Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`UNITED STATES OF AMERICA,
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`
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`v.
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`JAYSON JEFFREY PENN, et al.,
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`
`
`
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`Case No. 1:20-cr-00152-PAB
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`
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`
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`Defendants.
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`
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` MR. BLAKE’S MOTION FOR
`DISCOVERY OF JURY SELECTION PROCEDURES
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`Pursuant to 28 U.S.C. § 1867(f), Rickie Blake respectfully moves for discovery of this
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`Court’s jury selection plan and any related COVID-19 juror excuse policies. Mr. Blake has an
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`unqualified statutory right to documents reflecting and related to the procedures by which his
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`grand jury was selected and a future petit jury will be selected.
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`A grand jury returned the Superseding Indictment in this case on October 6, 2020, in the
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`midst of the COVID-19 pandemic. See Superseding Indictment, ECF No. 101. Prospective
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`grand jurors may have deferred or been excused from jury service by, for example, indicating
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`that they had an underlying medical condition that put them at a higher risk of developing serious
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`health complications from COVID-19 or that they live with, or provide direct care for, someone
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`with such a condition. Even if the grand jury was empaneled prior to the commencement of the
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`pandemic, grand jurors may have been excused from service in light of COVID-related concerns.
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`Additionally, in the absence of any cure for COVID-19 on the immediate horizon, trial in this
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`

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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 2 of 16
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`matter may be held when the pandemic will be ongoing, and prospective jurors who receive a
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`summons for jury service may seek to defer their service or be excused in light of concerns about
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`contracting COVID-19.
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`
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`The COVID-19 pandemic has affected distinctive groups differently. Accordingly, the
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`process by which a grand jury or petit jury is ordinarily selected may not comply with the fair
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`cross-section requirement during the unprecedented COVID-19 pandemic and any adjustments
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`made to the ordinary jury selection process may not resolve, and can even exacerbate, these
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`concerns. As such, Mr. Blake respectfully seeks discovery related to the jury selection plan
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`during the COVID-19 pandemic to ensure that his Fifth and Sixth Amendment rights are not
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`violated.1
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`DOCUMENT REQUESTS
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`
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`Mr. Blake requests the following documents be produced by the Clerk of the Court or, to
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`the extent they are in the Government’s possession, by the Government:2
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`
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`1 The phrase “during the COVID-19 pandemic,” as used in this motion, refers to the time period
`from March 13, 2020 to present, during which the COVID-19 pandemic has affected operating
`procedures in this District. On March 13, 2020, Chief Judge Brimmer suspended “all civil,
`criminal petit, and grand jury selections and jury trials” in this District, effective immediately,
`through April 3, 2020.
` Gen. Order 2020-2
`(D. Colo. Mar. 13, 2020),
`https://tinyurl.com/y6ba9dg7. All grand jury proceedings subsequently were suspended, such
`that “a grand jury within the District of Colorado [was] not available,” from March 27 until May
`29, 2020. See Gen. Order 2020-3 (D. Colo. Mar. 27, 2020), https://tinyurl.com/yckzyefd (grand
`jury proceedings suspended through May 1, 2020); Gen. Order 2020-6 (D. Colo. Apr. 21, 2020),
`https://tinyurl.com/y6ph44fy (grand jury proceedings suspended through May 29, 2020). Jury
`Division 3 stopped convening grand juries as of August 3, 2020 and has yet to resume doing so.
`Gen. Order 2020-11 (D. Colo. July 2, 2020), https://tinyurl.com/y3pqua28. And criminal jury
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`trials have remained suspended since March 13, 2020, with limited exception.
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`2 Throughout these requests, “documents” includes electronic data and, to the extent that
`documents and/or data are kept in accessible electronic form, Mr. Blake requests them in that
`form.
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`2
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`

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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 3 of 16
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`(1)
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`(2)
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`(3)
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`(4)
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`(5)
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`(6)
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`(7)
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`(8)
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`(9)
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`The Jury Plan for the District of Colorado currently in effect, if different from that
`available on the Court’s website (Revised Jury Plan for Random Jury Selection,
`U.S. D. CT. D. COLO., Mar. 1, 2017, https://tinyurl.com/y3ekg9td (“D. Colo. Jury
`Selection Plan”)), and a description of any changes that have been made in the
`selection of prospective jurors due to the COVID-19 pandemic, to the extent not
`otherwise stated in the Court’s Jury Trial Protocols (Jury Trial Protocols, U.S.
