Joseph Howell v. Superintendent Rockview SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 17-1758

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JOSEPH HOWELL,

Appellant

v.

SUPERINTENDENT ROCKVIEW SCI;

ATTORNEY GENERAL PENNSYLVANIA;

DISTRICT ATTORNEY ALLEGHENY COUNTY

________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-12-cv-00884)

District Judge: Honorable David S. Cercone

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Argued May 1, 2019

Before: RESTREPO, PORTER and FISHER, Circuit Judges.

(Filed: September 17, 2019)

Leigh M. Skipper, Chief Federal Defender

Helen Marino, First Assistant Federal Defender

Arianna J. Freeman

Loren D. Stewart [ARGUED]

Federal Community Defender Eastern District of

Pennsylvania

Federal Community Defender Office for the Eastern District

of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Stephen A. Zappala, Jr., District Attorney

Ronald M. Wabby, Jr., Deputy District Attorney

Rusheen R. Pettit [ARGUED]

Allegheny County Office of District Attorney

436 Grant Street

Pittsburgh, PA 15219,

Counsel for Appellees

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Criminal defendants are deprived of their Sixth

2

Amendment right to a jury selected from a broad representation

of the community when distinctive groups are systematically

excluded from the jury selection process. See Duren v.

Missouri, 439 U.S. 357, 363-64 (1979). Because any under-

representation in Joseph Howell’s jury pool was not caused by

a systematically discriminatory process, the District Court

properly denied his habeas petition alleging a Sixth

Amendment violation. We will affirm.

I.

Jury selection in Howell’s 2004 prosecution consisted

of two venire panels. The first included thirty-five individuals,

two of whom were black but were both excused for hardship.

The second panel included twenty-five potential jurors, all of

whom were white. Ultimately, Howell, a black man, was

convicted for the 2002 felony murder of a white man by an all-

white jury.

Prior to jury selection, Howell filed a Motion to Ensure

Representative Venire, arguing that he was entitled to a jury

pool that represented a fair cross section of the community—

Allegheny County—particularly with respect to race. The trial

court held a hearing on Howell’s allegations that black

individuals were systemically under-represented in Allegheny

County’s jury pools, during which it adopted the record from

two other cases where defendants also raised a fair-cross-

section challenge. The incorporated record included expert

testimony from Dr. John F. Karns, a sociologist, regarding the

racial statistics and demography of Allegheny County.

Dr. Karns’ testimony expounded on demographic data

gathered over a six-month period in 2001, over a ten-day

period in 2002, and from the 2000 census. The 2001 study was

based on data gathered by the firm Gentile Meinert &

Associates and interpreted by Dr. Karns. Gentile Meinert &

3

Associates provided prospective jurors (individuals who

appeared for jury selection pursuant to a summons) with a

paper survey that asked questions about their race, age, and

gender. From this study, which surveyed approximately 4500

potential jurors, Dr. Karns calculated that black individuals

made up 4.87% of Allegheny County’s jury pool. He also

found that black individuals made up 10.7% of the population

of Allegheny County eligible for jury service. Based on these

numbers, Dr. Karns concluded that “whites [were]

overrepresented” in jury pools, resulting in systematic

exclusion of “a significant number of people for a significant

time.” App. at 112, 127. Despite this conclusion, the trial court

denied Howell’s motion.

An all-white jury was impaneled and found Howell

guilty of felony murder. Howell moved for extraordinary

relief, arguing that he should be retried by a representative jury,

even if assembling the jury would require multiple venires. The

trial court denied his motion; it then sentenced Howell to a

mandatory sentence of life without parole.

Howell timely appealed to the Pennsylvania Superior

Court, which held that Howell had not been denied a trial by a

fair cross-section of the community. The Superior Court noted

Dr. Karns’ testimony,1 and identified the proper test for

determining whether a fair-cross-section violation occurred.

The court then concluded that Howell “fail[ed] to demonstrate

‘an actual discriminatory practice in the jury selection

process,’” and, therefore, held that Howell did not demonstrate

a constitutional violation. App. at 252-54 (quoting

1

The Superior Court observed Howell’s reliance on Dr. Karns’

testimony without stating whether it was reliable or making a

finding of fact about its accuracy and declined to reach the

statistical analysis.

4

Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2003)).

The state court stated that, though the U.S. Supreme Court’s

test does not require a showing of discriminatory intent, it was

bound to follow Pennsylvania Supreme Court precedent,

which does require such a showing.

Howell filed a habeas petition based on six grounds,

including his fair-cross-section claim. A magistrate judge

issued a report and recommendation that assumed, without

deciding, “that the Superior Court erred in requiring [Howell]

to show discriminatory intent,” but concluded that, under de

novo review, Howell failed to establish a Sixth Amendment

violation. App. at 14-16. The magistrate judge compared the

level of racial disparity in Howell’s case to those in other cases

around the country. She concluded that, because other courts

found no constitutional violation in cases with higher

percentages of disparity than here, Howell could not establish

his claim.

The District Court adopted the magistrate judge’s report

and recommendation and denied Howell’s petition. Howell

now appeals.

II.

The District Court exercised subject matter jurisdiction

pursuant to 28 U.S.C. §§ 2241 and 2254. We exercise appellate

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

The District Court did not hold an evidentiary hearing

but relied exclusively on the state court record; we therefore

undertake a plenary review of the District Court’s order

utilizing the same standard that the District Court applied.

Branch v. Sweeney, 758 F.3d 226, 232 (3d Cir. 2014).

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) dictates the parameters of our review and

5

requires us to afford considerable deference to the state court’s

legal and factual determinations. Lambert v. Blackwell, 387

F.3d 210, 234 (3d Cir. 2004). We may overturn a state-court

holding only where it “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly

established Federal law,” or “was based on an unreasonable

determination of the facts in light of the evidence presented.”

Id. (quoting 28 U.S.C. § 2254(d)(1)-(2)). The state court’s

factual conclusions “‘shall be presumed to be correct’ unless

the petitioner rebuts ‘the presumption of correctness by clear

and convincing evidence.’” Id. (quoting 28 U.S.C. §

2254(e)(1)).

If the state court erred, habeas relief should be granted

only if, upon de novo review, the prisoner has established that

he “is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a); see also

Saranchak v. Beard, 616 F.3d 292, 301 (3d Cir. 2010).

III.

The Sixth Amendment promises all criminal defendants

a trial by a “jury drawn from a pool broadly representative of

the community . . . as assurance of a diffused impartiality.”

Taylor v. Louisiana, 419 U.S. 522, 530-31 (1975) (quoting

Thiel v. S. Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J.,

dissenting)). A violation of this right occurs where “jury

wheels, pools of names, panels, or venires from which juries

are drawn . . . exclude distinctive groups in the community.”

Duren, 439 U.S. at 363-64 (quoting Taylor, 419 U.S. at 538).

Howell argues that his Sixth Amendment rights were violated

by Allegheny County’s systematic exclusion of black jurors at

the time of his trial.

A.

A state-court decision is “contrary to” or an

6

“unreasonable application of” federal law if it directly conflicts

with Supreme Court precedent or reaches a different result than

the Supreme Court when presented with materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405

(2000).

In its analysis, the state court relied on its interpretation

of Pennsylvania Supreme Court precedent to determine

whether Howell established a prima facie violation of his right

to a jury composed of a representative cross-section of his

community. Quoting Commonwealth v. Estes, 851 A.2d 933

(Pa. Super. Ct. 2004) (citing Johnson, 838 A.2d 663), the court

set forth the Duren standard for establishing such a violation—

that (1) an allegedly excluded group is “distinctive” in the

community; (2) the group’s representation in jury-selection

panels is not fair and reasonable in relation to the community’s

population; and (3) the group is under-represented due to its

systematic exclusion from the jury-selection process—but then

went on to state that “[p]roof is required of an actual

discriminatory practice in the jury selection process, not

merely underrepresentation of one particular group.” App. at

252-54. The state court acknowledged Howell’s argument that

he was “not required to prove discriminatory intent . . . under

Duren,” but the court concluded that “the Pennsylvania

Supreme Court has held otherwise” and that it was “bound by

[that] prior decision[].” App. at 253-54.

Irrespective of how the Superior Court reached its

conclusion, that conclusion must comport with “clearly

established Federal law as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1); see also

Williams, 529 U.S. at 412 (“As the statutory language makes

clear . . . § 2254(d)(1) restricts the source of clearly established

Federal law to [the Supreme] Court’s jurisprudence.”).

Therefore, the question before us is whether the Superior

7

Court’s decision is consistent with Duren and its progeny.

Duren established a three-factor test for determining

when a fair-cross-section violation has occurred. Significantly,

that test does not include a requirement for proof of

discriminatory intent. To the contrary, the Court—in a

footnote—distinguished the Sixth Amendment claim before it

from cases brought under the Equal Protection Clause by

noting that, in the latter, a showing of discriminatory purpose

is essential, but that, in the former, “systematic disproportion

itself demonstrates an infringement.” Duren, 439 U.S. at 368

n.26.

