Jury Selection, Venire, Systemic Exclusion

Criminal Law Update

People v Bryant, 491 Mich 575; __ NW2d __ (2012)(june’12). Defendant was convicted of 1st degree CSC in Kent County. There was only one African-American in the jury venire of 42 people. The Michigan court of appeals earlier remanded for a hearing on this issue. The trial court concluded that systemic exclusion had not been proven. Defendant again appealed to the COA, and the panel reversed his conviction, holding that representation of African-Americans on Defendant’s panel was unfair and unreasonable, and that defendant had established systemic exclusion. Evidence was offered on all three measurement tests discussed by the U.S. Supreme Court in Berghuis v Smith, __ US __; 130 S Ct 1382 (2010), the absolute disparity test, the comparative disparity test, and the standard deviation test. The COA panel held that the comparative disparity test was the best measure of underrepresentation in this case, and there was a sufficient comparative disparity to conclude that the representation of African-Americans on Defendant’s panel was unfair and unreasonable. The state appealed and the MSC granted leave. The MSC held that a court must apply all the relevant tests for evaluating the representation data, and not just the comparative disparity test. Furthermore, a court must examine the composition of jury pools, or venires, over time using the most reliable data available to determine whether representation of a distinct group is fair and reasonable. After considering the results of those tests using the most reliable data set, which included the composition of jury pools or venires over a three-month period, the MSC concluded that defendant failed to show that the representation of African–Americans was not fair and reasonable. Accordingly, the court reversed the judgment of the COA and reinstated defendant's convictions and sentences. Justices Cavanagh and Kelly dissented. Justice Cavanagh argued that, “[w]hen the showing of underrepresentation is close, or none of the methods of analysis are particularly well-suited to a case, I believe courts should ‘glance ahead’ to the third prong of the Duren test and consider a defendant's evidence of systematic exclusion. Under this approach, if the jury-selection process appears likely to systematically exclude a distinctive group, that is, the jury-selection process bears the mark of a nonbenign influence, a court may give a defendant the benefit of the doubt on underrepresentation. Applying this approach to the facts of this case, I agree with Justice Kelly's conclusion that the Court of Appeals did not clearly err by holding that defendant is entitled to a new trial.” (citations omitted).