*1
v
Smith
PEOPLE SMITH
1).
April 5,
(Calendar
Argued
Decided
No.
114785.
Docket No.
July 28, 2000.
Court,
by
jury
Diapolis
a
in
Kent Circuit
convicted
Smith was
possession
Smolensk!, J.,
second-degree murder and
Michael R.
felony.
during
The Court of
the commission of a
of a firearm
Kingsley, JJ,
P.J.,
Appeals,
denied
and Hoekstra
and J. C.
Markey,
ground
request
for a remand for a new trial on
the defendant’s
impartial jury
right
from a fair
his
to an
drawn
that he was denied
community.
however,
argument,
cross
of the
After
section
unpublished
Court,
sponte,
in an
order for
remanded the case
sua
impropriety
evidentiary hearing
allegations of
on the defendant’s
an
Thereafter,
172558).
(Docket
of the
venire
No.
selection
Sullivan, J.,
court,
concluded that the
the trial
Paul
jury.
right
impartial
to an
had not shown that he was denied his
P.J.,
Appeals,
JJ.
The
and J. C.
Kingsley,
Court
(Hoekstra,
Markey,
dissenting
part),
concurring
part
in
remanded for a new trial
and
appeal.
unpublished opinion per
people
in an
curiam. The
by
joined by
opinion
Chief Justice
In an
Justice
Corrigan,
Supreme
and Justices
Young,
Taylor,
Markman,
Weaver,
Court held:
right to an
was not denied his Sixth Amendment
The defendant
community.
impartial jury
from a fair crоss section of the
To
drawn
requirement,
prima
establish a
facie violation of the cross-section
group was under-
that a distinctive
defendant must
show
jury pool,
represented
and that
the under-
in his venire or
the result of
exclusion
process.
from the
Supreme
that the Sixth
1. The
States
Court has stated
United
guarantee
of a trial
for criminal defendants
Amendment
impartial jury requires
from a fair cross sec-
that the
be drawn
fairly
community, i.e.,
representative of the
tion of the
source
requirement, however,
community.
does not
fair cross-section
jury actually
any particular
guarantee
must mirror the
chosen
requirement
community. Rather,
to be sat-
the fair cross-section
systematically
juries
isfied,
must not
which
are drawn
venires from
463 Mich groups
community
thereby
exclude
distinctive
fail to be
reasonably representative of them.
2. A criminal defendant who claims that the fair cross-section
requirement
prove
elements,
has not been satisfied must
three
as
*2
Missouri,
set forth in
(1979),
group
Duren v
Reversed and remanded. M. Granholm, Attorney General, Thomas Jennifer L. Casey, General, Solicitor A. William Forsyth, Pros- ecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, for people. Sterling
James Lawrence for the defendant. question presented in this case is Corrigan, County’s whether Kent system former of selecting *4 jurors denied defendant his Sixth Amendment right to an impartial jury drawn from a fair cross section of the Court prima community. violation of facie To establish requirement, must a defendant the fair cross-section underrepresented group was that a distinctive show jury pool, under- and that in his venire representation systematic result of was the exclusion process. group v Duren from the of the 2d 58 L Ed 364; 664; 99 S Ct 357, US Missouri, 439 (1979). denied was not that defendant We hold grant although right him the benefit because, we under- unfair and unreasonable doubt on of the representation, exclu- has not shown he Accordingly, of the we reverse the decision sion. Appeals to the Court remand this case and Court of remaining Appeals of defendant’s for consideration issues.
i part join parts through We n(A) n(c)(2) I part company opinion, concurring with our con- but prong analysis curring colleague of the second on the of Duren. specified Supreme has not Court States
The United repre- measuring preferred whether for method pool is fair in the a distinctive sentation of proposal mea- A Detre, note, reasonable. See composition underrepresentation suring (1994). 1913, Yale L J 1918-1920 wheel, applied have lower federal courts Duren, the Since measuring reason- fair and different methods three disparity representation, absolute known as the able comparative and the standard test, test, the Beyer, F2d Ramseur deviation test. 1992). has been
(CA
however,
tests,
of these
Each
example,
members
where the
in cases
For
criticized.
