Judge Sidney Thomas, Ninth Circuit
Judge Sidney Thomas, Ninth Circuit (Jason Doiy)

An en banc panel opinion of a federal appeals court has abandoned the exclusive use of a statistical test in analyzing whether a jury pool adequately represents a “fair cross-section” of the community.

In a Wednesday decision, the U.S. Court of Appeals for the Ninth Circuit upheld the conviction of Salvador Hernandez-Estrada, who had challenged the constitutionality of the jury selection process used in the Southern District of California. But the panel, which took up the case at the request of Chief Judge Alex Kozinski, reversed its own 2005 precedent in concluding that the “absolute disparity test” is inappropriate in determining the fairness of a jury pool.

“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,” Circuit Judge Sidney Thomas wrote. “Instead, we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented.”

Two concurring opinions disagreed with the majority’s decision, one insisting it would cause an “avalanche of fair cross-section claims.”

An attorney for Hernandez-Estrada—Michele McKenzie, supervising attorney at Federal Defenders of San Diego Inc.—did not return a call for comment.

Kelly Thornton, a spokeswoman for the U.S. attorney’s office in San Diego, which prosecuted the case, said in an emailed statement to The National Law Journal: “We share both the District Court’s and the Ninth Circuit’s commitment to fair jury selection procedures. And we are pleased that, after carefully reviewing the jury selection procedures in this case—which were the procedures in effect in 2009—the court affirmed the conviction.”

Hernandez-Estrada, who had been deported to Mexico, was charged after being discovered illegally back in the United States in 2009. He moved to dismiss the indictment, arguing that the jury procedures in Southern District of California violated the equal-protection clause of the Fifth Amendment and the “fair cross-section” requirements of the Sixth Amendment and the Jury Selection and Service Act of 1968, because its exclusive use of registered voter rolls resulted in an underrepresentation of blacks and Hispanics.

U.S. District Judge Barry Ted Moskowitz in 2011 agreed that there were problems with the system but found that the flaws didn’t raise constitutional issues in this case. A jury convicted Hernandez-Estrada.

In 2012, a three-judge Ninth Circuit panel refused to dismiss the charges, but Kozinski, joined by Circuit Judge Paul Watford, urged en banc review of the Ninth Circuit’s precedent in United States v. Rodriguez-Lara. The court at that time called for the “absolute disparity” test in evaluating fair cross-section challenges. Other circuits, including the First and Eleventh, use the test exclusively.

In the en banc panel’s opinion, Thomas, writing for the majority, overruled Rodriguez-Lara, concluding that district courts should use the most appropriate statistical methods for each case. He concluded that smaller minority groups would be excluded from fair cross-section challenges since the test under Rodriguez-Lara defined disparities as those of 7.7 percent or greater. He noted that in 2009, for example, blacks in the district made up only 5.2 percent of the population.

“At best, the method provides a very generalized gauge of a jury pool when considering representation of groups that form a substantial portion of the community,” he wrote.

Citing flaws in other statistical tests applied in the courts, he left it for district courts to determine which analysis to use.

In a separate opinion, Circuit Judge Milan Smith, joined by Barry Silverman and Carlos Bea, wrote that the majority’s decision “needlessly raises a host of difficult questions for which there are no clear answers, and it leaves trial courts with little guidance on how to fulfill their responsibilities in such cases. The resulting legal vacuum will likely trigger an avalanche of fair cross-section claims that have almost no chance of success … but which will burden the courts for years without meaningfully improving the administration of justice.”

Circuit Judge N. Randy Smith, writing separately, said the majority should have set forth more certainty about which test should be applied.

But the en banc panel unanimously affirmed Hernandez-Estrada’s conviction after finding that the alleged violations he cited weren’t “substantial.”

Hernandez-Estrada had argued that the court dismisses a large percentage of Hispanics by using outdated English on the prospective jury questionnaire, dismissing jurors believed to speak limited English (despite their assertions otherwise on forms) and failing to return questionnaires to jurors who don’t answer questions about their race or ethnicity. He also said the Southern District of California had failed to file timely reports on juror statistics to the Administrative Office of the U.S. Courts.

Contact Amanda Bronstad at abronstad@alm.com.