AEDPA and the Sixth Amendment’s â€œFair Cross-Sectionâ€ Requirement
Today the Court will hear oral argument in Berghuis v. Smith, the latest in the line of cases tracing the limits of habeas corpus review under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. AEDPA precludes federal habeas relief when a state court has adjudicated a federal claim on its merits, unless the state court ruling was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." In Terry Williams v. Taylor (2000), the Court held that under AEDPA, federal habeas relief is available only when a state court's application of federal law is objectively unreasonable, rather than merely incorrect.
At issue in this case is the intersection of AEDPA and the Court's precedents governing jury selection. In Taylor v. Louisiana (1975), the Court held that the Sixth Amendment guaranteed a jury drawn "from a representative cross section of the community." Four years later, in Duren v. Missouri (1979), the Court outlined a three-part test to determine whether a group has been unconstitutionally excluded from the jury pool: the group must be (1) distinctive and (2) lacking "fair and reasonable representation" for reasons that are (3) caused by the system of jury selection.
In 1993, an all-white jury in Kent County, Michigan convicted Diapolis Smith "“ who is African American "“ of second degree murder. Before the jury was sworn, Smith filed a motion in which he argued that his Sixth Amendment rights had been violated because the jury pool for his trial did not represent a fair cross-section of the community. At most three African Americans were present in a pool of between sixty and one hundred potential jurors. On appeal after Smith's conviction, the Michigan Court of Appeals remanded the case for an evidentiary hearing to determine how juries had been selected at the time of his trial.
On remand, witnesses testified that Kent County juries had then included disproportionately few African Americans. Of particular concern were the practices of "siphoning" Grand Rapids residents away from county courts by first assigning them to local courts, and the excusal for hardship of potential jurors who lacked adequate transportation or childcare. Grand Rapids was home to the vast majority of Kent County African Americans, who may have been disproportionately likely to have difficulty obtaining childcare or transportation. One witness testified that African Americans were underrepresented by 35% in Kent County jury pools in the month in which Smith's jury was selected. However, that figure was derived using the "comparative disparity" test, a major issue in this case.
Under the "comparative disparity" test, a court calculates the percentage of otherwise eligible jurors from a given group who are excluded from jury service. By contrast, the "absolute disparity" test compares the number of excluded potential jurors to the overall population. So if African Americans make up eight percent of the overall population and half of that group is excluded from the jury pool, then the "comparative disparity" is fifty percent, but the "absolute disparity" is only four percent.
The state trial court agreed with Smith that African Americans were significantly underrepresented on Kent County venires at the time of his trial, but it rejected Smith's Sixth Amendment claim on the ground that he had not demonstrated the systematic exclusion of African Americans. A divided panel of the Michigan Court of Appeals reversed, but it was in turn reversed by the Michigan Supreme Court. That court determined that Smith had "failed to establish a legally significant disparity under either the absolute or comparative disparity tests"; however, it then gave him "the benefit of the doubt on underrepresentation" to address the question of systematic exclusion "“ which, it concluded, Smith had not demonstrated.
Smith then sought federal habeas relief, which the federal district court denied. On appeal, the Sixth Circuit reversed, finding that the Michigan Supreme Court had unreasonably applied the clearly established standards of Duren. It reasoned that when "the distinctive group alleged to have been underrepresented is small, as is the case here, the comparative disparity test is the more appropriate measure of underrepresentation"; moreover, when "a jury selection process appears ex ante likely to systematically exclude a distinctive group," a court should at least perform the full Duren test. Reaching the third element of that test, the Sixth Circuit found that Smith had introduced sufficient "evidence that this disparity [in the jury pool] was not random."
The State of Michigan filed a petition for certiorari. (As in most habeas cases, Mary Berghuis, the official petitioner, is the warden of the facility where the prisoner is held.) The State argued that the "comparative disparity" test was neither clearly established federal law nor an appropriate analysis in this case. The petition was granted on September 30, 2009.
In its brief on the merits, the State makes two sets of related arguments with respect to both the underrepresentation and systematic exclusion elements of the Duren test: that its state supreme court reasonably applied Sixth Amendment precedent and that its ruling was correct on the merits. First, because there is some doubt as to whether the Michigan Supreme Court squarely addressed the question of underrepresentation, Michigan first argues that the question was decided on the merits and is therefore entitled to deference under AEDPA. Moreover, Michigan argues, the court's decision was not unreasonable because Duren "“ while not specifying how underrepresentation should be calculated "“ appeared to use the absolute disparity test; at least seven federal courts of appeals have concluded that similar disparities did not satisfy the second element of the Duren test; and no U.S. Supreme Court case established that such a disparity violated the Sixth Amendment. Second, turning to the core constitutional claim on its merits, the State asserts that the "comparative disparity" test can inflate a group's underrepresentation out of all proportion to its constitutional significance, and it urges the Court to incorporate a threshold requirement of a 10% absolute disparity into its Sixth Amendment jurisprudence.
Michigan concludes by addressing the systematic exclusion element of the Duren test. Here too it argues that no clearly established federal law prohibits Michigan's practice of hardship excusals for jurors lacking transportation or childcare, which in any case did not effect a systematic exclusion. It then concludes by claiming that Smith did not demonstrate any racial disparities inherent in the State's practice of "siphoning" jurors to the local district courts.
After first arguing that the Michigan Supreme Court did not squarely decide the question of underrepresentation, Smith devotes the majority of his brief to addressing the constitutional question on its merits. He argues for a case-by-case approach to the underrepresentation calculation, including multiple statistical analyses, rather than a requirement that a certain absolute disparity be shown. Smith notes that, under the rule advocated by the State, every African American could be excluded from the jury pool in Los Angeles County, California (where that group makes up 9.45% of the population) without violating the Sixth Amendment. Smith then urges the Court to define systematic underrepresentation as persistent underrepresentation that is caused by the system of jury selection. In his case, he contends, the practices of "siphoning" jurors and hardship excusals produced systematic underrepresentation of African-American jurors in Kent County. Smith concludes by arguing that, notwithstanding AEDPA, the Court can decide this case on its merits.