Petitioner, a Negro, was convicted in a Texas state court for
murder, notwithstanding his motion to quash the indictment on the
ground that his rights under the Fourteenth Amendment had been
violated by the exclusion of Negroes from the grand jury. The jury
commissioners testified that no Negroes were selected for the grand
jury because they chose jurymen only from people with whom they
were personally acquainted, and they knew no Negroes who were
eligible and available for grand jury service. It also appeared
from that record that, from 1942, when
Hill v. Texas,
316 U. S. 400, was
decided, until petitioner's indictment in 1947, there had been 21
grand juries, on none of which was there more than one Negro, that,
of the 252 members, 17 (or 6.7%) were Negroes, and that about 15.5%
of the population of the county and 6.5% of the eligible voters
were Negroes.
Held: The conviction is reversed. Pp.
282-298.
MR. JUSTICE REED announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR.
JUSTICE CLARK concurred.
Review was sought in this case to determine whether there had
been a violation by Texas of petitioner's federal constitutional
right to a fair and impartial grand jury.
Page 339 U. S. 283
The federal question was raised by a motion to quash the
indictment on the ground that petitioner, a Negro, suffered
unconstitutional discrimination through the selection of white men
only for the grand jury that indicted him. After full hearing, the
trial court denied the motion, and this action was sustained by the
Court of Criminal Appeals of Texas in affirming petitioner's
conviction.
Cassell v. State, 216 S.W.2d 813.
The Court of Criminal Appeals accepted the federal rule that a
Negro is denied the equal protection of the laws when he is
indicted by a grand jury from which Negroes as a race have been
intentionally excluded.
Cassell v. State, supra, 216
S.W.2d 819;
Neal v. Delaware, 103 U.
S. 370,
103 U. S. 394;
Smith v. Texas, 311 U. S. 128,
311 U. S. 130;
Hill v. Texas, 316 U. S. 400,
316 U. S. 404;
Akins v. Texas, 325 U. S. 398,
325 U. S. 403.
It was from an examination of facts that the court deduced its
conclusion that racial discrimination had not been practiced. Since
the result reached may deny a federal right, we may reexamine the
facts to determine whether petitioner has sustained by proof his
allegation of discrimination. [
Footnote 1] Certiorari was granted, 336 U.S. 943, to
consider petitioner's claim that in this case Negroes were omitted
from the list of grand jurymen either because of deliberate
limitation by the Dallas County jury commissioners, or because of
failure by the commissioners to acquaint themselves with available
Negroes.
Acting under the Texas statutes, [
Footnote 2] the Dallas County grand jury commissioners
chose a list of sixteen males [
Footnote 3]
Page 339 U. S. 284
for this September, 1947, grand jury from citizens eligible
under the statute. [
Footnote 4]
The judge chose twelve of these for the panel. [
Footnote 5] No challenge is now made to the
fairness of this statutory system. We have approved it. [
Footnote 6]
Petitioner's attack is upon the way the statutory method of
grand jury selection has been administered by the jury
commissioners. [
Footnote 7] One
charge is that discrimination must have been practiced because the
Negro proportion of grand jurors is less than the Negro proportion
of the county's population. Under the 1940 census, the total
population of Dallas County was 398,564, of whom 61,605 were
Negroes. [
Footnote 8] This is
about 15.5%. In
Page 339 U. S. 285
weighing this matter of custom, we limit ourselves, as do the
parties, to the period between June 1, 1942, when
Hill v.
Texas, supra, was decided, and November, 1947, when petitioner
was indicted. There were 21 grand juries in this period; of the 252
members of the panels, [
Footnote
9] 17, or 6.7% were Negroes. But this apparent discrepancy may
be explained by the fact that Texas grand jurors must possess
certain statutory qualifications. [
Footnote 10] Grand jurors must ordinarily be eligible to
vote; eligibility requires payment of a poll tax; [
Footnote 11] and the validity of the poll
tax requirement is not challenged. The record shows 5,500 current
Negro poll tax payers in Dallas County in 1947, and nothing
indicates that this number varied substantially from year to year.
[
Footnote 12] The
corresponding figure for all poll tax payers, male and female, is
83,667. [
Footnote 13] These
figures would indicate that, as a proportional matter, 6.5% of
grand jurors would be Negroes, a percentage approximating the ratio
of Negroes actually sitting on the 21 grand jury panels. [
Footnote 14] Without
Page 339 U. S. 286
more, it cannot be said that Negroes had been left off grand
jury panels to such a degree as to establish a
prima facie
case of discrimination. [
Footnote 15]
A different question is presented by petitioner's next charge,
that, subsequent to the
Hill case, the Dallas County grand
jury commissioners for 21 consecutive lists had consistently
limited Negroes selected for grand jury service to not more than
one on each grand jury. The contention is that the
Akins
case has been interpreted in Dallas County to allow a limitation of
the number of Negroes on each grand jury, provided the limitation
is approximately proportional to the number of Negroes eligible for
grand jury service. Since the
Hill case, the judges of the
trial court have been careful to instruct their jury commissioners
that discrimination on grounds of race or color is forbidden.
