John G. Roberts, Jr.: We'll hear argument first this morning in Case 08-1402, Berghuis v. Smith. Mr. Restuccia.
B. Eric Restuccia: Mr. Chief Justice, and may it please the Court: This is really a case about the law of habeas corpus for this murder conviction that was obtained in the Michigan courts. The issue was whether the Michigan Supreme Court unreasonably applied clearly established Supreme Court precedent in rejecting Mr. Smith's claim that his jury was not drawn from a fair cross-section of the community. The Michigan Supreme Court did not act unreasonably in concluding that there was no unconstitutional underrepresentation and that there was no systematic exclusion. This Court's decision in Duren did not require a different result on either point, and this Court should reverse the Sixth Circuit. I think it's important to note that there are two prongs at issue: The fair and reasonable representation prong and the systematic exclusion prong. And it's also significant to understand that the disparities at issue here are relatively small, that the time period at issue runs from -- from April of 1993 to October of 1993, where there was information -- for those 6 months for which the processes at play were measured. And the percentage of African-Americans that appeared in the venires during that time period was -- they comprised 6 percent of the venires, where the jury-eligible population was 7.28 percent. So your -- so there was a 1.28 percent absolute disparity during this 6-month time period. That can also be measured as an 18 percent comparative disparity. Now, if you compare that to the disparities that are issue -- at issue in Duren, they really are a magnitude of difference, that the disparities in Duren involve the exclusion of women in Missouri, where they comprised -- women comprised 54 percent of the population and only 14.5 percent of the venires over an 8-month period of time.
Stephen G. Breyer: The -- I don't know if this is relevant or how to use it, but years ago, I took a course in this kind of thing at the Kennedy School. I was teaching, and they said the only way you could figure out what -- what's what here is you use something called 1,000 balls, and 60 of them are red, and 940 are black, and then you select them at random, and -- and 12 at a time. You know, fill 12 -- fill a hundred with 12 in each. And when we tried to do that, just for the interest of it, I -- I found that you would expect, with these numbers, something like a third to a half of juries would have at least one black person on it. Now, that may be wrong, because I am not a mathematician, but -- but putting that together, it looks as if there is a pretty big disparity.
B. Eric Restuccia: Well--
Stephen G. Breyer: On the other hand, that isn't what they testified to, so I guess you're going to tell me just ignore it and forget it.
B. Eric Restuccia: --Well, if you're looking at the Michigan Supreme Court decision, I think it's important to note that it's not just that it would have to be incorrect; it would have to be objectively unreasonable under the AEDPA standard, that what's at issue here is did the Michigan Supreme Court unreasonably apply--
Stephen G. Breyer: Well, you know, maybe it's the only way to do it, that the statistician stays with these urns, which I guess they have computer programs for.
B. Eric Restuccia: --Well--
Stephen G. Breyer: I -- I don't know, in other words, and maybe I should just -- I hate to write something, like, saying 2 and 2 is 6.
Antonin Scalia: But we don't have any urns here. [Laughter]
Stephen G. Breyer: No. You can skip it, if you want. If there's any comment, fine.
Ruth Bader Ginsburg: I think your point was that Duren was quite different in the numbers--
B. Eric Restuccia: --Yes.
Ruth Bader Ginsburg: --starting out with women 54 percent of the population, and then dwindled to 14.5 percent of the -- of the jurors, available jurors.
B. Eric Restuccia: Yes, Your Honor.
John G. Roberts, Jr.: I guess the point is, just following up, it's not that you're going to say 2 plus 2 is 6. I suppose, under AEDPA, all you have to do is say 2 plus 2 is somewhere between 3 and 5, right?
B. Eric Restuccia: Right. That it's not unreasonable, and I think the best evidence of the fact that this decision was not unreasonable is I -- in the blue brief, I put together a table of what the other circuits have done with comparable statistical disparities. And it runs -- from the First Circuit through the Tenth Circuit, I have seven circuits' worth of opinions, and of course, there really are additional cases, if you examine this. And if you look at the kinds of disparities that have been examined by other courts on--
John Paul Stevens: May I interrupt with this question that goes both to what Justice Ginsburg asked and the other? Should we treat all areas the same, depending -- say it's -- the disparity between a jurisdiction which has only 3 or 4 percent of a minority should be treated similarly to a jurisdiction where they have 30 or 40 percent?
B. Eric Restuccia: --Well, the -- in my view, this Court really didn't provide guidance in Duren about how this should be measured. In fact, Duren doesn't specify what kind of measurement tools should be used for examining disparity.
John Paul Stevens: But isn't it perfectly obvious that you're going to have dramatic differences where you only have a very small percentage, as in -- in Grand Rapids, for example, and where you have a major percentage as you did in Duren.
B. Eric Restuccia: Well, I think that's right. And that's one of the reasons that on direct review the courts are virtually unanimous in rejecting these kinds of small disparities. So if you look at the table on pages 32 and 33, the circuits, on direct review, that were most comparable were the Second Circuit decision in which the percentage of the distinct group in the community was 7.08 percent and in the jury pool it was 5.0 percent--
Anthony M. Kennedy: But -- but I suppose the thrust of Justice Stevens's question was that if you have a very small population that we are concerned with, then the disparity can be very substantial, especially if you use the comparative disparity.
B. Eric Restuccia: --That's right. At the--
Anthony M. Kennedy: And I think -- at least, I was interested in that aspect of his question.
B. Eric Restuccia: --Well, as kind of the first matter, it seems like this Court doesn't have to really reach that hard question, insofar as the Michigan Supreme Court's decision is entitled to deference under AEDPA, meaning--
Anthony M. Kennedy: Yes, but we have a halfhour. I'd kind of like to know how to--
B. Eric Restuccia: --Okay. No, I understand. I understand. I just want to make that as kind of a first point. Now, for the second point, it seems to me that the absolute disparity test is the better measure for examining -- examining these questions. And the reason for that is that it objectively captures the number of missing jurors that are part of the venire, whereas the--
Ruth Bader Ginsburg: But you -- but your test is 10 percent. And if you have a minority, what is it here? 7 point -- whatever it is. 7--
B. Eric Restuccia: --7.28.
Ruth Bader Ginsburg: --It's under 10 percent. That would mean that a district is free to just disregard all the people who are under 10 percent of the population.
