Joseph Howell v. Superintendent Rockview SCI ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-1758
________________
JOSEPH HOWELL,
Appellant
v.
SUPERINTENDENT ROCKVIEW SCI;
ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY ALLEGHENY COUNTY
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-12-cv-00884)
District Judge: Honorable David S. Cercone
________________
Argued May 1, 2019
Before: RESTREPO, PORTER and FISHER, Circuit Judges.
(Filed: September 17, 2019)
Leigh M. Skipper, Chief Federal Defender
Helen Marino, First Assistant Federal Defender
Arianna J. Freeman
Loren D. Stewart [ARGUED]
Federal Community Defender Eastern District of
Pennsylvania
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Stephen A. Zappala, Jr., District Attorney
Ronald M. Wabby, Jr., Deputy District Attorney
Rusheen R. Pettit [ARGUED]
Allegheny County Office of District Attorney
436 Grant Street
Pittsburgh, PA 15219,
Counsel for Appellees
________________
OPINION OF THE COURT
________________
FISHER, Circuit Judge.
Criminal defendants are deprived of their Sixth
2
Amendment right to a jury selected from a broad representation
of the community when distinctive groups are systematically
excluded from the jury selection process. See Duren v.
Missouri, 439 U.S. 357, 363-64 (1979). Because any under-
representation in Joseph Howell’s jury pool was not caused by
a systematically discriminatory process, the District Court
properly denied his habeas petition alleging a Sixth
Amendment violation. We will affirm.
I.
Jury selection in Howell’s 2004 prosecution consisted
of two venire panels. The first included thirty-five individuals,
two of whom were black but were both excused for hardship.
The second panel included twenty-five potential jurors, all of
whom were white. Ultimately, Howell, a black man, was
convicted for the 2002 felony murder of a white man by an all-
white jury.
Prior to jury selection, Howell filed a Motion to Ensure
Representative Venire, arguing that he was entitled to a jury
pool that represented a fair cross section of the community—
Allegheny County—particularly with respect to race. The trial
court held a hearing on Howell’s allegations that black
individuals were systemically under-represented in Allegheny
County’s jury pools, during which it adopted the record from
two other cases where defendants also raised a fair-cross-
section challenge. The incorporated record included expert
testimony from Dr. John F. Karns, a sociologist, regarding the
racial statistics and demography of Allegheny County.
Dr. Karns’ testimony expounded on demographic data
gathered over a six-month period in 2001, over a ten-day
period in 2002, and from the 2000 census. The 2001 study was
based on data gathered by the firm Gentile Meinert &
Associates and interpreted by Dr. Karns. Gentile Meinert &
3
Associates provided prospective jurors (individuals who
appeared for jury selection pursuant to a summons) with a
paper survey that asked questions about their race, age, and
gender. From this study, which surveyed approximately 4500
potential jurors, Dr. Karns calculated that black individuals
made up 4.87% of Allegheny County’s jury pool. He also
found that black individuals made up 10.7% of the population
of Allegheny County eligible for jury service. Based on these
numbers, Dr. Karns concluded that “whites [were]
overrepresented” in jury pools, resulting in systematic
exclusion of “a significant number of people for a significant
time.” App. at 112, 127. Despite this conclusion, the trial court
denied Howell’s motion.
An all-white jury was impaneled and found Howell
guilty of felony murder. Howell moved for extraordinary
relief, arguing that he should be retried by a representative jury,
even if assembling the jury would require multiple venires. The
trial court denied his motion; it then sentenced Howell to a
mandatory sentence of life without parole.
Howell timely appealed to the Pennsylvania Superior
Court, which held that Howell had not been denied a trial by a
fair cross-section of the community. The Superior Court noted
Dr. Karns’ testimony,1 and identified the proper test for
determining whether a fair-cross-section violation occurred.
The court then concluded that Howell “fail[ed] to demonstrate
‘an actual discriminatory practice in the jury selection
process,’” and, therefore, held that Howell did not demonstrate
a constitutional violation. App. at 252-54 (quoting
1
The Superior Court observed Howell’s reliance on Dr. Karns’
testimony without stating whether it was reliable or making a
finding of fact about its accuracy and declined to reach the
statistical analysis.
4
Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003)).
The state court stated that, though the U.S. Supreme Court’s
test does not require a showing of discriminatory intent, it was
bound to follow Pennsylvania Supreme Court precedent,
which does require such a showing.
Howell filed a habeas petition based on six grounds,
including his fair-cross-section claim. A magistrate judge
issued a report and recommendation that assumed, without
deciding, “that the Superior Court erred in requiring [Howell]
to show discriminatory intent,” but concluded that, under de
novo review, Howell failed to establish a Sixth Amendment
violation. App. at 14-16. The magistrate judge compared the
level of racial disparity in Howell’s case to those in other cases
around the country. She concluded that, because other courts
found no constitutional violation in cases with higher
percentages of disparity than here, Howell could not establish
his claim.
The District Court adopted the magistrate judge’s report
and recommendation and denied Howell’s petition. Howell
now appeals.
II.
The District Court exercised subject matter jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254. We exercise appellate
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
The District Court did not hold an evidentiary hearing
but relied exclusively on the state court record; we therefore
undertake a plenary review of the District Court’s order
utilizing the same standard that the District Court applied.
Branch v. Sweeney, 758 F.3d 226, 232 (3d Cir. 2014).
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) dictates the parameters of our review and
5
requires us to afford considerable deference to the state court’s
legal and factual determinations. Lambert v. Blackwell, 387
F.3d 210, 234 (3d Cir. 2004). We may overturn a state-court
holding only where it “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law,” or “was based on an unreasonable
determination of the facts in light of the evidence presented.”
Id. (quoting 28 U.S.C. § 2254(d)(1)-(2)). The state court’s
factual conclusions “‘shall be presumed to be correct’ unless
the petitioner rebuts ‘the presumption of correctness by clear
and convincing evidence.’” Id. (quoting 28 U.S.C. §
2254(e)(1)).
If the state court erred, habeas relief should be granted
only if, upon de novo review, the prisoner has established that
he “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a); see also
Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010).
III.
The Sixth Amendment promises all criminal defendants
a trial by a “jury drawn from a pool broadly representative of
the community . . . as assurance of a diffused impartiality.”
Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975) (quoting
Thiel v. S. Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J.,
dissenting)). A violation of this right occurs where “jury
wheels, pools of names, panels, or venires from which juries
are drawn . . . exclude distinctive groups in the community.”
Duren, 439 U.S. at 363-64 (quoting Taylor, 419 U.S. at 538).
Howell argues that his Sixth Amendment rights were violated
by Allegheny County’s systematic exclusion of black jurors at
the time of his trial.
A.
A state-court decision is “contrary to” or an
6
“unreasonable application of” federal law if it directly conflicts
with Supreme Court precedent or reaches a different result than
the Supreme Court when presented with materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405
(2000).
In its analysis, the state court relied on its interpretation
of Pennsylvania Supreme Court precedent to determine
whether Howell established a prima facie violation of his right
to a jury composed of a representative cross-section of his
community. Quoting Commonwealth v. Estes, 851 A.2d 933(Pa. Super. Ct. 2004) (citing Johnson, 838 A.2d 663), the court
set forth the Duren standard for establishing such a violation—
that (1) an allegedly excluded group is “distinctive” in the
community; (2) the group’s representation in jury-selection
panels is not fair and reasonable in relation to the community’s
population; and (3) the group is under-represented due to its
systematic exclusion from the jury-selection process—but then
went on to state that “[p]roof is required of an actual
discriminatory practice in the jury selection process, not
merely underrepresentation of one particular group.” App. at
252-54. The state court acknowledged Howell’s argument that
he was “not required to prove discriminatory intent . . . under
Duren,” but the court concluded that “the Pennsylvania
Supreme Court has held otherwise” and that it was “bound by
[that] prior decision[].” App. at 253-54.
Irrespective of how the Superior Court reached its
conclusion, that conclusion must comport with “clearly
established Federal law as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); see also
Williams, 529 U.S. at 412 (“As the statutory language makes
clear . . . § 2254(d)(1) restricts the source of clearly established
Federal law to [the Supreme] Court’s jurisprudence.”).
Therefore, the question before us is whether the Superior
7
Court’s decision is consistent with Duren and its progeny.
Duren established a three-factor test for determining
when a fair-cross-section violation has occurred. Significantly,
that test does not include a requirement for proof of
discriminatory intent. To the contrary, the Court—in a
footnote—distinguished the Sixth Amendment claim before it
from cases brought under the Equal Protection Clause by
noting that, in the latter, a showing of discriminatory purpose
is essential, but that, in the former, “systematic disproportion
itself demonstrates an infringement.” Duren, 439 U.S. at 368
n.26.
The Commonwealth correctly notes that the Court’s
statements in a footnote are not necessarily binding authority
on habeas review because “‘clearly established Federal law’ . .