The Commonwealth correctly notes that the Court’s

statements in a footnote are not necessarily binding authority

on habeas review because “‘clearly established Federal law’ . .

. includes only the holdings, as opposed to the dicta, of [the]

Court’s decisions.” Woods v. Donald, 135 S. Ct. 1372, 1376

(2015) (citing White v. Woodall, 572 U.S. 415, 419 (2014)).

However, Footnote 26 is not the only place in Duren where the

Court makes clear that a showing of discriminatory intent is

not required. In the body of the opinion, the Court enumerated

the three elements that a prisoner must establish to prove a

constitutional violation, thereby setting the outer parameters of

a fair-cross-section analysis, and it simply did not include

8

discriminatory intent as one of those elements.2 Therefore,

requiring a prisoner to show discriminatory intent imposes a

more stringent standard than the one articulated by the

Supreme Court. Though states may provide broader

constitutional protections than required by federal law, they

“may not impose . . . greater restrictions as a matter of federal

constitutional law when [the Supreme] Court specifically

refrains from imposing them.” Oregon v. Hass, 420 U.S. 714,

719 (1975) (emphasis omitted)).

The state court did not address the three factors

identified in the Duren test, but instead rested its decision

exclusively on Howell’s failure to identify a discriminatory

purpose. By requiring proof of this additional element, the

Superior Court imposed greater restrictions on Howell than

those required by the Supreme Court, contrary to and in an

unreasonable application of clearly established federal law.

B.

Because the Superior Court’s decision contradicts

federal law, this Court must review Howell’s claim de novo.

To establish a fair-cross-section violation, Howell must prove

that, at the time of his trial, (1) blacks were a “‘distinctive’

group in the community”; (2) “representation of [blacks] in

2

Writing in dissent, Justice Rehnquist criticized the majority

for imposing the very distinction between Equal Protection

Clause cases and Sixth Amendment cases that the Superior

Court ignores. Duren, 439 U.S. at 371 (Rehnquist, J.,

dissenting) (emphasizing that “[t]he difference [between equal

protection and Sixth Amendment cases] apparently lies in the

fact, among others, that under equal protection analysis prima

facie challenges are rebuttable by proof of absence of intent to

discriminate, while under Sixth Amendment analysis intent is

irrelevant”).

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venires from which juries [were] selected [was] not fair and

reasonable in relation to the number of such persons in the

community”; and (3) “this underrepresentation [was] due to

systematic exclusion of [blacks] in the jury selection process.”

Duren, 439 U.S. at 364.

1. Distinctive Group

Blacks are “unquestionably a constitutionally cognizable

group.” Ramseur v. Beyer, 983 F.2d 1215, 1230 (3d Cir. 1992)

(en banc). See also United States v. Weaver, 267 F.3d 231, 239

(3d Cir. 2001) (finding that blacks are “sufficiently numerous

and distinct from others in the population” to satisfy the first

prong of the Duren test (citing Castaneda v. Partida, 430 U.S.

482, 495 (1977))).

2. Unfair and Unreasonable Representation

Howell’s claim that blacks were unfairly and

unreasonably represented in jury venires “must be supported

by statistical evidence,” beginning with the percentage of

blacks in the community at the time of his trial. Weaver, 267

F.3d at 240 (citing Duren, 439 U.S. at 364). Relying on the

2000 Census, Howell has demonstrated that 10.7% of the adult

population in Allegheny County identified as black. See

Duren, 439 U.S. at 365 (accepting census data as “prima facie

evidence of population characteristics”). This population

percentage must then be compared to the percentage of blacks

included in the jury venire to determine whether representation

was proportionately fair and reasonable. Id. at 364-67.

i. Reliability of the Data

Howell relies on the 2001 study conducted by Gentile

Meinert & Associates for his claim that blacks made up 4.87%

of jury pools. However, there is no evidence regarding how

many people received jury summonses, how many people

10

appeared for jury selection (versus the number of individuals

who received surveys), or how many people failed to fill out

the survey. Without this information, Howell’s statistical data

is not sufficiently reliable to support a finding of unfair and

unreasonable representation.3 See Weaver, 267 F.3d at 243-44.

In Weaver, this Court found that a prisoner’s figures

were too weak to support his claims where the statistician

based his conclusions only on completed and returned

questionnaires without accounting for unanswered

questionnaires. Id. The Court highlighted that, to support an

allegation of under-representation, the statistician was required

to perform one of three analyses: (1) analyze the race of every

person in the jury pool; (2) perform a sampling of the jury pool

3

Under AEDPA, the state court’s implicit and explicit factual

findings are presumed correct “if supported by the record.”

Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007); see also 28

U.S.C. § 2254(e)(1). Even if the Superior Court had implicitly

made a credibility determination regarding Dr. Karns’

testimony—which it did not, compare Campbell v. Vaughn,

209 F.3d 280, 285 (3d Cir. 2000) (finding implicit credibility

determination where Superior Court relied on the contested

testimony to conclude that defendant did not demonstrate

ineffective assistance of counsel), with App. at 252 (noting that

Howell “relies on the testimony of John F. Karns, Ph.D.,” but

then reaching its legal determination without any reference to

or reliance upon Dr. Karns’ testimony)—that determination

would be undermined by the record for the reasons we explain.

11

and then calculate the standard deviation4; or (3) account for

the statistical impact of the unreturned questionnaires. Id. at

244. Because he did not provide any of these analyses, this

Court concluded that the statistical evidence was “too weak to

support a finding of representation that is unfair and

unreasonable.”5 Id.

Howell’s statistical data suffers from the same

weaknesses we identified in Weaver. As in Weaver, Dr. Karns

4

“Standard deviation” is often confused with the similar, but

distinct, calculation of “standard error.” See Douglas G.

Altman & J. Martin Bland, Statistics Note, Standard Deviation

and Standard Errors, 331 Brit. Med. J. 903 (2005). As called

for in Weaver, reliable data requires a standard deviation

calculation if the entire population is not accounted for, which

“indicates how accurately the mean represents sample data.”

Dong Kyu Lee et al., Standard Deviation and Standard Error

of the Mean, 68 Korean J. Anesthesiology 220 (2015); see also

Weaver, 267 F.3d at 238 n.6 (requiring calculation of the

standard deviation “because it establishes the probability that a

sample taken from the jury wheel accurately reflects the

composition of the entire wheel”).

5

The Court also noted that discrepancies in the statistician’s

testimony, wherein he consistently claimed to have examined

the entire master wheel even though he did not account for

unreturned surveys, “further undermine[d] the strength of the

evidence.” Weaver, 267 F.3d at 243-44.

12

did not analyze the racial makeup of the entire jury venire.6

Though approximately 4500 individuals were given surveys

over a six-month period, Dr. Karns’ analysis did not take the

unanswered surveys into consideration, which significantly

weakens the reliability and influence of the statistical data. Id.

at 244. As Dr. Karns acknowledged, if a higher percentage of

blacks failed to answer the survey than whites, the results of

the survey would be “skewed.” App. at 131. However, Dr.

Karns does not know how many surveys omitted responses to

certain questions or went unanswered entirely, let alone the

race of the individuals who chose not to answer them. Because

of this missing data, it is not possible to now calculate the

standard deviation or account for the significance of

unanswered surveys, as we require.

Howell claims that Dr. Karns’ data does satisfy Weaver

because he conducted a validity analysis known as the “Z-

statistic,” which Howell claims is “akin to standard deviation,”

and concluded that the chances of his conclusion that blacks

were under-represented being incorrect “are about four in

10,000.” Reply Br. at 13 (quoting App. at 112). However, the

purpose of the “Z-statistic” is simply to determine the “risk of

being wrong” about a hypothesis. App. at 112. Here, Dr.

Karns’ starting hypothesis was “that there are too few African-

Americans” in jury pools. Id. However, Dr. Karns did not

6

In addition to acknowledging that he had “no idea” whether

every potential juror filled out the survey, App. at 117—and it

would be illogical to believe that each person did—Dr. Karns

also testified that jurors who were originally assembled in civil

court assignment rooms but were later brought to criminal

court were not surveyed. Therefore, we can conclude without

speculation that Dr. Karns’ analysis failed to account for every

member of the venire.

13

provide any analysis to explain how a low likelihood of this

hypothesis being incorrect sufficiently demonstrates that his

statistical representations are reliable, particularly in light of

the unaccounted for, unanswered surveys. For instance, it

could certainly be true that blacks appear on jury pools less

often than we would statistically expect, but that the degree of

under-representation does not rise to the level of a

constitutional violation. Dr. Karns’ Z-statistic analysis

regarding the accuracy of his general hypothesis cannot

substitute a standard deviation calculation, which is an inquiry

into the reliability of the statistics he presented and is required

by our precedent.

Because Howell’s statistical data fails to account for the

entire jury venire using one of the statistical methodologies

approved by this Court, it is “too weak to support a finding of

representation that is unfair and unreasonable.” Weaver, 267

F.3d at 244.

ii. Significance of the Data

Even if Howell had provided reliable data, courts

around the nation, including our own, have found that

representation was not unfair or unreasonable with disparity

levels greater than or similar to those presented here.

