Defense attorney Jeremiah Donovan is looking into the eyes of each prospective juror for the Davion Smith murder trial in New London Superior Court and asking them, "Are you African-American?"

The answer, from 69 out of 70 so-called venire persons who have filed into Judge Barbara Bailey Jongbloed's courtroom for questioning, is an obvious "no," but Donovan is trying to prove a point.

He says his client, a 22-year-old black man from New London who is accused of taking part in the November 2011 murder of Jorge Rosa, will not have a fair trial because the jury pool does not represent a fair cross-section of the community.

To succeed with his claim, Donovan must prove there has been a systemic exclusion of African-Americans from the jury pool. The judge has denied Donovan's requests to simply dismiss the almost all-white panels, saying there has been no showing of a systemic exclusion. 

On Wednesday, she granted Donovan's request for a hearing at which Donovan said he would call witnesses "to try to find out what is systemically wrong." The hearing is scheduled for May 15.

"Plus ca change, plus la meme chose," Donovan said when asked about the race issue earlier this week. "The more things change, the more they stay the same."

He attempted to prove a similar claim for an African-American man named Devin M. Johnson, who was accused in the shooting death of Gregory Layne in New London. Only three of the 123 prospective jurors were black.

He called judicial officials to the witness stand to explain how jury pools are selected from names provided by the state Department of Motor Vehicles, Department of Revenue Services, Department of Labor and voter lists.

The defendant's mother and other relatives testified that they had been summoned for jury duty but never responded because they do not trust the judicial system.

Judge Stuart M. Schimelman denied Donovan's motion to dismiss the jury, saying Donovan's claim was speculative and had not been proven. Donovan said this week that he might have appealed, but the jury returned a not-guilty verdict. 

Defense Attorney Norman A. Pattis made a similar claim at the 2012 murder trial of Darnell Moore in Norwich, citing Census figures and calling on judicial officials. Moore was convicted and sentenced to 53 years, and the case is under appeal.

U.S. Census figures for 2013 indicate that 84.1 percent of New London county's 273,976 residents were white, 6.8 percent African-American and 9.6 percent Hispanic/Latino.

At the Smith trial — where 12 regular jurors and four alternates are sought — six jurors, including the one African-American, had been selected as of Wednesday evening following five days of jury selection.

In Connecticut, attorneys question each potential juror individually, in a process called "voir dire." Attorneys for the state and defense can ask the judge to dismiss jurors "for cause" by explaining how they would be unsuitable, or can exercise peremptory challenges in which a venire person can be dismissed without the attorney having to state a case.

Peremptory challenges cannot, however, be used to dismiss a potential juror based solely on his or her race. As of Wednesday morning, Donovan had used 13 of his 18 peremptory challenges.  

Prosecutors Paul J. Narducci and Sarah W. Bowman have been asking the standard questions of the venire persons — probing their work and family backgrounds, their history with police and the court system and their ability to be fair. Donovan's line of questioning has been more confrontational. He asked one white woman whether she was afraid to even look at his client. Appearing surprised, the woman glanced at Smith, who sat at the defense table, and said, "No."

Questioning a man who wrote "human" in the race section of his jury questionnaire, Donovan said, "How do you feel African-Americans are treated by the judicial system?"

"In the circumstances I've seen, there have been people at fault on both sides," the man responded.

k.florin@theday.com

Twitter: @KFLORIN