
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: THURSDAY, July 6, 1995                   TAG: 9507060100
SECTION: EDITORIAL                    PAGE: A-10   EDITION: METRO 
SOURCE: 
DATELINE:                                 LENGTH: Medium

WHEN EVIDENCE IS SECONDARY

IF YOU'RE wondering why the American public has lost no small measure of faith in its criminal-justice system, you needn't look all the way to Los Angeles and the O.J. Simpson trial. Take a gander at Franklin County, Virginia, and the case of Kirby DeHart.

There, too, what ought to be most important - the evidence - has played second fiddle to peripheral issues.

Convicted three years ago in Franklin County Circuit Court and sentenced to 27 years in prison for the murder of 81-year-old Effie Rakes, DeHart nevertheless is free today on bond, as he awaits a retrial ordered by the Virginia Court of Appeals.

If there were serious question about the reliability of the evidence that convicted DeHart, or about the constitutionality of how it was obtained, or about the impartiality of the jury that evaluated it, or about the competence of defense counsel and the fairness with which the evidence was presented and rebutted - any of those things could well have been good cause for nullifying the original conviction.

None of those, however, is the reason. The appellate court ordered a retrial because during selection of a pool of citizens from which to draw a jury, one of the prospective jurors couldn't say for sure wether she could judge the case solely on the evidence presented in court. The trial judge nevertheless kept her in the pool. Thus, in the appeals court's eyes, the need for a new trial: Virginia law calls for a pool of 20 impartial persons from which to select a jury, but in DeHart's case there were only 19.

Not, mind you, that this possibly not-impartial person actually was on the jury that heard the case, nor that an issue of bias has been raised on the part of the jurors who did serve. This alone makes the argument for retrial seem awfully thin.

It gets thinner. The prospective juror didn't serve on the jury because the prosecution used up one of its four peremptory disqualifications to keep her off, thereby averting a more obviously reversible error. The mistake of keeping the woman in the jury pool, in other words, worked against the prosecution, not the defense.

If the trial judge rather than the prosecution had kept the woman off the jury, the outcome for the defense would - at best - have been a draw If her replacement in the jury pool had fit some sort of pro-defense profile, the prosecution could have used the peremptory disqualification that it instead had to spend on her. But if her replacement had fit a pro-prosecution profile, the defense would have to give up one of the disqualifications that it was able to use on another person in the pool.

The appellate judges bought the argument that, well, you never know, maybe this hypothetical jury-pool replacement would have made it to the jury and held out for acquittal. But that's pure speculation, of the "what-if" type that can go on forever. The power of such speculation to force a retrial is especially ironic in a state where the post-conviction discovery of new evidence, no matter how powerfully exculpatory, can be deemed inadmissible even to stopping the execution of an innocent person.

Thus is fed the public's perception that, in determining guilt or innocence in American courts today, side issues - jury composition, as in the DeHart case; attorneys' histrionic skills, as in the Simpson case - count for more than the strength or weakness of the evidence.

by CNB