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Thursday, May 1, 2014


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Ninth Circuit Endorses New Test for Jury Selection Challenges

‘Absolute Disparity’ No Longer Exclusive Means of Determining Minority Underrepresentation, Court Holds En Banc




District courts may consider a variety of statistical methodologies in ruling on whether their jury selection procedures discriminate against minorities, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The en banc court unanimously affirmed the conviction of Salvador Hernandez-Estrada for being a deported alien found in the United States in violation of 8 U.S.C. §1326.

All 11 judges agreed that the defendant was not denied his statutory and constitutional rights to a jury drawn from a fair cross-section of the population. But the panel disagreed as to the standard to be applied to such cases in the future.

Judge Sidney Thomas, writing for a seven-judge majority, said the “absolute disparity” test previously relied on by the court—looking solely to the difference between the percentage that a specific group makes up of the population, and the percentage that it makes up of the jury pool—incorporates a bias against the smallest groups, “suffers from distortion based on population size,” and is unnecessarily inflexible.

Motion to Dismiss

In Hernandez’s case, U.S. District Judge Barry Moskowitz denied a motion to dismiss the indictment, finding that—although the district 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.

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 did not supplement its source list, but relied solely on a list of registered voters.

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

Duren v. Missouri

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

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

In December 2012, a three-judge panel of the Ninth Circuit affirmed. Judge Andrew Hurwitz noted that although the Ninth Circuit had never drawn an exact line, it has previously held that a disparity of 7.7 percent is acceptable.

Since the percentages cited by the district judge did “not begin to approach 7.7 percent underrepresentation,” the defendant could not prevail, the judge said

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 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.”

Thomas wrote yesterday that Kozinski was correct.

In the future, he said, district courts may resolve fair-cross-section challenges by choosing the statistical method that best fits the case, whether it be the absolute-disparity formulation or something else.

Other Circuits

Surveying a number of methods that have been approved in other circuits, and illustrating the pros and cons of each, he noted that the Supreme Court has declined to approve any one of those methods.

“We follow [the Supreme Court’s] lead and also decline to confine district courts to a particular analytical method,” he wrote. “….Instead we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented. Allowing courts and defendants to use a more robust set of analytical tools will ensure more accurate, and narrowly tailored, responses to individual Duren challenges, which we can then assess on a fully developed record specific to the circumstances presented.”

He went on to say that despite the court’s abandonment of the methodology used by the district judge as the exclusive means of resolving the case, remand was unnecessary because Duren requires the defense to show systematic exclusion of a minority group from the jury pool and Hernandez’s lawyers failed to do so.

He was joined by Kozinski and Judges Susan P. Graber, Ronald M. Gould, Richard A. Paez, Jacqueline H. Nguyen, and Johnnie B. Rawlinson.

Judge Milan D. Smith, Jr., joined by Judges Barry G. Silverman and Carlos T. Bea, argued in a concurring opinion that abandoning the exclusive application of the absolute-disparity test “needlessly raises needlessly raises a host of difficult questions for which there are no clear answers, and it leaves trial courts with little guidance on how to fulfill their responsibilities in such cases.”

He predicted:

“The resulting legal vacuum will likely trigger an avalanche of fair cross section claims that have almost no chance of success under Duren, but which will burden the courts for years without meaningfully improving the administration of justice.”

Judge N. Randy Smith wrote his own concurrence, asserting that while “exclusive use of the absolute disparity test seems inappropriate,” it was unnecessary to overrule circuit precedent because Hernandez could not show significant statistical underrepresentation under any of the tests adopted by any circuit.

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


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