                                No. 3-04-0761
______________________________________________________________________
________
                     APPELLATE COURT OF ILLINOIS
                            filed June 28, 2006
                             THIRD DISTRICT

                               A.D., 2006
______________________________________________________________________
                               ________

THE PEOPLE OF THE STATE OF      )     Appeal from the Circuit Court
ILLINOIS                        )     for the 21st Judicial Circuit,
                                )     Kankakee County, Illinois
     Plaintiff-Appellee,        )
                                )
     v.                         )     99BCFB229
                                )
JAVAR HOLLINS,                  )
                                )     Honorable Clark Erickson
     Defendant -Appellant.      )     Judge, Presiding
                                )
______________________________________________________________________
________

     JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________
________

       Defendant brings this appeal claiming that his right to be tried by a jury chosen from a

fair cross-section of his community was violated when the Kankakee County jury coordinator

intentionally manipulated the racial composition of his jury venire. The trial court rejected

defendant=s claim on the procedural grounds that he waived any right to challenge the

composition of the jury venire when he failed to object at the time of jury selection. The court

also rejected defendant=s argument on the substantive grounds that he did not demonstrate how

he was prejudiced by the jury coordinator=s intentional manipulation. Because we find that

defendant=s equal protection and due process rights have been violated, we reverse and remand


                                                 1
this matter for a new trial.

                                         BACKGROUND

        Defendant was charged by indictment with six counts of first degree murder, one count of

armed robbery and one count of unlawful use of a weapon. Defendant=s case proceeded to trial.

An initial subpool of 46 jurors was assigned to defendant=s trial. Of the 46 jurors, 18 were

individuals from traditionally underrepresented groups. 1 When the first group of potential jurors

was called for voir dire, all 14 members were individuals from traditionally underrepresented

groups, 11 being African-American. The first two potential jurors called to replace those who

were excused from the first 14 were also African-American. Therefore, the first 16 people called

from the jury venire were individuals from traditionally underrepresented groups, 13 of whom

were African-American.

        Of the remaining 32 potential jurors in the initial subpool, only 2 were individuals from

traditionally underrepresented groups, both being African-American. A full jury was not

selected from the initial subpool of 46 jurors. As a result, the judge ordered that 12 more

potential jurors be assigned to defendant=s trial. The record is unclear as to the racial makeup of

the additional 12 jurors. Upon completion of voir dire, a full jury was impaneled. Defendant

did not make any objections to the jury venire during the voir dire proceedings. At the


        1
          While we recognize the somewhat cumbersome effect the use of term Aindividuals from
traditionally underrepresented groups@ may have on our analysis, we also recognize the
impropriety in using the word Aminority@ to describe an individual. We cite the dictionary
definition of Aminority@ meaning Aless than,@ as evidence that the term is inappropriate. See
Merriam-Webster=s Collegiate Dictionary 757 (10th ed. 2000). Moreover, the term Aminority@
conveys similarly demeaning implications as does the expressions Aculturally deprived,@ Alower
class,@ Amentally challenged@ and so on. We therefore choose to use the term Aindividuals from
traditionally underrepresented groups,@ the language often associated with equal protection
challenges under the fourteenth amendment.

                                                 2
completion of voir dire, the defendant=s jury consisted of four African-Americans and eight

Caucasians.

       The case proceeded to trial and the jury found the defendant guilty of two counts of first

degree murder. Subsequently, defendant filed a motion for a new trial asserting that the odd

distribution of individuals from traditionally underrepresented groups suggested that the

selection of the jury venire was not random. At the first hearing on the issue, defense counsel

stated that he did not know what happened, but felt certain that something about the selection of

the jury venire was not right. Defendant argued that the trial court erred in failing to sua sponte

excuse the jury panel. The trial judge continued the case for additional investigation and

evidence.

       As a result of the concerns raised in this case and in other Kankakee County cases, an

administrative investigation was conducted concerning the selection of jury panels in the county.

