[00:00:00] Speaker 04:
Thank you, Your Honor, and may it please the Court.

[00:00:02] Speaker 04:
My name is Brett Yerrick on behalf of Appellant John Pearl Smith, and I would like to reserve three minutes of time for rebuttal.

[00:00:08] Speaker 02:
OK.

[00:00:10] Speaker 02:
Move that.

[00:00:12] Speaker 02:
OK.

[00:00:13] Speaker 02:
Mr. Smith.

[00:00:14] Speaker 02:
You can do that.

[00:00:16] Speaker 02:
But just watch your own time.

[00:00:20] Speaker 02:
Please.

[00:00:20] Speaker 02:
Thank you.

[00:00:23] Speaker 04:
Your Honor, we're asking the Court to determine that Mr. Smith was deprived of his right to a fair cross-section

[00:00:29] Speaker 04:
of the community in his grand jury composition in violation of the Sixth Amendment.

[00:00:34] Speaker 04:
And in this case, the trial court erred in two ways by determining to the contrary.

[00:00:38] Speaker 04:
First, the trial court concluded that the disparity in this situation was not systematic because it arose from an unintentional mistake as to how the master wheel and the divisions of Alaska were used.

[00:00:53] Speaker 04:
And he said that if the, or excuse me, she said that because it was not intentional, it doesn't raise the same concerns as far as an intentional exclusion.

[00:01:01] Speaker 04:
That is not the test under Durin.

[00:01:03] Speaker 04:
Durin makes it clear that intent is irrelevant.

[00:01:06] Speaker 04:
The disparity as far as coming from a systematic way is focused on, was it caused by the system itself?

[00:01:15] Speaker 04:
In other words, that it wasn't a bad luck on spinning the wheel that the system that was utilized is what arose and made the disparity occur.

[00:01:25] Speaker 04:
And in this court's decision in Randolph, it cites favorably to a case of the Second Circuit, United States versus Jackman, in regard to how that systematic analysis is conducted.

[00:01:36] Speaker 04:
And what happened in that situation is similar to this case in that the jury selection process arose from a mistake.

[00:01:44] Speaker 04:
In Jackman, it was a computer error where it was coding residents from certain cities as deceased.

[00:01:50] Speaker 04:
And they realized it, they found that that was a violation, and then they put together a new system that was to fix this, but the clerk was kind of mushing these two systems together and perpetuating the disparity.

[00:02:04] Speaker 04:
And so what the court said in Jackman is that this exclusion was done on a systematic nature.

[00:02:11] Speaker 04:
Once again, we have something that is arising from the system utilized by the clerk.

[00:02:16] Speaker 04:
Can you address the second factor?

[00:02:19] Speaker 04:
Yes, I can address the second factor.

[00:02:21] Speaker 04:
And so in regard to the second factor, the question is, is whether the exclusion of the jurors was fair and reasonable in relation to the community at large.

[00:02:31] Speaker 04:
That's what Durin says.

[00:02:32] Speaker 04:
And so this court recognized in Hernandez Estrada that there is no one specific way of measuring that.

[00:02:39] Speaker 04:
It leaves open the idea that there's multiple ways.

[00:02:41] Speaker 00:
Right.

[00:02:41] Speaker 00:
But we do have guidelines under the absolute and comparative disparity tests.

[00:02:46] Speaker 00:
Yes.

[00:02:46] Speaker 00:
And any variation here would be solidly within that guidance, right?

[00:02:53] Speaker 04:
Well, yes.

[00:02:54] Speaker 04:
If you're going from a strict absolute disparity standpoint, as far as on the relative disparity,

[00:03:00] Speaker 04:
You're looking at different percentages.

[00:03:02] Speaker 04:
I think there's only a one ninth circuit case.

[00:03:03] Speaker 04:
The court cites a multiple out of circuit as far as 54, the ones in the 50% range being acceptable.

[00:03:09] Speaker 04:
But I think this is an important case to think of it from why that is insufficient for the circumstances here.

[00:03:16] Speaker 04:
We're talking about a single division for a single district for the state.

[00:03:21] Speaker 04:
We're talking about a demographically diverse state.

