Berghuis v. Smith Brief for the NAACP Legal Defense & Educational Fund as Amicus Curiae in Support of Respondent
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December 28, 2009

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Brief Collection, LDF Court Filings. Berghuis v. Smith Brief for the NAACP Legal Defense & Educational Fund as Amicus Curiae in Support of Respondent, 2009. 3e08ecb5-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/83518c08-306a-49ce-a6b8-4307f2223a9a/berghuis-v-smith-brief-for-the-naacp-legal-defense-educational-fund-as-amicus-curiae-in-support-of-respondent. Accessed July 18, 2025.
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No. 08-1402 In THE Supreme (Court of the lilntteh States MARY BERGHUIS, Warden, v. DIAPOLIS SMITH, Petitioner, Respondent. On W rit of Certiorari to the U nited States Court of A ppeals for the S ixth C ircuit BRIEF FOR THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., AS AMICUS CURIAE IN SUPPORT OF RESPONDENT V irginia A. S eitz Gary F einerman J e ffr e y T. G r een R ebecca K. T roth A nand H . D as S idley A ustin llp 1501 K Street, NW Washington, DC 20005 (202) 736-8000 Sarah O’R ourke S chrup N orthwestern U niversity S upreme C ourt P racticum 357 East Chicago Avenue Chicago, IL 60611 (312) 503-8576 J ohn P ayton Director- Counsel D ebo P A degbile C hristina Swarns* J ohanna B. S teinberg J in H ee L ee V incent M. S outherland M ary H unter NAACP L egal D e fen se & E ducational F und , I nc . 99 Hudson St., 16th Floor New York, NY 10013 (212) 965-2200 Counsel for Amicus Curiae December 28, 2009 * Counsel of Record TABLE OF CONTENTS Page TABLE OF AUTHORITIES................................ iii INTEREST OF THE AMICUS CURIAE............ 1 SUMMARY OF ARGUMENT................................. 2 ARGUMENT............................................................. 3 I. REPRESENTATIVE DEMOCRACY IS THE CENTERPIECE OF THE SIXTH AMENDMENT RIGHT TO A JURY CHOSEN FROM A FAIR CROSS- SECTION OF THE COMMUNITY................. 3 A. The Value Of Representation In Jury- Service .................................... 3 B. Dureris Prima Facie Test Secures The Goals Of The Sixth Amendment.............. 5 1. First Prong: Distinctive Groups......... 5 2. Second Prong: Fair And Reasonable Representation..................................... 6 3. Third Prong: Systematic Exclusion .... 9 II. THE MICHIGAN SUPREME COURT’S DECISION CONTRAVENES THIS COURT’S FAIR CROSS-SECTION PRE CEDENTS .................................................... 9 A. The State Court Proceedings................... 10 B. The Michigan Supreme Court Erred In Holding That Mr. Smith Failed To Demonstrate Constitutionally Signifi cant African American Underrepresen tation ........................................................ 14 (i) ii TABLE OF CONTENTS—continued Page C. Kent County’s Siphoning Of Prospective Jurors From The Circuit Court To The District Courts Systematically Excluded African Americans From Circuit Court Venires....................................................... 17 III. AEDPA DID NOT REQUIRE THE COURT OF APPEALS TO IGNORE KENT COUNTY’S CONSTITUTIONAL VIOLATION................................................. 21 A. The Michigan Supreme Court Was Objectively Unreasonable In Deter mining That African Americans Were Not Underrepresented To A Constitu tionally Significant Degree In Kent County’s Circuit Court Venire Pool......... 23 1. The Sixth Amendment’s Fair Cross- Section Requirement Is Clearly Established Law.................................. 23 2. The Michigan Supreme Court’s Un reasonable Application Of Clearly Established Law.................................. 25 B. The Michigan Supreme Court Was Objectively Unreasonable In Deter mining That African Americans Were Not Systematically Excluded From Kent County’s Circuit Court Venire Pool......... 27 CONCLUSION.................................................... 31 TABLE OF AUTHORITIES CASES Page Alexander v. Louisiana, 405 U.S. 625 (1972) ...................................................... 1,7 Amadeov. Zant, 486 U.S. 214 (1988)......... 1 Apodaca v. Oregon, 406 U.S. 404 (1972).... 4 Azania v. State, 778 N.E.2d 1253 (Ind. 2002)................................................ 7 Ballard v. United States, 329 U.S. 187 (1946)........................................................ 3 Batson v. Kentucky, 476 U.S. 79 (1986)..... 2 Carey v. Musladin, 549 U.S. 70 (2006)....... 22, 24 Carter v. Jury Comm’n o f Greene County, 396 U.S. 320 (1970).................................. 1 Castaneda v. Partida, 430 U.S. 482 (1977). 9 Davis v. Warden, 867 F.2d 1003 (7th Cir. 1989).......................................... 30 Duren v. Missouri, 439 U.S. 357 (1979)................................. passim Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).................................. 2 Ford v. Seabold, 841 F.2d 677 (6th Cir. 1988).......................................... 28 Georgia v. McCollum, 505 U.S. 42 (1992)... 1 Ham v. South Carolina, 409 U.S. 524 (1973) ...................................................... 1 Hobby v. United States, 468 U.S. 339 (1988)........................................................ 1 Holland v. Illinois, 493 U.S. 474 (1990)..... 3 Johnson v. California, 545 U.S. 162 (2005)........................................................ 1, 31 Knowles v. Mirzayance, - U.S. ", 129 S.Ct. 1411 (2009)............................................... 24 Lockhartv. McCree, 476 U.S. 162 (1986)... 4, 5, 6 Lockyerv. Andrade, 538 U.S. 63 (2003)..... 22 IV TABLE OF AUTHORITIES—continued Page Miller-Elv. Cockrell, 537 U.S. 322 (2003)... 1 M iller-Elv. Dretke, 545 U.S. 231 (2005).... 1 Norris v. Alabama, 294 U.S. 587 (1935)..... 16 Panetti v. Quarterman, 551 U.S. 930 (2007)......................................................... 22 Paredes v. Quarterman, 574 F.3d 281 (5th Cir. 2009).......................................... 28 Parents Involved v. Seattle, 551 U.S. 701 (2007)......................................................... 17 People v. Burgener, 62 P.3d 1 (Cal. 2003)... 7 Peters v. Kiff, 407 U.S. 493 (1972)...... 4, 5, 6, 9 Ramseur v. Beyer, 983 F.2d 1215 (3d Cir. 1992)............................................ 17 Schriro v. Landrigan, 550 U.S. 465 (2007)......................................................... 24 Smith v. Texas, 311 U.S. 128 (1940)....... 3, 4 State v. Dixon, 593 A.2d 266 (N.J. 1991).... 7 Statev. Gibbs, 758 A.2d 327 (Conn. 2000).. 7 State v. Lovell, 702 A.2d 261 (Md. 1997) .... 7 State v. Williams, 525 N.W.2d 538 (Minn. 1994)............................................. 7 Strickland v. Washington, 466 U.S. 668 (1984)......................................................... 24 Swain v. Alabama, 380 U.S. 202 (1965)...... 1 Taylor v. Louisiana, 419 U.S. 522 (1975)..................................................... passim Turner v. Fouche, 396 U.S. 346 (1970)....... 1 United States v. Green, 435 F.3d 1265 (10th Cir. 2006)........................................ 6 United States v. Butler, 615 F.2d 685 (5th Cir. 1980).......................................... 16 United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995)........................................ 7, 8, 15 United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980).......................................... 16 V TABLE OF AUTHORITIES—continued Page United States v. Rogers, 73 F.3d 774 (8th Cir. 1996)...................................... 8, 16, 17 United States v. Weaver, 267 F.3d 231 (3d Cir. 2001)............................... 