We will see if Sotomajor set this man free because of his color.

New trial -- or release -- ordered for inmate because of jury color

By John W. Stephenson
September 25, 2008, 8:51PM

GRAND RAPIDS -- After 15 years in prison for a 1991 bar slaying, Diapolis Smith could be on the verge of being retried for murder or walking free from a state prison.

Smith's second-degree murder conviction was overturned Wednesday by a federal appellate court that ruled black jurors were systematically excluded from serving as panelists during the suspect's 1993 trial.

Even broader than that, a study of Kent County juries over an 18-month span from April 1993 to October 1994 established that blacks were underrepresented in panels in 15 of those months.



Based on the lack of a fair cross-section of the community, the Sixth U.S. Circuit Court of Appeals ordered Kent County prosecutors to retry Smith, who is black, or have him released from state custody within 180 days.

An assistant Kent County prosecutor said the release of the 40-year-old, who lived in Battle Creek at the time of the homicide, is not imminent, and that appellate jurists focused too closely on statistics and not the system.

James Lawrence, Smith's attorney, argued a litany of troubles with Kent County court procedures, which since have been amended, limited black jurors available for circuit court trials. Among the problems at the time of trial were:

• Jurors were first assigned to Grand Rapids District Court proceedings, often culling blacks who live in the city -- where the vast majority of Kent County's blacks reside -- to those cases.

• Excused absences disproportionately were given to minorities with a lack of transportation or child care.

• The county's failure to follow-up with potential jurors who did not respond to questionnaires, a population more likely to be minorities.

The court did not entertain Smith's guilt or innocence connected to the Nov. 7, 1991, slaying of Christopher Rumble in So So's lounge on South Division Avenue.

"I think this man has a good chance of leaving prison a free man soon either through an acquittal or his release," Lawrence said. "If he is convicted, then at least he's received a fair trial."

Lawrence does not contend the all-white jury that convicted Smith was racist, only that it was deeply flawed. Blacks were in the jury pool, but they were not seated.

Tim McMorrow, chief appellate attorney for the county, said the ruling is upsetting. McMorrow did not argue the case before at the federal level, but he did successfully persuade the state Supreme Court in 2000 that Smith did not deserve another trial.

The state Attorney General's office took over the case, McMorrow said. Lawyers told McMorrow on Wednesday they plan to ask for another hearing before more judges at the federal appellate level. Otherwise, they'll appeal to the Supreme Court, he said.

John Sellek, an attorney general's office spokesman, declined to confirm those plans, saying only that the ruling is being reviewed.

McMorrow insists Smith had a fair trial.

"There was never a systematic effort to preclude black jurors," he said. "They completely missed the point."

The law does not require a jury of a particular race, McMorrow said. It grants a fairly chosen jury from the district.

A new trial would present a host of problems, including locating witnesses who can clearly distinguish what happened in the bar-room brawl.

"It would be a challenge, but it can be redone," McMorrow said.

Neither Lawrence nor McMorrow foresee a larger fallout of appeals or overturned convictions from the ruling.


---------------------------------------------------------------

http://www.ocjblog.com/?p=2907

SCOTUS Order: Mary Berghuis, Warden v. Diapolis Smith

On September 30, 2009, the United States Supreme Court granted the State of Michigan’s petition for a writ of certiorari to appeal the Sixth Circuit Court of Appeals’ reversal of Smith’s murder conviction. A more indepth discussion of the facts and issues raised in this case, can be found after the jump.
In 1993, Smith was convicted of second-degree murder after a jury trial in the Kent County Circuit Court. He was sentenced to life imprisonment, with the opportunity for parole. Smith, who is African-American, filed a post-conviction motion claiming that his right to a fair trial was prejudiced because he was tried by an all-Caucasian jury. At the hearing, Kent County officials admitted that because of glitches in the jury selection database, African Americans comprised only six percent of the circuit court jury pool. At the time, African Americans accounted for just over eight percent of Kent County’s population. Kent County has since revised its database to address this problem.