The investigation included an audit performed by Judicial Systems, Inc., the vendor of the

software used to manage juror assignment in Kankakee County. That investigation did not

commence until two months after defendant=s jury trial concluded. The investigation revealed

that the assignment of potential jurors to jury panels during the period of July 21, 2003, through

June 7, 2004, had been intentionally manipulated by the Kankakee County jury coordinator in an

effort to change several panels= racial composition. These findings were submitted to the trial

court in the form of an administrative report. The trial court reviewed the report and admitted it

into evidence during a second hearing on defendant=s motion for a new trial. The court then

went on to make the following findings of fact: first, the jury coordinator had intentionally

manipulated the assignment of potential jurors to panels to increase the number of individuals



                                                 3
from traditionally underrepresented groups in the defendant=s panel; second, the coordinator

repeatedly lied to investigators concerning her actions; and third, as a result of the coordinator=s

actions, the first 16 potential jurors who were called during the defendant=s voir dire were

individuals from traditionally underrepresented groups.

       As to the intentional manipulation the court stated:

               AThe court reviewed the Jury History Reports for each of the jurors

               initially called into the courtroom for voir dire in the Hollins case.

                * * * The Jury History Reports for jurors 1 through 35 reflect the

               history of the jurors chosen from the jury pool to serve in a sub

               panel which was then sent to the courtroom for jury selection in

               the Hollins case. It is apparent from a review of the Jury History

               Reports that jurors 1 through 16 were processed differently than

               jurors 17 through 35. Jurors 1 through 16 all had their status codes

               changed from 1 to 2. This status change is made manually. The

               result of a status change from 1 to 2 is that this change

               automatically assigns a juror to a particular sub panel, in this case

               the sub panel for the Hollins case. Jurors 17 through 35 were

               selected randomly from the jury pool for the Hollins case sub pool.

                The Jury History Reports reflect that Patricia Johnson was the

               individual who created this sub pool. It is evident from the Jury

               History Report analysis that Patricia Johnson manually changed

               the status codes for jurors 1 through 16, thus requiring the



                                                  4
               computer to put the names of those jurors into the Hollins sub

               pool. Jurors 17 through 35 were then randomly selected from the

               jury pool to become part of the Hollins sub pool. It is not disputed

               that the first 16 jurors were minority and that of the remaining 18

               only 2 were minority. It is thus apparent that Patricia Johnson

               created a jury sub panel which had a disproportionate number of

               minority jurors, and that this sub panel was then directed to the

               courtroom in which the Hollins case voir dire was to take place.@

Upon making these findings, the trial court found that defendant was not deprived of a fair and

impartial jury by the coordinator=s intentional manipulation of his jury panel.

       The court also found that Illinois law requires that all objections to a jury panel must be

made at the time of voir dire. Therefore, the court held defendant waived any right to challenge

the composition of the jury venire when he failed to object at the time of jury selection.

Furthermore, the court held defendant was not entitled to a new trial because he failed to

demonstrate how he was prejudiced by the jury coordinator=s intentional manipulation.

Consequently, the trial court denied defendant=s motion for a new trial and this appeal followed.

                                           ANALYSIS

                                    Equal Protection Violation

       Defendant=s sole claim on appeal is that he was denied a fair trial because the jury venire,

from which his jury was selected, was intentionally manipulated in violation of the equal

protection clause of the fourteenth amendment to the United States Constitution. U.S. Const.,

amend. XIV. Specifically, defendant asserts that his right to be tried by a jury chosen from a fair



                                                 5
cross-section of his community was violated, when the jury coordinator of his county

systematically excluded Caucasians from his jury venire. Because an equal protection claim is a

constitutional question, our review is de novo. People v. Ray, 327 Ill. App. 3d 904, 909, 764

N.E.2d 173, 177 (2002).

       The United States Supreme Court has repeatedly held that the equal protection clause of

the fourteenth amendment prohibits the exclusion of any individual juror from a jury on account

of his or her race. Georgia v. McCollum, 505 U.S. 42, 48, 120 L. Ed. 2d 33, 44, 112 S. Ct. 2348,

2353 (1992); Powers v. Ohio 499 U.S. 400, 409, 113 L. Ed. 2d 411, 424, 111 S. Ct. 1364, 1370

(1991). The Supreme Court in Castaneda v. Partida, 430 U.S. 482, 494, 51 L. Ed. 2d 498, 510,

97 S. Ct. 1272, 1280 (1977), set out the test to be used in determining if a defendant has made

out a prima facie showing of discrimination resulting in an equal protection violation. To

establish a prima facie equal protection violation, the defendant must: (1) show that the excluded

group is a cognizable class; (2) show that the class is underrepresented in the defendant=s jury

pool; and (3) show that the underrepresentation is the result of the systematic exclusion of the

class from juries.

