Ensuring a Fair Cross-Section of the Community in the Western District of Texas

By United States District Judge Xavier Rodriguez

EDITOR'S NOTE: See complete article online for supporting charts and graphs.

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).

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 same minority’s percentage in the jury-eligible population (citizens over 18) in the division as a whole. See Berghuis, 559 U.S. at 323 (explaining that a court determines “absolute disparity” by subtracting the percentage of the members of the group in the jury pool from the percentage of the group in the local, jury-eligible population). The Fifth Circuit has held that absolute disparities of 10% or less are insufficient to establish statistical discrepancies worthy of relief. See United States v. Mosley, 370 F.3d 467, 479 (5th Cir. 2004); United States v. Williams, 264 F.3d 561, 569 (5th Cir. 2001)(5% disparity does not violate due process).

2. Comparative Disparity

A few courts have recognized that a comparative disparity analysis may be more appropriate in cases where the group at issue makes up a small percentage of the division’s population. Comparative disparity is determined by dividing the absolute disparity by the group’s representation in the juryeligible population. See Berghuis, 559 U.S. at 323. Thus, a comparison of a district with a jury-eligible Hispanic population of 4% and a jury wheel comprised of 2% Hispanics would reveal a comparative disparity of 50%.

3. Standard Deviation

No federal court has used the standard deviation analysis to review a jury challenge, but at least one concurring opinion mentioned the approach with approval. United States v. Hernandez-Estrada, 704 F. 3d 1015, *8 (9th Cir. Dec. 5, 2012)(“More than two or three standard deviations means that ‘the hypothesis that the jury drawing was random would be suspect to a social scientist.’ . . . Doing some quick math, I calculate that the disparity between 5.2 percent and 3.5 percent in this case is more than 14 standard deviations.... So, there’s cause to worry.”)(Kozinski, C.J., concurring). This approach seeks to determine the probability that the disparity between a group’s percentage in the jury-eligible population and the group’s percentage in the court’s jury wheel flowed from random chance.

B. San Antonio Division Data

In 2019, there were 1,492,742 registered voters in the San Antonio Division. From this number, 59,699 names were drawn to build a San Antonio Division Master Jury Wheel. Of the 59,699 names, questionnaires were randomly sent to 30,000 individuals. Only 19,788 individuals responded. The 19,788 respondents’ information was reviewed to determine if they were eligible to serve.

Of those, 13,279 individuals were deemed qualified jurors and placed on the qualified “wheel sample.” The following chart reflects the composition of those individuals:

For the May 3, 2021, criminal trial, summonses were sent to 450 individuals selected randomly from the qualified wheel. In a “normal” month, about 350 summonses are sent, but due to uncertainty about how many jurors would respond during the COVID-19 pandemic, an extra 100 summonses were issued.

Reviewing the information that the 450 jurors supplied revealed the following (see page 24, Figures from Entire Pool of 450 Potential Jurors).

C. Duran analysis of the San Antonio Division jury wheel

Applying an absolute disparity analysis (in which the minority percentage in the division’s wheel is compared to the same minority’s percentage in the jury-eligible population), and assuming a challenge based on Hispanic under-representation, Hispanics constituted 41.65% of the qualified jury wheel. Hispanics constituted 47.8% of persons in the San Antonio Division citizen population data. Thus, Absolute Disparity equals 6.15% and falls within the statistical discrepancy allowed by the Fifth Circuit.

A comparative disparity analysis does not apply to the San Antonio Division because the group at issue (Hispanics, in this example) do not make up a small percentage of the division’s population.

Applying a standard deviation analysis, the formula to calculate the standard deviation would look like the following using hypothesis testing, where:

“ ” refers to the proportion of Hispanics measured in the sample (the jury pool);

“p” refers to the proportion of Hispanics in the relevant population (citizens within the San Antonio Division); and

“n” refers to the sample size (the number of individuals in the jury pool).

If correct, a z-score of this magnitude would be an outlier, indicating the hypothesis that jury drawing was random would be suspect to a social scientist. Indeed, there is a less than 1% chance of randomly selecting a jury pool in the San Antonio Division with such a low proportion of Hispanic jurors.

Conclusion

Although it is difficult to challenge jury selection methods in the Fifth Circuit, and the absolute disparity of 6.15% falls well within the statistical discrepancy allowed by the Fifth Circuit, the standard deviation analysis suggests the San Antonio Division should expand its jury wheel using driver’s license records, which may tend to generate a more representative slate of potential jurors. But before doing so, a much more thorough analysis would be necessary.

Neither the federal nor state courts have detailed statistics pre-pandemic. When jury trials resumed, I began keeping my own statistics. Judge Antonia “Toni” Arteaga of the 57th District Court in Bexar County did a demographic analysis of one of her cases (thanks to Judge Arteaga for sharing her information with me). These albeit limited demographics data reveal starkly different jury compositions. As suspected, given that San Antonio serves not only Bexar County but also several surrounding rural counties, the percentage of minorities in a jury sitting in federal court is less than in Bexar County courts. See Chart to the right. The age of jurors is largely older in federal court, and the educational attainment is much greater in federal court. These are factors attorneys and litigants may wish to consider in evaluating forum choices, whether to remove, and settlement evaluations.

Xavier Rodríguez has served as a United States District Judge for the San Antonio Division of the Western District of Texas since August 2003. Prior to that, he served as a Justice on the Supreme Court of Texas. From 1987 to 2001, he was an attorney with Fulbright & Jaworski.