Antonio Garcia-Dorantes v. Millicent Warren

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0220p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ANTONIO GARCIA-DORANTES, ┐

Petitioner-Appellee, │

│

│ No. 13-2439

v. │

>

│

MILLICENT WARREN, Warden, │

Respondent-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:05-cv-10172—David M. Lawson, District Judge.

Argued: April 28, 2015

Decided and Filed: September 4, 2015

Before: MERRITT and ROGERS, Circuit Judges; POLSTER, District Judge.*

_________________

COUNSEL

ARGUED: John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellant. Bradley R. Hall, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Detroit, Michigan, for Appellee. ON BRIEF: John S. Pallas, B. Eric Restuccia, OFFICE OF

THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Bradley R.

Hall, James R. Gerometta, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Detroit,

Michigan, for Appellee.

ROGERS, J., delivered the opinion of the court in which POLSTER, D.J., joined.

MERRITT, J. (pp. 23–25), delivered a separate dissenting opinion.

*

The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio, sitting

by designation.

1

No. 13-2439 Garcia-Dorantes v. Warren Page 2

_________________

OPINION

_________________

ROGERS, Circuit Judge. This case involves Antonio Garcia-Dorantes’ procedurally

defaulted claim challenging the constitutionality of the jury selection computer program in Kent

County, Michigan. In September 2001, a jury convicted Garcia-Dorantes of murder in the

second degree and assault with intent to do great bodily harm less than the crime of murder.

Before his trial started, Garcia-Dorantes failed to raise a Sixth Amendment challenge to the

racial composition of the jury venire. In July 2002, the Grand Rapids Press published a story

about a computer glitch in the Kent County software that had systematically excluded African-

Americans from the jury pool from April 2001 through early 2002. As a result of the article,

Garcia-Dorantes included a Sixth Amendment fair-cross-section claim in his direct appeal, which

the state courts denied as procedurally defaulted due to his failure to object to the composition of

the jury venire at trial. Garcia-Dorantes then filed a 28 U.S.C. § 2254 habeas petition in federal

court. The district court—attempting to apply the prejudice standard set forth in Ambrose v.

Booker, 684 F.3d 638, 652 (6th Cir. 2012), a companion case—found that Garcia-Dorantes had

sufficiently demonstrated cause and actual prejudice to excuse his procedural default and had

established a prima facie violation of his Sixth Amendment fair-cross-section right. The

Respondent appeals. Because Garcia-Dorantes has shown cause and actual prejudice to excuse

his procedural default and has established a prima facie violation of his Sixth Amendment fair-

cross-section right, the district court properly granted habeas relief.

On September 10, 2001, a jury convicted Antonio Garcia-Dorantes of murder in the

second degree and “assault with intent to do great bodily harm less than the crime of murder.”

R. 29 (PgID 520). The district court described the offense and trial as follows:

[Garcia-Dorantes] was involved in a fight and stabbed two people, one fatally, in

Grand Rapids, Michigan in the early morning hours of October 22, 2000.

Jose Gomez, the homicide victim, died from a single stab wound to his upper

chest, just beneath his collar bone. A 3-3/8 inch stab wound penetrated his left

lung and punctured his pulmonary artery. The medical examiner determined that

Gomez had been intoxicated at the time of the fight, with a blood alcohol level of

.31 percent. Although the medical examiner testified that most persons would be

No. 13-2439 Garcia-Dorantes v. Warren Page 3

comatose with a blood alcohol level above .30 percent, he could not discount the

possibility that Gomez could have attacked someone in a fight situation if he was

a habitual drinker.

Manuel Garcia was the assault victim. He worked for Gomez. The two men had

been drinking that night until about 4:00 a.m. They arrived at Gomez’s house

with a third companion, Gonzalo Ramirez-Toledo. When they drove up, [Garcia-

Dorantes’] truck was parked across the street. [Garcia-Dorantes] testified that he

thought the men were part of a gang and that they had tried to force him off the

road during an earlier encounter that [day].1

[Garcia-Dorantes or one of the other men in his truck] was standing outside of his

truck. [According to Garcia,] Gomez got out of Garcia’s truck and walked toward

[Garcia-Dorantes], stating that he “did not want any problems”; he told the

petitioner that he should leave or Gomez would call the police. Garcia and

Ramirez-Toledo then got out of Garcia’s truck and approached [Garcia-Dorantes].

Two other persons had also exited [Garcia-Dorantes’] truck. Ramirez-Toledo

said [Garcia-Dorantes] had his hand behind his back when he first saw him

standing beside his truck. Ramirez-Toledo said he did not see what occurred

between [Garcia-Dorantes] and Gomez, nor did he see a knife in [Garcia-

Dorantes’] hand.

Garcia testified that when Gomez asked the men to leave, [Garcia-Dorantes]

replied “And if I don’t want to?” and punched Gomez in the face. Gomez fell

down, got up again and “threw himself” at [Garcia-Dorantes]. Garcia

acknowledged that he did not see which man started the fight[, though he initially

claimed that Garcia-Dorantes hit Gomez first]. As Garcia attempted to break the

fight up, he felt a cramp in his leg and later learned that he had been stabbed in

the buttock. Garcia was also stabbed in the back of his neck. Garcia testified that

[Garcia-Dorantes] then threatened him with a bottle. Ramirez-Toledo testified

that Gomez asked him to call the police. As Ramirez-Toledo did so, one of

[Garcia-Dorantes’] friends hit him in the head with a bottle. [There is no record

that Ramirez-Toledo ever connected with a 9-1-1 operator.] Ramirez-Toledo then

heard Gomez say, “Let’s go.” Ramirez-Toledo observed [Garcia-Dorantes] get

into his truck and leave the area, squealing his tires as he left. Gomez, Garcia,

and Ramirez-Toledo [then] got into Garcia’s truck. Once inside, Garcia noticed

that [Ramirez-Toledo] was very bloody. Garcia [left to drive] Gomez [and

Ramirez-Toledo] to the hospital. [Garcia-Dorantes] and his companions had

[already] left the area. While driving Gomez to the hospital, Garcia passed

[Garcia-Dorantes’] truck when it stopped at a stop sign. When Garcia stopped at

a red light, [Garcia-Dorantes] drove up and crashed into the rear of Garcia’s truck.

Garcia continued driving but claimed that [Garcia-Dorantes] crashed into his

1

Garcia-Dorantes explained, “In the afternoon around two or three, I was in my truck driving. I was going

and another truck was coming in the street. The other truck tried to ram against me. I had to . . . skid aside to move

aside from the truck.” When asked if he knew the individuals in the truck, Garcia-Dorantes responded, “I had seen

them before. I had known that they were gang members and you have to be afraid of a gang member.”

No. 13-2439 Garcia-Dorantes v. Warren Page 4

pickup truck two more times. Garcia drove to Gomez’s brother’s house, where

they called the police and an ambulance. Police responded to a dispatch of a

shooting to an address on Rose Street. Upon arrival, emergency personnel

informed the police that it had actually been a stabbing and Gomez had died.

Officers then received a dispatch for a “hit and run” and went to [Garcia-

Dorantes’] house. The police were informed that [Garcia-Dorantes] had been

involved in a hit and run accident. They noticed damage to the front of [Garcia-

Dorantes’] vehicle. They arrested [Garcia-Dorantes] and his friend named

Christian Diaz.

Police Officer John Riley testified that he interviewed [Garcia-Dorantes] in the

early morning hours of October 22, 2000. Riley ascertained that [Garcia-

Dorantes] spoke very little English. Riley testified that he was “pretty fluent” in

Spanish, and he read [Garcia-Dorantes] his Miranda rights in Spanish.

