Case o' The Week: Ninth Dives into SoCal Pool -- Hernandez-Estrada and Jury Pool issues

Q:  What is it called when Chief Judge Kozinski peels away from the majority decision, pens a witty separate opinion, and points out the "absurdity" of the current Ninth Circuit law?

Bell curve, with each band equal to one standard deviation

A:  A Standard Deviation.

United States v. Hernandez-Estrada, 2012 WL 6054774 (9th Cir. Dec. 5, 2012), decision available here.

Players: Admirable challenge by San Diego Ass’t Federal Defender Michele McKenzie. Decision by Judge Andrew Hurtwitz. Concurrence by Chief Judge Kozinski, joined by Judge Watford.

Facts: Hernandez-Estrada moved to dismiss his 8 USC § 1326 indictment, alleging Fifth and Sixth Amendment violations and violations of the Jury Selection and Service Act of 1968 (“JSSA”). Id. at *1. Among other challenges, he argued that the juror source list underrepresented African-Americans and Hispanics, that the Southern District of California (“SD Cal”) improperly excluded jurors for insufficient fluency in English based on their responses to the jury questionnaire, and clerks improperly disqualified jurors whose English abilities were unclear. Id. The district court found no constitutional violations, found “technical” JSAA violations, and denied the motion to dismiss the indictment. Id. at *2. The district court did, however, recommend significant changes in the jury selection practices. Id.

Issue(s): “The question in this appeal is whether the United States District Court for the Southern District of California violated the [JSAA] or the Constitution in compiling its 2009 master jury wheel.” Id. at *1.

Held: “Although the Southern District departed from the requirements of the JSSA in several respects, we find no reversible error in the underlying conviction.” Id. at *1. “The Southern District Clerk's Office should not automatically disqualify individuals who express doubt about their English skills. Nor should it put off preparing AO–12s [ed. note: mandatory forms submitted by the clerk reporting on the composition of the master jury wheel] until litigation is filed. The district should take steps to remedy both of these issues, but neither merits relief in this case.” Id. at *5.

Of Note: If one used a standard deviation analysis, two or three standard deviations would make a social scientist worry that a district’s jury draw isn’t random. Id. at *8 (Kozinski, C.J., concurring). In Hernandez-Estrada, there are fourteen standard deviations for black jurors in the SD Cal. Id.

 “So there’s cause for worry.” Id. 

Why doesn’t the Court reverse, when there appears to be such a huge statistical flaw in the composition of SD Cal’s pool? Because the Ninth doesn’t use “standard deviation analysis” when examining pools – it uses “absolute disparity.” This, our Chief Judge persuasively explains, “makes no sense.” Id. The “absurdity” of a fixed, permissible disparity-deviation sum (here, 7.7%) is laid bare by the Chief, who suspects that a “statistician would laugh at our current methodology.” Id. CJ Kozinksi concedes a three-judge panel can’t fix this approach, “but an en banc court could, and perhaps should, take a fresh look at the issue.” Id. at *9.

How to Use: The SD Cal’s jury questionnaire included a question from an old statutory standard: whether a prospective juror could “read, write, speak and understand the English language.” Id. at *6. Jurors who answered “no” were kicked out of the pool by the clerk. Problem is, the current statutory requirement in the JSAA only requires a juror to be knocked if he or she “is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form” or “if unable to speak the English language.” Id. at *5 (quoting 28 U.S.C. § 1865(b)(2),(3)). While the Ninth doesn’t find a “substantial” error that merits relief, it warns that “change is necessary” and “caution[s] other district to evaluate their own questionnaires, as this problem appears not to be unique to the Southern District.” Id. at *7. We should take up Judge Hurwitz’s invitation and dig out our district’s questionnaire – challenges may await.                                             

For Further Reading: Does the racial composition of a jury really make a difference in the outcome of a trial? 

Yep. 

A recent and extensive study found that all-white juries convict black defendants sixteen percent more often than white defendants. See description of Duke study here. 

Sobering study -- particularly when read in conjunction with Chief Judge Kozinski’s righteous concurrence in Hernandez-Estrada.

Illustration of standard deviation from http://upload.wikimedia.org/wikipedia/commons/thumb/8/8c/Standard_deviation_diagram.svg/325px-Standard_deviation_diagram.svg.png

Image, "Is Justice Color Blind" from http://today.duke.edu/showcase/mmedia/hires/jurystudy.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

Case o' The Week: Bad Math, Good Opinion -- Hernandez-Estrada and Jury Selection Challenges

  “I suspect a statistician would laugh at our current methodology,” mused the Chief on the Ninth’s use of “absolute disparity” in its jury selection jurisprudence.

  They’ll laugh no longer – the Ninth has stepped up and stepped away from bad math.

