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JURY MAKEUP BECOMES BLACK AND WHITE ISSUE CRITICS CLAIM SELECTION PROCESS UNDERREPRESENTS MINORITY GROUPS

Of the 80 people available for two juries chosen last Monday in Erie County Hall, five potential jurors were the same race as the black defendants.

On June 15, eight jurors heard a lawsuit before State Supreme Court Judge Leo J. Fallon. All eight were white. Across the hall, State Supreme Court Judge George F. Francis gave instructions to another eight. All of them also were white.

This sample of juries and jury pools illustrates a common flaw in local courts, according to judicial officials critical of jury selection. Too few jurors are members of minority groups, which is especially conspicuous because blacks accounted for 54.8 percent of the felony arrests in Erie County last year, according to state figures.

"In my opinion, the number of minority jurors is not a good representative sample in view of the population," said Jerry McGrier, assistant state attorney general in the Buffalo office.

"I have never felt any racist overtones from the county in selecting its jury pool," said David G. Jay, a Buffalo criminal defense attorney. "But there is the appearance of exclusion that can be a problem in the minds of many who are being tried. They see no friendly faces in the courtroom."

No official estimates are available of the number of minority group members chosen for jury duty, and officials denied a Buffalo News request to observe the pool of prospective jurors waiting in the jury room. But Commissioner of Jurors Mehrl F. King said he believes the racial makeup of the jury pool is fair and impartial.

Like all other commissioners of jurors in the state, King selects jury pools from throughout the county.

Since members of minority groups constitute 12.7 percent of the county's population but more than 30 percent of the City of Buffalo, picking a jury from the county will produce fewer minorities than a jury pool chosen from the city.

"I don't believe the makeup of the jury system is skewed at all," King said. "This is a fair and impartial cross-section of the community. If you started to put restrictions on it -- 3 percent black, 2 percent Italian, for example -- you are putting restrictions on the pool. It's no longer a random selection."

State and federal law prohibits court officials from asking a juror's race, according to King. And King said he purposely avoids any informal count because he doesn't want to let anything interfere with the random selection.

But the mostly white, suburban, racially unbalanced are typical of the kind of juries defendants face, according to several lawyers.

"We at least should start off with some semblance of evenness," said Alan S. Hoffman, a defense attorney for Cecil Hollingsworth, one of the black defendants whose trial began Monday. "I feel prejudice does exist. White people from the suburbs may have some prejudice toward blacks. Sometimes they can't help believe a white officer rather than a black defendant."

Some judges also said not enough blacks are available for juries.

"There are problems of blacks being on the lists (of prospective jurors) in the same proportions as whites," said City Judge Rose H. Sconiers. "Then the lawyers try to get them out. It's difficult to get them in the first place, and difficult to keep them in."

Judge Sconiers said she has presided over eight to 10 jury trials since she became a judge 2 1/2 years ago. Only three blacks were chosen as jurors in those trials, and never more than one per six-person jury. That's 5 to 6 percent of jury members.

There are exceptions. The jury pool for the recent trial of Terrence Robinson, a Buffalo policeman found guilty last Thursday of manslaughter, offered an unusually high number of minorities, according to Edward C. Cosgrove, Robinson's lawyer.

Six of 40 prospective jury members lawyers could select -- 15 percent -- were black. But Cosgrove added that in the six civil and criminal trials Cosgrove has had this year had no more than two or three members of minority groups in the jury pool.

Fifteen percent may sound like a good representation, but it still is only half the percentage of minority group members in the city's population and just above the 12.7 percent minority population of the county.

And the six jury members available for Robinson's trial made little difference in the composition of the final jury. Robinson, who is black, was tried for, and convicted of, manslaughter by a jury of 11 whites and a minority woman.

"Walk into the jury room," said Cosgrove, a former Erie County district attorney. "You usually get white, middle-class people from West Seneca, Cheektowaga and other suburbs who have retired."

"I'm not casting aspersions on anybody," he added. "You don't get as many Hispanic, black and other minorities as you would like to see. I want to see a true cross-section of the community. Everybody does. At least that allows us to make a choice."

