Ensuring a Fair Cross-Section of the Community in the Western District of Texas By United States District Judge Xavier Rodriguez
Background After over a year of no jury trials due to the COVID-19 pandemic, I presided over the San Antonio Division of the Western District of Texas’s first criminal jury trial on May 3, 2021. During the pandemic, numerous commentators expressed concerns about whether minorities would respond to jury summonses and whether a court could seat a fair cross-section of the community. During the May 3rd jury selection, the defendant’s attorney stated that he had considered moving to dismiss or moving for a mistrial on the grounds that the panel may not have reflected a fair cross-section of the community, but he then noted that—given the presence of minorities in the panel—he would not go forward with a motion. Since then, other judges have conducted a few civil and criminal jury trials. Researching other matters, I came across Castaneda v. Partida, 430 U.S. 482 (1976), which piqued my interest in whether the method the Western District of Texas uses to select jurors is problematic. Unlike state courts, federal courts rely upon the names of registered voters to fill
the jury wheel, but the state district courts in Bexar County select juries from among individuals licensed to drive motor vehicles.
A. Jury Selection Law Under the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861 et seq., each federal judicial district must devise a plan for the random selection of grand and petit jurors. This plan must be designed to ensure juries are selected from a fair cross-section of the community in the applicable division of the district. Id. at §§ 1861–63. The statute contemplates that each division will use voter registration lists within that division as the source of prospective jurors. Id. at § 1863(b)(2). The statute also requires that jury selection plans “prescribe some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights” to a fair cross-section and non-discrimination. Id. In addition, the Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn “from a fair cross section of the community.” United States v. Williams, 264 F.3d 561, 567 (5th Cir. 2001).
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A criminal defendant may move to dismiss an indictment, and a party to a civil case may move to stay proceedings, on the ground of substantial failure to comply with the provisions of the Jury Selection and Service Act of 1968. 28 U.S.C. § 1867. To establish a prima facie violation of the fair cross-section requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Berghuis v. Smith, 559 U.S. 314, 327 (2010). In Duren, the Supreme Court stated that establishing the second prong requires statistical proof that the jury wheel does not adequately represent the distinctive group in relation to the number of such persons in the division. 439 U.S. at 364. The Supreme Court also noted that a defendant can use three different analyses: absolute disparity, comparative disparity, and standard deviation. Berghuis, 559 U.S. at 329. The Supreme Court has not specified the method or test courts must use to measure the representation of distinctive groups in jury pools but noted that “[e]ach test is imperfect.” Id. A person cannot make a challenge based solely on the composition of the randomly chosen venire at trial and must show a systematic exclusion of minorities from other venires over time. United States v. Moreno, 540 F. App’x 276, 276 (5th Cir. 2013).
1. Absolute Disparity Analysis
Most courts have employed an absolute disparity analysis when analyzing the adequacy of the particular group’s representation, which simply means that the minority percentage in the division’s wheel is compared to that