To determine the significance of the statistical evidence,

we must compare the population percentage (10.7%) with the

jury venire percentage (4.87%). This Court has relied on two

methods of statistical analysis to determine the significance of

14

the disparity between the percentages: absolute disparity7 and

comparative disparity.8 Weaver, 267 F.3d at 241; Ramseur,

983 F.2d at 1233-35.

The absolute disparity in this case, 5.83%, is lower than

or similar to absolute disparities in other cases where courts

have found no constitutional violation, and in fact, numerous

courts have noted that an absolute disparity below 10%

generally will not reflect unfair and unreasonable

representation. See United States v. Shinault, 147 F.3d 1266,

1273 (10th Cir. 1998) (noting that courts of appeals “generally

are reluctant to find [unfair and unreasonable representation]

when the absolute disparities are less than 10%”); see also,

7

Absolute disparity reflects the difference in the percentage of,

in this case, blacks in the general voting-age population and in

the jury venire: 10.7% (population percentage) - 4.87% (venire

percentage) = 5.83% (absolute disparity). This absolute

disparity reflects that, in a jury pool of one hundred people,

approximately six fewer black people would be in the pool than

statistically expected.

8

Comparative disparity “measures the decreased likelihood

that members of an underrepresented group will be called for

jury service” relative to what would be expected given the

percentage of the general population that group comprises.

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

(emphasis in original) (cited by Weaver, 267 F.3d at 241-42).

This is calculated by dividing the absolute disparity by the

population percentage: 5.83% (absolute disparity) ÷ 10.7%

(population percentage) = 54.49% (comparative disparity).

This comparative disparity reflects that, at the time of Howell’s

trial, blacks were 54.49% less likely to be on venires than if the

representation was directly proportional to their population in

the County.

15

e.g., Thomas v. Borg, 159 F.3d 1147, 1151 (9th Cir. 1998) (5%

absolute disparity insufficient even though no blacks were on

jury panel); United States v. Gault, 141 F.3d 1399, 1402-03

(10th Cir. 1998) (3.19%, 5.74%, and 7.0% absolute disparities

insufficient); United States v. Pion, 25 F.3d 18, 23 (1st Cir.

1994) (3.4% absolute disparity insufficient); Ramseur, 983

F.2d at 1232 (absolute disparity of 14.1% “borderline”);

United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982)

(2.8%, 4.7%, and 7.7.% absolute disparities insufficient).

Likewise, courts have found that comparative

disparities similar to the comparative disparity in this case,

54.49%, were insufficient to demonstrate unfair and

unreasonable representation. See, e.g., United States v.

Chanthadara, 230 F.3d 1237, 1257 (10th Cir. 2000) (finding

comparative disparity of 40.89% insufficient where the

distinctive group represented 7.9% of the population); United

States v. Clifford, 640 F.2d 150, 155-56 (8th Cir. 1981)

(finding comparative disparity of 46% insufficient where the

group represented 15.6% of the population). But see LaRoche

v. Perrin, 718 F.2d 500, 502-03 (1st Cir. 1983) (holding that a

prima facie challenge was established where the comparative

disparity was 68.22% and the group comprised 38.4% of the

population), overruled on other grounds by Barber v. Ponte,

772 F.2d 982 (1st Cir. 1985).

When compared to factually similar cases, the absolute

and comparative disparities reflected in this case do not make

a prima facie showing of unconstitutional under-

representation.

3. Systematic Exclusion

If Howell’s claims were supported by reliable statistical

evidence, to prove a cross-section violation, Howell would

need to show that the under-representation of blacks in jury

16

pools is “due to systematic exclusion in the jury selection

process.” Weaver, 267 F.3d at 244 (citing Duren, 439 U.S. at

366). In Duren, the Supreme Court found systematic exclusion

where a state law permitted women to exclude themselves from

jury selection simply because of their gender. 439 U.S. at 367.

Unlike in Duren, where the system that caused the under-

representation—a state statute—was readily apparent, there is

no identifiable cause for the under-representation of blacks in

jury venires in Allegheny County. Therefore, to demonstrate

“systematic exclusion,” Howell must show “a large

discrepancy over time such that the system must be said to

bring about the underrepresentation.” Weaver, 267 F.3d at 244.

We consider the nature of the system, length of time studied,

and “efforts at reform to increase the representativeness of jury

lists” in determining whether the jury selection system caused

the under-representation. Ramseur, 983 F.2d at 1234-35.

i. Nature of the System

A selection process that is facially neutral is unlikely to

demonstrate systematic exclusion. See Ramseur, 983 F.2d at

1235. In Ramseur, we concluded that the selection process was

facially neutral because the pool of jurors (the “Master List”)

was composed of names from both the voter registration and

Department of Motor Vehicles lists, and, therefore, did not

preference any particular age, gender, or race. Id. Likewise, at

the time of Howell’s trial, the Master List consisted of names

from Allegheny County’s list of registered voters and the

Pennsylvania Department of Transportation’s driving records.

Howell does not contest the propriety of Allegheny County’s

method for compiling its Master List, and these parallels

demonstrate that the nature of the system was facially neutral.

17

ii. Length of Time Studied

Even assuming that Howell’s data was based on a

reliable study, that study must have demonstrated ongoing

discrimination over a sufficient period of time. In Ramseur,

this Court held that a study conducted over the course of two

years was not sufficient to show a history of abuse that would

reflect a systematic exclusion. 983 F.2d at 1235. Howell seeks

to distinguish the six-month study in this case from Ramseur

by noting that, in Duren¸ the underlying study lasted for only

eight months.9

Howell cannot distinguish his case from Ramseur by

relying on the eight-month study in Duren because the

problematic system there—a gender-based exemption

statute—was readily identifiable and undisputed. Duren, 439

U.S. at 367. Additionally, unlike here, where the data reflects

an amalgamation of the racial makeup of jury pools over the

six-month period, Duren undisputedly demonstrated “that a

large discrepancy occurred not just occasionally but in every

weekly venire for a period of nearly a year.” Id. at 366. The

Supreme Court emphasized that this repeated, perpetual under-

representation “manifestly indicate[d] that the cause of the

under-representation was systematic.” Id. Howell’s evidence is

not similarly specific and does not support a conclusion that

the under-representation was occurring in every, or even nearly

9

On appeal, Howell also points to media reports and studies

regarding racial under-representation that began in 2002;

however, these studies were not part of the record before the

state court, and we cannot consider them. See S.H. ex rel.

Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 267 n.27 (3d

Cir. 2013) (refusing to consider evidence offered for the first

time on appeal).

18

every venire for a substantial period of time.

iii. Efforts to Reform

Where the government is engaged in on-going efforts to

improve the representativeness of jury lists, it is less likely that

the data reflects that under-representation is due to a systematic

exclusion in the jury process. Ramseur, 983 F.2d at 1235. We

presume that the process is legitimate where the government’s

efforts seem likely to create a representative jury, even if the

statistical evidence demonstrates that the pool is “not

representative enough.” Id.

At the time of Howell’s trial, Allegheny County was

unable to say whether there was a representation problem with

its Master List because its records did not reflect the races of

potential jurors. Around 2002, to remedy the risk of under-

representation, the Court Administration Office revised its

eligibility questionnaire to include questions regarding race,

age, and gender so that it could better understand whether a

particular group was over-represented or under-represented.

Allegheny County additionally implemented procedures to

follow up on unreturned questionnaires, ensure that the Master

List reflects up-to-date addresses, and encourage individuals to

respond to jury summonses. According to the Court

Administration Office, each of these actions was implemented

to better ensure proportionate representation. These laudable

remedial actions warrant “some presumption of [the jury

system’s] legitimacy,” Ramseur, 983 F.2d at 1235, and reflect

that Allegheny County’s processes were not systematically

exclusive.

IV.

Though the Pennsylvania Superior Court misapplied the

Supreme Court’s precedent in denying Howell’s Sixth

Amendment claim, on de novo review, we find that Howell

19

failed to show that Allegheny County’s jury selection

processes systematically excluded black jurors. We will

therefore affirm the District Court’s denial of habeas relief.

20

PORTER, Circuit Judge, concurring.

I join the majority in holding that Joseph Howell failed

to satisfy the second and third requirements of Duren v.

Missouri, 439 U.S. 357 (1979). But I reach that conclusion

slightly differently. On Duren’s second prong, I would avoid

the soundness-of-the-statistics debate for a simple reason: even

assuming arguendo that Howell’s statistics are

methodologically sound, the disparity figures are within the

range that we have held constitutionally permissible. So I

would hold that Howell fails Duren’s second requirement on

that basis. On Duren’s third requirement, I agree with the

majority’s analysis. But I supplement it to underscore that

Allegheny County’s jury-selection system goes above and

beyond what is constitutionally required, so there cannot be

systematic exclusion.

