Berghuis v. Smith
From ScotusWiki
Argued January 20, 2010. Decided March 30, 2010.
Docket: 08-1402
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).
Contents |
Briefs and Documents
Decision
REVERSED AND REMANDED in a 9-0 decision with an opinion written by Justice Ginsburg. Justice Thomas filed a concurring opinion.
Oral Argument
Transcript (January 20, 2010)
Merits Briefs
Amicus Briefs
- Brief for Criminal Justice Legal Foundation in Support of Petitioner
- Brief for Social Scientists, Statisticians, and Law Professors Jeffery Fagan, et al. in Support of Respondent
- Brief for the NAACP Legal Defense & Educational Fund, Inc. in Support of Respondent
- Brief for the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the National Jury Project in Support of Respondent
- Brief for the Charles Hamilton Houston Institute for Race and Justice, the NAACP, et al. in Support of Respondent
Certiorari-Stage Documents
- Opinion below (6th Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioner’s reply
- Brief amici curiae of Connecticut, and Six Other States
Opinion Recap
James Bickford originally wrote the following for SCOTUSblog:
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.
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.”
Argument Recap
The following originally appeared on SCOTUSblog.
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.
Pre-Argument Articles
Argument Preview
James Bickford, a Harvard law student, originally wrote the following for SCOTUSblog.
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Today the Court will hear oral argument in No. 08-1402, 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.
