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If a group is underrepresented in a jury pool, how do you tell?

The following is a recap of Wednesday’s oral argument in Berghuis v. Smith (08-1402) by Harvard law student James Bickford.  His analysis and the argument transcript are now also available on the case’s SCOTUSwiki page.

During oral argument in Berghuis v. Smith, the Court – despite  repeated attempts by Eric Restuccia, the Michigan Solicitor General, to emphasize the deferential standard under which habeas corpus petitions are reviewed – focused primarily on the intricacies of the Sixth Amendment claim at the heart of this case.  You can read my preview of the case for SCOTUSblog here.

Mr. Restuccia began his argument by framing the question before the Court as whether, “in rejecting Mr. Smith’s [Sixth Amendment] claim that his jury was not drawn from a fair cross-section of the community,” the Michigan Supreme Court “unreasonably applied clearly established Supreme Court precedent” – a standard of review established by the Antiterrorism and Effective Death Penalty Act (AEDPA).  Mr. Restuccia then recounted the “clearly established Supreme Court precedent” at issue in the case: the Court’s 1979 decision in Duren v. Missouri, under which a defendant must demonstrate that a distinctive group was systematically denied fair and reasonable representation on the juries of the jurisdiction where he was tried.

One of the main issues in the case is the proper standard for determining whether a group was in fact underrepresented.  Justice Breyer opened the questioning by invoking the binomial theorem.  He hypothesized a scenario involving “an urn with a thousand balls, and sixty are red, and nine hundred forty are black, and then you select them at random…twelve at a time.”  According to Justice Breyer and the binomial theorem, if the red balls were black jurors then “you would expect…something like a third to a half of juries would have at least one black person” on them.  (Justice Scalia’s rejoinder:  “We don’t have any urns here.”)  Mr. Restuccia responded that the Court did not need to arrive at a precise calculation; rather, it needed only to find that the Michigan Supreme Court acted reasonably.  When Justice Breyer expressed discomfort with the idea of writing an opinion that said “2 and 2 is 6,” the Chief Justice suggested that under AEDPA “all you have to do is say: 2 plus 2 is somewhere between 3 and 5.”

Justices Kennedy and Stevens then began to press Mr. Restuccia on how to determine when a disparity in group representation is constitutionally significant.  The Justices noted that a large fraction of a small minority would only be a small fraction of the overall community.  They asked whether, in that case, the Court should look to the large fraction or the small one to determine the extent of underrepresentation.  Mr. Restuccia again relied on AEDPA, responding that the Court did not need to reach that question.  Justice Kennedy replied, “Yes, but we have a half-hour.  I would kind of like to know.”

Mr. Restuccia then suggested that, unless the excluded group amounted to ten percent of the overall community, there would be no constitutional violation.  Justices Ginsburg and Sotomayor pressured him on this point for several minutes, with neither seeming at all inclined to adopt such a rule.

The Justices then moved on to the systematic exclusion element of the Duren test.  One of the allegedly exclusionary practices was the preferential assignment of jurors to their local courts, rather than the county courts.  Smith contends that, as a result of this practice, few jurors from Grand Rapids (where most African Americans in Kent County live) served on the county courts when he was tried.  The Justices spent quite some time establishing that this could be true only if the courts in Grand Rapids used more jurors per capita than other local courts.

Finally, Justice Kennedy asked whether, if a particular jury selection practice routinely results in underrepresentation, then it by definition produces systematic exclusion.  Mr. Restuccia replied that a facially neutral selection procedure that produced systematic exclusion would not automatically violate Duren.  Justice Alito suggested that this was because the State always had an opportunity to justify its use of the challenged mechanism.

Arguing on behalf of Smith, James Lawrence first faced questions from the Chief Justice about whether a selection procedure that excluded a community’s lone African American from the jury pool would violate the Sixth Amendment.  Mr. Lawrence responded by quoting at length from the Court’s opinion in Duren.  Justice Ginsburg pointed out that the Duren case had involved explicit exemptions for female jurors, rather than facially neutral procedures.  When Mr. Lawrence suggested that Duren could be satisfied by a simple showing of persistent underrepresentation, Justice Scalia accused him of reading out the third element of Duren’s three-part test: that the underrepresentation be caused by the jury selection process.  Justice Ginsburg appeared equally skeptical.

The Justices then resumed their discussion of the county’s practice of assigning jurors to local courts.  Mr. Lawrence conceded that Smith had not demonstrated a disproportionate need for jurors in Grand Rapids, but he also denied that such a showing was necessary.  Justice Breyer suggested that, even if the practice did have some small exclusionary effect, that might be outweighed by the public benefit of allowing jurors to serve closer to their homes.

Mr. Lawrence then moved on to the other allegedly exclusionary practice at issue in the case: granting hardship excusals to potential jurors who had difficulty obtaining childcare or transportation.  Although Mr. Lawrence argued that African Americans disproportionately lacked those services, Justice Ginsburg countered that the Court in Duren had explicitly indicated that jurors could be excused for lack of childcare.

In a brief rebuttal, Mr. Restuccia reiterated that, under AEDPA, the Court could hold in Smith’s favor only if it determined that the Michigan Supreme Court had been objectively unreasonable.

As the case was submitted, it was not apparent that any Justice squarely favored either the result advocated by Mr. Lawrence or the rule put forward by Mr. Restuccia.