A judge rejected former heavyweight champion Mike Tyson's bid to throw out the rape indictment against him because blacks are under-represented in Marion County's jury selection process.
Tyson, who is black, is scheduled to go on trial Monday on rape, criminal deviate conduct and confinement charges stemming from an alleged assault on an 18-year-old Miss Black America contestant in an Indianapolis hotel room last July.Marion Superior Court Judge Patricia J. Gifford on Tuesday also turned down motions to toss out the case because a potential grand juror was dismissed after acknowledging he knew two witnesses, and to postpone the trial to give defense attorneys more time to review new evidence. That included a tape recording of a 911 emergency call the complainant made 24 hours after the alleged attack and raw film footage of the Miss Black America pageant.
Tyson's attorneys tried unsuccessfully to persuade Gifford that blacks historically aren't called for jury duty in Marion County in adequate numbers, thereby violating the Sixth Amendment right to fair trial and 14th Amendment right to equal protection.
Jury pools are selected randomly by computer from lists of registered voters.
Two Indiana University law students testified that a study they conducted showed only 13.34 percent of potential jurors summoned last year were black. U.S. Census Bureau figures showed that 21.24 percent of Marion County's population was black in 1990.
Student Kurt Jones said that only 11 of the 101 potential jurors summoned Jan. 14 for Tyson's trial were black.
Gordon Henderson, a Richmond, Ind., statistical consultant, said that if the juror selection process truly were random, "you would expect to see 21 percent" black.
He said census data also shows that a higher proportion of blacks than whites were registered to vote in Marion County in 1990.
"There's just plain something wrong," said defense attorney Kathleen Beggs.
Gifford denied the motion to throw out the indictment, saying that if there is any under-representation, "it is not due to any systematic exclusion of any group."
"Random selection is a fair system," she said.
Gifford also denied inclusion of several last-minute witnesses, including one who would have testified about the boxer's genitalia and an expert on rape trauma syndrome.
Earlier this month, the state had sought as a late witness Dean Kilpatrick, a South Carolina expert on rape victims. Last week, Gifford agreed with a defense objection that Kilpatrick's name had been submitted well past the Nov. 15 deadline for expert witnesses.
She declined to reconsider the motion Tuesday.
David J. Dreyer, chief counsel for the prosecution, said he didn't think Kilpatrick's exclusion would hamper his case.
"The (911) tape is the important thing, but I think everybody would have benefited from his testimony," Dreyer said.