Metropolitan News-Enterprise


Thursday, December 6, 2012


Page 3


Court Finds Juror Selection Violation, but Upholds Conviction

Panel Warns District Courts to Review Procedures or Face Future Challenges


By JACKIE FUCHS, Staff Writer


The U.S. District Court for the Southern District of California violated federal law governing the selection of jurors, but its conviction of a deported alien for illegal reentry is valid, the Ninth U.S. Circuit Court of Appeals held yesterday.

In confirming the holding of Judge Barry Moskowitz, the panel found that although the district court did not supplement its master jury wheel of registered voters as required by the Jury Selection and Service Act of 1968, African Americans and Hispanics were not underrepresented as the defendant claimed.

Salvador Hernandez-Estrada was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. He filed a motion to dismiss the indictment, arguing that the Southern District had violated the JSSA and his rights under the Fifth and Sixth Amendments.

The JSSA provides that prospective jurors “shall be selected from the voter registration lists or the lists of actual voters of the political subdivisions within the district or division.” Consistent with this requirement, the Southern District selects prospective jurors at random from the list of registered voters in the district.

The JSSA also provides, however, that districts “shall prescribe some other source or sources of names in addition to voter lists where necessary,” in order to ensure a fair cross-section, afford all citizens the opportunity to be considered for jury duty, and ensure that individuals are not excluded on the basis of “race, color, religion, sex, national origin, or economic status.”

The Southern District does not supplement its source list, but relies solely on its list of registered voters.

In 2009, the year of the defendant’s conviction, 22.5% of the Southern District’s 18 and over citizen population was Hispanic and 5.2% was African-American.

Absolute Disparity Test

Following the absolute disparity test set forth in Duren v. Missouri (1979) 439 U.S. 357, the panel looked at the difference between those percentages and the percentages of Hispanics and African-Americans in the district court’s wheel, excluding Hispanics who did not identify their ethnicity on the prospective juror questionnaire and African-Americans who did not identify their race,

Judge Andrew Hurwitz noted that although the Ninth Circuit has never drawn an exact line, it has previously held that a disparity of 7.7% is acceptable.

In 2009 Hispanics made up 24.6% of the wheel and African Americans made up 3.5%, with the result that Hispanics were overrepresented by 2.1% and African-Americans underrepresented by 1.7%.

Since these percentages did “not begin to approach 7.7% underrepresentation, Hernandez’s Sixth Amendment claim fails,” Hurwitz wrote, noting that even if all the prospective jurors who did not identify their race or age were deemed to be non-Hispanic and non-African American, African Americans would still be under-represented by only 2.1% and Hispanics by 6.2%, both within the 7.7% threshold.

The defendant also alleged a pair of technical defects by the district court, both of which the panel found “troublesome,” though neither was substantial enough to require reversal of the conviction.

Problematic Questionnaire

In particular, the panel found that the court’s questionnaire regarding prospective jurors’ facility with the English language reflected the old statutory standard rather than the JSSA’s amended language, which provides that a prospective juror should be disqualified only if he “is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form” or is “unable to speak the English language.”

The office of the clerk of the district court appeared to have automatically disqualified any prospective juror who answered “no” to a question asking whether he could “read, write, speak and understand the English language.” The burden, however, was on the defendant to show that the improper wording resulted in a significant number of wrongful exclusions, which he failed to do, the judge said.

Of the 12,250 Hispanics who returned questionnaires, 1,420 were disqualified solely because they answered “no” to the improperly worded question.

Hurwitz wrote:

“Even if we assume that all 1,420 prospective jurors were wrongfully disqualified, that number does not establish a substantial violation when viewed, as it must be, in the context of the entire jury pool. … Hispanics are not substantially underrepresented in the qualified jury pool (and may even be slightly overrepresented).”

He noted, however, that:

“Simply because Hernandez has failed to make a showing that this violation is substantial does not mean a future defendant will also fail. The Southern District can and should remedy this problem....And we caution other districts to evaluate their own questionnaires, as this problem appears not to be unique to the Southern District.”

No Substantial Departure

The panel addressed itself to the district court’s alleged failure to return questionnaires to prospective jurors who failed to answer the questions on race and/or ethnicity, and likewise found that the defendant had not demonstrated that the Southern District substantially departed from the requirements of the JSSA.

“Nonetheless,” Hurwitz wrote, “the Southern District may not be so lucky in the future. The percentages of those in the qualified wheel who did not answer the race and ethnicity questions … are significant … The district must take appropriate steps to increase the response rate…”

Chief Judge Alex Kozinski wrote an opinion, concurred in by Judge Paul Watford, in which he joined Hurwitz’s opinion “without enthusiasm” because “[t]he rule we are bound to apply is clearly wrong.”

He explained:

“It makes no sense to measure…absolute disparity, and accept up to 7.7 percent of the total jury pool as a permissible deviation....The absurdity of this number is brought home by observing that a group that is less than 7.7 percent of the total population can never be underrepresented, no matter how far the jury pool percentage deviates from that in the total population. … I have a hard time accepting a rule that favors larger groups and ignores smaller groups altogether.”

He went on to say:

“I’m not sure whether standard deviation analysis is appropriate here, but I suspect that a statistician would laugh at our current methodology. As a three-judge panel, we’re not free to depart from Rodriguez-Lara, but an en banc court could, and perhaps should, take a fresh look at the issue.”

The case is U.S. v. Hernandez-Estrada, No. 11-50417.


Copyright 2012, Metropolitan News Company