To satisfy Duren’s second requirement, a defendant

must show that “the representation of [an underrepresented

distinctive] group in jury venires is not ‘fair and reasonable’ in

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

United States v. Weaver, 267 F.3d 231, 237 (3d Cir. 2001)

(citing Duren, 439 U.S. at 364). As the majority observes, two

statistical measurements drive this analysis: absolute disparity

and comparative disparity. We consider both of these disparity

measures, which makes us something of an outlier. See Nancy

Gertner, et al., The Law of Juries § 2.11 (10th ed. 2018) (noting

that while “[t]he Supreme Court has not mandated the use of

one approach over another,” in practice, “[m]ost [courts] have

rejected comparative disparity analysis”).

Howell’s statistics show an absolute disparity of 5.83%,

which is easily within the range typically found

constitutionally permissible. As the leading treatise

1

summarizes, “[m]any courts have adopted a threshold of 10%

absolute disparity.” Gertner, § 2.12. We have followed this

trend, marking the threshold a smidge higher. See Ramseur v.

Beyer, 983 F.2d 1215, 1232 & n.18 (3d Cir. 1992) (“Courts

addressing the question of whether a given absolute disparity

constitutes ‘substantial underrepresentation’ have held that

absolute disparities between 2.0% and 11.5% do not constitute

substantial underrepresentation.” (quoting Castaneda v.

Partida, 430 U.S. 482, 494 (1977))). So the absolute disparity

of 5.8% in this case is constitutionally permissible under

authorities from this and other courts.

This means that Howell must rely on comparative

disparity to satisfy Duren’s second prong. This is a much closer

question. Under our precedents, the comparative disparity of

54.5% shown here is troubling. Ramseur, 983 F.2d at 1232

(describing “a comparative disparity of about 40%” as

“borderline” but ultimately rejecting prima facie case); see also

Weaver, 267 F.3d at 243 (describing comparative disparity

figures of 40.01% for blacks and 72.98% for Hispanics as

“quite high,” but qualified that the figures were of limited value

because both groups formed “a small percentage of the

population”). But we have never held that a high comparative

disparity is itself sufficient to satisfy Duren’s second prong.

And indeed, other courts have rejected fair-cross-section

challenges involving comparative disparities higher than (or

similar to) the one here.1 So the comparative-disparity figure

1

See, e.g., United States v. Shinault, 147 F.3d 1266, 1273 (10th

Cir. 1998) (permitting comparative disparities of “48%, 50%,

and almost 60%”); United States v. Chanthadara, 230 F.3d

1237, 1257 (10th Cir. 2000) (permitting “a comparative

disparity of 58.39%”); United States v. Sanchez, 156 F.3d 875,

2

in this case—while high—is not enough to satisfy Duren’s

second prong.

Turning to Duren’s third requirement, Howell must

show “the underrepresentation is caused by the ‘systematic

exclusion of the group in the jury selection process.’” Weaver,

267 F.3d at 237 (quoting Duren, 439 U.S. at 364). On this

point, I am puzzled by the dissent’s insistence that the County’s

system is constitutionally deficient.

The County’s two-track method of selecting jurors is

structurally sound. It first draws names from voter-registration

lists. It then supplements this by pulling additional names from

motor-vehicle records. If anything, the County’s system goes

above and beyond what is required, as courts have consistently

held that using voter-registration lists alone is sufficient.2 “Not

879 & n.4 (8th Cir. 1998) (acknowledging a comparative

disparity of 58.3%, but declining to address statistics at all to

“simply hold that when jury pools are selected from voter

registration lists, statistics alone cannot prove a Sixth

Amendment violation”); Hafen, 726 F.2d at 23–24 (permitting

comparative disparity of 54.2%); United States v. Sanchez-

Lopez, 879 F.2d 541, 548–49 (9th Cir. 1989) (permitting

comparative disparity of 52.9%); United States v. Orange, 447

F.3d 792, 798–99 (10th Cir. 2006) (permitting comparative

disparity of 51.22%).

2

United States v. Guzman, 468 F.2d 1245, 1247–49 (2d Cir.

1972) (approving the use of voter-registration lists as the sole

source of names for jury selection); United States v. Odeneal,

517 F.3d 406, 412 (6th Cir. 2008) (approving jury

administrator’s use of voter-registration lists, noting these “are

the presumptive statutory source for potential jurors”) (citing

3

only has the use of the voter registration lists been uniformly

approved by the Court[s] of Appeals as the basic source for the

jury selection process … Congress specifically approved the

use of such lists even though it was recognized that persons

who chose not to register would be excluded from the jury

selection process.” United States v. Cecil, 836 F.2d 1431, 1448

(4th Cir. 1988) (citing 28 U.S.C. § 1863(b)(2)). In fact, the

County’s two-track system here is strikingly similar to the one

we upheld in Ramseur. 983 F.2d at 1233 (noting that the

“mechanism used to create the source lists was facially neutral

with respect to race,” as the New Jersey county in question

“utilized voter registration and Department of Motor Vehicle

lists to create its jury venire”).

Unsurprisingly, then, the dissent cites no case in which

a hybrid system like this one—i.e., voter-registration lists

supplemented with motor-vehicle records—has been held to

systematically exclude a distinctive group. In dicta, we have

speculated “that if the use of voter registration lists over time

did have the effect of sizeably underrepresenting a particular

class or group on the jury venire, then under some

circumstances, this could constitute a violation of a defendant’s

fair cross-section rights under” the Sixth Amendment. Weaver,

267 F.3d at 244–45 (internal quotation marks and citation

omitted). But that theoretical possibility was not the reality in

Weaver, as “nothing in the record” showed persistent

systematic exclusion of minority jurors. Id. at 245. And

28 U.S.C. § 1863(b)); United States v. Greatwalker, 356 F.3d

908, 911 (8th Cir. 2004) (finding no systematic exclusion from

jury selection plan that draws its pools of prospective jurors

randomly from lists of persons who voted in the last

presidential election).

4

whatever the merits of that theoretical possibility, we have

never invoked it to hold that a hybrid system like this one

systematically excluded a distinctive group. Given that

Congress has made voter-registration lists the presumptive

source for selecting jurors, such a holding could imperil juror-

selection methods across many jurisdictions.

In support of systematic exclusion, Howell argues that

the County’s problems with “non-representative jury venires

were widely known well before” Howell’s trial, largely

because the County and some academics studied it. Appellant’s

Br. 36–39. This is weak tea. The fact that the County studied

this issue does not show that the County knew its selection

system was constitutionally unsound; rather, it may simply

show that the County was responsibly trying to determine the

system’s soundness or seeking to improve (already

constitutionally sufficient) representation. In Ramseur, we

viewed a New Jersey county’s efforts to diversify jury venires

just this way, approvingly noting the county’s “efforts at

reform to increase the representativeness of jury lists.” 983

F.2d at 1235. Howell’s inferences, by contrast, would

perversely punish the County for its salutary reform efforts.

In sum, if the County used only voter-registration lists

to assemble the jury venire, it would be employing a method

widely upheld as constitutional by the courts of appeals and

statutorily prescribed by the Jury Selection and Service Act. 28

U.S.C. §§ 1861–78. By supplementing this method with

motor-vehicle records, the County goes beyond this widely

approved method to mirror the system upheld in Ramseur.

Howell has not suggested how the County could improve upon

this system and I see no constitutional requirement for it to do

so.

5

RESTREPO, Circuit Judge, concurring in part and dissenting

in part.

I join the majority opinion only with respect to Part

III.A, in which the majority holds that we are not required to

accord deference under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) to the legal conclusions of the

Pennsylvania Superior Court because that court’s decision was

contrary to, or involved an unreasonable application of, clearly

established federal law. I respectfully dissent from the

remainder of the majority opinion because, in my view, Howell

has established a prima facie violation of his Sixth Amendment

right to have his petit jury drawn from a fair cross-section of

the community, and I would reach the merits of his fair-cross-

section claim because the Commonwealth has presented no

evidence to rebut Howell’s statistical analysis or the

qualifications of his expert witness. The majority, however,

lends undue credence to the Commonwealth’s speculative

attack on the reliability of Howell’s statistics and, in the

process, sets forth a new standard of statistical purity that will

foreclose nearly all fair-cross-section claims. And with respect

to the merits of Howell’s fair-cross-section claim, the majority

and concurring opinions interpret the case law in a way that

deprives the Sixth Amendment of any power to provide a

remedy in cases where a distinctive group that constitutes less

than 10% (or, for the concurrence, 11.5%) of the population is

systematically excluded from serving on venires, even if the

entire group is completely excluded from venire service. Such

an interpretation simply cannot be an accurate statement of the

law.

1

I.

Howell presented evidence that black persons

constituted 10.7% of the jury-service-eligible population of

Allegheny County in the early 2000s but merely 4.87% of

persons serving on venires during the same period. Thus,

according to Howell’s evidence, black persons in Allegheny

County were underrepresented on venires by approximately

54.49%. Put another way, it appears that over half of

Allegheny County’s black jury-service-eligible population—a

significant population of nearly 110,000 people—was

excluded from serving on venires.

