Race Ruled Out as Vista Juries’ Issue

Criminal defendants can get fair trials in Superior Court in Vista even though those North County juries have proportionately fewer black members than Superior Court juries in San Diego, the 4th District Court of Appeal has ruled.

The appellate court’s decision deflates a potentially far-reaching legal challenge about whether Vista’s Superior Courts operated fairly by selecting jurors only from North County rather than countywide.

The issue was brought to the appellate court by a Poway defense attorney, Robert Gusky, who maintained that his client--who was white--would be denied a fair trial in Vista Superior Court because there would probably be fewer blacks on the jury than there would be if he were tried in downtown San Diego.

While the matter was on appeal, the defendant, Eddie O’Hare of Rainbow, north of Escondido, was tried in San Diego and was convicted by a jury of kidnaping, assault and child-beating. He is now serving a 15-year state prison term.

Gusky and other defense attorneys in recent years have argued that since, according to federal census figures, blacks comprise 1.5% of North County’s population, compared to 4.5% countywide, Vista’s juries would not have as many black members as those in San Diego. Since Vista’s courts technically are a branch of the San Diego Superior Court system, the North County juries should reflect the racial makeup of the entire county and not just North County, they argued.

Based on a 1984 ruling by the same court that found fault with the North County jury pool at that time, some Vista judges have transferred cases to San Diego at the request of the defendants.

The district attorney’s office had argued against transferring cases to San Diego, saying that not only were North County jurors the proper ones to judge innocence or guilt in crimes commited in North County, but that it was unfair to send victims, witnesses and law

enforcement officers to San Diego to attend the trials.

Defense attorneys said the solution would be for Vista jurors to be selected from the countywide juror pool--even if it meant calling up jurors to Vista who lived in East or South County for sake of a racially balanced jury.

This week, two of the three appellate judges said there was no longer anything wrong with selecting jurors from only North County, since the jurors are now being selected from throughout the entire North County Municipal Judicial District, which could be considered a community in its own right.

Gusky was in court Thursday and could not be reached for comment. Phil Walden, who heads the district attorney’s office in Vista, said he welcomed the opinion.

“We’re pleased to the extent that we can once again prosecute in North County, North County criminals who commit crimes in North County. I’m sure the court’s decision will be a relief to those persons who would otherwise have to travel to San Diego.”

Justices Howard Wiener and Edward Butler, in their majority opinion, wrote that the Sixth Amendment provision of a jury of peers guaranteed that no member of a local community would be arbitrarily or unnecessarily excluded from a jury, and they noted that Gusky had not claimed that there was any such exclusion from within North County’s ranks.

The ruling said the Sixth Amendment right of fair trial does not limit government’s ability to define the community from which jurors are selected.

The judges wrote:

“Whenever an accused has commited an offense, it will nearly always be possible, simply by enlarging the area from which the (jury pool) is drawn, to obtain different mixes of social/ethnic viewpoints and economic classes on a jury panel. However, it is practically necessary to limit the area of draw in some arbitrary manner, even though such limitation obviously restricts or alters jury composition.”

In 1984, at the time of the earlier appellate court ruling criticizing the Vista courts for racially unbalanced juries, the Superior Court in Vista selected jurors only from the Fifth Supervisorial District; after the 1984 ruling, the judges enlarged the jury pool to mirror that used by the larger and separate North County Municipal Judicial District.

Enlarging the jury pool to that degree satisfied the problem that was at issue in 1984, the appellate court’s majority ruled this week.

Selecting jurors from only part of San Diego County, they said, was no different than the way in which federal courts select jurors from those parts of their judicial districts nearest to the federal courthouse, even if that means those jurors do not necessarily match the demographics of the entire judicial district.

Justice Robert Staniforth disagreed with his colleagues on this matter, writing that the North County jury pool was an artificially created community by act of legislation which was “rife with inherent fundamental unfairness” because of the difference in demographics.

He wrote that enlarging the area of the jury pool from the 4th District to the somewhat larger North County Municipal Judicial District “changes not one whit the actual composition of the North County venire (jury pool). The disproportionate disfavoring of black defendants remains the same.”