Latinos Slighted on Grand Juries, Judge Decrees : Justice: Finding of ‘systematic discrimination’ against Latinos in selecting members for the panel is cause for dismissal of 15 indictments.

Latinos are excluded unfairly from serving on San Diego County grand juries because the county lacks an effective system for nominating them, a retired Los Angeles County judge ruled Wednesday.

Judge Albert D. Matthews found that, during the past five years, the county grand jury has not drawn its members from a fair racial cross-section of the community. Because of this finding, he said, he granted a motion filed by a group of defense attorneys to dismiss 15 indictments handed down by the 1990-91 grand jury.

“This is systematic discrimination,” said Matthews, who had presided over the six-day hearing because 13 San Diego County judges gave testimony in the case. “There are at this time no effective plans (to remedy it) . . . and, in the court’s opinion, it will go on in the future.”

Deputy Public Defender Gary Nichols, who led the challenge to the grand jury, said he was pleased by the ruling. Even though Gov. Pete Wilson recently signed legislation that will likely “cure” the problem, Nichols said he thought Matthews’ decision still sent an important message.

“I hope all the judges across the street are listening,” he said, referring to those judges who sit in the downtown courthouse. The hearing was held in the federal courthouse because of lack of space in Superior Court. “And I hope minority communities listen too. Everyone has to take responsibility.”

The pool from which grand jurors are chosen is nominated by judges. The 19 who actually serve on each one-year panel are chosen at random from the judges’ nominees.

Until last year, grand juries mainly served as watchdogs over county government. In the rare instances when they handed down indictments, those who were charged also were entitled to preliminary hearings, where they could cross-examine prosecution witnesses.

In June 1990, however, the passage of Proposition 115 eliminated the requirement of preliminary hearings for people who indicted by a grand jury. And that, Matthews said, meant that, “since 1990, it’s been very, very important that you have a cross-section of the community on the grand jury.”

Nichols and his colleagues, representing 15 people who were charged with selling rock cocaine to undercover officers in a San Diego police operation dubbed “Rock and Roll,” presented statistics that showed a significant disparity between Latino representation in the population and on the grand jury pools.

Although the 1990 U.S. Census found that 20.4% of the county’s population is Latino, Nichols said his own survey of grand jury nominees showed that Latinos never made up 20% of the grand jury selection pool.

Nichols said that, in the 1987-88 grand jury pool, Latinos made up 6% of the nominees. The next year, they were 3.1%. In 1989-90, Latinos dropped to 1.7% of the jury pool. And, in 1990-91, the year of the indictments in question, Latinos made up 3.4% of the pool, Nichols said.

Deputy Dist. Atty. Julie Whitaker countered that comparing the makeup of the grand jury pool to the makeup of the general county population is inappropriate. She said the pool should reflect instead how many jury-eligible Latinos live in the county.

According to Whitaker’s figures, of all the county residents who meet the criteria for the grand jury pool--U.S. citizenship, one year of residency, English proficiency and more than 18 years old--just 9.3% were Latino.

Whitaker said she does not deny that there are still disparities between her figures and the number of Latinos nominated to the pool. But she said that difference was caused by factors that are beyond the control of the judiciary.

“One of the major problems here is that it’s almost impossible to get anyone to serve on the grand jury,” she told the judge, noting that most people have difficulty taking a year off from work.

Whitaker said she was surprised by Matthews’ ruling and said the decision has not yet been made whether it will be appealed. As for the 15 defendants, she said it is likely that charges will be refiled against them and preliminary hearings will be scheduled--all before they are released from jail.

Nichols’ ethnicity survey of 750 grand jury nominees was conducted over about six months. He said from 70% to 80% of those he contacted responded.

Nichols said Matthews’ ruling will be largely symbolic because the governor has signed a bill into law that authorizes the presiding Superior Court judge in any county to appoint a second grand jury for criminal indictments. That grand jury would be drawn from voter registration lists, probably making them more representative of the community, rather than from the judges’ nominees, and would handle only criminal indictments.

But other defendants who were indicted by a grand jury since June, 1990, might have their indictments dismissed as well, should their lawyers decide to file similar challenges. Among those who have kept a close eye on the Matthews ruling, according to Nichols, are lawyers representing the defendants in the Ski Beach murder trial.

In April, the county grand jury indicted six members of an East San Diego street gang on murder charges in the drive-by shooting death of a girl who was attending a birthday party at Ski Beach.