Rather than discussing these troubling statistics at

length, the majority simply attacks their reliability. In so

doing, the majority misapplies our precedent in United States

v. Weaver, 267 F.3d 231 (3d Cir. 2001), and, as a result, sets a

new bar for statistical reliability that almost no litigant in a fair-

cross-section case will be able to satisfy.1

1

Independently, the Court also may lack authority

under AEDPA to probe into the reliability of Howell’s

statistics in the first place. Pursuant to AEDPA, in a section

2254 proceeding such as this one, “a determination of a factual

issue made by a State court shall be presumed to be correct.”

28 U.S.C. § 2254(e)(1). Both implicit and explicit factual

findings are presumed to be correct under section 2254(e)(1).

Taylor v. Horn, 504 F.3d 416, 433 (3d Cir. 2007). Two of the

three judges on the panel of the Superior Court appear to have

reached their decisions by taking Howell’s statistical evidence

at face value, which, in my opinion, may constitute an implicit

factual finding that is entitled to the “presumption of

correctness” under section 2254(e)(1). See App. 258.

2

The majority reads Weaver as requiring all litigants

asserting fair-cross-section claims to either (1) produce

documentary evidence that they conducted a complete census

of the races of every single individual in the relevant jury pool

(e.g., every person on the “master wheel” or venire), or (2)

perform sampling of the jury pool “and then calculate the

standard deviation,” or (3) “account for the statistical impact”

of persons in the jury pool who were not surveyed or studied.

267 F.3d at 244. This reading of Weaver disregards the

specific context of that case. In Weaver, the demographer who

provided expert testimony regarding the racial makeup of the

“master wheel” in the Erie Division of the Western District of

Pennsylvania purported to have studied all persons on the

“master wheel,” on which 5,877 persons were listed. See id. at

243. Our Court determined, however, that the demographer

“based his testimony on the returned questionnaires,” of which

there were only 4,753. Id. Thus, in Weaver, concrete

evidence—figures that demonstrated with specificity that

1,124 persons, or over 19%, of the relevant jury pool were not

included in the study—effectively impeached the

demographer’s testimony that he had studied all persons in the

jury pool. Consequently, because the demographer did not—

either quantitatively or qualitatively—account for the glaring

discrepancy in his testimony, our confidence in the reliability

of his statistics was undermined.

Placed in context, Weaver stands for the proposition that

“the strength of [a litigant’s statistical] evidence” is

“undermined” when (1) the state produces concrete evidence

that the petitioner’s expert did not study all persons in the

relevant jury pool and (2) the expert neither (A) “perform[ed]

sampling” of the jury pool “and then calculate[d] the standard

3

deviation” nor (B) “account[ed] for the statistical impact of”

unstudied or uncounted persons in the jury pool. Id. at 244.

Here, there is no such concrete evidence that Howell’s

expert failed to study all persons on the venires during the six-

month study period—there is only speculation. Despite its

failure to substantively challenge the reliability of Howell’s

statistics or the qualifications of Howell’s expert in any of the

state-court proceedings below, the Commonwealth, in its brief,

now argues that the Court should disregard Howell’s statistical

evidence solely because his expert, Dr. John F. Karns, Ph.D.,

“did not know if every individual [in the studied venires]

complied with the request to fill out the questionnaire[s].”

Appellee’s Br. 15. The Commonwealth presents no evidence

regarding the number of veniremembers who allegedly did not

return the questionnaires; it merely speculates that there could

have been veniremembers who did not return the

questionnaires.

For the majority, mere speculation of this nature is

sufficient to defeat Howell’s Sixth Amendment fair-cross-

section claim. This holding—that the state can defeat a fair-

cross-section claim simply by speculating, with no evidentiary

support, that a habeas petitioner’s statistics may be flawed—

transforms the modest holding in Weaver regarding statistical

reliability into a holding that dramatically heightens the burden

of proof in fair-cross-section cases. In effect, the majority

holds that, to state a Sixth Amendment fair-cross-section

claim, a litigant must produce unassailable proof that she

conducted a complete census of every single member of the

relevant jury pool; if the state simply speculates that certain

members of the jury pool may have been excluded from the

study, and even if the state provides zero evidence to that

4

effect, the litigant’s fair-cross-section claim fails unless certain

limited conditions are met.

The majority also takes a severely constrained view

with respect to what evidence can satisfy such limited

conditions and requires Howell to produce evidence that is

wholly irrelevant to its inquiry into the reliability of his

statistics. Relying on its reading of Weaver, the majority holds

that because Howell’s statistical analysis is fundamentally

undermined by the Commonwealth’s speculation regarding the

potential existence of unstudied veniremembers,2 Howell’s

claim may only survive if he either (1) “calculate[s] the

standard deviation” or (2) “account[s] for the statistical impact

of . . . unreturned questionnaires.” Howell has produced

evidence that satisfies both of these conditions, even assuming

that both conditions are relevant. Regarding the “significance

of unanswered surveys,” the only concrete evidence in the

record that indicates that certain veniremembers were omitted

2

As an ancillary matter, the majority also holds

that Howell’s statistical evidence is undermined by the fact that

“there is no evidence regarding how many people received jury

summonses.” It is unclear how information with respect to

“how many people received jury summonses” is relevant to

Howell’s claim because his claim is based on the composition

of the venires—the persons who actually appeared for jury

service—in Allegheny County, a type of claim that has long

been recognized as cognizable by the Supreme Court. See,

e.g., Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (“[T]he

jury wheels, pools of names, panels, or venires from which

juries are drawn must not systematically exclude distinctive

groups in the community and thereby fail to be reasonably

representative thereof.” (emphasis added)).

5

from the study is that “a very small number” of “surveys

contain[ed] incomplete information.” App. 118. Dr. Karns

explicitly testified as to the statistical impact of these

incomplete surveys on his results: the number of such surveys

was “so small that it [did] not change [his] opinion.” Id. at 128.

Thus, Howell has accounted for the only concrete evidence in

the record that his statistical analysis may be based on less than

complete information, and, therefore, Howell has satisfied one

of the majority’s requirements.

Regarding the majority’s requirement that Howell

calculate the standard deviation, it is not clear to me how

calculation of the standard deviation relates to the question that

the majority seeks to answer: How do (potentially)

unaccounted-for veniremembers affect the reliability of

Howell’s statistical analysis? “[S]tandard deviation is a

measure of [the] variability . . . of the population from which

[a] sample was drawn.”3 In other words, standard deviation is

an expression of “how widely scattered some measurements

[of a population] are.”4 For example, students who score a 141

on the LSAT have scores that are one standard deviation from

3

Douglas G. Altman & J. Martin Bland, Statistics

Note, Standard Deviations and Standard Errors, 331 Brit.

Med. J. 903 (2005), https://www.ncbi.nlm.nih.gov/pmc/

articles/PMC1255808/pdf/bmj33100903.pdf (emphasis

added).

4

Id.

6

the mean score of 151.5 But the fact that one standard deviation

is equivalent to approximately 10 points in the context of the

distribution of LSAT scores tells us nothing about the

statistical reliability of the analysis conducted by the Law

School Admission Council—it only tells us how the scores are

distributed on a curve. It appears to me that the majority

actually desires a calculation of the “standard error,” which

“indicates the uncertainty around the estimate of the mean” due

to, among other things, sampling errors.6 “The terms ‘standard

error’ and ‘standard deviation’ are often confused.”7 The

former concept, standard error, concerns the reliability of

Howell’s statistics, which statistics indicate that over the

course of the study period, a mean of 4.87 black persons served

on every venire of 100 persons; standard error would tell us

how confident we should be that the mean of 4.87 is an

accurate figure. In requiring that Howell instead calculate the

standard deviation, the majority perpetuates an error of

terminology first committed by our Court in Weaver. See 267

F.3d at 244 (“In order to support Weaver’s allegation of

underrepresentation on the master wheel, [his expert] would

have had to . . . calculate the standard deviation . . . .”). Thus,

5

See Memorandum from Lisa Anthony, Senior

Research Assoc., Law Sch. Admission Council, to LSAT

Score Recipients 2 (June 20, 2017),

https://www.lsac.org/sites/default/files/legacy/docs/default-

source/data-%28lsac-resources%29-docs/lsat-score-

distribution.pdf.

6

Altman & Bland, supra note 3.

7

Id.

7

the majority requires Howell to produce evidence that is not at

all relevant to probing the reliability of his statistics.8

8

If, however, the majority truly desires a

calculation of the standard deviation—which is irrelevant for

the reasons stated above—Howell has produced equivalent

statistical evidence. Dr. Karns used a “difference-of-

proportion test” by calculating a “Z-statistic,” App. 112, and

then calculating what social scientists refer to as a “P value,”

which is a “statistical summary of the compatibility between

the observed data and what we would predict or expect to see

if we knew the entire statistical model.” Sander Greenland et

al., Statistics Tests, P Values, Confidence Intervals, and

Power: A Guide to Misinterpretations, 31 Eur. J.

