Accused Ga. killer counts on Census as part of creative legal argument, wants charges dropped

Accused Ga. killer uses creative legal argument

ATLANTA — A Georgia man accused of killing two people used an innovative legal strategy Monday in an attempt to get his murder charges dismissed. Call it the Census defense.

Floyd Wayne Williams Jr. wants the charges dropped — or at least his trial delayed — until the 2010 Census is done so that a jury more accurately reflecting the county’s racial makeup can be chosen. Williams, who is black, is to be tried in the south Atlanta’s Clayton County, which has seen a surge in African-American residents since the 2000 Census.

Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver’s license data and utility records. The list is then balanced by race and gender from the Census to reflect a cross-section of the population.

Williams, 31, argued his constitutional rights will be violated if he is tried by a jury drawn from the 2000 Census, when the black population was 50.6 percent, instead of 2007, when the number had swelled to 64.5 percent.

There has been an increase in attorneys using a jury’s racial makeup as a defense argument, in particular as Hispanic and black populations in parts of the country have swelled since the 2000 Census, said Jeffrey Abramson, a professor at the University of Texas School of Law who has written a book about the role of juries.

The U.S. Supreme Court could soon decide whether a Michigan man’s murder convictions should have been tossed out because there were too few black residents in a county’s jury pool. Diapolis Smith, who is black, was convicted by an all-white jury for shooting a man in Grand Rapids in 1991.

“It does seem to be a systemic problem nationwide, because it’s difficult updating the list and also because the courts are reluctant to fault the existing lists,” Abramson said.

The challenges like Williams’ are difficult to win, though, he said.

“There’s just a sense that we do the best we can, that it would be difficult to find a list that is more representative,” Abramson said.

Williams’ case has been drawn out since he was charged in 2002 with fatally shooting 48-year-old Alejandro Javier Gutierrez-Martinez and Jose Simon Arias, who was 16 months old, during a 2001 home invasion.

State prosecutors soon announced they would seek the death penalty, but before the trial started Williams escaped the county jail in 2003. He was caught in Baltimore and is currently in jail in Georgia.

At a hearing Monday, Williams’ attorneys contended that Clayton County should either use the 2007 population estimate or wait until the 2010 Census is completed.

“The estimate in 2007 is more accurate than the 2000 Census. The further we get away from that, the less accurate we are,” said Christian Lamar, a Williams attorney. “And right now we know, we absolutely know, that the numbers from the 2000 Census do not reflect what we have today.”

State attorney Lalaine Briones said waiting for the 2010 Census — which won’t begin its tally until later this year — is an unnecessary delay. And forcing county jury administrators to use annual Census estimates each year would burden them, she said.

“The defendant has no right to a jury that perfectly mirrors the county’s population,” said Briones. “He does have a right to a jury system that does not intentionally discriminate against a group.”

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