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Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012), available on SSRN.

Americans know that there is something wrong with a guilty verdict rendered by “an all-white jury.”  But translating that something into a constitutional issue, never mind a constitutional right, is not straightforward. Indeed, it has become downright complicated and, as Nina Chernoff argues, totally wrong.

Often, the first impulse when faced with the “all white jury” problem is to conceptualize the problem as one of equality.  It seems discriminatory–unequal–when the person on trial is a member of a racial minority and is not “represented” on the jury.  And indeed, this may violate the Equal Protection Clause of the Fourteenth Amendment.  But not necessarily.  The Equal Protection Clause, as presently construed in American constitutional doctrine, generally requires discriminatory intent.  On the other hand, persons accused of crimes are afforded rights in the Bill of Rights that are not grounded in equality, but in fairness. The Framers of the Constitution, most of whom had committed the crime of treason during the Revolutionary War, were quite invested in fairness of process. For example, the Sixth Amendment guaranteeing an accused person assistance of counsel, confrontation of the witnesses against one, and a speedy and public trial.  The Sixth Amendment also guarantees an “impartial jury.”  In common parlance, this is a “jury one one’s peers.”  In constitutional doctrine, it requires that the jury members be “drawn from a fair cross-section of the community.”

This “fair cross-section of the community” requirement has become entangled with equal protection doctrine.  Nina Chernoff unravels the problem in Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards.  She does not argue for a theoretical revision of either the Sixth Amendment impartial jury guarantee or the Fourteenth Amendment’s equal protection provision.  She does not argue for a new rule or standard.  Instead, she simply argues that courts should correctly apply well-settled “fair cross-section” doctrine and not conflate it with equal protection analysis.

Chernoff’s seemingly modest argument, however, is far from timid.  She examined 167 cases decided from 2000- 2011 by federal circuit courts and state supreme courts.  In not one case did a court conclude that there was a “fair cross-section” violation.  This might mean, of course, that there are no problems, although a fair number of criminal defendants (or at least their lawyers) seemed to believe there was severe underrepresentation in the jury pool.  Chernoff also cites conclusions from a number of commissions and task forces investigating racial and ethnic underrepresentation on juries indicating significant disparities.  More compellingly, however, Chernoff demonstrates how the judicial opinions themselves undermine their own conclusions.  Even as the courts find no Sixth Amendment violation, the same courts aver there are “real problems with the representation of African-Americans on our juries, and the crisis of legitimacy it creates,” and describe the evidence of underrepresentation as “disquieting,” “troubling,” and “worthy of concern.”  One court devoted six pages to a discussion of possible remedies for the problem of racial disparity in that system and another court even mandated changes to the jury system; both courts, however, denied the defendant’s constitutional challenge.

The denials are understandable because the courts are “reading in” equal protection standards requiring intent rather than “fair cross-section” standards that rest on result.  Of the many cases Chernoff discusses, the one from the federal court in the District of Connecticut stands out.  There seemed to be no dispute that African-American and Latinos were underrepresented in the jury pool and that this occurred because not a single jury summons had ever been sent to New Britain or Hartford, the counties that contained over 60% of the voting-age Black and Latino population.  There was never any explanation regarding the New Britain residents, whose names were never entered into the computer.  There was, however, an explanation regarding the Hartford residents: a computer programming error caused the “d” in Hartford to be interpreted as “deceased.”  Thus, everyone in Hartfor“d” was “unavailable” to serve on a jury.  Both the unexplained and explained errors were not intentional.  Any fault was negligent at best:  the court stated that “as often happens in overburdened courts (like other institutions), the failure to adopt a proper procedure might have resulted simply from the unwarranted assumptions by all concerned” that the system is operating as it should.

Chernoff argues that the correct analysis in such cases ignores intent.  Supreme Court precedent is squarely on her side.  In Duren v. Missouri, 439 U.S. 357 (1979), a case involving the exclusion of women jurors and argued by now-Justice Ruth Bader Ginsburg, the Court clarified the standard.  The Court stated that in contrast to an equal protection claim regarding the jury pool, in a Sixth Amendment fair-cross-section claim the “systematic disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.”  In other words, impact alone is sufficient.  Yet as Chernoff demonstrates, courts ignore this language and contaminate the systematic exclusion requirement with an intent element.  As a result, the fair cross-section of the community guarantee for criminal defendants is essentially nullified.

Chernoff does not speculate on the rationale for the confusion.  It may be that the courts cannot help but be concerned with blameworthiness, especially when it implicates judicial integrity.  It may be that courts misconstrue the meaning of the word “systematic.”  It may be that the right to have a “jury of one’s peers” sounds more like equality than other Sixth Amendment guarantees such as the right to assistance of counsel.  Or it may be that the equal protection standard requiring intent has so insinuated itself into our constitutional understandings that it is implied even when it is not present.

But these speculations also implicate a much larger issue.  It may be that the intent requirement in equal protection doctrine itself is wrong.  Certainly, this intent requirement comports with United States Supreme Court decisions, most notably Washington v. Davis, 426 U.S. 229 (1976), holding that discriminatory impact was insufficient to support an infringement of the right to equal protection.  An impact rule, the Court stated in Washington v. Davis, would raise “serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.”

Chernoff raises serious questions about the misuse of equal protection’s intent requirement in the “fair cross-section” context.  She demonstrates how the doctrines have become convoluted and thus rendered the fair cross-section doctrine incorrect.  Yet she also exposes just how damaging the discriminatory intent requirement can be, whenever equality or fairness is at stake.

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Cite as: Ruthann Robson, Equality vs. Fairness, JOTWELL (June 11, 2012) (reviewing Nina W. Chernoff, Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Imposing Equal Protection Standards, Hastings L.J. (forthcoming 2012), available on SSRN),