In U.S. v. Hernandez a three-judge panel in the 9th Circuit affirmed an illegal reentry conviction in a case in which the defendant argued that in compiling its 2009 master jury wheel, the Southern District of California violated the Jury Selection and Service Act of 1968 and the Constitution.
Applying the absolute disparity rule, the panel held that because a juror source list consisting only of registered voters did not substantially underrepresent African–Americans or Hispanics in the community, the Southern District's failure to supplement that list did not violate the Sixth Amendment. The panel also held that because the defendant neither alleged nor showed discriminatory intent, there was no Fifth Amendment equal-protection violation.
The panel wrote that the Southern District Clerk's Office should not automatically disqualify individuals who express doubt about their English skills, and should not put off preparing statistical jury-representativeness forms required by the Act, but that these technical violations did not frustrate the Act's goals and do not warrant merits relief in this case.
The panel held that the Southern District's dismissal of prospective jurors based solely on a “no” answer to a question whether jurors “read, write, speak and understand the English language” was not a substantial violation of the Act because it did not interfere with the Act's key goals of randomness and objectivity. The panel also held that the defendant did not demonstrate that the Southern District substantially departed from the requirements of the Act by failing to return questionnaires to prospective jurors who failed to answer questions on race and/or ethnicity.
The panel cautioned the Southern District to take note of the statutory violations identified and amend its practices in the future.