B. Eric Restuccia: The 10 percent test is not really necessarily tied to the absolute disparity. In other words, this Court could conclude that the absolute disparity test is the better test without using that 10 percent threshold. The reason I suggest the 10 percent threshold is that's really what's happening on the ground in the Federal courts. It's very hard to find a case in which there's a--
Sonia Sotomayor: You would suggest that in a population that has 9 percent of any group, protected group, that if they didn't have one person serve on a jury per year of that group, that that would not -- under an absolute disparity test using the 10 percent figure, that would not give rise to any kind of suspicion?
B. Eric Restuccia: --That's right. Under -- if this Court adopted it--
Sonia Sotomayor: It would not meet the Duren's second prong.
B. Eric Restuccia: --That's right. If the Court--
Sonia Sotomayor: Does that make any sense to you?
B. Eric Restuccia: --It reflects the actual practice of the courts because of the -- if you look at the--
Sonia Sotomayor: Well, I don't think that -- that any court has suggested that the complete absence of the protected group in that kind of number wouldn't give rise to a fair representation claim. That's why this Court, the Michigan court, and many others have said that the absolute disparity test just can't be used in every circumstance.
B. Eric Restuccia: --Well, the -- it seems -- looking at what the Federal courts have done, they've all -- they've generally used multiple tests. Now, there are several circuits that have relied on this 10 percent threshold, but it's not necessary for the State to prevail in order for this Court to adopt the 10 percent threshold.
Sonia Sotomayor: I don't. The question I have you for you is -- that's what you have been advocating, or at least your brief suggested we should. Wouldn't it be better for to us leave this in the hands of the courts to sort of figure out what test is better under what circumstances than us announce a flat rule that would lead to a result like the example that I just used?
B. Eric Restuccia: I -- I understand that point. The reason that I'm suggesting a threshold also is it corresponds to a practical aspect of the application of these rules. The -- if you have a sufficiently small absolute disparity, as a matter of probability, it's not likely to affect the actual composition of the petit jury.
Sonia Sotomayor: Well, I agree that if a protected group is 1 percent of the population, that it's not likely that their absence is going to give rise to any flags.
B. Eric Restuccia: Right.
Sonia Sotomayor: But I think there is a difference. I don't -- I just don't know statistically where. And we have to leave this in the judgment of the lower courts as to where between 1 and 9 or 1 and 10 a difference makes sense. And that's what the courts are saying, is: We can't use one test to determine that.
B. Eric Restuccia: Well -- and one of the concerns I have is I -- for example, I know in Kent County that if you look at the other distinct groups-you look at the 1990 census for Kent County, it was comprised of 2 point -- 2.9 percent Latino-Americans, 1.1 percent Asian-Americans, and 0.6 percent Native Americans. Now, if you look at the one month that's been placed at issue, in which Mr. Smith is indicating that there was a 35 percent comparative disparity for that one month, if that becomes the threshold, the standard used, which the Sixth Circuit concluded was -- established a violation of the second prong, then if you think about the practical application that -- for Michigan, for Kent County, if you take your 158 jurors in that jury pool, you'd expect for that one month for there to be four or five Latino-Americans, two Asian -- Americans, and one Native American.
Antonin Scalia: What's wrong--
B. Eric Restuccia: What's missing -- I'm sorry.
Antonin Scalia: --Yes. What's wrong with a rule?
B. Eric Restuccia: What's wrong with what?
Antonin Scalia: With a rule? With picking a number, rather than leaving it up to the courts of appeals or the district courts to use different numbers, different times? I don't have to review all of these cases all the time. Why don't we pick a number? You want 10, right?
B. Eric Restuccia: That what was I--
Antonin Scalia: Yes--
B. Eric Restuccia: --That has been the practice of the courts below. That's why I'm -- I'm advocating it. But it does correspond to this idea that below a certain point, absolute disparity will have no practical -- for example, in this case, the venire at issue, according to the State trial court, included 60 prospective jurors, and there were three African -- Americans, which would then constitute 5 percent. Now, in order for that percentage to correspond exactly to the jury-eligible population, there would had to have been one or two more African -- American jurors as part of that venire. Well, as a matter of probability, if you have 12 being selected from 60 -- this is kind of your point, Justice Breyer -- that it's not -- it's more likely than not that would have no effect on the actual selection of the petit jury--
Stephen G. Breyer: I don't know. The one thing I learned from the urn business is it never turns out the way you think. [Laughter] For example, it had the example of, like, the eight: There are eight out of a hundred, and you run this thing a thousand times, and you'll discover that there is one black juror on about half the juries, or a third, anyway. That's much more than I would have thought intuitively. And I might not have even read the example correctly. So you see why I -- I'm at sea, as soon as you tell me to be a statistician. I even got a book called Statistician for Lawyers. That didn't help me very much.
Antonin Scalia: --That's why Las Vegas makes a profit, right? [Laughter]
John G. Roberts, Jr.: Well, it does depend, doesn't it, on the size of the -- the urn? In other words, if it's a smaller-- [Laughter] If it's 10,000 of these balls and you are going to go through it 10,000 times, it's more likely that you are going to get a sample that reflects the overall percentage, correct?
B. Eric Restuccia: --I think that's right. One of the -- one of the reasons, also -- talking about this 10 percent as a rule -- is that if you look through these cases, you'll see a lot of -- a lot of the courts, on direct review -- and I think -- I'm going to come back to this point, that this, of course, is an AEDPA case, so the question is whether the Michigan Supreme Court acted unreasonably. And so I think there's a different standard, that it doesn't have to have gotten it right; it had to have been objectively unreasonable. But setting that aside, you'll find many cases in which there are disparities of 5 percent and 7 percent which have been rejected. And the reason is you have neutral processes, processes that everyone would agree are reasonable on their face, which result in disparities for distinct groups.
Anthony M. Kennedy: --Are you -- are you saying that systematic exclusion -- and we are assuming good faith, no intent to discriminate--
B. Eric Restuccia: Right.
Anthony M. Kennedy: --that systematic exclusion is always proven or disproven by statistics?
B. Eric Restuccia: No. I'm making just the -- the opposite point, that under the third--
Anthony M. Kennedy: Well--
B. Eric Restuccia: --I'm sorry.
Anthony M. Kennedy: --And I'll -- I'll allow you to answer, of course, but--
B. Eric Restuccia: Please.
Anthony M. Kennedy: --If not, how do we show systematic exclusion? Again, assuming good faith, no intent to discriminate.
