In 1993, Diapolis Smith was convicted of second-degree murder in Kent County, Michigan.  All twelve of the jurors who convicted him were white; Mr. Smith and the thirty-six other witnesses to the shooting in question were African American.  The venire panel from which the jury was drawn included no more than three African-Americans in its sixty to one hundred members.  Mr. Smith appealed his conviction on the ground that he had been denied his Sixth Amendment right to a jury drawn from a fair cross-section of the community.  The Supreme Court had announced that right in Taylor v. Lousiana (1975), and in Duren v. Missouri (1979) it held that a criminal defendant must establish three things to demonstrate a prima facie violation: that (1) a "distinctive" group (2) is not fairly and reasonably represented in jury pools because of (3) "systematic exclusion" from the jury selection process.  After the Michigan Supreme Court rejected Mr. Smith's arguments, he sought federal habeas relief, which the Sixth Circuit granted.  (My earlier overview of the case is here, and my summary of the oral argument is here; briefs, argument transcript, and opinion are available on the Berghuis v. Smith SCOTUSwiki page.)

On Tuesday, the Supreme Court reversed.  In a unanimous decision, it held that Mr. Smith had failed to establish that the decision of the Michigan Supreme Court "involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States" "” the standard of review for habeas petitions after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996.  Writing the majority opinion, Justice Ruth Bader Ginsburg recounted the facts of Duren, the baseline against which "clearly established" violations of the fair cross-section requirement are judged.  In Duren, women were 54.7% of the jury-eligible population, but made up only 26.7% of those summoned for jury service, and only 14.5% of the pool from which jurors were actually drawn.  Missouri law allowed women to opt out of jury service: many opted out explicitly, and Jackson County (where Duren was tried) regarded a failure by a woman to respond to her jury summons as an effective opt-out.  In this case, the underrepresentation of African Americans in the jury pools of Kent County was considerably smaller (no matter how that disparity was measured) and less clearly caused by systematic exclusion.

Although a considerable portion of both the briefs and the oral arguments were devoted to the question of how underrepresentation is appropriately measured, the Court merely observed that each of the available tests "is imperfect."  Instead, the Court rested its decision on the "systematic exclusion" element of the Duren test.  Mr. Smith had argued that African-American jurors were systematically excluded by Kent County's practice of first assigning jurors to local district courts, and only then filling the jury pools of the county-wide courts where Mr. Smith and other alleged felons were tried.  (A large majority of the African-American residents of Kent County live in Grand Rapids, home to a single local court.)  As Justice Ginsburg wrote, "Evidence that African-Americans were underrepresented on the [county-wide] 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 Smith adduced no evidence to that effect."  Justice Ginsburg indicated that "Smith's best evidence of systematic exclusion was a decline in comparative underrepresentation, from 18 to 15.1%, after Kent County reversed the assignment order," filling the county-wide jury pools first.  But even Mr. Smith's lawyer had conceded that this was not "a big change."

Mr. Smith had also argued that Kent County's practice of excusing potential jurors who alleged hardship or failed to report for jury service, its reliance on notices of jury duty mailed to addresses at least fifteen months old and its decision not to follow up on non-responses, along with the refusal of Kent County police to enforce court orders for the appearance of prospective jurors, collectively amounted to systematic exclusion because each practice was likely to have a disproportionately large impact on African-American potential jurors.  Justice Ginsburg rejected these arguments, explaining that "[n]o "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."  She went on to note that "furthermore, [the Court] 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."  Quite the opposite: "in Duren, the Court understood that hardship exemptions resembling those that Smith assails might well "survive a fair cross-section challenge.'"

Justice Clarence Thomas concurred.  Agreeing that Mr. Smith had not shown any violation of clearly established law, Justice Thomas stated that he would be willing in a future case to reconsider the "fair cross-section" precedents, on the grounds that because "[h]istorically, juries did not include a sampling of persons from all levels of society or even from both sexes," the requirement therefore "seems difficult to square with the Sixth Amendment's text and history."

Posted in Berghuis v. Smith, Merits Cases, Uncategorized