Muncie Times, Muncie, Delaware County, 6 June 2002 — Page 8

The Muncie Times, June 6, 2002, page 8

NEWS BRIEFS from PAGE 7 what the reason is,” said Scalisi, in an interview with The Black Voice News. After Rushton was reprimanded by the judge for his behavior, he reseated one of the excused African American jurors. “The re- seating caused a colossal embarrassment for the government’s counsel. In 23 years of practicing criminal law, I have never seen anything like it. The eyes of the jurors in the jury box were all focused sharply upon the government’s counsel (Rushton) and murmurings could be heard among the jurors sitting in the audience behind me,” said the Scalisi motion. Scalisi is angered by Rushton’s standards for Black jurors hearing cases with African American defendants. One excused juror was a former Marine, two were employed by the California Department of Corrections, and one was an elementary school principal. Rushton also played the “they all look alike” game. He said he confused two Black men who were part of the potential pool. This puzzled Judge Morgan as well as Scalisi. One man was 6’2”, approximately 68 years old, wore thick bifocals, was an Air Force veteran, had a dark complexion, and sat 8 feet away from Rushton for 3 days. When asked by Judge Morgan to explain why he used a peremptory challenge against him, he said he got this African American confused with another African American man with the same last name. The second Black man was approximately 20 years younger, 5’8” tall and had a relatively light complexion. As he explained the mix-up to the court, it became increasingly clear he could not explain his way out of

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the situation. The two jurors Rushton says he mixed up were Mr. RM and Mr. CM. Mr. CM manages 75 to 80 people at a large company. He has two supervisors working underneath him. Rushton gave the excuse he didn’t want him because he had no feelings about the death penalty. Scalisi also objected when a woman who described herself as multicultural was kicked off. “If you read their questionnaires and exclude race, they read like dream jurors for the government,” said Scalisi. According to Rushton’s testimony, he rejected Ms. L, an employee of the Department of Corrections, because she is a member of a Negotiation Management Team and he doesn’t think she can be a fair and impartial juror. He then read answers to her questionnaire to the court belittling her position as a spiritual leader. “I would be absolutely negligent in my role as a prosecutor if I didn’t look behind those statement of what she wrote down,” said Rushton. Rushton explains the reason he excused Ms. J, another African American, is because she didn’t have a high school diploma or a GED and her manner of articulation indicated a degree of “uneducatedness.” “Her lack of education is a factor that I consider as well, besides that she left the portion about the death penalty blank, absolutely empty,” said Rushton. Regarding Mr. T, another potential juror, Rushton argued that he couldn’t serve because, “his 32 year-old-daughter, who attained a 10th grade education, is currently incarcerated (for armed robbery).” The judge chided Rushton saying, “This is a continuum, (of the) same people. I think Mr. T is a fine juror for the people.” With

that the judge warned Rushton not to talk. “I’m ordering you not to talk right now,” said Judge Morgan. Rushton questioned anyway and asked if the Court is going to seat a juror that he had excused. With that he stated his objection. The judge re-seated Mr. T so he would not have to have another panel start the expensive process for a third time. The judge, growing impatient with the blatant exclusion of Blacks, stopped Rushton at this point and said “I can’t accept the reason for excluding him from this jury. There are people who are sitting that are not of identical responses, but of like responses, that you have passed on and represent the community, but they are of a different color,” said the court record. The judge stopped short of calling Rushton a racist. In fact he said, “I’m not challenging you as a person that is a racist, and I won’t use that word with you, it is too demeaning. But with the totality I don’t think that there is sufficient foundation for removing Mr. M with a preempt on this case.” Mr. H, another potential juror excused by Rushton, is a gainfully employed Black man who still looks the part of his Marine background. When the judge questioned Rushton about this particular exclusion, Rushton told Judge Morgan that he had the wrong man because Mr. H had fairly longish hair and an earring in at least one of his ears. The Judge said “yes he had an earring” and Rushton quickly said he didn’t dismiss him because of his appearance. With Mr. H dismissed, Judge Morgan said the only way to resolve the issue is to have another panel. Scalisi pleaded with the judge to have Mr. H come back but he said “no,

no, and no, I mean it’s no.” The judge called attention to 2000 census figures that showed a 9% African American population for Riverside County and that Rushton excused 36% of Black jurors. “Rushton excused every single African Arrjerican juror who was seated in the jury box. that is an abomination,” said Scalisi. “They were well dressed, articulate, confident, and appeared to take their duty seriously,” Scalisi told The Black Voice News. This is not the first capital crime trial involving a Black defendant that Rushton refused to allow Blacks on the jury. In January 2000 in the courtroom of Ronald Taylor, two mistrials were called before Rushton found a jury to convict Victor Rizo. All four Blacks were kick out of the jury pool, likewise in the case against the codefendant Ivan Rizo, another four were excused because of peremptory challenges. A court of appeals held that the defense had made a prima facie case that government counsel was using his peremptory challenges to unfairly excuse the African American jurors. In another instance, the case of Shawn Johnson has been remanded back to Judge Taylor to hold a hearing on the reasons Rushton excused three African American jurors. Johnson is facing murder charges. During that hearing a White fire captain asked permission to speak in the chambers during the selection process. He expressed outrage and indignation at having to watch the government’s counsel (Rushton) systematically excuse all African American jurors who were seated in the jury box. “I believe the problem is' Riverside (and) the

administration of justice in this county. Crimes to get to State prison here will get charged as a misdemeanor just down the road a few miles,” said attorney Darryl Exsum, who is African American. Bernard J. Schwartz, president of the Criminal Courts Bar Association (CCBA) and members Regina Filippone and Heather Moorhead, all expressed outrage at the actions of the District Attorney’s office. The CCBA’s mission is to improve the administration of criminal justice in the County of Riverside and tirelessly fight injustice wherever found. Likewise Irma Poole Asberry, the first African American to be elected president of the Riverside County Bar Association, was indignant. ' “We don’t live back in the 60’s. We would think better of the DA’s office if there was fairness. You would think after the Tyisha Miller incident and the unfair prosecution of Bernell Butler that rattled everyone’s cage that they would be sensitive. They (DA) are blatant in their actions. It makes no sense, she said.” Scalisi said that he thinks every one of the 9 jurors could bring a lawsuit against Rushton personally and the DA’s office because every one of the 9 have been victimized by the government. “You cannot refuse to rent or to sell property to someone based upon the color of his or her skin. You cannot deny an otherwise qualified person admission to a school based upon the color of his skin. a. The government’s counsel has denied 9 African Americans their right to sit on a public jury that is supposed to represent a fair cross-section of the community,” wrote Scalisi.