[
Footnote 16] The judge did
so here. [
Footnote 17] If,
notwithstanding this caution by the trial court judges,
commissioners should limit proportionally the number of Negroes
selected for grand jury service, such limitation would violate our
Constitution. Jurymen should be selected as individuals, on the
basis of individual qualifications, and not as members of a
race.
We have recently written why proportional representation of
races on a jury is not a constitutional requisite. [
Footnote 18] Succinctly stated, our reason
was that the Constitution requires only a fair jury selected
without regard to race. Obviously the number of races and
nationalities appearing in the ancestry of our citizens would make
it impossible
Page 339 U. S. 287
to meet a requirement of proportional representation. Similarly,
since there can be no exclusion of Negroes as a race and no
discrimination because of color, [
Footnote 19] proportional limitation is not permissible.
That conclusion is compelled by the United States Code, Title 18, §
243, [
Footnote 20] based on
§ 4 of the Civil Rights Act of 1875. While the language of the
section directs attention to the right to serve as a juror, its
command has long been recognized also to assure rights to an
accused. Prohibiting racial disqualification of Negroes for jury
service, this congressional enactment under the Fourteenth
Amendment, § 5, [
Footnote
21] has been consistently sustained and its violation held to
deny a proper trial to a Negro accused. [
Footnote 22] Proportional racial limitation is
therefore forbidden. An accused is entitled to have charges against
him considered by a jury in the selection of which there has been
neither inclusion nor exclusion because of race.
Our holding that there was discrimination in the selection of
grand jurors in this case, however, is based on another ground. In
explaining the fact that no Negroes appeared on this grand jury
list, the commissioners said that they knew none available who
qualified; at the same time, they said they chose jurymen only from
those people
Page 339 U. S. 288
with whom they were personally acquainted. [
Footnote 23] It may be assumed that, in ordinary
activities in Dallas County, acquaintanceship between the races is
not on a sufficiently familiar basis to give citizens eligible for
appointment as jury commissioners an opportunity to know the
qualifications for grand jury service of many members of another
race. An individual's qualifications for grand jury
Page 339 U. S. 289
service, however, are not hard to ascertain, [
Footnote 24] and, with no evidence to the
contrary, we must assume that a large proportion of the Negroes of
Dallas County met the statutory requirements for jury service.
[
Footnote 25] When the
commissioners were appointed as judicial administrative officials,
it was their duty to familiarize themselves fairly with the
qualifications of the eligible jurors of the county without regard
to race and color. [
Footnote
26] They did not do so here, and the result has been racial
discrimination. We repeat the recent statement of Chief Justice
Stone in
Hill v. Texas, 316 U. S. 400,
316 U. S.
404:
"Discrimination can arise from the action of commissioners who
exclude all negroes whom they do not know to be qualified and who
neither know nor seek to learn whether there are in fact any
qualified to serve. In such a case, discrimination necessarily
results where there are qualified negroes available for jury
service. With the large number of colored male residents of the
county who are literate, and in the absence of any countervailing
testimony, there is no room for inference that there are not among
them householders of good moral character, who can read and write,
qualified and available for grand jury service. "
Page 339 U. S. 290
The existence of the kind of discrimination described in the
Hill case does not depend upon systematic exclusion
continuing over a long period and practiced by a succession of jury
commissioners. Since the issue must be whether there has been
discrimination in the selection of the jury that has indicted
petitioner, it is enough to have direct evidence based on the
statements of the jury commissioners in the very case.
Discrimination may be proved in other ways than by evidence of long
continued unexplained absence of Negroes from many panels. The
statements of the jury commissioners that they chose only whom they
knew, and that they knew no eligible Negroes in an area where
Negroes made up so large a proportion of the population, prove the
intentional exclusion that is discrimination in violation of
petitioner's constitutional rights.
The judgment of the Court of Criminal Appeals of Texas is
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
Norris v. Alabama, 294 U. S. 587,
294 U. S. 590;
Pierre v. Louisiana, 306 U. S. 354,
306 U. S. 358;
Smith v. Texas, 311 U. S. 128,
311 U. S. 130;
Fay v. New York, 332 U. S. 261,
332 U. S.
272.
[
Footnote 2]
Texas Code of Criminal Procedure (Vernon, 1948), Arts.
333-340.
[
Footnote 3]
Id., Art. 338. Under the Texas Constitution and
statutes, women may not serve on Texas juries. Texas Constitution,
Art. 5, § 13;
Harper v. State, 90 Tex.Cr.R. 252, 234 S.W.
909.
