BERGHUIS, WARDEN v. SMITH
No. 08-1402
Supreme Court of the United States
Argued January 20, 2010—Decided March 30, 2010
559 U.S. 314
B. Eric Restuccia, Solicitor General of Michigan, argued the cause for petitioner. With him on the briefs were Michael A. Cox, Attorney General, Joel D. McGormley, Division Chief, and Timothy K. McMorrow, Special Assistant Attorney General.
James Sterling Lawrence argued the cause and filed a brief for respondent.*
*Briefs of amici curiae urging reversal were filed for the State of Connecticut et al. by Kevin T. Kane, Chief State‘s Attorney of Connecticut, Harry Weller, Senior Assistant State‘s Attorney, and Michael E. O‘Hare, Supervisory Assistant State‘s Attorney, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, John W. Suthers of Colorado, Lawrence G. Wasden of Idaho, Douglas F. Gansler of Maryland, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Richard Cordray of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark L. Shurtleff of Utah, and J. B. Van Hollen of Wisconsin; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Briefs of amici curiae urging affirmance were filed for the Charles Hamilton Houston Institute for Race & Justice et al. by Michael B. de Leeuw; for the NAACP Legal Defense & Educational Fund, Inc., by John Payton, Debo P. Adegbile, Christina Swarns, Johanna B. Steinberg, Jin Hee Lee, Vincent M. Southerland, Virginia A. Seitz, Gary Feinerman, Jeffrey T. Green, Rebecca K. Troth, and Sarah O‘Rourke Schrup; and for the National Association of Criminal Defense Lawyers et al. by Clifford M. Sloan, Thomas M. Meyer, Joshua Dratel, and Steven R. Shapiro.
Erik Levin, David Kairys, and Jack C. Auspitz filed a brief for Social Scientists et al. as amici curiae.
The
In Duren v. Missouri, 439 U. S. 357 (1979), this Court described three showings a criminal defendant must make to establish a prima facie violation of the
The defendant in Duren readily met all three measures. He complained of the dearth of women in the Jackson County, Missouri, jury pool. To establish underrepresentation, he proved that women were 54% of the jury-eligible population, but accounted for only 26.7% of the persons summoned for jury service, and only 14.5% of the persons on the postsummons weekly venires from which jurors were drawn. To show the “systematic” cause of the underrepresentation, Duren pointed to Missouri‘s law exempting women from jury service, and to the manner in which Jackson County administered the exemption. Concluding that no significant state interest could justify Missouri‘s explicitly gender-based ex-
We here review the decision of the United States Court of Appeals for the Sixth Circuit holding that Smith “satisf[ied] the prima facie test established by Duren,” and granting him habeas corpus relief, i. e., release from imprisonment absent a new trial commenced within 180 days of the Court of Appeals’ order. 543 F. 3d 326, 336 (2008). Despite marked differences between Smith‘s case and Duren‘s, and a cogent Michigan Supreme Court decision holding that Smith “ha[d] not shown . . . systematic exclusion,” People v. Smith, 463 Mich. 199, 205, 615 N. W. 2d 1, 3 (2000), the Sixth Circuit found the matter settled. Cognizant of the restrictions Congress placed on federal habeas review of state-court convictions, the Court of Appeals considerеd that a decision contrary to its own would “involv[e] an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States,”
The Sixth Circuit erred in so ruling. No decision of this Court “clearly establishe[s]” Smith‘s entitlement to federal-court relief. According to the Sixth Circuit, Smith had demonstrated that a Kent County prospective-juror-assignment procedure, which Smith calls “siphoning,” “systematic[ally] exclu[ded]” African-Americans. Under this procedure, Kent 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. The Michigan Supreme Court, however, had rejected Smith‘s “siphoning” plea for lack of proof that the assignment procedure caused underrepresentation. Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. As that determination was not at all unreasonable, the Sixth Circuit had no warrant to disturb it. See
I
A
On November 7, 1991, Christopher Rumbley was shot and killed during a bar brawl in Grand Rapids, Michigan. The bar was crowded at the time of the brawl, with 200 to 300 people on the premises. All patrons of the bar were African-American. The State charged Smith with the murder in Kent County Circuit Court.
