concludes that recognizing the subgroup of African-American males as a Duren distinctive group would amount to pursuing a level and type of representativeness that is simply not demanded by the Sixth Amendment, which requires only a cross-section that is fair, not one perfectly attuned to multiple variables.
The second problem with Greer's new twist is that even if African-American males were a distinctive group, Greer has not given the Court any reason to believe that they are unfairly and unreasonably under-represented within the meaning of Duren. Figures of the 1990 census indicate that African-American males represent 7.98% of the total adult population (eighteen and over) in the Eastern Division. African-American males make up 5.29% of the Eastern Division's current master jury wheel and 5.73% of the current qualified jury wheel.
This disparity is insufficient for the Duren under-representation prong.
Greer suggests that the "10% discrepancy is insufficient" benchmark that has been employed in connection with the under-representation prong is both statically unsophisticated and unclear in its application. Yet the Seventh Circuit's recent invocations of the benchmark evidence a belief that its sophistication suffices for constitutional purposes even today, when, as Greer stresses, the technology of statistical analysis may far surpass that available thirty years ago. See, e.g., Ashley, 54 F.3d 311, 1995 WL 239510 at *2 (1995 decision); McAnderson, 914 F.2d at 941 (1990 decision).
As for clarity of application, McAnderson is both clear and forecloses Greer's arguments. In that case, roughly 12% of the venire members were African-Americans, and 20% of the relevant population was African-American. 914 F.2d at 941. Thus, the number of African-Americans in the venire, i.e., the jury pool, was roughly 40% lower than it would have been had the pool perfectly mirrored the percentage of African-Americans in the relevant population. The McAnderson court ruled that this disparity did not meet the Duren under-representation prong. Id. Using the Eastern Division's current 5.73% qualified jury wheel figure and the 7.98% census figure, the number of African-American males in the jury pool here is 28% lower than it would be if the pool perfectly mirrored the percentage of African-American males in the relevant population. The result under McAnderson is obvious. See also Ashley, 54 F.3d 311, 1995 WL 239510 at *3 (finding an inadequate showing on the under-representation prong where the venire had no African-Americans and the relevant population had 3%). As for the census and qualified jury wheel figures for all African-Americans, they exhibit a mere 9% disparity from this perspective, a disparity, that passes muster even under the most demanding interpretation of the "10% is insufficient" benchmark.
Greer submitted the affidavit of Gregory Greiff, who states that there is a "99% likelihood" that the master and qualified jury wheels "are under-representative of black males," and that "in general, there is a high degree of probability that . . . blacks (without regard to gender) are under-represented in the jury wheels." (Greiff Aff. P 3) Yet nowhere does Greiff state by how much these groups are under-represented. Because what may be a significant variance to a statistician is not necessarily significant under the Sixth Amendment, these statements do little to bolster Greer's case. Similarly, the affidavit of Patricia McEvoy asserts, without further elaboration, that the percentage of African-American males in the jury wheels is "outside the range of normal statistical variance." (McEvoy Aff. P 4)
Finally, the Court notes with displeasure the inflammatory language employed by defense counsel in the reply brief. Counsel asserts that the Government has taken a "morally indefensible position," "is afraid that it cannot prove a case against a black person to black jurors," "continues to rely on faulty if not fraudulent statistics," and possesses a "plantation" attitude. Although mindful of the value of spirited advocacy as well as the stresses and frustrations of the legal profession, the Court can hardly imagine a time when such language would be welcome. Moreover, such language never persuades the Court.
For the foregoing reasons, the Motion to Invalidate the Clerk's Methodology for Selecting Jurors in the Northern District of Illinois is hereby DENIED and the Motion to Appoint an Expert to Examine for Racial Bias in the Clerk's Methodology for Selecting Jurors in the Northern District of Illinois is also DENIED.
RUDY LOZANO, Judge
United States District Court