Rubin challenges jury pool in Atlanta Public Schools trial

Source: “Jury pool challenged at Atlanta Public Schools trial,” by Bill Rankin, Atlanta Journal-Constitution, August 21, 2014.

Defense lawyers are challenging the pool of prospective jurors for the Atlanta Public Schools test-cheating trial, saying a hearing is needed to find out why African-Americans are so underrepresented.

The challenge is based on the racial composition of the 600 potential jurors who have been summoned to the Fulton County Courthouse over the past two weeks in preparation for the months-long trial.

A review of this pool by a defense expert found that 56.46 percent of those in the pool are white, 35.22 percent are black, 4.42 percent are Asian-American and 3.89 percent are other races, said the motion, filed Thursday by defense attorney Bob Rubin.

The most recent American Community Survey for the U.S. Census shows the eligible jury population for Fulton County is 48.35 percent white, 46.35 percent African-American and 5.41 percent other races, the motion said.

Superior Court Judge Jerry Baxter initially said he believed the motion was filed too late because jury selection had already begun. But he later decided to hold a hearing on Monday to see if the motion was properly filed and deserves more scrutiny.

If an evidentiary hearing must be held later to determine why blacks are so underrepresented, jury selection may have to be suspended, Baxter said.

“I guess we can keep everybody in suspense” about when opening arguments in the trial will start, he said. Baxter added that his “gut instinct” was telling him the challenge was not properly filed.

The challenge was not filed to delay the trial, said Rubin, who represents former principal Dana Evans. “It’s because of our serious concerns over the fairness of the trial.”

Twelve former APS administrators and educators are charged with conspiring to change students’ answers on standardized tests. All are African-American.

When drawing pools of prospective jurors from the hundreds of thousands of those eligible to serve in Fulton County, fluctuations in the percentages of each demographic group are expected because of the “luck of the draw,” said Jeffrey Martin, an expert in statistics and jury demographics who is working for the defense.

“That is, the draw might reflect more of one group or another due merely to chance,” Martin said in a sworn affidavit attached to the challenge. But the 600-person pool — so large because of the expected length of the trial and because of intense pretrial publicity — is big enough to undergo a statistical analysis, he said.

A threshold of two to three standard deviations is considered statistically significant, Martin said. The percentage of blacks in the APS trial pool is more than five standard deviations too low when compared to the population of blacks eligible to serve on Fulton juries, he said.

“In this case, the draw of so few African-Americans is not just by ‘luck of the draw’ or chance, but due to some other systematic factor such as the jury list not being representative or the draw not being random,” Martin said.