Petitioner, a white male, was indicted on federal fraud charges.
Prior to trial, he moved for dismissal of the indictment on the
ground that there was discrimination in the grand jury selection
process in violation of the Due Process Clause of the Fifth
Amendment. At a hearing on the motion to dismiss, petitioner
introduced testimony of a statistical social science consultant
showing that, for a 7-year period prior to petitioner's indictment,
none of the 15 grand juries empaneled had had a Negro or female
foreman, and that, of the 15 deputy foremen appointed, only 3 had
been Negroes and 6 had been women. The District Court denied the
motion to dismiss, and petitioner was convicted after a jury trial.
The Court of Appeals affirmed.
Held: Assuming that discrimination entered into the
selection of grand jury foremen, such discrimination does not
warrant reversal of petitioner's conviction and dismissal of the
indictment against him. Pp.
468 U. S.
342-350.
(a) Discrimination in the selection of grand jury foremen -- as
distinguished from discrimination in the selection of the grand
jury itself -- does not in any sense threaten the interests of a
defendant protected by the Due Process Clause. Unlike the grand
jury itself, the office of grand jury foreman is not a creature of
the Constitution, but, instead, was originally instituted by
statute for the convenience of the court. The responsibilities of a
federal grand jury foreman are essentially clerical in nature --
administering oaths, maintaining records, and signing indictments.
Given its ministerial nature, the role of foreman is not so
significant to the administration of justice that discrimination in
the selection of the foreman has any appreciable effect on the
defendant's due process right to fundamental fairness. And so long
as the composition of a federal grand jury as a whole serves the
defendant's due process interest in assuring that the grand jury
includes persons with a range of experiences and perspectives,
discrimination in the selection of the foreman does not impinge
such interest. Pp.
468 U. S.
342-346.
(b) An assumption that discrimination in the selection of a
grand jury foreman requires the setting aside of a conviction is
not warranted here, where a white male is challenging on due
process grounds the selection of the foreman of a federal grand
jury.
Rose v. Mitchell, 443 U. S. 545,
distinguished. Pp.
468 U. S.
346-349.
Page 468 U. S. 340
(c) This Court declines petitioner's invitation to embark,
pursuant to its supervisory power over the federal courts, upon a
course of vacating convictions because of discrimination in the
selection of grand jury foremen. Pp.
468 U. S.
349-350
702 F.2d 466, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
STEVENS, JJ., joined,
post, p.
468 U. S. 350.
STEVENS, J., filed a dissenting opinion,
post, p.
468 U. S.
362.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits
as to whether discrimination in the selection of federal grand jury
foremen, resulting in the underrepresentation of Negroes and women
in that position, requires reversal of the conviction of a white
male defendant and dismissal of the indictment against him.
I
Petitioner, a white male, was indicted on one count of
conspiring to defraud the United States of funds appropriated under
the Comprehensive Employment and Training Act of 1973, 29 U.S.C. §
801
et seq. (CETA), in violation of 18 U.S.C. §§ 371 and
665, and three counts of fraudulently obtaining
Page 468 U. S. 341
and misapplying CETA grant funds, in violation of 18 U.S.C. §
665. Prior to trial in the United States District Court for the
Eastern District of North Carolina, petitioner moved for dismissal
of the indictment against him "due to improper selection of grand
jurors." App. 32. In particular, he alleged that the grand jury
selection plan
"exclude[d] citizens from service . . . on account of race,
color, economic status and occupation, in violation of . . . the
Fifth and Sixth Amendments of the United States Constitution."
Id. at 33.
At an evidentiary hearing on the motion to dismiss, petitioner
introduced the testimony of a statistical social science consultant
regarding the characteristics of the persons selected as grand jury
foremen or deputy foremen in the Eastern District of North Carolina
between 1974 and 1981. The expert witness reported that none of the
15 grand juries empaneled during this 7-year period had had a Negro
or female foreman. Of the 15 deputies appointed during this
interval, so this expert testified, 3 had been Negroes and 6 had
been women. From these data, the expert witness concluded that
Negroes and women were underrepresented among grand jury foremen
and deputy foremen serving in the Eastern District of North
Carolina. Rejecting petitioner's claim of discrimination in the
selection process, the District Court denied petitioner's motion to
dismiss the indictment, and petitioner was convicted after a jury
trial.