Thereafter, [Garcia-Dorantes] made two verbal statements. In his first statement,

he blamed his wife for the truck crash and resulting damage. Later that afternoon,

he made a second statement in which he admitted to having been involved in a

fight. [Garcia-Dorantes] told the police that he thought that Gomez and his

friends were “gangbangers” who had threatened him earlier.

Detective Gregory Griffin was present when both statements were made. He

testified that although he found no evidence that any of the persons involved in

this altercation were gang members, he could not rule out that Gomez was a gang

member.

[Garcia-Dorantes] testified on his own behalf at trial, explaining that he was

celebrating his daughter’s birthday on October 21, 2000. He and his friends later

left the party to go to his girlfriend’s house, with whom he was having an

extramarital affair. [Garcia-Dorantes] parked in front of the house and went to the

door. When there was no answer, he returned to his truck. It was then that he

saw Garcia’s truck arrive. [Garcia Dorantes] claimed that Garcia had tried to ram

him with his truck earlier that day and had tried to run [him] off the road. He

thought Gomez, Garcia, and Toledo were gang members. According to [Garcia-

Dorantes], a person from the victim’s truck provoked the fight. When others

joined in, he became scared and pulled a knife, thrusting it once as a person

lunged at him. It does not appear as though any of the other individuals had

weapons. [Garcia-Dorantes] left and his friends followed. [Garcia-Dorantes]

claimed that when he went to drive away, the men pulled their truck in front of

him and “locked” their brakes, causing [Garcia-Dorantes’] vehicle to collide with

their truck.

[Garcia-Dorantes] went home and told his wife about the accident. He said his

wife volunteered to tell the police that she had been driving because [Garcia-

Dorantes] was intoxicated at the time. [Garcia-Dorantes] denied intending to

harm anyone.

[Garcia-Dorantes’] common-law wife, Anayeli Castellanos, testified that [Garcia-

Dorantes] woke her in the early morning hours of October 22, 2000 and informed

No. 13-2439 Garcia-Dorantes v. Warren Page 5

her that someone had crashed into his truck. [Garcia-Dorantes] demanded that

she call the police to report the incident. The police arrived and arrested [Garcia-

Dorantes]. Castellanos admitted that she suggested that [Gracia-Dorantes] inform

the police that she had been driving because [Garcia-Dorantes] appeared scared

and had been drinking2.

[In closing, Garcia-Dorantes] argued that he acted in self-defense, and that the

crime was no worse than manslaughter.3 [After the trial court instructed the jury

on three separate, alternative charges related to Gomez’s death—murder in the

first degree, murder in the second degree, and voluntary manslaughter—][t]he

jury found [Garcia-Dorantes] guilty of the lesser offense of second-degree murder

in Gomez’s death and assault with intent to do great bodily harm less than murder

as to Garcia.

On September 30, 2002, following the conviction, the court sentenced Garcia-Dorantes to fifteen

to fifty years’ imprisonment on the second-degree murder charge, and five to ten years’

imprisonment on the assault charge, with the sentences to run concurrently.

On July 30, 2002, [after Garcia-Dorantes had been convicted,] the Grand Rapids

Press reported that a computer glitch had [had] an impact on Kent County’s

system for selecting jury venires. The glitch was introduced accidentally by the

county when it assumed control of the jury selection computer program from a

private vendor in April 2001. The problem came to light in 2002, when a local

high school teacher, Wayne Bentley, completed a study of minority representation

on Kent County juries. Bentley found that the underrepresentation of minorities

was statistically significant, and shared his findings with county officials. The

county subsequently conducted an internal study that revealed that “nearly

75 percent of the county’s 454,000 eligible residents were excluded from potential

jury pools since spring 2001” and that “[m]any blacks were excluded

from . . . jury pools due to a computer glitch that selected a majority of potential

candidates from the suburbs.” The chief judge of the Kent County Circuit Court,

George Buth, stated, “There has been a mistake—a big mistake.”

Ambrose v. Booker, 684 F.3d 638, 640–41 (6th Cir. 2012). In light of these revelations, Garcia-

Dorantes—who had been convicted on September 10, 2001—raised a Sixth Amendment fair-

cross-section claim on direct appeal based on the computer glitch. People v. Garcia-Dorantes,

No. 239306, 2003 WL 22416511, at *1–3 (Mich. Ct. App. Oct. 23, 2003). However, the

2

It does not appear that Ms. Castellanos’s testimony was included in the record on appeal.

3

During closing argument, defense counsel stated, “If you don’t find self-defense, ladies and gentlemen—

and, like I said, I don’t even know why I’m talking about this, because to me this is clearly and unambiguously self-

defense, but duty requires me to address it—so if you don’t find self-defense, I do not see how it could be anything

more than voluntary manslaughter.”

No. 13-2439 Garcia-Dorantes v. Warren Page 6

Michigan Court of Appeals denied his claim, finding that Garcia-Dorantes had forfeited it when

defense counsel failed to object to the jury array or panel. Id. at *2. The Michigan Supreme

Court denied leave to appeal. People v. Garcia-Dorantes, 680 N.W.2d 865 (Mich. 2004).

On July 12, 2005, Garcia-Dorantes filed a 28 U.S.C. § 2254 petition in district court,

claiming, in part, that he had been denied his right to a fair trial because a computer glitch had

resulted in the exclusion or underrepresentation of minorities in the jury venire. Garcia-

Dorantes, No. 05-10172-BC, 2005 WL 2659056, at *1 (E.D. Mich. Oct. 18, 2005). The district

court held the habeas proceeding in abeyance pending the exhaustion of state law remedies. Id.

at *3. On February 15, 2007, the district court granted Garcia-Dorantes’ motion to reopen,

Garcia-Dorantes v. Warren, No. 05-10172, 2007 WL 531094 (E.D. Mich. Feb. 15, 2007), and

on March 8, 2011, denied all but Garcia-Dorantes’ Sixth Amendment claim. Garcia-Dorantes v.

Warren, 769 F. Supp. 2d 1092, 1112−13 (E.D. Mich. 2011). The district court then ordered a

magistrate judge to conduct an evidentiary hearing on the issue of whether Garcia-Dorantes “was

deprived of his right under the Sixth Amendment to a trial by a jury chosen from a fair cross-

section of the community.” Id. at 1112. The magistrate judge reviewed four items presented by

stipulation: (1) the testimony of Wayne Bentley, a Grand Rapids school teacher and member of

the Kent County jury commission who uncovered the disparate representation; (2) the November

14, 2007 deposition of Terry Holtrop, the case management manager for Kent County; (3) the

report of Dr. Paul Stephenson; and (4) the report of Dr. Edward Rothman. This evidence is the

same as that summarized in an earlier, companion case as follows:

First, the magistrate judge [reviewed] the testimony of Wayne Bentley, the

teacher that uncovered the disparate representation. Second, the magistrate judge

[considered the] testimony from Terry Holtrop, the case manager for the Kent

County Circuit Court. Ambrose, 781 F.Supp.2d [532, 537–38 (E.D. Mich. 2011)].

Holtrop explained how Bentley’s evidence spurred an internal investigation by the

County, culminating in the Kent County Jury Management System Report

(hereafter “the Report”) dated August 1, 2002. The Report described how a

transfer of control over a database—from a private vendor to the County in an

effort to cut costs—caused the error:

[I]n the initial set-up of the Oracle database to accommodate the

driver’s license and State ID data from the State file, an error was

made in one parameter. Whether this was a programming error,

the carry-over of a setting that existed within the Sybase database,

misinterpreting instructions, or simply human error, that is now

No. 13-2439 Garcia-Dorantes v. Warren Page 7

almost impossible to determine. The parameter that was entered

within the database was 118,169. What should have been inserted

within this setting was the total number of records in the State File,

or 453,981 in 2001.