. includes only the holdings, as opposed to the dicta, of [the]
Court’s decisions.” Woods v. Donald, 135 S. Ct. 1372, 1376
(2015) (citing White v. Woodall, 572 U.S. 415, 419 (2014)).
However, Footnote 26 is not the only place in Duren where the
Court makes clear that a showing of discriminatory intent is
not required. In the body of the opinion, the Court enumerated
the three elements that a prisoner must establish to prove a
constitutional violation, thereby setting the outer parameters of
a fair-cross-section analysis, and it simply did not include
8
discriminatory intent as one of those elements.2 Therefore,
requiring a prisoner to show discriminatory intent imposes a
more stringent standard than the one articulated by the
Supreme Court. Though states may provide broader
constitutional protections than required by federal law, they
“may not impose . . . greater restrictions as a matter of federal
constitutional law when [the Supreme] Court specifically
refrains from imposing them.” Oregon v. Hass, 420 U.S. 714,
719 (1975) (emphasis omitted)).
The state court did not address the three factors
identified in the Duren test, but instead rested its decision
exclusively on Howell’s failure to identify a discriminatory
purpose. By requiring proof of this additional element, the
Superior Court imposed greater restrictions on Howell than
those required by the Supreme Court, contrary to and in an
unreasonable application of clearly established federal law.
B.
Because the Superior Court’s decision contradicts
federal law, this Court must review Howell’s claim de novo.
To establish a fair-cross-section violation, Howell must prove
that, at the time of his trial, (1) blacks were a “‘distinctive’
group in the community”; (2) “representation of [blacks] in
2
Writing in dissent, Justice Rehnquist criticized the majority
for imposing the very distinction between Equal Protection
Clause cases and Sixth Amendment cases that the Superior
Court ignores. Duren, 439 U.S. at 371 (Rehnquist, J.,
dissenting) (emphasizing that “[t]he difference [between equal
protection and Sixth Amendment cases] apparently lies in the
fact, among others, that under equal protection analysis prima
facie challenges are rebuttable by proof of absence of intent to
discriminate, while under Sixth Amendment analysis intent is
irrelevant”).
9
venires from which juries [were] selected [was] not fair and
reasonable in relation to the number of such persons in the
community”; and (3) “this underrepresentation [was] due to
systematic exclusion of [blacks] in the jury selection process.”
Duren, 439 U.S. at 364.
1. Distinctive Group
Blacks are “unquestionably a constitutionally cognizable
group.” Ramseur v. Beyer, 983 F.2d 1215, 1230 (3d Cir. 1992)
(en banc). See also United States v. Weaver, 267 F.3d 231, 239
(3d Cir. 2001) (finding that blacks are “sufficiently numerous
and distinct from others in the population” to satisfy the first
prong of the Duren test (citing Castaneda v. Partida, 430 U.S.
482, 495 (1977))).
2. Unfair and Unreasonable Representation
Howell’s claim that blacks were unfairly and
unreasonably represented in jury venires “must be supported
by statistical evidence,” beginning with the percentage of
blacks in the community at the time of his trial. Weaver, 267
F.3d at 240 (citing Duren, 439 U.S. at 364). Relying on the
2000 Census, Howell has demonstrated that 10.7% of the adult
population in Allegheny County identified as black. See
Duren, 439 U.S. at 365 (accepting census data as “prima facie
evidence of population characteristics”). This population
percentage must then be compared to the percentage of blacks
included in the jury venire to determine whether representation
was proportionately fair and reasonable. Id. at 364-67.
i. Reliability of the Data
Howell relies on the 2001 study conducted by Gentile
Meinert & Associates for his claim that blacks made up 4.87%
of jury pools. However, there is no evidence regarding how
many people received jury summonses, how many people
10
appeared for jury selection (versus the number of individuals
who received surveys), or how many people failed to fill out
the survey. Without this information, Howell’s statistical data
is not sufficiently reliable to support a finding of unfair and
unreasonable representation.3 See Weaver, 267 F.3d at 243-44.
In Weaver, this Court found that a prisoner’s figures
were too weak to support his claims where the statistician
based his conclusions only on completed and returned
questionnaires without accounting for unanswered
questionnaires. Id. The Court highlighted that, to support an
allegation of under-representation, the statistician was required
to perform one of three analyses: (1) analyze the race of every
person in the jury pool; (2) perform a sampling of the jury pool
3
Under AEDPA, the state court’s implicit and explicit factual
findings are presumed correct “if supported by the record.”
Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007); see also 28
U.S.C. § 2254(e)(1). Even if the Superior Court had implicitly
made a credibility determination regarding Dr. Karns’
testimony—which it did not, compare Campbell v. Vaughn,
209 F.3d 280, 285 (3d Cir. 2000) (finding implicit credibility
determination where Superior Court relied on the contested
testimony to conclude that defendant did not demonstrate
ineffective assistance of counsel), with App. at 252 (noting that
Howell “relies on the testimony of John F. Karns, Ph.D.,” but
then reaching its legal determination without any reference to
or reliance upon Dr. Karns’ testimony)—that determination
would be undermined by the record for the reasons we explain.
11
and then calculate the standard deviation4; or (3) account for
the statistical impact of the unreturned questionnaires. Id. at
244. Because he did not provide any of these analyses, this
Court concluded that the statistical evidence was “too weak to
support a finding of representation that is unfair and
unreasonable.”5 Id.
Howell’s statistical data suffers from the same
weaknesses we identified in Weaver. As in Weaver, Dr. Karns
4
“Standard deviation” is often confused with the similar, but
distinct, calculation of “standard error.” See Douglas G.
Altman & J. Martin Bland, Statistics Note, Standard Deviation
and Standard Errors, 331 Brit. Med. J. 903 (2005). As called
for in Weaver, reliable data requires a standard deviation
calculation if the entire population is not accounted for, which
“indicates how accurately the mean represents sample data.”
Dong Kyu Lee et al., Standard Deviation and Standard Error
of the Mean, 68 Korean J. Anesthesiology 220 (2015); see also
Weaver, 267 F.3d at 238 n.6 (requiring calculation of the
standard deviation “because it establishes the probability that a
sample taken from the jury wheel accurately reflects the
composition of the entire wheel”).
5
The Court also noted that discrepancies in the statistician’s
testimony, wherein he consistently claimed to have examined
the entire master wheel even though he did not account for
unreturned surveys, “further undermine[d] the strength of the
evidence.” Weaver, 267 F.3d at 243-44.
12
did not analyze the racial makeup of the entire jury venire.6
Though approximately 4500 individuals were given surveys
over a six-month period, Dr. Karns’ analysis did not take the
unanswered surveys into consideration, which significantly
weakens the reliability and influence of the statistical data. Id.
at 244. As Dr. Karns acknowledged, if a higher percentage of
blacks failed to answer the survey than whites, the results of
the survey would be “skewed.” App. at 131. However, Dr.
Karns does not know how many surveys omitted responses to
certain questions or went unanswered entirely, let alone the
race of the individuals who chose not to answer them. Because
of this missing data, it is not possible to now calculate the
standard deviation or account for the significance of
unanswered surveys, as we require.
Howell claims that Dr. Karns’ data does satisfy Weaver
because he conducted a validity analysis known as the “Z-
statistic,” which Howell claims is “akin to standard deviation,”
and concluded that the chances of his conclusion that blacks
were under-represented being incorrect “are about four in
10,000.” Reply Br. at 13 (quoting App. at 112). However, the
purpose of the “Z-statistic” is simply to determine the “risk of
being wrong” about a hypothesis. App. at 112. Here, Dr.
Karns’ starting hypothesis was “that there are too few African-
Americans” in jury pools. Id. However, Dr. Karns did not
6
In addition to acknowledging that he had “no idea” whether
every potential juror filled out the survey, App. at 117—and it
would be illogical to believe that each person did—Dr. Karns
also testified that jurors who were originally assembled in civil
court assignment rooms but were later brought to criminal
court were not surveyed. Therefore, we can conclude without
speculation that Dr. Karns’ analysis failed to account for every
member of the venire.
13
provide any analysis to explain how a low likelihood of this
hypothesis being incorrect sufficiently demonstrates that his
statistical representations are reliable, particularly in light of
the unaccounted for, unanswered surveys. For instance, it
could certainly be true that blacks appear on jury pools less
often than we would statistically expect, but that the degree of
under-representation does not rise to the level of a
constitutional violation. Dr. Karns’ Z-statistic analysis
regarding the accuracy of his general hypothesis cannot
substitute a standard deviation calculation, which is an inquiry
into the reliability of the statistics he presented and is required
by our precedent.
Because Howell’s statistical data fails to account for the
entire jury venire using one of the statistical methodologies
approved by this Court, it is “too weak to support a finding of
representation that is unfair and unreasonable.” Weaver, 267
F.3d at 244.
ii. Significance of the Data
Even if Howell had provided reliable data, courts
around the nation, including our own, have found that
representation was not unfair or unreasonable with disparity
levels greater than or similar to those presented here.
