PEOPLE OF MI V RAMON LEE BRYANT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
June 22, 2010
9:25 a.m.
Plaintiff-Appellee,
v
No. 280073
Kent Circuit Court
LC No. 01-008625-FC
RAMON LEE BRYANT,
Defendant-Appellant.
Before: JANSEN, P.J., and BORRELLO and STEPHENS, JJ.
BORRELLO, J.
Defendant appeals as of right the trial court’s decision after remand, which found that
defendant’s Sixth Amendment right to an impartial jury drawn from a fair cross-section of the
community was not violated because African-Americans were not underrepresented in the venire
from which defendant’s jury was selected and Kent County’s jury selection process, at the time
of defendant’s trial, did not systematically exclude African-Americans. For the reasons set forth
in this opinion, we reverse and remand for a new trial.
I. FACTS AND PROCEDURAL HISTORY
Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(1)(e),
armed robbery, MCL 750.529, and possession of marijuana, MCL 333.7403(2)(d), by a jury in
Kent County in February 2002. He appealed, arguing, in part, that he was deprived of his Sixth
Amendment right to an impartial jury drawn from a fair cross-section of the community because
there was only one African-American in the jury venire of 42 people. In an unpublished opinion,
we affirmed, in part, and remanded “for the sole purpose of conducting an evidentiary hearing
regarding defendant’s challenge to the jury venire.” People v Bryant, unpublished opinion per
curiam of the Court of Appeals, issued March 16, 2004 (Docket No. 241442), at 7.
On remand, the trial court held several evidentiary hearings and issued a written opinion.
The trial court rejected defendant’s reliance on statistical estimates, reasoning that it was not
sufficient to prove underrepresentation. The trial court made four holdings: that “defendant has
failed to sustain his burden of proving that African-Americans were substantially
underrepresented among the prospective jurors to whom questionnaires were mailed in 20012002”, that “even if African-Americans were numerically underrepresented from June, 2001,
through mid-Fall, 2002, among prospective jurors, defendant has failed to establish that the
circumstances were such that that underrepresentation was unconstitutional as defined by the
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Supreme Courts of the United States and Michigan”, that “even if there was unconstitutional
underrepresentation in the total number of prospective jurors, there was no underrepresentation
of African-Americans in the venire from which defendant’s jury was selected”, and finally, that
“any underrepresentation was the product of chance, not any bias, even an innocent and
accidental bias, in the jury selection process. Hence, systematic exclusion has not been proven.”
Defendant appeals again, arguing that he was denied his Sixth Amendment right to be
tried by an impartial jury drawn from a fair cross-section of the community when there was only
one African-American in the jury venire of 42 people.
II. STANDARD OF REVIEW
We review de novo questions regarding systematic exclusion of minorities from jury
venires. People v Hubbard (After Remand), 217 Mich App 459, 472; 552 NW2d 493 (1996).
III. ANALYSIS
The issue in this case is whether defendant was denied his Sixth Amendment right to be
tried by an impartial jury drawn from a fair cross-section of the community when there was only
one African-American in the jury venire of 42 people.
The Sixth Amendment applies to the states through the Due Process Clause of the
Fourteenth Amendment. Duncan v Louisiana, 391 US 145, 149; 88 S Ct 1444; 20 L Ed 2d 491
(1968). In addition, the Michigan Constitution guarantees the right to trial by jury. Const 1963,
art 1, § 14. In Taylor v Louisiana, 419 US 522, 528; 95 S Ct 692; 42 L Ed 2d 690 (1975), the
United States Supreme Court stated “that the selection of a petit jury from a representative cross
section of the community is an essential component of the Sixth Amendment right to a jury
trial.” While the “fair-cross-section requirement does not entitle the defendant to a petit jury that
mirrors the community[,]” it “guarantees an opportunity for a representative jury by requiring
that 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 constitute a fair
cross section of the community.” Hubbard, 217 Mich App at 472-473.
In Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979), the United
States Supreme Court articulated the showing that a defendant must make to establish a prima
facie violation of the Sixth Amendment fair cross-section requirement:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to a systematic
exclusion of the group in the jury-selection process.
Once a defendant establishes a prima facie violation of the fair cross-section requirement, “the
government may overcome the right to a proper jury by proffering a significant state interest that
manifestly and primarily advances those aspects of the jury selection process that would result in
the disproportionate exclusion of a distinctive group . . . .” Hubbard, 217 Mich App at 473; see
also Duren, 439 US at 367-368.
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As we observed in our previous opinion in this case, defendant satisfied the first prong of
Duren because “African-Americans are considered a constitutionally cognizable group for Sixth
Amendment fair-cross-section purposes.” Hubbard, 217 Mich App at 473.