The net effect of this incorrect parameter is that the Jury

Management System performed a random selection against the

first 118,169 jurors on the file. The percentage of jurors selected

per Zip Code was proportional to the Zip Code composition of the

first 118,169 records—but not Kent County as a whole. The total

pool of prospective jurors from the State File is of course 3.8 times

larger than the 118,169 and hence the type of jury pool data as is

evidenced in the various tables included in this report, for the

second half of 2001 and the first half of 2002.

The next logical question being, why then did the jury pull from

Zip Code 49341 jump so dramatically for 2001, from an average of

3.8% up to 10.24% . . . and why did the jury pulls from Zip Code

49507 decline from an average of 8.56% to 2.13%.

The answer being that in 1998 (as was mentioned previously) the

State File did not come in random order, but rather in Zip Code

order . . . lowest numbers to highest numbers. In subsequent years,

new prospective jurors (either based on age or having moved to the

County) were added to the end of the database. Existing

prospective jurors (those that were on file the previous year) would

simply have address information updated based on what the State

provided. Their position in the dataset would not change.

Therefore, the first 118,169 records of the dataset have a high

percentage of lower numbered zip codes. As indicated on the map

included in his packet, all the Zip Codes with the lower numbers

are located outside of the Grand Rapids metro area.

Third, the magistrate judge considered statistical analysis submitted by Dr. Paul

Stephenson, a statistician who used different methodologies to evaluate the

impact of the glitch. Dr. Stephenson[, whose report focused primarily on January

2002,] first compared the percentage of eligible African-Americans in Kent

County and the actual percentage in the venire. He found an absolute disparity of

6.03% and a comparative disparity of 73.1% fewer African-American members

than would be expected. While Dr. Stephenson believed that these disparities

were useful “descriptive statistics,” he did not believe they were “viable for

inferential purposes.” Stephenson next used both a standard deviation and

binomial test, and found that although the tests provided “insufficient evidence to

demonstrate that the representation of Blacks or African-Americans in [a specific]

venire is biased, this is in part due to the size of the venire.” Stephenson also

noted [that] “while it would be less likely, one also could expect approximately

2% of all venires to contain no . . . African-American members.” Stephenson

then employed a “Chi-square Goodness-of-fit test.” Using this test, Dr.

No. 13-2439 Garcia-Dorantes v. Warren Page 8

Stephenson found that “there is essentially no chance of acquiring the results we

obtained if the selection process for potential jurors is unbiased. As a result, there

is overwhelming evidence to conclude that the selection process for terms during

the first months of 2002 was biased.” Dr. Stephenson concluded that “the

analysis presented in this report demonstrates that a systematic bias did exist in

the selection of individuals summoned for jury duty during the first three months

of 2002. This bias would have inevitably led to under representation

of . . . African-Americans in the terms during this period of time.”

Fourth, the magistrate judge considered a report by Dr. Edward Rothman, who

analyzed the composition of the Kent County Jury Pool between January 1998

and December 2002. Dr. Rothman used the census figures from the 2000 census,

at which time African-Americans comprised 8.24% of the population of Kent

County[, and Hispanics comprised 5.98% of the population]. Dr. Rothman

applied these figures to the period April 2001 to August 2002, and concluded that

there was a 3.45% absolute disparity between jury-eligible African-Americans

and those who appeared on jury venires[, and a 1.66% absolute disparity between

jury-eligible Hispanics and those who appeared on jury venires]. Rothman

found a comparative disparity of 42% [for African-Americans and 27.64% for

Hispanics].

Ambrose, 684 F.3d at 641–43. On January 5, 2012, the magistrate judge issued a

recommendation that Garcia-Dorantes’ Sixth Amendment claim be allowed to proceed because

his procedural default was excused4 and he had established a prima facie fair-cross-section

violation.

Before the district court issued its opinion, we decided Ambrose v. Booker, 684 F.3d 638

(6th Cir. 2012), a companion case arising from the same Kent County computer glitch, in which

we held that a petitioner must show both cause and actual prejudice to excuse a procedural

default, “even if the error structural.” Id. at 649. To guide district courts’ analyses of whether a

petitioner has shown actual prejudice in a case alleging a violation of the Sixth Amendment fair-

cross-section right, we explained:

We are then left with the question of the proper standard on remand. We are

guided in part by the Eleventh Circuit’s analysis of a similar question in Hollis v.

Davis, 941 F.2d 1471, 1480 (11th Cir. 1991). In that case, the petitioner claimed

that his counsel was ineffective for failing to object to Alabama’s systematic

exclusion of African-American jurors from grand and petit juries. To excuse this

4

The magistrate judge found only that Garcia-Dorantes had shown cause to excuse his procedural default;

the judge did not evaluate whether Garcia-Dorantes had also shown prejudice, asserting instead that because “the

systematic exclusion based on race in the selection of jurors is a structural error,” prejudice is presumed.

No. 13-2439 Garcia-Dorantes v. Warren Page 9

default, the Hollis court required that petitioner show actual prejudice, which

involved determining whether there was a reasonable probability that “a properly

selected jury [would] have been less likely to convict.” Id. at 1482. The Eleventh

Circuit’s analysis is persuasive. The most important aspect to the inquiry is the

strength of the case against the defendant.5 As the Eleventh Circuit reasoned, “a

transcript could show a case against [petitioner] so strong, and defense so weak,

that a court would consider it highly improbable that an unbiased jury could

acquit.” Id. at 1483 (internal quotation marks omitted). In that circumstance,

actual prejudice would not be shown.

Although the instant petitions do not involve a Strickland claim, this standard is

appropriate because it balances the competing demands of constitutionally

protected equal protection interests and comity toward the state courts. We

recognize that the application of the actual prejudice standard in cases such as

these presents a particularly challenging charge to the district courts below to

answer the question, “what would have happened?” The law nonetheless requires

that the question be answered—with a careful look at the transcripts involved, and

with judgment that takes into account a fair balance of the competing interests of

comity toward the final judgments of the state’s criminal processes and the

protection of constitutional equal protection interests.

Ambrose, 684 F.3d at 652.

The district court, applying the actual prejudice standard set forth in Ambrose,

conditionally granted Garcia-Dorantes’ petition for writ of habeas corpus. First, the district court

found that Garcia-Dorantes had shown “cause and actual prejudice” to excuse his procedural

5

At this point we included the following footnote:

This is not to say that the race of the jurors, defendant, and victim must be ignored. For

example, the Fifth Circuit recognized actual prejudice in a case involving an all-white jury, a black

defendant, and a white victim who was allegedly raped. See Huffman v. Wainwright, 651 F.2d

347, 350 (5th Cir. 1981). Relying on Huffman, the Eleventh Circuit reasoned:

In Strickland terms, if we compared the result reached by an all white

jury, selected by systematic exclusion of blacks, with the result which would

have been reached by a racially mixed jury, we would have greater confidence

in the latter outcome, finding much less probability that racial bias had affected

it. This principle was recognized in Huffman, 651 F.2d at 350:

Huffman was a black man accused of raping a white woman.

A mixed-race jury might clearly have a special perception in a

mixed race case. His defense was consent. His jury was all

white. Although a constitutionally drawn jury may be all

white, or all black, depriving Huffman of the chance of having

a mixed-race jury would seem to meet the prejudice

requirements for relief.

Hollis, 941 F.2d at 1482 (internal citations and quotation marks omitted).