To determine the significance of the statistical evidence,
we must compare the population percentage (10.7%) with the
jury venire percentage (4.87%). This Court has relied on two
methods of statistical analysis to determine the significance of
14
the disparity between the percentages: absolute disparity7 and
comparative disparity.8 Weaver, 267 F.3d at 241; Ramseur,
983 F.2d at 1233-35.
The absolute disparity in this case, 5.83%, is lower than
or similar to absolute disparities in other cases where courts
have found no constitutional violation, and in fact, numerous
courts have noted that an absolute disparity below 10%
generally will not reflect unfair and unreasonable
representation. See United States v. Shinault, 147 F.3d 1266,
1273 (10th Cir. 1998) (noting that courts of appeals “generally
are reluctant to find [unfair and unreasonable representation]
when the absolute disparities are less than 10%”); see also,
7
Absolute disparity reflects the difference in the percentage of,
in this case, blacks in the general voting-age population and in
the jury venire: 10.7% (population percentage) - 4.87% (venire
percentage) = 5.83% (absolute disparity). This absolute
disparity reflects that, in a jury pool of one hundred people,
approximately six fewer black people would be in the pool than
statistically expected.
8
Comparative disparity “measures the decreased likelihood
that members of an underrepresented group will be called for
jury service” relative to what would be expected given the
percentage of the general population that group comprises.
United States v. Shinault, 147 F.3d 1266, 1272 (10th Cir. 1998)
(emphasis in original) (cited by Weaver, 267 F.3d at 241-42).
This is calculated by dividing the absolute disparity by the
population percentage: 5.83% (absolute disparity) ÷ 10.7%
(population percentage) = 54.49% (comparative disparity).
This comparative disparity reflects that, at the time of Howell’s
trial, blacks were 54.49% less likely to be on venires than if the
representation was directly proportional to their population in
the County.
15
e.g., Thomas v. Borg, 159 F.3d 1147, 1151 (9th Cir. 1998) (5%
absolute disparity insufficient even though no blacks were on
jury panel); United States v. Gault, 141 F.3d 1399, 1402-03
(10th Cir. 1998) (3.19%, 5.74%, and 7.0% absolute disparities
insufficient); United States v. Pion, 25 F.3d 18, 23 (1st Cir.
1994) (3.4% absolute disparity insufficient); Ramseur, 983
F.2d at 1232 (absolute disparity of 14.1% “borderline”);
United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982)
(2.8%, 4.7%, and 7.7.% absolute disparities insufficient).
Likewise, courts have found that comparative
disparities similar to the comparative disparity in this case,
54.49%, were insufficient to demonstrate unfair and
unreasonable representation. See, e.g., United States v.
Chanthadara, 230 F.3d 1237, 1257 (10th Cir. 2000) (finding
comparative disparity of 40.89% insufficient where the
distinctive group represented 7.9% of the population); United
States v. Clifford, 640 F.2d 150, 155-56 (8th Cir. 1981)
(finding comparative disparity of 46% insufficient where the
group represented 15.6% of the population). But see LaRoche
v. Perrin, 718 F.2d 500, 502-03 (1st Cir. 1983) (holding that a
prima facie challenge was established where the comparative
disparity was 68.22% and the group comprised 38.4% of the
population), overruled on other grounds by Barber v. Ponte,
772 F.2d 982 (1st Cir. 1985).
When compared to factually similar cases, the absolute
and comparative disparities reflected in this case do not make
a prima facie showing of unconstitutional under-
representation.
3. Systematic Exclusion
If Howell’s claims were supported by reliable statistical
evidence, to prove a cross-section violation, Howell would
need to show that the under-representation of blacks in jury
16
pools is “due to systematic exclusion in the jury selection
process.” Weaver, 267 F.3d at 244 (citing Duren, 439 U.S. at
366). In Duren, the Supreme Court found systematic exclusion
where a state law permitted women to exclude themselves from
jury selection simply because of their gender. 439 U.S. at 367.
Unlike in Duren, where the system that caused the under-
representation—a state statute—was readily apparent, there is
no identifiable cause for the under-representation of blacks in
jury venires in Allegheny County. Therefore, to demonstrate
“systematic exclusion,” Howell must show “a large
discrepancy over time such that the system must be said to
bring about the underrepresentation.” Weaver, 267 F.3d at 244.
We consider the nature of the system, length of time studied,
and “efforts at reform to increase the representativeness of jury
lists” in determining whether the jury selection system caused
the under-representation. Ramseur, 983 F.2d at 1234-35.
i. Nature of the System
A selection process that is facially neutral is unlikely to
demonstrate systematic exclusion. See Ramseur, 983 F.2d at
1235. In Ramseur, we concluded that the selection process was
facially neutral because the pool of jurors (the “Master List”)
was composed of names from both the voter registration and
Department of Motor Vehicles lists, and, therefore, did not
preference any particular age, gender, or race. Id. Likewise, at
the time of Howell’s trial, the Master List consisted of names
from Allegheny County’s list of registered voters and the
Pennsylvania Department of Transportation’s driving records.
Howell does not contest the propriety of Allegheny County’s
method for compiling its Master List, and these parallels
demonstrate that the nature of the system was facially neutral.
17
ii. Length of Time Studied
Even assuming that Howell’s data was based on a
reliable study, that study must have demonstrated ongoing
discrimination over a sufficient period of time. In Ramseur,
this Court held that a study conducted over the course of two
years was not sufficient to show a history of abuse that would
reflect a systematic exclusion. 983 F.2d at 1235. Howell seeks
to distinguish the six-month study in this case from Ramseur
by noting that, in Duren¸ the underlying study lasted for only
eight months.9
Howell cannot distinguish his case from Ramseur by
relying on the eight-month study in Duren because the
problematic system there—a gender-based exemption
statute—was readily identifiable and undisputed. Duren, 439
U.S. at 367. Additionally, unlike here, where the data reflects
an amalgamation of the racial makeup of jury pools over the
six-month period, Duren undisputedly demonstrated “that a
large discrepancy occurred not just occasionally but in every
weekly venire for a period of nearly a year.” Id. at 366. The
Supreme Court emphasized that this repeated, perpetual under-
representation “manifestly indicate[d] that the cause of the
under-representation was systematic.” Id. Howell’s evidence is
not similarly specific and does not support a conclusion that
the under-representation was occurring in every, or even nearly
9
On appeal, Howell also points to media reports and studies
regarding racial under-representation that began in 2002;
however, these studies were not part of the record before the
state court, and we cannot consider them. See S.H. ex rel.
Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 267 n.27 (3d
Cir. 2013) (refusing to consider evidence offered for the first
time on appeal).
18
every venire for a substantial period of time.
iii. Efforts to Reform
Where the government is engaged in on-going efforts to
improve the representativeness of jury lists, it is less likely that
the data reflects that under-representation is due to a systematic
exclusion in the jury process. Ramseur, 983 F.2d at 1235. We
presume that the process is legitimate where the government’s
efforts seem likely to create a representative jury, even if the
statistical evidence demonstrates that the pool is “not
representative enough.” Id.
At the time of Howell’s trial, Allegheny County was
unable to say whether there was a representation problem with
its Master List because its records did not reflect the races of
potential jurors. Around 2002, to remedy the risk of under-
representation, the Court Administration Office revised its
eligibility questionnaire to include questions regarding race,
age, and gender so that it could better understand whether a
particular group was over-represented or under-represented.
Allegheny County additionally implemented procedures to
follow up on unreturned questionnaires, ensure that the Master
List reflects up-to-date addresses, and encourage individuals to
respond to jury summonses. According to the Court
Administration Office, each of these actions was implemented
to better ensure proportionate representation. These laudable
remedial actions warrant “some presumption of [the jury
system’s] legitimacy,” Ramseur, 983 F.2d at 1235, and reflect
that Allegheny County’s processes were not systematically
exclusive.
IV.
Though the Pennsylvania Superior Court misapplied the
Supreme Court’s precedent in denying Howell’s Sixth
Amendment claim, on de novo review, we find that Howell
19
failed to show that Allegheny County’s jury selection
processes systematically excluded black jurors. We will
therefore affirm the District Court’s denial of habeas relief.
20
PORTER, Circuit Judge, concurring.
I join the majority in holding that Joseph Howell failed
to satisfy the second and third requirements of Duren v.
Missouri, 439 U.S. 357 (1979). But I reach that conclusion
slightly differently. On Duren’s second prong, I would avoid
the soundness-of-the-statistics debate for a simple reason: even
assuming arguendo that Howell’s statistics are
methodologically sound, the disparity figures are within the
range that we have held constitutionally permissible. So I
would hold that Howell fails Duren’s second requirement on
that basis. On Duren’s third requirement, I agree with the
majority’s analysis. But I supplement it to underscore that
Allegheny County’s jury-selection system goes above and
beyond what is constitutionally required, so there cannot be
systematic exclusion.