The second prong of Duren “is satisfied where it has been shown that a distinctive group
is substantially underrepresented in the jury pool.” Id. at 474. Although it recently had the
opportunity to specify the preferred method of measuring if representation of a distinctive group
in the jury pool is fair and reasonable, the United States Supreme Court has not done so. See
Berghuis v Smith, ___ US ___, ___; 130 S Ct 1382; 176 L Ed 2d 249 (2010) (“[W]e would have
no cause to take sides today on the method or methods by which underrepresentation is
appropriately measured.”) In People v Smith, 463 Mich 199, 203; 615 NW2d 1 (2000), our
Supreme Court observed that federal courts since Duren have applied three different tests to
measure whether representation of a distinctive group in the jury pool is fair and reasonable: the
absolute disparity test, the comparative disparity test and the standard deviation test.
Recognizing that all three tests are subject to criticism, our Supreme Court stated the following
regarding the appropriate method to measure underrepresentation:
We thus consider all these approaches to measuring whether
representation was fair and reasonable, and conclude that no individual method
should be used exclusive of the others. Accordingly, we adopt a case-by-case
approach. Provided that the parties proffer sufficient evidence, courts should
consider the results of all the tests in determining whether representation was fair
and reasonable. [Smith, 463 Mich at 204.]
Because the United States Supreme Court did not adopt a specific test to measure
underrepresentation in Berghuis, we are bound to follow the case-by-case approach articulated
by our Supreme Court in Smith. On remand, there was evidence offered regarding all three
measuring tests. We will therefore address each test in turn.
The absolute disparity test measures the difference between the percentage of the
distinctive group in the population eligible for jury duty and the percentage of that group who
actually appear in the venire. Ramseur v Beyer, 983 F2d 1215, 1231 (CA 3, 1992). This Court
has previously recognized that the absolute disparity method of measuring underrepresentation is
of questionable usefulness when applied to a group that makes up a small percentage of the
population, Hubbard, 217 Mich App at 476-477, and in this case African-Americans who are
eighteen years of age or older made up a small percentage of the Kent County population when
defendant’s jury was selected. The evidence indicated that 8.25 percent of eligible voters in
Kent County were African-American. This Court has stated that an absolute disparity between
two percent and 11.2 percent is statistically insignificant and does not constitute substantial
underrepresentation. Id. at 475; see also Ramseur, F2d at 1232 (disparities of two percent to 11.5
percent do not constitute substantial underrepresentation). Populations that fall within this
percentage range can never be statistically significant because “the percentage disparity can
never exceed the percentage of African Americans in the community.” United States v Rogers,
73 F3d 774, 776-777 (CA 8, 1996). Even if the Kent County juror selection system excluded all
African-Americans from jury service, a successful Sixth Amendment fair cross-section challenge
would be impossible because the total percentage of African-American voters in the Kent
County population constitutes a percentage that is less than that which is considered statistically
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significant for Sixth Amendment fair cross-section purposes. See Hubbard, 217 Mich App at
477.
Dr. Paul Stephenson, Chair of the Department of Statistics at Grand Valley State
University, calculated the absolute disparity in this case to be 6.031 percent; however, he
observed that an analysis of absolute disparity is not a viable method of identifying or measuring
underrepresentation of the African-American community in this case for the reasons explained
above. While the absolute disparity of 6.03 percent in this case does not indicate substantial
underrepresentation, we conclude, like we did in Hubbard, “that the absolute disparity test is an
ineffective measure of acceptable disparity” because of the low percentage of African-Americans
who were eligible to vote in Kent County. Id. at 477. Thus, we decline to find the absolute
disparity test controlling in this case.
The comparative disparity test “measures the diminished likelihood that members of an
underrepresented group, when compared to the population as a whole, will be called for jury
service.” Ramseur, 983 F2d at 1231-1232. The diminished likelihood is calculated by dividing
the absolute disparity by the percentage of the population that is comprised of the distinctive
group in question. Dr. Stephenson applied the comparative disparity test to the venire from
which defendant’s jury was chosen and calculated the comparative disparity to be 73.1 percent.
This means that the venire for defendant’s trial had 73.1 percent fewer African-Americans than
could have been expected in Kent County. In rendering his calculation, Dr. Stephenson relied on
the 2000 United States Census, which indicates that 8.25 percent of the population of Kent
County 18 years of age or older is African-American.
In our previous opinion in this case, this Court articulated its belief that the comparative
disparity test was not controlling based on the fact that the population of African-Americans in
Kent County is small and therefore a small change in the jury pool distorts the proportional
representation. Bryant, unpub op at 3. We acknowledge the difficulties in applying this method
to a group that makes up a small percentage of the population. In choosing the appropriate test
to apply in this case, we are mindful that “[e]ach test is imperfect.” Berghuis, ___ US at ___.
