- The Washington Times - Friday, June 13, 2003

Pittsburgh court officials announced dramatic steps yesterday to increase the number of blacks on juries just six days after a trial judge put a murder trial on hold until 10 percent of the pool for that case is black.

Allegheny County Court Administrator Raymond L. Billotte said 100,000 prospective jurors will be asked to voluntarily identify their race, a second questionnaire will be sent certified mail to those who do return the form, and jury duty no-shows will risk contempt-of-court charges.

“It may be impossible to get 10 percent,” said Assistant Public Defender Christopher A. Patarini, who conceded in a telephone interview that he expects to use the trial delay produced by his own request as grounds for dismissal of the charges if the state is unable to meet the demand.

“For years people have been complaining about the absence of blacks. At least I did something about it. I went in and objected,” said Mr. Patarini. His victory came after he repeatedly raised the issue and was turned down by several judges in every relevant case over the past two years.

Allegheny County District Attorney Stephen Zappala Jr. said he will not appeal the Common Pleas Court Judge Lester A. Nauhaus’ decision, though he said there was no evidence that blacks were systematically denied seats in the jury box.

The U.S. Supreme Court has said “systematic exclusion” of a population segment that prevents a “fair cross-section” violates the Sixth Amendment. The court has not ruled on circumstances such as those in Allegheny County.

In 1961, the court said Florida could make jury service voluntary for women, but that was overruled in a series of decisions including the explicit 1979 Duren v. Missouri ruling, which held a similar law violated the 14th Amendment’s equal-protection clause.

Allegheny Jury Commissioner Jean Milko said the selection system is colorblind by law, but that changes were in the works four months before Judge Nauhaus brought the matter to a head. She agreed yesterday with Mr. Patarini that the task may prove impossible.

“What they’re seeking is something we’ve never had and I don’t know how long it will take to get to have, or if we’ll ever get it,” Miss Milko said in an interview. “People can’t be made to answer the race question; you can’t demand it.”

But Judge Nauhaus did demand it — ordering that the pool from which 12 jurors for the Phillips trial match county demographics.

Mr. Patarini yesterday expressed confidence that appeals courts won’t force Raymond Phillips, 20, to sit in jail until a government makes its jury pools match demographics.

“You do not have to sacrifice one constitutional right for another,” he said. “What if it takes six years? You may never get 10 percent.”

Judge Nauhaus served notice last Friday he would not dismiss murder charges against Mr. Phillips because of delay to get a racially balanced jury. But Mr. Patarini said objecting now will facilitate an appeal if Mr. Phillips is convicted of killing Eric Kebert, 34.

Allegheny County sends questionnaires to 100,000 juror prospects chosen each year randomly from voter registration and driver’s license rolls, as state law requires. Neither identifies people by race. About 3,000 people annually fail to appear for jury duty.

A number of states subject to Voting Rights Act supervision record race on voter rolls to facilitate federal monitoring, and some motor vehicle bureaus identify a driver’s race.

A bill in the Pennsylvania Legislature would expand the source of names to welfare rolls, tax records and private mailing lists.

Until yesterday, Pittsburgh jury forms did not ask race and the new box is marked “optional.” Because of tightening budgets, Mr. Billotte said, no attempt is made to identify any racial disparity in who returns the forms or does not appear when summoned.

Vic Walczak, legal director of the American Civil Liberties Union Pittsburgh chapter, which is not involved in the case, said he worked informally with federal courts there when 3 percent or fewer of the panelists were black in a district that is 6 percent black.

Asked what had been done to correct that, Mr. Walczak said, “They haven’t.” He laughed and said he is a registered voter with a driver’s license whom the jury system has never contacted in 12 years.

“I’ve never been called to jury duty, either in federal court or county court,” he said, but assumes an ACLU lawyer would likely be an unwelcome juror.

Judge Nauhaus, who is not due to run for election to a new 10-year term until 2007, relied on his own experience after reviewing population studies done by two universities and the Pittsburgh Tribune-Review newspaper, which first raised the issue in 2002.

“I have been working in this building for over 30 years, and the fact that African-Americans are underrepresented on the jury panel cannot be disputed,” he said.

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