On petition for writ of certiorari to the Supreme Judicial Court
of Massachusetts.
The petition for a writ of certiorari is denied.
Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr.
Justice BRENNAN join, dissenting.
Petitioner was convicted in state court of armed robbery,
assault and battery by means of a dangerous weapon, and assault and
battery with intent to murder. Petitioner and his codefendants were
young Negroes. Their victim was a white, uniformed security guard
employed by Boston University. Petitioner requested the trial judge
to direct a specific question concerning racial prejudice to the
prospective jurors on voir dire. [
Footnote 1] The trial judge refused; instead, he made only
the general inquiry mandated by Massachusetts law, whether members
of the array had 'expressed or formed an opinion, or were sensible
of any bias or prejudice.' The Supreme Judicial Court of
Massachusetts affirmed the conviction. Ross v. Massachusetts,
Mass.,
282
N.E.2d 70 (1972).
Page 414 U.S.
1080 , 1081
Petitioner sought certiorari on the grounds that he had been
denied the opportunity to have the jurors examined as to racial
bias, a right this Court guaranteed in Aldridge v. United States,
283 U.S. 308
(1931). We granted certiorari and remanded for reconsideration in
light of Ham v. South Carolina,
409 U.S. 524, 35 L.E.2d
46 (1973). On remand, the Supreme Judicial Court of Massachusetts
again upheld the conviction. Ross v. Massachusetts, Mass.,
296
N.E.2d 810 (1973).
The importance of the right at issue here-the opportunity to
ascertain the racial bias of the venire-can hardly be gainsaid. The
right to trial by an 'impartial jury' is a cornerstone of our
system of justice.
2
'[T]he right to jury trial guarantees
to the criminally accused a fair trial by a panel of impartial,
'indifferent' jurors. The failure to accord an accused a fair
hearing violates even the minimal standards of due process . . ..
In the language of Lord Coke, a juror must be as 'indifferent as he
stands unsworne.' Co. Litt. 155b. His verdict must be based upon
the evidence developed at the trial. Cf. Thompson v. City of
Louisville,
362 U.S.
199. This is true regardless of the heinousness of the crime
charged, the apparent guilt of the offender, or the station in life
which he occupies. It was so written into our law as early as 1807
by Chief Justice Marshall in 1 Burr's Trial 416 (1807). 'The theory
of the law is that a juror who has formed an opinion cannot be
impartial.' Reynolds v. United States,
98 U.S.
145, 155.' Irvin v. Dowd,
366 U.S.
717, 722 (1961) ( footnote omitted).
Page 414 U.S.
1080 , 1082
Accordingly, in Ham v. South Carolina, Mr. Justice Rehnquist,
writing for a unanimous Court,3 found constitutional error in a
state court trial judge's refusal to propound a specific question
on racial prejudice to the veniremen in the trial of a Negro for
possession of marihuana.4
'The State having created [the]
statutory framework for the selection of juries, the essential
fairness required by the Due Process Clause of the Fourteenth
Amendment requires that under the facts shown by this record the
petitioner be permitted to have the jurors interrogated on the
issue of racial bias.' 409 U.S., at 527.
Nonetheless, on remand, the Massachusetts court read our
decision in Ham as limited by the particular circumstances of that
case-the trial of a civil rights worker in the South. The State
court found that petitioner, unlike Ham, was not likely to be a
'special target for racial prejudice,' and therefore, that the
trial judge did not err in refusing to make the requested
inquiry.
This distinction is supported in neither logic nor precedent.
Mr. Justice Rehnquist explained the basis for the Court's decision
in Ham as follows:
'The inquiry as to racial prejudice
derives its constitutional stature from the firmly established
precedent of Aldridge v. [United States] and the numer-
Page 414 U.S.
1080 , 1083
ous state cases upon which it relied, and from a principal
purpose as well as from the language of those who adopted the
Fourteenth Amendment.' 409 U.S., at 528.
In Aldridge v. United States,
283 U.S. 308 (1931), Mr.
Chief Justice Hughes, writing for the Court, found that the
'essential demands of fairness' required the trial judge to
interrogate veniremen as to racial prejudice in the trial of a
Negro for murdering a white policeman. The Court observed that
'[n]o surer way could be devised to bring the processes of justice
into disrepute' than to 'permit it to be thought that persons
entertaining a disqualifying prejudice were allowed to serve as
jurors and that inquiries designed to elicit the fact of
disqualification were barred.' 283 U.S., at 315, 51 S. Ct. 470.
The Aldridge Court was not concerned with whether petitioner was
unpopular in the community, a special target of prejudice-but
rather with the potential racial 'bias of the particular jurors who
are to try the accused.' 283 U.S., at 314. The Court did not rely
on any particular circumstances to justify its requirements other
than the fact that 'the possibility of prejudice [against Negroes]
is [not] so remote as to justify the risk in forbidding the
inquiry.' Ibid. [
Footnote 5]
Nor did the Court purport to limit its holding to any region
because the 'question is not . . . the dominant sentiment of the
community . . ..' Ibid.
In Ham, this Court reaffirmed its commitment to the holding of
Aldridge and clarified its constitutional underpinnings. The Court
emphasized the compelling nature of an inquiry into racial
prejudice-the principal target of the Fourteenth Amendment. The
Court also indi-
Page 414 U.S.