The circuit court denied Smith’s motion for a new trial. A divided Michigan Court of Appeals panel reversed the circuit court’s decision and concluded that there was systematic underrepresentation of African Americans in the Kent County jury pool. The Michigan Supreme Court unanimously reversed the Court of Appeals ruling. The Court agreed that African Americans were a distinct group but held that Smith had “failed to establish a legally significant disparity under either the absolute disparity or comparative disparity tests.”

Smith’s next filed a habeas petition in the United States District Court for the Western District of Michigan. The district court denied Smith’s petition. The Sixth Circuit, however, reversed this decision and held that the disparity between the number of African Americans in the Kent County community and the number represented in the jury pool constituted a systematic disparity.

The State of Michigan filed a petition for a writ of certiorari to the United States Supreme Court and requested that the Court reverse the Sixth Circuit’s ruling and conclude that the Michigan Supreme Court correctly applied established federal law, 28 U.S.C. §2254, when it rejected Smith’s fair cross-section claim and that it correctly analyzed this case using the comparative-disparity test.

The State of Connecticut, joined by Colorado, Delaware, New Mexico, Ohio, South Dakota, and Utah, filed a brief amicus curiae in support of Michigan’s petition.

A copy of the Court’s order granting the State of Michigan’s petition for a writ of certiorari can be found here

We've always been told that all men are equal......unless they're jurors.

(10-17-2009 08:04 PM)SumOfAllFears Wrote:  • Excused absences disproportionately were given to minorities with a lack of transportation or child care.

Damned if you do, damned if you don't.

And so much for justice being blind.

Batson derivative Appeals gone wild!

If they rule in the guy's favor will it be retroactive to the O.J. jury?

.

So let me try to understand this like Robert would.

This guy Murdered another Human Being in a Bar with tons of unbiased witnesses to the crime and there is NO DOUBT this guy is Guilty.

So what this Filing to the SCOTUS is saying is, that if there had been more Blacks on the Jury, the Blacks would have "LET A MURDERER GO FREE TO HELP OUT A BROTHER IN COLOR" ??????

This should feel like a slap in the face to all the Black Folk in this District that they are thought of as being so Racially Biased, that they will Set Murderers Free Based on Their Skin Color.

If I were this DA, I would Retry the guy and have nothing but Black Juror's sitting in and let the All Black Jury have their say in the matter and we would then know just how much Justice is Bullsh't in the minds of these citizens or we would know they are Fair and Prudent in these kinds of matters.

.

(10-17-2009 08:04 PM)SumOfAllFears Wrote:  We will see if Sotomajor set this man free because of his color.

New trial -- or release -- ordered for inmate because of jury color

By John W. Stephenson
September 25, 2008, 8:51PM

GRAND RAPIDS -- After 15 years in prison for a 1991 bar slaying, Diapolis Smith could be on the verge of being retried for murder or walking free from a state prison.

Smith's second-degree murder conviction was overturned Wednesday by a federal appellate court that ruled black jurors were systematically excluded from serving as panelists during the suspect's 1993 trial.

Even broader than that, a study of Kent County juries over an 18-month span from April 1993 to October 1994 established that blacks were underrepresented in panels in 15 of those months.



Based on the lack of a fair cross-section of the community, the Sixth U.S. Circuit Court of Appeals ordered Kent County prosecutors to retry Smith, who is black, or have him released from state custody within 180 days.

An assistant Kent County prosecutor said the release of the 40-year-old, who lived in Battle Creek at the time of the homicide, is not imminent, and that appellate jurists focused too closely on statistics and not the system.

James Lawrence, Smith's attorney, argued a litany of troubles with Kent County court procedures, which since have been amended, limited black jurors available for circuit court trials. Among the problems at the time of trial were:

• Jurors were first assigned to Grand Rapids District Court proceedings, often culling blacks who live in the city -- where the vast majority of Kent County's blacks reside -- to those cases.

• Excused absences disproportionately were given to minorities with a lack of transportation or child care.

• The county's failure to follow-up with potential jurors who did not respond to questionnaires, a population more likely to be minorities.

The court did not entertain Smith's guilt or innocence connected to the Nov. 7, 1991, slaying of Christopher Rumble in So So's lounge on South Division Avenue.

"I think this man has a good chance of leaving prison a free man soon either through an acquittal or his release," Lawrence said. "If he is convicted, then at least he's received a fair trial."