Epidemiology 337, 339 (2016). Put differently, a P value “can

be viewed as a continuous measure of the compatibility

between the data and the entire model used to compute it,

ranging from 0 for complete incompatibility to 1 for perfect

compatibility.” Id. Similar to the way that standard deviation

indicates the variance within a population, a P value indicates

the variance between observed data and the data that we would

expect to observe. Here, for instance, we would expect that the

percentage of black persons serving on venires in Allegheny

County would mirror the black jury-service-eligible population

of Allegheny County as a whole (10.7%). As Dr. Karns

observed, however, black persons constituted merely 4.87% of

persons serving on venires. That observed data (4.87%) varies

widely from the expected data (10.7%), resulting in a P value

of .0004 according to Dr. Karns, which closely nears complete

incompatibility. See App. 112 (characterizing the “chances of

being wrong in stating that there are too few African[

]Americans” as “about four in 10,000”). Statisticians often

8

Further, standing alone, the sample size of the study

upon which Howell relies indicates that Howell’s statistics are

reliable. Approximately 4,500 persons were surveyed in

connection with the study. Unrebutted expert testimony in this

case establishes that a “sample of 4[,]500 is relatively large.”

App. 119. Because the sample in this case was so large, the

standard error necessarily is small because “[t]he standard

error falls as the sample size increases, as the extent of

variation is reduced.”9 By questioning the reliability of the

statistics resulting from such a large sample size and by

emphasizing the alleged importance of surveying every single

member of venires without exception, the majority undermines

the very concept of sampling in Sixth Amendment challenges.

In sum, the majority opinion sets forth a new standard

of statistical purity that appears to be unattainable for nearly all

litigants—and particularly for habeas petitioners—in fair-

cross-section cases. Litigants are required to present statistical

evidence to support fair-cross-section claims. See Duren v.

Missouri, 439 U.S. 357, 364 (1979). If the state can

fundamentally undermine a litigant’s statistical analysis with

mere speculation that her statistics are unreliable, nearly all

characterize P values in terms of “the probability that chance

alone produced the observed association.” Greenland et al.,

supra, at 340. Thus, if the majority desires statistical evidence

regarding variance—which is what standard deviation

expresses—Howell has provided such evidence to the Court in

the form of a P value.

9

Altman & Bland, supra note 3.

9

force has been drained from the Sixth Amendment’s fair-cross-

section requirement.

II.

Accepting the reliability of his statistical evidence,

Howell, in my view, has satisfied both the second and third

prongs of the test espoused by the Supreme Court in Duren v.

Missouri, 439 U.S. at 364;10 namely, he has demonstrated that

(A) “the representation” of black persons “in venires from

which juries are selected is not fair and reasonable in relation

to the number of such persons in the community” and (B) “this

underrepresentation is due to the systematic exclusion of this

group in the jury-selection process.”

A.

Howell has demonstrated that black persons in

Allegheny County were underrepresented on venires by

approximately 54.49% in the early 2000s. This rate of

underrepresentation simply cannot be “fair and reasonable”

under Duren.

“[N]either Duren nor any other decision of th[e

Supreme] Court specifies the method or test courts must use to

measure the representation of distinctive groups in jury pools.”

10

As the majority recognizes, Howell undoubtedly

has satisfied Duren’s first prong, which requires him to

demonstrate that black persons are “a ‘distinctive’ group in the

community.” Duren, 439 U.S. at 364; see also Ramseur v.

Beyer, 983 F.2d 1215, 1230 (3d Cir. 1992) (en banc) (holding

that black persons are “unquestionably a constitutionally

cognizable group”).

10

Berghuis v. Smith, 559 U.S. 314, 329 (2010). Our Court

previously has utilized “absolute disparity” and “comparative

disparity” to analyze the merits of fair-cross-section claims.

Weaver, 267 F.3d at 241 & n.11. “Absolute disparity” is the

“difference between [(x)] the percentage of a certain

population group eligible for jury duty and [(y)] the percentage

of that group who actually appear in the venire.” Ramseur v.

Beyer, 983 F.2d 1215, 1231 (3d Cir. 1992) (en banc).

“Comparative disparity is calculated by dividing [(x)] the

absolute disparity by [(y)] the population figure for a

population group.” Id. Although “both methods have been

criticized,” Weaver, 267 F.3d at 242, we have held that “figures

from both methods inform the degree of underrepresentation,”

and we “examine and consider the results of both in order to

obtain the most accurate picture possible,” id. at 243.

The comparative disparity in this case is 54.49%, while

the absolute disparity in this case is 5.83%. The

Commonwealth argues that analysis of the absolute disparity

is the “starting place” when considering a fair-cross-section

challenge and that, given the absolute-disparity figure in this

case, it also should be the ending place for Howell’s fair-cross-

section claim. Appellee’s Br. 19. Relying on dicta in our

decision in Ramseur v. Beyer, 983 F.2d 1215, the

Commonwealth argues that “[a]bsolute disparities between

2.0% and 11.5% have not constituted substantial

underrepresentation” and that, “[t]herefore, under applicable

precedent, an [a]bsolute [d]isparity of 5.83% is statistically

insufficient to demonstrate a prima facie showing of a Sixth

Amendment violation.” Appellee’s Br. 20 (emphasis omitted).

This argument not only disregards our Court’s observation that

“[o]ur precedent does not dictate that one method of statistical

analysis should be used rather than another,” Weaver, 267 F.3d

11

at 241, but also misapprehends what the absolute-disparity

figure captures. Viewed in isolation, an absolute-disparity

figure lacks any meaning because the same absolute-disparity

figure can imply drastically different levels of

underrepresentation in two distinct populations.

For example, if, as the Commonwealth seems to

suggest, an absolute disparity of over 11.5% is required for a

litigant to state a Sixth Amendment fair-cross-section claim,

Howell would never be able to state a fair-cross-section claim;

the black jury-service-eligible population of Allegheny County

is 10.7%, and thus the maximum absolute disparity in Howell’s

case is 10.7%, which assumes the complete exclusion of black

persons from service on venires (i.e., a comparative disparity

of 100%). By contrast, in Philadelphia County, for example,

which has a black population of approximately 43.4%, an

absolute disparity of 11.5% would equate to

underrepresentation of black persons on venires at a rate (and

a comparative disparity) of 26.5%, raising much fewer

constitutional concerns. It approaches absurdity to argue that

the entire black population of Allegheny County could be

excluded from serving on venires without violating the

Constitution simply because a single metric—absolute

disparity—is not high enough, without reference to any other

factors.

But the majority and concurring opinions adopt

precisely that argument. The majority holds that “an absolute

disparity below 10% generally will not reflect unfair and

unreasonable representation.” The concurrence takes this line

of argument even further, framing an absolute disparity of 10%

as a “threshold” matter and implying that this Court has set the

“threshold” at the even higher figure of 11.5%. By definition,

12

the absolute disparity in a given case can only be as high as the

percentage of the population that a distinctive group

constitutes. If a litigant must present evidence of an absolute

disparity of 10% (or, for the concurrence, 11.5%) as a

“threshold” matter to state a fair-cross-section claim, then

litigants, as a matter of law, cannot state fair-cross-section

claims if the distinctive group that they allege was

systematically excluded from serving on venires constitutes

less than 10% (or 11.5%) of the population because, in such a

case, even complete exclusion of such a group would not result

in an absolute disparity of 10% (or 11.5%). In essence, the

majority and concurring opinions hold that the Sixth

Amendment provides no remedy for complete, systematic

exclusion of distinctive groups in the community if those

groups constitute less than 10% (or 11.5%) of the population.

Both the majority and concurring opinions also

misunderstand the interaction between absolute disparity and

comparative disparity. Analyzing the absolute disparity and

comparative disparity in a case is not an either-or proposition:

“figures from both methods inform the degree of

underrepresentation.” Id. at 243 (emphasis added). We look

at both figures because comparative disparity is a dependent

variable—in fact, absolute disparity is the numerator in the

formula used to calculate comparative disparity. In other

words, we cannot even calculate the comparative disparity in a

case without knowing the absolute disparity. Thus, the

comparative disparity in a case, by necessity, implies a precise

absolute disparity—every comparative disparity has a

corresponding absolute disparity, and vice versa.

If, as the majority and concurring opinions hold, a

litigant must present evidence of an absolute disparity of 10%

13

(or 11.5%) as a “threshold” matter to state a fair-cross-section

claim, the opinions’ analyses of the comparative disparity in

Howell’s case are merely perfunctory. As illustrated in the

Appendix to this opinion, Howell would have to produce

evidence of a comparative disparity of 93.46% or higher to

satisfy a 10% absolute-disparity “threshold,” and Howell could

never satisfy a 11.5% absolute disparity “threshold” because

he would have to produce evidence of a comparative disparity

in excess of 100%, which is impossible. If—as the majority

and concurring opinions, by necessity, hold—the comparative

disparity in Howell’s case must exceed these figures because

absolute disparity is a “threshold” matter, any analysis in the

majority and concurring opinions with respect to the

sufficiency of Howell’s comparative disparity figure of

54.49% necessarily must be composed of empty words.