[00:03:24] Speaker 04:
And let's do it from a thought experiment standpoint.

[00:03:27] Speaker 04:
If the non-Caucasian populations of Alaska were cohesive, you have one block Caucasian, non-Caucasian.

[00:03:36] Speaker 04:
We have more than a 10% disparity.

[00:03:38] Speaker 04:
What we have is 7.67% for Native Americans, 1.76% for African-Americans, 3.75% for Asian-Americans, and then

[00:03:52] Speaker 04:
2.81% for multiracial.

[00:03:55] Speaker 04:
You add all those up, you have a more than 10% disparity between Caucasian and non-Caucasian.

[00:04:00] Speaker 04:
But because they are fractionalized, none of them reaches that 10% threshold.

[00:04:05] Speaker 03:
It's my understanding that the defense expert was Mr. Martin, I believe, was the expert.

[00:04:10] Speaker 03:
He essentially testified in an offer for the defense that there are essentially three possible tests, right?

[00:04:17] Speaker 03:
And one of them is absolute disparity.

[00:04:19] Speaker 03:
And it's my understanding that it's acknowledged that the study itself failed to satisfy that percentage.

[00:04:25] Speaker 03:
And that's the record, is it not?

[00:04:27] Speaker 04:
And that's correct.

[00:04:28] Speaker 03:
All right.

[00:04:28] Speaker 03:
And the second was comparative disparity.

[00:04:31] Speaker 03:
And the defendant has acknowledged, and was at trial, that that did not, that test did not fail.

[00:04:36] Speaker 03:
So really, we're talking about the standard deviation analysis.

[00:04:39] Speaker 03:
That's what it comes down to.

[00:04:40] Speaker 03:
And the second factor, correct?

[00:04:42] Speaker 04:
That is what we think is the most appropriate for this circumstance.

[00:04:45] Speaker 03:
I mean, that's what you've argued, essentially.

[00:04:47] Speaker 03:
You've essentially argued that there's an underrepresentation of African Americans and American Indians slash Alaska Natives.

[00:04:55] Speaker 03:
They are the categories you're saying were underrepresented.

[00:04:58] Speaker 04:
They're the ones that, when you have it, as far as getting into the statistical significance, correct.

[00:05:03] Speaker 03:
There are other... And so you're here before us in terms of the standard deviation analysis, in terms of the

[00:05:09] Speaker 03:
under the, as to the second factor.

[00:05:13] Speaker 04:
Correct.

[00:05:14] Speaker 04:
I think that is the most appropriate test to use in this specific circumstance.

[00:05:18] Speaker 04:
And I think the reason to do that is go back to first principles.

[00:05:22] Speaker 04:
We want a fair cross-section of the community.

[00:05:25] Speaker 04:
So when we have that as being the overarching standard, we're wanting to catch people from these various demographic groups.

[00:05:32] Speaker 04:
We shouldn't be using a test that is penalizing

[00:05:36] Speaker 04:
a state that has a relatively high non-white population, but it's fractionalized.

[00:05:43] Speaker 04:
And so, and the way you capture that in this situation is by relying on that standard deviation.

[00:05:49] Speaker 04:
And so, just conceptually for what standard deviation means is you think of a bell curve, right?

[00:05:54] Speaker 04:
And you have the mean,

[00:05:56] Speaker 04:
Result is in the middle and then from out there you get less likely outcomes Think of it from like a powerball situation where you know millions and millions of people are playing most of the people are going to fall within 0 1 2 something along those lines as far as the amount of Numbers they're getting right standard deviation within three standard deviations of the mean we're expecting to get 99.7% of the date of the data set

[00:06:24] Speaker 04:
And so everything beyond that is we're pushing further and further into those tails of the bell curve.

[00:06:29] Speaker 04:
And in this situation,

[00:06:31] Speaker 04:
When you calculate it out as far as for African Americans and Native Americans, we're looking at 13 and 16 standard deviations.

[00:06:39] Speaker 04:
We're talking about essentially you're winning the lottery to have gotten this specific grand jury composition or a veneer if you were to pull it from a random sample of the Alaska population as a whole.