       As an initial matter, we do not believe the usual numerical calculations used to determine

an equal protection violation are necessary in this case. The trial court found that the jury

coordinator intentionally removed 14 Caucasians who had already been randomly assigned to

defendant=s jury pool because they were white. That undisputed fact, standing alone, satisfies all

three elements of the Castaneda test. The excluded Caucasian group constitutes a cognizable

racial class. Their deliberate removal from a pool to which they had already been assigned

through the court=s random selection process shows that Caucasians were in fact



                                                 6
underrepresented in defendant=s jury pool. It is judicially confirmed that the underrepresentation

resulted from deliberate, systematic exclusion of the class from multiple jury pools, including

defendant=s, as well as deliberate systematic exclusion of African-Americans from other jury

pools.

         Because we also believe the equal protection violation can be demonstrated by application of the

Castaneda test, we undertake the Castenada analysis. In applying this test, the defendant has met

requirement numbers one and three. Specifically, defendant has proven that Caucasians are a cognizable

racial group. Defendant has also proven that the Kankakee County jury commissioner systematically

excluded a number of Caucasians from defendant=s jury venire. Therefore, the only remaining question under

the Castaneda test, is whether the defendant has shown that Caucasians were underrepresented in his

jury pool. In an attempt to do so, defendant presents evidence that Athe population of Kankakee

County is 79.9% white, while the population of the defendant=s original jury venire was 60.9% white,

a disparity of nearly 20%.@ We seek guidance from four United States Supreme Court cases in

determining whether this representation of Caucasians on defendant=s jury venire meets the degree of

underrepresentation required to prevail on his equal protection claim.

         The degree of underrepresentation is shown by comparing the proportion of the group in the total

population to the proportion called to serve as jurors. Castaneda, 430 U.S. at 494, 51 L. Ed.

2d at 510, 97 S. Ct. at 1280. The Supreme Court in Casaneda found a prima facie case of

discrimination where the defendant showed that the population of Hidalgo County was 79.1% Mexican-

American, but that, over an 11-year period, only 39% of the persons summoned for grand jury service

were Mexican-American. See also Turner v. Fouche, 396 U.S. 346, 24 L.Ed. 2d 567,

90 S. Ct. 532 (1970) (a grand jury list consisting of only 37% African-Americans was

sufficient evidence to satisfy the under-representation prong where the county population was 60%

                                                        7
African-American); Sims v. Georgia, 389 U.S. 404, 19 L. Ed. 2d 634, 88 S. Ct.

523 (1967) (evidence showing African-Americans constituted 24.4% of the individual taxpayers in

a county, but the fact that the county=s grand jury list only represented 4.7% was evidence of

discrimination); Whitus v. Georgia, 385 U.S. 545, 17 L. Ed. 2d 599, 87 S. Ct. 643

(1967) (the disparity of African-Americans listed on the tax digest amounting to 27.1% of the

taxpayers, but only 9.1% of those on the grand jury venire, was held to be sufficient to make out a prima

facie case of discrimination).

        In light of these cases, it is clear that defendant has successfully shown that the proportion of

Caucasians called to serve as jurors on his venire was underrepresented in relation to the number of

Caucasians found in Kankakee County=s general population. Specifically, defendant has shown a disparity

of approximately 20%. Similar percentages have been held by the Supreme Court to be sufficient to

make out a prima facie case of discrimination. In those cases, the court relied on such percentages in coming

to the conclusion that a certain cognizable group of the population was excluded on the basis of race. Here,

however, as previously noted, we do not need any percentages to come to the conclusion that certain

individuals were intentionally excluded from defendant=s jury venire on the basis of race. The audit

performed by Judicial Systems, Inc., found that the county jury commissioner intentionally and arbitrarily

manipulated the racial composition of defendant=s jury venire. Such bias and manipulation shatters one of the

most basic tenants of the fourteenth amendment B that no individual juror may be excluded from any

jury on account of his or her race.

