Denver Post
Venue raises fairness questions
Lawyers debate role of race, familiarity with alleged victim in jury trial
Thursday, July 24, 2003 - One of the legal questions stemming from the Kobe Bryant sex-assault case is whether the African-American NBA All-Star will try to move the trial out of predominantly white Eagle County.
But two top defense attorneys said Wednesday that neither race nor the fact that many potential jurors know the victim would be sufficient grounds for a change of venue. "When the constitution says you are entitled to a jury of your peers, it doesn't promise a jury that looks or thinks like you. It promises you a fundamentally fair jury," said Denver attorney Larry Pozner, former president of the National Association of Criminal Defense Lawyers. "If you are in a community that doesn't have very many blacks in the jury pool, you don't have a complaint." The 2000 Census counted 31,871 people of voting age in Eagle County. Eighty-five percent are white, and 0.3 percent, or 102, are black. David Kaplan, the Colorado state public defender, said the law requires an unbiased jury reflective of the community, not the defendant. But Denver defense attorney Walter Gerash said if he were defending Bryant, he would immediately seek a change of venue based on race. "I would argue that in Eagle County the makeup of the county doesn't have a fair cross-section of my client's race," Gerash said. "(African-Americans) are tremendously under-represented." Another Denver lawyer, Jeralyn Merritt, feels strongly that Bryant's lawyers need to move the case because the community is so small and the victim so well-known. But Kaplan said that just because a potential juror knows the victim or the victim's family doesn't mean automatic exclusion from the jury. What is relevant, Kaplan said, is the degree of familiarity and whether the potential juror could be fair. Eagle County prosecutors charged Bryant on Friday with one count of Class 3 felony sexual assault. The charge stems from an alleged attack on a 19-year-old employee of the Lodge & Spa at Cordillera on June 30. Despite the concerns over racial makeup and the victim's popularity, lawyers note that changes of venue are rarely granted in Colorado. They also believe Bryant may be better served by an Eagle trial. Some lawyers say the citizens in Eagle County are far more open-minded than potential jurors in other parts of Colorado. Also, Bryant's lawyers would have no say where the trial would end up. That decision would be made by the presiding judge and the state court administrator's office. Usually a judge will attempt to seat a jury in the jurisdiction where the case was filed. Only if it becomes apparent by responses of potential jurors that they are prejudiced against the defendant will the trial be moved. That happened in the case of white supremacist Nathan Thill, accused of gunning down West African immigrant Oumar Dia in a hate crime that shocked Denver in November 1997. The trial was moved to Pueblo after potential Denver jurors, including blacks and World War II survivors, said they couldn't be fair to Thill. Pozner stressed there is a lot of diversity found in Eagle County. "Eagle is a very mixed community," Pozner said. "You have heavy, rural Colorado; you have urban Vail, and you have the workers of Vail. You have a completely mixed bag up there."
Gerash contends that "all Americans have strains of racism" because laws for many years promoted a policy of "equal but separate".