*5
204
In case, defendant some evidence of disparity jury-eligible between the number of Afri- can-Americans and the actual number of African- prospective jurors American selected to the Kent County jury pool Circuit Court list. However, defen- legally dant’s statistical evidence failed to establish a significant disparity under either the absolute or com- the Court parative rather than Nevertheless, tests.1 possibility unre leaving exclusion solely failure to basis of defendant’s on the viewed give underrepresentation, defendant we establish underrepresentation and on the doubt the benefit of analysis. prong proceed Duren to the third n Assuming the first two has satisfied *6 analysis, prongs must still defendant Duren underrepresentation African-Ameri- that the show systematic, jurors is, “that inherent can process jury-selection particular Duren, utilized.” concurring colleague agree with our We at 366. systematic exclusion shown a defendant has not that County Circuit from the Kent of African-Americans jury pool. Court colleague concurring agree that further with our
We alleged siphoning how the has not shown affected to district courts of African-American pool. not dis- The record does the circuit court jury pools contained district court close whether the percentage approximately the same more, fewer, jury pool. minority jurors court as the circuit carry simply his burden has failed Defendant proof regard. in this
testimony regarding application
tion
App 459;
endorse
reached
opinion’s
question
We
analysis
note that neither defendant
our
has not been
to resolve
We also with our agree that concurring colleague the influence of juror social and economic factors on participation does not demonstrate exclusion of African-Americans. The Sixth Amend ment require does not Kent County to counteract these factors. United States v Purdy, Supp 946 F 1094, 1104 (D Conn, 1996).2
Finally, even
prеsuming
rely
defendant can
exclusively on statistics, he has
requi
not made the
site
in
showing
this case. In Duren,
the Court noted
proved
the defendant
that a large discrepancy
occurred in every weekly
approximately
venire for
year.3
one
Duren, supra at
Here,
366.
while defen
proof
dant’s
may satisfy any duration requirement,
disparities over that
time fell far short of
those
Duren. Defendant did not demonstrate unfair and
unreasonable underrepresentation
under the
analyses. We therefore conclude that defendant has
2 Although
problems
the constitution does not concern itself with
process
may
inherent in a
adversely
that nevertheless
affect
jury participation,
Court, through
the State Court Administrative
Office,
ways
studying
jury participation.
has been
to increase
We have
years
undertaken several initiatives in recent
to address concerns about
juries
example,
service. For
the State Court Administra-
*7
began reviewing
tive Office
the American Bar Association Standards
Relating
Management
eye
to Juror Use
producing Michigan
with an
to
Similarly,
standards.
this Court retained the National Cеnter for State
Jury Management
jury
Courts Center for
to address the
selection and
management procedures
jury
in trial courts where
concerns had been
raised,
improvement
and to make recommendations for
in those courts.
Finally,
Open
this Court
Michigan
has worked with the State Bar of
Jus-
improve
participation
tice Commission
service, focusing
citizen
improving
representativeness
juries.
on
of
3 Duren,
specifically
In
petitioner
the Court
concluded that the
had
underrepresentation
operation
demonstrated that the
was due to the
of
exemption
Duren, supra
Therefore,
criteria.
at 367.
Duren did not
prong
solely
hold that the third
was established
on the basis of statistical
proof;
proof
there
underrepresentation.
was also
of the cause of the
Cavanagh, J.
systematic
of African-Ameri-
a
exclusion
not shown
jury pool.
County Circuit Court
the Kent
cans for
m
has not established
that defendant
We conclude
prima
fair
of the Sixth Amendment
facie violation
requirement.
We therefore reverse
cross-section
Appeals, and remand this
Court of
decision
Appeals
for consideration
to the Court of
case
remaining issues.
defendant’s
JJ.,
Weaver, C.J., and
Young,
Taylor,
Markman,
with
J.
concurred
Corrigan,
(concurring).
case,
In this
the Court
Cavanagh,
County’s
system of
Kent
former
must decide whether
selecting
his
Amend-
denied defendant
Sixth
impartial jury
right
drawn
a fair
from
ment
community.
this
To establish that
cross section of the
right
show
was
a criminal defendant must
denied,
underrepresented
group
in his
distinctive
underrepresentation
was the
venire, and that the
systematic
from the
exclusion of
result
process.
US
Missouri,
Duren v
(1979).
hold
664;
S Ct
Opinion by Cavanagh, J.