7,28 Washington v, People, 186 P.3d 594 (Col. 2008)................................................. 7 Williams v. Taylor, 529 U.S. 362 (2000)................................................. 21,22,24 Wright v. Van Patten, 552 U.S. 120 (2008)........................................................ 24 STATUTE 28 U.S.C. § 2254................................... 26 SCHOLARLY AUTHORITIES David Kairys, Joseph Kadane and John Lehoczky, Jury Representativeness■ A Mandate for Multiple Source Lists, 65 Cal. L. Rev. 776 (1977)............................. 8,15 Jeffrey Fagan, et. ah, Brief for Social Scientists, Statisticians, and Law Professors as Amici Curiae Supporting Respondent, Berghuis v. Smith (No. 08- 1402) 26 INTEREST OF AMICUS CURIAE1 The NAACP Legal Defense & Educational Fund, Inc. (“LDF”), is a non-profit corporation formed to assist African Americans and other people of color who are unable, on account of poverty, to employ legal counsel to secure their rights through the prosecution of lawsuits. LDF has a long-standing concern with democracy, representation, fair jury service and selection, and the influence of racial discrimination on the criminal justice system. LDF has therefore represented defendants and/or served as amicus curiae in numerous jury underrepresentation and jury selection cases before this Court including, inter alia, Amadeo v. Zant, 486 U.S. 214 (1988); Hobby v. United States, 468 U.S. 339 (1984); Ham v. South Carolina, 409 U.S. 524 (1973); Alexander v. Louisiana, 405 U.S. 625 (1972) and Swain v. Alabama, 380 U.S. 202 (1965). LDF also pioneered the affirmative use of civil actions to end jury discrimination in Carter v. Jury Comm’n o f Greene County, 396 U.S. 320 (1970), and Turner v. Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae in cases challenging the discriminatory use of peremptory challenges. See Miller-El v. Dretke, 545 U.S. 231 (2005); Johnson v. California, 545 U.S. 162 (2005); Miller-El x. Cockrell, 537 U.S. 322 (2003); Georgia v. McCollum, 505 U.S. 42 (1992); Edmonson v. Leesville Concrete Co., Inc., 1 No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amicus curiae, or its counsel, made a monetary contribution intended to fund its preparation or submission. The parties have consented to the filing of this brief and such consents are being lodged herewith. 2 500 U.S. 614 (1991); and Batson v. Kentucky, 476 U.S. 79 (1986). SUMMARY OF ARGUMENT The right to a jury drawn from a fair and representative cross-section of the community is a core value of the Sixth Amendment and is essential to the integrity and legitimacy of the judicial system. By embodying the value of representative democracy, the fair cross-section requirement secures the right to a fair trial, guarantees that all members of distinctive groups in the community will play a role in the administration of justice, and allows citizens to serve as a check on the government. These are the issues at the heart of Respondent Diapolis Smith’s case. The United States Court of Appeals for the Sixth Circuit correctly found that Mr. Smith’s Sixth Amendment right was violated after he was convicted by a jury in Kent County, Michigan, that was drawn from a pool from which African Americans were systematically excluded. Mr. Smith established that in the month his jury was selected, African Americans were 34 percent less likely to be in the venire pool relative to their jury-eligible percentage in the County. He also presented the uncontradicted testimony of Kent County officials who admitted that the County’s established practice of “siphoning” prospective jurors away from its circuit court and to its district courts caused African Americans to be underrepresented in the circuit court venire pool, and that the practice was ultimately terminated because of those disparities. Although this uncontested evidence proved that Kent County’s jury-selection system violated Mr. Smith’s Sixth Amendment rights, the Michigan Supreme Court rejected his claim by misapplying this 3 Court’s fair cross-section precedents. Its decision was not only incorrect, but also objectively unreasonable under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). ARGUMENT I. REPRESENTATIVE DEMOCRACY IS THE CENTERPIECE OF THE SIXTH AMENDMENT RIGHT TO A JURY CHOSEN FROM A FAIR CROSS-SECTION OF THE COMMUNITY. A. The Value Of Representation In Jury Service As explained by Respondent and supporting amici, Duren v. Missouri, 439 U.S. 357 (1979), is the culmination of this Court’s long line of decisions emphasizing the unique constitutional importance of jury representativeness.2 This Court has repeatedly recognized that all qualified segments of the population must have the opportunity to participate in the jury process. See Smith v. Texas, 311 U.S. 128, 130 (1940). Thus, “those eligible for jury service are to be found in every stratum of society,” Ballard v. United States, 329 U.S. 187, 193 (1946), and the systematic exclusion from jury service of distinctive groups is “at war with our basic concepts of a democratic society and a representative government.” Smith, 311 U.S. at 130; see also Lockhart v. McCree, 476 U.S. 162, 175 (1986) (explaining that the 2 In advancing this argument, am icus curiae does not assert that Mr. Smith has the right to a petit jury “of any particular composition.” Taylor v. Louisiana, 419 U.S. 522, 538 (1975). Rather, the Sixth Amendment fair cross-section right contemplates a “fair possibility” of a representative jury, which is satisfied by the “inclusion of all cognizable groups in the venire.” H olland v. Illinois, 493 U.S. 474, 478 (1990) (citation and in ternal quotation marks omitted). 4 wholesale exclusion of women, African Americans and Mexican Americans “clearly contravened . . . the purposes of the fair-cross-section requirement”)! Apodaca v. Oregon, 406 U.S. 404, 413 (1972) (“[T]he Constitution forbids. . . systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels,” and groups have “the right to participate in the overall legal processes by which criminal guilt and innocence are determined.”). Although “[t]he principle of the representative jury was first articulated by this Court as a requirement of equal protection,” it long ago “emerged as an aspect of the [Sixth Amendment] . . . right to jury trial.” Peters v. Kiff, 407 U.S. 493, 500 n. 9 (1972). Thus, in Taylor v. Louisiana, 419 U.S. 522, 528 (1975), this Court made explicit 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.” Soon thereafter, in Duren v. Missouri, this Court established a three-part test for demonstrating a prima facie case of a Sixth Amendment fair cross- section violation. 439 U.S. at 357. Specifically, this Court stated that: In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (l) 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 systematic exclusion of the group in the jury-selection process. 5 439 U.S. at 364. Once the prima facie showing has been made, “it is the State that bears the burden of justifying [its infringement on the Sixth Amendment fair cross-section right] by showing attainment of a fair cross section to be incompatible with a significant state interest.” Id. at 368. B. Dureiis Prima Facie Test Secures The Goals Of The Sixth Amendment. Each prong of Dureiis prima facie test furthers the purposes of the Sixth Amendment’s fair cross-section requirement: “guarding] against the exercise of arbitrary power [by] makting] available the commonsense judgment of the community as a hedge against. . . bias,” Taylor, 419 U.S. at 530, “preserving ‘public confidence in the fairness of the criminal justice system,’ and implementing our belief that ‘sharing in the administration of justice is a phase of civic responsibility.’” Lockhart v. McCree, 476 U.S. at 174-75 (quoting Taylor, 419 U.S. at 530-31). 