[
Footnote 4]
Texas Code of Criminal Procedure (Vernon, 1948):
"Art. 339. . . . No person shall be selected or serve as a grand
juror who does not possess the following qualifications:"
"1. He must be a citizen of the State, and of the county in
which he is to serve, and qualified under the Constitution and laws
to vote in said county; but, whenever it shall be made to appear to
the court that the requisite number of jurors who have paid their
poll taxes can not be found within the county, the court shall not
regard the payment of poll taxes as a qualification for service as
a juror."
"2. He must be a freeholder within the State, or a householder
within the county."
"3. He must be of sound mind and good moral character."
"4. He must be able to read and write."
"5. He must not have been convicted of any felony."
"6. He must not be under indictment or other legal accusation
for theft or of any felony."
[
Footnote 5]
Id., Art. 357.
[
Footnote 6]
Smith v. Texas, supra, p.
311 U. S. 130.
See Zimmerman v. State, 59 A.2d 675, 676-677,
affirmed
under title Zimmerman v. Maryland, 336 U.S. 901;
Fay v.
New York, 332 U. S. 261,
332 U. S. 266,
332 U. S. 272;
Morse, A Survey of the Grand Jury System, Part II, 10 Ore.L.Rev.
217, 226-239.
[
Footnote 7]
There is no suggestion in the case that any judge of the county
trial courts discriminated against Negroes in his selection from
the lists of the members for the grand juries.
[
Footnote 8]
Sixteenth Census of the United States: 1940, Population Volume
II, Part 6, p. 795.
[
Footnote 9]
We use the word "panel" to mean the grand jury which is the
final result of the statutory procedure.
See Texas Code of
Criminal Procedure, Art. 360. The record does not indicate the
number of Negroes who were placed on the lists of sixteen, but did
not serve. All that appears in this connection is that no Negroes
were placed on the list in this case.
[
Footnote 10]
See note 4
supra.
[
Footnote 11]
Texas Constitution, Art. 6, § 2; Vernon's Texas Civil Statutes,
1948, Art. 2955;
Conklin v. State, 144 Tex.Cr.R. 210, 162
S.W.2d 416.
[
Footnote 12]
There is some obscurity in the record as to whether the above
figure of Negro poll tax payers refers to males only, or to men and
women. Tex.Cr.App., 216 S.W.2d 813, 816, 819. The testimony and the
statistics in the briefs cause us to conclude that the figure
refers to all eligible Negro voters.
[
Footnote 13]
Texas Almanac, 1947-1948, p. 421.
[
Footnote 14]
In our computations we have used statistics which include both
men and women, because, in many cases, statistical breakdowns in
terms of sex are not available. Although only men may serve on the
grand juries, the use of totals including both sexes should make
for only minor variations in the percentages.
[
Footnote 15]
Compare Norris v. Alabama, 294 U.
S. 587,
294 U. S. 591;
Pierre v. Louisiana, 306 U. S. 354,
306 U. S. 361;
Smith v. Texas, 311 U. S. 128,
311 U. S. 129;
Hill v. Texas, 316 U. S. 400,
316 U. S.
401-403.
[
Footnote 16]
Akins v. Texas, 325 U. S. 398,
325 U. S.
404.
[
Footnote 17]
Cassell v. State, Tex.Cr.App., 216 S.W.2d 813.
[
Footnote 18]
Akins v. Texas, supra, 325 U. S.
403.
[
Footnote 19]
Neal v. Delaware, 103 U. S. 370,
103 U. S. 394;
Akins v. Texas, supra, 325 U. S.
404.
[
Footnote 20]
"No citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State on
account of race, color, or previous condition of servitude; and
whoever, being an officer or other person charged with any duty in
the selection or summoning of jurors, excludes or fails to summon
any citizen for such cause, shall be fined not more than
$5,000."
[
Footnote 21]
"Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
[
Footnote 22]
See Neal v. Delaware, supra, 103 U. S.
385-386;
Hill v. Texas, supra, 316 U. S. 404;
Fay v. New York, supra, 332 U. S.
284.
[
Footnote 23]
One commissioner said:
"I was not personally acquainted with any negro citizen of
Dallas County that I thought was qualified to sit on the Grand
Jury, at that time. I did not know a one personally that I would
recommend, myself, at that time."
". . . The reason that I did not submit the name of a negro in
my 6 names that I submitted was because I did not know any negro
citizen that I felt was qualified with reference to education and
business ability to serve on this Grand Jury."
Another said:
"We did not select a negro when I served as a Commissioner; we
did disregard color, race or creed; I did not know plenty of
negroes that I said would be qualified. I know a lot of negroes
that are qualified lawyers, doctors, superintendents of schools and
that sort of thing but the particular thing is that their
occupation precludes their serving. You could not ask a doctor or
lawyer to serve 3 months of their time, either white or colored;
that limited us as to the number that we could select. I knew a lot
of white and colored people that were qualified."
"I did not select a negro on this Grand Jury Panel, but I
tried." This commissioner had sought a Negro highschool principal
for the list.