I Rapids Defendant’s conviction arises out of Grand fight patron bar that occurred in November 1991.One fight, in was shot to death and a bullet also struck the bar’s bouncer when he tried in to intervene events, fracas. On the basis of these defendant was charged possessiоn murder, with assault, and of a during felony, firearm the commission of a and was September tried and October 1993. jury
theAt conclusion of the dire, voir objected any jurors, alleging lack of bias process. prospec- The number of jurors pool tive that were in clear; is not the trial sixty court estimated that were requested venire, and defendant estimates that requested. one hundred were Both estimate that three prospective jurors agree of these black, were thirty-seven none examined were black. Defen- requested peremptory challenges dant more to cure request, finding this, but the trial court denied his no bias in the selection. The seated found defendant guilty second-degree felony-firearm, murder and prison. and the trial court him sentenced to life appealed, requesting Defendant a remand for a new ground right trial on the that he was his denied to an impartial jury drawn a fair from cross section community. Appeals request, The Court of denied that argument, sponte but, after it sua remanded defen- evidentiary hearing dant’s case for an on defendant’s allegations improрriety in the selection of the Cavanagh, Opinion by February Evidentiary hearings held in were venire.1 April 1998. *9 supplied hearings the Kent details about The County process. At the time defendant’s jurors was a of the for list chosen, database was County Kent Court Administrator the names that Secretary Michigan requested of State. This the from and names, no other than information list included listing Michigan of holders was taken from records Michigan of identifica licenses and holders driver’s requested of names cards. The number tion jurors of the administrator based on the number County anticipated would need that all Kent courts period.2 for the relevant per step sending all selection was
The next qualifying questionnaire. five About sons on this list percent questionnaires as were returned of these twenty percent and fifteen to undeliverable,3 another persons who not did were answered. Those not Judge the received letter from Chief answer detailing penalties Court, for Kent Circuit answering, encouraging About half of and answer. Palmer (Court [1] On remand, is otherwise unrelated Appeals defendant’s case was consolidated Docket No. to the instant case. 174649), which raised a similar issue. with Palmer tice, number. Some time after defendant was began requesting all names tried, on Kent County list, rather changed than a this given prac- when questionnaires. naires are sent undeliverable At the time defendant was questionnaires questionnaires. Kent into the same area where County are returned as changed tried, no action was taken on undeliverable this undeliverable, practice prior attempts as additional well, resulted currently, question- 463 Mich Opinion by Cavanagh, initially questionnaire those who did not answer upon did so receiving letter.4 received, After all answers were prospective certain jurors exempted were from service. Some jurors statutory exemptions,5 claimed and others requested nonstatutory exemptions for individualized transportation such lack of reasons, as care, child or because of work-related matters. The race those prospective jurors exempted was not known.
Prospective jurors were then for summoned County Kent courts. summoned, Once were first selected for 61st city District Court in the Grand as Rapids, well as for the County other Kent persons Court Kent Circuit Administrator testified who respond letter, process request did not to this the standard was to they appear *10 why they responded. in court to show cause had Those appear generally subject who failed further to became the of bench war- rants, although agencies law enforcement to refuse serve the warrants personal necessary because the warrants lack information for their service. 5 600.1307a; 27A.1307(1)provides pertinent part: MCL MSA in qualify juror (1) person To as a a shall: (a) States, years a age older, Be citizen of the United of or county person selected, and a resident the the is which and
in the case of a district court in districts of the second and third class, district, a municipal be resident of the and in case of the record, municipality. courts a of be resident of the (b) English language. Be conversant with the (c) physically mentally carry Be the able out functions of juror. inability Temporary shall not be considered disqualification. (d) petit juror grand have Not served as a a in court оf record during preceding the 12 months. (e) felony Not be under sentence for a time of selection. (2) person years age may exemption A more than 70 claim exempt upon making request. from service and shall be Opinion by Cavanagh, The Circuit Court Administrator courts.6 Kent district jurors potential attempted any that were to contact appear.7 After district court but did not summoned jurors remaining jurors avail selected, were were all able for circuit court. supplied hearings details about Kent
Further, these
County’s population. According
census,
to the 1990
County’s population
percent
black,
is
of Kent
8.1
ages
eighteen
though
black adults between
county’s pop-
sixty-nine comprised
percent of
7.28
city
Rapids,
Kent
within
The
Grand
ulation.
per-
County,
population
had
of 18.5
however,
a black
testimony
minorities
Moreover,
indicated that
cent.
generally underrepresented
counts,
in census
are
degree
though what
not known.
is
provided
pertinent,
hearings
Next, and
more
County
composition Kent
Circuit
about the
details
jury pools
was chosen.
when defendant’s
Court
expert
reported
April to
that from
An
statistician
prospective jurors were
selected
October
Secretary
On the basis of the
of State lists.
from
population
percent jury-eligible
in Kent
black
7.28
County,
reported
pro-
sixty-eight of the 929
he
jurors
expected
spective
to be black. How-
could be
reported
only fifty-six
prospective
ever,
he
first
been
issued.
essentially
larger
change
enforcement
the show cause
Beginning
Those
for the Kent Circuit Court.
ordered to show
list.” See
If warrant was
was made because
swallowed
would be
n 4.