`D. CT. D. COLO., June 30, 2020, https://tinyurl.com/y6aspn84));
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`Documents sufficient to show: (a) the Race, Religion, Sex, Gender, Ethnicity,
`Year of Birth, Zip Code, Income, and Occupation of all grand juries empaneled in
`the District during the COVID-19 pandemic; (b) the Race, Religion, Sex, Gender,
`Ethnicity, Year of Birth, Zip Code, Income, and Occupation of all grand jury
`members excused or deferred from participating in a grand jury after it was
`empaneled in the District; and (c) the Race, Religion, Sex, Gender, Ethnicity,
`Year of Birth, Zip Code, Income, and Occupation of any grand jury members
`added after a grand jury was originally empaneled in the District;
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`The Juror Qualification Questionnaire distributed to potential grand or petit
`jurors, as contemplated in Section 14 of the Court’s Plan, and any additional
`forms being distributed during the COVID-19 pandemic;
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`The District’s two most recently submitted AO-12 forms;
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`Documents sufficient to show: Race, Religion, Sex, Gender, Ethnicity, Year of
`Birth, Zip Code, Income, and Occupation for those individuals on the Master Jury
`Wheel in this District;
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`Documents sufficient to show: Race, Religion, Sex, Gender, Ethnicity, Year of
`Birth, Zip Code, Income, and Occupation for those individuals eligible for jury
`service in this District;
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`Documents sufficient to show: Race, Religion, Sex, Gender, Ethnicity, Year of
`Birth, Zip Code, Income, and Occupation for those individuals (a) to whom
`summonses and jury questionnaires were sent, as contemplated by Sections 11,
`12, and 15 of the Court’s Plan, and (b) those deemed qualified for jury service, as
`contemplated by Section 16 of the Court’s Plan;
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`Documents identifying all excuses received from potential jurors and, separately,
`all excuses accepted from potential jurors, for the District, as contemplated by
`Sections 17 and 18 of the Court’s Plan, during the COVID-19 pandemic;
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`Documents reflecting any policies or practices established by the Court or Clerk’s
`Office for excusing grand or petit jurors during the COVID-19 pandemic;
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`3
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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 4 of 16
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`(10)
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`(11)
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`Documents sufficient to show: Race, Religion, Sex, Gender, Ethnicity, Year of
`Birth, Zip Code, Income, and Occupation for all prospective jurors for the District
`who have been excused from or granted a deferral of their jury service based on
`the COVID-19 pandemic; and
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`Once criminal trials in this District resume and a trial schedule in this matter is
`set, any additional documents or data responsive to Request Nos. 2–3 and 5–10
`for the period between March 13, 2020 and 30 days before voir dire in this matter.
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`ARGUMENT
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`
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`The Fifth and Sixth Amendments to the United States Constitution guarantee a criminal
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`defendant the right to an impartial grand and petit jury. U.S. CONST. amends. V, VI. The
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`Supreme Court has held that “the presence of a fair cross section of the community on venires,
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`panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth
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`Amendment’s guarantee of an impartial jury trial in criminal prosecutions.” Taylor v. Louisiana,
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`419 U.S. 522, 526, 530–31 (1975); accord United States v. Orange, 447 F.3d 792, 797 (10th Cir.
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`2006) (“The Sixth Amendment guarantees a defendant the right to a jury pool consisting of a fair
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`cross section of the community.”). Further, the Court has explained that “[t]he Fifth Amendment
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`requires the Federal Government to use a grand jury to initiate a prosecution” and, because the
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`grand jury “controls not only the initial decision to indict, but also significant decisions such as
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`how many counts to charge and whether to charge a greater or lesser offense, . . . [t]he integrity
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`of these decisions depends on the integrity of the process used to select the grand jurors.”
