Berghuis v. Smith (composition of juries)

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Berghuis v. Smith (08-1402)
Oral argument: Jan. 20, 2010

Appealed from: United States Court of Appeals for the Sixth Circuit (Sep. 24, 2008)

SIXTH AMENDMENT, HABEAS CORPUS, IMPARTIAL JURY
In 1993, an all-white jury convicted Diapolis Smith of second-degree murder and possession of a firearm during a felony. A 1990 Census showed that African-Americans comprised 7.8% of eligible jurors in the relevant county and 18.1% of eligible jurors in the relevant city. Smith challenged the county's system of jury selection, arguing it violated his Sixth Amendment right to a jury drawn from a fair-cross-section of the community. The Sixth Circuit ruled in his favor, rejecting Petitioner Mary Berghuis’ proposed “absolute-disparity test,” which subtracts the percentage of adult members of a distinct group in the venire from the percentage of eligible jurors of that distinct group in the population. It instead applied the “comparative-disparity test,” which divides the absolute-disparity by the percentage of the distinct group in the community. The Supreme Court’s decision may impact the composition of juries.

Continues at http://topics.law.cornell.edu/supct/cert/08-1402

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BERGHUIS v. SMITH (No. 08-1402)

Web-accessible at:
http://www.law.cornell.edu/supct/html/08-1402.ZS.html

Argued:
January 20, 2010
-- Decided:
March 30, 2010

Opinion author: Ginsburg
===============================================================

Criminal defendants have a Sixth Amendment right to trial
by an impartial jury drawn from a fair cross section of
the community. See Taylor v. Louisiana , 419 U. S. 522
. To establish a prima facie violation of the fair-cross-section
requirement, a defendant must prove that: (1) a group qualifying
as "distinctive" (2) is not fairly and reasonably represented
in jury venires, and (3) "systematic exclusion" in the
jury-selection process accounts for the underrepresentation.
Duren v. Missouri , 439 U. S. 357 .


At voir dire in the Kent County Circuit Court trial of
respondent Smith, an African-American, the venire panel
included between 60 and 100 individuals, only 3 of whom,
at most, were African-American. At that time, African-Americans
constituted 7.28% of the County's jury-eligible population,
and 6% of the pool from which potential jurors were drawn.
The court rejected Smith's objection to the panel's racial
composition, an all-white jury convicted him of second-degree
murder and felony firearm possession, and the court sentenced
him to life in prison with the possibility of parole.


On order of the Michigan Court of Appeals, the trial court
conducted an evidentiary hearing on Smith's fair-cross-section
claim. The evidence at the hearing showed, inter alia,
that under the juror-assignment order in effect when Smith's
jury was empaneled, the County assigned prospective jurors
first to local district courts, and, only after filling
local needs, made remaining persons available to the countywide
Circuit Court, which heard felony cases like Smith's. Smith
calls this procedure "siphoning." The month after Smith's
voir dire , however, the County reversed course and adopted
a Circuit-Court-first assignment order. It did so based
on the belief that the district courts took most of the
minority jurors, leaving the Circuit Court with a jury
pool that did not represent the entire County. The trial
court noted two means of measuring the underrepresentation
of African-Americans on Circuit Court venires. First, the
court described the "absolute disparity" test, under which
the percentage of African-Americans in the jury pool (6%)
is subtracted from the percentage of African-Americans
in the local, jury-eligible population (7.28%). According
to this measure, African-Americans were underrepresented
by 1.28%. Next, the court set out the "comparative disparity"
test, under which the absolute disparity (1.28%) is divided
by the percentage of African-Americans in the jury-eligible
population (7.28%). The quotient (18%) indicated that,
on average, African-Americans were 18% less likely, when
compared to the overall jury-eligible population, to be
on the jury-service list. In the 11 months after Kent County
discontinued the district-court-first assignment policy,
the comparative disparity, on average, dropped from 18%
to 15.1%. The hearing convinced the trial court that African-Americans
were underrepresented on Circuit Court venires. But Smith's
evidence, the trial court held, was insufficient to prove
that the juror-assignment order, or any other part of the
jury-selection process, had systematically excluded African-Americans.
The court therefore rejected Smith's fair-cross-section
claim.


The state intermediate appellate court reversed and ordered
a new trial with jurors selected under the Circuit-Court-first
assignment order. Reversing in turn, the Michigan Supreme
Court concluded that Smith had not established a prima
facie Sixth Amendment violation. This Court, the state
High Court observed, has specified no preferred method
for measuring whether representation of a distinctive group
in the jury pool is fair and reasonable. The court noted
that lower federal courts had applied three tests: the
absolute and comparative disparity tests and a standard
deviation test. Adopting a case-by-case approach allowing
consideration of all three means of measuring underrepresentation,
the court found that Smith had failed to establish a legally
significant disparity under any measurement. Nevertheless
giving Smith the benefit of the doubt on underrepresentation,
the court determined that he had not shown systematic exclusion.