        Although we recognize that there is no requirement that there be an exact statistical match between

the jury pool and the county population, it is the randomness of the selection process that should, over time,

result in a reasonably congruent balance between the pool and the population. Here, the randomness was

eliminated by the deliberate manipulation of the pool by the county jury commissioner. AThe fourteenth

                                                       8
amendment=s mandate that race discrimination be eliminated from all official acts and proceedings of the State

is most compelling in the judicial system.@ Powers v. Ohio, 499 U.S. 400, 415, 113 L. Ed.

2d 411, 428, 111 S. Ct. 1364, 1373 (1991). We are therefore, under an affirmative duty

to enforce the constitutional policies embodied in that prohibition. In acting upon that duty, we find

defendant=s equal protection rights have been violated.

                                             Due Process violation

        Although defendant does not specifically raise the issue of due process here on appeal,

the fact remains that defendant=s entire argument has been framed in the context of fourteenth

amendment principles. AThese principles compel the conclusion that a State cannot, consistent

with due process, subject a defendant to indictment or trial by a jury that has been selected in an

arbitrary and discriminatory manner, in violation of the Constitution and laws of the United

States.@ Peters v. Kiff, 407 U.S. 493, 502, 33 L. Ed. 2d 83, 94, 92 S. Ct. 2163, 2168 (1972).

Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole

judicial process. Peters, 407 U.S. at 502, 33 L. Ed. 2d at 94, 92 S. Ct. at 2168. They create the

appearance of bias in the decision of individual cases and increase the risk of actual bias as well.

Peters, 407 U.S. at 503, 33 L. Ed. 2d at 94, 92 S. Ct. at 2168. Accordingly, we address the due

process implications of the equal protection violation.

        The United States Supreme Court in Peters examined the question of whether a

Caucasian defendant had a substantive constitutional right to set aside his conviction upon proof

that African-Americans had been systematically excluded from the state grand and petit juries

which indicted and tried him. Peters, 407 U.S. at 504, 33 L. Ed. 2d at 95, 92 S. Ct. at 2169. The

Court in answering in the affirmative held that any defendant, regardless of his race, has standing



                                                          9
to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily

excluded from service members of any race, thereby denying him due process of the law. Peters,

407 U.S. at 504, 33 L. Ed. 2d at 95, 92 S. Ct. at 2169.

       The Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 530-31, 42 L. Ed. 2d. 690, 698,

95 S. Ct. 692, 698 (1975) further clarified the necessity of following proper procedure when

constructing juries. The court stated:

               AThe purpose of a jury is to guard against the exercise of arbitrary

               power -- to make available the commonsense judgment of the

               community as a hedge against the overzealous or mistaken

               prosecutor and in preference to the professional or perhaps over-

               conditioned or biased response of a judge. [Citation.] This

               prophylactic vehicle is not provided if the jury pool is made up of

               only special segments of the populace or if large, distinctive

               groups are excluded from the pool. Community participation in

               the administration of the criminal law, moreover, is not only

               consistent with our democratic heritage but is also critical to public

               confidence in the fairness of the criminal justice system.

               Restricting jury service to only special groups or excluding

               identifiable segments playing major roles in the community cannot

               be squared with the constitutional concept of jury trial. >Trial by

               jury= presupposes a jury drawn from a pool broadly representative

               of the community as well as impartial in a specific case. . . . [The]


                                                  10
                broad representative character of the jury should be maintained,

                partly as assurance of a diffused impartiality and partly because

                sharing in the administration of justice is a phase of civic

                responsibility. [Citation.]@ Taylor, 419 U.S. at 530-31, 42 L. Ed.

                2d at 698, 95 S. Ct. at 698.

        In the case at bar, there is no question that the jury coordinator intentionally manipulated

defendant=s jury venire on the basis of race. The Supreme Court has repeatedly held that the

Constitution prohibits such arbitrary actions. Congress itself has made such exclusion a crime

under 18 U.S.C. ' 243 (2000), reflecting the central concern of the fourteenth amendment with

racial discrimination. Though some may argue that the precedent announced in Peters and

Taylor is inapplicable on the basis that the manipulation here did not result in the wholesale

exclusion of any specific race, we would not agree. We find that any arbitrary manipulation of

any jury pool on the basis of race, constitutes an actionable due process violation. We adhere to

this rule regardless of whether it was one individual from traditionally underrepresented groups

that was arbitrarily excluded or in the alternative, the entire group. We simply can not allow

such prejudicial conduct to invade the courtrooms, where due process guarantees all persons the

right to a fair trial in a fair tribunal. The coordinator=s intentional manipulation of defendant=s

jury venire on the basis of race, not only tarnishes our entire jury system but also, constitutes a

violation of defendant=s due process rights.