To satisfy Duren’s second requirement, a defendant
must show that “the representation of [an underrepresented
distinctive] group in jury venires is not ‘fair and reasonable’ in
relation to the number of such persons in the community.”
United States v. Weaver, 267 F.3d 231, 237 (3d Cir. 2001)
(citing Duren, 439 U.S. at 364). As the majority observes, two
statistical measurements drive this analysis: absolute disparity
and comparative disparity. We consider both of these disparity
measures, which makes us something of an outlier. See Nancy
Gertner, et al., The Law of Juries § 2.11 (10th ed. 2018) (noting
that while “[t]he Supreme Court has not mandated the use of
one approach over another,” in practice, “[m]ost [courts] have
rejected comparative disparity analysis”).
Howell’s statistics show an absolute disparity of 5.83%,
which is easily within the range typically found
constitutionally permissible. As the leading treatise
1
summarizes, “[m]any courts have adopted a threshold of 10%
absolute disparity.” Gertner, § 2.12. We have followed this
trend, marking the threshold a smidge higher. See Ramseur v.
Beyer, 983 F.2d 1215, 1232 & n.18 (3d Cir. 1992) (“Courts
addressing the question of whether a given absolute disparity
constitutes ‘substantial underrepresentation’ have held that
absolute disparities between 2.0% and 11.5% do not constitute
substantial underrepresentation.” (quoting Castaneda v.
Partida, 430 U.S. 482, 494 (1977))). So the absolute disparity
of 5.8% in this case is constitutionally permissible under
authorities from this and other courts.
This means that Howell must rely on comparative
disparity to satisfy Duren’s second prong. This is a much closer
question. Under our precedents, the comparative disparity of
54.5% shown here is troubling. Ramseur, 983 F.2d at 1232
(describing “a comparative disparity of about 40%” as
“borderline” but ultimately rejecting prima facie case); see also
Weaver, 267 F.3d at 243 (describing comparative disparity
figures of 40.01% for blacks and 72.98% for Hispanics as
“quite high,” but qualified that the figures were of limited value
because both groups formed “a small percentage of the
population”). But we have never held that a high comparative
disparity is itself sufficient to satisfy Duren’s second prong.
And indeed, other courts have rejected fair-cross-section
challenges involving comparative disparities higher than (or
similar to) the one here.1 So the comparative-disparity figure
1
See, e.g., United States v. Shinault, 147 F.3d 1266, 1273 (10th
Cir. 1998) (permitting comparative disparities of “48%, 50%,
and almost 60%”); United States v. Chanthadara, 230 F.3d
1237, 1257 (10th Cir. 2000) (permitting “a comparative
disparity of 58.39%”); United States v. Sanchez, 156 F.3d 875,
2
in this case—while high—is not enough to satisfy Duren’s
second prong.
Turning to Duren’s third requirement, Howell must
show “the underrepresentation is caused by the ‘systematic
exclusion of the group in the jury selection process.’” Weaver,
267 F.3d at 237 (quoting Duren, 439 U.S. at 364). On this
point, I am puzzled by the dissent’s insistence that the County’s
system is constitutionally deficient.
The County’s two-track method of selecting jurors is
structurally sound. It first draws names from voter-registration
lists. It then supplements this by pulling additional names from
motor-vehicle records. If anything, the County’s system goes
above and beyond what is required, as courts have consistently
held that using voter-registration lists alone is sufficient.2 “Not
879 & n.4 (8th Cir. 1998) (acknowledging a comparative
disparity of 58.3%, but declining to address statistics at all to
“simply hold that when jury pools are selected from voter
registration lists, statistics alone cannot prove a Sixth
Amendment violation”); Hafen, 726 F.2d at 23–24 (permitting
comparative disparity of 54.2%); United States v. Sanchez-
Lopez, 879 F.2d 541, 548–49 (9th Cir. 1989) (permitting
comparative disparity of 52.9%); United States v. Orange, 447
F.3d 792, 798–99 (10th Cir. 2006) (permitting comparative
disparity of 51.22%).
2
United States v. Guzman, 468 F.2d 1245, 1247–49 (2d Cir.
1972) (approving the use of voter-registration lists as the sole
source of names for jury selection); United States v. Odeneal,
517 F.3d 406, 412 (6th Cir. 2008) (approving jury
administrator’s use of voter-registration lists, noting these “are
the presumptive statutory source for potential jurors”) (citing
3
only has the use of the voter registration lists been uniformly
approved by the Court[s] of Appeals as the basic source for the
jury selection process … Congress specifically approved the
use of such lists even though it was recognized that persons
who chose not to register would be excluded from the jury
selection process.” United States v. Cecil, 836 F.2d 1431, 1448
(4th Cir. 1988) (citing 28 U.S.C. § 1863(b)(2)). In fact, the
County’s two-track system here is strikingly similar to the one
we upheld in Ramseur. 983 F.2d at 1233 (noting that the
“mechanism used to create the source lists was facially neutral
with respect to race,” as the New Jersey county in question
“utilized voter registration and Department of Motor Vehicle
lists to create its jury venire”).
Unsurprisingly, then, the dissent cites no case in which
a hybrid system like this one—i.e., voter-registration lists
supplemented with motor-vehicle records—has been held to
systematically exclude a distinctive group. In dicta, we have
speculated “that if the use of voter registration lists over time
did have the effect of sizeably underrepresenting a particular
class or group on the jury venire, then under some
circumstances, this could constitute a violation of a defendant’s
fair cross-section rights under” the Sixth Amendment. Weaver,
267 F.3d at 244–45 (internal quotation marks and citation
omitted). But that theoretical possibility was not the reality in
Weaver, as “nothing in the record” showed persistent
systematic exclusion of minority jurors. Id. at 245. And
28 U.S.C. § 1863(b)); United States v. Greatwalker, 356 F.3d
908, 911 (8th Cir. 2004) (finding no systematic exclusion from
jury selection plan that draws its pools of prospective jurors
randomly from lists of persons who voted in the last
presidential election).
4
whatever the merits of that theoretical possibility, we have
never invoked it to hold that a hybrid system like this one
systematically excluded a distinctive group. Given that
Congress has made voter-registration lists the presumptive
source for selecting jurors, such a holding could imperil juror-
selection methods across many jurisdictions.
In support of systematic exclusion, Howell argues that
the County’s problems with “non-representative jury venires
were widely known well before” Howell’s trial, largely
because the County and some academics studied it. Appellant’s
Br. 36–39. This is weak tea. The fact that the County studied
this issue does not show that the County knew its selection
system was constitutionally unsound; rather, it may simply
show that the County was responsibly trying to determine the
system’s soundness or seeking to improve (already
constitutionally sufficient) representation. In Ramseur, we
viewed a New Jersey county’s efforts to diversify jury venires
just this way, approvingly noting the county’s “efforts at
reform to increase the representativeness of jury lists.” 983
F.2d at 1235. Howell’s inferences, by contrast, would
perversely punish the County for its salutary reform efforts.
In sum, if the County used only voter-registration lists
to assemble the jury venire, it would be employing a method
widely upheld as constitutional by the courts of appeals and
statutorily prescribed by the Jury Selection and Service Act. 28
U.S.C. §§ 1861–78. By supplementing this method with
motor-vehicle records, the County goes beyond this widely
approved method to mirror the system upheld in Ramseur.
Howell has not suggested how the County could improve upon
this system and I see no constitutional requirement for it to do
so.
5
RESTREPO, Circuit Judge, concurring in part and dissenting
in part.
I join the majority opinion only with respect to Part
III.A, in which the majority holds that we are not required to
accord deference under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) to the legal conclusions of the
Pennsylvania Superior Court because that court’s decision was
contrary to, or involved an unreasonable application of, clearly
established federal law. I respectfully dissent from the
remainder of the majority opinion because, in my view, Howell
has established a prima facie violation of his Sixth Amendment
right to have his petit jury drawn from a fair cross-section of
the community, and I would reach the merits of his fair-cross-
section claim because the Commonwealth has presented no
evidence to rebut Howell’s statistical analysis or the
qualifications of his expert witness. The majority, however,
lends undue credence to the Commonwealth’s speculative
attack on the reliability of Howell’s statistics and, in the
process, sets forth a new standard of statistical purity that will
foreclose nearly all fair-cross-section claims. And with respect
to the merits of Howell’s fair-cross-section claim, the majority
and concurring opinions interpret the case law in a way that
deprives the Sixth Amendment of any power to provide a
remedy in cases where a distinctive group that constitutes less
than 10% (or, for the concurrence, 11.5%) of the population is
systematically excluded from serving on venires, even if the
entire group is completely excluded from venire service. Such
an interpretation simply cannot be an accurate statement of the
law.
1
I.
Howell presented evidence that black persons
constituted 10.7% of the jury-service-eligible population of
Allegheny County in the early 2000s but merely 4.87% of
persons serving on venires during the same period. Thus,
according to Howell’s evidence, black persons in Allegheny
County were underrepresented on venires by approximately
54.49%. Put another way, it appears that over half of
Allegheny County’s black jury-service-eligible population—a
significant population of nearly 110,000 people—was
excluded from serving on venires.