1. First Prong: Distinctive Groups This Court has not “precisely define [d] the term ‘distinctive group,”’ but it has made clear that its meaning is “linked to the purposes of the [Sixth Amendment’s] fair cross-section requirement.” Id. at 174. Thus, women, African Americans and Mexican Americans have been properly designated distinctive groups because their exclusion offends the Sixth Amendment by undermining the legitimacy of the criminal justice system, denying the fundamental fairness guaranteed by an impartial jury trial, and removing a unique voice in the community from participation in the administration of justice. Id. at 175; see also Peters, 407 U.S. at 499-500, 503-04 (describing how exclusion of African Americans from 6 jury service thwarts the purposes served by the Sixth Amendment).3 2. Second Prong: Fair And Reasonable Representation Because “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,” Taylor, 419 U.S. at 528, courts must ensure that the representation of distinctive groups in venires is “fair and reasonable” relative to their presence in the community. This is, by definition, a context-sensitive evaluation. Since distinctive group size and composition vary from county to county, the determination whether venire representation fulfills the Sixth Amendment’s requirements must take into account all individual circumstances. Thus, there is no “one size fits all” mathematical standard or formula for measuring the reasonableness of a distinctive group’s representation 3 Petitioner’s contention that smaller groups (groups th a t constitute less than 10% of the venire pool) are not “distinctive groups” for this purpose, Pet. Br. a t 45-46, is wrong because it would eviscerate the fair cross-section requirem ent in most counties in this country and contravene the purposes of the requirem ent as set forth in Duren and Taylor. To the contrary, a group is distinctive whenever its exclusion implicates the Sixth Amendment. See, e.g. Lockhart, 476 U.S. a t 174-75; Peters, 407 U.S. a t 499-500, 503-04. Thus, federal courts of appeals determine whether a group is “distinctive” by examining whether “(l) [ ] the group is defined by a limiting quality (i.e., th a t the group has a definite composition such as by race or sex); (2) a common thread or basic similarity in attitude, idea, or experience runs through the group,' and (3) [there is a] community of interests among members of the group such that the group's in terest cannot be adequately represented if the group is excluded from the jury selection process.” U nited S ta tes v. Green, 435 F.3d 1265, 1271 (10th Cir. 2006) (gathering cases). 7 in venires. See Alexander, 405 U.S. at 630 (noting, in an equal protection case, that “[t]his Court has never announced mathematical standards for the demonstration of ‘systemic’ exclusion” of distinctive groups). Variations in population figures and factual scenarios have led federal appellate courts to consider different measures of representativeness depending on the size of the distinctive group. See United States v. Weaver, 267 F.3d 231, 242-243 (3d Cir. 2001) (considered facts to determine appropriate measure of representativeness); United States v. Jackman, 46 F.3d 1240, 1246-47 n.4 (2d Cir. 1995) (choosing measure of representativeness after considering facts).4 The most frequently used measures of representativeness are the absolute disparity and comparative disparity tests. “The absolute disparity test compares the members of a distinctive group that are jury eligible with those that appear on the 4 Many state supreme courts do the same. See W ashington v. People, 186 P.3d 594, 605 (Colo. 2008) (en banc) (advancing argum ent th a t “all the statistical evidence presented” should be examined by a court facing a fair cross-section claim); People v. Burgener, 62 P.3d 1, 22 (Cal. 2003) (noting th a t the California Supreme Court has declined to adopt a particular measure of underrepresentation); Azania v. State, 778 N.E.2d 1253, 1260 (Ind. 2002) (applying both absolute and comparative disparity); S ta te v. Gibbs, 758 A,2d 327, 336-37 (Conn. 2000) (explaining tha t the choice of proper statistical method is fact driven); State v. Lovell, 702 A.2d 261, 281 (Md. 1997) (advising M aryland state courts to use multiple measures and supplement absolute disparity figures with comparative disparity figures when the distinctive group population falls below 10 percent); Sta te v. Williams, 525 N.W.2d 538, 543 (Minn. 1994) (validating reliance on multiple statistical measures of venire representation); Sta te v. Dixon, 593 A.2d 266, 271 (N.J. 1991) (looking to multiple tests of underrepresentation in examining a fair cross-section and equal protection challenge to jury selection process). 8 venire.” Pet. App. 18a. The difference between these two data ■ the distinctive group’s jury eligible population figure and presence on the venire - is the absolute disparity. The comparative disparity standard, in contrast, measures the percentage by which the probability of serving on a jury venire is reduced for the members of the distinctive group. Comparative disparity is calculated by dividing the absolute disparity by the population figure of the distinctive group at issue. David Kairys, Joseph Kadane & John Lehoczky, Jury Representativeness- A Mandate for Multiple Source Lists, 65 Cal. L. Rev. 776, 790 (1977). While the absolute disparity method may have some utility when the minority population is relatively large, the approach is of little value when applied to an underrepresented group that is a smaller percentage of the total population. Where, as here, the minority population comprises less than 10 percent of the population, the absolute disparity test, with a maximum allowable disparity of 10 percent, yields meaningless results. Underrepresentations of small and medium-sized minority groups would be validated under this approach because, by definition, a smaller group can never have a large absolute disparity. See Kairys, supra, 65 Cal. L. Rev. at 795- 96. In such circumstances, applying the absolute disparity measurement improperly allows total exclusion of the minority group. See United States v. Rogers, 73 F.3d 774, 776-77 (8th Cir. 1996); Jackman, 46 F.3d at 1247. As the Sixth Circuit properly found below, the comparative disparity measurement is the “more appropriate measure of underrepresentation” where “the distinctive group alleged to have been underrepresented is small.” Pet. App. 20a. 9 3. Third Prong: Systematic Exclusion When the underrepresentation of a distinctive group is “inherent in the particular jury-selection process” used, it is deemed “systematic.” Duren, 439 U.S. at 366. Fair cross-section claims, unlike equal protection claims, do not require proof of intentional discrimination. See id. at 368 n.26. Consistent with their distinct purposes, the Sixth Amendment focuses on exclusion caused by the jury selection process, while the Equal Protection Clause is concerned with intentional discrimination by government officials involved in the jury selection process. See Castaneda v. Partida, 430 U.S. 482, 492-94 (1977) (addressing equal protection challenge to intentional racial discrimination in selection of grand jurors); Peters, 407 U.S. at 499-500 (describing constitutional values offended by purposeful exclusion of African