A state district judge postponed a jury trial Monday for a man accused of rape after his attorney argued the defendant’s right to a fair trial was being violated because none of the potential jurors was Black.

“Maury Elliot is a Black man,” public defender Jennifer Burrill wrote in her motion asking the judge to quash the jury panel. “The failure to include anyone of the same race as Maury Elliot in the jury [pool] denies Mr. Elliot his Constitutional right to a fair and impartial jury, equal protection and due process.

“It’s hard to imagine a situation where the Defendant is the only Black person in the room that every juror could be free from partiality based on race,” she added.

Elliot, 25, is accused of raping two teenage girls and a woman in Santa Fe in three separate incidents between October 2019 and January 2020. He was scheduled to stand trial this week in one case on charges of kidnapping, criminal sexual penetration, criminal sexual contact and contributing to the delinquency of a minor. Jury selection was to begin Monday and testimony was to start Tuesday.

But state District Judge T. Glenn Ellington vacated the trial before jury selection began, Burrill said, after she raised the issue that none of the 77 potential jurors was the same race as Elliot.

The catch, Burrill said Monday, is the law that allows a defendant to challenge the racial makeup of the jury pool also requires the defendant to provide data showing the pool is not a fair cross section of the community. In New Mexico, that data doesn’t exist.

Burrill’s motion says U.S. census data indicates 2.6 percent of New Mexico’s population is Black, while 1.2 percent of Santa Fe County’s population is Black.

But jury pools are chosen from a more specific category of the population — taxpayers, driver’s license holders and registered voters.

And according to Burrill’s motion, none of the three state agencies that compile information on those sectors of the community — the state Department of Taxation and Revenue, the Motor Vehicle Division and the Santa Fe County Clerk’s Office — could produce statistics on race.

It’s impossible to determine what percentage of eligible jurors in the county are Black in order to determine whether they are proportionately represented on the jury.

“The system they have constructed is inherently racist,” Burrill said. “Because in order to make racial challenges, they are denying us the information to make the challenge. It’s an impossible standard because the state does not collect the data.”

Assistant District Attorney Kent Wahlquist opposed Burrill’s motion to quash the jury venire, or pool, arguing in part the racial makeup of the pool was representative of Santa Fe, even though it doesn’t include any Black people.

“Addressing specifically the black racial group,” Wahlquist wrote in his motion, “the larger community of the Santa Fe area is 1.2% black. Of a jury venire of 77 people, 1.2% equates to .92, less than one (1) person. ... This jury venire has less than one black person.”

Wahlquist also quoted a 1999 New Mexico Supreme Court ruling in which the court opined “the mere statistical measure of a venue’s ethnic proportions cannot, by itself, lead to the presumption that a person of a given race will be unable to receive a fair trial in that venue.”

Whether or not a particular jury pool is unsuitable, the court found, could only be based on the characteristics of the individuals in the specific jury pool, not on their ethnic composition.

“It is, in fact, preposterous — and a form of racism — to presume that person of a particular color will perform jury duty in a particular way,” the court wrote in that case. “A person’s race is utterly unrelated to his or her suitability as a juror. In the selection of a jury, race may be used neither to justify a person’s removal [nor] compel a person’s inclusion.”

Burrill said Ellington agreed she could not meet the standard of proof without the available data, but he had not yet issued a written ruling memorializing his ruling from the bench.

“It will be really interesting to see the court’s written ruling,” Burrill said. “I’m hoping it will show us what the judge thinks the remedies may be in terms of how to move forward and how to solve this in a larger context.”

Ultimately, Burrill said, she thinks the Legislature needs to require such data to be collected in the future, so it can be used as the basis for policymaking.

“We can’t say we don’t have racism when we refuse to collect the data to see if we do,” she said. “I’m hoping the Legislature will step in and see that as a problem.”

Had Elliot’s trial commenced Monday, Burrill noted, it would have coincided with the start of the trial for Derek Chauvin, the former Minneapolis police officer charged with second-degree murder in connection with the May death of George Floyd. Chauvin is accused of kneeling on Floyd’s neck until Floyd stopped breathing, sparking national outrage.

“The fact that that trial started today when Maury’s trial was supposed to start is really unique timing in terms of having someone be willing to take a look at this and make a change,” Burrill said. “It’s a unique time in history when people might actually sit up and care.”

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