Trial Transfers Not Unfair to Arizona Indians, Court Rules

American Indians’ right to a fair jury is not violated when federal criminal trials in Arizona are transferred from Prescott to Phoenix, where the Indian percentage of the population is much lower, a federal appeals court ruled Tuesday.

In a 2-1 ruling upholding a Navajo man’s convictions for sex crimes, the U.S. 9th Circuit Court of Appeals said the disparities were irrelevant because there was no evidence that Indians were systematically excluded from the jury.

Indians make up 20% of the adult population in Prescott, compared to about 2% in Phoenix, defendant Johnny Footracer’s lawyer maintained.

Two of Arizona’s federal judges, including the judge in Footracer’s case, transfer all their Prescott criminal cases to Phoenix for their own convenience, said defense lawyer Eleanor L. Miller. Assistant U.S. Atty. Linda Boone disagreed and said each judge is willing to hear cases in both cities.

But the appeals court said it wouldn’t matter if every trial were moved to Phoenix. Even if the result is fewer Indian jurors, the policy is legal because it is based on geography, not race.

Under a uniform transfer policy, “Native Americans are not treated differently; they are excluded to the same extent as all other racial and ethnic groups in the Prescott Division,” said the opinion by Judge Charles Wiggins. Wiggins, joined by Judge Melvin Brunetti, also noted that jury selection from voter rolls has been upheld even when minorities were underrepresented.

Dissenting Judge Harry Pregerson said a policy that consistently transferred cases from an area with a high minority population to an area with a low population of the same group would violate the right to a representative jury unless the government presented a strong justification. He said Footracer should get a hearing on the scope of the policy.