B. Eric Restuccia: The Duren case involved a categorical distinction, meaning women were exempted in a different way than men. Women had an automatic exemption. This Court didn't delineate in Duren that if you had just a disparate impact based on a neutral process, that that would be sufficient to give rise to systematic exclusion. And that's really been the way the Federal courts have applied it on direct review, that there--
Samuel A. Alito, Jr.: The statistical issue is very interesting, but I -- I wonder, if we were not looking at this through AEDPA, why we -- why a court should necessarily have to start with the question -- with the elements of the prima facie -- with the question of whether there is unconstitutional underrepresentation, when in the end, as I understand Duren, the defendant has to identify some aspect of the jury selection process that has a disproportionate impact on the group involved and is unreasonable? And unless that can be done at the outset, why struggle with these statistics? Now, here, to illustrate, the aspect of the jury selection process that the Sixth Circuit thought was unreasonable was the prior practice of choosing the jurors first for the district courts, the misdemeanor courts, rather than the circuit courts, the -- the felony courts. But the -- the trial judge, it seemed to me, address this in -- in a very thoughtful way, and he said there just isn't any proof that this old system had that effect. And it's hard for me to see how it could have that effect, unless the -- the number of jurors chosen for the district courts in Grand Rapids was disproportionate to the number chosen for the district courts in the other jurisdictions within the county. So that seems to me to be the end of the case. And why does it make sense to -- to struggle with this rather complicated statistical problem, if at the end of the day, it's going to come down to something of that nature?
B. Eric Restuccia: --I think that may be the easiest way to resolve this case, because under the third prong, the Michigan Supreme Court on the question of jury assignment concluded that Mr. Smith had failed to factually show that there was any underrepresentation that arose from that process.
Ruth Bader Ginsburg: Didn't the Michigan Supreme Court do essentially what Justice Alito suggested, that they said: We'll give you the benefit of the doubt, go on to the third. But on that third, it seems to me there's nothing that shows us what was the representation in the district before they made the change vis-à-vis the circuit courts, was there?
B. Eric Restuccia: The -- the information that Mr. Smith's expert provided is he -- he had -- there are two jury terms that were described, one for 6 months, in which this juror assignment to the local courts first occurred, and then 1 year for the following year, in which the jury assignment did not send them to the local courts first. So you have two different pools that are being compared. The -- if you look at page 13 of the blue brief, it outlines what the disparity was according to Mr. Smith's expert for the time which the assignment to local courts occurred. And in that diagram, it shows, at the end, that there was an 18 percent comparative disparity. And that's the final column in the totals. Now, that's what occurred at the time of which the jury assignment to the local courts occurred first. The following year, the comparative disparity was 15 percent, where the -- where the jurors were not sent to local courts first. In other words, there was a difference of a 3 percent comparative disparity. Now, no one suggests that a 3 percent comparative disparity could -- could justify a claim of a violation of Duren. It's -- it's not statistically significant, because when you talk about 3 percent comparative disparity or 4 percent comparative disparity, you are talking about two or three jurors over the entire time period--
Ruth Bader Ginsburg: That -- that's in the -- in the circuit court. Do we know what the figures were just for the district court?
B. Eric Restuccia: --No. There -- there was no information -- the reason -- the Michigan Supreme Court ultimately rejected the claim on the jury assignment process because there was no evidence other than anecdotal testimony about how sending jurors to local courts would result in a deficiency of African -- Americans in the circuit court or the felony court -- courts. So that was the basis. They -- so in a way, this touches on Wood v. Allen. It was a factual determination, whether it's under 2254(d)(2) or 2254(e)(1). The Michigan Supreme Court's conclusion that Mr. Smith had failed to show factually that there was any underrepresentation that arose from the jury assignment process is entitled deference.
John Paul Stevens: But isn't it possible -- it's awfully hard to get these percentages when you get small numbers, as you do. But doesn't it seem intuitively obvious that if you give the district courts first crack of -- of the size of the pool that has more of the African-American potential jurors in it than the other, that it's -- it's bound to have an impact?
B. Eric Restuccia: No. There's -- there's no logical necessity that sending courts -- because you understand that you have the entire county, and the county is then broken up into districts?
John Paul Stevens: Right.
B. Eric Restuccia: And the districts are the local courts, and they are misdemeanor courts.
John Paul Stevens: But -- but there's a much higher percentage of African-Americans in Grand Rapids than there is in the county as a whole.
B. Eric Restuccia: That's right. But all those other outlying areas also have to send their jurors to the district court first, too. It's not like it's just one segment gets sent to the district court. All of the jurors get sent to the district courts first. The only -- the -- the proof required to show that somehow the district court for Grand Rapids went through more jurors than did the other local courts proportionately--
John Paul Stevens: But -- but the jurors that served on the district court, were they -- were they taken from the entire county, too, or just from Grand Rapids?
B. Eric Restuccia: --No, they were -- all of the -- all of the district courts -- Grand Rapids, Rockford, all of these small municipalities -- drew from the circuit court pool.
John Paul Stevens: So the district court jurors could -- could include as many jurors who are not from Grand Rapids as they could from Grand Rapids?
B. Eric Restuccia: Exactly.
John Paul Stevens: I see.
B. Eric Restuccia: In other words, the proof--
John G. Roberts, Jr.: I'm sorry. That -- I'm confused.
B. Eric Restuccia: --That's all right.
John G. Roberts, Jr.: I thought it was the other way around. I thought Grand Rapids gave however many -- you know, 30 percent to the pool and then took Grand Rapids people back?
B. Eric Restuccia: It does take Grand Rapids people, that's right. That's how it happens. You're drawing from the entire county. I'm sorry if I -- if I've -- if I've stated it in a way that's misleading. I apologize.
John Paul Stevens: I -- apparently, we were not communicating correctly.
B. Eric Restuccia: All of the jurors from the entire county are drawn into one pool.
John Paul Stevens: Right.
B. Eric Restuccia: And then the -- the local courts can identify those people that came from within their jurisdiction and draw them out.