Lawrence does not contend the all-white jury that convicted Smith was racist, only that it was deeply flawed. Blacks were in the jury pool, but they were not seated.

Tim McMorrow, chief appellate attorney for the county, said the ruling is upsetting. McMorrow did not argue the case before at the federal level, but he did successfully persuade the state Supreme Court in 2000 that Smith did not deserve another trial.

The state Attorney General's office took over the case, McMorrow said. Lawyers told McMorrow on Wednesday they plan to ask for another hearing before more judges at the federal appellate level. Otherwise, they'll appeal to the Supreme Court, he said.

John Sellek, an attorney general's office spokesman, declined to confirm those plans, saying only that the ruling is being reviewed.

McMorrow insists Smith had a fair trial.

"There was never a systematic effort to preclude black jurors," he said. "They completely missed the point."

The law does not require a jury of a particular race, McMorrow said. It grants a fairly chosen jury from the district.

A new trial would present a host of problems, including locating witnesses who can clearly distinguish what happened in the bar-room brawl.

"It would be a challenge, but it can be redone," McMorrow said.

Neither Lawrence nor McMorrow foresee a larger fallout of appeals or overturned convictions from the ruling.


---------------------------------------------------------------

http://www.ocjblog.com/?p=2907

SCOTUS Order: Mary Berghuis, Warden v. Diapolis Smith

On September 30, 2009, the United States Supreme Court granted the State of Michigan’s petition for a writ of certiorari to appeal the Sixth Circuit Court of Appeals’ reversal of Smith’s murder conviction. A more indepth discussion of the facts and issues raised in this case, can be found after the jump.
In 1993, Smith was convicted of second-degree murder after a jury trial in the Kent County Circuit Court. He was sentenced to life imprisonment, with the opportunity for parole. Smith, who is African-American, filed a post-conviction motion claiming that his right to a fair trial was prejudiced because he was tried by an all-Caucasian jury. At the hearing, Kent County officials admitted that because of glitches in the jury selection database, African Americans comprised only six percent of the circuit court jury pool. At the time, African Americans accounted for just over eight percent of Kent County’s population. Kent County has since revised its database to address this problem.

The circuit court denied Smith’s motion for a new trial. A divided Michigan Court of Appeals panel reversed the circuit court’s decision and concluded that there was systematic underrepresentation of African Americans in the Kent County jury pool. The Michigan Supreme Court unanimously reversed the Court of Appeals ruling. The Court agreed that African Americans were a distinct group but held that Smith had “failed to establish a legally significant disparity under either the absolute disparity or comparative disparity tests.”

Smith’s next filed a habeas petition in the United States District Court for the Western District of Michigan. The district court denied Smith’s petition. The Sixth Circuit, however, reversed this decision and held that the disparity between the number of African Americans in the Kent County community and the number represented in the jury pool constituted a systematic disparity.

The State of Michigan filed a petition for a writ of certiorari to the United States Supreme Court and requested that the Court reverse the Sixth Circuit’s ruling and conclude that the Michigan Supreme Court correctly applied established federal law, 28 U.S.C. §2254, when it rejected Smith’s fair cross-section claim and that it correctly analyzed this case using the comparative-disparity test.

The State of Connecticut, joined by Colorado, Delaware, New Mexico, Ohio, South Dakota, and Utah, filed a brief amicus curiae in support of Michigan’s petition.

A copy of the Court’s order granting the State of Michigan’s petition for a writ of certiorari can be found here

Good thing you already judged the case after reading 2 articles on hte case.

(10-18-2009 12:09 PM)Tripster Wrote:  .

So let me try to understand this like Robert would.

This guy Murdered another Human Being in a Bar with tons of unbiased witnesses to the crime and there is NO DOUBT this guy is Guilty.

So what this Filing to the SCOTUS is saying is, that if there had been more Blacks on the Jury, the Blacks would have "LET A MURDERER GO FREE TO HELP OUT A BROTHER IN COLOR" ??????

This should feel like a slap in the face to all the Black Folk in this District that they are thought of as being so Racially Biased, that they will Set Murderers Free Based on Their Skin Color.