Rather than discussing these troubling statistics at
length, the majority simply attacks their reliability. In so
doing, the majority misapplies our precedent in United States
v. Weaver, 267 F.3d 231 (3d Cir. 2001), and, as a result, sets a
new bar for statistical reliability that almost no litigant in a fair-
cross-section case will be able to satisfy.1
1
Independently, the Court also may lack authority
under AEDPA to probe into the reliability of Howell’s
statistics in the first place. Pursuant to AEDPA, in a section
2254 proceeding such as this one, “a determination of a factual
issue made by a State court shall be presumed to be correct.”
28 U.S.C. § 2254(e)(1). Both implicit and explicit factual
findings are presumed to be correct under section 2254(e)(1).
Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007). Two of the
three judges on the panel of the Superior Court appear to have
reached their decisions by taking Howell’s statistical evidence
at face value, which, in my opinion, may constitute an implicit
factual finding that is entitled to the “presumption of
correctness” under section 2254(e)(1). See App. 258.
2
The majority reads Weaver as requiring all litigants
asserting fair-cross-section claims to either (1) produce
documentary evidence that they conducted a complete census
of the races of every single individual in the relevant jury pool
(e.g., every person on the “master wheel” or venire), or (2)
perform sampling of the jury pool “and then calculate the
standard deviation,” or (3) “account for the statistical impact”
of persons in the jury pool who were not surveyed or studied.
267 F.3d at 244. This reading of Weaver disregards the
specific context of that case. In Weaver, the demographer who
provided expert testimony regarding the racial makeup of the
“master wheel” in the Erie Division of the Western District of
Pennsylvania purported to have studied all persons on the
“master wheel,” on which 5,877 persons were listed. See id. at
243. Our Court determined, however, that the demographer
“based his testimony on the returned questionnaires,” of which
there were only 4,753. Id. Thus, in Weaver, concrete
evidence—figures that demonstrated with specificity that
1,124 persons, or over 19%, of the relevant jury pool were not
included in the study—effectively impeached the
demographer’s testimony that he had studied all persons in the
jury pool. Consequently, because the demographer did not—
either quantitatively or qualitatively—account for the glaring
discrepancy in his testimony, our confidence in the reliability
of his statistics was undermined.
Placed in context, Weaver stands for the proposition that
“the strength of [a litigant’s statistical] evidence” is
“undermined” when (1) the state produces concrete evidence
that the petitioner’s expert did not study all persons in the
relevant jury pool and (2) the expert neither (A) “perform[ed]
sampling” of the jury pool “and then calculate[d] the standard
3
deviation” nor (B) “account[ed] for the statistical impact of”
unstudied or uncounted persons in the jury pool. Id. at 244.
Here, there is no such concrete evidence that Howell’s
expert failed to study all persons on the venires during the six-
month study period—there is only speculation. Despite its
failure to substantively challenge the reliability of Howell’s
statistics or the qualifications of Howell’s expert in any of the
state-court proceedings below, the Commonwealth, in its brief,
now argues that the Court should disregard Howell’s statistical
evidence solely because his expert, Dr. John F. Karns, Ph.D.,
“did not know if every individual [in the studied venires]
complied with the request to fill out the questionnaire[s].”
Appellee’s Br. 15. The Commonwealth presents no evidence
regarding the number of veniremembers who allegedly did not
return the questionnaires; it merely speculates that there could
have been veniremembers who did not return the
questionnaires.
For the majority, mere speculation of this nature is
sufficient to defeat Howell’s Sixth Amendment fair-cross-
section claim. This holding—that the state can defeat a fair-
cross-section claim simply by speculating, with no evidentiary
support, that a habeas petitioner’s statistics may be flawed—
transforms the modest holding in Weaver regarding statistical
reliability into a holding that dramatically heightens the burden
of proof in fair-cross-section cases. In effect, the majority
holds that, to state a Sixth Amendment fair-cross-section
claim, a litigant must produce unassailable proof that she
conducted a complete census of every single member of the
relevant jury pool; if the state simply speculates that certain
members of the jury pool may have been excluded from the
study, and even if the state provides zero evidence to that
4
effect, the litigant’s fair-cross-section claim fails unless certain
limited conditions are met.
The majority also takes a severely constrained view
with respect to what evidence can satisfy such limited
conditions and requires Howell to produce evidence that is
wholly irrelevant to its inquiry into the reliability of his
statistics. Relying on its reading of Weaver, the majority holds
that because Howell’s statistical analysis is fundamentally
undermined by the Commonwealth’s speculation regarding the
potential existence of unstudied veniremembers,2 Howell’s
claim may only survive if he either (1) “calculate[s] the
standard deviation” or (2) “account[s] for the statistical impact
of . . . unreturned questionnaires.” Howell has produced
evidence that satisfies both of these conditions, even assuming
that both conditions are relevant. Regarding the “significance
of unanswered surveys,” the only concrete evidence in the
record that indicates that certain veniremembers were omitted
2
As an ancillary matter, the majority also holds
that Howell’s statistical evidence is undermined by the fact that
“there is no evidence regarding how many people received jury
summonses.” It is unclear how information with respect to
“how many people received jury summonses” is relevant to
Howell’s claim because his claim is based on the composition
of the venires—the persons who actually appeared for jury
service—in Allegheny County, a type of claim that has long
been recognized as cognizable by the Supreme Court. See,
e.g., Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (“[T]he
jury wheels, pools of names, panels, or venires from which
juries are drawn must not systematically exclude distinctive
groups in the community and thereby fail to be reasonably
representative thereof.” (emphasis added)).
5
from the study is that “a very small number” of “surveys
contain[ed] incomplete information.” App. 118. Dr. Karns
explicitly testified as to the statistical impact of these
incomplete surveys on his results: the number of such surveys
was “so small that it [did] not change [his] opinion.” Id. at 128.
Thus, Howell has accounted for the only concrete evidence in
the record that his statistical analysis may be based on less than
complete information, and, therefore, Howell has satisfied one
of the majority’s requirements.
Regarding the majority’s requirement that Howell
calculate the standard deviation, it is not clear to me how
calculation of the standard deviation relates to the question that
the majority seeks to answer: How do (potentially)
unaccounted-for veniremembers affect the reliability of
Howell’s statistical analysis? “[S]tandard deviation is a
measure of [the] variability . . . of the population from which
[a] sample was drawn.”3 In other words, standard deviation is
an expression of “how widely scattered some measurements
[of a population] are.”4 For example, students who score a 141
on the LSAT have scores that are one standard deviation from
3
Douglas G. Altman & J. Martin Bland, Statistics
Note, Standard Deviations and Standard Errors, 331 Brit.
Med. J. 903 (2005), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC1255808/pdf/bmj33100903.pdf (emphasis
added).
4
Id.
6
the mean score of 151.5 But the fact that one standard deviation
is equivalent to approximately 10 points in the context of the
distribution of LSAT scores tells us nothing about the
statistical reliability of the analysis conducted by the Law
School Admission Council—it only tells us how the scores are
distributed on a curve. It appears to me that the majority
actually desires a calculation of the “standard error,” which
“indicates the uncertainty around the estimate of the mean” due
to, among other things, sampling errors.6 “The terms ‘standard
error’ and ‘standard deviation’ are often confused.”7 The
former concept, standard error, concerns the reliability of
Howell’s statistics, which statistics indicate that over the
course of the study period, a mean of 4.87 black persons served
on every venire of 100 persons; standard error would tell us
how confident we should be that the mean of 4.87 is an
accurate figure. In requiring that Howell instead calculate the
standard deviation, the majority perpetuates an error of
terminology first committed by our Court in Weaver. See 267
F.3d at 244 (“In order to support Weaver’s allegation of
underrepresentation on the master wheel, [his expert] would
have had to . . . calculate the standard deviation . . . .”). Thus,
5
See Memorandum from Lisa Anthony, Senior
Research Assoc., Law Sch. Admission Council, to LSAT
Score Recipients 2 (June 20, 2017),
https://www.lsac.org/sites/default/files/legacy/docs/default-
source/data-%28lsac-resources%29-docs/lsat-score-
distribution.pdf.
6
Altman & Bland, supra note 3.
7
Id.
7
the majority requires Howell to produce evidence that is not at
all relevant to probing the reliability of his statistics.8
8
If, however, the majority truly desires a
calculation of the standard deviation—which is irrelevant for
the reasons stated above—Howell has produced equivalent
statistical evidence. Dr. Karns used a “difference-of-
proportion test” by calculating a “Z-statistic,” App. 112, and
then calculating what social scientists refer to as a “P value,”
which is a “statistical summary of the compatibility between
the observed data and what we would predict or expect to see
if we knew the entire statistical model.” Sander Greenland et
al., Statistics Tests, P Values, Confidence Intervals, and
Power: A Guide to Misinterpretations, 31 Eur. J.