John Paul Stevens: So the--
B. Eric Restuccia: Everyone does it.
John Paul Stevens: --So the jurors who served on the district court were primarily from Grand Rapids, rather than Kent County as a whole?
B. Eric Restuccia: The -- there's no information to -- in the record--
John Paul Stevens: Well, let me just ask you--
B. Eric Restuccia: --that indicates that.
John Paul Stevens: --a factual question. Could they put on the district court jurors who did not come from Grand Rapids?
B. Eric Restuccia: No. The -- the district court for Grand Rapids had to be Grand Rapids residents. You're exactly right.
John Paul Stevens: So, then, inevitably, if you give the district court jurors first, a pool of African-American jurors are going to be larger serving in the district court than in the -- in the felony court.
B. Eric Restuccia: It all depends on the local courts and their usage of jurors. If -- if Grand Rapids actually required fewer jurors, it would -- it would result in a larger number of African-Americans being present on the circuit court. The whole concept underlying the claim that -- that this had a disproportionate effect is the idea that Grand Rapids must have needed proportionately more jurors than the other local courts might.
Stephen G. Breyer: Okay. So, is there anybody who said whether -- if all -- they all take their jurors first, the districts, and Grand Rapids uses a higher percentage of jurors. So now there -- and they have more of the black jurors, so that there are fewer left over--
B. Eric Restuccia: That would be the argument.
Stephen G. Breyer: --That could be. Now, is there any -- in this record, does anybody say whether that's okay or not? I mean, to -- to have people serve jury duty near where they live or nearer where they live, on its face, is not so bad. Did -- did anybody say whether this is good or bad?
B. Eric Restuccia: Well, there wasn't really testimony whether it was good or bad. The -- the anecdotal information was that it -- it took African -- American jurors out of the larger pool. The anecdotal information from the court administrator was: We were afraid this process was draining -- "siphoning" was the language -- siphoning jurors from the circuit court.
Stephen G. Breyer: Are you--
Antonin Scalia: Do you have to be a -- a resident of the district in order to serve as a juror in the district court?
B. Eric Restuccia: Yes.
Antonin Scalia: You have to be?
B. Eric Restuccia: That's right.
Antonin Scalia: So then if this system were not in effect, and if Grand Rapids had to take white jurors from other counties as opposed to a larger percentage of black jurors from Grand Rapids, then you'd have a claim in Grand Rapids, wouldn't you?
B. Eric Restuccia: It would create a problem in Grand Rapids. That's right.
Antonin Scalia: Well, you -- you'd have a jury pool in Grand Rapids that wouldn't reflect the larger number of blacks in Grand Rapids.
B. Eric Restuccia: That's exactly right.
Antonin Scalia: So you're damned if you do and damned if you don't, right?
B. Eric Restuccia: I think that's right.
John G. Roberts, Jr.: So -- so do we have any evidence in the record that -- I gather this whole claim depends upon Grand Rapids having more need for jurors per capita than anywhere else?
B. Eric Restuccia: That's exactly right.
John G. Roberts, Jr.: So do we have any evidence in the record that that's the case?
B. Eric Restuccia: Nothing other than the anecdotal testimony. Like, for example, the court administrator said it is believed that this process results in a reduction in the number of jurors -- of African-American jurors--
John G. Roberts, Jr.: I would suppose that's something we can find out pretty easily, right? I mean, you look and see how many jurors are pulled for -- how many jurors Grand Rapids needs in a particular period--
B. Eric Restuccia: --That's right.
John G. Roberts, Jr.: --compare it to how many jurors Rockland needs.
B. Eric Restuccia: Right. And that information was not provided, and that's one of the reasons the Michigan Supreme Court rejected the claim factually, that it had not been demonstrated. And, in fact, if you look at the information that Mr. Smith's expert put forward, it really confirms that the -- even the best showing for Mr. Smith is a very small correlation. I mean, you're talking about a 3 or 4 percent comparative disparity difference.
Anthony M. Kennedy: Let me get that. If -- if a procedure routinely results in statistical underrepresentation that is significant, is that not a clear showing of systematic exclusion?
B. Eric Restuccia: It would have to be significant, and I don't think there's--
Anthony M. Kennedy: Well, yes -- no, that's -- it's a hypothetical.
B. Eric Restuccia: --Oh, if the--
Anthony M. Kennedy: Routinely results in significant underrepresentation, then that is automatically systematic exclusion?
B. Eric Restuccia: --Not -- not under my reading of Duren. I don't think that would be -- I don't think that's the -- the proper rule. And I -- the reason--
Ruth Bader Ginsburg: And then they would not have -- have gone on to the systemic issue, because the disparity was so marked, just on the -- just on the numbers?
B. Eric Restuccia: --Well, I -- I don't think the numbers were sufficient to justify--
Anthony M. Kennedy: I mean, isn't the -- I'm trying to think about the third prong of -- of--
B. Eric Restuccia: --Right.
Anthony M. Kennedy: --of Duren. Isn't -- if it's routine and it's predictable and it's constant, isn't that always due to systematic exclusion?
B. Eric Restuccia: And that's the argument being raised by Mr. Smith. No, I think the answer is no. And the reason I say that is this: You have -- the Federal courts, on direct review, have looked at voter registration and challenges to voter registration. Voter registration may have a disparate -- or affect distinct groups differently. In the same way that the Second and Tenth Circuit have looked at cases where they failed to follow up on non-returns, that -- if you don't follow up on non-returns, it may affect distinct groups differently. The analysis of the Federal courts on that issue has been that the decisions to exempt yourself from jury service or the failure to respond to an invitation for jury service is outside the system. Even if it occurs regularly and is persistent, it's still not inherent in the process. That's what the Michigan Supreme Court said here about the excuses for hardship and transportation -- for the excuses. But it's also true that the process by which you select jurors in district courts is not something that is a systematic exclusion of anyone. It's -- on its face, it is neutral, and if you -- if this Court concludes that neutral practices like sending out -- using a certain body, whether voter registration or if it's driver's licenses and Michigan identification cards, or not following up on non-returns, or allowing excuses for hardship, or -- or assigning jurors to a district court first, if that is -- can result in systematic exclusion, what's going to happen is that all these neutral processes that Michigan has may result in disparities. And so, as it stands now, Kent County doesn't identify the race and ethnicity of all of its jurors. Well, it's going to have to if it's going to have to have this perfect correspondence of the juryeligible population. It will no longer have this kind of blind neutrality--
Samuel A. Alito, Jr.: But concluding that it's systematic doesn't mean that the defendant wins. It just means that the State has to -- has to justify the -- the mechanism that's causing -- that's causing this -- this situation.