No. 13-2439 Garcia-Dorantes v. Warren Page 10

default. In finding that Garcia-Dorantes had shown actual prejudice, the court began by rejecting

Dr. Sommers’ expert testimony6—testimony that posited that, in general, juries with more

minority members are less likely to convict regardless of the crime—as irrelevant to answering

the question of whether there is a reasonable probability that a properly selected jury would have

been less likely to convict Garcia-Dorantes. The court explained:

[E]ven if the Court credits the petitioner’s showing on this point as true [e.g., that

juries with more minority members are less likely to convict], it is irrelevant to

the question of actual prejudice. A properly selected jury could well have been all

white, with no minority members at all. The petitioner is not entitled to a more

lenient jury, or a jury panel with a particular racial balance—just one that has

been selected through a constitutionally sound process, regardless of the race of

the members. Taylor v. Louisiana, 419 U.S. 522, 538 (1975). The question is not

whether the petitioner missed his chance to stand trial before a more merciful jury

panel or a panel with a particular racial balance, but rather whether there is a

reasonable probability that a different jury would have reached a different result.

The court then explained that even without Dr. Sommers’ expert testimony, a review of Garcia-

Dorantes’ trial record supported a finding that Garcia-Dorantes had shown actual prejudice:

Based on the record evidence, it is not reasonable to find that the “case against

petitioner so strong, and defense so weak, that a court would consider it highly

improbable that an unbiased jury could acquit.” Ambrose, 684 F.3d at

652. . . . There is no question that the trial record here discloses sufficient

evidence on which a jury could have found that Garcia-Dorantes acted with

malice and therefore reasonably could have found him guilty of second-degree

murder. But “the question before [this Court] is not one of the sufficiency of the

evidence.” Richey, 498 F.3d at 364. The evidence of the petitioner’s state of

mind—his intent—was hardly overwhelming. [. . .]

[T]he petitioner has raised a credible claim that on the facts of this case, “[a]

mixed-race jury might clearly have a special perception.” Because African-

American and Hispanic jurors from more urban areas would be more likely to

have encountered gang violence than suburban white jurors, they may have better

6

In particular, Dr. Sommers testified that: (1) “research literature demonstrates that more diverse juries are

less likely to convict;” (2) “[t]here remains an increased likelihood of a . . . conviction with a greater percentage of

White jurors even in a strong case;” (3) “all-White . . . jurors . . . behave[] very differently in racially diverse jury

settings,” because “when people enter any kind of group discussion or group interaction and believe that there is

going to be disagreement and divergent opinions, people sort of scrutinize information more carefully;” and (4) in

racially charged cases, “White people might actually be more conscious of biases and try to counteract [them].” On

cross examination, however, Dr. Sommers conceded that the “weight of the evidence may play the largest role in

conviction decisions.” He explained, “I wouldn’t be surprised if you would see very high conviction rates in [a trial

with very strong evidence against the defendant] regardless of who the jury is. But again, what the research suggests

is that those rates would be just . . . a little bit higher with an all-White jury.”

No. 13-2439 Garcia-Dorantes v. Warren Page 11

understood the situation that the petitioner faced in a 4:00 a.m. confrontation with

a person who he thought was a gang member, and a jury selected from a fair

cross-section of the Kent County community therefore might have a different

perception of and reached different conclusions about the state of mind that the

petitioner had during the resulting street fight. As the petitioner points out, none

of the witnesses—including petitioner—testified to having a precise memory of

what happened at the moment Jose Gomez was stabbed. Because the evidence on

the petitioner’s state of mind reasonably allowed for competing inferences, the

subjective perceptions, life experience, and common sense of jurors, as shaped by

their individual racial and cultural backgrounds, would carry considerable weight

in deciding what precise intent the defendant had at the crucial moment. That

observation applies with equal force to the question whether the petitioner

intended to inflict great bodily harm when he stabbed Manuel Garcia.

Based on the facts and circumstances of the case, when comparing the result

reached by a jury “selected by systematic exclusion of blacks, with the result

which would have been reached by a racially mixed jury, [the Court] would have

greater confidence in the latter outcome, finding much less probability that racial

bias had affected it.” Ambrose, 684 F.3d at 652 n.4.

Second, the district court found that Garcia-Dorantes had “established a prima facie

violation of the fair-cross-section requirement under the Sixth Amendment,” showing both a

systematic and substantial underrepresentation of minorities in jury venires. In evaluating the

“fair and reasonable” representation prong from Duren, the court relied heavily on the magistrate

judge’s recommendation:

Considering the absolute disparity figures cited by Dr. Rothman (3.45%) and Dr.

Stephenson (6.03%), the magistrate judge noted that three recent cases have found

an absolute disparity of 3% or less to be insufficient under Duren. United States

v. Mujahid, 433 F. App’x 559 (2011) (absolute disparity of 2.87% insufficient);

United States v. Rodriguez-Lara, 421 F.3d 932 (9th Cir. 2005) (3%); United

States v. Royal, 174 F.3d 1 (1st Cir. 1999) (2.9%). The magistrate judge also

noted that neither absolute disparity figure would suffice under the standard

requiring a minimum of 10% absolute disparity which has been adopted in other

circuits, but he found that the 10% rule was not dispositive because the Sixth

Circuit has not adopted it. . . . That is . . . reasonable . . . , especially in light of the

Supreme Court’s declination of the respondent’s invitation to adopt such an

inflexible rule, finding no need in such cases “to take sides today on the method

or methods by which underrepresentation is appropriately measured.” Smith,

559 U.S. at 329−30 & n.4.

Considering the comparative disparity figures cited by Rothman (42%) and

Stephenson (73.1%), the magistrate judge found that the latter figure would

suffice under some recent holdings, but the former would not, citing United States

v. Weaver, 267 F.3d 231 (3d Cir. 2001) (comparative disparities of 40.01% and

No. 13-2439 Garcia-Dorantes v. Warren Page 12

72.98% insufficient, where absolute disparities were 1.23% and 0.71%

respectively); United States v. Chanthadara, 230 F.3d 1237 (10th Cir. 2000)

(finding that comparative disparities of 40.89% and 58.39% were insufficient, but

noting another holding that a 68.22% comparative disparity was sufficient);

United States v. Clifford, 640 F.2d 150 (8th Cir. 1981) (46% comparative

disparity insufficient).

After reviewing those authorities, the magistrate judge concluded that the

evidence was sufficient to support a finding of underrepresentation under Duren,

because it “presents a more obvious example of exclusion ‘inherent in the

particular jury-selection process utilized’ than that in Smith.” The magistrate

judge concluded that because the computer error “understated the county

population by 3.8 times,” and because of the unique circumstance that the input

file listed names in zip code order, where the lower zip codes represented

suburban areas with much smaller proportions of African-American residents, it

was apparent that the computer selection routine inherently and systematically

excluded African-Americans from the panels that were selected.

Respondent now appeals the district court’s grant of conditional habeas relief, claiming

that (1) Garcia-Dorantes failed to show actual prejudice to excuse his procedural default, and

(2) the district court erred in finding that the representation of African-Americans and Hispanics

in the venire from which his jury was selected was not fair and reasonable.

As an initial matter, in determining whether to excuse Garcia-Dorantes’ procedural

default, the district court applied the correct “actual prejudice” standard set forth in Ambrose v.

