Using "Absolute Disparity" Approach, SDNY Judge Denies Defendants' Fair-Cross-Section Challenge to Make-Up of Jury Pool

There is a jarring disconnect between the make-up of New York's federal juries in criminal cases and the race and ethnic background of the defendants.  In 2006, according to Bureau of Justice statistics, 51% of federal defendants sentenced after a jury trial in New York State were white, with an unknown percentage of those (possibly up to 50%) being of Hispanic descent.  Juries, however, tend to be 80% or more white. 

To address the concern that juries may consist of individuals who are geographically close to the defendant but otherwise worlds apart, the law guarantees a jury culled from a broad cross-section of the community.  This guarantee is designed to assure "diffused impartiality and partly, because sharing in the administration of justice is a phase of civic responsibility."  Taylor v. Louisiana, 419 U.S. 522, 531 (1975), quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting) (emphasis added).  Giving meat to the cross-section guarantee is the subject of some fascinating jury challenges, incorporating sophisticated statistical and probability analyses. 

One such challenge was made recently and unsuccessfully in United States v. Barnes, 2007 WL 3050790 (S.D.N.Y. October 17, 2007), a capital case in White Plains.  Armed with analyses prepared by professors at Columbia University, the defendants moved to stay the proceedings under the Jury Selection and Services Act of 1968 and the Sixth Amendment, on the grounds that African-Americans and Hispanic-Americans are under-represented in the qualified jury wheel (the list of persons eligible for jury service) in the Northern Division of the SDNY.  The defense established through their experts that under an "absolute disparity" approach (which measures the difference between a group's representation in the general population and the same group's representation in the qualified jury wheel), African-Americans were under-represented by 2.8% and Hispanic-Americans under-represented by 2.3%.  Whites were over-represented by 5%.  Under an alternative probability analysis, the experts concluded that there is a 28.5% chance that African-Americans will be selected for a 60 person jury panel in proportion to their population and a 29% chance in the case of Hispanic-Americans, yielding probabilities of under-representation in the case of African-Americans of 53.8% and 54.7% in the case of Hispanic-Americans.  The government did not dispute the analyses, but rather disagreed that the probability methodology was applicable.

The court, constrained by the Second Circuit's holding in United States v. Rioux, 97 F.3d 648(2d Cir. 1996), agreed with the government that an absolute disparity approach was appropriate.  Although acknowledging that the value of absolute disparity methodology is questionable when the group being analyzed is a small section of the population, the court noted that in Rioux, the Second Circuit approved an absolute disparity analysis in a cross-section challenge where the percentages of African-Americans and Hispanic-Americans in the general population were actually smaller than at issue in Barnes.  The Barnes court further pointed out that the under-representation established by the defendants' experts would require the addition of "between one and two African-Americans and one and two Hispanic-Americans to a 60-person venire in order to reach proportionality."  Such figures, the court held, did not support a fair cross-section claim. 

But, leaving aside the merits of the defendants' probability analysis, an extra two to four minority members of a 60-person venire pool can make all the difference in terms of getting one extra minority member on the final jury, and that one minority person may make all the difference in bringing into the jury room a unique perspective of meaningful empathy with the client and appreciation of defense arguments.  That perspective may be the one voice that gives the others pause, and cause them to have doubts.  And it is all the more essential in a capital case, where the jury may be called upon to study the defendant's history and circumstances in detail in deciding whether the ultimate penalty should be imposed.  It's important to note too that increased representation by minorities on juries adds not just to the varieties of human experience brought to jury deliberations, but promotes "sharing in the administration of justice" and thus, counters alienation from the legal system.

Under-representation of minority populations, no matter how slight, is therefore of critical  importance in a system that prosecutes large percentages of those minority populations.  Surely, any margin of error should favor the inclusion rather than the exclusion of minority individuals?

In an interesting footnote in the decision, the court noted the defendant's challenge to the use of voter registration lists to establish the qualified jury wheel because of the under-representation of minorities in voter registration.  While acknowledging the fact of under-representation in these lists, the court rejected that challenge in part because the Second Circuit in Rioux found voter lists to be benign.  But it can hardly be benign to continue using lists that are widely known to under-represent minorities.  It is time for the SDNY court to take a leaf out the state court system, and draw jury pools not just from voter lists, but also DMV records and welfare rolls.  (Notably, the EDNY jury plan supplements its jury pool drawn from voter lists with people drawn from DMV records.)