B. Eric Restuccia: --That's true. There is -- there is then the rebuttal. But then what happens is you are subject to these challenges. The question is: Does the court -- does the State ever wish -- ever wish to be in a position of having to be subject to the challenge? But -- but I think I want to come back to -- one of the prevailing points of all of this is that this is also the Michigan Supreme Court. There's no question that it had reached the merits and was entitled to AEDPA deference. And the -- the question was: Was there adequate guidance to the State of Michigan to know that this was both systematic -- that this was systematic exclusion and inherent in the process? And Duren was not clear on that point. The -- the analysis of the Michigan courts really corresponds quite closely to what the Federal courts have done, so it cannot be objectively unreasonable. And if there--
Ruth Bader Ginsburg: One point of information: What is the Michigan ID?
B. Eric Restuccia: --Oh, what happens if you don't have it -- some people don't have a right to a driver's license, so you can still obtain an identification card even if you are not able to drive. So it's trying to get as wide a group as possible for your pool of jurors. And if there are no--
John Paul Stevens: Let me ask this factual question: Am I correct in understanding that Michigan in fact has changed the practice with regard to giving priority to--
B. Eric Restuccia: --That's right.
John Paul Stevens: --Yes.
B. Eric Restuccia: That's right.
John G. Roberts, Jr.: Thank you, counsel. Mr. Lawrence.
James Sterling Lawrence: Okay. Mr. Chief Justice, and may it please the Court: If the annual jury call of minorities at the courthouse in Grand Rapids is down by 7.28 percent of the total number of jurors called, that means if it happens in Detroit, that means almost nothing, but if it happens in Grand Rapids, that's every minority. The Petitioner's goal is to have this Court enshrine into law a rule that the two situations are exactly the same.
John G. Roberts, Jr.: If you had a community with one African-American, your argument would be the same, if that's the disparity? That means every -- every minority is left off the jury.
James Sterling Lawrence: Well, I think that certainly if you adopt the Petitioner's test for 60 percent of the country, Duren would not apply regarding African -- Americans; 90 percent of the country, wouldn't apply to Hispanics; and Duren protections would never apply to Native Americans anywhere.
John G. Roberts, Jr.: I guess I'm -- I guess I'm echoing Justice Stevens's question of whether or not this type of statistical analysis really works when you're dealing with relatively small numbers.
James Sterling Lawrence: Well, I would make this observation: That in Duren v. Missouri, on page 366, the Court stated, "His undisputed demonstration that a large discrepancy occurred, not just occasionally, but in every weekly venire for a period of nearly a year, manifestly indicates that the cause of the representation was systematic -- that is, inherent in the particular jury selection process utilized. "
Ruth Bader Ginsburg: Yes, but there you were dealing with an express exemption. There was an exemption for a woman, and also in the record was that the jury clerk was sending out notices saying: Women, if you do not wish to serve, return the summons to the judge named on the reverse side as quickly as possible. And then, further -- systematic -- if the card was not returned, if a card sent to a woman was not returned, it was automatically assumed that she did not wish to serve. There was no follow-up. So there was all kinds of evidence of systematic problems in Duren that are not present here.
James Sterling Lawrence: Well, first of all, that's completely correct; however, the rule in Duren, the U.S. Supreme Court stated that the numbers alone prove systematic. Then the Court--
Ruth Bader Ginsburg: Where did the Court say that?
James Sterling Lawrence: --On page 366. And then in -- the Court went on to say that the State is arguing that there's various neutral, benign reasons for the underrepresentation--
Antonin Scalia: Excuse me. You -- if that statement is true, then -- then there is -- there's no third part to the three-part test. I thought Duren established a three-part test.
James Sterling Lawrence: --It did.
Antonin Scalia: And the third one was that you had to establish -- after having already established the disparity, you had to establish that there was a selection process which caused the disparity. And you are telling us that you don't have to proceed to step 3. Once you show the disparity, it is assumed that it is the product of the system.
James Sterling Lawrence: Well, Justice Scalia, my reading of Duren does indeed include that third test, but the problem is, is that Duren puts the burden of proof on that test on the State. They said at pages 368 to 369 that the State is claiming there were all sorts of neutral, legitimate reasons for the underrepresentation--
Ruth Bader Ginsburg: Oh, that was after -- that was after showing the systematic factors. It was the plaintiff's burden -- or the defendant in the case, Duren -- burden to show there was a systematic factor. That was the automatic exception for a woman and how it worked in practice. After all of that, then Justice White tells us, the State could still come back and say yes, that's true, but there were other reasons why women didn't show up. Maybe they were disproportionately elderly, or maybe they were involved with child care. That's what -- that's what Duren said, that the -- showing a systematic factor was the plaintiff's burden, and then the State could justify why the numbers came out that way.
James Sterling Lawrence: --Well, we did show a number of systematic factors, but if you look at Duren itself, on page 366 it says, the numbers alone proved it. On -- further on 366, they stated that Duren--
Antonin Scalia: How do you reconcile that with the third test? Please tell me how you reconcile that statement with the fact that it did set forth a three -- a three-prong test.
James Sterling Lawrence: --Well, I believe that we met the three-prong test, but I feel that it is an error in reading Duren to say anything other than that: The State must show how this came about, not the defendant.
Ruth Bader Ginsburg: Where does it say that?
James Sterling Lawrence: --did show it, and--
Ruth Bader Ginsburg: Where does it say that?
James Sterling Lawrence: --It says that at pages 368 to 369. And the--
Samuel A. Alito, Jr.: It says that the State has to show that it has a reason, a good reason, for -- the aspect of the selection process that has been identified as causing the disparity. But does it say that it's the State's obligation to go through every factor that may cause the disparity and justify every one? Or is it the defendant's obligation to point to some aspect of the selection -- of the -- of the system that causes the disparity? Then once the defendant identifies that, then the State can show if it -- can try to show that there's a good reason for it.
