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McCray to face all-white jury; Prosecutor predicts 'difficult' testimony

The all-white jury selected to decide the fate of City Grill murder defendant Riccardo M. McCray can expect to hear from witnesses whose testimony will be "dramatic, infuriating and difficult," the prosecutor said Wednesday.

Some witnesses bring criminal records, prosecutor James F. Bargnesi said as he quizzed prospective jurors.

Some are trying to cut deals to keep themselves out of jail.

And some may be reluctant to cooperate.

Throughout the expected three weeks of trial, jurors will confront issues most people "don't deal with every day," he said.

That none of the 12 jurors and one alternate chosen so far is African-American, as McCray is, surprises lawyer Anthony L. Pendergrass, who has represented clients facing felony charges but is not involved in McCray's defense.

"I am absolutely appalled that in 2011, in the City of Buffalo, that a young black man is facing a white jury," Pendergrass said.

"I don't think he has a jury of his peers," Pendergrass said. "I would suggest a jury of his peers would come from the community he's in and take into consideration the socio-economic and political conditions he confronts on a daily basis."

McCray is accused of shooting four people to death and wounding four others outside the downtown Main Street restaurant on Aug. 14. All of the victims are black.

Charges against him include three counts of first-degree murder, one count of second-degree murder, four counts of first-degree attempted murder and possession of a weapon.

Erie County Judge Sheila A. DiTullio's gag order prevented Bargnesi and defense lawyer Joseph J. Terranova from discussing Wednesday's jury selection proceedings with reporters.

"I could not fathom a reason why a defense attorney would not want someone on the jury who looks like and has the same cultural values and experiences of the individual on trial," Pendergrass said.

Other defense lawyers not involved in the City Grill trial said it can be difficult to predict how the lack of African-American jurors might affect a jury's decision.

"There is no pat answer," said Paul J. Cambria Jr., a prominent criminal defense lawyer. "It takes experience, intuition and luck [for a defense lawyer] to get the right jurors."

Having jurors of the same race -- regardless of which race -- is not always a good thing, Cambria said.

"It's a tricky question because sometimes they hold their own to a higher standard," Cambria said. "Other times you find a situation where having someone from a different race keeps the rest of the jury honest so prejudices don't play out."

Cambria said he thought it would be preferable for a defendant such as McCray to have people from the inner city on the jury, whether white or black. None of the jurors selected Wednesday fit that description. Reporters were excluded from parts of Tuesday's jury selection proceedings, so it's unclear how many, if any, of the seven jurors chosen Tuesday come from Buffalo.

Defense lawyer Anthony J. Lana said he thinks the lack of an African-American on the jury tends to favor the prosecution.

Witness identification of McCray as the gunman will be the key to the case, he said.

"Even though race is not an issue in this case, you're more likely to get an African-American who knows someone or has been involved in a situation where there's been an issue of identification," Lana said.

Should Terranova question the validity of witness identification, Lana said, "that defense would ring true to an African-American jury more than to an all-white jury."

Terranova said Tuesday -- when DiTullio briefly lifted the gag order -- that having African-American jurors can work against a black defendant.

"What frequently troubles me is when a minority defendant insists on minority jurors, because it often works out the opposite way than they expect," Terranova said. "Sometimes, minority jurors work to prove to the other jurors they're not sympathetic to the defendant of the same race. A lot of times it works against the defendant."

Wednesday, six white men, mostly middle-aged, were sworn in as jurors.

Seven jurors -- three men and four women -- were selected Tuesday. Only three alternate juror spots remain to be filled today.

Two black prospective jurors were excused because one knew a witness and the other told DiTullio that he did not feel he could sit in judgment of a defendant.

Three other African-Americans were among the pool of 18 prospective jurors from which the six chosen jurors were selected. It's unknown whether prosecutors or the defense lawyer blocked them from becoming jurors.

One of the three prospective African-American jurors to reach that stage knew a relative of one of the victims.

Another said she would not be able to look at graphic crime scene photographs.

"I just don't like gore. I don't have the stomach for it. I wouldn't even be able to look at it," she replied to a question from Terranova.

For the past two days of jury selection, Bargnesi let prospective jurors know the upcoming trial won't be easy. "This is a murder case, a quadruple-murder case. Murder in the first degree," Bargnesi told them.

"We're going to have witnesses who are reluctant to testify or didn't cooperate at first but now are cooperating," he said during juror screening. "We also have witnesses in jail who want to testify to get assistance in their own cases.

"Deals? Absolutely, they exist," Bargnesi said. "You'll hear about them. Your job is to evaluate them."

The murder weapon was never recovered. And the grainy video footage of the shooting from a surveillance camera near City Grill is "not like a 'CSI' or 'Law and Order' video that will allow you to zoom in on someone's shoelaces from 50 yards away," Bargnesi said.

e-mail: plakamp@buffnews.com

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