United States v. Hernandez-Estrada, 2014 WL 1687855 (9th Cir. Apr. 30, 2014) (en banc), decision available here.

Players: Decision by Judge Thomas, concurrence by Judges M. Smith, Silverman and Bea. Righteous fight by San Diego AFD Michele McKenzie.

Facts: Hernandez-Estrada was charged with illegal reentry. Id. at *1. He moved to dismiss the indictment, alleging that the SD Cal district court had violated the Jury Selection Act, the Fifth Amendment, and the Sixth Amendment for its failure to supplement its juror source list. Id. A three-judge panel affirmed, over a withering concurrence by the Chief. Id. (see blog on three-judge decision here).

  Hernandez sought en banc review, challenging the Ninth’s use of the absolute disparity test in jury selection challenges. Id. at *3. (“The absolute disparity test . . . examines the difference between the percentage of the distinctive group in the community and the percentage of that group in the jury pool.”) Id. at *4.

Issue(s): “Hernandez challenges our use of the absolute disparity test, arguing that the method unfairly favors large groups, makes it impossible for small groups to successfully assert a constitutional or Jury Selection Act violation, and has been criticized or rejected by other courts.” Id. at *3.

Held: “After surveying the case law and alternative methods of analysis, and bearing in mind our own past criticism of our exclusive reliance on the absolute disparity test, we conclude that it is appropriate to abandon the absolute disparity approach. Accordingly, we overrule the requirement, as set forth in Rodriguez–Lara and its predecessor cases, that the absolute disparity test be the exclusive analytical measure employed in fair cross-section challenges. However, we do not prescribe an alternative exclusive analysis to be applied in every case . . . We . . . decline to confine district courts to a particular analytical method. As our discussion has illustrated, the appropriate test or tests to employ will largely depend on the particular circumstances of each case. Instead, we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented.” Id. at *8. “In sum, the defendant must establish a prima facie case that the jury pool does not reflect a fair cross-section of the community. We overrule our prior precedent which required courts to analyze challenges exclusively by the use of the absolute disparity test. Rather, in determining whether the defendant has satisfied the burden of establishing a prima facie case, courts must consider the evidence proffered by the defendant, including expert testimony, and employ the most appropriate method, or methods, applicable to the specific challenge in the context of the particular jury pool at issue.” Id. at *9.

Of Note: This is a huge defense win, but not a win for Hernandez. Why? Judge Thomas concludes that there was not systemic exclusion of a group arising from the system by which juries are selected. Id. at *9. It is a disappointing outcome, because the Ninth concedes the district employed procedures that violate the Jury Selection Act. Id.  

How to Use: Hernandez-Estrada opens up the statistical approaches to challenge jury selection under the Jury Selection Act and the Sixth Amendment. Id. at *9. It also expands the new approach to Fifth Amendment challenges. Id. at *10. In districts where jury selection challenges have faltered on the old “absolute disparity” test (ND Cal?), it may be time to call the stat experts and mount a new round of attacks.

                                               

For Further Reading: In an admirable show of leadership, D.J. Paul Friedman has got the clemency ball rolling. See article here, opinion available here. (“The sentence this Court was required to impose on Mr. McDade was unjust at the time and is ‘out of line’ with and disproportionate to those that would be imposed under similar facts today. While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not. The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.”)

“Bad Math” logo from http://www.badmath.com/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

US v. Hernandez-Estrada, No. 11-50417 (4-30-14) (en banc) (Thomas for majority; concurrence by M. Smith and concurrence by N.R. Smith). 

In an en banc decision, the 9th overrules its rigid statistical straitjacket precedent of "absolute disparity" when it comes to analyzing a fair-cross-section challenge to the jury panel.  In its place, the 9th instructs a more flexible approach of avoiding any one statistical method (all have problems) but requires statistical significance and legal significance.  This case arises from a challenge in the Southern District of California to the underrepresentation of Hispanics and African Americans in a jury poll.  The test established in Duren v. Missouri, 439 U.S. 357 (1979), requires (1) a distinctive group; (2) statistically underrepresented; and (3) the underrepresentation is caused by systematic exclusion.  Here, the groups were Hispanic and African Americans.  African Americans are under 6% of the population but an absolute disparity, as laid down in United States v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005), requires a bright line of 7.7% difference between group and representation.  This meant that African Americans could never mount a challenge, or other groups.  This 7.7% test had been heavily criticized as overly rigid and pernicious in excluding challenges of small groups.   The 9th, in overruling, surveys other statistical means used by other circuits, such as absolute impact, standard deviations, and others.  All have issues.  The 9th therefore did not select one that had to be used, but requires the court to use tests under the circumstances, with expert testimony, to establish statistical and legal significance. 