James Sterling Lawrence: --Well, I would read one sentence from Duren, if I could: "Assuming, arguendo, that the exemptions mentioned by the court below would justify failure to achieve a fair community crosssection on jury venires, the State must demonstrate that these exemptions caused the underrepresentation complained of. " And I think that all of the courts, all along the way, including Michigan's supreme court, have overlooked that important principle.
John G. Roberts, Jr.: Do I understand your siphoning theory to depend upon Grand Rapids drawing a disproportionate number of jurors from the pool?
James Sterling Lawrence: That is--
John G. Roberts, Jr.: That results in fewer minorities going up to the county court, right?
James Sterling Lawrence: --That's right. Because those jurors that were pulled out for district court, many of them did not serve in district court. The majority did not, but they were still removed from--
John G. Roberts, Jr.: Removed from the county--
James Sterling Lawrence: --from the overall pool.
John G. Roberts, Jr.: --Where -- where in the record is it established that Grand Rapids had a disproportionate need for jurors from the pool?
James Sterling Lawrence: I don't believe either side established that.
John G. Roberts, Jr.: Well, if it's -- if your theory depends upon Grand Rapids drawing a disproportionate number and it is not in the record that Grand Rapids drew a disproportionate number, I think that means you lose.
James Sterling Lawrence: Well, I would respectfully disagree with the Court because it is not necessary, in our view, that each specific item that led to underrepresentation be, itself, something that's unconstitutional, but rather, the collective nature of it, that 15 out of 17 months persistently and repeatedly came up with substantial underrepresentation. You are talking about 34.8 percent here.
Samuel A. Alito, Jr.: But that's the only factor that the Sixth Circuit identified as illegitimate, was this -- was this siphoning system.
James Sterling Lawrence: Well, I feel that--
Samuel A. Alito, Jr.: It rejected everything else, didn't it?
James Sterling Lawrence: --I feel that there are a number of factors. I suppose that we could do it on the basis of height and then be surprised when there's fewer women on the jury.
Stephen G. Breyer: Now, why is it -- I'm just not clear in my mind. Why is this siphoning bad? My impression, which may be wrong, is you -- you have a thousand people in the room, let's say, and if you let the district courts choose first, people will serve nearer where they live. Now -- and so most of them would rather serve nearer where they live. And the result of that could be, for the reasons that were stated, that then there are fewer minorities on the more general jurors that draw from a wider area, and I don't know about the merits of that. I mean, I see a negative, and I see a positive. So is it -- it doesn't seem to me obviously bad, nor is it obviously good. So what should I do?
James Sterling Lawrence: Well, the record showed--
Stephen G. Breyer: Right.
James Sterling Lawrence: --that the people who were actually showing up for the jury panels at circuit court were very heavily overrepresented in the rural areas of Kent County and heavily underrepresented--
Stephen G. Breyer: Well, but -- but that's just the explanation of the problem that we're seeing.
James Sterling Lawrence: --Right. Well, I guess--
Stephen G. Breyer: The problem we're seeing is that if Grand Rapids has a higher juror utilization rate and they have a higher minority population, then you will end up with the leftover juries having a lower minority population. Now, the explanation for that is that you choose the district judges -- you choose the district jurors first. My question to you is: I -- if you're just a -- I'm not instructed in this area. If you were just to tell me, what do I think of that, I would say I'm not sure. I think you have fewer minorities, that's true, but people get to serve closer to home. Now -- now, can you enlighten me a little bit about this?
James Sterling Lawrence: --Yes. Well, first of all, Grand Rapids has several district courts, and the largest one is the district court for the city of Grand Rapids. And as one would predict, the judicial business of a large city is certainly going to be more extensive than the judicial business in rural areas.
John G. Roberts, Jr.: Of course. Of course, but we have to look at this on a proportional basis, right? Grand Rapids is also sending a higher number of jurors to the pool than -- than the small rural county.
James Sterling Lawrence: Well--
John G. Roberts, Jr.: Your -- your theory depends upon Grand Rapids drawing not just a proportional number, if it's contributing 30 percent and it draws 30 percent; your theory depends upon Grand Rapids contributing 30 percent to the pool and drawing 40 percent.
James Sterling Lawrence: --Well, I guess I would simply say that the court administrator testified and the district judge found that they had substantial underrepresentation that was very noticeable, very visible, a severe problem, and after my client's trial, they -- they concluded that the best way of dealing with this was to end the siphoning process, which they did.
Sonia Sotomayor: And so, what -- what did it result in? It resulted over a 6-month period and a difference between 18 percent underrepresentation and 15 percent. And your adversary says that's not statistically meaningful difference, that 3 percent, because it only takes a difference of a couple of people to change it from 18 to 15.
James Sterling Lawrence: Well, I--
Sonia Sotomayor: What's -- what's unreasonable about that argument?
James Sterling Lawrence: --Well, I have two answers to that. The first one being that what -- one thing that was eliminated was the spikes, like we had in my client's month, 34.8, even though the average underrepresentation was only 18.1.
Sonia Sotomayor: You can't -- you are comparing apples and oranges, because your pre-spike was over a year and your post-spike was over 6 months. We don't know what would have happened -- or didn't have statistics of a year or longer.
James Sterling Lawrence: Okay. Well, in the case of Duren, you're talking about -- they had a 10-month period that was involved, but as for the numbers being small, I can only refer you to cases that I very much disagree with -- United States v. Sanchez-Lopez, cited in my brief, where Hispanics comprised 5.59 percent of the southern district of Idaho -- and the court basically said: Since that's less than 10 percent, who cares if there are Hispanics on the juries? The same in United States--
Stephen G. Breyer: Well, I wouldn't say that, but I still haven't -- I will try again. Forget the cases. As I'm hearing this, all I'm hearing is: Well, if you let the -- if you say that the wider area should choose first, you will get a higher number of minorities, but very tiny number; I mean a very small addition, one or two people. And if you do it the way they're doing it, you'll lose those one or two people, but you will let people serve closer to home. So I just think -- as a person, not as a judge -- that's why I am letting you answer it as a judge -- but I mean, I'd say, well, it doesn't sound like much of a big deal. And -- and I do see an advantage in this, of the way they are doing it, so, now, you tell me what's -- what's wrong with that?