October
hearing,
up
cause,
“in the
issued,
most
“[t]he
who failed or refused to
contempt
after defendant’s
same
however,
if such a
belief
position
minority
of court warrant
administrator
was that the
the administrator
person
that we would be
jurors
trial, jurors
further failed to
. . .
respective
testified that
appear
may
.”
were selected
testified
have
may
with the
districts
*11
appear
been
have
Opinion by Cavanagh, J. jurors were selected to the list of 929.8The trial court accepted expert’s figures as fact. testimony
Finally, hearing at the offered some County jury sys- on the observations Kent Aрparently, minority jury representation tem. in Kent County long problem, pro- has been a with few black spective jurors jury pools. appearing Similarly, tes- timony suggested statutory exemptions based on felony personal exemptions sentences, or based on transportation, lack care of child would result in a disproportionate minority juror exemp- number disproportionately tions because minorities are affected these concerns. hearings,
After the close of the the trial court con- cluded that defendant had not shown that he was right impartial jury denied his to an drawn from a fair community. cross section of the The court noted that sympathetic it was dilemma, defendant’s but stated that defendant had not demonstrated that systematically were excluded from the pool, presume it that would not that the district supply minority jurors. courts exhausted the It thus place. left defendant’s convictions in period, period, through were as follows: second est whole These eleven in six could The statistician also offered an figures, be present; four-week in which defendant’s trial eleven September expected, as well as those in the expected, fifth periods, 1993. For but period, juror. only period, six roughly approximate twelve period one, eight present; eleven analysis were fell, expected, text, fourth twelve present. expected, eleven black have been rounded to the near- eleven period, expected, April-October twelve present; remaining prospective jurors eleven eight present; months and sixth expected, 1993 data present. periods April third *12 213 v Smith Cavanagh, Opinion by J. Appeals appealed, Court of and the
Defendant
majority believed that black
The Court’s
reversed.9
systematically
jurors
from circuit
excluded
were
system
juror
juries
in
allocation
“the
court
because
largest
place
concen
drained the
1993
before October
jury list
from the master
of African-Americans
tration
by selecting
venires first.” Dis
Court
61st District
Judge
part,
senting
noted that when Kent
Hoekstra
jurors
County began selecting
first, the
circuit court
only
underrepresentation of black
decreased
refuting
slightly,
courts were
the idea that thе district
away minority jurors.
“draining”
He
concluded
thus
system
produced
to
failed
show
evidence
that the
jurors.
prosecution
The
of black
atic exclusion
appealed,
granted leave.
n Consti of the United States The Sixth Amendment by guarantees a trial an criminal defendants tution Supreme impartial jury.10 Court has nation’s Our 172558). [9] Unpublished In its entirety, opinion Sixth Amendment per curiam, issued provides: May 7, [1999] (Docket No. enjoy right prosecutions, the accused shall to In all criminal impartial jury public trial,
speedy
of the State and dis-
committed,
been
which district
crime shall have
trict wherein the
by law,
previously
and to be informed
have been
ascertained
shall
accusation;
to be confronted with
nature and cause of the
of the
compulsory
process
him;
against
to have
for
witnesses
favor,
obtaining
have the Assistance of
witnesses
his
Const, Am
defence. [US
VL]
counsel
his
Amendment
guarantees
155;
Sixth
S Ct
Amendment
1444;
Due
right
Process
to trial
L Ed 2d 491
applies
Clause. Duncan v
by jury.
(1968).
See
the states
Const
Our
Louisiana, 391 US
Michigan
1963,
through
art
1,
Constitution also
§ 14.
Fourteenth
145,
154-
The fair cross-section however, does guarantee any particular jury “actually that cho- community sen must mirror the . . . .” Id. at 538. explained “jury pools Rather, the Court wheels, panels, juries of names, or venires from which are systematically drawn must not exclude distinctive groups community thereby in fail to be rea- sonably representative thereof,” for the fair cross- requirement section to be satisfied. Id. require-
aWhen criminal defendant claims that this ment has not been satisfied, the defendant must prove Supreme the three elements the Court set forth supra. in Duren v Missouri, Duren states: by Cavanagh, prima of the fair- facie violation In order to establish (1) requirement, must show the defendant cross-section alleged be excluded is a “distinctive” group community; (2) that the group juries is not fair group from which are selected in venires persons such in relation to the number of and reasonable underrepresentation community; (3) is due that this jury-selection exclusion of the process. at 364.] [Id.
Although
the lower courts’ factual determina-
I review
I review de novo the courts’
error,
tions for clear
prima
legal
whether a
facie violation
determination of
requirement
the fair cross-section
occurred. United
(CA 1998).
Shinault,
147 F3d
States
A. DISTINCTIVE GROUP
easily
prong
Defendant
satisfies
first
analysis.