In my view, Howell’s statistics are sufficient to state a

fair-cross-section claim. When analyzing this case, my reading

of the case law compels me to start with the comparative

disparity of 54.49%. This figure—which implies that over half

of Allegheny County’s black jury-service-eligible population

was excluded from serving on venires—should trouble

everyone. Although this figure is well above the 40% figure

that we called “borderline” in Ramseur, 983 F.2d at 1232, our

analysis cannot stop there because we have recognized that

comparative disparity may overstate the degree of

underrepresentation in cases “where a small population is

subjected to scrutiny,” Weaver, 267 F.3d at 242.

We must, then, look at the size of the population at

issue—and, consequently, at the absolute disparity—to place

the troubling 54.49% comparative disparity into context and

determine whether it rises to the level of a Sixth Amendment

14

violation. See id. (“[T]he significance of the [comparative-

disparity] figure is directly proportional to the size of the group

relative to the general population . . . .”). For example, in

Weaver, we noted that comparative disparities of 40.01% with

respect to black persons and 72.98% with respect to Latino

persons were “quite high,” but because the black and Latino

jury-service-eligible populations constituted merely 3.07% and

0.97% of the total jury-service-eligible population,

respectively, we held that these figures did not rise to an

unconstitutional level of underrepresentation. Id. at 238, 243.

In essence, because the populations at issue in Weaver were so

small—resulting in absolute disparities of 1.23% for black

persons and 0.71% for Latino persons—the net impact of the

underrepresentation of these racial groups on venires was

minimal, and therefore their degree of representation on

venires was “fair and reasonable” under the Sixth Amendment.

See id. at 243.

Here, we are not confronted with a small population

group as in Weaver; rather, we are confronted with a group that

constitutes over one-tenth—10.7%—of the relevant jury-

service-eligible population. Given the significant size of that

group—black persons—as a proportion of the total jury-

service-eligible population, underrepresentation of black

persons at a rate of 54.49% cannot be “fair and reasonable”

under Duren; the black jury-service-eligible population of

Allegheny County is large enough such that the troubling

comparative disparity of 54.49% is probative of a Sixth

Amendment violation. See id. at 242 (“[C]omparative

disparity . . . is most useful when dealing with a group that

comprises a large percentage of the population.”). The black

jury-service-eligible population, however, is nonetheless small

enough such that the absolute disparity of 5.83% in this case

15

“understates the systematic representative deficiencies.” Id.

(quoting United States v. Shinault, 147 F.3d 1266, 1273 (10th

Cir. 1998)). As discussed above, the absolute disparity in this

case has an absolute maximum limit of 10.7%, which assumes

complete exclusion of black persons from service on venires

and a comparative disparity of 100%; thus, as illustrated by the

Appendix, demanding a higher absolute disparity in this case

would require a comparative disparity that would quickly

approach 100% and complete exclusion. Therefore,

underrepresentation of black persons on juries at a rate of

54.49% under these particular circumstances is sufficient to

establish that such underrepresentation violates the Sixth

Amendment’s fair-cross-section requirement.11 Cf. Garcia-

11

The unconstitutional nature of the

underrepresentation of black persons on venires in Allegheny

County comes into stark relief when one considers it in the

broader context of the ultimate goal of the Supreme Court’s

jurisprudence regarding racial discrimination in jury selection.

As a result of Taylor v. Louisiana, 419 U.S. at 538, and its

progeny (including Duren), the Supreme Court prohibits the

state from discriminating on the basis of, among other things,

race when compiling jury pools and assembling venires from

which petit juries are drawn. See id. (“[J]ury wheels, pools of

names, or venires from which juries are drawn must not

systematically exclude distinctive groups in the community

and thereby fail to be reasonably representative thereof.”). As

a result of Strauder v. West Virginia, 100 U.S. 303, 305 (1880),

and its progeny (including Batson v. Kentucky, 476 U.S. 79

(1986)), the Supreme Court prohibits the state from

discriminating on the basis of race when selecting petit juries

from those venires. See Batson, 476 U.S. at 86 (“The Equal

Protection Clause guarantees the defendant that the State will

16

not exclude members of his race from the jury venire on

account of race.” (citing Strauder, 100 U.S. at 305)). Although

“a defendant has no right to a ‘petit jury composed in whole or

in part of persons of his own race,’” id. at 85 (emphasis added)

(quoting Strauder, 100 U.S. at 305), the upshot of Taylor and

Strauder and their progeny is that a defendant’s petit jury

should be reasonably representative of the racial demographics

of her community because the empanelment of the petit jury

should be the result of a process free from racial

discrimination: venires cannot be assembled in a racially

discriminatory way, and the state cannot select petit juries in a

racially discriminatory way, and thus the resulting petit juries

should be reasonably representative of the racial demographics

of the community.

If black persons were represented on venires in

Allegheny County in the early 2000s in equal proportion to

their representation in the jury-service-eligible population as a

whole (10.7%), assuming that petit juries were empaneled

properly in a race-neutral manner, we would expect every

single criminal petit jury in Allegheny County to have had at

least one black juror. Specifically, we would expect each

criminal petit jury of twelve to have, on average, 1.3 black

jurors (10.7% of 12). In reality, utilizing Howell’s statistics

and assuming again that petit juries were empaneled properly

in a race-neutral manner, we expect that approximately 42% of

criminal petit juries in Allegheny County had zero black

jurors—like the jury that convicted Howell. Specifically, we

expect that each criminal petit jury of twelve had, on average,

0.58 black jurors (4.87% of 12). The Constitution simply

cannot tolerate such a wide disparity that results solely from

the unrepresentativeness of venires.

17

Dorantes v. Warren, 801 F.3d 584, 600 (6th Cir. 2015) (“[T]he

absolute disparity for African-Americans of 3.45% and

corresponding 42% comparative disparity are sufficient to

satisfy the Duren second prong.”).

B.

Finally, Howell has satisfied the third prong of the test

in Duren: he has produced sufficient evidence to demonstrate

that the underrepresentation of black persons on venires “is due

to the systematic exclusion of this group in the jury-selection

process.” 439 U.S. at 364 (emphasis added).

Under Duren, Howell need only demonstrate that the

underrepresentation of black persons is “‘systematic’—that is,

inherent in the particular jury-selection process utilized.” Id.

at 366. In other words, Howell simply must prove that the

underrepresentation of black persons was “due to the system by

which juries were selected.” Id. at 367. The term “systematic

exclusion,” however, does not connote “intentional

discrimination”: “intentional discrimination need not . . . be

shown to prove a Sixth Amendment fair cross section claim.”

Weaver, 267 F.3d at 244 (citing Duren, 439 U.S. at 368 n.26

(contrasting equal-protection challenges, which require

evidence of discriminatory intent, with Sixth Amendment fair-

cross-section challenges, which require proof of only

“systematic disproportion itself”)). “Under Duren, ‘systematic

exclusion’ can be shown by a large discrepancy repeated over

time such that the system must be said to bring about the

underrepresentation.” Id. For example, the Supreme Court

held in Duren that the petitioner’s statistical evidence, which

“demonstrate[ed] that a large discrepancy occurred not just

occasionally, but in every weekly venire” during an eight-

18

month study period, “manifestly indicate[d] that the cause of

the underrepresentation was systematic.” 439 U.S. at 367.

The majority holds that Howell cannot demonstrate that

the underrepresentation of black persons was “systematic” for

three reasons: (1) the process by which venires were

assembled was “facially neutral,” insofar as veniremembers

were drawn from voter-registration lists and motor-vehicle

records; (2) the six-month study of venires upon which Howell

relies is not of a sufficient duration to support a finding of

“systematic exclusion”; and (3) Allegheny County was

engaged in “on-going efforts to improve the representativeness

of jury lists,” which, according the majority, makes “it less

likely that the data reflects that underrepresentation is due to a

systematic exclusion in the jury process.”

I disagree with the premises of each of these points.

First, by giving weight to the fact that venires are assembled

from “facially neutral” sources, it appears that the majority is

requiring Howell to produce evidence of racially

discriminatory intent, which he is not required to produce

under Duren to state a Sixth Amendment claim. See id. at 368

n.26; accord Weaver, 267 F.3d 244. According to the

concurring opinion, because Allegheny County assembled its

venires from two facially neutral sources—voter-registration

lists and motor-vehicle records—Allegheny County’s “system

[went] above and beyond what is constitutionally required.”

What the concurring opinion fails to grasp is that the use of

race-neutral sources in assembling venires is only what the

Fourteenth Amendment requires: the Fourteenth Amendment

forbids the government from intentionally discriminating on

the basis of race in assembling venires or petit juries. See

Strauder, 100 U.S. at 305. The Sixth Amendment, by contrast,

19

requires that “representation of [a distinctive] group in venires

from which juries are selected [must be] fair and reasonable in

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

Duren, 439 U.S. at 364 (quoting Taylor v. Louisiana, 419 U.S.