James Sterling Lawrence: --Okay. Well, first of all, Kent County is not really that big. It's -- anybody can drive from the farthest end of the county to downtown Grand Rapids in approximately 20 to 30 minutes. It wouldn't be that difficult to get there. I bet members of this Court have a longer commute. But, more importantly, the -- the fact that you're only talking about 25 people out of 2,250 people simply means that the problem will be easy for court administrators to solve, if they have an incentive to do it.
John G. Roberts, Jr.: How is that? Don't those people then have to become professional jurors? They have to serve on every jury, or you're going to have the disproportion that the statistics show.
James Sterling Lawrence: Well, the statistics showed, for example, that African-Americans had a much higher rate of not having an automobile. And so if you say, well, if you have trouble getting a ride, you could tell somebody, come on down anyway; or you can say, that's all right, take the day off. And if African Americans have a very substantial higher rate of single-parent households, well, then, of course, it's going to be harder to get a babysitter. Now, you can tell those people, well, that's okay, stay home; or you can say, try to get down here anyway. And the court -- and if somebody simply didn't show up, statistics have shown, in the brief--
Ruth Bader Ginsburg: May I stop you there for a moment? Because one of the things that was in the Duren opinion was that a child care excuse would be okay. I think Justice White said at the end, now, I'm not touching the typical hardship excuses, and one of them was child care, and that is -- certainly, in the early '70s, was going to disproportionately affect women. You have far fewer women if you give a child care exemption.
James Sterling Lawrence: --No doubt that that's true, and I am not saying that it is wrong to give real hardship exemptions. Here--
Ruth Bader Ginsburg: But this -- he wasn't talking about individual cases.
James Sterling Lawrence: --Well, in this case, one of the things that happened is that, if somebody didn't-simply didn't show up, that's it. Now, judges -- the court administrator said, yes, we tried. The judges would issue orders to show cause, but the police department made a decision that they were not going to have anything to do with the serving or participation in these orders to show cause, orders to show up. And isn't that police department decision part of the system? It is systematic. When the police--
John Paul Stevens: Let me just--
James Sterling Lawrence: --tell the courts what to do, shouldn't the courts tell the police what to do?
John Paul Stevens: --Let me make sure I understand your position. Assume that there is an -- an identifiable disparity of 2 percent or 3 percent, or whatever it might be to get to the threshold of being significant, that's entirely caused by the fact that the members of the minority have personal excuses that justify non-service. What do you do with that case? Do you find that it was -- it's unconstitutional, or don't you?
James Sterling Lawrence: If you find that it is persistent, month in and month out--
John Paul Stevens: It is. It's assuming--
James Sterling Lawrence: --then you have a problem because society benefits when jurors are drawn from the broadest spectrum of the system.
John Paul Stevens: --I didn't--
Anthony M. Kennedy: Well, that's policy. Can't you say that that is systematic exclusion because it's part of the system?
James Sterling Lawrence: Well--
John Paul Stevens: --But is it unconstitutional, is what I'm trying to find out. Society benefits because -- if you make them serve; the society benefits if you grant the excuses, too.
James Sterling Lawrence: --Well, overall, there's nothing wrong with granting excuses for genuine hardship; however, when you have this factor and factor 2 and factor 3 and factor 4, and they persistently come up with all-white juries, that's what Richard Hillary testified to, 98 percent of the time, nothing, but all-white juries. And if somebody could--
Ruth Bader Ginsburg: Is there -- is there a Federal district that corresponds to this Kent County? Is there a Federal district court that would be calling jurors in -- in the same geographical area?
James Sterling Lawrence: --Well, there is the United States District Court for the Western District of Michigan that covers a very large amount of territory, and, frankly, I have not studied their statistics, but I know, from personal knowledge, that the African American population in the Western District of Michigan would be smaller than in Kent County or in the city of Grand Rapids, where--
Ruth Bader Ginsburg: But you don't have -- you don't have comparable -- comparable records for what was going on in the -- in the district court?
James Sterling Lawrence: --Well, if you mean the United States District Court--
Ruth Bader Ginsburg: Yes.
James Sterling Lawrence: --No, I -- I have not studied that situation, and--
Samuel A. Alito, Jr.: Are there -- are there courts that you know of that do what you are suggesting needs to be done? When a juror does not show up, the judge issues a bench warrant, and -- and the police are sent out to arrest the person and drag the person into court, or somebody says, I am a single parent, and I have children, and I'm too poor to have a nanny or an au pair, and, therefore, please excuse me; and they say, no, you have to find some way of getting here. Are there courts that do that?
James Sterling Lawrence: --I don't know of a court that arrests people, and I -- in this case, it wasn't a question of arresting. The local judges made a decision: We are going to issue orders to show cause; people will be required to come in. The police decided, no, we're not going to have anything to do with that. And I feel that that's part of the system because the police are part of the system.
Antonin Scalia: Mr. Sterling, I don't -- you seem to acknowledge that, to make your case, you have to show that Grand Rapids district drew from the pool a disproportionate number of people. Why -- why do you have to prove that? If Grand Rapids contributes to the pool an inordinate, disproportionate number of the minority -- blacks in this case -- even if Grand Rapids simply took back a proportionate number from the pool, it would still have a disproportionate effect on reducing the number of blacks in the overall pool, wouldn't it?
James Sterling Lawrence: In order to solve this problem, all that Kent County would have to do is to, if you take people to district court, put back the ones that aren't being used. That would certainly help, but, instead, they take an excess number, like any court does, but the excess people are totally removed from the system.
John G. Roberts, Jr.: Your answer to Justice Scalia's question is -- is no, right? Because the idea is, if Grand Rapids sends up a pool that's 30 percent minority and if it takes back the same number as everybody else, it's going to get -- the county is going to get the same proportion. It's only when they take back more. They have the more heavily African-American pool, and they are going to draw from it more than everybody else is drawing from theirs, so there will be fewer African -- Americans to go to the county.
James Sterling Lawrence: That is what's happening, but I don't believe--
John G. Roberts, Jr.: But you have no evidence that Grand Rapids takes back more than its share, proportionally, than anybody else.
James Sterling Lawrence: --We know that the -- as soon as they stopped doing it, this created a substantial increase in the number of African-Americans on the juries, and I think that that's--
John G. Roberts, Jr.: At the county level?
James Sterling Lawrence: --At the county level.
John G. Roberts, Jr.: Yes. Was there any evidence that your venire -- that minorities were underrepresented on your venire?
