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Habeas Review: Jury Selection Process

Berghuis v. Smith, USSC No. 08-1402, 3/30/10

Defendants have Sixth Amendment right to impartial jury drawn from fair cross section of community. To establish prima facie violation of this “fair-cross-section,” requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Various methods have been proposed to test underrepresentation, and all have their “imperfections.” Smith is not able to satisfy his burden of showing systematic exclusion.

The Court also notes that for purposes of 2254 habeas review states retain broad discretion “prescribe relevant qualifications for their jurors and to provide reasonable exemptions.”

Attack on composition of venire panel, filtered through the fine mesh of habeas. After some technical stuff re: methodology (“absolute disparity, comparative disparity, and standard deviation”), the Court allows that where the underrepresented distinctive-group is but a small percentage of the jury-eligible population the Court can do little more than throw up its hands as to “the appropriate method or methods for measuring misrepresentation.” And because the burden is on the defendant, guess where that leaves you. But if nothing else, the case serves as reminder that there is a “fair-cross-section requirement” under the 6th A. Doesn’t appear to be terribly much Wisconsin litigation (is that because our selection process is so fair?), the leading exception being State v. Pruitt, 95 Wis. 2d 69, 289 N.W.2d 343 (Ct. App. 1980) (young adults deemed “distinctive group,” and although underrepresented on particular array, that wasn’t enough: disproportionate representation must be shown over period of time. Quaint, at least from a certain perspective.). The field of jury selection litigation is now occupied more or less by Batson, which makes sense given its less-daunting focus on the particular jury at hand.

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