                                          Prejudice is presumed

        Although we have found that defendant=s equal protection and due process rights have been violated,

the question remains whether defendant=s conviction should be overturned on this basis. In examining this


                                                     11
question, the trial court found the commissioner=s actions did not constitute reversible error because the

defendant failed to show prejudice. However, where such an egregious action systematically excludes certain

individuals from jury service on the basis of race, we should not deem it necessary for the defendant to

affirmatively demonstrate the existence of actual prejudice in the resulting jury panel. Under such

circumstances, prejudice may be presumed. As the United States Supreme Court stated in Peters:

                 AIt is in the nature of the practices here challenged that proof of actual

                 harm, or lack of harm, is virtually impossible to adduce. For there is no

                 way to determine what jury would have been selected under a constitutionally

                 valid selection system, or how that jury would have decided the case.

                 Consequently, it is necessary to decide on principle which side shall suffer

                 the consequences of unavoidable uncertainty. [Citations.] In light of the

                 great potential for harm latent in an unconstitutional jury-selection system,

                 and the strong interest of the criminal defendant in avoiding that harm, any

                 doubt should be resolved in favor of giving the opportunity for challenging the

                 jury to too many defendants, rather than giving it to too few.@ Peters,

                 407 U.S. at 504, 33 L. Ed. 2d at 94-95, 92 S. Ct.

                 at 2169 (1972).

        In the instant appeal, essential demands of fairness dictate that the errors of the jury commissioner

not be visited upon the defendant. Here, the commissioner intentionally manipulated the jury venire in an

effort to adjust its racial composition. To require the defendant to demonstrate how he was prejudiced by

such an action requires him to provide proof which, as the Supreme Court states, Ais virtually impossible to

adduce.@ Such a situation leaves the defendant without an effective remedy for improper conduct in the jury

selection process and provides incentive for such conduct to recur. Accordingly, we conclude that the

                                                       12
arbitrary and systematic exclusion of Caucasian jurors from the defendant=s jury venire is presumptively

prejudicial.

                                                   Waiver

         In denying defendant=s motion for a new trial, the court ruled that the defendant waived

any objection to the jury commissioner=s actions by failing to object during voir dire. We find

this reasoning to be erroneous. Defendant=s failure to object to the jury panel during voir dire

did not constitute a valid waiver. The United States Supreme Court has held that the question of

a waiver of a federally guaranteed constitutional right is a question controlled by federal law.

Brookhart v. Janis, 384 U.S. 1, 4, 16 L. Ed. 2d 314, 317, 86 S. Ct. 1245, 1247 (1966). The Court

has also held that Athere is a presumption against the waiver of constitutional rights, [Citation]

and for a waiver to be effective it must be clearly established that there was >an intentional

relinquishment or abandonment of a known right or privilege.= [Citation.]@ Brookhart, 384 U.S.

at 4, 16 L. Ed. 2d at 317, 86 S. Ct. at 1247. AIn making this determination, courts must examine

>the particular facts and circumstances surrounding that case, including the background,

experience, and conduct of the accused.= [Citation.]@ Connecticut v. Barrett, 479 U.S. 523, 531,

93 L. Ed. 2d 920, 930, 107 S. Ct. 828, 833 (1987). (Brennan, J., concurring).

         Although this case was the primary reason for the Kankakee County sheriff=s

investigation into the procedures used to makeup jury subpools, the record reveals that the

investigation did not commence until two months after defendant=s jury trial concluded. It was

not until defendant was furnished with a copy of the investigative report that he had any

evidence with which he could support an accusation that the jury coordinator had manipulated

the assignment of jurors based on their race. We cannot agree with the State=s argument that



                                                     13
counsel knew or at least should have known of the manipulation due to the fact that the first 16

jurors called were individuals from traditionally underrepresented groups. It would be

interesting to ask the State at exactly what point counsel was Asupposed to know@ that the venire

had been intentionally and arbitrarily manipulated. Inasmuch as the process is supposed to be

random, it is certainly mathematically possible that the first 16 individuals called would be

individuals from traditionally underrepresented groups. Consequently, that mere fact did not

somehow notify the defendant that the county has engaged in intentional racial manipulation of

his venire.