James Sterling Lawrence: Yes.
John G. Roberts, Jr.: Where is that in the record?
James Sterling Lawrence: Okay. The -- well, it is in the testimony of -- well, if you look, it's -- I'm sorry that I don't have the page number, but right at the time, it was said, we have two or three African -- Americans within this group, that was either 60 or 100. And I'm sorry that the record is less clear, but even if it is 3 out of 60, you're talking about 5 percent, whereas the population is 7.28 percent. If it just happens once or twice--
John G. Roberts, Jr.: Help me--
James Sterling Lawrence: --not a problem, but it happens every month.
John G. Roberts, Jr.: --Help me -- help me with the math. If there were one more African -- American, what would the percentage be? Pretty close to what you're saying it should be, right?
James Sterling Lawrence: If there were two more, it would be right on target, just -- it would only be.28 percent low, which, if you simply send out a second letter, because the testimony of Kim Foster was that, later on, when they started sending out the second letter, half of the people who did not respond would respond--
Ruth Bader Ginsburg: Can we go back to your point about -- that there was a big change when the draw came from the circuit first, before the districts. I thought it was agreed that, before, there was an 18 percent, on average, comparative difference and, after, 15 percent. That doesn't sound like a big change.
James Sterling Lawrence: --But it's a step in the right direction, and what we want to do is we want to promote more minority participation on jurors -- juries, instead of creating a rule that tells court administrators all over the country, the heat's off, you don't have to do anything.
Antonin Scalia: But a step -- a step in the right direction is not enough. You were adducing that to prove that the prior system had a significant effect, and it turned out, it didn't have a very significant effect. It doesn't prove your point to say, well, it's a step in the right direction. If it's insignificant, it's insignificant. Whether it's insignificant in the right direction or the wrong direction doesn't matter.
James Sterling Lawrence: Well, one element of the entire system might be insignificant, but you are talking about numerous elements that went together, and Duren says they have to show what caused the underrepresentation.
Antonin Scalia: I still don't -- I don't understand this problem of -- of you have to show that they took back more than they contributed. Let's assume that Grand Rapids is -- is entirely black, and its entire delegation that goes to the pool are all black, okay? And let's assume that those blacks are 10 percent of the -- the totality, and there are no blacks from anywhere else, okay? Then Grand Rapids takes back simply the number of people it -- it took, its set, which would be 10 percent, and it takes black -- takes back all of the blacks, who are the Grand Rapids residents. All of the other districts would thereby have zero percent blacks instead of 10 percent, which is what they ought to have.
James Sterling Lawrence: Each district, the jurors are acquired from that district--
Antonin Scalia: Exactly.
James Sterling Lawrence: --and the circuit is acquired from all the districts of the county.
Antonin Scalia: Exactly. So why expect the other districts to have 10 percent blacks simply because Grand Rapids contributed 10 percent of the totality, all of whom were black? There -- then there's a requirement for each district to have 10 percent blacks, right? But if Grand Rapids takes back its -- its -- the people it sent, there are no more blacks left to go around.
James Sterling Lawrence: Well, I don't expect those outlying districts to have more -- a larger percentage of blacks than the population; I'm only expecting that from the county.
Samuel A. Alito, Jr.: Isn't that the case--
Stephen G. Breyer: So what if--
Samuel A. Alito, Jr.: --If -- if Grand -- if Grand Rapids uses a disproportionate number of jurors in its district courts, then you are going to have this problem -- the only way to fix the problem would be to have a separate jury system for the district courts. If you have the -- the circuit courts going first, then the people in the district courts are going to have the problem that you identify. If you have a system in which it's all done randomly -- circuit court, district court -- the people who come toward the end are going to have the problem. So I don't see any way out of this, if in fact there was a statistical basis for it, other than having a separate selection process for the district courts. Is that what you think is necessary?
James Sterling Lawrence: I think that we should allow a great deal of flexibility to local court administrators. As I mentioned in the brief, in the Parents Involved in Community Schools case, there was a discussion in the concurrence by Justice Kennedy about exactly what local governments--
Stephen G. Breyer: --All right. So is--
James Sterling Lawrence: --can do to -- to get an appropriate representation of minorities without using racial classifications.
Ruth Bader Ginsburg: That was a question of what was permitted. Here you're trying to say this is required. The school's case was, these are measures the district could take if it wanted to. But you are saying these are measures the district must take because the Constitution requires it. They are quite different settings.
James Sterling Lawrence: Well, I admit that it is a different setting. However, I feel -- well, no, I won't say "I feel". Duren holds that there must be a reasonable connection between the African-Americans that appear on the jury arrays and the population as a whole.
Stephen G. Breyer: --What about the -- the more I listen, the more I think you think there are a lot of things people could do. They could send three letters; they could explain in the letters why it's important to come; they could try reversing the thing a little bit with the districts first or not first -- all kinds of things. But what -- but now you're forcing them into this legal rubric. So what about a decision, which you wouldn't like, probably, but it would say we can't say that they're unreasonable in respect to not having all of these, but there -- who knows? You know, when they get around and others try them, et cetera. In other words, unreasonable/reasonable is one standard, and ambiguity plays a -- a role here, too, that might be helpful.
James Sterling Lawrence: Well, you are certainly correct, and I would simply say that the people of Grand Rapids looked up at the juries; 98 percent of the time they saw nothing but white faces. I think that Duren requires that the local system do something about it. There's a lot of options. So you should give them flexibility.
John G. Roberts, Jr.: Thank you, counsel.
James Sterling Lawrence: Thank you, Your Honor.
John G. Roberts, Jr.: Mr. Restuccia, you have 2 minutes remaining.
B. Eric Restuccia: I just have two brief points. One is that -- I want to just remind the Court that this is a case under AEDPA review, so that the Michigan Supreme Court has to be not just incorrect; it has to be objectively unreasonable. And its conclusion, I think probably the easiest analysis here is the conclusion that there was no showing of systemic exclusion, because Mr. Smith failed to show that there was any underrepresentation that arose from the jury assignment process, is probably one of the strongest points, because if you look at the 3 percent comparative disparity, that's less than half of 1 percent absolute disparity. No one claims that that's statistically significant. So I think whether it's reviewed under 2254(d)(2) or 2254(e)(1), this Court should reverse. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.