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.
In Duren v. Missouri, this Court established a three-prong standard for determining whether a defendant was able to demonstrate a prima facie violation of the Sixth Amendment right to have a jury drawn from a fair cross section of the community. The circuits have split on the issue about the proper test for determining what constitutes a fair and reasonable representation of a distinct group from the community within the venires (jury pool) under the second prong of Duren. The Michigan Supreme Court ultimately concluded that the small disparities at issue here for African Americans (7.28% in the community as against 6% in the venires during the time period measured) did not give rise to a constitutional violation. The question presented is:
Whether the U.S. Court of Appeals for the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply "clearly established" Supreme Court precedent under 28 U.S.C. § 2254 on the issue of the fair cross-section requirement under Duren where the Sixth Circuit adopted the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires), which this Court has never applied and which four circuits have specifically rejected.
Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established Supreme Court precedent for evaluating whether the jury was comprised of a fair cross-section of the community, and whether the Sixth Circuit erred in adopting the comparative-disparity test for evaluating the difference between the number of African Americans in the community as compared to the venires.
On February 12, 1992, Michigan police arrested Diapolis Smith (“Smith”), an African American man, in relation to a shooting death at a nightclub in Grand Rapids, Michigan. See Smith v. Berghuis, 543 F.3d 326, 329–330 (2008). Smith’s case proceeded to jury trial in Kent County Circuit Court. See id. at 330. Before trial, however, Smith challenged the system of jury selection, claiming systematic exclusion of African American jurors in violation of his Sixth Amendment right to an impartial jury. See id. at 330. A 1990 Census showed that African-Americans comprised 7.8% and 18.1% of eligible jurors in Kent County and Grand Rapids respectively. See id. It also showed that Grand Rapids’ population comprised of 85% of the African-American population of Kent County. See id. Of the 60–100 potential jurors that comprised Smith’s panel, three were African-American. See id. The fourteen jurors eventually selected were all Caucasian. See id.
The trial court denied Smith’s Sixth Amendment challenge and proceeded to trial. See Smith v. Berghuis, 543 F.3d at 330. The all-white jury convicted Smith of second-degree murder and possession of a firearm during a felony. See id. Smith appealed to the Michigan Court of Appeals, again arguing violation of his Sixth Amendment right to an impartial jury from a fair cross-section of the community. See id. The Court of Appeals remanded the case to the trial court to make factual determinations as to the jury selection process. See id.
On remand, the trial court found that Kent County’s jury selection system excused from service eligible jurors who pled non-statutory “hardship exemptions,” such as child-care concerns or inability to take time off from work. See Smith v. Berghuis, 543 F.3d at 331. The trial court also found that, prior to October 1, 1993, jurors were first selected to serve the federal district courts, with the remaining pool distributed to serve the state circuit courts. See id. at 332. Kent County ultimately reversed this practice because it effectively limited the number of African American jurors available for circuit courts. See id. Dr. Stoline, a statistician, testified that during the relevant period of Smith’s trial, African Americans were 18% underrepresented in juries, and that during September 1993—the specific month that Smith’s jury was empanelled—African Americans were underrepresented by 34–38%. See id. The trial court also heard testimony suggesting that the allowance of non-statutory excuses disproportionately impacted African American jurors. See id. at 333.
The trial court determined that there was no violation of Smith’s right to an impartial jury, because the underrepresentation in the jury pool was not due to systematic exclusion. See Smith v. Berghuis, 543 F.3d at 333. The Michigan Court of Appeals reversed, ruling that the cause of the underrepresentation was Kent County’s pre-October 1993 jury selection procedures. See id. The Michigan Supreme Court reversed the Court of Appeals, citing the absence of evidence proving systematic exclusion of African-Americans. See id.
