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Wanted: African-Americans for jury service. Immediate positions available. Apply: Allegheny County, Pa. That advertisement doesn’t exist, but it could be of use in Pittsburgh, where about 300 people showed up for jury duty recently — but few were African-American. And that caused some problems. Two defense lawyers who were about to start picking a jury in a homicide trial with an African-American defendant objected and won a delay until a more representative pool showed up. Two courthouse floors down, a capital murder trial was in progress with an African-American defendant and an all-white jury. Though defense lawyers had requested a delay until a more racially mixed panel was found, Common Pleas Judge Donna Jo McDaniel didn’t budge. McDaniel issued a gag order preventing lawyers from commenting, said Pittsburgh solo practitioner Warner Mariani, a defense lawyer in the case. McDaniel declined comment. Commonwealth v. Scott, No. 200300816. VEXING PROBLEM The Pittsburgh cases are examples of a vexing legal problem playing out nationwide�defendants are constitutionally entitled to a jury of their peers, but there is no clear line as to what that means. U.S. Supreme Court cases require that a petit jury be selected from a representative cross-section of the community and prohibit systematic exclusion of a class of jurors, such as women ( Taylor v. Louisiana, 419 U.S. 522 (1975)) and African-Americans ( Batson v. Kentucky, 476 U.S. 79 (1986)). But “whether a panel is representative or not is up to a court to decide,” said Tom Munsterman, director of the National Center for State Courts. In the trial that was delayed, over the course of three days African-Americans composed from zero to 2.5 percent of panel members, said Common Pleas Judge Donald Machen. That was all right with him because he’d seen many fair trials without racially mixed juries, he asserted. Yet he allowed the delay because, “I respect and uphold the right of a defendant who comes to me and raises the issue.” Commonwealth v. Kemp, No. 200211818. On the fourth day, defense attorneys were satisfied with the racial composition of the panel, he said, and jury selection commenced. African-Americans make up 12.4 percent of Allegheny County’s population, according to the 2000 census, although only 10.8 percent of them are eligible to serve. About 39 percent of criminal defendants in the county are African-American. Annually, about 5.7 percent of the people in Allegheny County jury pools are African-American, a study found, said Ray Billotte, district court administrator, and that’s not good enough. Driver’s license and voter registration lists are the sources of jury summonses for the roughly 60,000 people called for jury duty in the county each year. These potential jurors are randomly selected from a master list of 900,000 people, 150,000 of whom are sent juror questionnaires, of which about 80 percent are returned. And while Pittsburgh wrestles with jury diversity, the neighboring state of New York has made substantial progress. The Empire State casts the widest net for potential jurors. Since 1997, it lifts names from state tax, welfare and unemployment rolls. “We’re very successful,” said Norman Goodman, the New York County clerk and jury commissioner. “Demographers tell us we’re reaching about 90% of the population.” But because jurors are chosen randomly and targeting ZIP codes is precluded, “it’s not perfect,” he said, noting that there had been challenges to the racial makeup of jury pools in some capital cases in Brooklyn and Queens. Allegheny County’s Billotte is battling to get more representative juries. He tried to add welfare and tax rolls, but was rebuffed because of privacy concerns, he said. The county will soon provide child-care to jurors and prospective jurors to encourage jury service.

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