Booker, 684 F.3d 638, 652 (2012), a standard intended to mirror the inquiry required by

Strickland v. Washington, 466 U.S. 668, 694 (1984). Courts must consider whether, in light of

the underrepresentation of African Americans in the jury venire, “there is a reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. Stated another way, courts must ask, is there a reasonable probability that a different (i.e.

properly selected) jury would have reached a different result, “a probability sufficient to

undermine confidence in the outcome of the trial.” Strickland, 466 U.S. at 694. Though Garcia-

Dorantes argues that a less demanding “Hollis” standard—which he contends asks only whether

there is a “reasonable probability that a proper jury would have been less likely to convict,”

Hollis v. Davis, 941 F.2d 1471, 1482 (11th Cir. 1991)—applies, the Ambrose opinion stated

clearly: “Although the instant petitions do not involve a Strickland claim, this standard is

appropriate because it balances the competing demands of constitutionally protected equal

No. 13-2439 Garcia-Dorantes v. Warren Page 13

protection interests and comity toward the state courts.” Ambrose, 684 F.3d at 652 (emphasis

added). “This standard” refers to the Strickland standard—and not a different Hollis standard7—

a reading that wholly aligns with our previous statement that “federal courts should not reverse

state court decisions unless a petitioner can show that the outcome would have been different.”

Id. at 651 (emphasis added).

The district court also correctly found that Dr. Sommers’ expert testimony, in which

Dr. Sommers stated that racially diverse juries are less likely to convict than all-white juries, was

not relevant to the “actual prejudice” determination because his testimony: (1) does not support a

finding that a different jury would have reached a different result; (2) lacks any individualized

assessment of the case against Garcia-Dorantes; and (3) relies on impermissible racial

stereotypes. First, Dr. Sommers’ testimony at best only supports a finding that a properly

selected jury would have been less likely to convict—a standard that requires little more than a

showing of a mere possibility of prejudice. This finding does not meet the more exacting

7

It is not even entirely clear that there is a separate, less demanding Hollis standard; rather, the Hollis court

appears to have used the “less likely to convict” language as an alternative way to phrase “probability of a different

outcome” in cases where unconstitutional jury selection is alleged. The structure and analysis of the Hollis court’s

opinion supports this reading. First, the Hollis court began its prejudice analysis with a discussion of Strickland:

A petitioner shows prejudice due to ineffective assistance of counsel when “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome,” but “a defendant need not show that counsel’s deficient conduct more

likely than not altered the outcome in the case.” Strickland, 466 U.S. at 694. We conclude that we

must determine whether in this case there is a probability of a different result sufficient to

undermine confidence in the outcome.

Hollis, 941 F.2d at 1480. The court then explained that, in assessing the “probability of a different outcome,” the

court must ask “[w]ould a properly selected petit jury have been less likely to convict?” Id. at 1482. A review of

the court’s subsequent analysis shows that, in answering this question, the court relied on the Strickland standard

rather than a less demanding, “less likely to convict” standard. For instance, the court explained that “[b]ecause it is

so likely that the make-up of the grand and petit jury would have been different had Bullock County not

discriminated against blacks in assembling its jury list, we cannot say with confidence that the outcome of Mr.

Hollis’s case would have been the same.” Id. (emphasis added). Later, the court reasoned: “We would have far

more confidence in a term of imprisonment selected by a jury containing members of the defendant’s own race,

particularly where the black defendant is on trial for an offense against a white person.” Id. at 1483 (emphasis

added). And ultimately the court concluded that, “at least as to sentencing, there is a probability of a different result,

but for the unconstitutional jury selection, sufficient to undermine confidence in the outcome.” Id. (emphasis added).

The Hollis court used the “less likely to convict” language only once, while the court repeatedly relied on the

“confidence in the outcome” language from Strickland. Had the court truly adopted a less demanding, “less likely to

convict” standard, such a standard would have contradicted the court’s earlier statement that “[t]o establish actual

prejudice, a petitioner must show ‘not merely that the errors at his trial created a possibility of prejudice, but that

they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.’” Id. at 1480 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).

No. 13-2439 Garcia-Dorantes v. Warren Page 14

Strickland standard, namely that Garcia-Dorantes had to show that, with a properly selected jury,

there was a reasonable probability that the outcome of his trial “would have been different.”

Ambrose, 684 F.3d at 651−52. To find that there is a reasonable probability that with a properly

selected jury a petitioner’s trial outcome would have been different, a court must do more than

simply find that, in general, a more racially diverse jury is less likely to convict; such a finding

says nothing about the case at hand. “To establish actual prejudice, a petitioner must show ‘not

merely that the errors at his trial created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” Hollis, 941 F.2d at 1480 (quotations and citation omitted).

Second, Dr. Sommers’ testimony lacked any individualized assessment of the evidence

against Garcia-Dorantes, the factor we repeatedly identified in Ambrose as the “most important

aspect to the inquiry.” Ambrose, 684 F.3d at 652. To permit a finding of actual prejudice based

solely on such expert testimony would essentially eliminate the actual prejudice requirement in

all but the most extreme cases (e.g., where the evidence against the defendant is so airtight that

no reasonable jury could vote to acquit).

Third, reliance on the type of evidence provided by Dr. Sommers rests solely on general

racial characteristics, considerations flatly inconsistent with the underlying theory of Batson v.

Kentucky, 476 U.S. 79, (1986) and its progeny. As Justice Marshall explained, in his Batson

concurrence:

Exclusion of blacks from a jury, solely because of race, can no more be justified

by a belief that blacks are less likely than whites to consider fairly or

sympathetically the State’s case against a black defendant than it can be justified

by the notion that blacks lack the “intelligence, experience, or moral integrity,”

Neal v. Delaware, 103 U.S. 370, 394 (1881), to be entrusted with that role.

Batson, 476 U.S. at 104–05 (Marshall, J., concurring).

Ultimately, the district court, applying the proper Strickland standard,8 correctly found

that Garcia-Dorantes had shown actual prejudice to excuse his procedural default.9 A careful

8

The court explained, “[t]he question is not whether the petitioner missed his chance to stand trial before a

more merciful jury panel or a panel with a particular racial balance, but rather whether there is a reasonable

probability that a different jury would have reached a different result.”

No. 13-2439 Garcia-Dorantes v. Warren Page 15

review of Garcia-Dorantes’ trial record indicates that there is a reasonable probability that a

different jury would have reached a different result. Because Garcia-Dorantes conceded that he

had, in fact, stabbed the victim, the trial focused on whether he had acted with the requisite

intent. The jury thus was instructed on, and had a choice between, first-degree murder, second-

degree murder, manslaughter, and self-defense and, as the district court explained, “[t]he

evidence of [Garcia-Dorantes’] state of mind—his intent—was hardly overwhelming.” All of

the witnesses, including Garcia-Dorantes, testified that they were (likely severely) intoxicated on

the night of the fight, and none testified to having a precise memory of what happened at the

moment Gomez was stabbed. Garcia-Dorantes claimed that he had not intended to harm anyone,

and that he had pulled a knife only after he became scared during an attack by “gang members.”

Individuals on both sides of the fight agreed that they did not really know each other prior to the

fight. Though Garcia and Ramirez-Toledo both claimed that Garcia-Dorantes had provoked the

fight and that none of the other fight participants had weapons, in what came down to a he-said-

he-said scenario, it is far from clear that Garcia-Dorantes had intended to kill the victim. The

trial court judge, at sentencing, even described the incident as “completely senseless,” stating, “I

have to believe that perhaps a[n] element of uncontrolled machismo coupled with too much

alcohol may have contributed to this.” Because there is a reasonable probability that a different

jury—faced with the same evidence presented at Garcia-Dorantes’ trial—would have returned a

verdict on one of the alternative charges or acquitted Garcia-Dorantes based on self-defense, the

district court correctly found that Garcia-Dorantes had shown actual prejudice.

