Baltimore County Circuit Court officials are changing the way the county picks juries because of the disclosure last week that the jury commissioner has been improperly excusing potential jurors, a practice a judge called unconstitutional.
"I'm telling you, that's got to stop," Judge John F. Fader told Jury Commissioner Nancy Tilton in court. "And believe me, it will."
The main problem, Fader said, is that Tilton was automatically excusing anyone who said he or she had day care problems. She would also excuse others for a variety of reasons without making them come into court and give their excuses to a judge.
Tilton declined to comment. But jury commissioners outside Baltimore County said they had authority from judges to excuse some people.
"The judges are bogged down enough," said Marilyn Tokarski, the Baltimore City jury commissioner.
She and the Anne Arundel County jury commissioner, Lois E. Rowe, also said they routinely excuse people who say they need to take care of their children. Jury commissioners in Howard and Carroll County could not be reached for this article.
The Supreme Court ruled in the 1970s that parents caring for young children should not be relieved from jury duty. Such a policy would render the jury pool mostly male, said Byron L. Warnken, an associate professor of law at the University of Baltimore School of Law.
"Fader was recognizing, `We've got a problem here,'" Warnken said. "Conceivably, every verdict that came out of one of these juries violated the 1970s Supreme Court decisions."
The issue arose in Baltimore County last week during pretrial proceedings in a scheduled death penalty murder trial.
Defense lawyer Katy O'Donnell had asked to see the profiles of potential jurors who had been excused to make sure the jury was "selected at random from a fair cross section" of county residents, as required by Maryland law.
In most cases, lawyers would not ask to review the jury selection process, attorneys said, but in death penalty cases every legal step is under a magnifying glass.
When Tilton brought Fader a stack of forms, each from a juror she said she had excused, the judge was clearly agitated.
One person had a 94-year-old mother who recently moved to a retirement community; another was a doctor who had to see patients. A stay-at-home mother said she had no child care. Another person said he or she could not serve on a jury because "my job is very critical and nobody else can do it."
Tilton, a 25-year-veteran of the jury commissioner's office, said in court that she has had the authority in the past to excuse some people on a case-by-case basis. She also told Fader that her office automatically excuses people with day care problems.
"Don't do it anymore," the judge told her.
O'Donnell's client, Eugene E. Winder, pleaded guilty less than two days after the jury issue came up. If he had not, the court probably would have had to call a new jury pool, a process that would have likely postponed the trial for months.
"Arguably, every verdict that has come out of this courthouse is constitutionally impaired," Warnken said.
He acknowledged, though, that it would be difficult to prove that one specific jury was unconstitutional.
"I can't imagine that would have any effect on any other case that has ever been tried," said Steve Bailey, a deputy state's attorney in Baltimore County.
In most jury cases, both sets of attorneys say on the record that the jury is acceptable. That, Bailey said, waives any future objection.