Smith petitioned the federal courts for review. See Smith v. Berghuis, 543 F.3d at 333. The district court denied his petition, but the Sixth Circuit reversed, holding that Smith proved violation of his Sixth Amendment right under Duren v. Missouri, 439 U.S. 357 (1979)’s three-prong test. See id. at 333–334, 345. In so doing, the Sixth Circuit rejected 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. See id. at 337–339. On September 30, 2009, the U.S. Supreme Court granted certiorari. See Docket No. 08-1402.
In this case, the Supreme Court will determine whether the comparative-disparity test—which compares the difference between the proportion of a distinct class of minorities within a community with that group’s presence in a venire—is the proper means of evaluating whether a defendant has demonstrated a prima facie violation of the Sixth Amendment right to a jury drawn from a fair-cross-section of the community. Petitioner Mary Berghuis argues against adoption of the comparative-disparity test, while Respondent Diapolis Smith (“Smith”) argues in favor.
In support of Berghuis, amicus curiae the Criminal Justice Legal Foundation (“CLJF”) attacks the fair-cross-section requirement’s legitimacy, arguing that the requirement is an outdated relic of an era where the equal protection clause did not provide the effective remedies in such situations that it furnishes today. See Brief of Amicus Curiae Criminal Justice Legal Foundation ("CJLF") in Support of Petitioner at 6. Since this premise no longer holds true, CLJF argues, the requirement no longer serves a purpose. See id. at 6. In response, Smith argues that, because the jury system properly functions only when it meets the fair cross-section requirement, the cross-section requirement still serves a valid function. See Brief for Respondent, Diapolis Smith at 19. In this vein, Smith argues that a jury drawn from a fair cross-section of the community helps to guard against potential abuses of power by overly aggressive prosecutors. See id. at 19. Further, Smith argues that the requirement serves a legitimizing function: when minorities do not see their community reflected in juries, they begin to question both the decisions of the courts and the legitimacy of the system as a whole. See id. at 20–21.
CJLF also argues that the cross-section requirement unnecessarily wastes time and resources. See Brief of CJLF at 25. CLJF asserts that unsuccessful cases are burdensome because they consume valuable judicial resources. See id. at 27. It also asserts that successful claims are disastrous: if a court finds “structural error,” it must reverse without requiring any showing of prejudice to the defendant and give any other defendant with a pending appeal in that circuit and a preserved challenge a new trial, regardless of whether he or she suffered prejudicial harm. See id. at 28. Smith counters that the potential costs imposed by a cross-section challenge are fully justified. See Brief for Respondent at 22–23. Specifically, he states that the cost of granting defendants a new trial free of Constitutional defect pales in comparison the societal cost of removing the requirement that Courts ensure that juries represent a fair cross-section of the community. See id.
Along with CJLF, Amici Connecticut, et al. argue that hardship exemptions serve a valuable purpose. See Brief of Amici Curiae Connecticut, et al. (“Connecticut”) at 30; Brief of CJLF at 28. They argue that the hardship exemptions granted during jury selection for Smith’s trial were reasonable, pointing to the unfairness of forcing, for example, single parents who cannot obtain adequate child care to serve on juries. See Brief of Connecticut at 30–32; Brief of CJLF at 28. In addition, Connecticut asserts that there is no evidence that the clerks granted the hardship exemptions based on jurors’ racial backgrounds. See Brief of Connecticut at 30–31.
Smith counters that jury decisions are far more reliable and valuable when produced by juries that include all members of the community: the perspective that members of distinct minorities bring to jury deliberation is crucial. See Brief for Respondent at 21. Smith contends, for example, that lifetime members of a minority community possess useful insights for judging members of that minority community. See id. He asserts that minority jury members could provide useful insights into understanding customs of an inner-city community or dispelling racial stereotypes and prejudices. See id. From Smith’s perspective, a jury that reflects “the broadest range of experience” is a hallmark of a nation upholding representative democracy’s guarantee of a right to a fair trial. See id. at 15, 21. From the perspective of Berghuis’ supporters, however, having responsible jurors genuinely interested in serving is more important than having a jury that mirrors the composition of the community. See Brief of CJLF at 28.