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`Campbell v. Louisiana, 523 U.S. 392, 398–99 (1998); see Peters v. Kiff, 407 U.S. 493, 501, 504
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`(1972) (plurality op.) (“[W]hatever his race, a criminal defendant has standing to challenge the
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`system used to select his grand or petit jury, on the ground that it arbitrarily excludes from
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`service the members of any race, and thereby denies him due process of law.”); see also United
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`4
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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 5 of 16
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`States v. Serubo, 604 F.2d 807, 816 (3d Cir. 1979) (“In federal criminal proceedings, the right to
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`indictment by an unbiased grand jury is guaranteed by the fifth amendment.”).
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`
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`To protect these rights, Congress passed the Jury Selection and Service Act of 1968
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`(“JSSA”), which made it “the policy of the United States that all litigants in Federal courts
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`entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair
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`cross section of the community in the district or division wherein the court convenes.” 28 U.S.C.
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`§ 1861. For the reasons set forth below, Mr. Blake has a statutory right under the JSSA to
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`discovery of materials relating to jury selection. His Document Requests, listed above (supra at
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`2–4), should be granted because they are necessary for him to evaluate whether the
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`unprecedented COVID-19 pandemic and the jury selection process and policies in place during
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`the pandemic result in the impermissible exclusion of distinctive groups. See 28 U.S.C.
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`§ 1867(f).
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`I.
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`MR. BLAKE HAS AN UNQUALIFIED STATUTORY RIGHT TO DISCOVERY
`OF THE JURY SELECTION MATERIALS HE REQUESTS.
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`The JSSA provides that a defendant “may move to dismiss the indictment or stay the
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`proceedings against him on the ground of substantial failure to comply with the provisions” of
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`the statute in selecting the grand jury or petit jury. 28 U.S.C. § 1867(a). A violation is
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`“substantial” if it frustrates any of three principles on which the JSSA is based: “(1) the random
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`selection of jurors, (2) culling of the jury from a fair cross-section of the community, and (3) the
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`determination of disqualifications, exemptions, and exclusions based on objective criteria.”
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`United States v. Kamahele, 748 F.3d 984, 1022 (10th Cir. 2014). “The contents of records or
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`papers used by the jury commission or clerk in connection with the jury selection process shall
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`not be disclosed, except . . . as may be necessary in the preparation or presentation” of such a
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`5
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`

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`motion. 28 U.S.C. § 1867(f). That motion must be filed “before the voir dire examination
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`begins, or within seven days after the defendant discovered or could have discovered, by the
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`exercise of diligence, the grounds . . . [for the motion], whichever is earlier.” Id. § 1867(a).
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`Section 1867(f) creates an “unqualified right to inspect jury lists.” Test v. United States,
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`420 U.S. 28, 30 (1975) (per curiam) (emphasis added). “Because the right of access to jury
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`selection records is ‘unqualified,’ a district court may not premise the grant or denial of a motion
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`to inspect upon a showing of probable success on the merits of a challenge to the jury selection
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`provisions.” United States v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996); accord United States
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`v. Williamson, 903 F.3d 124, 133 (D.C. Cir. 2018) (district court erred in denying defendant
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`access to jury commission records); United States v. Curry, 993 F.2d 43, 44 (4th Cir. 1993)
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`(district court erred in denying defendant access to master list of jurors from which grand jury
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`indicting him was selected; remanding to allow review of jury list and opportunity to move for
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`new trial); United States v. Lawson, 670 F.2d 923, 926 (10th Cir. 1982) (district court erred by
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`denying motion to inspect and copy jury selection materials pursuant to § 1867(f); remanding for
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`opportunity to inspect records and file motion, with instruction that defendant’s conviction be set
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`aside if defendant established that method of jury selection violated the law); Government of
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`Canal Zone v. Davis, 592 F.2d 887, 888–89 (5th Cir. 1979) (district court erred in denying
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`defendant access to jury selection records; reversing convictions and remanding for appellants to
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`determine whether jury selection process warrants challenge and whether to exercise their right
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`to a jury trial); see also United States v. Hicks, No. 07-cr-184-WYD, 2008 WL 5396013, at *1
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`(D. Colo. Dec. 22, 2008) (citing Test for rule that “an unqualified right to inspect jury lists, in
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`connection with preparation of motions challenging jury selection procedures, is required by
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`6
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`both the plain text of the Jury Selection and Service Act and its overall purpose of insuring grand
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`and petit juries selected at random from a fair cross section of the community” (internal
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`quotation marks omitted)).
