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Alien Reshapes Jury-Selection Claims,|but Fails to Benefit Himself

(CN) - An alleged illegal immigrant who lost his criminal appeal in the full 9th Circuit on Wednesday nevertheless changed how future jury-selection claims will be examined.

Indicted in San Diego for being a deported alien found in the United States, Salvador Hernandez-Estrada attacked the Southern District of California's jury-selection procedures as outdated and illegal.

His motion to dismiss decried, among other things, the district's use of voter-registration rolls rather than motor-vehicle records to build jury pools. Outdated questions about English skills, and the district's failure to return juror questionnaires to those who neglected to answer ethnicity questions also precluded a "fair cross-section" of the population from juries, in violation the Jury Selection Act and the Fifth and Sixth Amendments, the motion alleged.

U.S. District Judge Barry Moskowitz refused to dismiss, however, and Hernandez was eventually convicted. But the judge also agreed with Hernandez that the Southern District's procedures needed reform and suggested that the court do so.

This and a subsequent 9th Circuit panel ruling resulted in General Order 626-A, which made several changes last year to the way the Southern District composes its jury pool.

Though the changes did not include a switch to voter-registration lists, the new rules require court employees to submit doubts about a prospective juror's English skills to a jury judge. The order also revises a questionnaire about English skills and ethnicity. The questionnaire now clarifies that a person's ethnicity has "absolutely no bearing on qualifications for jury service."

Hernandez's attorney, Michele McKenzie of Federal Defenders of San Diego Inc., said that while such changes are a step in the right direction," there are still significant steps that need to be taken in our district to give litigants and the community confidence in the representativeness of our federal jury pool."

Despite inspiring such reforms in San Diego, Hernandez failed in 2012 to convince a panel of the 9th Circuit to reverse his conviction. Chief Judge Alex Kozinski meanwhile questioned the 9th Circuit's exclusive use of the "absolute disparity test" in jury-selection cases, and the court reheard the case before an 11-judge panel that affirmed dismissal on Wednesday.

Though Hernandez failed to show discriminatory intent in the jury-selection process and lacked sufficient evidence for his claims, the en banc panel used the case to reject the process by which it has examined jury-selection claims for nearly 40 years.

Just as he had done in the Southern District, Hernandez succeeded in prodding the 9th Circuit to change without benefiting from it himself.

Hernandez had argued that the "absolute disparity test," which the 9th Circuit has used exclusively since 1977, unfairly favors large groups. Essentially, the test examines the difference between a minority group's percentage in the community at large and its percentage in the jury pool.

Applying the method in Hernandez's case, the District Court in 2009 found that "the absolute disparity on the qualified jury wheel for Hispanics in the Southern District was -2.07% (i.e., Hispanics were over-represented by 2.07%) and for African Americans was 1.71% (i.e., African Americans were underrepresented by 1.71%)." (Parentheses in original.)

In the 7-4 en banc ruling Wednesday, the majority chose to "abandon the absolute disparity approach," and refused to "prescribe an alternative exclusive analysis to be applied in every case."

"The appropriate test or tests to employ will largely depend on the particular circumstances of each case," Judge Sidney Thomas for the panel. "Instead, we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented."

Thomas also noted that the challenging party must establish not only statistical significance, but also legal significance.

"The results of any statistical method must be examined in the context of the likely, actual, 'real life' impact on the jury pool at issue," Thomas added. "As we have observed in earlier cases, 'we look to people not percentages.'"

Though lamenting the loss for Hernandez, McKenzie said he is "optimistic about the possible long term effect of the court's ruling."

"By allowing lower courts more flexibility to use a wider range of statistical tools to understand the composition of their jury wheels, I hope that courts will have more information to assess whether their juries really are representative of their communities as required by the Constitution and the Jury Selection and Service Act," the lawyer said in an email.

Judge Milan Smith agreed that Hernandez did not deserve reversal but used an extended Don Quixote allusion in a concurrence to criticize the ruling as needless.

"I agree with the majority that we should affirm the judgment of the district court," wrote Smith, joined by Judges Barry Silverman and Carlos Bea. "The majority, however, declines to confine its opinion to answering the questions that are necessary to the resolution of this appeal. Instead, it treats this straight-forward case as a convenient Rocinante that it can mount like a knight-errant to challenge the specter of windmill giants on the distant horizon - be they real or imagined. I decline to join the majority's glorious quest."

In his own concurrence, Judge N.R. Smith warned that the uncertainty loosed by the new "laissez faire approach" to jury-selection cases is "likely to precipitate entirely uncertain - and likely conflicting - outcomes."

The case may yet be far from over, as McKenzie said that he plans to petition the Supreme Court for a writ of certiorari.

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