The United States Court of Appeals for the Fourth Circuit
affirmed. 702 F.2d 466 (1983). Reasoning that the foreman of a
federal grand jury performs a strictly ministerial function, the
Court of Appeals viewed the foreman's impact upon the justice
system and the rights of criminal defendants as minimal and
incidental, at most. In response to petitioner's contention that
appointment as foreman may enlarge an individual's capacity to
influence the other grand jurors, the Court of Appeals concluded
that this likelihood was too vague and speculative to warrant
dismissals of indictments and reversals of convictions.
Page 468 U. S. 342
The Court of Appeals recognized that, in
Rose v.
Mitchell, 443 U. S. 545,
443 U. S.
551-552, n. 4 (1979), this Court assumed without
deciding that discrimination in the selection of the foreman of a
state grand jury would require that a subsequent conviction be set
aside. The Court of Appeals noted, however, that the function of
the grand jury foreman in the federal system differs substantially
from the role of the grand jury foreman in the states. The court
concluded that the rights of defendants are fully protected by
assuring that the composition of the federal grand jury as a whole
is not the product of discriminatory selection.
We granted certiorari to resolve a conflict among the Circuits
on this issue, [
Footnote 1] 464
U.S. 1017 (1983), and we affirm.
II
A
It is well settled, of course, that purposeful discrimination
against Negroes or women in the selection of federal grand jury
foremen is forbidden by the Fifth Amendment to the Constitution.
The question presented here, however, is the narrow one of the
appropriate remedy for such a violation. It is only the narrow
question of the remedy that we consider. No factual evidence was
presented to the District Court on the issue of discrimination;
instead, petitioner relied
Page 468 U. S. 343
upon inferences to be drawn from the failure to select a woman
or Negro as foreman of the grand jury for the seven years studied.
As did the Court of Appeals, we proceed on the assumption that
discrimination occurred in order to treat the constitutional issue
presented by the motion to dismiss.
Invoking the Due Process Clause of the Fifth Amendment,
petitioner argues that discrimination in the selection of grand
jury foremen requires the reversal of his conviction and dismissal
of the indictment against him. In
Peters v. Kiff,
407 U. S. 493
(1972), the opinion announcing the judgment discussed the due
process concerns implicated by racial discrimination in the
composition of grand and petit juries as a whole. Emphasizing the
defendant's due process right to be fairly tried by a competent and
impartial tribunal,
see In re Murchison, 349 U.
S. 133,
349 U. S. 136
(1955), the opinion reasoned that unconstitutionally discriminatory
jury selection procedures create the appearance of institutional
bias, because they "cast doubt on the integrity of the whole
judicial process." 407 U.S. at
407 U. S. 502.
Moreover, the opinion perceived an important societal value in
assuring diversity of representation on grand and petit juries:
"When any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from the jury
room qualities of human nature and varieties of human experience,
the range of which is unknown and perhaps unknowable. It is not
necessary to assume that the excluded group will consistently vote
as a class in order to conclude, as we do, that its exclusion
deprives the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented."
Id. at
407 U. S.
503-504 (footnote omitted). [
Footnote 2]
Page 468 U. S. 344
Discrimination in the selection of grand jury foremen -- as
distinguished from discrimination in the selection of the grand
jury itself -- does not in any sense threaten the interests of the
defendant protected by the Due Process Clause. Unlike the grand
jury itself, the office of grand jury foreman is not a creature of
the Constitution; instead, the post of foreman was originally
instituted by statute for the convenience of the court.
See 28 U.S.C. § 420 (1934 ed.); Rev.Stat. § 809 (1878).
Today, authority for the appointment of a grand jury foreman is
found in Federal Rule of Criminal Procedure 6(c), which
provides:
"The court shall appoint one of the jurors to be foreman and
another to be deputy foreman. The foreman shall have power to
administer oaths and affirmations and shall sign all indictments.
He or another juror designated by him shall keep a record of the
number of jurors concurring in the finding of every indictment and
shall file the record with the clerk of the court, but the record
shall not be made public except on order of the court. During the
absence of the foreman, the deputy foreman shall act as
foreman."
Rule 6(c) has somewhat ancient roots, cast as it is in what are
now obsolete terms: foreman and deputy foreman. Centuries of usage,
relating back to a day when women did not serve on juries, have
embedded such terms in the law as in our daily vocabulary. However,
it is not for us to amend the Rule outside the processes fixed by
Congress for rulemaking; that is a task for the appropriate
committees and the Judicial Conference of the United States.