If I were this DA, I would Retry the guy and have nothing but Black Juror's sitting in and let the All Black Jury have their say in the matter and we would then know just how much Justice is Bullsh't in the minds of these citizens or we would know they are Fair and Prudent in these kinds of matters.

.

"Black folk"? I couldn't tell you were a white guy from the south.

Quote:The county's failure to follow-up with potential jurors who did not respond to questionnaires, a population more likely to be minorities.

I wonder exactly how many resources the appeals court would deem appropriate for a county government to commit to forcing its citizens to exercise their civic duty.

(10-18-2009 01:21 PM)RobertN Wrote:  "Black folk"? I couldn't tell you were a white guy from the south.

You love to try to make the stupidest arguments out of nothing do you realize that ????

White Folk, Black Folk, Brown Folk, Old Folks, Young Folks ..... they are ALL "Folks" so try and deny these people are "Folks" so YOU win the argument.

Why are you so flaming predisposed to try to stir sh't when there isn't even any to stir ????

.

(10-18-2009 03:41 PM)Smaug Wrote:  

Quote:The county's failure to follow-up with potential jurors who did not respond to questionnaires, a population more likely to be minorities.

I wonder exactly how many resources the appeals court would deem appropriate for a county government to commit to forcing its citizens to exercise their civic duty.

Its actually not very hard. Under Batson all you have to do is have a jury that is picked from a pool that is a representative cross section of the area. Batson says you can't strike a juror solely on the basis of race. You can have some other legitimate ground to strike the juror, but it can't be on just racial grounds.

The county computer programs that send out the jury notices account for racial demographics. Now if the prospective jurors dont show up, outside of the County Clerk filing massive numbers of contempt citations for the absent jurors, there isn't much you can do.

(10-18-2009 04:54 PM)WMD Owl Wrote:  Now if the prospective jurors dont show up, outside of the County Clerk filing massive numbers of contempt citations for the absent jurors, there isn't much you can do.

That's what I was attempting to get at, and I'm inclined to agree.

(10-18-2009 04:35 PM)Tripster Wrote:  

(10-18-2009 01:21 PM)RobertN Wrote:  "Black folk"? I couldn't tell you were a white guy from the south.

You love to try to make the stupidest arguments out of nothing do you realize that ????

White Folk, Black Folk, Brown Folk, Old Folks, Young Folks ..... they are ALL "Folks" so try and deny these people are "Folks" so YOU win the argument.

Why are you so flaming predisposed to try to stir sh't when there isn't even any to stir ????

.

Hmm. I just don't remember ever hearing any yankee ever say "folk". I guess I may have heard some African-Americans say it too so I guess I should have just said southerners(or relatives of southerners).

(10-18-2009 01:10 PM)RobertN Wrote:  

(10-17-2009 08:04 PM)SumOfAllFears Wrote:  We will see if Sotomajor set this man free because of his color.

New trial -- or release -- ordered for inmate because of jury color

By John W. Stephenson
September 25, 2008, 8:51PM

GRAND RAPIDS -- After 15 years in prison for a 1991 bar slaying, Diapolis Smith could be on the verge of being retried for murder or walking free from a state prison.

Smith's second-degree murder conviction was overturned Wednesday by a federal appellate court that ruled black jurors were systematically excluded from serving as panelists during the suspect's 1993 trial.

Even broader than that, a study of Kent County juries over an 18-month span from April 1993 to October 1994 established that blacks were underrepresented in panels in 15 of those months.



Based on the lack of a fair cross-section of the community, the Sixth U.S. Circuit Court of Appeals ordered Kent County prosecutors to retry Smith, who is black, or have him released from state custody within 180 days.

An assistant Kent County prosecutor said the release of the 40-year-old, who lived in Battle Creek at the time of the homicide, is not imminent, and that appellate jurists focused too closely on statistics and not the system.

James Lawrence, Smith's attorney, argued a litany of troubles with Kent County court procedures, which since have been amended, limited black jurors available for circuit court trials. Among the problems at the time of trial were:

• Jurors were first assigned to Grand Rapids District Court proceedings, often culling blacks who live in the city -- where the vast majority of Kent County's blacks reside -- to those cases.

• Excused absences disproportionately were given to minorities with a lack of transportation or child care.