The third said:
"The reason a negro was not selected was not because we
discriminated; I only appointed those that I personally knew to be
qualified."
"
* * * *"
"If the name of any qualified negro citizen -- been submitted at
that time, who had given his permission and said that he had time
to serve, I certainly would have submitted his name along with the
other 15 names, if it was somebody that would have been acceptable
to me."
[
Footnote 24]
See Texas Code of Criminal Procedure, Arts. 339,
355.
In large centers, methods of selection other than personal
acquaintanceship have been found convenient.
Fay v. New
York, 332 U. S. 261.
[
Footnote 25]
Pierre v. Louisiana, 306 U. S. 354,
306 U. S.
360.
[
Footnote 26]
Smith v. Texas, supra, 311 U. S.
131-132. There was a further discussion of the duty of
jury commissioners to familiarize themselves with jury eligibles in
Hill v. State, 144 Tex.Cr.R. 415, 418, 157 S.W.2d 369,
371. The commissioners' lack of acquaintance with available Negroes
was not deemed sufficient by the state court to justify reversal.
We disagreed, and reversed.
316 U. S. 400.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON and MR. JUSTICE
MINTON join, concurring in the judgment.
It has been settled law since 1880 that the Civil War Amendments
barred the States from discriminating because of race in the
selection of juries, whether grand or petty. As a result, a
conviction cannot stand which is based on an indictment found by a
grand jury from which Negroes were kept because of discrimination.
Neal v. Delaware, 103 U. S. 370;
Pierre v. Louisiana, 306 U. S. 354. We
ought not to reverse a course of decisions of long standing
directed against racial discrimination in the administration of
justice. But discrimination in this
Page 339 U. S. 291
context means purposeful, systematic noninclusion because of
color.
Hill v. Texas, 316 U. S. 400. It
does not mean an absence of proportional representation of the
various racial components of the relevant political unit from which
a grand jury is drawn or an isolated instance of disparity among
such components.
Akins v. Texas, 325 U.
S. 398,
325 U. S. 403;
Fay v. New York, 332 U. S. 261,
332 U. S. 284.
Assuming that the grand jury pool fairly enough reflects the racial
composition of the community, there is no basis for a claim of
constitutional discrimination if without design it comes to pass
that a particular grand jury has no representation of a particular
race. The Civil War Amendments did not deprive the States of their
power to define qualifications for grand jury service relevant to
the functions of a grand jury, nor did they turn matters that are
inherently incommensurable into mere matters of arithmetic. The
Constitution has not withdrawn the administration of criminal
justice, of which the jury system is a part, from the States. It
does command that no State purposefully make jury service turn on
color.
A claim that the constitutional prohibition of discrimination
was disregarded calls for ascertainment of two kinds of issues
which ought not to be confused by being compendiously called
"facts." The demonstrable, outward events by which a grand jury
came into being raise issues quite different from the fair
inferences to be drawn from what took place in determining the
constitutional question: was there a purposeful noninclusion of
Negroes because of race or a merely symbolic representation, not
the operation of an honest exercise of relevant judgment or the
uncontrolled caprices of chance?
This Court does not sit as a jury to weigh conflicting evidence
on underlying details, as for instance what steps were taken to
make up the jury list, why one person was rejected and another
taken, whether names were
Page 339 U. S. 292
picked blindly or chosen by judgment. This is not the place for
disputation about what really happened. On that, we accept the
findings of the State court. But it is for this Court to define the
constitutional standards by which those findings are to be judged.
Thereby, the duty of securing observance of these standards may
fall upon this Court. The meaning of uncontrovertible facts in
relation to the ultimate issue of discrimination is precisely the
constitutional issue on which this Court must pass.
See Watts
v. Indiana, 338 U. S. 49,
338 U. S. 50-51.
Of course even as to this, as always when a State court judgment is
claimed to be in disregard of the Constitution, appropriate respect
should be given to the judgment of the State court. And so we are
brought to this case.
If the record here showed no more than that the grand jury
commissioners had considered the Negroes with whom they were
acquainted -- just as they considered white persons whom they knew
-- and had found them to be either unqualified for grand jury
service or qualified but unavailable, and did so not designedly to
exclude Negroes, the State court's validation of the local
procedure would have to prevail. We ought not to go behind such a
conscientious process, however rough and ready the procedure of
selection by jury commissioners. To find in such honest, even if
pragmatic, selection of grand jurors the operation of
unconstitutional standards would turn this Court into an agency for
supervising the criminal procedure of the forty-eight States. Such
an assumption of authority by this Court would jeopardize the
practical functioning of grand juries throughout the country in
view of the great variety of minority groups that compose our
society.
A different situation would be presented by an unquestioned
showing that jury commissioners had such a limited personal
knowledge of potentially qualified Negro jurors that their
purposeful limitation of choice to the
Page 339 U. S. 293
negligibly few Negroes known to them would inevitably imply
designed exclusion of eligible Negroes. The record here affords no
basis whatever for such a finding. It indicates the contrary.