       Examining the Aparticular facts and circumstances surrounding this case,@ it is clear

counsel preserved the issue by raising it when he first had reason to believe that the distribution

of jurors in the panel might have been the result of purposeful acts on the part of the jury

coordinator. The issue was not waived. Furthermore, the defendant in Peters did not raise his

claim that African-Americans were systematically excluded from his grand and petit juries until

seven months after his trial. In holding that defendant had standing to bring his due process

challenge seven months after trial, the Court implicitly rejected any claim of waiver. Here,

counsel raised his challenge to the jury venire selection process a mere nine days after the first

recorded action was taken in the investigation. Consequently, we should find the trial court

erred in deeming the issue waived.

                                          CONCLUSION

       In the case at bar, there is no question that the jury coordinator intentionally manipulated

defendant=s jury venire on the basis of race. Such actions violate the very foundation of the

fourteenth amendment. We therefore hold that any arbitrary manipulation of any jury pool on


                                                 14
the basis of race, constitutes an actionable equal protection and due process violation. We find

that the trial court erred in dismissing defendant=s motion on the substantive basis that he did not

prove prejudice. Instead, we do not deem it necessary for the defendant to affirmatively demonstrate the

existence of actual prejudice where such an egregious action systematically excludes certain individuals from

jury service on the basis of race. Furthermore, we find that the trial court erred in dismissing defendant=s

motion on the procedural basis that he waived any right to challenge the composition of the jury venire

when he failed to object at the time of jury selection. Upon examination of the Aparticular facts

and circumstances surrounding of this case,@ it is clear that defendant did not and could not know

of the commissioner=s manipulation. As a result, any alleged waiver was not intentional or

knowing and was, consequently, not valid. It is our duty, as well as that of the State, to see that

every citizen, when brought before the justice system, be afforded the protection that the

Constitution guarantees. Where, as in this case, an individual=s constitutional rights are blatantly

violated, that individual=s conviction cannot stand, because the Constitution prohibits the

procedure by which it was obtained.

        For the reasons stated above, we reverse the judgment of the trial court. We remand the

cause for a new trial.

        Reversed and remanded.

        O=BRIEN, J., concurs.

        SCHMIDT, P.J., specially concurs.




              PRESIDING JUSTICE SCHMIDT, specially concurring:

          I do not believe that any violation of Javar Hollins'

                                                      15
   constitutional rights prejudiced him in the sense that the

   outcome was affected.     The jury commissioner in this case

   intentionally tampered with the jury pool in an obviously

 misguided attempt to benefit the defendant.     Nonetheless, the

State correctly points out that defendant suffered no prejudice.

   Our supreme court recently defined Illinois's plain-error

                         doctrine as follows:

           "The plain-error doctrine, as it has developed

        in Illinois, allows a reviewing court to reach a

        forfeited error affecting substantial rights in

       two circumstances.    First, where the evidence in a

       case is so closely balanced that the jury's guilty

        verdict may have resulted from the error and not

         the evidence, a reviewing court may consider a
        forfeited error in order to preclude an argument

         that an innocent person was wrongly convicted.

           [Citation.]    Second, where the error is so
      serious that the defendant was denied a substantial

        right, and thus a fair trial, a reviewing court

      may consider a forfeited error in order to preserve

      the integrity of the judicial process. [Citations.]

       This so-called disjunctive test does not offer two

         divergent interpretations of plain error, but

      instead two different ways to ensure the same thing-
       namely, a fair trial."   People v. Herron, 215 Ill.

           2d 167, 178-79, 830 N.E.2d 467, 475 (2005).

    It seems that under the second prong, the violation of a

   substantial right need not have affected the outcome of the

         trial, otherwise we would only have one prong.

I concur only because reversal is the only remedy available to us

 in light of the fact that we do not have the authority to fire

 the jury commissioner.   I believe that the idea of manipulating
jury pools is so over the top that to allow this would seriously

undermine the public's confidence in the judicial system.    If the

 jury pool can be manipulated in this case, why not others?    The

 cost of retrying defendant pales in comparison to the damage to

   be done to the system by allowing the conviction to stand.




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