• The county's failure to follow-up with potential jurors who did not respond to questionnaires, a population more likely to be minorities.

The court did not entertain Smith's guilt or innocence connected to the Nov. 7, 1991, slaying of Christopher Rumble in So So's lounge on South Division Avenue.

"I think this man has a good chance of leaving prison a free man soon either through an acquittal or his release," Lawrence said. "If he is convicted, then at least he's received a fair trial."

Lawrence does not contend the all-white jury that convicted Smith was racist, only that it was deeply flawed. Blacks were in the jury pool, but they were not seated.

Tim McMorrow, chief appellate attorney for the county, said the ruling is upsetting. McMorrow did not argue the case before at the federal level, but he did successfully persuade the state Supreme Court in 2000 that Smith did not deserve another trial.

The state Attorney General's office took over the case, McMorrow said. Lawyers told McMorrow on Wednesday they plan to ask for another hearing before more judges at the federal appellate level. Otherwise, they'll appeal to the Supreme Court, he said.

John Sellek, an attorney general's office spokesman, declined to confirm those plans, saying only that the ruling is being reviewed.

McMorrow insists Smith had a fair trial.

"There was never a systematic effort to preclude black jurors," he said. "They completely missed the point."

The law does not require a jury of a particular race, McMorrow said. It grants a fairly chosen jury from the district.

A new trial would present a host of problems, including locating witnesses who can clearly distinguish what happened in the bar-room brawl.

"It would be a challenge, but it can be redone," McMorrow said.

Neither Lawrence nor McMorrow foresee a larger fallout of appeals or overturned convictions from the ruling.


---------------------------------------------------------------

http://www.ocjblog.com/?p=2907

SCOTUS Order: Mary Berghuis, Warden v. Diapolis Smith

On September 30, 2009, the United States Supreme Court granted the State of Michigan’s petition for a writ of certiorari to appeal the Sixth Circuit Court of Appeals’ reversal of Smith’s murder conviction. A more indepth discussion of the facts and issues raised in this case, can be found after the jump.
In 1993, Smith was convicted of second-degree murder after a jury trial in the Kent County Circuit Court. He was sentenced to life imprisonment, with the opportunity for parole. Smith, who is African-American, filed a post-conviction motion claiming that his right to a fair trial was prejudiced because he was tried by an all-Caucasian jury. At the hearing, Kent County officials admitted that because of glitches in the jury selection database, African Americans comprised only six percent of the circuit court jury pool. At the time, African Americans accounted for just over eight percent of Kent County’s population. Kent County has since revised its database to address this problem.

The circuit court denied Smith’s motion for a new trial. A divided Michigan Court of Appeals panel reversed the circuit court’s decision and concluded that there was systematic underrepresentation of African Americans in the Kent County jury pool. The Michigan Supreme Court unanimously reversed the Court of Appeals ruling. The Court agreed that African Americans were a distinct group but held that Smith had “failed to establish a legally significant disparity under either the absolute disparity or comparative disparity tests.”

Smith’s next filed a habeas petition in the United States District Court for the Western District of Michigan. The district court denied Smith’s petition. The Sixth Circuit, however, reversed this decision and held that the disparity between the number of African Americans in the Kent County community and the number represented in the jury pool constituted a systematic disparity.

The State of Michigan filed a petition for a writ of certiorari to the United States Supreme Court and requested that the Court reverse the Sixth Circuit’s ruling and conclude that the Michigan Supreme Court correctly applied established federal law, 28 U.S.C. §2254, when it rejected Smith’s fair cross-section claim and that it correctly analyzed this case using the comparative-disparity test.

The State of Connecticut, joined by Colorado, Delaware, New Mexico, Ohio, South Dakota, and Utah, filed a brief amicus curiae in support of Michigan’s petition.

A copy of the Court’s order granting the State of Michigan’s petition for a writ of certiorari can be found here

Good thing you already judged the case after reading 2 articles on hte case.

I guess you'd ignore the FACT that this scumbag was convicted by a jury. Should Sum ignore the law just to be PC? In your mind he's damned if he does and damned if he doesn't.

(10-18-2009 07:22 PM)RobertN Wrote:  Hmm. I just don't remember ever hearing any yankee ever say "folk".