We are further cognizant that some of the concerns with applying the comparative disparity test
to a group that makes up a small percentage of the population also exist with applying the
absolute disparity test, Hubbard, 217 Mich App at 476-477, that courts typically apply the
standard deviation test in Fourteenth Amendment cases, but not in Sixth Amendment cases, and
that no court in the country has accepted application of the standard deviation test alone as
determinative in Sixth Amendment challenges to jury selection systems. Smith, 463 Mich at
204. We must apply some test to measure the representation of African-Americans in
defendant’s venire, and the comparative disparity method at least yields a calculation that is
indicative of the underrepresentation of African-Americans in defendant’s venire. We agree
with the Eighth Circuit that as between the absolute and comparative disparity tests, the
1
This number represents the percentage of Kent County African-American residents who were
18 years of age or older (8.25 percent) minus the percentage of African-Americans appearing in
defendant’s venire (2.22 percent).
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comparative disparity test is most appropriate to measure underrepresentation in cases where the
percentage of African Americans in the relevant community is low. Rogers, 73 F3d at 776-777.
In Rogers, the Eighth Circuit opined:
While . . . both [absolute and comparative disparity] provide a simplified
statistical shorthand for a complex issue, the comparative disparity calculation
provides a more meaningful measure of systematic impact vis-a-vis the
‘distinctive’ group: it calculates the representation of African Americans in jury
pools relative to the African-American community rather than relative to the
entire population. [Id.]
For the above outlined reasons, we conclude that the comparative disparity test is the
most appropriate test to measure underrepresentation in this case.2
Seventy-three and one tenth percent is a significant comparative disparity and is
sufficient to demonstrate that the representation of African-Americans in the venire for
defendant’s trial was unfair and unreasonable. See Rogers, 73 F3d at 777 (holding that
comparative disparity of more than 30 percent satisfies the second prong of Duren); see also
Smith, 463 Mich at 219 (CAVANAGH, J., concurring) (comparative disparities of forty percent
have been held to be borderline). In any event, the comparative disparity in this case, 73.1
percent, is substantially higher than the 30 or 40 percent that have been deemed sufficient to
demonstrate an unfair and unreasonable representation of minorities in a jury venire. Thus,
under the comparative disparity test, defendant has established that African-Americans were
underrepresented on the venire from which his jury was selected.
On remand, there was some evidence regarding the standard deviation test, which
explains the probability that any disparity was the result of random chance. Smith, 463 Mich at
219 (CAVANAGH, J., concurring). Standard deviation is calculated “by multiplying the number
of prospective jurors in the jury pool by the percentage of the distinct group in the population by
the percentage of the population that is not in the distinct group, and then taking the square root
of that product.” Id. at 220. At one of the post-remand evidentiary hearings, Dr. Chidi testified
that the appearance of one African-American in the venire failed the standard deviation test. In a
report that was admitted into evidence on remand, Dr. Chidi calculated the standard deviation to
be 27.86. This figure is close to the 29 standard deviation condemned in Castaneda v Partida,
2
To the extent that the previous unpublished opinion in this case concluded that the comparative
disparity test is not controlling, we find that the law of the case doctrine does not preclude this
Court from concluding, after remand, that the comparative disparity test is the appropriate test to
measure underrepresentation under the facts of the case. First, the law of the case doctrine
applies only if the facts remain substantially or materially the same, People v Phillips (After
Second Remand), 227 Mich App 28, 32; 575 NW2d 784 (1997), and in this case the trial court
conducted several evidentiary hearings on remand, which yielded significant expert testimony
regarding each of the three measuring tests. Second, the law of the case doctrine does not limit
an appellate court’s power but is instead a discretionary rule of practice. Schumacher v Dep’t of
Natural Resources (After Remand), 275 Mich App 121, 128; 737 NW2d 782 (2007).
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430 US 482, 496 n 17; 97 S Ct 1272; 51 L Ed 2d 498 (1977). However, Dr. Stephenson’s
opinion regarding use of the standard deviation test was that the “test uses a normal
approximation of a binomial random variable. In this case, the normal approximation is not
valid, and therefore, the standard deviation test is not appropriate.” Furthermore, our Supreme
Court has noted that the standard deviation test is not typically used in Sixth Amendment cases
and that “‘no court in the country has accepted [a standard deviation analysis] alone as
determinative in Sixth Amendment challenges to jury selection systems.’” Smith, 463 Mich at
204, quoting United States v Rioux, 97 F3d 648, 655 (CA 2, 1996). For these reasons, we
conclude that in this case, the standard deviation test has little value in measuring
underrepresentation of African-Americans in Kent County jury venires.