Duren
Black Americans are
constitution-
ally
they
capable
cognizable group bеcause
are
discriminatory
being singled
treatment,
out for
see
S
482, 494;
1272;
430 US
97 Ct
Partida,
Castaneda v
(1977), and have
held a
B. FAIR AND REASONABLE REPRESENTATION satisfy prong Duren, second To prove number of black must that the pool in in is not fair and reasonable County. population in Kent relation to the Opinion by Cavanagh, 463 Mich Supreme definitively United States Court has never stated the means courts should use to measure whether aof is fair distinctive reasonable, it has indicated the constitu- tional boundaries fairness in reasonableness this Ramsey, People Interpreting v context. See Hubbard: requirement cross-section Sixth fair Contemp Amendment, 52 Wash Urb & U J L 427- (1997). applied result, As a courts have three dif- measuring rep- ferent fair methods of and reasonable disparity resentation, test, known as the absolute comparative disparity and the test, standard deviation test. Id. previously position
This Court has not
taken
on
Similarly, although
Appeals
this issue.
the Court оf
challenges,
has considered several fair cross-section
e.g., People
App
see,
Dixon,
400;
v
217 Mich
People
(1996);
App
NW2d 663
Flowers,
222 Mich
only
(1997),
732;
1. ABSOLUTE DISPARITY frequently, employ dispar- Most courts the absolute ity test Sixth Amendment cases. In context, Id. absolute is defined as “the difference percentage population group between the aof certain *15 217 J. Cavanagh, group duty percentage of that eligible and the for Beyer, actually appear v Ramseur in the venire.” who (CA 1992). calculate Thus, to 3, 1215, 1231 983 F2d percentage disparity, subtract courts absolute jury pool from in the that was the distinctive population. present percentage In the popula- County’sjury-eligible black cаse, Kent instant Fifty-six percent. 929 of the was 7.28 tion percent, jurors, Thus, the instant were black. or six showing percent. disparity is This 1.28 absolute consistently held have as courts insufficient, percent disparities do not con- than 11.5 less absolute underrepresentation. or unreasonable stitute unfair cases). (collecting Id. at 1232 frequently though test, absolute employed, As the United as well. criticized is often Appeals Circuit stated: for the Second States Court readily may approach too using is that it The risk of seemingly system innocu- in which the tolerate a selection .minority from an aver- of a of small numbers ous absence unacceptable probability that array age creates ultimately selected will be minority members of the totally miss- markedly and sometimes in number deficient only course, assures ing. the Sixth Amendment Of repre- jury, representative rather than a opportunity for a opportunity jury itself, can be . . . but sentative numbers regularly lack even the small imperiled if venires proportion necessary to reflect their of minorities 662, (CA Biaggi, 909 F2d population. States v [United 2, 1990).] percent- particularly prоblem when the acute
This is group eligible age service is for of the distinctive Jackman, 46 F3d United States See small. example, 1995). (CA case, In instant Mich Opinion by Cavanagh, *16 complete even a of black exclusion would only percent disparity. result a 7.28 absolute Appeals For this of reason, the Court declined to adopt disparity People the absolute test in v Hubbard. determining representation when Instead, whether of prospective jurors black was fair reasonable, it approach the followed taken in United States v Supp (D 1992). F Osorio, 801 Conn, There, the underrepresentation court found substantial when disparity “non-benign” resulted from circumstances, though disparity even the was insubstantial under an disparity Basically, absolute test. See id. at 978-979. approach glances sys- this ahead at the of evidence appearance tematic exclusion, and, if it has the deciding merit, that is a thumb on the scale when whether fair and reasonable.
2. COMPARATIVE DISPARITY frequently Courts the method, discuss second com- parative disparity, they though have been reluctant to adopt e.g., See, it. United States v Hаfen, F2d (CA 1984).
“Comparative disparity by dividing is calculated disparity by population figure popu- absolute for a group. lation It measures diminished likelihood underrepresented group, that members of when compared population to the as a whole, will be called supra Ramseur, service.” at Here, 1231-1232. disparity percent, the absolute was 1.28 so I divide by figure jury-eligible population County, percent, quotient Kent 7.28 to arrive at a jury pool percent eighteen .18. Thus, defendant’s had prospective jurors less black than could have been Smith Cavanagh, population expected of Kent the black on the basis of present possibil- County. figure This also does comparative disparities underrepresentation, ity as forty percent large “borderline,” been have held as as disparities larger only comparative much id., and viola- of a Sixth Amendment been “indicative have supra (“48%,50%,and at Shinault, . . . .” tion 60%”). almost its however, test has crit- above,
As alluded to this analysis problem “[a] is that well. A with ics as figures com- used to calculate variation small produce significant parаtive difference can . . . 24. The instant Hafen, in the result .” point. example, For of the 929 illustrates this case *17 jurors pool, prospective had more been in the twelve pro- percent changed, is, one black black, that had actually jurors spective been over- would have pool. represented Thus, distinctive in the when the population change group’s in the small, is a small representation. proportional pool This has distorts the disparity reject comparative most courts to the led analysis. Royal, supra (collecting cases). at 8 See
3. STANDARD DEVIATION
representa-
calculating
A final method of
whether
analy-
is standard deviation
tion is fair and reasonable
analysis
probability
explains
dis-
the
that the
This
sis.