As Rule 6(c) illustrates, the responsibilities of a federal
grand jury foreman are essentially clerical in nature:
administering
Page 468 U. S. 345
oaths, maintaining records, and signing indictments. The secrecy
imperative in grand jury proceedings demands that someone "mind the
store," just as a secretary or clerk would keep records of other
sorts of proceedings. But the ministerial trappings of the post
carry with them no special powers or duties that meaningfully
affect the rights of persons that the grand jury charges with a
crime, beyond those possessed by every member of that body. The
foreman has no authority apart from that of the grand jury as a
whole to act in a manner that determines or influences whether an
individual is to be prosecuted. Even the foreman's duty to sign the
indictment is a formality, for the absence of the foreman's
signature is a mere technical irregularity that is not necessarily
fatal to the indictment.
Frisbie v. United States,
157 U. S. 160,
157 U. S.
163-165 (1895).
As the Court of Appeals noted, the impact of a federal grand
jury foreman upon the criminal justice system and the rights of
persons charged with crime is "minimal and incidental, at best."
702 F.2d at 471. Given the ministerial nature of the position,
discrimination in the selection of one person from among the
members of a properly constituted grand jury can have little, if
indeed any, appreciable effect upon the defendant's due process
right to fundamental fairness. Simply stated, the role of the
foreman of a federal grand jury is not so significant to the
administration of justice that discrimination in the appointment of
that office impugns the fundamental fairness of the process itself
so as to undermine the integrity of the indictment.
Nor does discrimination in the appointment of grand jury foremen
impair the defendant's due process interest in assuring that the
grand jury includes persons with a range of experiences and
perspectives. The due process concern that no "large and
identifiable segment of the community [be] excluded from jury
service,"
Peters v. Kiff, 407 U.S. at
407 U. S. 503,
does not arise when the alleged discrimination pertains only to the
selection of a foreman from among the members of a properly
constituted federal grand jury. That the grand
Page 468 U. S. 346
jury in this case was so properly constituted is not questioned.
No one person can possibly represent all the "qualities of human
nature and varieties of human experience,"
ibid., that may
be present in a given community. So long as the composition of the
federal grand jury
as a whole serves the representational
due process values expressed in
Peters, discrimination in
the appointment of one member of the grand jury to serve as its
foreman does not conflict with those interests.
The ministerial role of the office of federal grand jury foreman
is not such a vital one that discrimination in the appointment of
an individual to that post significantly invades the distinctive
interests of the defendant protected by the Due Process Clause.
Absent an infringement of the fundamental right to fairness that
violates due process, there is no basis upon which to reverse
petitioner's conviction or dismiss the indictment.
B
Petitioner argues that the Court's decision in
Rose v.
Mitchell, 443 U. S. 545
(1979), supports his position that discrimination in the selection
of federal grand jury foremen warrants the reversal of his
conviction and dismissal of the indictment against him. In
Rose, two Negro defendants brought an equal protection
challenge to the selection of grand jury foremen in Tennessee. The
Court rejected the view that claims of grand jury discrimination
should be considered harmless error when raised by a defendant who
had been convicted by a properly constituted petit jury at an
error-free trial on the merits, and adhered to the position that
discrimination in the selection of the grand jury was a valid
ground for setting aside a criminal conviction.
Id. at
443 U. S.
551-559. The Court then assumed
"
without deciding that discrimination with regard to
the selection of only the foreman requires that a subsequent
conviction be set aside, just as if the discrimination proved had
tainted the selection of the
Page 468 U. S. 347
entire grand jury venire."
Id. at
443 U. S.
551-552, n. 4 (emphasis added). The Court concluded,
however, that the defendants were not entitled to have their
convictions set aside, because they had failed to make out a
prima facie case of discrimination in violation of the
Equal Protection Clause with regard to the selection of grand jury
foremen.
Id. at
443 U. S.
564-574.
Petitioner's reliance upon
Rose is misplaced.
Rose involved a claim brought by two Negro defendants
under the Equal Protection Clause. As members of the class
allegedly excluded from service as grand jury foremen, the
Rose defendants had suffered the injuries of
stigmatization and prejudice associated with racial discrimination.
The Equal Protection Clause has long been held to provide a
mechanism for the vindication of such claims in the context of
challenges to grand and petit juries.
See, e.g., Castaneda v.
Partida, 430 U. S. 482
(1977);
Hernandez v. Texas, 347 U.
S. 475 (1954);
Strauder v. West Virginia,
100 U. S. 303
(1880). Petitioner, however, has alleged only that the exclusion of
women and Negroes from the position of grand jury foreman violates
his right to fundamental fairness under the Due Process Clause. As
we have noted, discrimination in the selection of federal grand
jury foremen cannot be said to have a significant impact upon the
due process interests of criminal defendants. Thus, the nature of
petitioner's alleged injury and the constitutional basis of his
claim distinguish his circumstances from those of the defendants in
Rose.