Americans from jury service). While racially-based exclusion from jury service may be relevant to finding a Sixth Amendment violation, intentional discrimination is not necessary to such a claim, and the “disproportion itself demonstrates an infringement of the defendant’s interest in a jury chosen from a fair community cross section.” Duren, 439 U.S. at 368 n. 26. The Michigan Supreme Court’s decision must be evaluated within the context of this legal framework, which has been clearly established by this Court’s precedent. II. THE MICHIGAN SUPREME COURT’S DECISION CONTRAVENES THIS COURT’S FAIR CROSS-SECTION PRECEDENTS. The Michigan Supreme Court properly identified Duren s three-prong test as the standard for evaluating Mr. Smith’s fair cross-section claim. Pet. App. 144a. Its determination that Mr. Smith failed to 10 prove a Sixth Amendment violation cannot, however, be reconciled with this Court’s precedents. A. The State Court Proceedings Mr. Smith first raised his Sixth Amendment fair cross-section claim during jury selection for his Kent County Circuit Court trial. JA 3a-7a. The circuit court rejected Mr. Smith’s claim, but, on appeal, the Michigan Court of Appeals remanded his case for an evidentiary hearing to determine whether his jury was drawn from a fair cross-section of the community. Pet. App. 176a. At the evidentiary hearing, Mr. Smith, an African American, presented evidence that, although African Americans constituted 7.28 percent of the potential jurors in Kent County, Pet. App. 179a, 214a, his venire panel of 60 to 100 prospective jurors included, at most, three African Americans. JA 6a-7a. The parties examined 37 potential jurors during voir dire, all of whom were white. Pet. App 86a. Dr. Michael Stoline, testifying as an expert statistician in support of Mr. Smith, established that in September 1993, the month of Mr. Smith’s jury selection, African Americans were underrepresented by 34.8 percent, using a comparative disparity measure. JA 181a; Pet. App. 218a. In the six months preceding Mr. Smith’s trial, African Americans were underrepresented by an average of 18 percent.5 Id. 5 Dr. Stoline testified as to the number of African-American prospective jurors expected to appear on juror lists in each of the six months from April 1993 to October 1993. JA 217a. In the month tha t Mr. Smith’s jury was selected, an unbiased selection process should have produced 11.5 African-American prospective jurors on the juror lists. Id. a t 218a. Yet, under the County’s selection process, one could expect to see only 7.5 African Americans for circuit court venires. This resulted in an 11 Through the uncontested testimony of Kim Foster, Kent County’s Circuit Court Administrator, and Richard Hillary, Director of Kent County’s Public Defender’s Office and Co-Chair of the Jury Minority Representation Committee of the Grand Rapids Bar, Mr. Smith also presented evidence about the method of allocating prospective jurors to Kent County’s 12 district courts and one circuit court. The circuit court is a court of general jurisdiction that presides over felony criminal cases, like Mr. Smith’s case, throughout Kent County. By contrast, the district courts cover discrete geographic areas within the County and have limited criminal jurisdiction, hearing only misdemeanor criminal cases and preliminary criminal hearings. Prior to October 1993, Kent County had a practice of filling the district courts’ juror needs before assigning any prospective jurors to the circuit court panels. JA 20a, 22a! Pet. App. 8a. Thus, it was only after the 12 district courts received their prospective jurors that the remaining prospective jurors were made available for service in the circuit court. Id. The district courts used only prospective jurors who resided in their districts, while the circuit court used prospective jurors from throughout the County. Pet. App. 176a. Prospective jurors who were not selected for district court service were not returned to the circuit court jury pools. JA 64a - 65a. Kent County jury selection officials admitted that this practice of assigning prospective jurors to district courts before the circuit court effectively “siphoned” estimated underrepresentation of four prospective African- American jurors (or 34.8 percent) from the 11.5 figure that would have occurred without the selection bias. Id. Further details on the statistical methods employed by Dr. Stoline can be found in Resp. Br. a t 6-8. 12 jurors away from circuit court venire panels. Pet. App. 176a-77a, 168a. The qualified jurors siphoned away from the circuit court included residents of the City of Grand Rapids, which, at the time, was 18.5 percent African-American and contained 85 percent of Kent County’s African-American population. JA 197a! Pet. App. 29a. As Mr. Foster, the circuit court administrator, testified, the “districts essentially swallowed up most of the minority jurors,” leaving the circuit court with a jury pool that “did not represent the entire county.” JA 22a. Contrary to Petitioner’s contention, Pet. Br. at 61, Kent County jury officials were unequivocal in their testimony that the systematic siphoning significantly reduced the number of African-American prospective jurors available to the circuit court jury pool. Indeed, Mr. Foster testified that one month after Mr. Smith’s September 1993 jury selection, the County ended the siphoning practice because of the resulting racial disparities in the circuit court jury pool. JA 20a, 22a. He further noted that this change allowed the circuit court to access a “larger representation of the community [from which] to select [jurors],” thus remedying the “problem” of African-American underrepresentation. Id. at 22a. In addition, Mr. Hillary, the Co-Chair of the Jury Minority Representation Committee, testified that after “months of study,” his committee “made a determination that we were losing minorities by choosing the District Court jurors first and not returning the unused ones to . . . the pool that the Circuit Court was [choosing its jurors] from.” Id. at 64a-65a.6 6 As detailed in Resp. Br. a t 48-50, Mr. Smith also presented evidence tha t Kent County’s system of automatically accepting 13 At the conclusion of the evidentiary hearing, the Kent County Circuit Court found underrepresentation of African Americans in the circuit court venires, but ruled that there was no systematic exclusion, thus denying Mr. Smith’s fair cross-section claim. Pet. App. 209a, 212a. The Michigan Court of Appeals reversed the circuit court. In addition to holding that the “representation of blacks in venires from which juries were selected for Kent County Circuit Courts was at the time, i.e., before October 1, 1993, not fair and reasonable in relation to the number of such persons in the community,” the court also held that “the evidentiary record establishes that the juror allocation system in place before October 1993 [siphoning] drained the largest concentration of African-Americans from the master jury list.” Id. at 18la-182a. Thus, the court ruled that Mr. Smith was entitled to a new trial. Id. at 183a. The Michigan Supreme Court reversed the Court of Appeals. Although the Michigan Supreme Court held that African Americans are a distinctive group under Dureiis first prong, id. at 159a, it ruled that Mr. Smith’s “statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests.” Id. at 146a. In reaching its result, the court appeared to treat the absolute disparity test7 and other measurements of underrepresentation as equally valid, even though use of the absolute disparity test would have non-statutory excuses systematically excluded African American prospective jurors. 