I am very proud to be part of a recently published law review article on the under-representation of Native Americans in the federal jury panel for the Western Division of South Dakota, found here. The author, Camille Fenton, did an excellent job in presenting the issue.
The right to a fair cross-section of the community in jury pools really gained traction with the Supreme Court case Duren v. Missouri, 439 U.S. 357 (1979). That case involved a criminal trial in which the defendant argued the jury did not represent a fair cross-section of the community, a right guaranteed under the Sixth Amendment. The jury pool excluded women because each juror summons included a section whereby women could exempt themselves from jury service if they were stay-at-home caregivers. Based on the returns, the jury pool from which petit venire panels were pulled under-represented women. The Supreme Court ruled that jury pools must include a fair cross-section of the relevant community.
In 2016, I challenged the jury pool in the Western Division of South Dakota District Court for its underrepresentation of Native Americans. Under Duren, if a defendant can show that a “distinctive group” is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he or she has made a prima facie case that their fair cross section rights have been violated. The “systematic exclusion” part is what tanks most challenges because most courts hold that a challenger must show some kind of intentional exclusion of the distinctive group. I have a big problem with this because I believe that the fair cross section right is one that is the courts’ duty to preserve and protect, not the “distinctive group.” In other words, the court should be responsible to ensure a fair cross section of the community is represented in its jury pool, and the numbers should speak for themselves.
While many attorneys can demonstrate an underrepresentation (as I did with a statistician who found that Native Americans composed approximately 22% of the community, but the jury pool was only around 4%), their challenges fail under the “systematic exclusion” requirement. This is unfortunate because the problem of underrepresentation is often easy to solve by simply expanding the sources jury pools are drawn from. Most jury pools are taken from voter registration lists, such as in federal court in South Dakota. However, by simply expanding the sources to driver licenses, state IDs, tribal enrollment records, etc. the problem can normally be resolved– i.e. the underrepresented groups are better represented.
While there are many courts that proactively deal with the underrepresentation of various groups, such as the Central District of California when it expanded its jury sources to include state DMV records, most stubbornly resist change. This is unfortunate. For the lawyer in the trenches, it often leads to the invariable conversation where a minority client asks you how many Native Americans, African-Americans, Latinos, or other specific group they belong to will be in their jury pool. And, as their attorney, you have to explain that there is really nothing that can be done unless the court changes the way it draws jurors.