The record does disclose stark facts requiring reversal on a
very different basis. If one factor is uniform in a continuing
series of events that are brought to pass through human
intervention, the law would have to have the blindness of
indifference, rather than the blindness of impartiality, not to
attribute the uniform factor to man's purpose. The purpose may not
be of evil intent or in conscious disregard of what is conceived to
be a binding duty. Prohibited conduct may result from misconception
of what duty requires. Such misconception I believe to be the real
situation on the record before us.
The governing facts are briefly stated. In
Hill v. Texas,
supra, this Court found discrimination in the selection of
grand jurors in Dallas County, Texas, by virtue of the fact that,
despite a large number of Negroes qualified for grand jury service,
none had been drawn. In the course of the five and a half years
between that decision and the time of the drawing of the grand jury
which found the indictment now challenged, there were twenty-one
grand jury panels. [
Footnote 2/1]
On each of these twenty-one consecutive panels, there was never
more than one Negro. This selection was made from lists which were
not the result of a drawing of lots, but the personal choice of the
grand jury commissioners. The available evidence clearly indicates
that no more than one Negro was chosen by the commissioners for
each of the twenty-one lists. Only one Negro was placed on the list
-- he did not serve on the
Page 339 U. S. 294
panel -- for the second grand jury in Dallas County after the
decision in
Hill v. Texas. Again, as to the grand jury
which figured in
Akins v. Texas, supra, only one Negro was
placed on the list, and he served as a grand juror. 325 U.S. at
325 U. S. 405.
And in
Weems v. State, 148 Tex.Crim. 154, 157, 185 S.W.2d
431, 433, it was stipulated that only one Negro, who did not serve
on the panel, was on the list. In the present case, it is conceded
that no Negro was placed on the list. The State makes no contrary
claim as to any of the other grand jury lists, though the facts
regarding them are peculiarly within the State's knowledge. In view
of this background, the assumption that more than one Negro was
placed on the lists is inconceivable.
To assume that the commissioners did tender to the judges lists
containing more than one Negro would lead inescapably to the
conclusion that the judges systematically discriminated against
Negroes. This is so because it just does not happen that, from
lists of sixteen, it is always Negroes (barring one) that judges
unpurposefully reject. I cannot attribute such discrimination to
the trial judges of Dallas County. I can decline to attribute such
discrimination to these judges only by concluding that the judges
were never given the opportunity to select more than one Negro.
The grand jury commissioners here received instructions from the
judge not to "discriminate," and I have no doubt that they tried
conscientiously to abide by them. The difficulty lies in what they
conceived to be the standard for determining discrimination, as
revealed by their action. The number of Negroes both qualified and
available for jury service in Dallas County precluded such uniform
presence of never more than one Negro on any other basis of good
faith than that the commissioners were guided by the belief that
one Negro on the grand jury satisfied the prohibition against
discrimination in
Page 339 U. S. 295
Hill v. Texas. That this was their view is compelled by
their testimony at the hearing on the motion to quash the
indictment. [
Footnote 2/2]
This is, of course, a misconception. The prohibition of the
Constitution against discrimination because of color does not
require, in and of itself, the presence of a Negro on a jury. But
neither is it satisfied by Negro representation arbitrarily limited
to one. It is not a question of presence on a grand jury, nor
absence from it. The basis of selection cannot consciously take
color into account. Such is the command of the Constitution. Once
that restriction upon the State's freedom in devising and
administering its jury system is observed, the States are masters
in their own household. If it is observed, they cannot be charged
with discrimination because of color, no matter what the
composition of a grand jury may turn out to be.
On this record, I cannot escape the conclusion that the judgment
below is not based on an allowable finding of
Page 339 U. S. 296
facts behind which this Court cannot go. It derives from the
ultimate constitutional significance of undisputed facts. These
bear no other rational meaning than purposeful discrimination. It
does not neutralize the discrimination that it may well have been
due to a misconception by the grand jury commissioners of the
requirements of this Court's decisions.
This compels reversal of the judgment.
[
Footnote 2/1]
I use the term "panel," as does MR. JUSTICE REED in his opinion,
to mean the grand jury of twelve selected from the list of sixteen
persons tendered to the judge by the grand jury commissioners.
[
Footnote 2/2]
The following is a fair compilation of the testimony of the
three grand jury commissioners on this point:
". . . it was discussed in the Jury Room [among] us
Commissioners that an effort had been made to secure a negro for
the Grand Jury. . . ."
"The reason that a negro was not put on this Grand Jury was not
because I had not made an effort to secure one. . . ."
"I did not select a negro on this Grand Jury Panel, but I
tried."
"As far as I know, there was not a negro on the October, 1947,
Term of Grand Jury; I have never seen them in a body. When the
information came to me, I tried to contact a negro. . . ."
"The reason a negro was not selected was not because we
discriminated. . . ."