Epidemiology 337, 339 (2016). Put differently, a P value “can
be viewed as a continuous measure of the compatibility
between the data and the entire model used to compute it,
ranging from 0 for complete incompatibility to 1 for perfect
compatibility.” Id. Similar to the way that standard deviation
indicates the variance within a population, a P value indicates
the variance between observed data and the data that we would
expect to observe. Here, for instance, we would expect that the
percentage of black persons serving on venires in Allegheny
County would mirror the black jury-service-eligible population
of Allegheny County as a whole (10.7%). As Dr. Karns
observed, however, black persons constituted merely 4.87% of
persons serving on venires. That observed data (4.87%) varies
widely from the expected data (10.7%), resulting in a P value
of .0004 according to Dr. Karns, which closely nears complete
incompatibility. See App. 112 (characterizing the “chances of
being wrong in stating that there are too few African[
]Americans” as “about four in 10,000”). Statisticians often
8
Further, standing alone, the sample size of the study
upon which Howell relies indicates that Howell’s statistics are
reliable. Approximately 4,500 persons were surveyed in
connection with the study. Unrebutted expert testimony in this
case establishes that a “sample of 4[,]500 is relatively large.”
App. 119. Because the sample in this case was so large, the
standard error necessarily is small because “[t]he standard
error falls as the sample size increases, as the extent of
variation is reduced.”9 By questioning the reliability of the
statistics resulting from such a large sample size and by
emphasizing the alleged importance of surveying every single
member of venires without exception, the majority undermines
the very concept of sampling in Sixth Amendment challenges.
In sum, the majority opinion sets forth a new standard
of statistical purity that appears to be unattainable for nearly all
litigants—and particularly for habeas petitioners—in fair-
cross-section cases. Litigants are required to present statistical
evidence to support fair-cross-section claims. See Duren v.
Missouri, 439 U.S. 357, 364 (1979). If the state can
fundamentally undermine a litigant’s statistical analysis with
mere speculation that her statistics are unreliable, nearly all
characterize P values in terms of “the probability that chance
alone produced the observed association.” Greenland et al.,
supra, at 340. Thus, if the majority desires statistical evidence
regarding variance—which is what standard deviation
expresses—Howell has provided such evidence to the Court in
the form of a P value.
9
Altman & Bland, supra note 3.
9
force has been drained from the Sixth Amendment’s fair-cross-
section requirement.
II.
Accepting the reliability of his statistical evidence,
Howell, in my view, has satisfied both the second and third
prongs of the test espoused by the Supreme Court in Duren v.
Missouri, 439 U.S. at 364;10 namely, he has demonstrated that
(A) “the representation” of black persons “in venires from
which juries are selected is not fair and reasonable in relation
to the number of such persons in the community” and (B) “this
underrepresentation is due to the systematic exclusion of this
group in the jury-selection process.”
A.
Howell has demonstrated that black persons in
Allegheny County were underrepresented on venires by
approximately 54.49% in the early 2000s. This rate of
underrepresentation simply cannot be “fair and reasonable”
under Duren.
“[N]either Duren nor any other decision of th[e
Supreme] Court specifies the method or test courts must use to
measure the representation of distinctive groups in jury pools.”
10
As the majority recognizes, Howell undoubtedly
has satisfied Duren’s first prong, which requires him to
demonstrate that black persons are “a ‘distinctive’ group in the
community.” Duren, 439 U.S. at 364; see also Ramseur v.
Beyer, 983 F.2d 1215, 1230 (3d Cir. 1992) (en banc) (holding
that black persons are “unquestionably a constitutionally
cognizable group”).
10
Berghuis v. Smith, 559 U.S. 314, 329 (2010). Our Court
previously has utilized “absolute disparity” and “comparative
disparity” to analyze the merits of fair-cross-section claims.
Weaver, 267 F.3d at 241 & n.11. “Absolute disparity” is the
“difference between [(x)] the percentage of a certain
population group eligible for jury duty and [(y)] the percentage
of that group who actually appear in the venire.” Ramseur v.
Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (en banc).
“Comparative disparity is calculated by dividing [(x)] the
absolute disparity by [(y)] the population figure for a
population group.” Id. Although “both methods have been
criticized,” Weaver, 267 F.3d at 242, we have held that “figures
from both methods inform the degree of underrepresentation,”
and we “examine and consider the results of both in order to
obtain the most accurate picture possible,” id. at 243.
The comparative disparity in this case is 54.49%, while
the absolute disparity in this case is 5.83%. The
Commonwealth argues that analysis of the absolute disparity
is the “starting place” when considering a fair-cross-section
challenge and that, given the absolute-disparity figure in this
case, it also should be the ending place for Howell’s fair-cross-
section claim. Appellee’s Br. 19. Relying on dicta in our
decision in Ramseur v. Beyer, 983 F.2d 1215, the
Commonwealth argues that “[a]bsolute disparities between
2.0% and 11.5% have not constituted substantial
underrepresentation” and that, “[t]herefore, under applicable
precedent, an [a]bsolute [d]isparity of 5.83% is statistically
insufficient to demonstrate a prima facie showing of a Sixth
Amendment violation.” Appellee’s Br. 20 (emphasis omitted).
This argument not only disregards our Court’s observation that
“[o]ur precedent does not dictate that one method of statistical
analysis should be used rather than another,” Weaver, 267 F.3d
11at 241, but also misapprehends what the absolute-disparity
figure captures. Viewed in isolation, an absolute-disparity
figure lacks any meaning because the same absolute-disparity
figure can imply drastically different levels of
underrepresentation in two distinct populations.
For example, if, as the Commonwealth seems to
suggest, an absolute disparity of over 11.5% is required for a
litigant to state a Sixth Amendment fair-cross-section claim,
Howell would never be able to state a fair-cross-section claim;
the black jury-service-eligible population of Allegheny County
is 10.7%, and thus the maximum absolute disparity in Howell’s
case is 10.7%, which assumes the complete exclusion of black
persons from service on venires (i.e., a comparative disparity
of 100%). By contrast, in Philadelphia County, for example,
which has a black population of approximately 43.4%, an
absolute disparity of 11.5% would equate to
underrepresentation of black persons on venires at a rate (and
a comparative disparity) of 26.5%, raising much fewer
constitutional concerns. It approaches absurdity to argue that
the entire black population of Allegheny County could be
excluded from serving on venires without violating the
Constitution simply because a single metric—absolute
disparity—is not high enough, without reference to any other
factors.
But the majority and concurring opinions adopt
precisely that argument. The majority holds that “an absolute
disparity below 10% generally will not reflect unfair and
unreasonable representation.” The concurrence takes this line
of argument even further, framing an absolute disparity of 10%
as a “threshold” matter and implying that this Court has set the
“threshold” at the even higher figure of 11.5%. By definition,
12
the absolute disparity in a given case can only be as high as the
percentage of the population that a distinctive group
constitutes. If a litigant must present evidence of an absolute
disparity of 10% (or, for the concurrence, 11.5%) as a
“threshold” matter to state a fair-cross-section claim, then
litigants, as a matter of law, cannot state fair-cross-section
claims if the distinctive group that they allege was
systematically excluded from serving on venires constitutes
less than 10% (or 11.5%) of the population because, in such a
case, even complete exclusion of such a group would not result
in an absolute disparity of 10% (or 11.5%). In essence, the
majority and concurring opinions hold that the Sixth
Amendment provides no remedy for complete, systematic
exclusion of distinctive groups in the community if those
groups constitute less than 10% (or 11.5%) of the population.
Both the majority and concurring opinions also
misunderstand the interaction between absolute disparity and
comparative disparity. Analyzing the absolute disparity and
comparative disparity in a case is not an either-or proposition:
“figures from both methods inform the degree of
underrepresentation.” Id. at 243 (emphasis added). We look
at both figures because comparative disparity is a dependent
variable—in fact, absolute disparity is the numerator in the
formula used to calculate comparative disparity. In other
words, we cannot even calculate the comparative disparity in a
case without knowing the absolute disparity. Thus, the
comparative disparity in a case, by necessity, implies a precise
absolute disparity—every comparative disparity has a
corresponding absolute disparity, and vice versa.
If, as the majority and concurring opinions hold, a
litigant must present evidence of an absolute disparity of 10%
13
(or 11.5%) as a “threshold” matter to state a fair-cross-section
claim, the opinions’ analyses of the comparative disparity in
Howell’s case are merely perfunctory. As illustrated in the
Appendix to this opinion, Howell would have to produce
evidence of a comparative disparity of 93.46% or higher to
satisfy a 10% absolute-disparity “threshold,” and Howell could
never satisfy a 11.5% absolute disparity “threshold” because
he would have to produce evidence of a comparative disparity
in excess of 100%, which is impossible. If—as the majority
and concurring opinions, by necessity, hold—the comparative
disparity in Howell’s case must exceed these figures because
absolute disparity is a “threshold” matter, any analysis in the
majority and concurring opinions with respect to the
sufficiency of Howell’s comparative disparity figure of
54.49% necessarily must be composed of empty words.