popula-
parity
percentages of
the
the black
between
community
and
in the relevant
black
tion
pool
qualified jury
is
of random
in the
a result
any
disparity
given
is
whether
chance. To determine
in a ran-
variations that can occur
attributable to the
standard
selection,
first ascertain the
dom
courts
expected
allocation
from the
randоm
deviation
Here, defendant cannot show that the
tion
not
fair and reasonable under a standard
analysis.
jury pool
deviation
consisted
multiply
(black
names, so we
that number
.728
population
County),
multiply by
of Kent
then
.972
(nonblack population
County),
of Kent
to arrive at the
product
square
twenty-s
657.38, root of which is
expected
although
ix.11 Thus,
could
have
sixty-eight
prospective jurors
qualified
jury pool,
purely
the standard deviation for a
random
sample
twenty-six,
is
so the instant allocation is statistically significant.
juror
although
is,
That
precisely proportionate
allocation is not
to the Kent
County population,
purely
sample
random
could
*18
standardly produce
varying by twenty-six
results
from
expected
sixty-eight.
number,
Unless the number
qualified
pool
of black
in the
expected
by twenty-six
varies from the
number
[11]
This
figure
has been
rounded
the nearest whole number.
by Cavanagh,
extraordinary
on a ran
result based
it is not an
more,
representation was
Therefore,
dom selection.
analysis.12
this
under
nor unreasonable
unfair
neither
applied
Generally,
deviation
a standard
have
courts
analysis
in Sixth
cases, not
Amendment
in Fourteenth
Ramsey,
n 59. Al
428,
at
cases.
Amendment
analyses
though
deviation
have used standard
courts
supra;
Jackman,
cases, see
in Sixth Amendment
country
supra,13
has
“no court
Ramseur,
analysis]
accepted
alone as
deviation
[a standard
challenges to
Amendment
in Sixth
determinative
systems.”
Rioux, 97 F3d
United States v
1996).
(CA 2,
4. CONCLUSIONS
of mea-
the methods
summarized, each of
As I have
suring
of a distinctive
whether
advantages and disad-
has its
fair and reasonable
is
may
pеculiar
any given
vantages.
facts
case,
In
any
appropriate,
but
method more or less
render
requirement
every
is fun-
fair cross-section
case, the
guarantee. There-
the Sixth Amendment
damental to
purport
Michigan
to constrain
fore, I would
formula I
testimony
Batson v
case
is
apply
deviation
Court
Id. ble. at 1230.
Sixth Amendment
claims
merely
Notably,
law;
that standard
does in
together, stating
Kentucky,
analysis
majority
the standard
employ
application
Ramseur
any
expert
from
case.
claim under
characterizes
to the established
calculate standard deviation
is stated
the available data.” Ante
statistician.
that the
US
involved both an
of a
79;
legal
106 S Ct
Duren. The Ramseur court
requirements
me as
Castaneda,
Thus,
standard to
facts,
1712;
“craft[ing]
equal protection claim under
which were
crafting
Opinion rigidly Instead, to one method. I believe courts follow analyze representation that courts shоuld under all weigh three tests and the different results to ensure right a to defendant’s a drawn from a fair community yet cross section his not violated, of is avoiding pitfalls the of the individual tests. Other analyzed courts have also these claims under more acknowledged method, than one have that such an analysis supra Ramseur, could be useful. See at 1231- (using analyses); People all three v Sanders, 51 (1990) (absolute 3d 471, Cal 797 P2d 492-493; comparative supra disparity); Jackman, at 1247, n (absolute disparity analy- and standard-deviation-like sis); supra (“comparative disparity Hafen, at 24 cal- might supplement culation be a useful to the absolute disparity circumstances”). calculation some by approach
Further, the taken the Court of Appeals People Hubbard is relevant to a determi- nation whether unfair and unreasonable under- representation approach, has been shown. Under this may glance system- a court ahead at the evidence of deciding representation atic exclusion when whether the distinctive is fair and reasonable. When underrepresentation showing the is close, or none analysis particularly of methods of are well-suited a case, to can court consider the defendant’s evi- pro- dence of exclusion. If a appears likely systematically cess ex ante exclude system group, is, distinctive contains “non- benign” may essentially give factors, a court a defen- underrepresentation, dant benefit doubt on system post proves system- even if the ex work no agree atic exclusion. I with Hubbard and other courts shortcomings that have dealt with the of each of Cavanagh, J. representation analyzing in this manner. methods Biaggi, supra 678; at 1235; Ramseur, See supra at 978-979.14 Osorio, not shown under- has case, instant In the disparity absolute under either comparative devia- test, or standard test, the *20 analysis. approach, the under- Under each tion representation was levels that have in this case below However, because and unreasonable. held unfair been County population jury-eligible is of Kent the repre- population sample and of the overall small, the by jury pools small, none of the is also sented the particularly analytical to well-suited methods are similarity facial Further, the case. defendant’s system in the instant case the selection between impermissible constitutionally system in held and the weighing is the scale when a thumb on Hubbard underrepresentation. although defendant has Thus, underrepresenta- unfair