The opinion of the court was delivered by: RUDY LOZANO
This matter is before the Court on the following motions filed by Defendant, Patrick Greer: Motion to Invalidate the Clerk's Methodology for Selecting Jurors in the Northern District of Illinois, forwarded to this Court on May 31, 1995, and Motion to Appoint an Expert to Examine for Racial Bias in the Clerk's Methodology for Selecting Jurors in the Northern District of Illinois, forwarded to this Court on July 20, 1995. For the reasons set forth below, both Motions are hereby DENIED.
Motion to Invalidate the Clerk's Methodology for Selecting Jurors in the Northern District of Illinois
Under the Seventh Circuit's Plan for the Random Selection of Jurors, the jury pool in Greer's case will be assembled using a list of registered voters living in the eight counties making up the Northern District of Illinois, Eastern Division. From the registered-voter list, "jury venires" and "jury panels"
(collectively "jury pools") are compiled. The parties do not dispute that the registered-voter list that will be used in Greer's case was compiled without using the procedures set forth by Congress in the National Voter Registration Act of 1993, 42 U.S.C. §§ 1973gg, et seq. ("Act"). The Act, commonly known as the "motor voter" law, requires Illinois and other states to take certain measures designed to make voter registration easier and thereby "increase the number of eligible citizens who register to vote." 42 U.S.C. § 1973gg(b) (1); Ass'n of Community Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791, slip op. at 1-2 (7th Cir. 1995). As the Act's common name suggests, these measures include allowing citizens to register to vote simultaneously with applying for a driver's license. ACORN, slip op. at 1-2.
Illinois has refused to comply with the Act. Id. When its noncompliance was challenged in federal district court, Illinois argued that the Act is unconstitutional. Id. at 2. The district court rejected Illinois' argument and entered a "sweeping injunction" requiring compliance. Id. On appeal, the Seventh Circuit affirmed, although it did trim the district court's detailed injunction to a simple command that Illinois adhere to the Act. Id. at 12. The court also dissolved the stay of the injunction that had been in effect pending appeal. Id. at 13.
Greer's argument is based on the Sixth Amendment, which guarantees a criminal defendant an impartial jury. U.S. Const. amend. VI. As part of this guarantee, a defendant has the right to have a jury selected from a representative cross-section of the community. United States v. Guy, 924 F.2d 702, 705 (7th Cir. 1991). Greer predicts that his jury pool will not embody a representative cross-section because of lack of African-Americans.
Greer acknowledges that his argument is subject to the test set forth in Duren v. Missouri, 439 U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979) and since followed by the Seventh Circuit in Guy and other cases. Under the Duren test, "to establish a prima facie violation of the fair cross-section requirement" Greer must show:
(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 under-representation is due to systematic exclusion of the group in the jury-selection process.
Guy, 924 F.2d at 705. In summary, then, the three prongs of the Duren test are distinctive group, under-representation of the distinctive group, and systematic exclusion of the distinctive group. See id.
Greer has satisfied the distinctive group prong; African-Americans unquestionably form a distinctive group. See Guy, 924 F.2d at 705 (noting that the parties did not dispute that African-Americans are a distinctive group). As for the under-representation prong, Greer has offered no evidence whatsoever that Eastern Division jury pools have under-represented African-Americans in the past or will do so in the future. Cf. Duren, 439 U.S. at 362-63 (defendant offered statistics detailing how at each stage of jury pool creation women were under-represented). As such, Greer has failed to satisfy the under-representation prong.
Greer's counsel suggests that he may offer more proof of under-representation later. He cites a 1990 census figure of the percentage of African-Americans living in the Eastern Division while indicating that he might seek to amend his Motion based on how this figure compares with the percentage of African-Americans who appear in his venire when trial begins. Still, by itself, even a marked lack of members of a distinctive group in the specific venire from which a jury is chosen does not necessarily establish under-representation in the jury pool. See United States v. Ashley, 54 F.3d 311, 1995 WL 239510, at *2 (7th Cir. 1995) ("[A] discrepancy of less than 10% alone is not enough to demonstrate unfair or unreasonable representation of blacks on the venire.") (citing United States v. McAnderson, 914 F.2d 934, 941 (7th Cir. 1990)); cf. Davis v. Warden, 867 F.2d 1003, 1013 (7th Cir.), cert. denied, 493 U.S. 920, 110 S. Ct. 285, 107 L. Ed. 2d 264 (1989) ("Raw census figures showing a disparity as large as 25% may establish that blacks were under-represented on the jury list."); see also Duren, 439 U.S. at 366 (requiring the defendant "to show that the under-representation of women, generally and on his venire, was due to their systematic exclusion") (emphasis added).
Neither has Greer offered any proof of the systematic exclusion prong. He has presented no direct evidence whatsoever of systematic exclusion of African-Americans in Eastern Division jury pools. Granted, Greer did submit the jury selection plan discussed above, yet he in no way attempted to show how the mechanics of this plan result in unrepresentative jury pools. Cf. Duren, 439 U.S. at 366 (noting that the defendant's "undisputed demonstration that a large discrepancy occurred not just occasionally but in every weekly venire for a period of nearly a year manifestly indicates that the cause of the under-representation [of women] was systematic -- that is, inherent in the particular jury-selection process").
For its part, the Government asserts that of the current pool of qualified jurors available for service in the Eastern Division, 16.47% are African-American. The Government reports that according to the 1990 census, 18% of the adult population of the Eastern Division is African-American (Greer cites a less relevant total population figure of 19.6%). These figures depict only a de minimis disparity between adult African-American population and qualified African-American jurors, which will not likely satisfy the under-representation prong of the Duren test. See Ashley, 54 F.3d 311, 1995 WL 239510 at *2; cf. Davis, 867 F.2d at 1013. To the contrary, in this Court's estimation the ...