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SCARCITY OF MINORITY JURORS AT CRUX OF ACTION Santa Barbara County attorneys are bracing for a fight before the California Supreme Court over alleged racial inequities in the county’s jury system, where Hispanics and other minorities — which total as much as 30 percent of the county’s population — make up 4 percent of its jurors. Criminal defense lawyers statewide have been watching the case as part of a larger concern that a low percentage of Hispanic jurors serve throughout the state. A first round of briefs has been submitted to the state high court, with two more rounds to go. A hearing before the high court has not yet been scheduled. Blair v. Superior Court ( People), B171673. “It’s absurd that in a county where at least 30 percent of the population is Hispanic, we look at juries full of retired white folks and not one person of color,” asserted Robert Sanger, the defense counsel who brought the writ. “This has been going on for years and we can’t get the jury commissioner to fix it.” David Nye of Nye, Peabody and Stirling, who represents Court Commissioner Gary Blair, countered that the jury-selection methods were race neutral, and there was no intention to discriminate — a view supported by the appellate court. He added that Blair is currently working at modifying the system. In 2002, a superior court judge ruled that the county jury-selection system produced juries that had disparate numbers of Latinos and African-Americans. That ruling hung up a number of trials for more than a year, until the Second District Court of Appeal decided that the lower court had focused on the wrong definition of disparity. Sanger appealed the ruling to the California Supreme Court, which accepted the appeal earlier this month. Sanger, of Santa Barbara’s Sanger & Swysen, said the issues on which state Supreme Court justices want to be briefed left him worried. “The questions they asked were focused on the nonconstitutional issues,” he said. “We worried that they want to stay clear of what we see as the most important issue: the Sixth and 14th Amendment promises of the right to a jury of your peers and equal protection under the law.” Nye asserted that the Supreme Court review is moot “because Gary [Blair] is changing the jury-selection system.” But, according to Sanger and Deputy Public Defender Michael Ganschow, the changes haven’t been made yet. “Now you are down to the volunteers,” Ganschow said. “That’s how my young minority clients end up facing a jury that looks like Mr. and Mrs. Santa Claus.” — The National Law Journal A TALE OF TWO DISTRICTS: DEAL FOR INMATE SOURS When a Colorado U.S. attorney cut a deal with an unrepresented Utah prisoner who was serving his time in the Rocky Mountain State, he expected the U.S. attorney’s office in Utah to honor it and that the prisoner likely would be set free. He was wrong. And when the 66-year-old inmate got a lawyer who asked a Utah judge to force the Utah prosecutor’s hand, the judge refused. The judge said that although Colorado Assistant U.S. Attorney George Gill and inmate Roger Crobarger had entered into a binding contract, Gill could not bind the U.S attorney in Utah without his consent. U.S. v. Crobarger, 2:95 Cr119 (D. Utah). The case reopens a legal controversy that has never been settled: Should federal agreements between prosecutors and defendants (or prisoners) be honored across district and state lines? “We are one government,” asserted Crobarger’s attorney, Walter Bugden of Salt Lake City’s Bugden & Isaacson. “This is not a nation of individual fiefdoms. Our citizens ought to be able to rely on what a government official tells them they can and will do.” Richard McKelvie, the assistant U.S. attorney in Utah who had prosecuted Crobarger, disagrees. “I think you would call up the attorney who prosecuted the cases and ask him before you make any promises,” he said. Bugden appealed the ruling to the Tenth Circuit U.S. Court of Appeals. No appellate court has ruled on similar facts, but in the context of federal plea agreements, the Fourth and Second Circuits are split on whom an agreement binds. The Second Circuit has ruled that an agreement binds only the district in which it is made — not even the entire state. U.S. v. Russo, 801 F.2d 624 (1986). But the Fourth Circuit has said that the honor of the entire federal government is at stake when a deal is made. U.S. v. Harvey, 791 F. 2d 294 (1986). — The National Law Journal BENIHANA AMUSEMENT BLAMED IN DINER DEATH MINEOLA, N.Y. — A piece of grilled shrimp flung playfully by a Japanese hibachi chef toward a tableside diner is being blamed for causing a man’s death. Making a proximate-cause argument, the lawyer for the deceased man’s estate has alleged that the man’s reflexive response — to duck away from the flying food — caused a neck injury that required surgery. Complications from that first operation necessitated a second procedure. Five months later, Jerry Colaitis was dead of an illness that his family claims was proximately caused by the injury. But for the food flinging incident at the Benihana restaurant in Munsey Park, N.Y., Colaitis would still be alive, attorney Andre Ferenzo asserts. “They set in motion a sequence of events,” he said. Alleging wrongful death, Colaitis’ estate is seeking $10 million in damages. The complaint includes claims for pain and suffering and loss of consortium. Benihana has denied all of the complaint’s material allegations. In other papers filed with the court, defense attorney Andrew Kaufman also questioned whether Colaitis was trying to avoid the flying shrimp or catch it in his mouth. Last week, Nassau Supreme Court Justice Roy Mahon denied a defense motion for partial summary judgment, clearing the way for trial. Kaufman, a partner in the New York City firm Gordon Silber, declined to discuss the case, saying only that he was reviewing the judge’s decision for appealable issues. Ferenzo, a solo practitioner, maintains there is no issue as to liability. In denying defendant’s motion, Justice Mahon held that whether the tableside events caused Colaitis’ death would best be resolved at trial. — New York Law Journal

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