7 The state court appears to have applied an absolute disparity test with a 10 percent threshold. This is consistent with Petitioner’s recommendation in this case. 14 sanctioned the complete exclusion of African Americans from the jury pool. See id. The court then proceeded to give Mr. Smith the “benefit of the doubt” as to his claim of underrepresentation, and held that Mr. Smith had not demonstrated that African Americans were systematically excluded from Kent County’s circuit court venires. Id. at 147a-49a, 169a- 71a. One concurring judge noted that the risks of using an absolute disparity measurement are “particularly acute when the percentage of the distinctive group eligible for jury service is small.” Id. at 161a. He explained that in the instant case, “a complete exclusion of black jurors would result in only a 7.28 percent absolute disparity.” Id. B. The Michigan Supreme Court Erred In Holding That Mr. Smith Failed To Demonstrate Constitutionally Significant African American Underrepresentation. In September 1993, the month of Mr. Smith’s jury selection, African Americans were underrepresented by 34.8 percent, using a comparative disparity measure. JA 181a-182a! Pet. App. 218a; see also supra at 10. Although in the six months preceding his trial, African Americans were underrepresented by an average of 18 percent, many individual defendants, including Mr. Smith, faced even higher underrepresentation on their venires. The extent of the systematic underrepresentation on any particular venire impermissibly depended on the extent of the siphoning to district court juries at the given time. Thus, for example, in June 1993, the circuit court disparity spiked to 42.2 percent. Id. This demonstrated that African Americans were not fairly 15 and reasonably represented on Kent County Circuit Court venires relative to their size in the community. Despite this evidence, the Michigan Supreme Court held that while Mr. Smith “presented some evidence of a disparity between the number of jury-eligible African-Americans and the actual number of African- American prospective jurors selected to the Kent County Circuit Court jury pool list,” Pet. App. 146a, he failed to satisfy Dureris second requirement. Id. In reaching this conclusion, however, the court improperly relied on the absolute disparity test, which produces unreliable results when used to measure disparities in smaller distinctive group populations, such as the African-American community in Kent County. See Jackman, 46 F.3d at 1247 (questioning validity of absolute disparity for smaller populations due to risk of selecting “a large number of venires in which members of the group are substantially underrepresented or even totally absent”); Kairys, supra, 65 Cal. L. Rev. at 793 (criticizing absolute disparity as an inappropriate measure for smaller populations). At the time of Mr. Smith’s trial, African Americans in Kent County comprised 7.28 percent of the adult population. JA 172aJ Pet. App. 179a, 214a. The absolute disparity test was, therefore, an inappropriate method of measuring the reasonableness of African-American representation because that test would condone the complete exclusion of Kent County’s African-American community in direct contravention of the Sixth Amendment’s fair cross-section requirement. This Court and federal courts of appeals have acknowledged that such an outcome cannot be reconciled with this Court’s fair cross-section precedents. See e.g., Taylor, 419 U.S. at 530-31 16 (explaining that the purposes of a jury cannot be fulfilled when distinctive groups are excluded from the venire); Rogers, 73 F.3d at 776-77 (recognizing that absolute disparity insulates wholesale exclusion from challenge because “the percentage disparity can never exceed the percentage of [a distinctive group] in the community.”); United States v. Butler, 615 F.2d 685, 686 (5th Cir. 1980) (clarifying circuit precedent by stating that in cases where a “less-than-10- [percent] minority” was at issue, other statistical measures would be considered); United States v. Maskeny, 609 F.2d 183, 190 (5th Cir. 1980) (considering argument that “reliance on absolute disparity could lead to approving the total exclusion from juries of a minority that comprised less than ten percent of the population of the community” and avoiding speculation on the appropriate measure to confront such a situation). The Michigan Supreme Court thus erred in considering an absolute disparity analysis when evaluating Mr. Smith’s evidence of African-American underrepresentation. Given the size of Kent County’s African-American population, comparative disparity was the only measure that could effectively evaluate the extent to which African Americans were underrepresented on Kent County circuit court venires. See, e.g., Norris v. Alabama, 294 U.S. 587, 596-97 (1935) (finding an equal protection violation in the total exclusion of African Americans from jury service in a jurisdiction where African Americans constituted less than eight percent of the relevant population). The results of a comparative disparity analysis lead to the inexorable conclusion that the underrepresentation of African Americans in the Kent County Circuit Court jury pool was constitutionally significant and satisfied Dureiis second prong. See Rogers, 73 F.3d at 777 17 (comparative disparity of more than 30 percent proves underrepresentation under Duren’s second prong); Ramseur v. Beyer, 983 F.2d 1215, 1232 (3d Cir. 1992) (comparative disparity of 40 percent establishes underrepresentation).8 C. Kent County’s Siphoning Of Prospective Jurors From The Circuit Court To The District Courts Systematically Excluded African Americans From Circuit Court Venires. Although the Michigan Supreme Court recognized that “minority jury representation in Kent County has long been a problem,” Pet. App. 156A, it concluded that African Americans were not systematically excluded from Kent County Circuit 8 Petitioner suggests tha t reliance on the comparative disparity test prevents fair cross-section violations only if the county “creates a self-conscious process” th a t “identif[ies] the race and ethnicity of every prospective juror,” thereby “effectively requir[ing] a quota system.” Pet. Br. a t 43. This invocation of quotas is a red herring that this Court should ignore. First, as previously noted, comparative disparity is a legitimate and effective measure of representation endorsed by numerous courts and experts. Second, regardless of the method of proof, a quota is never a proper remedy for a Sixth Amendment fair cross-section violation. Quotas are applicable only to very limited circumstances involving demonstrated intentional discrimination. See Parents Involved v. Seattle, 551 U.S. 701, 795-796 (2007) (Kennedy, J., concurring) (describing the “allocation of benefits and burdens through individual racial classifications” as “sometimes permissible in the context of remedies” for a “de jure” wrong like “segregation”,). Finally, both Duren and Taylor expressly state that the fair cross-section mandate does not require “that petit juries actually chosen must m irror the community,” but rather m ust simply prevent the systematic underrepresentation of distinctive groups in jury pools. Duren, 439 U.S. a t 364 n.20 (quoting Taylor, 419 U.S. a t 538). That requirem ent is not a quota, and will not lead to one. 18 Court jury pools. This conclusion cannot be