Are you referring to using the singular verson of folk instead of the plural - like the way a certain type of people say fifty cent instead of fifty cents - because if you are, you're a racist.

If Smith succeeds it would seem that the way jurors are selected will have to be revamped nationwide. And the SCOTUS would be dictating how jury selection is to be done Nationwide, and the States will have to abide. Not to mention the floodgate of appeals that will overload the system. It would be like changing the rules in the middle of a football game.

(10-18-2009 07:22 PM)RobertN Wrote:  

(10-18-2009 04:35 PM)Tripster Wrote:  

(10-18-2009 01:21 PM)RobertN Wrote:  "Black folk"? I couldn't tell you were a white guy from the south.

You love to try to make the stupidest arguments out of nothing do you realize that ????

White Folk, Black Folk, Brown Folk, Old Folks, Young Folks ..... they are ALL "Folks" so try and deny these people are "Folks" so YOU win the argument.

Why are you so flaming predisposed to try to stir sh't when there isn't even any to stir ????

.

Hmm. I just don't remember ever hearing any yankee ever say "folk". I guess I may have heard some African-Americans say it too so I guess I should have just said southerners(or relatives of southerners).

why does it matter? is someone's opinion worth less because they're from the south?

(10-19-2009 01:27 PM)SumOfAllFears Wrote:  If Smith succeeds it would seem that the way jurors are selected will have to be revamped nationwide. And the SCOTUS would be dictating how jury selection is to be done Nationwide, and the States will have to abide. Not to mention the floodgate of appeals that will overload the system. It would be like changing the rules in the middle of a football game.

The case that is the "granddaddy" of all this litigation is Batson v. Kentucky, 476 U.S. 79 (1986) which was decided by the Supreme Court back in 1986 and has been providing fertile appellate grounds ever since.


All it says is that a DA can't use a peremptory challenge (striking a juror without stating a valid cause for doing so) to exclude a juror based solely on their race.

Easy way around this is just make sure the jury pool has minorities on it, and if you strike a minority juror make sure you have a good reason other than "just because". Many times a juror will say something that gets them stricken "for cause" which means they say something that indicates that they won't be fair to both sides in the case.

(10-19-2009 04:48 PM)WMD Owl Wrote:  

(10-19-2009 01:27 PM)SumOfAllFears Wrote:  If Smith succeeds it would seem that the way jurors are selected will have to be revamped nationwide. And the SCOTUS would be dictating how jury selection is to be done Nationwide, and the States will have to abide. Not to mention the floodgate of appeals that will overload the system. It would be like changing the rules in the middle of a football game.

The case that is the "granddaddy" of all this litigation is Batson v. Kentucky, 476 U.S. 79 (1986) which was decided by the Supreme Court back in 1986 and has been providing fertile appellate grounds ever since.


All it says is that a DA can't use a peremptory challenge (striking a juror without stating a valid cause for doing so) to exclude a juror based solely on their race.

Easy way around this is just make sure the jury pool has minorities on it, and if you strike a minority juror make sure you have a good reason other than "just because". Many times a juror will say something that gets them stricken "for cause" which means they say something that indicates that they won't be fair to both sides in the case.

Sure, but to a liberal court, things can change, daily.

(10-19-2009 03:56 PM)flyingswoosh Wrote:  

(10-18-2009 07:22 PM)RobertN Wrote:  

(10-18-2009 04:35 PM)Tripster Wrote:  

(10-18-2009 01:21 PM)RobertN Wrote:  "Black folk"? I couldn't tell you were a white guy from the south.

You love to try to make the stupidest arguments out of nothing do you realize that ????

White Folk, Black Folk, Brown Folk, Old Folks, Young Folks ..... they are ALL "Folks" so try and deny these people are "Folks" so YOU win the argument.

Why are you so flaming predisposed to try to stir sh't when there isn't even any to stir ????

.

Hmm. I just don't remember ever hearing any yankee ever say "folk". I guess I may have heard some African-Americans say it too so I guess I should have just said southerners(or relatives of southerners).

why does it matter? is someone's opinion worth less because they're from the south?

I think if you'll peruse this board, you'll find that Robert's feelings have been made abudantly clear on the matter.