1080 , 1084
cated the importance of the state cases, of which the Aldridge
Court said:
'The practice of permitting questions
as to racial prejudice is not confined to any section of the
country, and this fact attests to the widespread sentiment that
fairness demands that such inquiries be allowed.' 283 U.S., at
313.
The principle that fairness demands such inquiry is, if
anything, far more pervasive today than it was when Aldridge was
decided, in both federal and state courts. [
Footnote 6]
Yet, the Massachusetts court, by its holding, requires a Negro
defendant to establish that he is a special target for racial
prejudice before being entitled to an inquiry on racial bias during
the voir dire of the jury. In Aldridge, this Court weighed the
government's interests in refusing such a question, where it
observed that:
'If in fact [the jurors] were found
to be impartial, no harm would be done in permitting the question;
but if any one of them was shown to entertain a
Page 414 U.S.
1080 , 1085
prejudice which would preclude his rendering a fair verdict, a
gross in justice would be perpetrated in allowing him to sit.' 283
U.S., at 314.
The state court should not be permitted to restrike that
balance.
Finally, to say that petitioner is not a potential target of
racial prejudice would be to ignore as judges what we must all know
as men. That petitioner was tried in Boston, Massachusetts, while
Gene Ham was tried in Florence, South Carolina, is of no
consequence. Racial prejudice is a cultural malady that has shaped
our history as a nation. It is a cancer of the mind and spirit
which breeds as prolifically in the industrial cities of the North
as in the rural towns of the South. [
Footnote 7] And where, as here and in the strikingly
similar circumstances of the Aldridge case, a Negro is being
accused of an attack on a white policeman, it would be disingenuous
at best to assert that he is not apt to be a particular target of
racial prejudice.
To deny this petition for certiorari is to see our decision in
Ham v. South Carolina stillborn at birth and to write an epitaph
for those 'essential demands of fairness' recognized by this Court
40 years ago in Aldridge. I fear that we 'bring the processes of
justice into disrepute' not only by sanctioning the denial of a
right required by 'essential demands of fairness' but also in
failing to compel compliance by the court below with a precedent of
this Court barely a year since decided. I would grant the
petition.
Footnotes
Footnote 1 The specific
question requested was, 'Are there any of you who believe that a
White person is more likely to be telling the truth than a Black
person?'
Footnote 2 See Peters v.
Kiff,
407 U.S.
493 ( 1972); Witherspoon v. Illinois,
391 U.S. 510 (1968);
Swain v. Alabama,
380
U.S. 202 ( 1965); Irvin v. Dowd,
366 U.S. 717 (1961);
Dennis v. United States,
341 U.S. 494 (1951);
Lewis v. United States,
146 U.S. 370; Pointer v.
United States,
151
U.S. 396 (1894).
Footnote 3 Although the
Court was unaminous on this issue, the author and Mr. Justice
Douglas dissented on another ground.
Footnote 4 In Ham, as in the
case before us, the trial judge asked only the general questions
about bias provided for by statute. This Court observed that while
a trial judge is not required to put the question about racial
prejudice in the exact form suggested by the defendant, the
question must be 'sufficient to focus the attention of prospective
jurors on any racial prejudice they might entertain.' 409 U.S., at
527. The Court found the general questions propounded by the trial
court insufficient to that purpose.
Footnote 5 Cf. Kalven &
Zeisel, The American Jury, 210, 339-344 (1966).
Footnote 6 See United States
v. Carter,
440 F.2d
1132, (CA6 1971); United States v. Gore,
435
F.2d 1110 (CA4 1970); Silverthorne v. United States,
400 F.2d
627 (CA9 1968); King v. United States, 124 U.S.App.D.C. 138,
362 F.2d
968 (1966); Frasier v. United States,
267
F.2d 62 (CA1 1959); Smith v. United States,
262 F.2d
50 (CA4 1958); United States v. Dennis,
183
F.2d 201, 227 Note 35 (CA2 1950), aff'd,
341 U.S. 494 (1951);
Gholston v. State, 221 Ala. 556, 130 So. 69 (1930); State v. Higgs,
143 Conn. 138, 120 A.2d 152 (1956); Pinder v. State, 27 Fla. 370, 8
So. 837 (1898); Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934);
State v. Jones, 175 La. 1014, 144 So. 899 (1932); Giles v. State,
22. Md. 370, 183 A.2d 359 (1962); Owens v. State, 177 Miss. 488,
171 So. 345 (1930); State v. Pyle, 343 Mo. 876, 123 S.W.2d 166
(1938); Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911); People
v. Decker, 157 N.Y. 186, 51 N.E. 1018 (1898); State v. McAfee, 64
N.C. 339 (1870); Fendrick v. State, 39 Tex.Cr. 147, 45 S.W. 589
(1898).
Footnote 7 Cf. Keyes v.
School District No. 1,
413 U.S. 189 (1973)
(desegregation of the Denver, Colo. school system); Bradley v.
Miliken,
484 F.2d
215 (CA6, 1973), cert. granted, 414 U.S. 1038 (1973)
(desegregation of the Detroit, Mich. school system). See generally,
Report of the National Advisory Commission on Civil Disorders
(1968).