We do not rely, however, on the district court’s reasoning that Garcia-Dorantes “ha[d]

raised a credible claim that on the facts of this case, ‘[a] mixed-race jury might clearly have a

special perception.’” Though the court reasoned that, “[b]ecause African-American and

Hispanic jurors from more urban areas would be more likely to have encountered gang violence

than suburban white jurors, they may have better understood the situation that the petitioner

faced in a 4:00 a.m. confrontation with a person who he thought was a gang member . . . [and

thus have] reached different conclusions about [Garcia-Dorantes’] state of mind,” this argument

9

Respondent does not challenge Garcia-Dorantes’ showing of “cause,” nor could she. Because the factual

basis for Garcia-Dorantes’ claim—the computer glitch—was not reasonably available to counsel, and Garcia-

Dorantes could not have known that minorities were underrepresented in the jury pool by looking at the venire

panel, Garcia-Dorantes has shown cause.

No. 13-2439 Garcia-Dorantes v. Warren Page 16

fails for two reasons. First, as the Respondent points out, there is nothing inherent in race or

ethnicity that would give a juror special insight into gang violence; rather, such an analysis

appears more predicated on the experiences of jurors from urban and suburban settings. Since

“[d]efendants are not entitled to a jury of any particular composition,” Taylor v. Louisiana,

419 U.S. 522, 538 (1975), it follows that they are not entitled to a jury predisposed to better

“understand” their defense strategy.10 There is “no requirement that petit juries actually chosen

must mirror the community and reflect the various distinctive groups in the population.” Id. at

538. As the district court explained, “[t]he question is not whether the petitioner missed his

chance to stand trial before a more merciful jury panel or a panel with a particular racial balance,

but rather whether there is a reasonable probability that a different jury would have reached a

different result.” Second, this argument sounds much like the stereotyping arguments courts

have sought to avoid, see Batson v. Kentucky, 476 U.S. 79, 104–05 (1986) (Marshall, J.,

concurring), namely that because an individual is black or Hispanic, he is predisposed to better

understand, or be sympathetic to, a defendant’s case. Ultimately, saying that a mixed-race jury

might have a special perception (one born of differing experiences and circumstances) is not the

same as saying that systematic underrepresentation in the jury venire led to an outcome much

more likely to have been affected by racial bias—the harm the Sixth Amendment right guards

against.

Finally, with respect to prejudice, the Respondent’s argument that Garcia-Dorantes

cannot show prejudice because he “cannot even show that the petit jury would more likely than

not have been different,” incorrectly conflates the reasonable probability question with a

preponderance of the evidence standard. Assuming arguendo that the Respondent’s statistical

calculation is correct,11 a 48.51% likelihood that one of the two omitted African Americans

10

Prosecutors, likewise, are not allowed to use race as a basis for peremptory challenges, even if they

believe “that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black

defendant.” Batson, 476 U.S. at 104 (Marshall, J., concurring).

11

Respondent argues:

The venire was comprised of 43 persons. Thus, the likelihood is that there would have been two

more African American prospective jurors for the venire in the absence of the computer

glitch . . . . If randomly selected, there was a 48.51% likelihood that one of these African

Americans would have been seated for the petit jury, or 51.49% that neither would have.

In other words, it is more likely than not that neither of the two missing African American

prospective jurors would have been selected for the petit jury. This same analysis may be repeated

for Latinos where the statistical disparities were smaller. The likelihood is that there was one

No. 13-2439 Garcia-Dorantes v. Warren Page 17

would have been seated for Garcia-Dorantes’ petit jury likely satisfies the reasonable probability

standard. Though a statistical showing that there is a tiny likelihood that the petit jury would

have been different—absent the systematic underrepresentation—may support a finding of no

actual prejudice, reasonable probability is not, either in law or in common parlance, limited to

circumstances that are numerically greater than 50%.

In addition to showing cause and prejudice to excuse his procedural default, Garcia-

Dorantes has established a prima facie violation of his Sixth Amendment fair-cross-section right

because: (1) African-Americans and Hispanics are “distinctive” groups; (2) Respondent has

forfeited any claim that the underrepresentation of minorities in the jury venire was not due to

the systematic exclusion of the groups in the jury-selection process; and (3) the representation of

the underrepresented groups in the jury venire was not “fair and reasonable.” Under Duren v.

Missouri, 439 U.S. 357 (1979), to establish a prima facie case of a Sixth Amendment fair-cross-

section violation, a plaintiff must prove:

(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 systematic

exclusion of the group in the jury-selection process.

Id. at 364. Because it is undisputed that Garcia-Dorantes has satisfied the first and third Duren

prongs, we address only whether Garcia-Dorantes has shown that the representation of African

Americans and Hispanics in the jury venire from which his jury was drawn was “not fair and

reasonable in relation to the number of such persons in the community.”

Here, the absolute disparity for African-Americans of 3.45% and corresponding

42% comparative disparity are sufficient to satisfy the Duren second prong. To determine

whether the representation of a distinctive group is not “fair and reasonable,” courts typically use

either—or both—the “absolute disparity” or the “comparative disparity” test to measure the

distinctive group’s underrepresentation.

missing Latino juror . . . . Likewise, the likelihood that one juror would be selected to sit on the

petit jury is 27.90%, or 72.10% that the juror would not be selected.

No. 13-2439 Garcia-Dorantes v. Warren Page 18

Absolute disparity measures the difference between the percentage of a group in

the general population and its percentage in the qualified wheel. For instance, if

Asians constitute 10% of the general population and 5% of the qualified wheel,

the absolute disparity is 5%. Comparative disparity measures the decreased

likelihood that members of an underrepresented group will be called for jury

service, in contrast to what their presence in the community suggests it should be.

This figure is determined by dividing the absolute disparity of the group by that

group’s percentage in the general population. In the example above, the

comparative disparity is 50%: Asians are half as likely to be on venires as they

would be if represented in proportion to their numbers in the community.

United States v. Shinault, 147 F.3d 1266, 1272 (10th Cir. 1998).

Respondent argues that the disparities at issue here—3.45% and 1.66% absolute

disparities, and 42% and 27.64% comparative disparities for African Americans and Hispanics,

respectively—fail to show that the representation of African Americans and Hispanics in the jury

venires were not “fair and reasonable.” However, although Respondent points to numerous

cases from other circuits in which courts have held that such numbers do not satisfy the Duren

second prong, neither Supreme Court precedent, nor our prior decisions compel such a

conclusion. First, the Supreme Court has not mandated the proper statistical measure to

determine whether a minority is underrepresented for the purposes of Duren’s second prong.

Berghuis v. Smith, 559 U.S. 314, 329 (2010). In fact, in Smith, the Court explicitly refrained

from “tak[ing] sides . . . on the method or methods by which underrepresentation is appropriately

measured.” Id. at 329–30.

Second, we have previously found a 1.28% absolute disparity and 34% comparative

disparity—disparity figures lower than those presented in this case—sufficient to satisfy the

Duren second prong, particularly where the underrepresented population is a small percentage of

the community. In doing so, we have emphasized that, “[w]here the distinctive group alleged to

have been underrepresented is small, . . . the comparative disparity test is the more appropriate

measure of underrepresentation.” Smith v. Berghuis, 543 F.3d 326, 338 (6th Cir. 2008), rev’d on

other grounds, 559 U.S. 314 (2010). This is supported by the concern that absolute disparities

“understate[] the systematic representative deficiencies in cases . . . where . . . the groups at issue

comprise small percentages of the general population.” United States v. Weaver, 267 F.3d 231,

242 (3d Cir. 2001) (quoting United States v. Shinault, 147 F.3d 1266, 1273 (10th Cir. 1998)).