[00:06:50] Speaker 04:
And so what that's demonstrating, especially when you have this situation where we're dealing with a

[00:06:56] Speaker 04:
demographically diverse district, the only way to really capture that is by using that specific analysis.

[00:07:03] Speaker 04:
And I would also point out that if you're not going to use standard deviation in this type of case, you're really saying that there's no situation where it is available because otherwise we've turned this into a situation where you need to have compact homogenous minorities to ever have a Sixth Amendment violation.

[00:07:19] Speaker 02:
Council, I'm going to remind you

[00:07:21] Speaker 02:
I think you said you wanted to reserve three minutes.

[00:07:25] Speaker 04:
Yes, and I will do so right now unless the court has any additional questions before rebuttal.

[00:07:29] Speaker 02:
Thank you.

[00:07:30] Speaker 02:
Thank you.

[00:07:33] Speaker 02:
Now we'll hear from Appellee, please.

[00:07:39] Speaker 01:
Good morning.

[00:07:39] Speaker 01:
May it please the court, Stephen Corso of the United States.

[00:07:44] Speaker 01:
This morning, we're here to ask this court to affirm the defendant's convictions.

[00:07:48] Speaker 01:
There was no systematic problem here in the composition of the grand jury.

[00:07:52] Speaker 01:
There's no need to overhaul the District of Alaska's legal practices.

[00:07:57] Speaker 01:
The system is fine.

[00:07:59] Speaker 01:
It's appropriate.

[00:08:00] Speaker 01:
It's inclusive.

[00:08:01] Speaker 01:
And that's the plan in place.

[00:08:03] Speaker 01:
True, the clerk deviated from the plan in 2015, but that has been corrected by the district court as of 2020.

[00:08:11] Speaker 01:
Plan, of course, was to draw jurors and grand jurors on a pro rata basis according to the number of registered voters in each division in the District of Alaska.

[00:08:21] Speaker 01:
Of course, there are five divisions, Anchorage, Juneau, Nome, Ketchikan, and I think I forgot the last one.

[00:08:29] Speaker 03:
There were five.

[00:08:29] Speaker 03:
The last is known, by the way.

[00:08:33] Speaker 01:
The clerk deviated from that plan by applying a different formula than what the plan called for, and that likely skewed the demographics of the grand jury veneer, but only in a very slight manner and in a manner that did not give rise to a Sixth Amendment claim or a statutory violation here.

[00:08:53] Speaker 00:
So if the correct plan had been used,

[00:08:57] Speaker 00:
that would have increased potentially the number of white jurors in the grand jury, but only by a factor of like 1.6, right?

[00:09:08] Speaker 00:
I think that's right.

[00:09:10] Speaker 00:
Slightly increased number of white representation, very slightly increased number of African-American representation, but Native American Indian and Alaskan Native jurors, that number would actually go down.

[00:09:26] Speaker 01:
Very small numbers.

[00:09:28] Speaker 01:
As we see it, using the wrong formula decreased the number of jurors from Anchorage by 20, increased the number from Fairbanks by 31, and then reduced the number from Juneau by 6, the number from Ketchikan by 3, and the number from Nome by 2.

[00:09:48] Speaker 01:
And looking at the racial demographics of each of the divisions, take Anchorage and Fairbanks, for example.

[00:09:55] Speaker 01:
would wash out in terms of the percentage of white people on the veneer because most of Anchorage and most of Fairbanks is white.

[00:10:05] Speaker 01:
There'd be a very small potential difference to African-Americans, less than one or less from each of the five divisions.

[00:10:14] Speaker 01:
And as far as natives, only just a small handful.

[00:10:17] Speaker 01:
So there's a very limited

[00:10:21] Speaker 01:
realistic impact here in what the clerk did.

[00:10:25] Speaker 01:
And there's no evidence that the clerk had any intention to do anything or there's nothing in the system and the results that were generated here that would suggest that there was some sort of bias in the system that would trigger a constitutional or statutory violation.

[00:10:42] Speaker 00:
If we find that the second during factor is not met, do we need to decide the systematic exclusion question?

[00:10:48] Speaker 01:
No, the second factor is not met and we fully believe that has not been met here because there was a fair cross section of the community in the veneer resulting in Mr. Smith's grand jury.

