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A city judge in Syracuse, N.Y., saying that jury pools consisting of residents from throughout the county do not reflect the racial composition of “the community” as the law requires, has ordered the empaneling of only residents of the city itself. The same issue has arisen in three upstate cities. The Syracuse judge followed a practice used in city courts in Rochester but rejected in Buffalo and by another Syracuse city judge last fall. The Onondaga County jury commissioner’s usual practice of putting residents from throughout the county into jury pools is improper for City Courts, Judge Langston C. McKinney of Syracuse City Court ruled in People v. Bradwell, 2002-08141 (May 21, 2004). Judge McKinney concluded that using a central jury pool for the City Court, which has jurisdiction only in Syracuse, “impermissibly expands” the locale beyond the “fair cross-section of the community” designated by New York’s Judiciary Law. Judge McKinney ordered the county commissioner of jurors, Sidney Oglesby, to draw a panel of Syracuse residents to consider charges of theft of services and resisting arrest against Reginald Bradwell. Bradwell, who is black, challenged the initial panel presented for his trial last year after a review of the jurors’ questionnaires showed that only two of the prospective jurors lived in Syracuse, and only one member of the panel appeared to be black. Bradwell’s trial is to begin July 6. At a four-day hearing before Judge McKinney on the jury challenge, census data from 2000 were submitted showing that about 20 percent of Syracuse residents eligible to serve as jurors are black, compared with only 7.6 percent of those throughout the county. Judge McKinney did not address Bradwell’s constitutional arguments. Instead, he found that New York’s Judiciary Law �500 had been violated. That statute provides that “all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes.” ‘COMMUNITY’ UNDEFINED The Legislature did not define the “community” from which the fair cross-section of jurors must be selected, Judge McKinney noted. But he cited a 1996 ruling by Rochester City Court Judge Joseph D. Valentino, People v. Miller, 170 Misc2d 367, who construed the word “community” to mean the one in the geographical jurisdiction of the court. Years earlier, a Buffalo City Court judge denied a defendant’s challenge to a countywide jury pool in People v. Henderson, 128 Misc2d 360 (1985). Judge McKinney said that ruling had come before Appellate Division rules were rescinded that had directed the commissioner of jurors to maintain a central jury pool. “In Henderson a somewhat reluctant but pragmatic court resolved the doubt in favor of upholding the commissioner’s practice, principally because of the court’s respect for the commissioner’s apparently genuine effort to comply with an Appellate Division rule that directed the exercise of his discretion toward providing a central jury pool. In Miller, when no such administrative directive was in effect, the Rochester City Court felt compelled to reach the opposite result and invalidate the commissioner’s use of a county-wide pool. The apparent tipping point was the sharp disparity in racial and economic demographics that existed between Rochester and the balance of Monroe County,” the Syracuse judge said. Judge McKinney did not discuss the defendant’s evidence of racial disparity between the city and the county, except to say it was “sufficient to meet his burden of proving substantial prejudice were he to be tried by a jury selected” from the countywide pool. While the motion was pending before Judge McKinney, a similar one was denied by Judge Kate Rosenthal of Syracuse City Court in People v. Ventura, 02-87661. Defendant Expedito Ventura, a Latino man charged with petit larceny, challenged a panel of 20 people that included seven Syracuse residents. One of the prospective jurors was black, and none was Hispanic. EXPERT NEEDED Using the same census data and Commissioner Oglesby’s testimony from the Bradwell hearing, Judge Rosenthal concluded that expert testimony was required to show how the census data translated into actual jury pool membership. “Systematic exclusion of Hispanics from jury service requires proof of consistent exclusion over an extended period of time,” she wrote in her ruling last October. Charles A. Keller, who represented both Bradwell and Ventura, said Ventura then accepted a plea bargain and the issue was not appealed. However, Keller, formerly with the Frank H. Hiscock Legal Aid Society and now director of the Criminal Law Clinic at the Syracuse University School of Law, raised the issue again in a case before a third City Court judge. (Syracuse has seven City Court judges.) In a case before Judge Karen Uplinger, a statistics expert from Syracuse University’s Maxwell School testified to establish a connection between the census data and who is available for a jury pool, Keller said. Judge Uplinger’s ruling is expected soon, he said. The assistant district attorneys who represented Onondaga District Attorney William J. Fitzpatrick on the Bradwell and Ventura jury challenges were Victoria White and Debra A. Herlica.

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