and unreasonable not shown disparity analyses the above, tion under the “non-benign” process mark of bears the possibility Leaving of exclu- this influence. disparities in this case the unreviewed because sion system- possibility large that a not creates the were acceptable only if its effects could atic exclusion be prevent enough. this, under the To were small Hubbard we have not been prosecutor fer quately Court, [the Court] Court point decide this case without though, briefed.” Ante majority was addressed addressed have to look at Hubbard Appeals he does not urged presented in at by us Hubbard because case approve to with or considered Hubbard. follow n 1. parties, the acknowledging length, Throughout Hubbard, my guidance.” even majority that case “has conceded, discussing and at oral existing defendant’s would I disagree, “I would Michigan law on the apparently pre- not been argument, Even brief to decision then, say you though ade- this 463 Mich Cavanagh, approach give in Hubbard, taken I would underrepresentation, the benefit of the doubt on glance prong analysis. ahead to the third of the Duren
C. SYSTEMATIC EXCLUSION step establishing As a final a fair cross-section violation, defendant must show that the under- systematic, of black “that particular jury-selection process is, inherent Duren, utilized.” at 366. Like the trial court and dissenting judge Appeals, although in the Court of sympathetic position, simply I am I defendant’s am persuaded that defendant has carried his burden step. on this Therefore, I because had considered challenge “glancing defendant’s approach under the ahead” similarly carry he Hubbard, has failed to step analysis. the second of the Duren
1. “SIPHONING” *21 primarily argues Defendant that the selection of jurors jurors sys- district court before circuit court tematically jurors excluded black from the circuit pool. By jurors allocating court first for district courts city Rapids, percent in the of Grand with its 18.5 population, black and other district courts in Kent County, he contends that of most the available black jurors siphoned away were from the circuit court pools. compares People He his case to v Hubbard, supra, prospective jurors ques- in which were sent a only tionnaire either for district court or circuit court only depending on their case, residence. In that the preselection defendant showed that this for district seventy-five percent directing pro- court was of black by Cavanagh, jurors county spective court, with in the to district twenty-five percent only remaining available Appeals held to be a Court of circuit court. The systematic Id. at 480-482. exclusion.
Although Hubbard have facial instant case and similarities, has not shown effect defendant testimony similarity Hubbard, had on his case. In seventy-five percent jury-eligible of established that circuit court adults were excluded from system. how Here, the allocation service because of alleged how the ever, defendant has shown jurors siphoning court cir of black to district affected juries. district No has shown that cuit court еvidence juries fewer, a number more, court contained minority jurors equal approximately to the number appearing has court. the burden in circuit Defendant my proof me issue, has left own on this but speculation.15 has his He thus not carried burden proof.
By holding has not carried his bur- that defendant practice I do issue, on this not condone den jurors selecting before court district court circuit system jurors. to work a constitu- Such a shown though, Here, tional violation Hubbard. simply County’s former to show that Kent
has failed practice violation. a constitutional effected noted, suggesting *22 underrepresentation. change Even as matter of after Kent that the County stopped alleged speculation, of black selecting exclusion as the district was not circuit court was dissenting court the cause of jurors judge first, below small, Mich
Opinion by Cavanagh, 2. DISPARATE EFFECTS secondly system Defendant asserts that the con- anticipated disparately tained factors that be could prospective jurors, yet affect black failed to account disparate example, for that effect. For County arguеs anticipate ques- that Kent could as tionnaires returned likely undeliverable would more large have been returned from area with a minority population. Similarly, argues he that minori- likely nonresponsive juror ques- ties more are to be County’s effectively tionnaires, and Kent failure to pursue nonresponsive questionnaire recipients leads prospective jurors. to a smaller number of He personal allowing further asserts that excuses rea- transportation, sons, like lack of child care or also leads to smaller number of black likely because black Americans are more to suffer types problems. from these problems, These however, are not inherent particular jury process formerly selection used in County. inability juror ques- Kent First, “[t]he to serve they tionnaires because were returned as undeliver- system able is not due to the itself, but to outside demographic changes.” supra forces, such as Rioux, County required Kent 658. is not to account for demographic changes process; in its all required “jury pools that is panels, wheels, is that of names, juries
or venires from which are drawn must systematically groups not exclude . distinctive . . .” Taylor, at 538.