Smith then filed a federal habeas petition. The Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) prohibits
federal habeas relief unless the state court's adjudication
"resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,"
28 U. S. C. sec.2254(d)(1), or "resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding," sec.2254(d)(2). Finding no infirmity in the
Michigan Supreme Court's decision when assessed under AEDPA's
standards, the District Court dismissed Smith's petition.
The Sixth Circuit reversed. The Court of Appeals ruled,
first, that courts should use the comparative disparity
test to measure underrepresentation where, as here, the
allegedly excluded group is small. The court then held
that Smith's comparative disparity statistics demonstrated
that African-Americans' representation in County Circuit
Court venires was unfair and unreasonable. It next stated
that Smith had shown systematic exclusion. In accord with
the Michigan intermediate appellate court, the Sixth Circuit
believed that the district-court-first assignment order
significantly reduced the number of African-Americans available
for Circuit Court venires. Smith was entitled to relief,
the Sixth Circuit concluded, because no important state
interest supported the district-court-first allocation
system.


Held: The Sixth Circuit erred in ruling that the Michigan
Supreme Court's decision "involv[ed] an unreasonable application
o[f] clearly established Federal law," sec.2254(d)(1).
Duren hardly establishes--no less "clearly" so--that Smith
was denied his Sixth Amendment right to an impartial jury
drawn from a fair cross section of the community. Pp. 10-16.



(a) The Duren defendant readily met all three parts of
the Court's prima facie test when he complained of the
dearth of women in a county's jury pool. First, he showed
that women in the county were both "numerous and distinct
from men." 439 U. S., at 364. Second, to establish underrepresentation,
he proved that women were 54% of the jury-eligible population,
but accounted for only 26.7% of those summoned for jury
service, and only 14.5% of those on the postsummons weekly
venires from which jurors were drawn. Id., at 364-366.
Finally, to show the "systematic" cause of the underrepresentation,
he pointed to Missouri's law permitting any woman to opt
out of jury service and to the manner in which the county
administered that law. This Court noted that "appropriately
tailored" hardship exemptions would likely survive a fair-cross-section
challenge if justified by an important state interest,
id., at 370, but concluded that no such interest could
justify the exemption for each and every woman, id., at
369-370. Pp. 10-11.


(b) Neither Duren nor any other decision of this Court
specifies the method or test courts must use to measure
underrepresentation. Each of the three methods employed
or identified by the courts below--absolute disparity,
comparative disparity, and standard deviation--is imperfect.
Absolute disparity and comparative disparity measurements
can be misleading where, as here, members of the distinctive
group compose only a small percentage of the community's
jury-eligible population. And it appears that no court
has relied exclusively on a standard deviation analysis.
Even absent AEDPA's constraint, this Court would have no
cause to take sides here on the appropriate method or methods
for measuring underrepresentation. Although the Michigan
Supreme Court concluded that Smith's statistical evidence
failed to establish a legally significant disparity under
either the absolute or comparative disparity tests, the
court nevertheless gave Smith the benefit of the doubt
on underrepresentation in order to reach the issue ultimately
dispositive in Duren : To the extent underrepresentation
existed, was it due to "systematic exclusion"? See Duren
, 439 U. S., at 364. Pp. 11-13.


(c) Smith's evidence gave the Michigan Supreme Court little
reason to conclude that the district-court-first assignment
order had any significant effect on the representation
of African-Americans on Circuit Court venires. Although
the record established that some County officials believed
that the assignment order created racial disparities, and
the County reversed the order in response, the belief was
not substantiated by Smith's evidence. He introduced no
evidence that African-Americans were underrepresented on
the Circuit Court's venires in significantly higher percentages
than on the District Court for Grand Rapids, which had
the County's largest African-American population. He did
not address whether Grand Rapids had more need for jurors
per capita than any other district in Kent County. And
he did not compare the African-American representation
levels on Circuit Court venires with those on the Federal
District Court venires for the same region. See Duren ,
439 U. S., at 367, n. 25. Smith's best evidence of systematic
exclusion was the decline in comparative underrepresentation,
from 18 to 15.1%, after Kent County reversed its assignment
order. But that evidence indicated no large change and
was, in any event, insufficient to prove that the original
assignment order had a significantly adverse impact on
the representation of African-Americans on Circuit Court
venires. Pp. 13-14.


(d) In addition to renewing his "siphoning" argument, Smith
urges that a laundry list of factors-- e.g., the County's
practice of excusing prospective jurors without adequate
proof of alleged hardship, and the refusal of County police
to enforce orders for prospective jurors to appear--combined
to reduce systematically the number of African-Americans
appearing on jury lists. No "clearly established" precedent
of this Court supports Smith's claim. Smith urges that
one sentence in Duren, 439 U. S., at 368-369, places the
burden of proving causation on the State. But Smith clipped
that sentence from its context: The sentence does not concern
the demonstration of a prima face case; instead, it speaks
to what the State might show to rebut the defendant's prima
facie case. The Michigan Supreme Court was therefore far
from "unreasonable," sec.2254(d)(1), in concluding that
Duren first and foremost required Smith himself to show
that the underrepresentation complained of was due to systematic
exclusion. This Court, furthermore, has never "clearly
established" that jury-selection-process features of the
kind on Smith's list can give rise to a fair-cross-section
claim. Rather, the Taylor Court "recognized broad discretion
in the States" to "prescribe relevant qualifications for
their jurors and to provide reasonable exemptions." 419
U. S., at 537-538. And in Duren , the Court understood
that hardship exemptions resembling those Smith assails
might well "survive a fair-cross-section challenge." 439
U. S., at 370. Pp. 14-16.


543 F. 3d 326, reversed and remanded.


Ginsburg, J., delivered the opinion for a unanimous Court.
Thomas, J., filed a concurring opinion.