The third prong of Duren requires proof that underrepresentation of African-Americans
“is due to systematic exclusion of the group in the jury-selection process.” Duren, 439 US at
364. Systematic exclusion is exclusion “inherent in the particular jury-selection process
utilized.” Id. at 366. Systematic exclusion is not shown by one or two incidents of
disproportionate venires. Hubbard, 217 Mich App at 481. In Duren, the United States Supreme
Court concluded that underrepresentation of women in every weekly venire for nearly a year
constituted underrepresentation that was systemic. Id. at 366.
In this case, there was evidence of a significant problem with the jury-selection process,
and plaintiff has conceded that this problem lasted for a significant duration. The problem with
the jury selection process in Kent County was twofold. First, the Secretary of State provided
Kent Count with a list of 453,414 individuals who were eligible to vote in Kent County, but the
Information Technology department for the Kent County Circuit Court erroneously reduced this
list to only 118,000 individuals. Second, it is not disputed that a computer program used in Kent
County did not select jurors at random across all zip codes, as it was supposed to do. As a result
of the problem with the computer program, jurors were overselected from zip codes with small
minority populations and underselected from zip codes with large minority populations.
Although plaintiff has not submitted a brief on appeal after remand, plaintiff previously
conceded that “there was indeed a problem in the jury selection process in Kent County which
occurred from late 2001 to July 2002,” explaining:
“[I]n essence . . . a computer program used to select potential jurors chose a
disproportionately large number of jurors from areas with lower zip codes, which
had the unintended effect of selecting fewer jurors from areas of the county where
African-Americans live. The assumption is that this led to an artificial shortfall of
African-American jurors, though to what extent has never been determined.”
[Bryant, unpub op at 4.]
We find that the underrepresentation in this case was the result of the system by which
juries in Kent County were selected because jurors from zip codes with small minority
populations were routinely over selected and jurors from zip codes with large minority
populations were routinely under selected because of a glitch or problem with the computer
program that selected jurors. Because of this problem with the computer program,
underrepresentation was inherent in the jury-selection process utilized in Kent County during the
time that the computer glitch existed. It is irrelevant that the problem with the computer program
failing to randomly select jurors across all zip codes does not appear to be intentional. A party
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need not show that the underrepresentation of a distinctive group came as a result of intentional
discrimination. Duren, 439 US at 368 n 26.
Moreover, there was evidence that the error began in April 2001, and persisted over a
period of sixteen months. Terry Holtrop, the case management manager for the Kent County
Circuit Court, testified that he became aware in April 2001 that there was a problem of
underrepresentation of minorities on Kent County juries. Gail VanTimmeren, the jury clerk for
the Kent County Circuit Court, testified that it was “visually evident” that there were not enough
minorities coming in for jury duty and that she had spoken to the administrator “over and over
again” about this. Van Timmeren asserted that on a number of occasions, she handpicked
individuals who appeared to be African-American to be placed on a panel from which a jury
would be selected. She asserted that “we significantly, in every single week, were not getting
minorities in, and something was wrong.”
There was also testimony and statistical evidence3 presented by Dr. Stephenson that
supports our conclusion that underrepresentation of African-Americans on Kent County jury
venires occurred over a significant period of time. Dr. Stephenson examined census data and
determined that in the vast majority of the zip codes that were overrepresented, there was a small
number of African-Americans, and in the zip codes that were underrepresented, there were a
large number of African-Americans. Furthermore, Dr. Stephenson testified that “the way that
the process was performing did, in effect, over the long run, create a situation where black or
African-Americans were going to be underrepresented, in my opinion, in the compilation of jury
venires.” Dr. Stephenson also provided data and statistics that permit this Court to calculate the
comparative disparity for the three-month period of January through March 2002 at 49.5 percent.
This is higher than the 30 percent found to satisfy the second prong of Duren in Rogers, 73 F3d
at 777.
In sum, we conclude that defendant has established a prima facie violation of the Sixth
Amendment’s fair cross-section requirement. Because defendant established a prima facie
violation, the burden shifts to plaintiff to demonstrate that “a significant state interest [is]
manifestly and primarily advanced by those aspects of the jury selection process . . . that result in
the disproportionate exclusion of” African-Americans. Duren, 439 at 367-368. Plaintiff has not
submitted a brief on appeal after remand and has not proffered any significant state interest that
would be advanced by the errors and computer glitch that resulted in the systematic
underrepresentation of African-Americans in Kent County jury venires. In fact, we cannot
conceive of any significant state interest that could possibly justify the jury selection process
used in Kent County during the time the computer glitch systematically excluded AfricanAmericans from jury venires.
3
The trial court’s conclusion that statistics are inadequate to demonstrate underrepresentation is
incorrect. In Duren, 439 US at 364, the United States Supreme Court found that “[t]he second
prong of the prima facie case was established by petitioner’s statistical presentation.”
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Reversed and remanded for a new trial before an impartial jury that is drawn from a fair
cross-section of the community. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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