An attorney who previously sued San Juan County on behalf of Navajos and Utes living there has gone back to court alleging that race discrimination still permeates the jury selection process.
Eric Swenson, Monticello, said trials are still being held using an old jury selection process that unfairly excludes American Indians who he said comprise about 60 of the population.Additionally, he said the state is dragging its feet in preparing updated lists of potential jurors.
"They insist on the right to continue trying people using the old lists. That really is the point of controversy among us. They think they should take all the time in the world to fix things, but I don't think they should continue to break they law while they're doing it," Swenson said.
But a state official said new lists are in use, the state is working cooperatively with the Navajo Nation on the issue and that Swenson is jumping the gun.
"We've told Eric the whole story, kept him apprised, asked him to please provide us with information as to why he thinks there is a discrepancy. We wanted information as to how he arrived at his figures and his response was `We'll see you in court,' " said Brent Johnson, general counsel for the Administrative Office of the Courts.
"To have a response in th manner is pretty frustrating," Johnson said.
Johnson said the Judicial Council has worked closely with the Navajo Nation to get tribal registration lists.
Johnson also disputes that the original lists were improper, but said the Judicial Council is renovating the selection process because it's the right thing to do -not because of any legal action by Swenson.
"We think we're breaking new ground here," Johnson said.
Swenson originally represented a local resident, Loren Crank Jr., and then all Indians living in the county in a 1993 class action suit against the Utah Judicial Council and three 7th District judges: Lyle Anderson, Bryce Bryner and Bruce Haliday.
The suit contended that no American Indian showed up on a jury pool list from 1932 to 1970 despite the fact that members of the Ute and Navajo tribes at that time made up about half the population.
The suit was settled and, while the Judicial Council did not admit any wrongdoing, court officials agreed to develop a more representative jury pool beginning in 1997.
But Swenson said it's still business as usual in the San Juan County courts.
"The experimental lists (provided by the Judicial Council) are for discussion purposes to determine whether procedures they're using will achieve the desired result," Swenson said. When it comes to trials, "They continue to use the same lists that greatly underrepresent the Native Americans."
Further, Swenson said he has been the one to make overtures to the Judicial Council to resolve the matter. "I've asked them to indicate some willingness to settle the issue," he said. "They didn't indicate any interest in me forwarding any settlement proposals to them."
As a result, Swenson and the ACLU filed papers May 5 claiming that discriminatory practices still exist and asked that Judge David E. Roth of Ogden, who is presiding over the matter, schedule this for trial.
One issue appears to be how the numbers are calculated.
The consent decree that resulted from the 1993 action called for the Judicial Council to produce lists that are within 5 percent of the estimated percentage of American Indians living there.
Johnson said this has been achieved and said he "strongly disputes" Swenson's claim that current lists do not accurately reflect the Indian population.
But Swenson said his calculations show the lists fall short by as much as 18 percent.