Sunday, May 04, 2014

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

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


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