reconciled with this Court’s precedents. Kent County’s jury selection process systematically excluded African Americans by siphoning prospective jurors away from the circuit court and to the district courts. Accordingly, Mr. Smith satisfied Dureiis third prong. As detailed above, 85 percent of Kent County’s African-American population lived in Grand Rapids, which composes one of the 12 districts. As previously noted, it was Kent County ’s practice to prioritize district courts over the circuit court for the assignment of prospective jurors, allowing only residents of the district in which the district court sits to serve on juries in that court. Also, prospective jurors were excused after district court service rather than returned to the jury pool for circuit court service. As a consequence, the district courts “siphoned” African Americans away from circuit court jury service. This process was “inherent” to Kent County’s jury selection system, see Duren, 439 U.S. at 366, and resulted in the persistent underrepresentation of African Americans in circuit court venires, with 34 percent underrepresentation in the month of Mr. Smith’s voir dire, an average of 18 percent underrepresentation over six months, and a high of 42 percent just two months before Mr. Smith’s jury selection. JA 181a-82al Pet. App. 218a. Precise numbers documenting how many prospective African-American jurors were affected by this process were unavailable because the County chose not to collect race data.9 However, as the Sixth 9 Petitioner is incorrect to the extent tha t it suggests tha t underrepresentation can be shown only by actual race data, as opposed to extrapolations from a data set such as the 1990 19 Circuit explained, it logically follows that the jury selection process resulted in “fewer African Americans [being] available to serve as jurors for county circuit court[ ].” Pet. App. 29a. Moreover, the Kent County Circuit Court Administrator readily admitted that the siphoning used by Kent County to select circuit court jury pools at the time of Mr. Smith’s trial systematically excluded African Americans. See supra at 12. Indeed, one month after Mr. Smith’s September 1993 jury selection, the County ended the siphoning practice because it believed that siphoning caused unacceptable African-American underrepresentation in the circuit court jury pool. JA 20a, 22a. The Circuit Court Administrator noted that ending the siphoning practice allowed the circuit court to access a “larger representation of the community to select [jurors] from,” thus remedying the “problem” of African-American underrepresentation. Id. at 22a. The record also reflects that once the County terminated its siphoning practice, the racial disparities began to fade. Dr. Stoline’s analysis included data covering the eleven months following Mr. Smith’s jury selection, beginning in October 1993 when Kent County officials testified they discontinued siphoning African Americans away from the circuit court and towards the district courts. JA 20a, 22a. Using a method consistent with that used for his analysis of the prior six months, Dr. Stoline found that African Americans were underrepresented census. No court has so held; in fact, Duren expressly permitted the use of census data. See Duren, 439 U.S. at 364-65. Moreover, adoption of Petitioner’s position would allow court adm inistrators in communities with smaller, but sizeable, minority populations to foreclose fair cross-section challenges simply by choosing not to collect race data. 20 by 15.1 percent in the eleven-month post-siphoning period studied. Id. at 102a-03a. Extremely high levels of underrepresentation, similar to those occurring in the siphoning period, were concentrated in two of the first five months of the post-siphoning period: African Americans were underrepresented by 41.1 percent in the third month and 43.5 percent in the fifth month. Id. at 102a. These spikes appear to have faded away over time such that the highest African-American underrepresentation in the final six months of the eleven-month post-siphoning study was 22.2 percent, occurring in the penultimate month, and the average for the final six months was 15.1 percent. Id. These figures suggest that it took several months before the positive effects of the new non-siphoning system were reflected in the data. Petitioner’s contrary suggestion, Pet. Br. at 50, 61, that the post-siphoning data somehow proves that the systematic removal of over three-quarters of the county’s African Americans from the qualified pool never had any effect - is therefore baseless. Despite this undisputed evidence, the Michigan Supreme Court held that the third Duren prong was not satisfied. This conclusion is incorrect and unreasonable because the practice of allocating prospective jurors to the district courts before the circuit court necessarily “siphoned” African Americans away from the circuit court, leaving a persistent and serious underrepresentation in that court. This logical inference is supported by testimony from institutional actors within the jury selection system, see supra at 11-12, and by the recommendation of the study committee that ended the practice, JA 64a_65a. This evidence has dispositive weight because it reflects the most pertinent and knowledgeable observations of the 21 effect of siphoning in Kent County’s jury selection system. The Michigan Supreme Court’s decision that Mr. Smith failed to establish systematic exclusion of African Americans is incorrect. III. AEDPA DID NOT REQUIRE THE COURT OF APPEALS TO IGNORE KENT COUNTY’S CONSTITUTIONAL VIOLATION. As shown above, the Michigan Supreme Court erred in rejecting Mr. Smith’s Sixth Amendment fair cross-section claim. Under AEDPA, however, a federal court may not grant habeas relief merely because it believes, in its own “independent judgment,” that the state court “erroneously or incorrectly” decided a federal constitutional claim. Williams v. Taylor, 529 U.S. 362, 411 (2000) (O’Connor J., concurring). Rather, a federal habeas court must determine that the decision was an “objectively unreasonable” application of “clearly established” United States Supreme Court law, as properly held by the Sixth Circuit below. Id. at 409 (O’Connor, J., concurring). The phrase “clearly established law” “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id. at 365. “[Rjules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than a bright-line rule.” Id. at 382. States are bound by clearly established law regardless whether it is expressed in general or specific terms, and state court decisions applying such law must be reasonable. AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a 22 legal rule must be applied.” Carey v. Musladin, 549 U.S. 70, 80-81 (2006) (Kennedy, concurring). Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts “different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003). The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner. Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (citing Williams, supra). Thus, “[i]f the state court’s adjudication is dependent on an antecedent unreasonable application of federal law, . . . the federal court must then resolve the claim without the deference AEDPA otherwise requires.” Id. at 931 (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)); see also Williams, 529 U.S. at 412 (O’Connor, J„ concurring). For the reasons detailed below, the Sixth Circuit properly applied this precedent and determined that while the Michigan Supreme Court “identified] the correct governing legal principle from this Court’s decisions,” it “unreasonably applie[d] that principle to the facts of [Mr. Smith’s] case.” Williams, 529 U.S. at 412. 