No. 13-2439 Garcia-Dorantes v. Warren Page 19

For instance, in Smith, 7.28% of the Kent County population was comprised of African-

Americans eligible for jury service, yet only 6% of the venire panel members in Kent County

were African-American. The Michigan Supreme Court determined that this disparity was

constitutionally insignificant, but decided the case based on a failure to show the exclusion was

“systematic.” Id. at 339. On appeal, we addressed the significance of the 1.28% absolute

disparity and 34% comparative disparity.12 Id. at 336−39. Even though we recognized that a

number of other courts had found absolute disparities in that range not to be constitutionally

significant, id. at 337 (collecting cases), we nevertheless found that it would be unwise to apply

the absolute disparity test when the underrepresented group is so small; we concluded that in

such situations, the comparative disparity test is more appropriate, reasoning:

“[A]n intractable use of the absolute measure may, in certain

circumstances . . . produce distorted results. For example, if a district with 10%

non-white population has .5% non-whites in the wheel, the 9.5% disparity may

not evoke disapproval under an absolute measure but may require it under a

comparative measure.”

Id. at 337−38 (quoting Foster v. Sparks, 506 F.2d 805, 835 (5th Cir. 1975)). We then

determined that, given the size of the minority population in Kent County, and the size of the

comparative disparity (34%), the petitioner had satisfied the second prong of Duren.

The instant case is factually similar to Smith, a published precedent of our court. Both

cases involve the jury pool in Kent County, a county in which African-Americans and Hispanics

comprised a small percentage of the population, both in 1990 and 2000. Thus, as we found in

Smith, the absolute disparity test—on its own—is of little use. Further, focusing on comparative

disparity—as suggested by the Smith court—leads to the conclusion that Garcia-Dorantes has

satisfied Duren’s second prong: the 42% comparative disparity here exceeds the

34% comparative disparity found sufficient in Smith. This finding comports with the finding of

an Eighth Circuit court in United States v. Rogers, 73 F.3d 774 (8th Cir. 1996). In Rogers, an

Eighth Circuit panel indicated that a comparative disparity of 30% would be sufficient to meet

12

This portion of the Smith opinion—which addresses the second prong of Duren—is not dicta. The

Michigan Supreme Court assumed that the petitioner had met the second prong of Duren, but concluded that

petitioner had not met the Duren third prong. We held that habeas relief was required. In doing so, we had to

decide whether the petitioner met the second prong. Moreover, when the Supreme Court reversed and remanded, it

did so because it found petitioner failed to meet the third prong of Duren, thus leaving intact our holding related to

Duren’s second prong. Smith, 559 U.S. at 320.

No. 13-2439 Garcia-Dorantes v. Warren Page 20

the underrepresentation prong of the Duren test where African-Americans comprised only

1.87% of the jury-eligible population. Id. at 776−77. Though the Rogers court noted that it was

bound by precedent that had previously upheld the challenged Iowa jury-selection plan, the

majority urged the court to revisit the precedent given the 30% comparative disparity figure. The

court reasoned that, because the minority population comprised only 1.87% of the total

population, comparative disparity was the most accurate measure of the underrepresentation.13

Id.

Finally, the Ambrose district court, in its initial conditional grant of habeas, correctly

considered and distinguished many of the cases from other circuits on which Respondent relies:

[T]he First Circuit and Second Circuit cases cited by Respondent for “similar”

statistics did not analyze a comparative disparity, see [United States v. Royal, 174

F.3d1, 10 (1st Cir. 1999)], and [United States v. Rioux, 97 F.3d 648, 657–58 (2d

Cir. 1996)], and the Third Circuit case rejecting comparative disparities of

40.01% and 72.98% was also faced with absolute disparities of only 1.23% and

0.71%, respectively, see [United States v. Weaver, 267 F.3d 231, 241–243 (3rd

Cir. 2001)]. The absolute disparity in this case was much higher, at 3.45%. While

the Seventh Circuit rejected an absolute disparity of 3%, the court noted at the

same time that there was nothing to suggest that “this discrepancy amounts to

anything more than a statistical coincidence.” [United States v. Ashley, 54 F.3d

311, 313–314 (7th Cir. 1995).] Here, the discrepancy was indisputably caused by

the error in compiling the jury pool. Indeed, Dr. Stephenson’s rejection of both

the absolute and comparative disparity tests as statistically inadequate and his

adoption of the Chi-square Goodness-of-fit test result as demonstrating the

underrepresentation of African Americans in the jury pool is unrebutted.

Of the cases cited by Respondent in its objection, that leaves only the Tenth

Circuit’s decision in [United States v. Orange], wherein the court rejected an

absolute disparity of 3.57% and comparative disparity of 51.22%. [447 F.3d 792,

798–99 (10th Cir. 2006)]. The court relied on its earlier cases rejecting similar,

and larger disparities. Id. However, a review of the Tenth Circuit cases does not

13

However, in United States v. Clifford, 640 F.2d 150 (8th Cir. 1981), a case decided before Rogers,

another Eighth Circuit panel explained:

This court has not seen fit to adopt the comparative disparity concept as a better means of

calculating underrepresentation. However, even if this were not the case, the 46% comparative

disparity figure asserted by Clifford does not rise to the level found to establish substantial

underrepresentation.

Id. at 155. The percentage of Native Americans—the “distinctive group”—in the population in Clifford, however,

was 15.6%, almost twice the percentage of African-Americans in the population in Kent County. Thus, the absolute

disparity may not have misstated the underrepresentation of the Native Americans to the same extent as cases

dealing with smaller populations.

No. 13-2439 Garcia-Dorantes v. Warren Page 21

reveal a persuasive rationale. Despite its reversal on other grounds, it is prudent

to follow the Sixth Circuit’s decision in Smith.

Ambrose, 781 F. Supp. 2d at 545. Given that African-Americans and Hispanics constitute a

small percentage of the Kent County population, the absolute and comparative disparity figures

here—taken together—are sufficient to satisfy Duren’s second prong.

Contrary to Respondent’s contention, in so finding, we have not “lowered” the standard

for determining whether there is a “fair and reasonable” representation of a distinct group. See

Appellant’s Br. at 51. Our circuit has never established a bright-line threshold for either absolute

or comparative disparity figures, and in Smith, we clearly held that disparities lower than those

present here satisfied the second prong of Duren. Nor do we agree with Respondent that finding

that these disparity levels satisfy the Duren second prong requires an additional finding that there

were “non-benign” factors at play. It is true that, in Smith, we noted that “[o]ther courts

have . . . found significant underrepresentation in the context of small minority populations that

would otherwise not satisfy the requisite burden under Duren where ‘non-benign factors’ may be

operating to produce such underrepresentation.” 543 F.3d at 339. However, we did not indicate

that a showing of “non-benign” factors was always required for a petitioner to succeed on a

claim where the relatively small size of the distinct group in the population makes the

applicability of the absolute and comparative disparity tests problematic and, in any event, the

3.45% absolute disparity and 42% comparative disparity figures here are not so low as to require

such an additional showing.

Because Garcia-Dorantes has satisfied the Duren second prong based on the combination

of absolute and comparative disparity, we decline to apply in this case either the “disparity of

risk” test14 or “comparative disparity of risk”15 test discussed by Garcia-Dorantes. Neither

14

The “disparity of risk” test measures “the likelihood that the difference between a group’s representation

in the jury pool and its population in the community will result in a significant risk that the jury will not fairly

represent the group.” People v. Bryant, 822 N.W.2d 124, 142−43 (Mich. 2012). “It does so by comparing the

chance that a defendant’s jury (before or without voir dire) will include members of a distinct group if that group’s

representation in the jury pool is consistent with its population in the community with the chance that a defendant’s

jury will include members of the same group given the particular underrepresentation alleged.” Id. at 143.