In my view, Howell’s statistics are sufficient to state a
fair-cross-section claim. When analyzing this case, my reading
of the case law compels me to start with the comparative
disparity of 54.49%. This figure—which implies that over half
of Allegheny County’s black jury-service-eligible population
was excluded from serving on venires—should trouble
everyone. Although this figure is well above the 40% figure
that we called “borderline” in Ramseur, 983 F.2d at 1232, our
analysis cannot stop there because we have recognized that
comparative disparity may overstate the degree of
underrepresentation in cases “where a small population is
subjected to scrutiny,” Weaver, 267 F.3d at 242.
We must, then, look at the size of the population at
issue—and, consequently, at the absolute disparity—to place
the troubling 54.49% comparative disparity into context and
determine whether it rises to the level of a Sixth Amendment
14
violation. See id. (“[T]he significance of the [comparative-
disparity] figure is directly proportional to the size of the group
relative to the general population . . . .”). For example, in
Weaver, we noted that comparative disparities of 40.01% with
respect to black persons and 72.98% with respect to Latino
persons were “quite high,” but because the black and Latino
jury-service-eligible populations constituted merely 3.07% and
0.97% of the total jury-service-eligible population,
respectively, we held that these figures did not rise to an
unconstitutional level of underrepresentation. Id. at 238, 243.
In essence, because the populations at issue in Weaver were so
small—resulting in absolute disparities of 1.23% for black
persons and 0.71% for Latino persons—the net impact of the
underrepresentation of these racial groups on venires was
minimal, and therefore their degree of representation on
venires was “fair and reasonable” under the Sixth Amendment.
See id. at 243.
Here, we are not confronted with a small population
group as in Weaver; rather, we are confronted with a group that
constitutes over one-tenth—10.7%—of the relevant jury-
service-eligible population. Given the significant size of that
group—black persons—as a proportion of the total jury-
service-eligible population, underrepresentation of black
persons at a rate of 54.49% cannot be “fair and reasonable”
under Duren; the black jury-service-eligible population of
Allegheny County is large enough such that the troubling
comparative disparity of 54.49% is probative of a Sixth
Amendment violation. See id. at 242 (“[C]omparative
disparity . . . is most useful when dealing with a group that
comprises a large percentage of the population.”). The black
jury-service-eligible population, however, is nonetheless small
enough such that the absolute disparity of 5.83% in this case
15
“understates the systematic representative deficiencies.” Id.(quoting United States v. Shinault, 147 F.3d 1266, 1273 (10th
Cir. 1998)). As discussed above, the absolute disparity in this
case has an absolute maximum limit of 10.7%, which assumes
complete exclusion of black persons from service on venires
and a comparative disparity of 100%; thus, as illustrated by the
Appendix, demanding a higher absolute disparity in this case
would require a comparative disparity that would quickly
approach 100% and complete exclusion. Therefore,
underrepresentation of black persons on juries at a rate of
54.49% under these particular circumstances is sufficient to
establish that such underrepresentation violates the Sixth
Amendment’s fair-cross-section requirement.11 Cf. Garcia-
11
The unconstitutional nature of the
underrepresentation of black persons on venires in Allegheny
County comes into stark relief when one considers it in the
broader context of the ultimate goal of the Supreme Court’s
jurisprudence regarding racial discrimination in jury selection.
As a result of Taylor v. Louisiana, 419 U.S. at 538, and its
progeny (including Duren), the Supreme Court prohibits the
state from discriminating on the basis of, among other things,
race when compiling jury pools and assembling venires from
which petit juries are drawn. See id. (“[J]ury wheels, pools of
names, or venires from which juries are drawn must not
systematically exclude distinctive groups in the community
and thereby fail to be reasonably representative thereof.”). As
a result of Strauder v. West Virginia, 100 U.S. 303, 305 (1880),
and its progeny (including Batson v. Kentucky, 476 U.S. 79(1986)), the Supreme Court prohibits the state from
discriminating on the basis of race when selecting petit juries
from those venires. See Batson, 476 U.S. at 86 (“The Equal
Protection Clause guarantees the defendant that the State will
16
not exclude members of his race from the jury venire on
account of race.” (citing Strauder, 100 U.S. at 305)). Although
“a defendant has no right to a ‘petit jury composed in whole or
in part of persons of his own race,’” id. at 85 (emphasis added)
(quoting Strauder, 100 U.S. at 305), the upshot of Taylor and
Strauder and their progeny is that a defendant’s petit jury
should be reasonably representative of the racial demographics
of her community because the empanelment of the petit jury
should be the result of a process free from racial
discrimination: venires cannot be assembled in a racially
discriminatory way, and the state cannot select petit juries in a
racially discriminatory way, and thus the resulting petit juries
should be reasonably representative of the racial demographics
of the community.
If black persons were represented on venires in
Allegheny County in the early 2000s in equal proportion to
their representation in the jury-service-eligible population as a
whole (10.7%), assuming that petit juries were empaneled
properly in a race-neutral manner, we would expect every
single criminal petit jury in Allegheny County to have had at
least one black juror. Specifically, we would expect each
criminal petit jury of twelve to have, on average, 1.3 black
jurors (10.7% of 12). In reality, utilizing Howell’s statistics
and assuming again that petit juries were empaneled properly
in a race-neutral manner, we expect that approximately 42% of
criminal petit juries in Allegheny County had zero black
jurors—like the jury that convicted Howell. Specifically, we
expect that each criminal petit jury of twelve had, on average,
0.58 black jurors (4.87% of 12). The Constitution simply
cannot tolerate such a wide disparity that results solely from
the unrepresentativeness of venires.
17
Dorantes v. Warren, 801 F.3d 584, 600 (6th Cir. 2015) (“[T]he
absolute disparity for African-Americans of 3.45% and
corresponding 42% comparative disparity are sufficient to
satisfy the Duren second prong.”).
B.
Finally, Howell has satisfied the third prong of the test
in Duren: he has produced sufficient evidence to demonstrate
that the underrepresentation of black persons on venires “is due
to the systematic exclusion of this group in the jury-selection
process.” 439 U.S. at 364 (emphasis added).
Under Duren, Howell need only demonstrate that the
underrepresentation of black persons is “‘systematic’—that is,
inherent in the particular jury-selection process utilized.” Id.
at 366. In other words, Howell simply must prove that the
underrepresentation of black persons was “due to the system by
which juries were selected.” Id. at 367. The term “systematic
exclusion,” however, does not connote “intentional
discrimination”: “intentional discrimination need not . . . be
shown to prove a Sixth Amendment fair cross section claim.”
Weaver, 267 F.3d at 244 (citing Duren, 439 U.S. at 368 n.26
(contrasting equal-protection challenges, which require
evidence of discriminatory intent, with Sixth Amendment fair-
cross-section challenges, which require proof of only
“systematic disproportion itself”)). “Under Duren, ‘systematic
exclusion’ can be shown by a large discrepancy repeated over
time such that the system must be said to bring about the
underrepresentation.” Id. For example, the Supreme Court
held in Duren that the petitioner’s statistical evidence, which
“demonstrate[ed] that a large discrepancy occurred not just
occasionally, but in every weekly venire” during an eight-
18
month study period, “manifestly indicate[d] that the cause of
the underrepresentation was systematic.” 439 U.S. at 367.
The majority holds that Howell cannot demonstrate that
the underrepresentation of black persons was “systematic” for
three reasons: (1) the process by which venires were
assembled was “facially neutral,” insofar as veniremembers
were drawn from voter-registration lists and motor-vehicle
records; (2) the six-month study of venires upon which Howell
relies is not of a sufficient duration to support a finding of
“systematic exclusion”; and (3) Allegheny County was
engaged in “on-going efforts to improve the representativeness
of jury lists,” which, according the majority, makes “it less
likely that the data reflects that underrepresentation is due to a
systematic exclusion in the jury process.”
I disagree with the premises of each of these points.
First, by giving weight to the fact that venires are assembled
from “facially neutral” sources, it appears that the majority is
requiring Howell to produce evidence of racially
discriminatory intent, which he is not required to produce
under Duren to state a Sixth Amendment claim. See id. at 368
n.26; accord Weaver, 267 F.3d 244. According to the
concurring opinion, because Allegheny County assembled its
venires from two facially neutral sources—voter-registration
lists and motor-vehicle records—Allegheny County’s “system
[went] above and beyond what is constitutionally required.”
What the concurring opinion fails to grasp is that the use of
race-neutral sources in assembling venires is only what the
Fourteenth Amendment requires: the Fourteenth Amendment
forbids the government from intentionally discriminating on
the basis of race in assembling venires or petit juries. See
Strauder, 100 U.S. at 305. The Sixth Amendment, by contrast,
19
requires that “representation of [a distinctive] group in venires
from which juries are selected [must be] fair and reasonable in
relation to the number of such persons in the community.”
