fair cross-section requirement in Colorado

2008I believe it is clear, however, that the "substantial underrepresentation" constituting a constitutional violation when it results from purposeful discrimination, see Castaneda, 430 U.S. at 493 , 97 S.Ct. 1272 , is not also the measure of a discrepancy sufficient to satisfy the second prong of the fair cross-section requirement, see Duren, 439 U.S. at 364-66 , 99 S.Ct. 664 .

2008I believe it is clear, however, that the "substantial underrepresentation" constituting a constitutional violation when it results from purposeful discrimination, see Castaneda, 430 U.S. at 493 , 97 S.Ct. 1272 , is not also the measure of a discrepancy sufficient to satisfy the second prong of the fair cross-section requirement, see Duren, 439 U.S. at 364-66 , 99 S.Ct. 664 .

2008The People concede that "African-Americans and Hispanics are `distinctive groups' for the purposes of a fair cross-section analysis." United States v. Weaver, 267 F.3d 231, 240 (3d Cir.2001); see Castaneda v. Partida, 430 U.S. 482, 495 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (holding that "Mexican-Americans are a clearly identifiable class" in the context of an equal protection challenge); Fields v. People, 732 P.2d 1145, 1153 (Colo.1987) (holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims

2008The People concede that "African-Americans and Hispanics are `distinctive groups' for the purposes of a fair cross-section analysis." United States v. Weaver, 267 F.3d 231, 240 (3d Cir.2001); see Castaneda v. Partida, 430 U.S. 482, 495 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (holding that "Mexican-Americans are a clearly identifiable class" in the context of an equal protection challenge); Fields v. People, 732 P.2d 1145, 1153 (Colo.1987) (holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims

2016See Hutchinson v. People, 742 P.2d 875, 881 (Colo. 1987) ("[Clounsel has a duty to make reasonable investigations in connection with the case or to make a reasonable decision that makes particular investigations unnecessary."); Ervin v. State, 423 S.W.3d 789, 793 (Mo, Ct. App. 2013) ("A trial attorney has a duty to investigate all aspects of a defendant's case."). 115 Viewing Luong's allegations through the lens of Strickland, the question for us is not whether he could possibly prove a fair cross-section claim or equal protection violation.

2016See Hutchinson v. People , 742 P.2d 875, 881 (Colo. 1987) (“[C]ounsel has a duty to make reasonable investigations in connection with the case or to make a reasonable decision that makes particular investigations unnecessary.”); Ervin v. State , 423 S.W.3d 789, 793 (Mo. Ct. App. 2013) (“A trial attorney has a duty to investigate all aspects of a defendant’s case.”). ¶15 Viewing Luong’s allegations through the lens of Strickland , the question for us is not whether he could possibly prove a fair cross- section claim or equal protection violation.

2016See Hutchinson v. People, 742 P.2d 875, 881 (Colo. 1987) ("[Clounsel has a duty to make reasonable investigations in connection with the case or to make a reasonable decision that makes particular investigations unnecessary."); Ervin v. State, 423 S.W.3d 789, 793 (Mo, Ct. App. 2013) ("A trial attorney has a duty to investigate all aspects of a defendant's case."). 115 Viewing Luong's allegations through the lens of Strickland, the question for us is not whether he could possibly prove a fair cross-section claim or equal protection violation.

2016See Hutchinson v. People , 742 P.2d 875, 881 (Colo. 1987) (“[C]ounsel has a duty to make reasonable investigations in connection with the case or to make a reasonable decision that makes particular investigations unnecessary.”); Ervin v. State , 423 S.W.3d 789, 793 (Mo. Ct. App. 2013) (“A trial attorney has a duty to investigate all aspects of a defendant’s case.”). ¶15 Viewing Luong’s allegations through the lens of Strickland , the question for us is not whether he could possibly prove a fair cross- section claim or equal protection violation.

2016See Vieyra, 169 P.3d at 209 .

2016See Vieyra , 169 P.3d at 209 .

2016As in Gibbs and its collected cases, the absolute impact of 2.68 here did not suggest a gross underrepresentation of Asmn—Amerlcans in the venire. 182 In sum, two of the three statistical models allegedly available to Luong's trial counsel-including the model arguably most suitable to small populations-did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel's alleged failure to investigate a fair cross-section claim or equal protection claim constituted "errors so serious that counsel was not functio

2016As in Gibbs and its collected cases, the absolute impact of 2.63 here did not suggest a gross underrepresentation of Asian-Americans in the venire. ¶31 In sum, two of the three statistical models allegedly available to Luong’s trial counsel — including the model arguably most suitable to small populations — did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel’s alleged failure to investigate a fair cross-section claim or equal protection claim constituted “errors so serious that counsel was not fu

2016And in Sepeda , 196 Colo. at 20 , 581 P.2d at 728 , our supreme court declined to find a violation based on an absolute disparity of 5%. ¶27 Moreover, the absolute disparity here was far less than the percentages in cases in which the United States Supreme Court has found a violation of the fair cross-section requirement.