[00:11:02] Speaker 01:
The court would not need to address on the third factor, which is whether that was a systematic cause.

[00:11:11] Speaker 01:
The court's already alluded to, under the second factor, that the statistical tests that the defendant used, absolute disparity and comparative disparity, have limitations.

[00:11:20] Speaker 01:
The court's already recognized here that the absolute disparity figures that the defense has argued are well within the thresholds.

[00:11:28] Speaker 01:
That's underneath the 10% threshold that the scientific community maintains, as well as quite a bit less than 7.7% that this court's precedent.

[00:11:37] Speaker 03:
And that was essentially established by their own expert.

[00:11:40] Speaker 03:
The defendant's expert essentially provided testimony as to those first two.

[00:11:44] Speaker 01:
That's right.

[00:11:44] Speaker 01:
That's a concession from the defense on absolute disparity.

[00:11:48] Speaker 01:
And similarly, the defense made a concession, too, we believe, on comparative disparity between roughly 29% and 50%.

[00:11:55] Speaker 01:
Those are also well within limits.

[00:11:58] Speaker 01:
And of course, comparative disparity has its own.

[00:12:01] Speaker 01:
flaws and limitations which the defense and the courts have well recognized.

[00:12:07] Speaker 01:
As the court identified, this does turn then on standard deviation given the concessions.

[00:12:14] Speaker 01:
No court has accepted standard deviation alone as a determinative of a Sixth Amendment challenge.

[00:12:21] Speaker 01:
That's the Burgheist case from the Supreme Court.

[00:12:24] Speaker 01:
Hernandez Estrada from this court has identified flaws in standard deviation because of the standard deviation relies and argues on randomness, yet the qualified jury pool was not determined randomly.

[00:12:39] Speaker 01:
It's determined by factors which exclude and excuse jurors from being qualified jurors to serve.

[00:12:47] Speaker 01:
As the district court pointed out, the standard deviation here was based on absolute and comparative disparity.

[00:12:53] Speaker 01:
And we've already, I think, well established that the absolute and comparative disparity figures from the defense were well within scientific and precedential limits.

[00:13:05] Speaker 01:
And the disparities, which we've also discussed here, were not legally sufficient because there was such a small impact to such a small handful of people in a very small sample size that there's no legal significance to any disparity that the numbers might suggest.

[00:13:24] Speaker 01:
We can move on to the third prong of Durham, which is the systematic exclusion.

[00:13:29] Speaker 01:
Our argument here is that the defense needs more data to make out a systematic argument.

[00:13:36] Speaker 01:
Their argument here is based only on one grand jury.

[00:13:39] Speaker 01:
We feel that there need to be analysis of successive grand juries to make their case.

[00:13:45] Speaker 01:
We would cite the court to the Miller decision from the Ninth Circuit, 771, F2, 1219.

[00:13:51] Speaker 01:
Also, in Durham, of course, there was this weekly collection of jury veneers over an eight-month period that was analyzed and led to the conclusion of disparities in Durham itself.

[00:14:07] Speaker 01:
Here, there's nothing even close to eight months' worth of weekly jury veneers.

[00:14:12] Speaker 01:
It's just one grand jury, one panel.

[00:14:16] Speaker 01:
Alaska is unique.

[00:14:17] Speaker 01:
Alaska sits essentially one grand jury per year, and that grand jury serves 12 months and sometimes is extended to 18 months.

[00:14:29] Speaker 01:
Our view is this was just a bit of a discrepancy.

[00:14:34] Speaker 01:
which was corrected.

[00:14:35] Speaker 01:
Again, there was nothing inherent in the clerk's deviation that suggests that she was targeting any specific group.

[00:14:43] Speaker 01:
And the disparities here are so small, they're nothing like the disparities in both the Supreme Court case in Taylor and the case in Dern.

[00:14:51] Speaker 01:
In Taylor, 53% of the eligible population were women.

[00:14:57] Speaker 01:
yet the women only comprised 10% of the jury wheel.

[00:15:01] Speaker 01:
And in Durham, the women were 54% of the eligible population, but only comprised 14.5% of the jury wheel.

