People v. Smith

615 N.W.2d 1, 463 Mich. 199

• Court: Michigan Supreme Court
• Decided: July 28, 2000
• Docket: 114785, Calendar No. 1
• Status: Published

Opinions

Corrigan, J.

The question presented in this case is whether Kent County’s former system of selecting jurors denied defendant his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. To establish a prima facie violation of the fair cross-section requirement, a defendant must show that a distinctive group was underrepresented in his venire or jury pool, and that the under-representation was the result of systematic exclusion of the group from the jury selection process. Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979). We hold that defendant was not denied this right because, although we grant him the benefit of the doubt on unfair and unreasonable under-representation, he has not shown systematic exclusion. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the Court of Appeals for consideration of defendant’s remaining issues.

i

We join parts I through n(A) and part n(c)(2) of the concurring opinion, but part company with our concurring colleague on the analysis of the second prong of Duren.

The United States Supreme Court has not specified the preferred method for measuring whether representation of a distinctive group in the jury pool is fair and reasonable. See Detre, note, A proposal for measuring underrepresentation in the composition of the jury wheel, 103 Yale L J 1913, 1918-1920 (1994). Since Duren, the lower federal courts have applied three different methods of measuring fair and reasonable representation, known as the absolute disparity test, the comparative disparity test, and the standard deviation test. Ramseur v Beyer, 983 F2d 1215, 1231 (CA 3, 1992). Each of these tests, however, has been criticized. For example, in cases where the members of the distinctive group comprise a small percentage of those eligible for jury service, the absolute disparity test produces questionable results. See United States v Jackman, 46 F3d 1240, 1247 (CA 2, 1995). Likewise, most courts have rejected the comparative disparity analysis because when the distinctive group’s population is small, a small change in the jury pool distorts the proportional representation. See United States v Royal, 174 F3d 1, 8 (CA 1, 1999). Finally, courts have applied a standard deviation analysis in Fourteenth Amendment cases, but not typically in Sixth Amendment cases. Detre, supra at 1922-1926. Some courts have used standard deviation anal-yses, see Jackman, supra; Ramseur, supra, but “no court in the country has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems.” United States v Rioux, 97 F3d 648, 655 (CA 2, 1996).

We thus consider all these approaches to measuring whether representation was fair and reasonable, and conclude that no individual method should be used exclusive of the others. Accordingly, we adopt a case-by-case approach. Provided that the parties proffer sufficient evidence, courts should consider the results of all the tests in determining whether representation was fair and reasonable.

In this case, defendant presented some evidence of a disparity between the number of jury-eligible African-Americans and the actual number of African-American prospective jurors selected to the Kent County Circuit Court jury pool list. However, defendant’s statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests.¹ Nevertheless, rather than leaving the possibility of systematic exclusion unreviewed solely on the basis of defendant’s failure to establish underrepresentation, we give the defendant the benefit of the doubt on underrepresentation and proceed to the third prong of the Duren analysis.

n

Assuming defendant has satisfied the first two prongs of the Duren analysis, defendant must still show that the underrepresentation of African-American jurors was systematic, “that is, inherent in the particular jury-selection process utilized.” Duren, supra at 366. We agree with our concurring colleague that defendant has not shown a systematic exclusion of African-Americans from the Kent County Circuit Court jury pool.

We further agree with our concurring colleague that defendant has not shown how the alleged siphoning of African-American jurors to district courts affected the circuit court jury pool. The record does not disclose whether the district court jury pools contained more, fewer, or approximately the same percentage of minority jurors as the circuit court jury pool. Defendant has simply failed to carry his burden of proof in this regard.

We also agree with our concurring colleague that the influence of social and economic factors on juror participation does not demonstrate a systematic exclusion of African-Americans. The Sixth Amendment does not require Kent County to counteract these factors. United States v Purdy, 946 F Supp 1094, 1104 (D Conn, 1996).²

Finally, even presuming that defendant can rely exclusively on statistics, he has not made the requisite showing in this case. In Duren, the Court noted that the defendant proved that a large discrepancy occurred in every weekly venire for approximately one year.³ Duren, supra at 366. Here, while defendant’s proof may satisfy any duration requirement, the disparities over that time fell far short of those in Duren. Defendant did not demonstrate unfair and unreasonable underrepresentation under the disparity analyses. We therefore conclude that defendant has not shown a systematic exclusion of African-Americans for the Kent County Circuit Court jury pool.

m

We conclude that defendant has not established a prima facie violation of the Sixth Amendment fair cross-section requirement. We therefore reverse the decision of the Court of Appeals, and remand this case to the Court of Appeals for consideration of defendant’s remaining issues.

Weaver, C.J., and Taylor, Young, and Markman, JJ., concurred with Corrigan, J.

1 We note that neither defendant nor the prosecution presented expert testimony regarding application of the standard deviation test. We do not endorse our concurring colleague’s efforts to craft his own standard deviation analysis from the available data. Nor do we approve the concurring opinion’s endorsement of People v Hubbard (After Remand), 217 Mich App 459; 552 NW2d 493 (1996). The constitutional conclusion Hubbard reached has not been adequately briefed, and we need not reach that question to resolve this case.

2 Although the constitution does not concern itself with problems not inherent in a jury selection process that nevertheless may adversely affect jury participation, this Court, through the State Court Administrative Office, has been studying ways to increase jury participation. We have undertaken several initiatives in recent years to address concerns about juries and jury service. For example, in 1998, the State Court Administrative Office began reviewing the American Bar Association Standards Relating to Juror Use and Management with an eye to producing Michigan standards. Similarly, this Court retained the National Center for State Courts Center for Jury Management to address the jury selection and management procedures in trial courts where jury concerns had been raised, and to make recommendations for improvement in those courts. Finally, this Court has worked with the State Bar of Michigan Open Justice Commission to improve citizen participation in jury service, focusing on improving the representativeness of juries.

3 In Duren, the Court specifically concluded that the petitioner had demonstrated that the underrepresentation was due to the operation of the exemption criteria. Duren, supra at 367. Therefore, Duren did not hold that the third prong was established solely on the basis of statistical proof; there was also proof of the cause of the underrepresentation.