Once the 9th established this new test, it turned to the case at hand.  Here, though the defendant met the first two prongs, he failed on the third.  There were errors aplenty in the manner in which the Southern District summoned prospective jurors: an outdated English text inquiring about English proficiency, unsupervised clerks making language assessments, no return of questionnaires failing to list racial or ethnic make, and failure to keep up to date jury wheel statistics.  Alas, though there were errors, they were not systematically targeting distinctive groups.

Concurring, M. Smith (joined by two others) concurs in the judgment, but  bemoans the passing of a bright line test that served the courts well.  The test was simple and clear, and now the 9th has a hodgepodge that will result in supposed confusion in the district courts.  (Ed. note: So a bad test should be kept because it is clear?   A bad test should remain because it is effective in preventing arguably meritorious claims?) N.R. Smith concurs, complaining that this challenge meant no test used by any other circuit.  He questions whether this is an appropriate vehicle for overturning precedent given that the challenges fails all around.

Although the case was lost, the new test for cross section is exceedingly helpful, and will allow challenges to statistical and legal underrepresentation.

Congrats to Michele McKenzie of the Fed Defenders of San Diego for the successful challenge to the test.

U.S. v. Hernandez-Estrada, No. 11-50417 (12-5-12) (Hurwitz with Watford; concurrence by Kozinski)

An interesting jury "wheel" selection of prospective jurors. The 9th looks at a challenge to the selection procedure of the SD Ca (San Diego) and the practice of disqualifying prospective jurors who state that they have English difficulties among other deficiencies. The analysis is constitutional for cross section and statutory under the Jury Selection and Service Act. The 9th affirms the conviction but cautions the district court and warns other districts that practices where the clerk determines who can speak English or can read and write are violations of the Jury Selection and Service Act. Here, the violations were not intentional and somewhat technical, but cause for concern. This is a signal to check on the practices of your district. The 9th also holds that there is no bright line underrepresentation of minority jurors, although the court expresses concern with the 9th's precedent of looking solely at a 7.7% underrepresentation. This is the basis for Kozinski's concurrence, where he points out that a minority may never reach 7.7% of a population while a majority may dip to 67% and trigger review. Kozinski notes the Supremes question a bright line analysis, and he flags the issue for en banc. The opinion also expresses concerns with the district court's failure to keep updated statistics and with the high rate of jurors failing to report race or ethnic background.

This appears to be the first criminal opinion authored by Judge Hurwitz.

Although Deputy Federal Defender Michele McKenzie lost the appeal, she raised important issues. Her efforts should cause all FPDs and CJA to reexamine the practice of their district's jury summoning.

U.S. v. Harris, No. 11-50503 (12-5-12) (Graber with Ikuta and Hurwitz)

A TSA employee helped a passenger take a pocketknife on a flight.  The pocketknife had a two and half inch blade.  Charged and convicted under 49 USC 46505 for helping to bringing a "concealed dangerous weapon" on board, the defendant argued that it was too vague.  The 9th rejected the issue, holding that such a weapon could be dangerous, and finding it not like a starter gun, which may look dangerous but is not.

 

U.S. v. Keyser, No. 10-10224 (12-6-12)(Clifton with Reinhardt and N. Smith)

Was it a publicity stunt, free speech, or threat?  The 9th came down on threat. The defendant wrote and self published a book on anthrax. To promote it, he sent out packets of sugar labeled "ANTHRAX" and a CD to 120 people, including a Congressman, and managers of Starbucks and McDonalds. This was after being warned once before by the FBI after he had done a similar stunt previously. He was charged and convicted of sending threatening communications. The 9th did not find this fell under "free speech," as it scared people, and was so intended. The 9th also found that packets sent to Starbucks and McDonalds were addressed to people, as required by Havelock, because the address had "Manager," which meant a person. The sentence was vacated and remanded, however, because of procedural error. The court erred in increasing the levels by 4 for each threat, when the counts were not grouped, and the adjustment was inapplicable.

 

Ortiz v. Yates, No. 11-56383 (12-6-12)(Berzon with Ebel (Sr. C.J. 7th); dissent by Fernandez)

In a habeas case, the 9th found constitutional error in a state court precluding cross examination of the key witness on the issue of whether she was pressured or threatened by the district attorney's office to stick with her original account. The witness was the victim of domestic abuse, and she supposedly was going to recant but for the threats of perjury and taking her children away. The opinion is replete with the need for a vigorous cross examination. In dealing with AEDPA, the 9th noted the state court found err, but never discussed harmlessness. To the 9th's mind, this could not be harmless. On the contrary, dissents Fernandez, arguing that the error was indeed harmless given the case and evidence.