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Last week’s U.S. Supreme Court decision on jury composition could make it tougher for criminal defendants to challenge all-white juries based on the Sixth Amendment guarantee of an impartial jury that reflects a cross-section of the community.

But defense attorneys say that the ruling in Berghuis v. Smith does give the defense bar crucial guidance on how to make such challenges successfully.

The Court reversed a 6th Circuit case holding that a black man tried before an all-white jury was entitled to relief in federal court based on a jury selection system that apparently drained minorities from the jury pool before juries were seated in criminal felony trials.

“The Court said a valid, non-discriminatory reason or factor in the way a state selects its jurors is not invalid simply because it happens to have some correlation with race,” said Kent Scheidegger, legal director for the California-based Criminal Justice Legal Foundation. Scheidegger authored an amicus brief for the group supporting the state in the case.

‘Siphoning’ argument

The defendant in the case, Diapolis Smith, was charged with second-degree murder, assault, possession of a firearm and other charges in connection with a bar fight that left a man dead after he was pistol-whipped and shot in the chest.

Smith, who is black, was tried in a Michigan county that was 8 percent black. Eighty-five percent of the black residents hail from a single city within that county. The county’s jury selection system required all jurors in the county to be placed into a single pool.

First jurors were selected from the pool to potentially serve in district court trials involving misdemeanors. Then potential jurors for circuit courts, where felony cases like Smith’s were tried, were selected from the remaining pool.

Smith’s jury was all white. Before the jury was sworn in, Smith objected, alleging that blacks were improperly excluded from the jury panel and the venire from which jurors were selected.

Smith’s request for additional peremptory challenges was denied and he was convicted of the murder and firearm charges.

On appeal, the Michigan Court of Appeals remanded the case for an evidentiary hearing on the issue of jury selection bias. On remand, the state trial court found that Smith’s Sixth Amendment right to an impartial jury had not been violated.

The Michigan Court of Appeals reversed, but the Michigan Supreme Court ultimately concluded that there was no Sixth Amendment violation because there was no showing of an underrepresentation of black jurors in the pool and the selection process did not create a systematic exclusion of blacks.

The 6th Circuit granted Smith habeas relief, holding that the Michigan Supreme Court’s ruling was an unreasonable application of federal law.

Harder case to make

In a unanimous ruling, the U.S. Supreme Court reversed the 6th Circuit. In an opinion written by Justice Ruth Bader Ginsburg, the Court noted that the Michigan Supreme Court rejected Smith’s siphoning argument “for lack of proof that the assignment procedure caused underrepresentation.”

“As that determination was not at all unreasonable, the 6th Circuit had no warrant to disturb it,” Ginsburg wrote.

After the ruling, making a constitutional claim that a jury does not fairly reflect a cross-section of a defendant’s community will be tougher, Scheidegger said. And he thinks it should be.

“I think defendants were going into the case thinking all they had to do was prove that a [jury selection process] had an impact on race, and then they could sit down and think they’ve made a case,” Scheidegger said. “The Court made it very clear that that’s not enough.”

The good news for defense attorneys is that the Court declined to adopt the standard proposed by the state for measuring an alleged underrepresentation, said Erik Levin, a former criminal defense attorney who is now an assistant professor at New York University School of Law. Levin coauthored an amicus brief in support of Smith on behalf of the National Association of Criminal Defense Lawyers.

The state urged the Court to adopt an “absolute disparity” test, requiring defendants to show proof of a disparity that exceeds 10 percent to make out a prima facie cross-section violation.

Ginsburg, noting flaws in all the methods lower courts use to determine the existence of such disparity, said that the Court had “no cause to take sides” as to the appropriate test.

Levin said that the Court’s rejection of the bright line rule protects many defendants’ rights.

“A bright line rule would, in effect, remove race and ethnicity from the Sixth Amendment fair cross-section guarantee,” Levin said, arguing that the 10 percent hurdle would be almost impossible to meet on a racial challenge. “Gender [would] be all that’s left.”

The case also provides an important lesson for criminal defense attorneys who mount a Sixth Amendment jury challenge: make a strong evidentiary showing.

“The Court said there hadn’t been an evidentiary showing” in the case, Levin said. “The record hadn’t been developed to show that siphoning clearly had some effect on [minority] representation.”

“If you are going to make this kind of challenge, you need to find out where the drop in participation occurs,” Levin advised. “An advocate needs to develop the record as to what causes the underrepresentation – not just say that it’s there, but show how it got there.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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