Black people are underrepresented on pools from which grand jurors and trial jurors are selected in East Baton Rouge Parish, attorneys argue in the case of a black man accused of beating his 8-year-old son to death in 2012.

In court filings, the attorneys are asking state District Judge Don Johnson to ensure that Michael Robertson's trial jury is selected from a list that represents "a fair cross-section of the community."

Lawyers Jim Craig and Christine Lehmann also are urging the judge to quash, or throw out, Robertson’s 2012 first-degree murder indictment in the death of Xzayvion Riley and order a new indictment proceeding.

Robertson, 52, of Baton Rouge, faces a sentence of life in prison if convicted as charged. He is set to go on trial next month.

Prosecutors are not seeking the death penalty against Robertson or Xzayvion's mother, Lavaughn Riley, 38, who also was indicted on first-degree murder. Robertson was Riley's boyfriend at the time of their son's death.

Xzayvion's death, according to prosecutors, was the result of an "escalating pattern" of physical abuse at the hands of Robertson. Riley, however, has admitted in court testimony that she beat her son on a previous occasion.

Robertson is scheduled to stand trial Jan. 14. Riley does not have a trial date. Her attorney has said that Riley intends to testify against Robertson.

Robertson also is requesting that his trial be moved outside of East Baton Rouge because the case has been the focus of a "barrage" of media coverage. His attorneys claim he cannot receive a fair trial in the parish.  

But before potential jurors are summoned in Robertson's case, Craig and Lehmann say a "major issue" must be addressed — the alleged disproportionate percentage of blacks on trial jury pools.

The population of East Baton Rouge is 46.5 percent black, they argue, but only about 32 percent of the people on 19th Judicial District Court jury pools in 2017 and the first half of this year were black.

"This corresponds with the fact that 32.8 percent of the people sent jury summonses during the same time period were black," they wrote in a motion filed Nov. 28.

Craig and Lehmann say the impact of diverse juries cannot be overstated.

"Studies on jury deliberations have shown that racially diverse juries deliberate more extensively, consider more facts, make less factual errors in deliberation and are more willing to tackle difficult topics in deliberations than single-race juries," they assert in their court filings.

Robertson's attorneys note that the U.S. Constitution's Sixth Amendment guarantees a defendant the right to a jury that represents a fair cross-section of the community in both trial and grand juries.

East Baton Rouge Parish District Attorney Hillar Moore III agrees race cannot play a role in jury selection.

"Every defendant has a right to be judged by his peers coming from a cross section of the community," he said Friday in an email. "We do not believe the defendant's challenges will be successful and look forward to presenting our case at a hearing on these motions."

Robertson's attorneys also allege blacks were routinely excluded from grand jury pools in East Baton Rouge in 2012, when he was indicted. That year, only 31.5 percent of the people in grand jury pools in the parish were black, they say. The 2010 census put the parish's black population at 46.5 percent.

Johnson is set to hear Robertson's motions Dec. 17. Robertson's attorneys have subpoenaed Ann McCrory, the 19th JDC's judicial administrator and jury management coordinator for the hearing. She said she could not comment on the matter.

Craig and Lehmann argue that the bulk of non-responses to jury questionnaires sent out by the 19th JDC jury management office cannot be attributed to "individual choice" but rather to the 19th JDC's failure to maintain accurate addresses for prospective jurors. They estimate about 65 percent fall into that category.

"Prospective jurors are faced with a substantial obstacle in serving on a jury when the agency tasked with sending out summons maintains inaccurate information and can never make contact in order for prospective jurors to be able to participate in the jury selection process," they contend.

Robertson's attorneys suggest that jury questionnaires, sent out before jury summonses are issued, could be delivered more effectively through a certified or verified delivery process rather than by regular mail.

Xzayvion died of overwhelming infection caused by a ruptured bowel from blunt force trauma to his abdomen, coroner's officials determined. An autopsy revealed dozens of external signs of recent and past trauma.

     

Follow Joe Gyan Jr. on Twitter, @JoeGyanJr.