Duren, 439 U.S. at 364 (quoting Taylor v. Louisiana, 419 U.S.
522, 538 (1975)). “[I]ntentional discrimination need not be
shown to prove a Sixth Amendment fair[-]cross[-]section
claim,” and thus the fact that Allegheny County assembled its
venires from race-neutral sources is immaterial to Howell’s
Sixth Amendment claim. Weaver, 267 F.3d at 244. The
majority and concurring opinions thus disregard our
observation in Weaver that “if the use of voter registration
lists”—a facially neutral source—“over time did have the
effect of sizeably underrepresenting a particular class or group
of the jury venire, then under some circumstances, ‘this could
constitute a violation of a defendant’s fair-cross-section rights
under the [S]ixth [A]mendment.’” Id. at 244–45 (alteration in
original) (quoting Bryant v. Wainwright, 686 F.2d 1373, 1378
n.4 (11th Cir. 1982)). This is not, as the concurring opinion
phrases it, a “theoretical possibility”: Howell’s very statistics
establish that the use of voter-registration lists and motor-
vehicle records resulted in the underrepresentation of black
persons on venires in Allegheny County at a rate of 54.49%,
even though Allegheny County used race-neutral sources to
assemble its venires.
Second, taken together with other evidence, the six-
month duration of the study upon which Howell relies is
sufficient to demonstrate that the underrepresentation of black
persons was “systematic.” The six-month duration of the study
in this case is sufficiently similar to the eight-month duration
of the study in Duren, which, standing alone, “manifestly
indicate[d] that the cause of the underrepresentation was
systematic.” 439 U.S. at 367. Admittedly, Duren presented a
20
stronger set of facts, from which the Supreme Court could even
“establish[] when in the selection process the systematic
exclusion took place,” but nowhere in Duren does the Supreme
Court hold that a litigant needs such a strong set of facts to
prevail on a fair-cross-section claim; rather, the core holding
of Duren in this regard is that a litigant must prove merely that
the “cause of the underrepresentation was systematic—that is,
inherent in the particular jury-selection process utilized”—and
that a study with an eight-month duration “manifestly
indicates” such a “systematic” cause. Id. Further, by relying
on Ramseur for the proposition that a study with a duration of
two years was not sufficient to demonstrate systematic
underrepresentation, the majority disregards the fact that
Ramseur is in direct conflict with Supreme Court precedent in
Duren on this point, and Ramseur should not be considered
good law in this regard. Indeed, our Court previously has noted
that we undertook a flawed analytical approach in Ramseur
with respect to the second and third prongs of Duren. See
Weaver, 267 F.3d at 241 (“In our brief discussion of Ramseur’s
Sixth Amendment claim, we appear to have combined the
second and the third prongs of Duren . . . .”).
Third, contrary to the majority’s assertion, the evidence
in this case that Allegheny County took steps to increase racial
diversity on venires tends to suggest that the
underrepresentation of black persons was systematic, not the
opposite. The Jury Coordinator of the Allegheny County Court
Administrator’s Office testified that “one of the parts of [his]
mission ha[d] been to address concerns about the numbers of
discrete races and colors . . . of people that [we]re represent[ed
o]n our jury panels.” App. 137. The Jury Coordinator testified
that “the most important” of his efforts to “address those
concerns” was to “completely revise the questionnaire” that is
21
mailed to prospective jurors as part of the process of selecting
veniremembers. Id. This amounts to an admission by
Allegheny County that it knew that certain racial groups were
underrepresented on venires and that the cause of the
underrepresentation was the system by which veniremembers
were selected because Allegheny County attempted to address
the problem—and, indeed, eventually ameliorated the
problem—by altering the system. This is not, as the majority
asserts, evidence that undermines Howell’s case; this is
evidence in Howell’s favor.
Therefore, Howell has satisfied the third prong of the
test espoused in Duren. The six-month study upon which he
relies is sufficiently similar in duration to the eight-month
study in Duren such that the duration of the study indicates that
the system of selecting potential jurors caused the
underrepresentation, and the evidence with respect to
Allegheny County’s attempts to alter the system to increase
racial diversity suggest that Allegheny County itself believed
the problem of underrepresentation was systematic.
III.
While I find that Howell’s statistics are reliable and help
establish a prima facie violation of his Sixth Amendment fair-
cross-section rights, the focus on and discussion of statistics
and statistical concepts in this case—statistical reliability, the
difference between standard deviation and standard error, the
import of absolute disparity versus comparative disparity—
obscures what is a relatively straightforward question: Did the
process of selecting potential jurors result in the
underrepresentation of black persons on venires in Allegheny
County to a degree that is constitutionally unacceptable? In
my view, the answer to that question must be “yes”: Howell
22
has demonstrated that black persons were underrepresented on
venires to a troubling degree and that the underrepresentation
was caused by the system of selecting prospective jurors, in
violation of the Sixth Amendment’s fair-cross-section
requirement.
There is evidence in the record to suggest that the court
administrators in Allegheny County eventually implemented
policies that remedied the underrepresentation of black persons
on venires. The underrepresentation of black persons on
venires, however, had not been remedied at the time of
Howell’s trial, and, because Howell established that black
persons were underrepresented on venires at an alarming rate,
his Sixth Amendment right to have his petit jury drawn from a
fair cross-section of the community was violated.
For the reasons stated above, I respectfully dissent.
Because Howell has established a prima facie fair-cross-
section violation, I would remand to the District Court to
determine whether the Commonwealth can “justify[] this
infringement by showing [that] attainment of a fair cross[-]
section [was] incompatible with a significant state interest.”
Duren, 439 U.S. at 368.
23
Appendix
Illustrative Absolute and Comparative
Disparity Figures for Black Persons Serving
on Venires in Allegheny County in the Early 2000s
(with Increases/Decreases in Venire Representation of 0.2%)
(with Howell’s Statistical Evidence Shaded in Grey)
Percentage
Percentage Absolute Comparative
of
of Venires Disparity Disparity
Population
10.7% 10.7% 0.0% 0.00%
10.7% 10.5% 0.2% 1.87%
10.7% 10.3% 0.4% 3.74%
10.7% 10.1% 0.6% 5.61%
10.7% 9.9% 0.8% 7.48%
10.7% 9.7% 1.0% 9.35%
10.7% 9.5% 1.2% 11.21%
10.7% 9.3% 1.4% 13.08%
10.7% 9.1% 1.6% 14.95%
10.7% 8.9% 1.8% 16.82%
10.7% 8.7% 2.0% 18.69%
10.7% 8.5% 2.2% 20.56%
10.7% 8.3% 2.4% 22.43%
10.7% 8.1% 2.6% 24.30%
10.7% 7.9% 2.8% 26.17%
10.7% 7.7% 3.0% 28.04%
24
Percentage
Percentage Absolute Comparative
of
of Venires Disparity Disparity
Population
10.7% 7.5% 3.2% 29.91%
10.7% 7.3% 3.4% 31.78%
10.7% 7.1% 3.6% 33.64%
10.7% 6.9% 3.8% 35.51%
10.7% 6.7% 4.0% 37.38%
10.7% 6.5% 4.2% 39.25%
10.7% 6.3% 4.4% 41.12%
10.7% 6.1% 4.6% 42.99%
10.7% 5.9% 4.8% 44.86%
10.7% 5.7% 5.0% 46.73%
10.7% 5.5% 5.2% 48.60%
10.7% 5.3% 5.4% 50.47%
10.7% 5.1% 5.6% 52.34%
10.7% 4.9% 5.8% 54.21%
10.7% 4.87% 5.83% 54.49%
10.7% 4.7% 6.0% 56.07%
10.7% 4.5% 6.2% 57.94%
10.7% 4.3% 6.4% 59.81%
10.7% 4.1% 6.6% 61.68%
10.7% 3.9% 6.8% 63.55%
10.7% 3.7% 7.0% 65.42%
10.7% 3.5% 7.2% 67.29%
10.7% 3.3% 7.4% 69.16%
10.7% 3.1% 7.6% 71.03%
25
Percentage
Percentage Absolute Comparative
of
of Venires Disparity Disparity
Population
10.7% 2.9% 7.8% 72.90%
10.7% 2.7% 8.0% 74.77%
10.7% 2.5% 8.2% 76.64%
10.7% 2.3% 8.4% 78.50%
10.7% 2.1% 8.6% 80.37%
10.7% 1.9% 8.8% 82.24%
10.7% 1.7% 9.0% 84.11%
10.7% 1.5% 9.2% 85.98%
10.7% 1.3% 9.4% 87.85%
10.7% 1.1% 9.6% 89.72%
10.7% 0.9% 9.8% 91.59%
10.7% 0.7% 10.0% 93.46%
10.7% 0.5% 10.2% 95.33%
10.7% 0.3% 10.4% 97.20%
10.7% 0.1% 10.6% 99.07%
10.7% 0.0% 10.7% 100.00%
26