2016And in Sepeda , 196 Colo. at 20 , 581 P.2d at 728 , our supreme court declined to find a violation based on an absolute disparity of 5%. ¶27 Moreover, the absolute disparity here was far less than the percentages in cases in which the United States Supreme Court has found a violation of the fair cross-section requirement.

2016As in Gibbs and its collected cases, the absolute impact of 2.68 here did not suggest a gross underrepresentation of Asmn—Amerlcans in the venire. 182 In sum, two of the three statistical models allegedly available to Luong's trial counsel-including the model arguably most suitable to small populations-did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel's alleged failure to investigate a fair cross-section claim or equal protection claim constituted "errors so serious that counsel was not functio

2016As in Gibbs and its collected cases, the absolute impact of 2.63 here did not suggest a gross underrepresentation of Asian-Americans in the venire. ¶31 In sum, two of the three statistical models allegedly available to Luong’s trial counsel — including the model arguably most suitable to small populations — did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel’s alleged failure to investigate a fair cross-section claim or equal protection claim constituted “errors so serious that counsel was not fu

2016As in Gibbs and its collected cases, the absolute impact of 2.63 here did not suggest a gross underrepresentation of Asian-Americans in the venire. ¶31 In sum, two of the three statistical models allegedly available to Luong’s trial counsel — including the model arguably most suitable to small populations — did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel’s alleged failure to investigate a fair cross-section claim or equal protection claim constituted “errors so serious that counsel was not fu

2016As in Gibbs and its collected cases, the absolute impact of 2.63 here did not suggest a gross underrepresentation of Asian-Americans in the venire. ¶31 In sum, two of the three statistical models allegedly available to Luong’s trial counsel — including the model arguably most suitable to small populations — did not suggest that the absence of Asian-Americans on the 100-person venire violated the Constitution. 6 As a result, we do not conclude that counsel’s alleged failure to investigate a fair cross-section claim or equal protection claim constituted “errors so serious that counsel was not fu

2016See Duren , 439 U.S. at 367 n.25 (39% absolute disparity); Castaneda v. Partida , 430 U.S. 482, 495-96 (1977) (40% absolute disparity); see also United States v. Gault , 141 F.3d 1399, 1402-03 (10th Cir. 1998) (no constitutional violation for a 7% absolute disparity); United States v. Yazzie , 660 F.2d 422 , 427 & n.4 (10th Cir. 1981) (no constitutional violation for a 4.29% absolute disparity).

2016See Duren , 439 U.S. at 367 n.25 (39% absolute disparity); Castaneda v. Partida , 430 U.S. 482, 495-96 (1977) (40% absolute disparity); see also United States v. Gault , 141 F.3d 1399, 1402-03 (10th Cir. 1998) (no constitutional violation for a 7% absolute disparity); United States v. Yazzie , 660 F.2d 422 , 427 & n.4 (10th Cir. 1981) (no constitutional violation for a 4.29% absolute disparity).

2008See People v. Sepeda, 196 Colo. 13, 17-21 , 581 P.2d 723, 726-29 (1978); accord United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006).

2008See People v. Sepeda, 196 Colo. 13, 17-21 , 581 P.2d 723, 726-29 (1978); accord United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006).

2008The People concede that "African-Americans and Hispanics are `distinctive groups' for the purposes of a fair cross-section analysis." United States v. Weaver, 267 F.3d 231, 240 (3d Cir.2001); see Castaneda v. Partida, 430 U.S. 482, 495 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (holding that "Mexican-Americans are a clearly identifiable class" in the context of an equal protection challenge); Fields v. People, 732 P.2d 1145, 1153 (Colo.1987) (holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims

2008The People concede that "African-Americans and Hispanics are 'distinetive groups' for the purposes of a fair cross-section analysis." United States v. Weaver, 267 F.3d 231, 240 (3d Cir.2001); see Castaneda v. Partida, 430 U.S. 482, 495 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (holding that "Mexican-Americans are a clearly identifiable class" in the context of an equal protection challenge); Fields v. People, 732 P.2d 1145, 1153 (Colo.1987) (holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims

2012Additionally, my view here is limited to allegations of juror bias against distinct racial groups. 7 See generally Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (expanding the Batson analysis from discrimination against African-American jurors to Hispanic jurors); Washington v. People, 186 P.3d 594 , 601 (Colo.2008) ("African-Americans and Hispanics are 'distinctive groups' for the purposes of a fair cross-section analysis." (quoting United States v. Weaver, 267 F.3d 231 , 240 (3d Cir.2001) )).