23 A. The Michigan Supreme Court Was Objectively Unreasonable In Determining That African Americans Were Not Underrepresented To A Constitutionally Significant Degree In Kent County’s Circuit Court Venire Pool. 1. The Sixth Amendment’s Fair Cross- Section Requirement Is Clearly Established Law. In applying Dureiis first step, the Michigan Supreme Court correctly ruled that African Americans constituted a distinctive group under the Sixth Amendment’s fair cross-section requirement. With respect to Dureiis second step, the Michigan Supreme Court concluded that because each of the various measures of representation had shortcomings, it would “consider all these approaches to measuring whether representation was fair and reasonable.” Pet. App. 146a. This is an accurate recitation of this Court’s clearly established law. Because the degree of underrepresentation necessary to implicate these Sixth Amendment concerns and to satisfy Dureiis second step will naturally vary with the size of the distinctive group and the size of the counties from which the venires are drawn, Duren requires exactly such a case- specific approach. Thus, the Michigan Supreme Court properly identified this Court’s clearly established law. The fact that Dureiis assessment of “fair and reasonable representation” must be conducted on a case-bycase basis does not mean that the test lacks the specificity necessary to constitute clearly established law under AEDPA. To the contrary, as detailed in Respondent’s Brief at 55-57, Dureiis test 24 is analogous to the Strickland v. Washington test, see 466 U.S. 668, 688-89 (1984), for assessing the effective assistance of counsel - it is the type of clearly established rule “which of necessity requires a case-by-case examination of the evidence,” and can therefore “tolerate a number of specific applications without saying that those applications themselves create a new rule.” Williams, 529 U.S. at 382 (quoting Wright v. West, 505 U.S. 277, 308-09 (1992)). The Duren test is a clear standard that must be reasonably applied by the state courts. In arguing that Duren’s test is too general to constitute clearly established law, Petitioner cites Wright v. Van Patten, 552 U.S. 120 (2008), and Carey, 549 U.S. at 70. See Pet. Br. at 35-36. These decisions are, however, inapplicable to Mr. Smith because they involve attempts to extend Supreme Court law to novel ground. In Carey, this Court rejected the Ninth Circuit’s attempt to extend the clearly established law governing state-sponsored courtroom practices to private spectator conduct, an application not previously contemplated by this Court. See 549 U.S. at 654. And in Wright, this Court found the state court’s application of federal law to be reasonable where “[n]o decision of this Court squarely addresse[d] the issue in this case.” Wright, 552 U.S. at 125, see also Knowles v. Mirzayance, -- U.S. ", 129 S.Ct. 1411, 1419 (2009) (no unreasonable application of clearly established law where “[t]his Court has never established anything akin to the Court of Appeals’ ‘nothing to lose’ standard for evaluating Strickland claims”); Schriro v. Landrigan, 550 U.S. 465, 478 (2007) (no unreasonable application of clearly established federal law where “we have never addressed a situation like this.” (internal citation omitted)). This 25 authority is irrelevant to Mr. Smith because he did not seek to extend Supreme Court law to a new context. The fact that the federal courts of appeal and state supreme courts agree with Mr. Smith that Duren requires a case-specific approach to measuring underrepresentation further demonstrates that Mr. Smith is not seeking to apply Supreme Court law to a different, and unanticipated, circumstance. See Resp. Br. at 27-30. 2. The Michigan Supreme Court’s Unreasonable Application Of Clearly Established Law. After properly identifying this Court’s clearly established law, the Michigan Supreme Court unreasonably applied it to the facts of Mr. Smith’s case. The court concluded that Mr. Smith “presented some evidence of a disparity between the number of jury-eligible African Americans and the actual number of African-American prospective jurors selected to the Kent County Circuit Court jury pool list.” Pet. App. 146a. It then declared, however, that: [Djefendant’s statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests. Nevertheless, rather than leaving the possibility of systematic exclusion unreviewed solely on the basis of defendant’s failure to establish underrepresentation, we give the defendant the benefit of the doubt on underrepresentation and proceed to the third prong of the Duren analysis. Id. at 146a-47a. Although this ruling is not a model of clarity, AEDPA controls here because the Michigan Supreme Court held that Mr. Smith failed to meet his prima facie burden under Duren’s second prong. See 26 28 U.S.C. § 2254(d). That decision was objectively unreasonable. As previously noted, at the time of Mr. Smith’s trial, African Americans comprised 7.28 percent of Kent County’s adult population. Under these circumstances - which are analogous to those prevailing in the vast majority of African-American communities throughout the country, see Brief for Social Scientists, Statisticians, and Law Professors, Jeffrey Fagan, et. al, as Amici Curiae Supporting Respondent - the Sixth Amendment can tolerate only a limited degree of African-American exclusion and underrepresentation before implicating the Sixth Amendment’s fair cross-section requirement. Thus, in order to apply Duren and this Court’s other fair cross-section precedents reasonably, the state court should have recognized that relying on an absolute disparity measurement would have improperly allowed the total exclusion of Kent County’s African- American population from its jury venires. The Michigan Supreme Court ignored this constitutionally significant fact. Although it properly acknowledged that Duren required a case-specific analysis and that the absolute disparity test “produces questionable results . . . where the members of the distinctive group comprise a small percentage of those eligible for jury service,” Pet. App. 145a, the state court nonetheless gave equal consideration to the results of an absolute disparity analysis in evaluating Mr. Smith’s evidence of underrepresentation. Because the absolute disparity test would permit the total exclusion of Kent County’s African-American community from venires, the state court’s application of Duren was objectively unreasonable. 