Proponents of the “disparity of risk” test claim that the test “does not distort the results when the representation in

the community is either very large or very small.” Fitzharris, Can We Calculate Fairness and Reasonableness?,

112 MICH. L. REV. 489, 507 (2013) (citing Peter A. Detre, Note, A Proposal for Measuring Underrepresentation in

the Composition of the Jury Wheel, 103 YALE L.J. 1913, 1935−36 (1994)). However, opponents of the test point out

No. 13-2439 Garcia-Dorantes v. Warren Page 22

Respondent nor Garcia-Dorantes argues for a wholesale adoption of either test, and both tests are

relatively untested. We do not, however, reject the possibility that such tests may be useful in

some future case.

Finally, because the glitch was inadvertent, no state interest was advanced by the

computer error and subsequent underrepresentation of minorities in the jury venire. Once a

petitioner establishes a prima facie violation of his Sixth Amendment fair-cross-section right—as

Garcia-Dorantes has—the burden shifts to the government to show that “a significant state

interest [is] manifestly and primarily advanced by those aspects of the jury-selection

process . . . that result[ed] in the disproportionate exclusion of a distinctive group.” Duren,

439 U.S. at 367–68.

Accordingly, we affirm the judgment of the district court granting Garcia-Dorantes’

petition for a writ of habeas corpus.

that: (1) the test has yet to garner approval in any court besides the Michigan Supreme Court, see Bryant,

822 N.W.2d at 143; (2) the test, by emphasizing the underrepresentation of the distinct group in the petit jury, not

the jury venire, may not answer the question posed by Duren’s second prong, namely whether “the representation of

[the minority group] in venires from which juries are selected is not fair and reasonable in relation to the number of

such persons in the community,” Duren, 439 U.S. at 364; and (3) because the test assumes that the jurors in a petit

jury are chosen at random from an infinite pool and, consequently, does not control for peremptory or for-cause

challenges, or a shrinking jury venire, the test may not accurately reflect the “true” likelihood of a group’s

representation in the petit jury.

15

The “comparative disparity of risk” test has one advantage over the disparity of risk test, namely that it

“measures the likelihood that the state’s bad act—in this case, the systematic exclusion of black jurors from the jury

list—results in an unfavorable result, [such as] an underrepresentative petit jury.” Fitzharris, Can We Calculate

Fairness and Reasonableness?, 112 MICH. L. REV. at 515. However, the test appears to suffer from the same

shortcomings the disparity of risk test does: (1) because the test has not been adopted by any court, it may be

difficult to establish a “threshold” level; (2) the test’s result focuses on the composition of the petit jury, rather than

the venire; and (3) the analysis does not account for peremptory or for-cause challenges, or shrinking jury venires.

No. 13-2439 Garcia-Dorantes v. Warren Page 23

_________________

DISSENT

_________________

MERRITT, Circuit Judge, dissenting. I disagree with the opinion of my colleague, Judge

Rogers, that the writ should issue setting aside the State’s judgment in the case. My reasons are

as follows:

First, the number of available black jurors in Kent County, Michigan, remains much

below ten percent — in line with the case from Kent County recently decided by the United

States Supreme Court in 2010, Berghuis v. Smith, 559 U.S. 314, in which the Court held that the

trial by an all-white jury in a similar situation did not violate the Sixth Amendment. It reversed

this Court in that case, reported at 543 F.3d 326 (2010). The Supreme Court observed that the

number of non-white jurors seemed to be further substantially reduced because of social and

economic factors leading potential black jurors at times to avoid serving by not responding to

mail notice to appear. The Supreme Court noted that in such situations where “members of the

distinctive group” are a “small percentage of those eligible for jury service” we should be

hesitant to find that the state engaged in “systematic exclusion” when the jury turns out to be all-

white. Id. at 329-30. Based on the law of averages, along with the random nature of selecting

the persons to be called for jury duty, there are likely to be many all-white juries in Kent County.

The Court found that in such situations “absolute disparity and comparative disparity . . . can be

misleading,” and rejected Sixth Amendment arguments, like those in the instant case, based on

such abstract statistical measures.

My colleagues cite for authority and follow this Court’s reasoning in Berghuis v. Smith,

supra, the Kent County case the Supreme Court reversed. So far as I can follow the statistical

tests explained in Judge Rogers’s opinion in this case, the reasoning is based on the “absolute”

and “comparative” statistical tests that the Supreme Court rejected as “misleading” when the

percentage of blacks and Hispanics is as low as it remains in Kent County. I read the Supreme

Court opinion as rejecting the use of these statistical tests in our earlier Berghuis opinion. The

statistical analysis remains the same in the instant case as in our earlier opinion that the Supreme

Court reversed.

No. 13-2439 Garcia-Dorantes v. Warren Page 24

Second, in the case before us, the number of available black jurors in Kent County,

Michigan, is well below 10% so that by the law of averages many juries would be all white. Yet

in this case, we do not even know that there were no blacks on the jury because apparently no

record was kept, and no record is available, about who was on the jury. We do not know how

many men or women, or how many blacks or Hispanics, were on the jury. There may well have

been one or more black members on the jury in this case. We simply do not know the facts on

this question. If we do not know the facts on this question, we cannot logically or accurately say

that in reality there was “systematic exclusion” in this case, except in the most abstract,

generalized statistical sense.

Third, even if we assume the under representation of black jurors based on the “computer

glitch” and the various statistical tests courts have used to measure the representation of

distinctive groups in jury pools, the assumption may very well be wrong because one or more of

the clerks in the Kent County Circuit Court Clerk’s office, on their own initiative, apparently

added black members to some of the venires in order to overcome what they perceived to be

juries that were too white. Based on the findings of Michigan courts, we may take judicial notice

of the work of the clerks of court to try to make up for the shortfall of black jurors:

Moreover, there was evidence that the error began in April 2001 and

persisted over a period of 16 months. Terry Holtrop, the case-management

manager for the Kent 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 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. VanTimmeren 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.”

People v. Bryant, 796 N.W.2d 135, 143-44 (Mich. App. Ct. 2010). Thus, we do not know

whether any particular jury was unrepresentative of the community.

Fourth, when the jury decides a highly contested case based on the instincts, credibility

determinations and inferences of twelve jurors after extensive discussions in the jury room, how

can we judge the effect of the failure to have seated, or called for jury duty, a juror from a

No. 13-2439 Garcia-Dorantes v. Warren Page 25

particular distinctive group? So long as the evidence supports the verdict and so long as the

selection process does not purposely discriminate against members of the group, I am unable to

find prejudice or a reasonable basis for setting aside a jury verdict in cases like this one.

A central purpose of the modern trial by jury is to protect the citizen from prosecutorial

overreach by democratizing the judicial process through a representative group of citizens who

apply the often-complicated rules of the criminal law and debate among themselves what justice

requires in the case. It is a great “bulwark” of liberty developed over ten centuries of Anglo-

American law. See Plucknett, “A Concise History of the Common Law” 136-38 (1956). Taking

into account all of the factors in this case — e.g., the attitude of the Supreme Court about the

lack of persuasiveness of abstract statistical arguments in this situation, our lack of precise

knowledge of what jurors were in fact impaneled, and the facts of the case and the jury verdict

— I cannot say that the jury in this case was not representative of the people of Kent County, and

I am not inclined to set aside the verdict and start all over again.