Minorities on Juries Subject of High Court

     WASHINGTON (CN) - The Supreme Court heard arguments Wednesday on how to decide if minorities are systematically excluded from jury duty, but justices seemed hesitant to impose measures necessary to increase jury attendance of blacks -- who are disproportionately excused from duty because of childcare obligations, lack of transportation and past felony convictions.
     "Are there courts that you know of that do what you are suggesting needs to be done?" Justice Samuel Alito asked of the lawyer pushing for more minority inclusion in juries. "Somebody says, 'I am a single parent, and I'm too poor to have a nanny and therefore please excuse me,' and they say, 'no'."
     Diapolis Smith, who is black, was convicted by an all-white jury for shooting a man to death during a Michigan bar fight involving seven people, and was sentenced to life in prison. Witnesses disagreed on who fired the fatal shot.
     Smith had challenged the jury's racial composition before the jury was sworn. Adult blacks made up just more than seven percent of the population in Kent County, where the trial took place, but they comprised six percent of the jury pool.
     Solicitor General Eric Restuccia represented Michigan and the warden Mary Berghuis. He argued that there was no systematic effort to exclude blacks from juries, pointing to what he called only a small discrepancy between the proportion of blacks in the population and that in the jury pool. He also suggested that if a group represented less than 10 percent of a population - like the black community in this case - that its disparity not be counted because proportions on the jury could wildly fluctuate.
     The justices appeared to favor Michigan's arguments, saving their most challenging questions for Smith's lawyer.
     Justice Sonia Sotomayor seemed to ask the toughest questions of Restuccia. "You would suggest that in a population that has nine percent of any protected group, that if they didn't have one person serve on a jury per year of that group, that would not give rise to any kind of suspicion?" she asked. "Does that make any sense to you?"
     Sotomayor added that the decision of when the exclusion of a minority group from a jury is questionable should be left to lower courts. "We can't use one test to determine that."
      Justice Antonin Scalia approached from the opposite direction. "What's wrong with a rule?" he asked. I don't have to review all of these cases all the time. Why don't we pick a number? You want 10, right?"
      Justice Samuel Alito suggested the court downplay the numbers. "The defendant has to identify some aspect of the jury selection process that has a disproportionate impact on the group involved and is unreasonable," he said. "And unless that can be done at the outset, why struggle with these statistics?"
     Restuccia agreed. "I think that may be the easiest way to resolve this case," he said.
     Justice John Paul Stevens expressed some support for the idea of neglecting discrepancy if a group of people is too small. "Isn't it perfectly obvious that you are going to have dramatic differences where you only have a very small percentage?"
     In 1979, the Supreme Court ruled in Duren v. Missouri that in order for a jury to not be a fair cross section of the community - as required by the 6th Amendment - the group excluded from the jury must first be "distinctive," that there be an unreasonable discrepancy between the group's representation in the community and in the jury pool, and that the discrepancy result from a systematic exclusion of the group.
     James Sterling Lawrence represented Smith. He said that blacks are more likely than whites to claim childcare duties and lack of transportation in declining to show up for jury duty, and that these exemptions systematically exclude blacks. But he also said that the discrepancy alone represents a systematic exclusion of blacks from the jury pool.
     Lawrence said that if Michigan's ten percent proposal were accepted, laws on fair representation wouldn't apply to 60 percent of the country for blacks, and 90 percent of the country for Hispanics, and never for Native Americans.
     He proposed that the courts actively promote minority involvement in the jury system.
     Alito appeared heavily critical. "Are there courts that you know of that do what you are suggesting needs to be done?" he asked. 'When a juror doesn't show up, the judges use a bench warrant, and the police are sent out to arrest the person and drag the person into court?"
     Chief Justice John Roberts implied that there was not a great deal of exclusion going on in the selection process of this case. "If there were one more African-American, what would the percentage be?" he asked Sterling. "Pretty close to what you are saying it should be, right?"
      Lawrence replied that if there had been two more blacks in the jury pool, it would have been an accurate representation of the district.
     Scalia probed Lawrence on his claim that the proportional discrepancy automatically meant there was a systematic exclusion of blacks. "You are telling us that you don't have to proceed to step three," he said in reference to the guidelines set out in Duren. "Once you show the disparity, it is assumed that it is the product of the system?"
     Few blacks were available for Smith's jury selection, with only three blacks in the pool of an estimated 60 to 100 prospective jurors summoned.
     Jurors with state identity cards were summoned from a list of only names.
     While no records were kept on the race of exempted jurors, evidence was presented during earlier proceedings showing minorities were more likely to be exempted from duty for reasons such as past felony convictions, childcare obligations or lack of transportation.
     The state district court rejected Smith's challenge, finding that Smith's right to an impartial jury drawn from a fair cross section of the community was satisfied, claiming that blacks were not proven to be systematically excluded from the jury pool.
     The Michigan Court of Appeals reversed, holding that the jury selection system did systematically exclude minority jurors, noting that jurors there are first selected for district court trials before they are available for selection on circuit court juries.
     The Michigan Supreme Court reversed, holding that Smith's rights weren't violated.
     The 6th Circuit then reversed, holding that Smith had successfully demonstrated a violation of his Sixth Amendment rights to be judged by a jury consisting of a fair cross-section of the community.