PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-1758

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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

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Argued May 1, 2019

Before: RESTREPO, PORTER and FISHER, Circuit Judges.
2

(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

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OPINION OF THE COURT

________________

FISHER, Circuit Judge.

Criminal defendants are deprived of their Sixth 
3

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 underrepresentation 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 allwhite 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-crosssection 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 & 
4

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.
5

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
6

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 
7

“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 
8

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 
9

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”).
10

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 
11

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.
12

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.”5Id.

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.
13

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 “Zstatistic,” 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 AfricanAmericans” 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.
14

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 
15

the disparity between the percentages: absolute disparity7and 

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. 
16

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 underrepresentation. 

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 
17

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 underrepresentation—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.
18

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 underrepresentation “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).
19

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 underrepresentation, 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 
20

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.
1

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 
2

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, 
3

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. SanchezLopez, 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 
4

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).
5

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 jurorselection 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 academicsstudied 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.
1

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-crosssection 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. 
2

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 faircross-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. 
3

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 
4

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 sixmonth 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-crosssection claim. This holding—that the state can defeat a faircross-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
5

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)).
6

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.
7

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/defaultsource/data-%28lsac-resources%29-docs/lsat-scoredistribution.pdf.

6 Altman & Bland, supra note 3.

7

Id.
8

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-ofproportion 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 
9

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 faircross-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.
10

force has been drained from the Sixth Amendment’s fair-crosssection 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”). 
11

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-crosssection 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 
12

at 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, 
13

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% 
14

(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 
15

violation. See id. (“[T]he significance of the [comparativedisparity] 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 juryservice-eligible population. Given the significant size of that 

group—black persons—as a proportion of the total juryservice-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 
16

“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 
17

 

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.
18

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 faircross-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-
19

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, 
20

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 motorvehicle 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 sixmonth 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 
21

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 
22

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 faircross-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 
23

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-crosssection 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.
24

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 

of 

Population

Percentage 

of Venires

Absolute 

Disparity

Comparative 

Disparity

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%
25

Percentage 

of 

Population

Percentage 

of Venires

Absolute 

Disparity

Comparative 

Disparity

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%
26

Percentage 

of 

Population

Percentage 

of Venires

Absolute 

Disparity

Comparative 

Disparity

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%