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In a decision addressing Georgia’s burgeoning population of Latin-American immigrants, the state supreme court declared Monday that Hispanics are not excluded systematically from Hall County jury pools. By a 6-1 vote, the justices reversed a trial judge who last year found that the significant disparity between the percentage of Hispanics in Hall County and those on jury lists meant the county had violated an accused murderer’s Sixth Amendment right to an impartial jury. The high court majority emphasized that the disparity existed because so few Hall County Hispanics were U.S. citizens and therefore eligible to serve on a jury. In dissent, Justice Robert Benham warned that underrepresentation of Hispanics on juries could endanger popular respect for court decisions. The Hall County case was one of 20 decisions issued by the high court. In another closely watched matter, the court unanimously upheld the murder conviction and life sentence of Jonathan Miller, who at age 15 killed a schoolmate with a punch to the back of the head as the two got off a school bus. In a third case, the court split 4-3 in holding that criminal-defense lawyers should be able to cross-examine accomplices about how much time in prison they are saving by turning state’s evidence, even if the discussion reveals to the jury the possible sentence the defendant faces if convicted. SIXTH AMENDMENT CLAIM Ironically, the Hall County case does not deal with a Hispanic defendant, but a white man, Brandon Dwayne Smith, accused of committing murder during a home burglary. Nonetheless, Hall County Superior Court Judge Kathlene F. Gosselin last year found the county’s procedure for assembling the list of potential jurors systematically discriminated against Hispanics and, therefore, violated Smith’s Sixth Amendment right to an impartial jury. Gosselin focused on 2000 Census data showing that Hispanics made up 17.1 percent of the county’s 101,760 adult residents — while just 2.6 percent of the county’s 39,297 citizens in the jury pool were Hispanic. She held that the 14.5 percent disparity between the Hispanic population and its representation in the jury pool went well beyond a 10 percent disparity guideline set by the Georgia high court in a 2000 case, Morrow v. State. 272 Ga. 691. As a death penalty matter, the parties were entitled to a pre-trial appeal before the high court, which reversed Gosselin. Writing for the majority, Justice P. Harris Hines noted that the San Francisco-based 9th U.S. Circuit Court of Appeals had dealt with a similar issue in U.S. v. Artero, 121 F.3d 1256 (1997). That court held that only data dealing with the population that is eligible to serve on juries is relevant. Hines wrote that even a generous assumption would show that only 20 percent of adult Hispanics in Hall County were U.S. citizens. That would mean that only 4 percent of Hall County citizens would be Hispanic and eligible to serve on a jury — only a 1.4 percent disparity between the Hispanic citizen population and the proportion of Hispanics in the jury pool. Hines predicted the underrepresention problem would shrink over time as the Hispanic children born in the United States grow old enough to participate in judicial and political processes. “In our nation of immigrants,” Hines concluded, “it has always been this way.” Benham dissented, arguing that when Hispanics or other groups are underrepresented in juries, “[t]he result might very well lead to a lack of respect for the decision of our courts and a lack of acceptance of court-imposed judgments.” Smith v. State, No. S02A0595 (Ga. Oct. 28, 2002). Neither of Smith’s lawyers, Daniel A. Summer and Elizabeth B. Reisman, could be reached to discuss the case. Sam J. Zamarripa, an incoming state senator and a leader in the local Latin-American community, complained that the immigrants’ status as noncitizens was constantly in transition, and under the court’s ruling, “Hispanics will not have reasonable representation until the next Census.” Jason J. Deal, the Hall County district attorney, said he was pleased with the court’s decision, adding that the county jury commission tried very hard to recruit Hispanics for the jury pools. “If they’re not citizens, they can’t serve,” he said. “It doesn’t matter how many pamphlets you hand out.” COLUMBINE EFFECT DISCOUNTED The Miller decision caps a tragic story that began in 1998, when the 15-year-old Miller struck 13-year-old Joshua Belluardo in the back of the head after the two got off a school bus. Miller had previously taunted and bullied Belluardo, according to the decision, but on that day, his punch caused a tear to the vertebral artery at the base of Belluardo’s skull. Miller was convicted in 1999 of felony murder, aggravated assault and aggravated battery, and was sentenced to life imprisonment. In the decision, the court rejected, among other arguments, that pre-trial publicity and the trial’s timing — beginning just six days after the 1999 Columbine High School murders in Colorado — unfairly prejudiced the jury against Miller. Writing for the unanimous court, Presiding Justice Leah Ward Sears noted a jury consultant hired by Miller’s attorneys offered only speculation when he argued that media coverage of the Columbine incident would prevent Miller from getting a fair trial. Regarding the wide publicity given the case, Sears added, “If anything, we are inclined to agree with those prospective jurors who reported during voir dire that the pretrial publicity they had seen tended to make them feel empathy for both [Miller] and Joshua.” Benham again offered his personal view. While he concurred with the court, he added, “I cannot help but believe that as we treat more and more children as adults and impose harsher and harsher punishment, the day will soon come when we look back on these cases as representing a regrettable era in our criminal justice system.” Miller v. State, No. S02A0626 (Ga. Oct. 28, 2002). Cherokee County District Attorney Garry T. Moss said he was pleased with the ruling and was somewhat surprised no justices dissented. Miller is now an adult and is headed to a prison, after a stay in a youth detention center. “It’s still a very sad situation,” for the families of both Belluardo and Miller, said Moss. Miller’s lawyer, Bruce S. Harvey, could not be reached. CROSS-EXAMINATION LIMITS Benham wrote for the majority in a third important case — this one dealing with how far criminal-defense lawyers may go in cross-examining accomplices who testify for the government. Reflecting a similar split in the Georgia Court of Appeals, the justices voted 4-3 that a DeKalb trial judge was wrong to stop a lawyer representing an accused cocaine trafficker from questioning his client’s accomplice about the mandatory minimum sentence the accomplice would have faced if he hadn’t turned state’s evidence — the same sentence the defendant faced. Sears, Chief Justice Norman S. Fletcher and Justice Hugh P. Thompson joined Benham to form the majority. They rejected arguments by prosecutors that a jury knowing the possible sentence a defendant faces if convicted threatens the system in which guilt and innocence are decided without considerations to sentencing. Benham wrote that a judge’s limiting instruction to the jury would solve the problem. “Furthermore, we note that other public policy decisions more solidly based on statutes have had to yield to the criminal defendant’s constitutional right to cross-examine a witness against him to show bias, motive, or contradictory testimony,” he added. Joined by Justices George H. Carley and Carol W. Hunstein, Hines wrote a dissent, complaining that the majority’s decision ignored the court’s 2000 ruling in Hodo v. State, 272 Ga. 272. In that case, the high court unanimously held that a judge did not have to permit the defendant from asking a witness, who also dealt drugs, what the witness’ punishment would be if he were charged and convicted of crimes he admitted to on the stand. The state was represented by DeKalb District Attorney J. Thomas Morgan III and Assistant District Attorneys Jennifer M. Daniels and Robert M. Coker. Sara Martha T. Yeager and Ruth Ly Rocker and Demetria Nicole Williams represented the appellee, Owen Vogleson. State v. Vogleson, No. S02G1642 (Ga. Oct. 28, 2002).

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