Similarly, argument defendant’s based on Kent County’s pursue prospective jurors decision not to questionnaires did return fails because it *23 227 People J. Cavanagh, by Opinion group was whether a not address does distinctive systematic jury pools. under- Whether from excluded process present on the “turns is selecting here 1248, at and venires,” Jackman, questionnaires a random list of names. sent to were then, selected, was in which venire The manner suggestion more was that was random. Defendant’s request necessary extra- to a amounts County “does not have action, Kent constitutional obligation to Sixth Amendment affirma- under the tively ‘private . . . .” sector influences’ counteract Purdy, Supp (D F United States follow-up 1996) (holding Conn, that a failure to send respond persons jury questionnaires that did not to to questionnaire viola- was not constitutional an initial argument tion). as well is defendant’s Relevant to this any persons that not to show that did failure respond were black. exemptions that based on
Defendant’s contention
personal
werе
exclusion
reasons
prospective jurors
Initially, per-
as
fails well.
exemptions
racially
granted
unidentified,
were
sons
personal
granting
exemptions
suggestion that
so the
jurors
prospective
is,
best,
in
resulted
fewer black
testimony.
exemptions
supported
generalized
prospective jurors,
could have resulted
fewer .white
prospective jurors,
change
no
fewer black
jury pool make-up
Further, defendant’s
whatsoever.
prospective
suggestion
would be
that black
likely
personal exemptions
request
again
more
to
is
sys-
forces rather than
attributable
outside social
jurors,
exclusion of black
tematic
affirmatively
County
required
again
Kent
exemptions
Also,
based on
outside forces.
counteract
463 Mich by Cavanagh,
personal hardship have
permissible
been held
even
when the exempted prospective
juror’s race was
known, and
prospective juror
was a
of a
member
group. v Howard, distinct
Cal 4th
1160-
1161;
I reiterate that “a . . . finding disparities are not unconstitutional is not the same as an endorse- ment of such discrepancies.” United States v Reyes, *24 F Supp 934 553, 566 (SD NY, 1996). Defendant’s argu- ments should give pause anyone who suggests that black Americans have achieved parity socioeconomic with white Americans. However, defendant’s argu- just ments do not demonstrate that Kent County’s process selection systematically excluded black prospective jurors.
3. STATISTICAL PROOF Finally, defendant argues the statistics alone sufficiently show that black prospective jurors were systematically excluded from County Kent jury pools. He contends that persistent underrepresentation shows that random chance could not have produced such a result.
In Rioux, supra, the Second Circuit Court of Appeals confronted a similar claim that statistics prove systematic alone exclusion. That court stated: “Without accepting the canard you that if torture the statistics long enough, they’ll say you anything want to, them it remains unclear whether statistics alone Cavanagh, systematic they prove can, Even if can exclusion. they overwhelmingly an however, would have to be of convincing (internal nature.” Id. at 658 citations omit- clearly ted). courts, however, Several have stated that systematic prove statistics alone cannot exclusion. (CA 1994) Pion, 1, See United States v 25 F3d (holding allegation exclusion “pure speculation”); on was based statistics alone (CA 1993) Garcia, F2d 489, United States underrepresentation (holding that numerical is not proxy systematic exclusion); supra Howard, carry (“A defendant cannot this burden with nothing disparity. more than statistical evidence of a must, addition, One show that the is the improper result of an feature of the process”). rely presuming
Even that defendant could exclu sively adequate on statistics, he has not made an showing. In Duren, the Court noted that the defen proved discrepancy large occurring dant every weekly that a period nearly year.
venire for a proof may Duren, Here, at 366. defendant’s sat isfy any requirement, duration because there was underrepresentаtion periods some in five of the six surveyed, disparities but the over that time were *25 large nowhere near as as those in Duren. The abso disparity thirty-nine percent, lute in Duren was comparative disparity sixty-five percent.16 In showing case, the instant defendant could not make a 16 Duren, fifly-four group comprised percent In the distinctive of the only population, percent jury pools. Applying but fifteen of the Id. at 365. part supplies ii(b) figures the formulas detailed in mentioned in the necessary text. Standard deviation is not available because the data supplied opinion in the calculation were not in the Court’s Duren. 463 Mich J. Cavanagh,
Opinion by underrepresentation unfair and unreasonable any disparity analyses. under Thus the defen- “overwhelmingly dant’s statistics are not so convinc- ing.” showing Without a that the was “the improper result feature,” Howard, prevail. 1160,defendant cannot requisite Because defendant has not made the showings Missouri, under Duren v I would reverse Appeals. the decision of the Court of I would remand Appeals this case to the Court of for consideration of previously defendant’s issues that were not reviewed. Kelly, J., with Cavanagh, concurred