"If the name of any qualified negro citizen [had] been submitted
at that time, who had given his permission and said that he had
time to serve, I certainly would have submitted his name along with
the 15 other names, if it was somebody that would have been
acceptable to me."
MR. JUSTICE CLARK, concurring.
For the reasons stated by MR. JUSTICE JACKSON, it seems to me
quite doubtful as an original issue whether a conviction should be
reversed because of purposeful exclusion of the members of a race
from the grand jury which returned the indictment. However, I think
we must adhere to the settled course of decision by this Court with
respect to such exclusion.
I am unable to conclude that, from the date of the decision in
Hill v. Texas, 316 U. S. 400
(1942), to the date of the trial of this case, there has been
purposeful systematic limitation of the number of Negroes on grand
juries in Dallas County. The only evidence relied upon to establish
such limitation is with regard to the composition of the twenty-one
grand juries, including the jury returning the indictment of
petitioner, which were impaneled during this period. But each of
these grand juries of twelve persons was selected by a judge from a
list of sixteen persons prepared by commissioners. The record shows
only those Negroes who have actually served on the grand juries and
not those who were on the commissioners' lists. We cannot conclude
that there has been uniformity as to race in the selections of
commissioners when we do not know how many Negroes have been on
their lists. Even if judicial notice is taken of the racial
composition of three lists during the period in question, which are
reported in
Akins v.
Texas,
Page 339 U. S. 297
U.S. 398, 405 (1945), and in
Weems v. State, 148
Tex.Crim. 154, 157, 185 S.W.2d 431, 433 (1945), there remain
sixty-eight persons on the lists whose race is not ascertainable
from the record or from any concession of counsel. Nor do I think
that alternatively we are compelled by the statistics relied upon
by petitioner to conclude that the judges purposefully
discriminated during this period. Any presumption as to the purpose
of the judges, or of the commissioners whom the judges appointed,
instructed and supervised, must be that they intended no racial
limitation. And the testimony of the judge who impaneled the grand
jury in this case and a number of other grand juries during the
period under review, as well as the testimony of the commissioners
in this case as to the judge's instructions to them, indicates that
he has not purposefully limited participation on account of race.
In the face of this presumption and testimony, I think that, even
if there was more than one Negro on each of the commissioners'
list, we could not infer any purpose on the part of the judges to
limit Negro participation solely because of race. The burden of
showing facts which permit an inference of purposeful limitation is
on the defendant.
Martin v. Texas, 200 U.
S. 316 (1906). I do not find the present record
persuasive that there was such limitation.
The difficulties facing grand jury commissioners are well
illustrated by this case. On the one hand, they are told that
purposeful discrimination is inferred from the available statistics
during the previous five and one-half years, showing that no more
than one Negro was chosen for each of 21 grand juries; that this
indicates that the commissioners must have been guided by the
misconceived view that the presence of one Negro on the grand jury
satisfied constitutional requirements. But they are also told quite
properly that a token representation of a race on a grand jury is
not a constitutional requisite; that
Page 339 U. S. 298
in fact it may reach the point of illegality; that
representation on the grand jury by race in proportion to
population is not permissible, for there must be "neither inclusion
nor exclusion because of race." Under these circumstances, one may,
like Job's comforter, only add to the commissioners' distress by
writing further. But it does appear to me from this record that
their responsibility is broader than they understood it to be. They
frankly stated that, in making up the list, they discussed only
those persons whom they knew personally, and that they considered
only one Negro, a school principal who could not serve. The record
indicates clearly that there were Negroes qualified and available
whom the commissioners did not know but whom upon inquiry they
should have considered. Their responsibility was to learn whether
there were persons among the Negroes they did not know who were
qualified and available for service.
Hill v. Texas,
316 U. S. 400
(1942);
Smith v. Texas, 311 U. S. 128
(1940). The elimination of this large group in the community from
the commissioners' consideration deprived petitioner of
constitutional safeguards as defined in the decisions of this
Court. For this reason, I concur in the opinion of MR. JUSTICE REED
and in the judgment of reversal.
MR. JUSTICE JACKSON, dissenting.
The case before us is that of a Negro convicted of murder by
crushing the skull of a sleeping watchman with a piece of iron pipe
to carry out a burglary. No question is here as to his guilt. We
are asked to order his release from this conviction upon the sole
ground that Negroes were purposefully discriminated against in
selection of the grand jury that indicted him. It is admitted that
Negroes were not excluded from the trial jury by which he was
convicted.
Page 339 U. S. 299
In setting aside this conviction, the Court is moved by a desire
to enforce equality in that realm where, above all, it must be
enforced -- in our judicial system. But this conviction is reversed
for errors that have nothing to do with the defendant's guilt or
innocence, or with a fair trial of that issue. This conflicts with
another principle important to our law,
viz., that no
conviction should be set aside for errors not affecting substantial
rights of the accused.