2008The People concede that "African-Americans and Hispanics are `distinctive groups' for the purposes of a fair cross-section analysis." United States v. Weaver, 267 F.3d 231, 240 (3d Cir.2001); see Castaneda v. Partida, 430 U.S. 482, 495 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977) (holding that "Mexican-Americans are a clearly identifiable class" in the context of an equal protection challenge); Fields v. People, 732 P.2d 1145, 1153 (Colo.1987) (holding that "Spanish-surnamed persons clearly constitute a cognizable group of people" for the purpose of both Sixth Amendment and equal protection claims

2016Rather, the question is whether it was outside the bounds of reasonable professional assistance for his trial counsel not to assert or investigate such claims given what counsel knew at the time, See Rodriguez, 914 P.2d at 294 (recognizing that a "fair assesgment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time") (citation omitted). {16 In reviewing counsel's performance, we must be "highly deferential"

2008See, e.g., Alston, 791 F.2d at 257 ("The Statistical Decision Theory [statistical significance] is ideally suited for shedding light on this issue [of discriminatory intent] because it reveals the possible role of chance and works well where a small sample is involved, as here."); Moultrie v. Martin, 690 F.2d 1078, 1082 (4th Cir.1982) ("[I]n all cases involving racial discrimination, the courts of this circuit must apply a standard deviation analysis . . . before drawing conclusions from statistical comparisons.").

2008See, eg., Alston, 791 F.2d at 257 ("The Statistical Decision Theory [statistical significance] is ideally suited for shedding light on this issue [of discriminatory intent] because it reveals the possible role of chance and works well where a small sample is involved, as here."); Moultrie v. Martin, 690 F.2d 1078, 1082 (4th Cir.1982) ("[I)n all cases involving racial discrimination, the courts of this cireuit must apply a standard deviation analysis ... before drawing conclusions from statistical comparisons.").

2008See Duren, 439 U.S. at 368 n. 26, 99 S.Ct. 664 ("Those equal protection challenges to jury selection and composition [in Castaneda ] are not entirely analogous to [the fair cross-section challenge in] the case at hand."); Alston v. Manson, 791 F.2d 255, 258 (2d Cir.1986) (distinguishing "equal protection and [S]ixth [A]mendment [fair cross-section] standards"). [7] Although the equal protection and fair cross-section standards may be different, there is "no rationale for applying different measures of underrepresentation in the fair cross-section and equal protection contexts that can survive

2008See Duren, 439 U.S. at 368 n. 26, 99 S.Ct. 664 (''Those equal protection challenges to jury selection and composition [in Castaneda] are not entirely analogous to [the fair cross-section challenge in] the case at hand."); Alston v. Manson, 791 F.2d 255, 258 (2d Cir.1986) (distinguishing "equal protection and [Slixth [A)mendment [fair cross-section] standards"). .

2007Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664, 668 , 58 L.Ed.2d 579 (1979); see also Rubanowitz, supra, 688 P.2d at 241 ; Sepeda, supra, 196 Colo. at 19 , 581 P.2d at 727-28 . “[Ojnce the defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn from a fair cross section of the community, it is the State that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest.” Duren, supra, 439 U.S. at 368 , 99 S.Ct. at 671 .

2007Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664, 668 , 58 L.Ed.2d 579 (1979); see also Rubanowitz, supra, 688 P.2d at 241 ; Sepeda, supra, 196 Colo. at 19 , 581 P.2d at 727-28 . “[Ojnce the defendant has made a prima facie showing of an infringement of his constitutional right to a jury drawn from a fair cross section of the community, it is the State that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest.” Duren, supra, 439 U.S. at 368 , 99 S.Ct. at 671 .

2007See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006); State v. Gibbs, 254 Conn. 578 , 758 A.2d 327, 337 (2000); State v. Paz, 118 Idaho 542 , 798 P.2d 1, 7 (1990), overruled in part on other grounds by State v. Card, 121 Idaho 425 , 825 P.2d 1081 (1991).

2007See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006); State v. Gibbs, 254 Conn. 578 , 758 A.2d 327, 337 (2000); State v. Paz, 118 Idaho 542 , 798 P.2d 1, 7 (1990), overruled in part on other grounds by State v. Card, 121 Idaho 425 , 825 P.2d 1081 (1991).

2007It does not guarantee that juries be “of any particular composition.” Taylor, supra, 419 U.S. at 538 , 95 S.Ct. at 702 ; see also Holland v. Illinois, 493 U.S. 474, 480 , 110 S.Ct. 803, 807 , 107 L.Ed.2d 905 (1990); Sepeda, supra, 196 Colo. at 18 , 581 P.2d at 727 (“There is no requirement ... that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs.”).

2007It does not guarantee that juries be “of any particular composition.” Taylor, supra, 419 U.S. at 538 , 95 S.Ct. at 702 ; see also Holland v. Illinois, 493 U.S. 474, 480 , 110 S.Ct. 803, 807 , 107 L.Ed.2d 905 (1990); Sepeda, supra, 196 Colo. at 18 , 581 P.2d at 727 (“There is no requirement ... that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs.”).

2007See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006); State v. Gibbs, 254 Conn. 578 , 758 A.2d 327, 337 (2000); State v. Paz, 118 Idaho 542 , 798 P.2d 1, 7 (1990), overruled in part on other grounds by State v. Card, 121 Idaho 425 , 825 P.2d 1081 (1991).

2007See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006); State v. Gibbs, 254 Conn. 578 , 758 A.2d 327, 337 (2000); State v. Paz, 118 Idaho 542 , 798 P.2d 1, 7 (1990), overruled in part on other grounds by State v. Card, 121 Idaho 425 , 825 P.2d 1081 (1991).