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Prosecutors object to new method of jury selection

By WILLIAM R. LEVESQUE

© St. Petersburg Times, published December 28, 1998


Rick Parker remembers wondering why all Bradford County jurors looked alike during the early 1970s, when he was an up-and-coming assistant public defender.

"They were all white men, approximately the same age, landowners, and they all wore coveralls to jury service," said Parker, who is now Alachua County's public defender.

Later, another lawyer figured it out: The local sheriff and clerk of court were personally -- and illegally -- selecting who could serve for jury duty.

A court ordered the practice stopped, and, ever after, jurors better reflected the composition of the local population.

For decades, that meant selecting jurors from the rolls of registered voters. But lawmakers, fearful that juries weren't diverse enough, decided that beginning in 1998, juries should be picked from a list of licensed drivers or those with Florida identification cards.

After a year, prosecutors around the state say the new system simply isn't working and will ask lawmakers next year to go back to voter rolls.

"Everybody's got their horror stories," Palm Beach County State Attorney Barry Krischer said. "Something obviously needs to be fixed."

Registered voters, prosecutors say, are generally a civic-minded group much happier to serve on a jury. Some argue they are also more apt to be respectful of authority.

Prosecutors say they are now seeing jurors who are younger, less affluent, more likely to be angry at being called for service and, most frightening of all for prosecutors, more likely to have criminal records.

In Florida, felons can neither vote nor serve on a jury.

"If someone is registered to vote, they care about the community," Pasco-Pinellas State Attorney Bernie McCabe said. "And they're naturally going to be more conscientious about serving on a jury."

Parker, who now heads a statewide association of public defenders, and most defense lawyers want the system left as is.

"Prosecutors would always prefer to have juries selected from a narrow group with vested interests, like property owners," he said, referring to the all-white Bradford County juries of the 1970s. "The theory is that these people are conservative, conviction-prone jurors."

The same, Parker said, is true today.

When lawmakers decided on the change, they hoped it would lead to more diverse juries. After all, statistics showed that members of minority groups were more likely to drive than to hold a voter-registration card.

And many lawmakers were concerned that people were shirking their civic responsibility to jury service, knowing they could avoid the task by not registering to vote.

Early on, a concern among court administrators was that people are less apt to keep the address on their license properly updated. Many feared counties would be forced to send out many more jury summonses to get the same size pool.

But that hasn't proved true in the Tampa Bay area. "That first day in January when we started the new system, I was really worried and didn't sleep too well," Hillsborough Jury Services Director Yvonne Polo said. "But the numbers haven't actually changed." Defense attorneys have embraced the change as a much-needed step toward greater racial diversity on juries.

"It injects an element of fairness into the process," Pasco-Pinellas Public Defender Bob Dillinger said. "Now we're getting a fairer sample of jurors that's more reflective of the population as a whole."

McCabe, however, said there was diversity under the old system.

Since court administrators don't track race in tabulating jury statistics, a comparison of the racial mix before and after the change is not available.

Race aside, McCabe said, juries are more diverse in one respect: They now contain more people who simply don't care about the process.

"If diversity means having more folks on juries who don't care about their community, then we've got it," he said.

To Pasco-Pinellas Circuit Judge Frank Quesada, the change is beneficial for reasons other than race.

"I don't know how many of our defendants are registered voters," he said. "So I think many of our defendants are getting a jury of their peers for the first time in many years."

Quesada said juries have evolved through Florida history, from the days when the only jurors were white men who were property owners and registered voters.

"Now we have a pool that is a true cross-section of our society," he said. "And that's what juries are supposed to be."

While many prosecutors complained the change would invariably lead to a drop in conviction rates, McCabe said it remains unclear whether that is true. His office could not immediately provide conviction rates from before and after the change.

"I've heard a lot anecdotally," McCabe said. "I've not noticed it."

Some, including Pinellas County Judge Paul Levine, are convinced juries aren't convicting as many defendants as they once did.

"The jurors we're getting now are much less conservative than they used to be," he said. "And I think that's leading to a drop in conviction rates. What I'm noticing a lot more is that jurors now don't take an officer at their word."

As a result, the state's burden of proof "has just skyrocketed," the judge said.

One thing many agree upon: Jurors are more vocal than ever. Sometimes that's good, as when lawyers try to weed out those who might be biased either against police or the defendant.

St. Petersburg defense attorney Michael Schwartzberg recalls a startling moment during jury selection in a DUI trial this year.

After he asked potential jurors if any of them had ever been accused of driving while intoxicated, a woman raised her hand and, in front of the entire courtroom, said she had once slept with a police officer to avoid a DUI charge.

Prosecutors immediately disqualified her as a juror.

"They have been much more vocal in the last year," he said. "I don't think there's any doubt about it. That's good for everybody."

One thing prosecutors fear jurors won't be vocal about is a criminal record.

McCabe said more felons than ever are being called to jury duty, even though they are not eligible to serve.

Many worry that some will inevitably slip through and actually sit as jurors.

Lawyers often must rely on the honesty of potential jurors who are asked during the selection process if they have a criminal record.

Executive Assistant State Attorney Beverly Andringa said she has seen several cases in the last several months in which jurors, under oath, failed to disclose a criminal record.

In each case, she said, the criminal record was discovered when suspicious prosecutors ran a records check to verify the information.

In one case, a juror with a felony record was seated. When the juror's criminal record was discovered during trial, he was removed and replaced by an alternate.

Still, overburdened prosecutors aren't always going to have time to double-check information jurors are giving them.

"If we have the time, we do it," Andringa said. "But if the judge doesn't give you a break and you don't have someone assisting you on a case, you won't always have the luxury."

And to McCabe, that's the scariest prospect of the current jury pool.

What if it is discovered in a murder case that a felon sat in judgment of the accused? Would the state, at great expense, have to retry the defendant, perhaps years after the fact, when witnesses may be hard to locate and when memories might have faded?

"Could that impact the validity of the conviction?" McCabe said. "It's an unanswered question."

But to Schwartzberg, the St. Petersburg defense lawyer, the advantages outweigh the potential problems.

"Everybody has the ability to question jurors before seating them on a panel," he said. "They have the ability to run records checks. Under the old system, felons showed up for jury duty, too. So what difference does it make where they come from?"

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