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`Mr. Blake seeks to exercise his statutory right to discovery. He makes his discovery
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`requests for the purpose of considering and preparing a motion for relief in light of the COVID-
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`19 pandemic. Further, each of his requests falls squarely within the ambit of § 1867(f), because
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`it pertains to “[t]he contents of records or papers used by the jury commission or clerk in
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`connection with the jury selection process.” 28 U.S.C. § 1867(f).
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` Similar requests have recently been granted by a number of courts. For example, in
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`United States v. Merrick, No. 20-cr-009-JD, 2020 WL 4808634 (D.N.H. Aug. 18, 2020), the
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`court granted the defendant’s request for discovery of grand juror selection procedures and any
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`related COVID-19 excuse policies under § 1867(f) in order to evaluate whether to file a motion
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`to dismiss premised on the impermissible exclusion of African Americans and other minorities
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`from the grand jury. See also United States v. Sullivan, No. 20-cr-337-WHO-1, 2020 WL
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`5944433 (N.D. Cal. Oct. 7, 2020) (in case where indictment was returned during COVID-19
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`pandemic, granting § 1867(f) motion for access to grand jury selection materials in order to
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`determine whether to seek relief); United States v. Holmes, No. 18-cr-258-EJD-1, 2020 WL
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`5408163 (N.D. Cal. Sept. 9, 2020) (in case where superseding indictments were returned during
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`COVID-19 pandemic, granting in part § 1867(f) motion for discovery).
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`7
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`II.
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`THE REQUESTED MATERIALS ARE NECESSARY FOR MR. BLAKE TO
`EVALUATE WHETHER TO SEEK RELIEF BASED ON HIS FIFTH AND
`SIXTH AMENDMENT RIGHTS TO AN IMPARTIAL JURY.
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`
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`As noted above, Mr. Blake need not make any showing to entitle him to discovery of jury
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`selection materials pursuant to 28 U.S.C. § 1867(f). See supra at 6–7. Nonetheless, Mr. Blake
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`demonstrates below that he seeks only materials “as may be necessary in the preparation or
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`presentation of a motion under [§ 1867(a)].” 28 U.S.C. § 1867(f) (emphasis added).
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`A.
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`The Document Requests seek information necessary to determine whether
`distinctive groups of jurors are being systematically excluded from jury
`selection in a statistically significant way.
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`
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`Mr. Blake’s Document Requests are drafted to provide him with the information
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`necessary to consider each element of the governing test for evaluating whether a jury selection
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`procedure provides for a fair cross section of jurors from the community. To demonstrate that
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`his constitutional rights are violated by any particular jury selection procedure, Mr. Blake would
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`need to show:
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`(1) that the group alleged to be excluded is a ‘distinctive’ group in
`the community;
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`(2) that the representation of this group in venires from which
`juries are selected is not fair and reasonable in relation to the
`number of such persons in the community; and
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`(3) that this underrepresentation is due to systematic exclusion of
`the group in the jury-selection process.
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`Duren v. Missouri, 439 U.S. 357, 364 (1979); accord Berghuis v. Smith, 559 U.S. 314, 327
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`(2010).
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`
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`African Americans and Hispanics are “distinctive” groups of jurors. See Holland v.
