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.
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.
Questions as Framed for the Court by the Parties
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.
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. Smith’s case proceeded to jury trial in Kent County Circuit Court. 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. A 1990 Census showed that African-Americans comprised 7.8% and 18.1% of eligible jurors in Kent County and Grand Rapids respectively. It also showed that Grand Rapids’ population comprised of 85% of the African-American population of Kent County. Of the 60–100 potential jurors that comprised Smith’s panel, three were African-American. The fourteen jurors eventually selected were all Caucasian.
The trial court denied Smith’s Sixth Amendment challenge and proceeded to trial. The all-white jury convicted Smith of second-degree murder and possession of a firearm during a felony. 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. The Court of Appeals remanded the case to the trial court to make factual determinations as to the jury selection process.
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. 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. . Kent County ultimately reversed this practice because it effectively limited the number of African-American jurors available for circuit courts. 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%. The trial court also heard testimony suggesting that the allowance of non-statutory excuses disproportionately impacted African American jurors.
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. The Michigan Court of Appeals reversed, ruling that the cause of the underrepresentation was Kent County’s pre-October 1993 jury selection procedures. The Michigan Supreme Court reversed the Court of Appeals, citing the absence of evidence proving systematic exclusion of African-Americans.
Smith petitioned the federal courts for review. 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. . 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. On September 30, 2009, the U.S. Supreme Court granted certiorari.
The Sixth Amendment provides that in criminal proceedings, the accused has the right to a trial by an impartial jury. InTaylor 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. In Duren v. Missouri, the Court established a three-prong test for determining a violation of the fair cross-section venire requirement. 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.” 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. 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. The comparative-disparity test “divides the percentage of absolute disparity by the percentage of the distinct group in the community.”
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.” Petitioner, Mary Berghuis (“Berghuis”), argues that the Sixth Circuit overstepped its authority when it rejected the Michigan Supreme Court’s holding. 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.
Respondent, Diapolis Smith (“Smith”), counters that the three-pronged Duren test is sufficiently clear Supreme Court precedent. 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.” 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.
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. 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. Berghuis asserts that the absolute disparity percentage found here – 1.28% – is negligible and does not satisfy Duren’s second prong. She adds, however, that even under the comparative disparity test, the comparative disparity of 18% fails Duren’s second prong.
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. 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. 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. She claims that the addition of one or more African American prospective juror would likely have no impact on the eventual petit jury selected.
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. 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.” Smith argues that he satisfies Duren’s second prong by showing a persistent pattern of underrepresentation for 15 out of 17 months.
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. 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. 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. 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.
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. 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. 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. 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. 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. 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.
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. Smith emphasizes the fact that there was consistent pattern of underrepresentation stretching over a 17-month period. 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. 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.
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. 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. 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.
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.
- 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