The Sixth Amendment provides that in criminal proceedings, the accused has the right to a trial by an impartial jury. U.S. Const. amend VI. In Taylor v. Louisiana, the United States Supreme Court interpreted the Sixth Amendment right to a trial by an impartial jury as requiring venires to represent a fair-cross-section of the community. See Taylor v. Louisiana, 419 U.S. 522 (1975). In Duren v. Missouri, the Court established a three-prong test for determining a violation of the fair cross-section venire requirement. See Duren v. Missouri, 439 U.S. 357, 357 (1979). A defendant may establish violation by showing that (1) the allegedly excluded group is a “distinctive” group in the community; (2) that the group’s representation in venires is unreasonable and unfair in relation to the number of persons belonging to such a group in the community; and (3) that this underrepresentation results from “systematic exclusion of the group in the jury-selection process.” See id. Among the tests developed by federal appellate courts to evaluate whether fair-cross-section claims satisfy Duren’s second prong are the absolute disparity test and the comparative disparity test. See Brief for Petitioner, Mary Berghuis at 3. The absolute disparity test looks at the time period at issue and subtracts the percentage of members in the distinct group within the prospective jurors from the percentage of adults in the distinct group within the community. See id. The comparative-disparity test “divides the percentage of absolute disparity by the percentage of the distinct group in the community.” Id.
Is the Michigan Supreme Court holding entitled to deference under 28 U.S.C. § 2254(d)(1)?
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief unless that ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Petitioner, Mary Berghuis (“Berghuis”), argues that the Sixth Circuit overstepped its authority when it rejected the Michigan Supreme Court’s holding. See Brief for Petitioner at 21. Berghuis argues that the Michigan Supreme Court’s ruling did not contravene clearly established Supreme Court precedent because there is no clearly established Supreme Court precedent that required the Michigan Supreme Court to reach a contrary conclusion. See id. at 26.
Respondent, Diapolis Smith (“Smith”), counters that the three-pronged Duren test is sufficiently clear Supreme Court precedent. See Brief for Respondent, Diapolis Smith at 55. Smith contends that AEDPA does not “require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.” See id. He argues that AEDPA calls for de novo review in cases of mixed questions of law and fact, which is the situation in this case. See id. at 57.
Did the Sixth Circuit err in rejecting the absolute disparity test when determining the second prong of Duren?
Berghuis argues that the Sixth Circuit erred in rejecting the absolute disparity test in determining the second prong of Duren. See Brief for Petitioner at 22. Berghuis supports the adoption of the absolute disparity test by claiming that even the Duren Court appeared to apply the absolute disparity test and states that the majority of the circuits rely on this standard. See id. at 29-30. Berghuis asserts that the absolute disparity percentage found here – 1.28% – is negligible and does not satisfy Duren’s second prong. See id. at 22. She adds, however, that even under the comparative disparity test, the comparative disparity of 18% fails Duren’s second prong. See id. at 22-23.
Berghuis argues that the Court should limit fair-cross-section requirements to large distinct groups, as opposed to situations where there is small absolute disparity. See Brief for Petitioner at 40. Berghuis contends that the exclusion of small distinctive groups from the jury pool poses no threat to the Sixth Amendment requirement of an impartial jury since there would likely be no change to the composition of the petit jury despite the small disparity. See id. at 41. Berghuis illustrates this by showing that given that there were 60 prospective jurors in this case, and each juror only had a 20% chance of sitting on the petit jury. See id. She claims that the addition of one or more African American prospective juror would likely have no impact on the eventual petit jury selected. See id.
Smith counters that the question of underrepresentation and the test used to measure it, are not genuinely material to this case since the issue of underrepresentation formed no part of the Michigan Supreme Court’s decision. See Brief for Respondent at 17. Smith further elaborates that under the Michigan Supreme Court ruling, only the matter of systematic exclusion under Duren’s third prong is at issue, and thus, the Supreme Court should not use this case to determine any “mathematical test for underrepresentation.” See id. at 15. Smith argues that he satisfies Duren’s second prong by showing a persistent pattern of underrepresentation for 15 out of 17 months. See id. at 16.
