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Excerpted From: Camille Fenton, A Jury of Someone Else's Peers: The Severe Underrepresentation of Native Americans from the Western Division of South Dakota's Jury-selection Process, 24 Texas Journal on Civil Liberties & Civil Rights 119 (Fall, 2018) (Law Student Note) (257 Footnotes) (Full Document)


CamilleFentonWhile working as a Deputy Federal Public Defender in South Dakota, Stephen Demik found himself faced with a difficult challenge: many of his Native American clients were declining to exercise their rights to a jury trial because they knew that Native Americans would be drastically underrepresented in their jury pools. This challenge is only one of many obstacles for Deputy Federal Public Defenders, "not the least of which is the fact that nationwide, as of 2012, 93% of prosecutions result in convictions." When Demik faced what he calls "the inevitable question" of "how many Native Americans" would be on his client's jury, he could only respond "with a sigh and resignation": "[p]robably none." This was especially frustrating to him when so many criminal defendants were Oglala Lakota Native Americans living on the Pine Ridge Reservation located in the southwest portion of that state, with many facing severe consequences for their alleged crimes. In Demik's experience, "[w]ith a plea offer on the table and the prospect of facing an all-white jury, many Native American defendants ... were reluctant to take their case to a jury trial because of that underrepresentation."

In this paper, I explore the circumstances that gave rise to these unrepresentative juries in the Western Division of the United States District Court for South Dakota and offer some possible solutions. I begin in Part II by briefly laying out the Supreme Court's interpretation of the Sixth Amendment, which established the criminal defendant's right to an impartial jury drawn from a representative cross-section of the community. I also explain the Supreme Court's three-pronged test, emerging from Duren v. Missouri, for determining whether a defendant's right to a jury drawn from a representative cross-section of the community is being violated.

I then establish in Part III that the Western Division of South Dakota's jury-selection process is in violation of the Sixth Amendment's fair cross-section requirement. I begin by briefly explaining the criminal-jurisdictional landscape for Native American defendants and introduce the reader to the Pine Ridge Reservation, which comprises a substantial portion of the Western Division. I then explain the jury-selection process in the Western Division and go on to apply the Duren test to its process to show that it is in violation of the Sixth Amendment's fair cross-section requirement. The crux of my argument lies in the third prong of the test, which requires me to make a prima facie showing that Native Americans are being systematically excluded from the jury-selection process by virtue of a flaw inherent in the process. I argue that, due to the significant barriers and obstacles to voter registration faced by Native Americans living on the Pine Ridge Reservation, the Western Division's use of a voter-registration list as its single jury-source list results in a master jury wheel that does not represent a fair cross-section of the community. The problems stemming from this unrepresentative single-source list of potential jurors are compounded by the Western Division's inadequate follow-up procedures after it has sent out juror qualification questionnaires to these potential jurors.

After I make this prima facie showing that the jury-selection process utilized by the Western Division results in the exclusion of Native Americans from the Western Division's venires, I conclude in Part IV by offering a two-tiered set of possible solutions. The first tier involves fixes to the jury-selection process itself. I propose that the Western Division supplement the voter registration list with other jury-source lists. I also propose that the Western Division improve its follow-up procedures such that Native Americans receiving the juror-qualification questionnaire have a better opportunity to respond and make it onto the qualified jury wheel. The second tier of solutions depends upon the implementation of these procedural fixes, as these additional solutions can only be effective if Native Americans are summoned for jury service. In an effort to make jury service less burdensome for the Native American residents of Pine Ridge, and even incentivize their participation, I suggest an increase in juror compensation in conjunction with the implementation of an education campaign and other grassroots efforts. Working together, these two tiers of solutions would increase the representation of Native Americans in the Western Division's jury-selection process.


[. . .]


When juries are egregiously unrepresentative of communities, the public loses trust in the justice system. When Native American defendants refuse to exercise their constitutional right to a jury trial purely because the pool from which their jury will be selected is completely unrepresentative of their community, they have lost trust in the justice system, and justifiably so. The Western Division of the District Court of South Dakota's jury selection process is denying Native American defendants their Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community. This violation needs to be addressed through concerted efforts to increase the presence of Native Americans throughout the Western Division's jury selection process. Implementing fixes to the process is critical, but in order to most effectively secure the participation of Native Americans from the Pine Ridge Reservation, reform efforts should not end there. The Western Division, with the help of grassroots and nonprofit organizations, should go a step further to reduce the burdens associated with jury service for Native Americans. Increased Native American participation on the Western Division's juries would do a great deal to restore that Native American community's faith in the Western Division's judicial process. 


Law Student at University of Texas at Austin.