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`Illinois, 493 U.S. 474, 478–80 (1990) (“It has long been established that racial groups cannot be
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`8
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`

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`excluded from the venire from which a jury is selected.”); Garcia-Dorantes v. Warren, 801 F.3d
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`584, 600 (6th Cir. 2015) (African Americans and Hispanics are “distinctive” groups); United
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`States v. Carmichael, 560 F.3d 1270, 1280 (11th Cir. 2009) (African Americans are a
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`“distinctive” group); United States v. Weaver, 267 F.3d 231, 240 (3d Cir. 2001) (African
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`Americans and Hispanics are “distinctive” groups); United States v. Lara, 181 F.3d 183, 192 n.1
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`(1st Cir. 1999) (Hispanics are a “distinctive group”; collecting cases from Second and Ninth
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`Circuits holding the same); United States v. Shinault, 147 F.3d 1266, 1271–72 (10th Cir. 1998)
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`(Government conceded that “Asians, Blacks, and Hispanics are all distinctive groups”); United
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`States v. Gault, 141 F.3d 1399, 1402 (10th Cir. 1998) (Government conceded that “Hispanics,
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`Native Americans and African Americans are distinct groups”).
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`
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`Likewise, the disparate exclusion of those who fall within a broad age group may result
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`in the exclusion of a distinctive group. See United States v. DiTommaso, 405 F.2d 385, 391 (4th
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`Cir. 1968) (“A community cross-section, however, will invariably contain a broad representation
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`of individuals of various ages.”).3
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`In order to determine whether representation of any distinctive group is not “fair and
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`reasonable” under the second prong of the Duren test, Mr. Blake needs data with which he can
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`compare those in the community to those in the jury pools in this District. See 439 U.S. at 364–
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`66 (data from which statistical comparisons can be drawn is necessary to make out the second
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`
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`3 Although the Supreme Court has held that “the young” (defined as those under age 25) do not
`constitute a cognizable group (Hamling v. United States, 418 U.S. 87, 137 (1974) (pre-Duren);
`see also United States v. Green, 435 F.3d 1265, 1271 (10th Cir. 2006) (noting that other courts
`have held that “younger people” and “persons over 70” are not distinctive groups)), this authority
`involves the exclusion only of relatively narrow age groups, i.e., the youngest or the oldest
`9
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`

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`and third prongs). In this Circuit, the second prong of Duren is evaluated in relation to the
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`absolute and comparative disparities of a distinct group’s representation in the community as
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`compared to the jury pool or venire, and “[c]ensus data and the responses to the juror
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`qualification questionnaires are used to compute these statistics.” Gault, 141 F.3d at 1402. The
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`Document Requests seek the demographic data required to make these comparisons (Request
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`Nos. 2, 4–7, 11). See, e.g., Duren, 439 U.S. at 364–66 (where women make up 50% of the
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`population, but jury venires contained only 15% women, those venires were not “reasonably
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`representative” of community); Shinault, 147 F.3d at 1272 (when evaluating whether District of
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`Kansas’ jury selection procedures unconstitutionally excluded Asians, Blacks, and Hispanics
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`from jury service, appropriate to compare “minorities’ percentages on the qualified wheel to their
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`percentage in the entire community”).
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`The third prong of the Duren test (“systematic exclusion”) requires a showing of
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`exclusion over time, i.e., that the exclusion is “inherent in the particular jury-selection process
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`utilized.” 439 U.S. at 366. The Document Requests seek information during the pandemic
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`relating to the procedure by which jurors are considered for service (Request Nos. 1, 3, 9);
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`excuses given by jurors and accepted by the Court for excusing or deferring jury service
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`(Request No. 8); and data reflecting those excused from service or whose service was deferred
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`(Request Nos. 10–11). This information will reflect the Court’s jury selection practices during
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`the COVID-19 pandemic and allow Mr. Blake to determine whether the Court’s procedures are
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`systematically causing distinctive groups to be excluded over this extended period in a manner
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`potential jurors. The exclusion of a broad band of ages likely would deprive a defendant of a
`cross-section of the community.
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`10
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`

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`that violates his Sixth Amendment rights. See Sullivan, 2020 WL 5944433, at *4 (granting
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`§ 1867(f) motion and agreeing that “the grounds for excusal and the disposition of juror
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`qualifications [during the COVID-19 pandemic] are directly relevant to whether the grand jury
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`was selected at random”); see also, e.g., Duren, 439 U.S. at 366 (“systematic exclusion” shown
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`where “large discrepancy occurred not just occasionally but in every weekly venire for a period
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`of nearly a year”).
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`B.
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`There is reason to believe distinctive groups may be disproportionately being
`improperly excluded from jury service in the District of Colorado during the
`pandemic.