Voir dire for Smith‘s trial took place in September 1993. The venire panel included between 60 and 100 individuals. The parties agree that, at most, three venire members were African-American. Smith unsuccessfully objected to the composition of the venire panel.
Smith‘s case proceeded to trial before an all-white jury. The case for the prosecution turned on the identity of the man who shot Rumbley. Thirty-seven witnesses from the bar, including Smith, testified at the trial. Of those, two testified that Smith fired the gun. Five testified that the shooter was not Smith, and the remainder made no identifications of the shooter. The jury convicted Smith of second-
B
On first appeal, the Michigan Court of Appeals ordered the trial court to conduct an evidentiary hearing on Smith‘s fair-cross-section claim. The hearing occurred in early 1998. Smith‘s evidence showed that Grand Rapids, the largest city in Kent County, was home to roughly 37% of Kent County‘s population, and to 85% of its African-American residents. Felony charges in Kent County were tried in a sole Circuit Court. Misdemeanors were prosecuted in 12 district courts, each covering a discrete geographical area. To fill the courts’ venires, Kent County sent questionnaires to prospective jurors. The Circuit Court Administrator testified that about 5% of the forms were returned as undeliverable, and another 15% to 20% were not answered. App. 13a. From the pool of prosрective jurors who completed questionnaires, the County granted requests for hardship exemptions, e. g., for lack of transportation or child care. Id., at 21a. Kent County then assigned nonexempt prospective jurors to their local district courts’ venires. After filling the district courts’ needs, the County assigned the remaining prospective jurors to the Circuit Court‘s panels. Id., at 20a, 22a.
The month after voir dire for Smith‘s trial, Kent County reversed the assignment order. It did so, according to the Circuit Court Administrator, based on “[t]he belief . . . that the respective districts essentially swallowed up most of the minority jurors,” leaving the Circuit Court with a jury pool that “did not represent the entire county.” Id., at 22a. The Jury Minority Representation Committee, its co-chair testified, held the same view concerning the impact of choosing district court jurors first and not returning unused persons to the pool available for Circuit Court selections. Id., at 64a-65a.
Isolating the month Smith‘s jury was selеcted, Smith‘s statistics expert estimated that the comparative disparity was 34.8%. App. 181a. 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%. Id., at 102a-103a, 113a.
Smith also introduced the testimony of an expert in demographics and economics, who tied the underrepresentation to social and economic factors. In Kent County, the expert explained, these forces made African-Americans less likely than whites to receive or return juror-eligibility questionnaires, and more likely to assert a hardship excuse. Id., at 79a-80a.
The hearing convinced the trial court that African-Americans were underrepresented in Circuit Court venires. App. to Pet. for Cert. 210a. But Smith‘s evidence was insufficient, that court held, to prove that the juror-assignment order, or any other part of the jury-selection process, had systematically excluded African-Americans. Id., at 210a-212a. The court therefore rejected Smith‘s fair-cross-section claim.
C
The Michigan Court of Appeals concluded that the juror-allocation system in place at the relevant time did result in the underrepresentation of African-Americans. Id., at 182a-183a. Reversing the trial court‘s judgment, the intermediate appellate court ordered a new trial, with jurors selected under the Circuit-Court-first assignment order installed shortly after the voir dire in Smith‘s case. Ibid.; see supra, at 322.
The Michigan Supreme Court, in turn, reversed the Court of Appeals’ judgment, concluding that Smith “ha[d] not established a prima facie violation of the
Recognizing that no single test was entirely satisfactory, the Michigan Supreme Court adopted a case-by-case approach allowing consideration of all three means of measuring underrepresentation. Smith, 463 Mich., at 204, 615 N. W. 2d, at 3. Smith‘s statistical evidence, the court found, “failed to establish a legally significant disparity under either the absolute or comparative disparity tests.” Id., at 204-205, 615 N. W. 2d, at 3.