This is how the juries are selected:

Every week the state commissioner of jurors for the Buffalo area sends out 1,400 notices from a list of 619,000 prospective jurors in Erie County. Every county resident who has a state driver's license, pays state income tax or votes is on this list, according to King.

"Those three sources provide as broad a base of all persons you could probably get in the county," King said.

But others said these three lists exclude many minorities.

"There are whole segments of the community -- the poor, those on welfare and those who don't vote -- who are totally left out," said John Elmore, a Buffalo criminal defense lawyer and former assistant district attorney in New York City.

Elmore said he strongly believes the jury lists for City Court should come from the city, not the county. In a misdemeanor case he is trying in City Court, only one of the six jurors and two alternates is from the city. The others live in the suburbs.

"There would be a much better cross-section of the Buffalo community if the jury pool were comprised of Buffalo residents," Elmore said.

Even members of minority groups who do get on the list often face more obstacles than white jurors, according to several lawyers. Many prosectors usually try to avoid black jurors because they think minorities often are reluctant to return guilty verdicts, according to the lawyers.

"A black individual is not a typical prosecutor's juror," Elmore said. "They're not considered convicters, particularly when there is a black defendant. The prosecutors do everything in their power to exclude black jurors."

Erie County District Attorney Kevin M. Dillon said this was "complete and utter nonsense."

"It's just the opposite," said Dillon. "It's always been my experience that those individuals most concerned about violent crime are those that who live in areas of the greatest incidence of violent crime."

Often, those people are members of minority groups, Dillon said.

Dillon also said the law protects jurors who are members of minority groups more than those who are not. When the defendant is black, most judges require defense lawyers and prosecutors to give a non-racial reason for excluding a member of a minority group from the jury. Others can be excused without any reason, Dillon said.

Erie County prosecutors are told to record why they have excused minority jurors, even when the judge does not request for it, Dillon said.

"We give reasons so there is no question later on," Dillon said.

Chester Mount, manager of data services for the Office of Court Administration, said finding more members of minority groups to serve on juries is a valid challenge.

"If they don't look like your peers, you're going to say 'What's going on?' " Mount said.

Most other courts in the state draw their juries from counties as a whole, according to Mount. Erie County also has a more progressive system than other counties, which spreads the burden of serving to a larger group of people, a system Mount praised.

"You could make an argument for choosing your juries from the city or neighborhood or block," he said. "You can extend that proposal to absurdity."

The issue is whether state law should be changed to give a defendant who is a member of a minority group a racially-balanced jury, King said. If that happens, where do you stop? What about women? If a defendant is a Polish-American or Italian-American, does the jury pool have enough members of these ethnic groups to provide a balanced jury?

Other cities in the country do pick jury pools from smaller populations than the county, according to Tom Munsterman, director of jury studies for the National Center for State Courts in Arlington, Va.

Denver and Cleveland draw jurors for their city courts from the city, he said. Because the percentage of minority group members living in the city is higher than the county, the chances of finding blacks and members of other groups increase. Federal courts in Detroit pick more prospective jury members from certain ZIP codes to ensure a better racial mix, Munsterman said.

Chief Justice Sol Wachtler of the State Court of Appeals said counties sometimes have used insufficient lists to choose juries.

Ten years ago, Nassau County used voter registration to select its jurors. Studies showed less than half the members of minority groups was on the voting roles, even though a large share of the defendants were black. The county, therefore, added utility company subscribers to the jury lists.

The numbers of black jurors increased, Wachtler said last week. Since then, Wachtler said he knew of no "systemic" problem of minority representation in the state's jury system.

Mount and King said finding more members of minority groups is difficult. Everyone should be included, but the U.S. Census list is unavailable. So are welfare roles.

"Here's a phone book," King said. "You show me 50 people who are black. How would we know?"

Besides using other lists, critics of the present system see education as the best solution. Judge Sconiers suggested programs to convince people of the importance of jury service.

McGrier, the assistant state attorney general, approached the problem from the other direction.

"I tend to look for a good minority juror," he said. "I find they are more in tune with law and order issues than their suburban or non-minority counterparts."

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