This Court has never weighed these competing considerations in
cases of this kind. The use of objections to the composition of
juries is lately so much resorted to for purposes of delay,
however, and the spectacle of a defendant putting the grand jury on
trial before he can be tried for a crime is so discrediting to the
administration of justice, that it is time to examine the basis for
the practice.
I
It is the command of the Fourteenth Amendment that Negro
citizens be afforded the same opportunities to serve upon grand
juries as are afforded white citizens. Moreover, Congress, which is
authorized to provide for its enforcement, has enacted that
"no citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State, on
account of race, color, or previous condition of servitude. . .
."
Act of March 1, 1875, c. 114, § 4, 18 Stat. 336, 62 Stat. 696,
18 U.S.C. § 243.
The substantive right is thus clear. But whose right is it? The
right is conferred upon the qualified colored citizen to serve on
equal terms with the qualified white citizen. This defendant is not
here asking that right for himself. He claims that failure to give
other Negroes an equal right to sit on the grand jury gives him
quite
Page 339 U. S. 300
a different right -- a right not to be indicted by it. Two
reasons occur to me which could justify this Court in translating
the wrong to those Negroes excluded from a grand jury into a right
of this defendant to void an indictment. One is that the absence of
Negroes on the grand jury prejudiced this defendant. The other is
that it is the only practicable method for enforcing the right of
qualified Negroes to serve on grand juries. It is doubtful if
either of these can be sustained.
II
Congress, which has implemented the right of Negroes to serve on
juries, had also commanded all United States Courts to give
judgment "without regard to technical errors, defects, or
exceptions which do not affect the substantial rights of the
parties." [
Footnote 3/1] And this
same congressional policy was manifested in a provision directing
that no indictment found and presented by a grand jury in United
States Courts
"shall be deemed insufficient, nor shall the trial, judgment, or
other proceeding thereon be affected by reason of any defect or
imperfection in matter of form only, which shall not tend to the
prejudice of the defendant; [
Footnote
3/2]"
and also in the provision that a
Page 339 U. S. 301
motion to quash an indictment shall fail where the ground is
that one or more members of the grand jury were unqualified, but
where it appears that twelve or more qualified jurors concurred in
the finding of the indictment. [
Footnote 3/3]
This Court never has explained how discrimination in the
selection of a grand jury, illegal though it be, has prejudiced a
defendant whom a trial jury, chosen with no discrimination, has
convicted. The reason this question was not considered, perhaps, is
that, in the earlier cases where convictions were set aside, the
discrimination condemned was present in selecting both grand and
trial jury and, while the argument was chiefly based on the latter,
the language of the opinions made no differentiation, nor for their
purpose did they need to.
Cf. Strauder v. West Virginia,
100 U. S. 303;
Neal v. Delaware, 103 U. S. 370;
see also Bush v. Kentucky, 107 U.
S. 110;
Gibson v. Mississippi, 162 U.
S. 565;
Hale v. Kentucky, 303 U.
S. 613. Only within the last few years have convictions
been set aside for discrimination in composition of the grand jury
alone, and, in these, the question now under consideration was not
discussed.
Pierre v. Louisiana, 306 U.
S. 354;
Smith v. Texas, 311 U.
S. 128;
Hill v. Texas, 316 U.
S. 400.
It is obvious that discriminatory exclusion of Negroes from a
trial jury does, or at least may, prejudice a Negro's right to a
fair trial, and that a conviction so obtained should not stand. The
trial jury hears the evidence of both sides and chooses what it
will believe. In so deciding, it is influenced by imponderables --
unconscious and conscious prejudices and preferences -- and a
thousand things we cannot detect or isolate in its verdict and
whose
Page 339 U. S. 302
influence we cannot weigh. A single juror's dissent is generally
enough to prevent conviction. A trial jury on which one of the
defendant's race has no chance to sit may not have the substance,
and cannot have the appearance, of impartiality, especially when
the accused is a Negro and the alleged victim is not.
The grand jury is a very different institution. The States are
not required to use it at all.
Hurtado v. California,
110 U. S. 516. Its
power is only to accuse, not to convict. Its indictment does not
even create a presumption of guilt; all that it charges must later
be proved before the trial jury, and then beyond a reasonable
doubt. The grand jury need not be unanimous. It does not hear both
sides, but only the prosecution's evidence, and does not face the
problem of a choice between two adversaries. Its duty is to indict
if the prosecution's evidence, unexplained, uncontradicted and
unsupplemented, would warrant a conviction. If so, its indictment
merely puts the accused to trial. The difference between the
function of the trial jury and the function of the grand jury is
all the difference between deciding a case and merely deciding that
a case should be tried.
