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Since he was asked to lead a state commission on jury reform last April, Mark C. Zauderer has listened to hour upon hour of gripes, suggestions and compliments from former jurors, judges, lawyers, legal scholars and just about anyone else who has something to say about how juries are picked in New York. The hours have been long, but the listening fairly easy. By March, though, Zauderer expects to finish off the more difficult part of the task that was given to him by Chief Judge Judith S. Kaye: recommend changes, perhaps sweeping ones, to a process that court officials say rejects or dismisses 82 percent of jurors called for service before they are chosen for a trial. Ten years ago, the state’s first Commission on the Jury implemented numerous changes that have improved the process. Today, more professionals serve, including lawyers and doctors. Jurors in the city serve for only two days or one trial, while those in other counties serve only one day or one trial. After serving, a juror cannot be called for another four years. Though jury selection is still rife with imperfections, Zauderer feels much of the dissatisfaction with the process can be alleviated with administrative changes. Jurors complain that they are put off by delays, such as being called for service at 9:30 a.m. and then not actually starting their day until 11:00 a.m. After an hour and a half — or sometimes more — for lunch and another afternoon delay, they leave having “worked” only a few hours, despite having spent the entire day in court. Perhaps, Zauderer said, judges could explain those delays in more detail, and have more contact with jurors in general. In an age of cell phones, prospective jurors could be allowed to roam the streets when they are not needed, as long as they agree to be on two-hour notice. “Picking a juror is analogous to making a custom suit,” Zauderer said in a recent interview at the Midtown Manhattan office of Piper Rudnick, which he joined last July from Solomon, Zauderer, Ellenhorn, Frischer & Sharp. “A jury cannot be assembly-line produced.” But Zauderer is quick to add that although choosing a fair jury requires attention to detail, there is no reason to waste time. “The question is, are the pieces fitting together in the court system such that when the jurors are processed, their time is being well used,” he said. “Are we integrating the different components of the process?” Few attorneys will begrudge Zauderer a chance to smooth over bureaucratic lumps, especially if he makes their jobs easier. In seven day-long open-microphone conferences at courthouses in New York City, Nassau and upstate counties, Zauderer and his 18 fellow commissioners — most of them attorneys and judges, along with one former juror — heard no complaints about making the lives of jurors easier through technology, more coffee or a little more time with judges. JUROR CHALLENGES There was one topic, however, that invariably inspired impassioned speeches from attorneys: peremptory challenges in criminal cases. If there is one thing the prosecution and defense bars agree on, it is that Zauderer should keep his hands off peremptories. For capital cases and class A felonies, prosecutors and defense attorneys each can dismiss as many as 20 jurors without reason, subject to challenges for racial discrimination. For class B felonies, each side can dismiss 15 jurors. Only 10 challenges are allowed for misdemeanors. If attorneys want to preserve an error claim, they must use all peremptories. In civil cases, each side receives only three peremptories. Chief Judge Kaye has made her disdain for peremptory challenges clear over the years, saying in one judicial opinion that the challenges create opportunities to exploit the jury system and often result in a “huge, expensive waste of juror time.” New York is one of the country’s most generous states for criminal peremptories, according to 1998 statistics from the U.S. Department of Justice that were provided by Carolyn A. Dizon, a Piper Rudnick attorney who has taken on a significant role in assisting Zauderer. Right behind New York are California and South Dakota, which both allow 20 peremptories for capital cases and crimes for which life imprisonment is a possible penalty. New Jersey allows defense attorneys 20 for felonies, but prosecutors receive only 12. Connecticut allows 25 peremptories for capital cases, but 15 or fewer for other crimes. No matter how independent and thorough Zauderer says his commission will be, some attorneys say its chief purpose is to finally beat back the number of peremptory challenges, or at least put as much pressure as possible on the state Legislature to enact changes. “That’s what this is all about,” said Terence L. Kindlon, a criminal defense attorney in Albany who spoke to the committee when it visited the state capital in September. “It seems to me that they are trying to streamline the process and it is like trying to streamline a baseball — it works perfectly as it is.” Kindlon and other attorneys respond to charges that lawyers manipulate the jury selection process by pointing out that fairness is the ultimate goal in criminal trials, not juror convenience or the efficient use of a jury pool. “This isn’t the judicial equivalent of E-ZPass,” Kindlon said. “I don’t think there is any change we are going to be able to make that renders the hard parts easy.” Kathleen B. Hogan, the district attorney in Warren County and a member of the commission, said that if peremptories were reduced, attorneys would at least need the benefit of longer juror questionnaires. “What we are trying to ferret out in juror selection is the stealth juror,” she said, referring to the juror who says he or she can be fair but has biases that are unclear. “Efficiency isn’t the ultimate goal, justice is.” Richard J. Barbuto, who just finished his term as president of the New York State Association of Criminal Defense Lawyers, was even more blunt about the importance of peremptories to both prosecutors and defense attorneys. “Defendants have rights, jurors don’t,” said Barbuto, who spoke to the commission when it visited Nassau County in July. “To the extent that we can make jurors more comfortable, I think that’s swell, but at no point would I suggest that this be done to the detriment of our clients.” RESISTANCE EXPECTED Unlike attorneys, some judges have told the commission that reducing the number of peremptories would not prevent the criminal justice system from picking fair juries. Supreme Court Justice John P. Collins, administrative judge of the Criminal Term in the Bronx, told the commission in November that he and most of his criminal judges thought peremptories could be reduced. “But I’m inclined to think that both the district attorneys and defense bar disapprove of this, and in any case, the issue will be a legislative one,” Justice Collins said. If pressure builds for legislative changes, Kindlon said he would be surprised if the state’s bar associations were not able to defeat such measures through lobbying. “The word on the street is that anything [the commission] recommends is going to hit a brick wall at 90 miles an hour when it gets to the Assembly,” he said. Zauderer would not say what he would recommend for peremptories, and his commission is just now breaking into subcommittees to hash out its findings. He did, however, point out that many jurors have complained about being dismissed arbitrarily even though they explained repeatedly that they could consider a case fairly. Take, for example, Edward Vickers, who moved to New York in 1958 to work on Wall Street and has yet to serve on a jury, despite being called for service seven or eight times. Vickers, who spoke to the commission in Brooklyn in November, said he had only been called for criminal cases and always maintained that he could be fair. For Zauderer, Vickers represents the classic New York predicament: an upstanding, hard-working citizen who wants to serve but is repeatedly rejected. “There’s a tension in the system between on the one hand, not having people serve who shouldn’t serve in a particular case, such as perhaps an orthopedist in an orthopedist malpractice case, with ensuring that people aren’t improperly and prematurely screened out based on a stereotype,” Zauderer said. The commission has no solutions for this problem just yet, but Zauderer said he is encouraged by its endeavors so far and the participation of its members. Ms. Hogan, for one, agreed, saying that the make-up of the commission and the number of hearings forced members to take a step back from their professional lives and look at the court system analytically. “That’s a luxury that’s wasted on college students,” she said.

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