By Frank G. Runyeon

Law360 (July 16, 2020, 11:30 PM EDT) -- Court records show Black people were underrepresented in the grand jury pool from which 23 New Yorkers were picked to hear evidence and ultimately indict two attorneys accused of firebombing an NYPD car and other cases, federal defenders say, after two Brooklyn federal judges ordered the release of the demographic details.

U.S. District Judge Brian M. Cogan granted the request for the data in the Molotov cocktail case on Wednesday but the data was first released last Friday to Federal Defenders after an earlier ruling by U.S. District Judge William F. Kuntz in a separate case.

Since then, the Federal Defenders of New York say their analyst has identified a demographic disparity in the grand jury pool, which could support motions they and other defense attorneys have filed in a number of cases seeking to scrap the indictments against their clients on suspicions that the grand jury meeting in Central Islip in early June was not representative of the district's population.

To ensure a jury of one's peers, the law requires grand juries to be composed of "a fair cross-section" of the community.

"We've only done a preliminary review, but it looks like Black people are significantly underrepresented in the master jury wheel when compared to census data," said Deirdre von Dornum, attorney-in-charge of the Federal Defenders for the Eastern District of New York, who declined to provide more specific data on Thursday.

According to a review of court records by Law360, the finding could impact at least 20 cases in the Eastern District of New York where defense counsel have similar motions pending.

Among those is the high-profile prosecution of Colinford Mattis, a now-suspended Pryor Cashman LLP associate, and Urooj Rahman, a Bronx Legal Services attorney, who face a mandatory minimum sentence of 45 years to life imprisonment if convicted on seven counts stemming from their alleged firebombing of a vacant, vandalized NYPD car amid protests against police brutality in late May.

Shortly after he chastised prosecutors Wednesday for their tardy reply to the grand jury motion, Judge Cogan ordered the release of the information on the so-called master jury wheel — a vast pool of potential grand jurors out of which 23 people were ultimately impaneled to hear evidence to decide whether they would charge Mattis and Rahman, as well as defendants in other cases.

"The government is directed to provide defendants with data reflecting the county of residence, ZIP code, and to the extent available, the race and age of the individuals listed in the master jury wheel from which the grand jury that indicted defendants was selected," Judge Cogan ruled.

The master jury wheel is a sprawling roster of citizens drawn from county voter registration rolls in New York's downstate federal court districts. In the Southern District of New York, for example, the jury administrator recently testified that there were 3 million to 5 million names randomly selected once every four years.

That means over 75% of residents appear on the Southern District master jury wheel, given that over 4.5 million live in the district's encompassed counties, according to 2019 Census Bureau estimates. "Millions" also appear on the Eastern District's master jury wheel, a spokesman for Brooklyn federal prosecutors said, without providing specifics. Federal Defenders declined to provide the exact tally of names they received.

While a demographically skewed grand jury pool would provide fodder for a motion seeking to invalidate an indictment, the millions of data points are a far cry from the more specific data defendants sought, including attendance records for the 23 or fewer specific grand jurors who actually voted for the various indictments in Central Islip.

Of the defendants' list of nearly two dozen queries, four categories of information — race, age, county and ZIP code — were the only demands Eastern District prosecutors agreed were appropriate, according to government filings.

In the motions, defense attorneys essentially argue that Long Islanders on the grand jury were more likely to show up in early June after a months-long hiatus than New York City residents, who were harder-hit by the pandemic and still under stay-at-home orders in place at the time. Moreover, the Central Islip courthouse in Long Island, where the grand jury met, is 50 miles east of the city.

The reason that matters, they argue, is that Long Island's Nassau and Suffolk counties are far less diverse than Brooklyn, Queens and Staten Island. Therefore, the theory goes, the grand jury that indicted the defendants was not a fair cross-section because it likely skewed white.

But with the limited information they have now, the defense counsel would have trouble proving that hypothesis.

"It gives us some of the information that we sought," said Rahman counsel Pete Baldwin of Faegre Drinker Biddle & Reath LLP. "But it makes the analysis exceedingly difficult."

The defenders also bristled at the pushback from the Eastern District prosecutors.

"New York is at a moment where we're examining racial and criminal justice, while the U.S. attorney's office is just set on indicting people no matter what," said von Dornum. "They're not willing to stop and ensure that things are done properly, transparently, and with integrity."

In the Southern District, however, prosecutors have been more cooperative with defense counsel who have made a similar effort to invalidate early indictments on a similar theory that the first grand jury to hand down indictments in the wake of the pandemic, meeting in White Plains, was not representative of the district's demographics.

With the agreement of Southern District prosecutors, U.S. District Judge Katherine P. Failla conducted an inquiry of the jury administrator in late June wielding a similar battery of questions Federal Defenders are seeking answers to in the Eastern District.

Manhattan prosecutors then met with the defenders to hammer out the best way to get their 22 queries answered. According to a July 14 joint filing, the prosecutors opposed just two items on that list.

Eastern District prosecutors, however, have called the idea of a call with the district jury administrator "unnecessary and irrelevant" and thus a meeting with Federal Defenders similarly "unnecessary," according to a July 13 filing.

The government is represented by Jonathan Algor and Ian Richardson of the U.S. Attorney's Office for the Eastern District of New York.

Rahman is represented by Paul Shechtman of Bracewell LLP and Peter W. Baldwin of Faegre Drinker Biddle & Reath LLP.

Mattis is represented by Sabrina P. Shroff.

The case is U.S. v. Mattis et al., case number 1:20-cr-00203, in the U.S. District Court for the Eastern District of New York.

--Editing by Michael Watanabe.

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