522, 538 (1975)). “[I]ntentional discrimination need not be

shown to prove a Sixth Amendment fair[-]cross[-]section

claim,” and thus the fact that Allegheny County assembled its

venires from race-neutral sources is immaterial to Howell’s

Sixth Amendment claim. Weaver, 267 F.3d at 244. The

majority and concurring opinions thus disregard our

observation in Weaver that “if the use of voter registration

lists”—a facially neutral source—“over time did have the

effect of sizeably underrepresenting a particular class or group

of the jury venire, then under some circumstances, ‘this could

constitute a violation of a defendant’s fair-cross-section rights

under the [S]ixth [A]mendment.’” Id. at 244–45 (alteration in

original) (quoting Bryant v. Wainwright, 686 F.2d 1373, 1378

n.4 (11th Cir. 1982)). This is not, as the concurring opinion

phrases it, a “theoretical possibility”: Howell’s very statistics

establish that the use of voter-registration lists and motor-

vehicle records resulted in the underrepresentation of black

persons on venires in Allegheny County at a rate of 54.49%,

even though Allegheny County used race-neutral sources to

assemble its venires.

Second, taken together with other evidence, the six-

month duration of the study upon which Howell relies is

sufficient to demonstrate that the underrepresentation of black

persons was “systematic.” The six-month duration of the study

in this case is sufficiently similar to the eight-month duration

of the study in Duren, which, standing alone, “manifestly

indicate[d] that the cause of the underrepresentation was

systematic.” 439 U.S. at 367. Admittedly, Duren presented a

20

stronger set of facts, from which the Supreme Court could even

“establish[] when in the selection process the systematic

exclusion took place,” but nowhere in Duren does the Supreme

Court hold that a litigant needs such a strong set of facts to

prevail on a fair-cross-section claim; rather, the core holding

of Duren in this regard is that a litigant must prove merely that

the “cause of the underrepresentation was systematic—that is,

inherent in the particular jury-selection process utilized”—and

that a study with an eight-month duration “manifestly

indicates” such a “systematic” cause. Id. Further, by relying

on Ramseur for the proposition that a study with a duration of

two years was not sufficient to demonstrate systematic

underrepresentation, the majority disregards the fact that

Ramseur is in direct conflict with Supreme Court precedent in

Duren on this point, and Ramseur should not be considered

good law in this regard. Indeed, our Court previously has noted

that we undertook a flawed analytical approach in Ramseur

with respect to the second and third prongs of Duren. See

Weaver, 267 F.3d at 241 (“In our brief discussion of Ramseur’s

Sixth Amendment claim, we appear to have combined the

second and the third prongs of Duren . . . .”).

Third, contrary to the majority’s assertion, the evidence

in this case that Allegheny County took steps to increase racial

diversity on venires tends to suggest that the

underrepresentation of black persons was systematic, not the

opposite. The Jury Coordinator of the Allegheny County Court

Administrator’s Office testified that “one of the parts of [his]

mission ha[d] been to address concerns about the numbers of

discrete races and colors . . . of people that [we]re represent[ed

o]n our jury panels.” App. 137. The Jury Coordinator testified

that “the most important” of his efforts to “address those

concerns” was to “completely revise the questionnaire” that is

21

mailed to prospective jurors as part of the process of selecting

veniremembers. Id. This amounts to an admission by

Allegheny County that it knew that certain racial groups were

underrepresented on venires and that the cause of the

underrepresentation was the system by which veniremembers

were selected because Allegheny County attempted to address

the problem—and, indeed, eventually ameliorated the

problem—by altering the system. This is not, as the majority

asserts, evidence that undermines Howell’s case; this is

evidence in Howell’s favor.

Therefore, Howell has satisfied the third prong of the

test espoused in Duren. The six-month study upon which he

relies is sufficiently similar in duration to the eight-month

study in Duren such that the duration of the study indicates that

the system of selecting potential jurors caused the

underrepresentation, and the evidence with respect to

Allegheny County’s attempts to alter the system to increase

racial diversity suggest that Allegheny County itself believed

the problem of underrepresentation was systematic.

III.

While I find that Howell’s statistics are reliable and help

establish a prima facie violation of his Sixth Amendment fair-

cross-section rights, the focus on and discussion of statistics

and statistical concepts in this case—statistical reliability, the

difference between standard deviation and standard error, the

import of absolute disparity versus comparative disparity—

obscures what is a relatively straightforward question: Did the

process of selecting potential jurors result in the

underrepresentation of black persons on venires in Allegheny

County to a degree that is constitutionally unacceptable? In

my view, the answer to that question must be “yes”: Howell

22

has demonstrated that black persons were underrepresented on

venires to a troubling degree and that the underrepresentation

was caused by the system of selecting prospective jurors, in

violation of the Sixth Amendment’s fair-cross-section

requirement.

There is evidence in the record to suggest that the court

administrators in Allegheny County eventually implemented

policies that remedied the underrepresentation of black persons

on venires. The underrepresentation of black persons on

venires, however, had not been remedied at the time of

Howell’s trial, and, because Howell established that black

persons were underrepresented on venires at an alarming rate,

his Sixth Amendment right to have his petit jury drawn from a

fair cross-section of the community was violated.

For the reasons stated above, I respectfully dissent.

Because Howell has established a prima facie fair-cross-

section violation, I would remand to the District Court to

determine whether the Commonwealth can “justify[] this

infringement by showing [that] attainment of a fair cross[-]

section [was] incompatible with a significant state interest.”

Duren, 439 U.S. at 368.

23

Appendix

Illustrative Absolute and Comparative

Disparity Figures for Black Persons Serving

on Venires in Allegheny County in the Early 2000s

(with Increases/Decreases in Venire Representation of 0.2%)

(with Howell’s Statistical Evidence Shaded in Grey)

Percentage

Percentage Absolute Comparative

of

of Venires Disparity Disparity

Population

10.7% 10.7% 0.0% 0.00%

10.7% 10.5% 0.2% 1.87%

10.7% 10.3% 0.4% 3.74%

10.7% 10.1% 0.6% 5.61%

10.7% 9.9% 0.8% 7.48%

10.7% 9.7% 1.0% 9.35%

10.7% 9.5% 1.2% 11.21%

10.7% 9.3% 1.4% 13.08%

10.7% 9.1% 1.6% 14.95%

10.7% 8.9% 1.8% 16.82%

10.7% 8.7% 2.0% 18.69%

10.7% 8.5% 2.2% 20.56%

10.7% 8.3% 2.4% 22.43%

10.7% 8.1% 2.6% 24.30%

10.7% 7.9% 2.8% 26.17%

10.7% 7.7% 3.0% 28.04%

24

Percentage

Percentage Absolute Comparative

of

of Venires Disparity Disparity

Population

10.7% 7.5% 3.2% 29.91%

10.7% 7.3% 3.4% 31.78%

10.7% 7.1% 3.6% 33.64%

10.7% 6.9% 3.8% 35.51%

10.7% 6.7% 4.0% 37.38%

10.7% 6.5% 4.2% 39.25%

10.7% 6.3% 4.4% 41.12%

10.7% 6.1% 4.6% 42.99%

10.7% 5.9% 4.8% 44.86%

10.7% 5.7% 5.0% 46.73%

10.7% 5.5% 5.2% 48.60%

10.7% 5.3% 5.4% 50.47%

10.7% 5.1% 5.6% 52.34%

10.7% 4.9% 5.8% 54.21%

10.7% 4.87% 5.83% 54.49%

10.7% 4.7% 6.0% 56.07%

10.7% 4.5% 6.2% 57.94%

10.7% 4.3% 6.4% 59.81%

10.7% 4.1% 6.6% 61.68%

10.7% 3.9% 6.8% 63.55%

10.7% 3.7% 7.0% 65.42%

10.7% 3.5% 7.2% 67.29%

10.7% 3.3% 7.4% 69.16%

10.7% 3.1% 7.6% 71.03%

25

Percentage

Percentage Absolute Comparative

of

of Venires Disparity Disparity

Population

10.7% 2.9% 7.8% 72.90%

10.7% 2.7% 8.0% 74.77%

10.7% 2.5% 8.2% 76.64%

10.7% 2.3% 8.4% 78.50%

10.7% 2.1% 8.6% 80.37%

10.7% 1.9% 8.8% 82.24%

10.7% 1.7% 9.0% 84.11%

10.7% 1.5% 9.2% 85.98%

10.7% 1.3% 9.4% 87.85%

10.7% 1.1% 9.6% 89.72%

10.7% 0.9% 9.8% 91.59%

10.7% 0.7% 10.0% 93.46%

10.7% 0.5% 10.2% 95.33%

10.7% 0.3% 10.4% 97.20%

10.7% 0.1% 10.6% 99.07%

10.7% 0.0% 10.7% 100.00%

26