Shining the Light on the Issue of Under-representation in Jury Pools

Yesterday the Rapid City Journal did an excellent piece on the under-representation of Native Americans in the federal jury pool for the division in which I practice. You can read it here.

The Journal article begins with the law review article that I referenced in my last post. While I disagreed with some of the statistics quoted in the article for the actual percentage of Native Americans in the relevant community (a statistic that, like 73.8% of all statistics, can be easily manipulated– that’s a joke), I was impressed and grateful that the Journal took notice of the issue. And, actually, the author recognized that there are differing views on what the actual statistics are, but all can agree there’s an under-representation, just not on how significant the under-representation is.

I also should take a minute here to explain that the judge interviewed in the piece, Chief Judge Viken, is one of the best, if not the best, federal judges I’ve ever practiced in front of, and I’ve seen a lot of them in my career. It takes a lot of courage for a judge to say that there is an obligation of the courts to ensure reasonably accurate cross-sections of the community in its jury pools. And he did that.

Most judges take no proactive role at all in the jury pool process, in my experience. If they do, it is to simply deny the challenges using the “systematic exclusion” prong of the Duren case (i.e. it’s not our fault that the group in question doesn’t go out of their way to register to vote or volunteer for the jury pool). That is an easy way out of the under-representation dilemma, which has been long recognized in South Dakota as far as I can tell, both in state and federal courts.

That Duren prong has been cited ad nauseum to ensure that no one will ever win a cross-section challenge, no matter what your statistics show. Anyone in any jurisdiction in any state would be hard pressed to find one case where a successful cross-section claim was granted. In fact, in another law review article, legal scholar Nina Chernoff’s quotes a study that found that, out of 167 cross-section challenges that were brought between 2000 and 2010, exactly zero were granted. That article was written on January 1, 2019 and published the Washburn Law Journal. You can find an abstract and download the paper in PDF format here.

I highly recommend that article for anyone who is interested in this topic and wants to delve into the cross-section issue. The paper is fairly dense for the non-lawyer reader, but articulates a better argument for my opinion that the courts should shoulder the responsibility to hold government accountable for ensuring fairly representative jury pools, not the litigant. The abstract notes that “courts are undermining the government’s constitutional obligation to produce racially representative jury pools by sidestepping the substantive task of balancing constitutional values.” And I’m glad we don’t have one of those courts in this division. But that doesn’t change the reality that 90% of courts out there are, in my opinion (and my own statistic) are actively avoiding the under-representation issue by refusing to acknowledge government’s responsibility in remedying any significant under-representations.

So… back to the statistic– zero out of 167 cross-section challenges were granted. I think we can safely assume that the lawyers wouldn’t bring a cross-section challenge without some demonstrable statistic showing under-representation of an identifiable group. Does that mean that every jury pool in every one of those jurisdictions s a reasonably fair cross-section of its relevant community? Call me a skeptic, but I highly doubt that.

I am proud of the motion I brought, and I’m humbled that it actually got someone’s attention. And I’m more humbled in reading the Journal article and realize that the court is looking to solve the issue and some progress may finally be made. In times like these, the courts can hold the torch in the darkness and shed the light of the constitution on injustice, when the ordinary citizen can do nothing. And it’s up to lawyers, their clients, and sometimes law students and journalists, to light those torches sometimes.