27 Furthermore, the state court unreasonably applied Duren by undervaluing Mr. Smith’s comparative disparity evidence. Mr. Smith demonstrated that African Americans were underrepresented by 34.8 percent in the month of his jury selection. As the Sixth Circuit found, this is “sufficient to demonstrate that the representation of African-American veniremen in Kent County at the time of [Mr. Smith’s] trial was unfair and unreasonable.” Pet. App. 21a (citing Rogers, 73 F.3d at 777). For these reasons, the Michigan Supreme Court’s judgment was objectively unreasonable under AEDPA in concluding that Mr. Smith failed to demonstrate that African Americans were underrepresented on Kent County Circuit Court venires. B. The Michigan Supreme Court Was Objectively Unreasonable In Determining That African Americans Were Not Systematically Excluded From Kent County7s Circuit Court Venire Pool. Duren’s third step requires proof that the underrepresentation is “due to systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 364. The Sixth Circuit correctly held that the Michigan Supreme Court unreasonably applied Duren in finding no systematic exclusion in Kent County’s practice of siphoning jurors away from the circuit court to district courts. Pet. App. 41a_42a. The “systematic exclusion” analysis focuses on the identification of processes integral to the jury selection system that may have caused persistent underrepresentation of distinctive groups, and must be conducted independent of Duren’s other steps. See, e.g., Weaver, 267 F.3d at 241 (“strength of the 28 evidence should be considered under the second prong, while the nature of the process and the length of time of underrepresentation should be considered under the third”)! Fordv. Seabold, 841 F.2d 677, 685 & n.6 (6th Cir. 1988) (“Although the frequency of the selection of jury venires is not, of itself, helpful in establishing underrepresentation under the second prong of the prima facie case, it is of crucial significance in establishing that any existing exclusion was systematic.”). Accordingly, the persistence of African-American underrepresentation of 18 percent10 over a six-month period supports the systematic nature of their exclusion from the qualified circuit court jury pool. See Duren, 439 U.S. at 367 (“The resulting disproportionate and consistent exclusion of women from the jury wheel and at the venire stage was quite obviously due to the system by which juries were selected.”).11 10 The persistence of the 18 percent underrepresentation over the course of six months, which satisfies D urens third step, is separate from the degree of the 34 percent underrepresentation during the month of Mr. Smith’s jury selection, which satisfies Duren s second step. To conflate these two analyses would make either the second or third step superfluous. See Paredes v. Quarterman, 574 F.3d 281, 290 (5th Cir. 2009) ( [Petitioner] repeats his position th a t a large discrepancy exists but does not explain how th a t second-prong statem ent alone satisfies the requirem ents of the third prong, which requires an independent showing th a t the discrepancy is systematic. If any discrepancy sufficient to satisfy the second prong would also satisfy the third, the th ird inquiry would be superfluous.”). 11 Despite th is Court’s clearly established law th a t no discriminatory in tent is required in fair cross-section cases, See supra a t 9, Petitioner attempts to inject an in tent requirem ent into Duren s concern with the systematic underrepresentation of distinctive groups. Pet. Br. a t 44. In fact, Duren instructs only tha t the exclusion be “inherent in the particular jury-selection process utilized.” Duren, 439 U.S. a t 366. As explained in 29 The Michigan Supreme Court’s analysis of “systematic exclusion” was fundamentally flawed, and thus objectively unreasonable, because it ignored pertinent, uncontested evidence of Kent County’s siphoning procedure and imposed a burden of proof that exceeded Dureds mandate for establishing a prima facie case of a fair cross-section violation. In rejecting Mr. Smith’s claim of systematic exclusion resulting from the siphoning procedure, the Michigan Supreme Court held that he had “failed to carry his burden of proof’ because the “record does not disclose whether the district court jury pools contained more, fewer, or approximately the same percentage of minority jurors as the circuit court jury pool.”12 Pet. App. 147a. The state court’s summary conclusion directly contradicts the evidence in the record. The uncontested testimony of Kent County jury officials and the results of a bar study committee both showed that the siphoning procedure was a significant source of African-American underrepresentation in circuit court venire panels, which led Kent County to terminate this practice in Section 11(C), supra, Kent County’s siphoning practice meets th a t test because it was part of the jury selection system and caused the underrepresentation of African Americans in Kent County’s circuit court jury pool. Under this Court’s precedent, ignoring the discriminatory effect of the siphoning and demanding evidence of a discriminatory purpose would plainly be unreasonable. 12 The concurring opinion further commented th a t “after Kent County stopped selecting district court jurors first, the change in the representation of black jurors in circuit court was small, suggesting th a t the alleged systematic exclusion was not the cause of the underrepresentation.” Pet. App. 169a. However, as noted in Section 11(C), supra at 19-20, the record suggests th a t it took several months for the effects of term inating the siphoning procedure to be reflected in the jury pool data. 30 October 1993. There was no contrary evidence in the record. See supra at 18-20. The state court’s understanding of Mr. Smith’s burden of proof under Duren was also objectively unreasonable. The State in Duren, like Petitioner here, argued that there was no proof “that the exemption for women had ‘any effect’ on or was responsible for the underrepresentation of women on venires.” 439 U.S. at 368. This Court, however, determined that Duren’s third step was satisfied by evidence that the exemption for women was “inherent in the particular jury-selection process utilized,” thus shifting the burden to Petitioner to “demonstrate that [other] exemptions caused the underrepresentation complained of.” Id. at 366, 368. The same response is warranted here, where the officials in the best position to provide information about Kent County’s jury selection system testified that the siphoning procedure systematically excluded African Americans from the qualified circuit court jury pool. See Section 11(C), supra. The Michigan Supreme Court’s imposition of a higher burden of proof is an objectively unreasonable application of Duren.13 See Davis v. Warden, 867 F.2d 1003, 1014 (7th Cir. 1989) (“The Supreme Court . . . and other courts have recognized that defendant should not be expected to 13 Contrary to Petitioner’s assertions (Pet. Br. a t 60), 28 U.S.C. § 2254(e) has no relevance here because Mr. Smith seeks habeas relief under 28 U.S.C. § 2254(d)(1). Section 2254(e) governs state court factual findings, and Mr. Smith does not take issue with the facts found by the Michigan Supreme Court. Instead, he challenges tha t Court’s application o f law to those facts and, thus, contends th a t the court’s ruling of no evidentiary support for “systematic exclusion” was an “unreasonable application of’ Dureris third prong under Section 2254(d)(1). 31 carry a prohibitive burden in proving underrepresentation.” (citations omitted)); cf. Johnson, 545 U.S. at 170 (prima facie case of Batson violation established by “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred”). CONCLUSION The judgment of the Court of Appeals should be affirmed. Respectfully submitted, Virginia A. Seitz Gary Feinerman J effrey T. Green Rebecca K. Troth Anand H. Das Sidley Austin llp 1501 K Street, NW Washington, DC 20005 (202) 736-8000 J ohn Payton Director - Co unsel Debo P. Adegbile Christina Swarns* J ohanna B. Steinberg J in Hee Lee Vincent M. Southerland Mary Hunter NAACP Legal Defense & Educational Fund, Inc. 99 Hudson St., 16th Floor New York, NY 10013 (212) 965-2200 Sarah O’Rourke Schrup Northwestern University Supreme Court Practicum 357 East Chicago Avenue Chicago, IL 60611 (312) 503-8576 Counsel for Amicus Curiae December 28, 2009 * Counsel o f Record