Smith maintains that Berghuis’s proposal to eradicate the fair cross-section requirement for situations where there is small absolute disparity would allocate constitutional rights based on the arbitrary factor of a jurisdiction’s population size. See Brief for Respondent See id. at 37. He contends that in situations where the underrepresented group is a small percentage of the total population, the Court should reject the absolute disparity test. See id. at 33. Smith argues that a comparative disparity evaluation is necessary when the minority population is small, because neither the size of the sample nor the proportion of the population in the specified category affects comparative disparity results. See id. at 36. For example, Smith states, the absolute disparity tests treats the difference between 50% and 45% the same as the difference between 5% and zero, whereas a comparative disparity test would treat the first situation as a 10% deficiency, and the second situation as a 100% deficiency. See id. at 32.
Was the Michigan Supreme Court’s holding that there was no systematic exclusion under the third prong of Duren unreasonable?
Berghuis argues that, contrary to the finding of the Sixth Circuit, the allowance for excuses based on hardship did not constitute a systematic exclusion under the third prong of Duren. See Brief for Petitioner at 49. In support of this argument, Berghuis states that there is no clear Supreme Court precedent on what constitutes systematic exclusion, other than the categorical distinctions deemed unconstitutional in Duren. See id. at 50. Berghuis asserts that in Duren, a state categorically treated distinct groups (women) differently, whereas the hardship excusal is an equitable solution that serves a significant State interest and is indiscriminately available to all groups. See id. at 52. Berghuis elaborates that the hardship excusal is an unbiased process that affects distinct groups differently, not because of any inherent exclusions in the system, but because of independent decisions made by prospective jurors. See id. at 54. Additionally, Berghuis argues that the discontinued practice of selecting prospective jurors for the local courts before the county courts did not substantially decrease the number of African American prospective jurors accessible by the county courts. See id. at 58. Berghuis supports her argument by the fact that after discontinuation of the practice, there was little change to the number of African Americans available in the circuit courts. See id. at 59.
In contrast, Smith argues that the underrepresentation of African Americans in the jury pool was systematic, because the underrepresentation was a persistent occurrence caused by the system of selecting jurors. See Brief for Respondent at 38. Smith emphasizes the fact that there was consistent pattern of underrepresentation stretching over a 17-month period. See id. Additionally, Smith argues that the hardship excusal is not about individual decision-making, but rather the system for selecting jurors allows independent social and economic factors to become determinative of whether an individual qualifies as a potential juror, or is excused from jury duty. See id. at 40. Smith relies on statistics and expert testimony showing that because the hardship excusals were a “non-random element” based on factors applying more heavily to African Americans, and was unmitigated by any compensatory measures, it would inevitably result in underrepresentation of African Americans. See id. at 50.
In response to Berghuis’s argument that the discontinuation of the practice of selecting prospective jurors for the local courts first had little effect, Smith counters that the changes to the system were not evident until several months after the state stopped the procedure. See Brief for Respondent at 48. He states there was a decrease from a 34% disparity measurement in the month of Smith’s trial, to a 13.9% disparity measurement 6-months post-siphoning. See id. Smith notes that the Circuit Court Administrator remarked that the abolishment of the siphoning procedure served to enlarge the population of potential jurors from which the circuit court could now access, thus rectifying some of the underrepresentation problems. See id. at 51.
In Berghuis v. Smith, the Supreme Court will clarify what the test is for evaluating whether a jury is comprised of a fair cross-section of the community. The Court’s decision in this case will likely impact the viability of the fair-cross-section requirement and affect the jury selection processes of multiple states.
Edited by: Lucienne Pierre
- Additional Sources
- Annotated U.S. Constitution: Sixth Amendment (Right to Trial by Impartial Jury)
- Wex: Law about Habeas Corpus
- ABC News: Court to Settle Dispute Over All-White Jury