Prosecution for Green setback

A jury pool of 200 is planned for the new murder trial of Walter Budzyn in the 1992 death of Malice Green, who was repeatedly bludgeoned with police flashlights. The trial is set to begin Feb. 10.

Budzyn spent four years in a federal prison in Texas before the Michigan Supreme Court last July overturned his second-degree murder conviction on grounds of jury bias.

His partner, Larry Nevers, was freed after a federal judge overturned his conviction Dec. 30 on the same grounds. His retrial has not been scheduled.

Yesterday, Wayne County Circuit Judge Thomas Jackson rejected the prosecution's request that jurors also have a choice of convicting Budzyn of a lesser offense of failing to protect Green from other officers.

Prosecutors argued that jurors might not be convinced Budzyn struck the fatal blows but still might hold him guilty of involuntary manslaughter for failing to protect the man he arrested.

Jackson said he found no basis for finding Budzyn guilty of involuntary manslaughter on that basis.

Assistant Prosecutor Douglas Baker then asked Jackson to delay the trial while he appeals the decision. The judge refused. Baker said he would seek a stay from the Michigan Court of Appeals.

The prosecution faces a tougher job this time because Budzyn is being tried separately from his partner, and witnesses linked Nevers more directly to the beating, said Peter Henning, an assistant professor at Wayne State University Law School.

Asking for the lesser offense instruction could be a sign that prosecutors are "more realistic about what their evidence shows," Henning said.

Jackson still could instruct the jurors to involuntary manslaughter on the basis that Budzyn was "grossly negligent."

Manslaughter carries a maximum sentence of 15 years in prison.

Second-degree murder carries a possible life sentence.

In the 1993 trial, witnesses testified Budzyn and Nevers beat Green with flashlights when he refused to open his hand after they stopped him outside a suspected drug house.

The prosecution says the officers had no grounds to stop Green. The defense says it was a lawful stop.

A Detroit Recorder's Court jury convicted both of second-degree murder. Last year, the city court merged with Wayne County Circuit Court.

Race, while not raised in the trial, has been an undercurrent in the case. Both officers are white, Green was black, and the NAACP has pushed hard for vigorous prosecution of the officers.

Retrying the case in Wayne County Circuit Court means the jury pool is expected to be predominantly white, rather than majority black Detroit court jury pool.

"I don't know if people will be able to get by the race issue...with all the racism in the area," said Patrick Keenan, law professor at the University of Detroit Mercy.

Jackson and the prosecution are likely to keep a close eye on whether the defense uses its peremptory challenge to knock blacks off the jury, Henning said. The U.S. Supreme Court has barred lawyers from excluding prospective jurors because of race.

In the end, time, more than race, may be the key difference between the two trials, Keenan and Henning said.

"We're pushing five years now-six years from the death," Henning said. "It's still an emotional case, but memories fade."

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