It hardly lies in the mouth of a defendant whom a fairly chosen
trial jury has found guilty beyond reasonable doubt, to say that
his indictment is attributable to prejudice. In this case, a trial
judge heard the prosecution's evidence, ruled it sufficient to
warrant a conviction, appellate courts have held the same, and no
further question about it is before us. Moreover, a jury admittedly
chosen without racial discrimination has heard the prosecution's
and defendant's evidence and has held that guilt beyond a
reasonable doubt has been proved. That finding, too, has been
affirmed on appeal, and is not here. Under such circumstances, it
is frivolous to contend that any grand jury, however constituted,
could have done its duty in any way other than to indict.
Page 339 U. S. 303
III
Congress has provided means other than release of convicted
defendants to enforce this right of the Negro community to
participate in grand jury service; and they are, if used, direct
and effective remedies to accomplish this purpose.
"[W]hoever, being an officer or other person charged with any
duty in the selection or summoning of jurors, excludes or fails to
summon any citizen" because of his color or race has committed a
federal crime, and is subject to a fine of not more than $5,000. 62
Stat. 696, 18 U.S.C. § 243.
Congress has also provided that
"every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at
law, suit in equity, or other proper proceedings for
redress."
17 Stat. 13, 8 U.S.C. § 43. (Emphasis supplied.)
These criminal and civil remedies for discriminatory exclusions
from the jury have been almost totally neglected both by the
Federal Government and by Negro citizens entitled to sit as jurors.
Back in 1878, a state judge was indicted in federal court for
violation of the Act, and this Court sustained it.
Ex parte
Virginia, 100 U. S. 339.
That case has been allowed to stand as solitary and neglected
authority for direct enforcement of the Negro's right to sit on
juries.
Qualified Negroes excluded by discrimination have available, in
addition, remedies in courts of equity. I suppose there is no
doubt, and if there is, this Court can dispel it, that a citizen or
a class of citizens unlawfully
Page 339 U. S. 304
excluded from jury service could maintain in a federal court an
individual or a class action for an injunction or mandamus against
the state officers responsible.
Cf. Hague v. Committee for
Industrial Organizations, 307 U. S. 496;
Douglas v. Jeannette, 319 U. S. 157;
Morris v. Williams, 149 F.2d 703;
Myerson v.
Samuel, 74 F. Supp. 315;
Roles v. School Board, 61 F.
Supp. 395. If the order were evaded or disobeyed, imprisonment for
contempt could follow.
IV
It is implicit in the Court's decision that the federal penal
statute, 18 U.S.C. § 243,
supra, has been violated. So, in
effect, it holds that the crime of discrimination offsets the crime
of murder, and that the State must start over again, if death of
witnesses, loss of evidence or other conditions wrought by time do
not prevent.
I do not see how this Court can escape the conclusion that any
discrimination in selection of the grand jury in this case, however
great the wrong toward qualified Negroes of the community, was
harmless to this defendant. To conclude otherwise is to assume that
Negroes qualified to sit on a grand jury would refuse even to put
to trial a man whom a lawfully chosen trial jury found guilty
beyond a reasonable doubt.
The Negro's right to be selected for grand jury service is
unquestionable, and should be directly and uncompromisingly
enforced. But I doubt if any good purpose will be served in the
long run by identifying the right of the most worthy Negroes to
serve on grand juries with the efforts of the least worthy to defer
or escape punishment for crime. I cannot believe that those
qualified for grand jury service would fail to return a true bill
against a murderer because he is a Negro. But unless they would,
this defendant has not been harmed.
Page 339 U. S. 305
I would treat this as a case where the irregularity is not shown
to have harmed this defendant, and affirm the conviction. But, in
this and similar cases, I would send a copy of the record to the
Department of Justice for investigation as to whether there have
been violations of the statute and, if so, for prosecution.
[
Footnote 3/1]
The quoted language appeared in 40 Stat. 1181, 28 U.S.C. § 391
(1940 ed.). This provision was repealed in the revision of the
Judicial Code in 1948, Act of June 25, 1948, c. 646, § 39, 62 Stat.
992, 998, apparently because it had been embodied in Rule 52(a),
Federal Rules of Criminal Procedure,
see Note of the
Advisory Committee following Rule 52(a); but was partially
reenacted by Act of May 24, 1949, c. 139, § 110, 63 Stat. 105, and
now appears as § 2111, 28 U.S.C. (Supp. III, 1950).
[
Footnote 3/2]
17 Stat. 198, 18 U.S.C. § 556 (1940), repealed in the 1948
revision of the Criminal Code, Act of June 25, 1948, c. 645, § 21,
62 Stat. 862, 866, apparently for the reason that it had been
incorporated in Rules 6 and 52, Federal Rules of Criminal
Procedure.
See Notes of Advisory Committee following Rules
6 and 52.
[
Footnote 3/3]
48 Stat. 649, 18 U.S.C. § 554a (1940 ed.), repealed by Act of
June 25, 1948, c. 645, § 21, 62 Stat. 862, 866, apparently because
of its incorporation into Rule 6(b)(2), Federal Rules of Criminal
Procedure.
See Note of advisory Committee following Rule
6(b)(2).