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`1.
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`African-American and Hispanic individuals may be disproportionately
`being excluded from the jury selection process during the pandemic.
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`
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`After many months of enduring and studying the coronavirus, it is now well known that
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`COVID-19 does not affect all individuals equally. Medical professionals have confirmed that
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`people of color are at “increased risk of getting sick and dying from COVID-19.” Health Equity
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`Considerations and Racial & Ethnic Minority Groups, CTRS. FOR DISEASE CONTROL &
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`PREVENTION (July 24, 2020), https://tinyurl.com/ybwns8j7.
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`
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`Data from the Colorado Department of Public Health and Environment released in late
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`August reflected that “Hispanic people have accounted for nearly 38% of all patients
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`hospitalized for COVID-19 between March 1 and Aug. 15, even though they represent just 22%
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`of Colorado’s overall population,” and Black people in Colorado “make up almost 5% of the
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`state’s population, but account for nearly 10% of the COVID-19 hospitalizations.” Dallas
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`Heltzell, Minorities still hit harder by COVID-19 in state, BIZWEST (Sept. 2, 2020),
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`https://tinyurl.com/y4mw23lk;
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`John
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`Ingold, Hispanic, Black Coloradans have been
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`disproportionately hospitalized because of coronavirus, COLORADO SUN (Aug. 20, 2020),
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`11
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`https://tinyurl.com/y48kfz7x. In particular, in Denver, COVID-19 cases among Hispanic people
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`consistently have far outpaced those of other groups:
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`
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`Evan Wyloge, Colorado’s Hispanics remain hardest hit by coronavirus, COLORADO SPRINGS
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`GAZETTE (Sept. 6, 2020), https://tinyurl.com/y5c3kjxd. Nationwide, the number of COVID
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`cases among Blacks is 2.6 times that of the general population and the hospitalization rate is 4.7
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`times higher. COVID-19 Hospitalization and Death by Race/Ethnicity, CTRS. FOR DISEASE
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`CONTROL & PREVENTION, https://tinyurl.com/yx9esqs7 (last updated Aug. 18, 2020). Similarly,
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`a Hispanic or Latino person’s rate of contracting COVID-19 is 2.8 times higher than the general
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`population, and his or her hospitalization rate is 4.6 times higher. Id.
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`A number of courts have acknowledged the disparate effect coronavirus has had on racial
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`minorities. In the course of granting compassionate release under 18 U.S.C. § 3582(c)(1)(A),
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`courts have cited race as a reason an individual may be more susceptible to suffering extreme
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`12
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`illness or dying from COVID-19. See, e.g., United States v. Mason, No. 17-cr-195 (TSC), 2020
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`WL 4199553, at *1–2 (D.D.C. July 10, 2020) (“The COVID-19 fatality rate increases with age,
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`is higher for men than women, and is among the highest for African Americans.”); Order at 10,
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`United States v. Kellogg, No. 1:12-cr-383-CAP-JCF-1 (N.D. Ga. July 8, 2020), ECF No. 405
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`(noting that African Americans “are five times as likely to be hospitalized or die from COVID-
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`19 than a non-Hispanic white person”).
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`
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`Recent studies confirm that African American and Hispanic prospective jurors are less
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`likely to appear in the jury pool during the COVID-19 pandemic:
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`A June [2020] survey of 1,000 registered voters conducted by the
`National Center for State Courts [(“NCSC”)] found that 64% of
`Latino respondents and 58% of Black respondents said they’d
`report for jury duty, compared to 69% of whites. . . . The NCSC
`poll found those least likely to report for jury duty during the
`pandemic were Black and Latina women across the age spectrum,
`as well as older white women. The demographic pools most likely
`to show up were younger white men, conservative white men, and
`white men without a college degree.
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`Carla Bayles, Can You Get A Fair Jury Trial During The Pandemic?, LAW360 (Aug. 30, 2020),
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`https://tinyurl.com/y5u9lygu. Experts tether these distinctive groups’ decreased representation in
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`jury pools specifically to the disproportionate effect that coronavirus is having on them. See id.
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`2.
