FORT LAUDERDALE, FLA., OCT. 9 -- The prosecution's effort to oust the judge hearing the 2 Live Crew obscenity trial failed today, allowing attorneys to go ahead with the tedious task of choosing a jury. By the end of the day, none had been selected, and the process, scheduled to resume Wednesday afternoon, is expected to take the remainder of the week.
Claiming Broward County Judge June L. Johnson was potentially biased against them, prosecutors asked her Monday to remove herself from the case.
Assistant State Attorney Leslie Robson argued that Johnson had given the appearance of bias, largely because 15 years ago Johnson had taken a law class taught by the 2 Live Crew's attorney, Bruce Rogow, a Nova University law professor.
Johnson refused to step down and Circuit Judge George Brescher agreed on appeal that the state's case was too weak to justify her removal.
"It's a very close one," said Brescher, who noted that Johnson had commented on the merits of the appeal. "A judge is not required to be as silent as the Sphinx in Egypt."
Rogow and the band's other attorneys accused prosecutors of trying to stall the trial.
"This is a circus, an embarrassment," Rogow said.
Brescher's decision cleared the last obstacle to picking six jurors to hear the obscenity case against the three band members -- Luther Campbell, Christopher Wongwon and Mark Ross -- charged with giving an obscene performance at Club Futura in Hollywood, Fla., last June.
Defense attorneys said they would put special emphasis on who sits on the panel, especially since an all-white Broward County jury convicted Fort Lauderdale record store owner Charles Freeman last week for selling the band's album "As Nasty as They Wanna Be."
They said they would prefer jurors who are young, black and liberal.
Today's questions focused mainly on what the prospective jurors knew of the case and whether they had formed opinions on the rap group and its performances. One prospective juror was removed by Johnson after he was found reading a newspaper in the hallway.
Also excused was Illene Hugel, a widowed tire store worker, who said she "was upset" by the sample of lyrics the judge read aloud.
Asked if she could judge the band members fairly, Hugel replied: "I really don't think I could."
Rogow said he was unhappy with the initial pool of 25 prospective jurors, which was randomly selected from a list of Broward County registered voters. Rogow and the other band attorneys have asked Johnson to declare the state jury selection law unconstitutional on the grounds that it produces panels that are disproportionately white, old and middle class.
Three of the prospective jurors are black. Only two are under 30 years old.
"The test is whether you can get a fair cross-section of the community," Rogow said. "I don't think it's possible. I'd like to have a jury of young blacks under the age of 25."
Assistant State Attorney Pedro Dijols said he did not think race was a factor in the case.
"Race has nothing to do with whether or not the music is obscene," said Dijols, who is black. "I take personal offense to the notion that somehow blacks have lower moral standards than whites."