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Lovell v. State11/12/1997
t and the cases express this as -9.3%.
The expert, and some of the cases, also speak of "comparative disparity." It is a way of expressing the relationship between the theoretically ideal and the actual by stating the difference between the two (i.e., actual disparity) as a percentage of the ideal. In the instant matter the expert testified that the comparative disparity ratio is 52.8, expressed as -52.8%.
The State presented no evidence at the pretrial hearing. The court ruled that use of voter registration lists as the sole source for selection of an array was constitutional and that "under 'absolute disparity' analysis, [there was] no violation of the fair-cross-section requirement."
In his argument to us Lovell's challenge to the array is premised solely on the Sixth Amendment. The Supreme Court held in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), that, in order to establish a prima facie violation of the fair cross-section requirement, a defendant 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 underrepresentation is due to systematic exclusion of the group in the jury-selection process."
Id. at 364, 99 S. Ct. at 668, 58 L. Ed. 2d at 586-87.
The first element of the Duren test is satisfied by an allegation. Here the group alleged to be underrepresented is African Americans, a "distinctive" group in the Duren context.
In this Court Lovell focuses his argument on the second Duren element, but he does not rely on the absolute disparity of -9.3%. Lovell seeks to establish the second Duren element by comparative disparity. The Circuit Court for Talbot County did not consider comparative disparity because, it said, "controlling Maryland law rejects this mode of analysis," in reliance on Bailey v. State, 63 Md. App. 594, 493 A.2d 396, cert. denied, 304 Md. 296, 498 A.2d 1183 (1985). Lovell also reads Bailey as flatly rejecting comparative analysis, and he urges this Court to overrule that aspect of Bailey. Lovell asks that we then adopt comparative disparity as the more meaningful and fairer standard for determining whether there is unlawful underrepresentation.
The argument for comparative disparity begins with an inherent aspect of absolute disparity. If, for example, in the instant matter there had never been an African American on a Talbot County array, the absolute disparity would remain fixed, by definition, at -17.6%, but the comparative disparity would be 100%. Thus, if a distinct group that comprised only a small percentage of the total population were systematically excluded, looking only at absolute disparity would not reveal the problem. Lovell's expert testified that comparative disparity was "useful" and the "preferred" analysis for distinct groups comprising anywhere from five or ten percent up to fifty percent of the population. He opined that a comparative disparity in excess of twenty percent was statistically significant, demonstrating "an issue of underrepresentation in the jury pool." Lovell asks us to rule that a comparative disparity in excess of -20% satisfies the second Duren element.
Whatever merits comparative disparity might have (other than to make a number look larger), they ordinarily concern a disparate group that is a quite small portion of the total population. Here the distinctive group consists of 17.6% of the Talbot County population. United States v. Maskeny, 609 F.2d 183 (5th Cir.), cert. denied, 4
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