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`Certain age groups may be disproportionately being excluded from the
`jury selection process during the pandemic.
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`Although an individual of any age can contract COVID-19, the disease has proven
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`substantially more harmful and often lethal for older adults. Recent data reflects that those
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`between the ages of 30 and 39 are twice as likely to be hospitalized from COVID-19 and four
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`times as likely to die as those aged 18 to 29; those between the ages of 40 and 49 are three times
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`as likely to be hospitalized from COVID-19 and ten times as likely to die as those aged 18 to 29;
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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 14 of 16
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`and those between the ages of 50 and 64 are four times as likely to be hospitalized from COVID-
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`19 and thirty times as likely to die as those aged 18 to 29.4
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`The Document Requests will help determine whether individuals in a distinctive age
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`group are disproportionately being excluded from the jury pool during the pandemic because
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`they are being excused from jury service or having their jury service deferred. If so, Mr. Blake’s
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`right to have had a grand jury drawn from a fair cross section of the community may have been
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`violated.5
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`CONCLUSION
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`Mr. Blake seeks discovery of the District of Colorado’s jury selection procedures
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`pursuant to his unqualified statutory right of access to those materials. See 28 U.S.C. § 1867(f).
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`Each of his Discovery Requests falls within the letter of the statute and is necessary to help him
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`understand whether the jury selection procedures in place in this District during the COVID-19
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`pandemic comport with his Fifth and Sixth Amendment rights to an impartial jury drawn from a
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`fair cross section of the community and, if not, to help him prepare a motion for relief.
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`Mr. Blake has reason to be concerned that the jury selection procedures and policies in place
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`during the unprecedented COVID-19 pandemic may result in the underrepresentation of racial
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`4 COVID-19 Hospitalization and Death by Age, CTRS. FOR DISEASE CONTROL & PREVENTION,
`https://tinyurl.com/y5h7wgob (last updated Aug. 18, 2020).
`5 This concern is heightened by the fact that the jury selection plan in the District of Colorado
`even prior to the pandemic allowed those over 70 to opt out of jury service. See D. Colo. Jury
`Selection Plan § 17(b). Thus, if, for example, those in their 50’s and 60’s are disproportionately
`opting out during the pandemic, while people over 70 are opting out based on age, then the jury
`pool will be dramatically skewed such that it does not include a fair cross-section of the
`community with respect to age.
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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 15 of 16
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`minorities and older individuals in a manner that deprives him of his constitutional rights and
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`seeks data to which he is statutorily entitled to help him determine if this is the case.
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`Date: October 13, 2020
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`Respectfully submitted,
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`/s/ Barry J. Pollack
`Barry J. Pollack
`ROBBINS, RUSSELL, ENGLERT, ORSECK,
`UNTEREINER & SAUBER LLP
`2000 K Street N.W., 4th Floor
`Washington, D.C. 20006
`Telephone: (202) 775 4500
`Fax: (202) 775 4510
`bpollack@robbinsrussell.com
`
`/s/ Wendy W. Johnson
`Wendy W. Johnson
`RMP LLP
`5519 Hackett Road, Suite 300
`Springdale, Arkansas 72762
`Telephone: (479) 443-2705
`Fax: (479) 443-2718
`wjohnson@rmp.law
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`Counsel for Mr. Blake
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`15
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`Case 1:20-cr-00152-PAB Document 125 Filed 10/13/20 USDC Colorado Page 16 of 16
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`CERTIFICATE OF SERVICE
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`On this 13th day of October, 2020, I caused the foregoing document to be electronically
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`filed with the Clerk of the Court for the United States District Court for the District of Colorado
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`by using the Court’s CM/ECF system, which will serve electronic notification of this filing on all
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`counsel of record.
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`
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`Respectfully submitted,
`
`/s/ Barry J. Pollack
`Barry J. Pollack
`ROBBINS, RUSSELL, ENGLERT, ORSECK,
`UNTEREINER & SAUBER LLP
`2000 K Street N.W., 4th Floor
`Washington, D.C. 20006
`Telephone: (202) 775 4500
`Fax: (202) 775 4510
`bpollack@robbinsrussell.com
`
`Counsel for Mr. Blake
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