[00:15:10] Speaker 01:
Those are massive numbers, massive disparities, and we have nothing close to that here.

[00:15:17] Speaker 01:
Our view is that the clerk could have continued to use her numbers and run her.

[00:15:22] Speaker 01:
her program and continue to deviate, and she could have easily produced a different result than the one that was obtained in Mr. Smith's jury, and that suggests that there was no Sixth Amendment or statutory violation here.

[00:15:40] Speaker 01:
Those are my remarks before the court this morning, and unless there are any questions from the court, I'm happy to yield the remainder of my time.

[00:15:47] Speaker 02:
Okay, thank you.

[00:15:47] Speaker 02:
Thank you.

[00:15:51] Speaker 02:
Wynn, any questions?

[00:15:59] Speaker 02:
There's better than any questions.

[00:16:02] Speaker 02:
Do you have any questions?

[00:16:04] Speaker 03:
I'm waiting for the following argument.

[00:16:06] Speaker 03:
No, I didn't have any other questions.

[00:16:08] Speaker 04:
Do you have any questions for me before I go into it?

[00:16:11] Speaker 03:
Yeah, I guess I do, really, in terms of the second factor under Doran.

[00:16:16] Speaker 03:
When all is said and done, in terms of for it to reach an unconstitutional level, the burden is to show that it was not fair and reasonable.

[00:16:23] Speaker 03:
And it really sounds like there was a minimal effect here.

[00:16:26] Speaker 03:
How is this not ultimately fair and reasonable, even when, as noted by Judge Winn's earlier question, even if the correct geographic proration had been utilized,

[00:16:38] Speaker 03:
It's a very minimal increase in greater representation of one category and actually diminishes and is less than would result from American Indian and Alaska Native jurors.

[00:16:52] Speaker 03:
I just don't know how this rises to a constitutional level of not being fair and reasonable under Durham.

[00:16:58] Speaker 04:
And I would encourage your honor to look at one er 15 Which is the district court's order and it's got this it's got the table there showing what the disparities are between the district the district-wide eligibility jurors versus what was done from the selected pool and then what the actual 125 selected they add up you can sit there and see the district-wide it should have been seventy one point three percent six percent of white jurors and that in fact it was eighty three point

[00:17:27] Speaker 04:
06 we're talking about once you add all those up and again, we're trying to get that fair cross-section Fair and reasonable and reasonable correct not a precise formula.

[00:17:38] Speaker 04:
It's fair and reasonable That's the standard is it not that is absolutely the standard and we don't think that it is fair and reasonable or

[00:17:45] Speaker 04:
when you look at all of those it's almost a death by a thousand cuts of like okay any one specific demographic might not reach the absolute disparity doesn't in this case the closest we get is um is native americans at the over seven percent but doesn't get to ten

[00:18:03] Speaker 04:
And so, but all of those you add up, there ends up being a pretty significant disparity.

[00:18:08] Speaker 04:
And we're talking about 31 jurors out of 125 being taken from Fairbanks.

[00:18:13] Speaker 04:
That's almost a quarter of the grand jury composition.

[00:18:17] Speaker 04:
We're talking about a very significant disparity once you add everything up.

[00:18:23] Speaker 04:
And if you're trying to get down to is this a couple people here or there?

[00:18:25] Speaker 04:
that is inherent in the fact of we're taking small sample sizes, whether that's a grand jury veneer, whether that's a petit jury veneer, whether that's 12 jurors on a jury.

[00:18:36] Speaker 04:
At the end of the day, unless you just have a massive thing such as males versus females, 50% of the population, it's always gonna come down to a couple of people.

[00:18:45] Speaker 04:
And if you're not doing it in this situation, you're effectively rendering Sixth Amendment violations a nullity because you need that homogenous and compact

[00:18:54] Speaker 04:
minority forever to be violated.

[00:18:57] Speaker 04:
And I'm out of time.

[00:18:58] Speaker 02:
Thank you.

[00:18:58] Speaker 02:
Thank you.

[00:18:59] Speaker 02:
Thank you, counsel.

[00:19:26] Speaker 02:
The Smith case is now submitted.