering the clerk to place on the array and the jury panel an African-American whose name had not been chosen at random violated Wis. Stat. §§ 756.001(2) and 756.096(2)(a). Oliver, 179 Wis. 2d at 10-11. The court stated that “the ethos of our system is a jury picked at random. That much is codified in sec. 756.001(2), Stats. It is also apparent from our case law.” Id. at 11. The court ruled that deliberately “‘salting’” the jury with a minority member who had not been chosen at random violated this ideal. Id. Deliberately “salting” the jury list with minority members who have been selected by preference rather than at random is no less violative of the fundamental principle that requires juries to be chosen totally at random without discriminating for or against any person on account of their race, or on account of the place where they live as a surrogate for race.
Conversely, the Wisconsin Supreme Court has stated that apportioning the array “among wards, villages, and towns on a per capita equality standard . . . assures each person in the county of an equal opportunity to serve upon a jury regardless of where he may reside within the county.” State v. Nutley, 24 Wis. 2d 527, 539, 129 N.W.2d 155 (1964), cert. denied, 380 U.S. 918 (1965). Random selection of individual jurors might result in underrepresentation of some groups on juries. But the mere lack of proportional racial representation, absent intentional and systematic exclusion, is not discrimination or otherwise constitutionally deficient. Wilson v. State, 59 Wis. 2d 269, 281-82, 208 N.W.2d 134 (1973). “The jury pool need not be a statistical mirror of the community. . . . Absolute proportional representation is not required. The fair‑cross-section requirement is met if substantial representation of a distinctive group exists.” State v. Pruitt, 95 Wis. 2d 69, 78, 289 N.W.2d 343 (Ct. App. 1980) (emphasis in original) (citations omitted). If greater representation of minorities on juries is sought, it must be by means that maintain a non-discriminatory random selection procedure, such as the suggestion of the federal court of appeals to supplement the lists from which the names of prospective jurors are obtained with other lists that are more likely to include the names of those minority individuals which do not appear in the most commonly used sources.
Sincerely,
J.B. Van Hollen
Attorney General
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