Nevertheless “grant[ing] [Smith] the benefit of the doubt on unfair and unreasonable underrepresentation,” the Michigan Supreme Court ultimately determined that “he ha[d] not shown systematic exclusion.” Smith, 463 Mich., at 203, 205, 615 N. W. 2d, at 2, 3. Smith‘s evidence, the court said, did not show “how the alleged siphoning of African-American jurors to district courts affected the circuit court jury pool.” Id., at 205, 615 N. W. 2d, at 3. In particular, the court observed, “[t]he record does not disclose whether the district court jury pools contained more, fewer, or apprоximately the same percentage of minority jurors as the circuit court jury pool.” Ibid. The court also ruled that “the influence of social and economic factors on juror participation does not demonstrate a systematic exclusion.” Id., at 206, 615 N. W. 2d, at 3.
D
In February 2003, Smith filed a habeas corpus petition in the United States District Court for the Western District of Michigan, reasserting his fair-cross-section claim. Because Smith is “in custody pursuant to the judgment of a State court,” the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
“(1) 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; or
(2) 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.”
Applying these standards, the District Court dismissed Smith‘s habeas petition. App. to Pet. for Cert. 40a-42a.
The Court of Appeals reversed. Where, as here, the allegedly excluded group is small, the Sixth Circuit ruled, courts should use the comparative disparity test to measure underrepresentation. 543 F. 3d, at 338. In that court‘s view, Smith‘s comparative disparity statistics sufficed “to demonstrate that the representation of African American veniremen in Kent County . . . was unfair and unreasonable.” Ibid. As to systematic exclusion, the Sixth Circuit, in accord with the Michigan intermediate appellate court, believed that the juror-assignment order in effect when Smith‘s jury was empaneled significantly reduced the number of African-Americans available for Circuit Court venires. Id., at 342. Smith was entitled to relief, the court concluded, because no important state interest supported that allocation system. Id., at 345.2
The State petitioned for certiorari, attacking the Sixth Circuit‘s decision on two principal grounds: First, the State charged that the federal appellate court erred in adopting the comparative disparity test to determine whether a distinctive group was underrepresented in the jury pool. Pet. for Cert. ii. Second, the State urged that, in any event,
According to the Sixth Circuit, the Michigan Supreme Court‘s rejection of Smith‘s
II
To establish a prima facie violation of the fair-cross-section requirement, this Court‘s pathmarking decision in Duren instructs, 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. 439 U. S., at 364; see supra, at 319.
The defendant in Duren successfully challenged Jackson County‘s administration of a Missouri exemption permitting any woman to opt out of jury service. 439 U. S., at 360. The Court explained why it was plain that defendant Duren had established a prima facie case. First, women in Jackson
Duren also demonstrated systematic exclusion with particularity. He proved that women‘s underrepresentation was persistent—occurring in every weekly venire for almost a year—and he identified the two stages of the jury-selection process “when . . . the systematic exclusion took place.” Id., at 366. First, questionnaires for prospective jurors stated conspicuously that women could opt out of jury service. Less than 30% of those summoned were female, suggesting that women in large numbers claimed the exemption at the questionnaire stage. Ibid. “Moreover, at the summons stagе women were . . . given another opportunity to [opt out].” Id., at 366-367. And if a woman ignored the summons, she was deemed to have opted out; no further inquiry was made. Id., at 367. At this “final, venire, stage,” women‘s representation plummeted to 14.5%. Ibid. In the Federal District Court serving the same territory, the Court noted, despite a women-only childcare exemption, women accounted for nearly 40% of those actually serving on juries. See ibid., n. 25.
The “disproportionate and consistent exclusion of women from the [Jackson County] jury wheel and at the venire stage,” the Court concluded, “was quite obviously due to the system by which juries were selected.” Id., at 367. “[A]ppropriately tailored” hardship exemptions, the Court added, would likely survive a fair-cross-section challenge if justified by an important state interest. Id., at 370. But no such interest, the Court held, could justify Missouri‘s exemption for each and every woman—the altogether evident explanation for the underrepresentation. Id., at 369-370.
A
As the Michigan Supreme Court correctly observed, see supra, at 324, neither Duren nor any other decision of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools. Thе courts below and the parties noted three methods employed or identified in lower federal court decisions: absolute disparity, comparative disparity, and standard deviation. See Smith, 463 Mich., at 204-205, 615 N. W. 2d, at 2-3; Brief for Petitioner 3; Brief for Respondent 26; supra, at 324.
Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, “members of the distinctive group comp[ose] [only] a small percentage of those eligible for jury service.” Smith, 463 Mich., at 203-204, 615 N. W. 2d, at 2-3. And to our knowledge, “[n]o court . . . has accepted [a stаndard deviation analysis] alone as determinative in
On direct review, as earlier stated, the Michigan Supreme Court chose no single method “to measur[e] whether representation was fair and reasonable.” Smith, 463 Mich., at 204, 615 N. W. 2d, at 3; see supra, at 324. Instead, it “adopt[ed] a case-by-case approach.” Smith, 463 Mich., at 204, 615 N. W. 2d, at 3. “Provided that the parties proffer sufficient evidence,” that court said, “the results of all the tests [should be considered].” Ibid. In contrast, the Sixth Circuit declared that “[w]here the distinctive group alleged to have been underrepresented is small, as is the case here, the cоmparative disparity test is the more appropriate measure of underrepresentation.” 543 F. 3d, at 338.
Even in the absence of AEDPA‘s constraint, see supra, at 325-326, we would have no cause to take sides today on the
B
Addressing the ground on which the Sixth Circuit rested its decision, Smith submits that the district-court-first assignment order systematically excluded African-Americans from Kent County Circuit Court venires. Brief for Respondent 46-48. But as the Michigan Supreme Court not at all unreasonably concluded, Smith, 463 Mich., at 205, 615 N. W. 2d, at 3, Smith‘s evidence scarcely shows that the assignment order he targets caused underrepresentation. Al-
Evidence that African-Americans were underrepresented on the Circuit Court‘s venires in significantly higher percentages than on the Grand Rapids District Court‘s could have indicated that the assignment order made a critical difference. But, as the Michigan Supreme Court noted, Smith adduced no evidence to that effect. See Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. Nor did Smith address whether Grand Rapids, which had the County‘s largest African-American population, “ha[d] more need for jurors per capita than [any other district in Kent County].” Tr. of Oral Arg. 26; id., at 18, 37. Furthermore, Smith did not endeavor to compare the African-American representation levels in Circuit Court venires with those in the Federal District Court venires for the same region. See id., at 46-47; Duren, 439 U. S., at 367, n. 25.
Smith‘s best evidence of systematic exclusion was offered by his statistics expert, who reported a decline in comparative underrepresentation, from 18% to 15.1%, after Kent County reversed the assignment order. See supra, at 323. This evidence—particularly in view of AEDPA‘s instruction,
To establish systematic exclusion, Smith contends, the defendant must show only that the underrepresentation is persistent and “produced by the method or ‘system’ used to select [jurors],” rather than by chance. Brief for Respondent 38, 40. In this regard, Smith catalogs a laundry list of factors in addition to the alleged “siphoning” that, he urges, rank as “systematic” causes of underrepresentation of African-Americans in Kent County‘s jury pool. Id., at 53-54. Smith‘s list includes the County‘s practice of excusing people who merely alleged hardship or simply failed to show up for jury service, its reliance on mail notices, its failure to follow up on nonresponses, its use of residential addresses at least 15 months old, and the refusal of Kent County police to enforce court orders fоr the appearance of prospective jurors. Ibid.
No “clearly established” precedent of this Court supports Smith‘s claim that he can make out a prima facie case merely by pointing to a host of factors that, individually or in combination, might contribute to a group‘s underrepresentation. Smith recites a sentence in our Duren opinion that, he says, placed the burden of proving causation on the State. See Tr. of Oral Arg. 33, 35. The sentence reads: “Assuming, arguendo, that the exemptions mentioned by the court below [those for persons over 65, teachers, and government workers] would justify failure to achieve a fair community cross section on jury venires, the State must demonstrate that these exemptions [rather than the women‘s exemption] caused the underrepresentation complained of.” 439 U. S., at 368-369. That sentence appears after the Court had already assigned to Duren—and found he had carried—the burden of proving that the underrepresentation “was due to [women‘s] systematic exclusion in the jury-selection process.” Id., at 366. The Court‘s comment, which Smith clipped from its context, does not concern the demonstration
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. In Taylor, we “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 370.6 In sum, the Michigan Supreme Court‘s decision rejecting Smith‘s fair-cross-section claim is consistent with Duren and “involved [no] unreasonable application o[f] clearly established Federal law,”
*
For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
The text of the
In my view, that conclusion rests less on the