Moreover,
Rose must be read in light of the method used
in Tennessee to select a grand jury and its foreman. Under that
system, 12 members of the grand jury were selected at random by the
jury commissioners from a list of qualified potential jurors. The
foreman, however, was separately appointed by a judge from the
general eligible population at large. The foreman then served
as
"'the thirteenth member of each grand jury organized during his
term of office, having equal power and authority in all matters
coming before the grand jury with the other members thereof.'"
Rose
Page 468 U. S. 348
v. Mitchell, supra, at
443 U. S. 548,
n. 2 (quoting Tenn.Code Ann. § 40-1506 (Supp.1978)). The foreman
selection process in
Rose therefore determined not only
who would serve as presiding officer, but also who would serve as
the 13th voting member of the grand jury. The result of
discrimination in foreman selection under the Tennessee system was
that 1 of the 13 grand jurors had been selected as a voting member
in an impermissible fashion. Under the federal system, by contrast,
the foreman is chosen from among the members of the grand jury
after they have been empaneled,
see Fed.Rule Crim.Proc.
6(c); the federal foreman, unlike the foreman in
Rose,
cannot be viewed as the surrogate of the judge. So long as the
grand jury itself is properly constituted, there is no risk that
the appointment of any one of its members as foreman will distort
the overall composition of the array or otherwise taint the
operation of the judicial process.
Finally, the role of the Tennessee grand jury foreman differs
substantially from that of the foreman in the federal system. The
Tennessee foreman had the following duties:
"He or she is charged with the duty of assisting the district
attorney in investigating crime, may order the issuance of
subpoenas for witnesses before the grand jury, may administer oaths
to grand jury witnesses, must endorse every bill returned by the
grand jury, and must present any indictment to the court in the
presence of the grand jury. . . . The absence of the foreman's
endorsement makes an indictment 'fatally defective.'
Bird v.
State, 103 Tenn. 343, 344, 52 S.W. 1076 (1899)."
Rose v. Mitchell, supra, at
443 U. S. 548,
n. 2. The investigative and administrative powers and
responsibilities conferred upon the grand jury foreman in
Tennessee, who possessed virtual veto power over the indictment
process, stand in sharp contrast to the ministerial powers of the
federal counterpart, who performs strictly clerical tasks and whose
signature on an indictment is a mere formality.
Page 468 U. S. 349
Frisbie v. United States, 157 U.
S. 160 (1895);
see supra at
468 U. S.
344-345.
Given the nature of the constitutional injury alleged in
Rose, the peculiar manner in which the Tennessee grand
jury selection operated, and the authority granted to the one who
served as foreman, the Court assumed in
Rose that
discrimination with regard to the foreman's selection would require
the setting aside of a subsequent conviction, "just as if the
discrimination proved had tainted the selection of the entire grand
jury venire."
Rose v. Mitchell, 443 U.S. at
443 U. S.
551-552, n. 4. No such assumption is appropriate here,
however, in the very different context of a due process challenge
by a white male to the selection of foremen of federal grand
juries.
III
At oral argument, petitioner eschewed primary reliance upon any
particular constitutional provision, and instead invoked this
Court's supervisory power over the federal courts as a basis for
the relief he seeks. Tr. of Oral Arg. 4-5, 7, 13-14. Only by
setting aside his conviction and dismissing the indictment against
him, petitioner urges, will this Court deter future purposeful
exclusion of minorities and women from the post of federal grand
jury foreman. It is true that this Court's
"supervision of the administration of criminal justice in the
federal courts implies the duty of establishing and maintaining
civilized standards of procedure and evidence."
McNabb v. United States, 318 U.
S. 332,
318 U. S. 340
(1943).
See United States v. Hasting, 461 U.
S. 499 (1983). However, we decline petitioner's
invitation to embark upon the course of vacating criminal
convictions because of discrimination in the selection of foremen.
Less Draconian measures will suffice to rectify the problem.
In no sense do we countenance a purposeful exclusion of
minorities or women from appointment as foremen of federal grand
juries. We are fully satisfied that the district judges charged
with the appointment of grand jury foremen will see to it that no
citizen is excluded from consideration for service
Page 468 U. S. 350
in that position on account of race, color, religion, sex,
national origin, or economic status.
Cf. 28 U.S.C. §
1862.
IV
We hold that, assuming discrimination entered into the selection
of federal grand jury foremen, such discrimination does not warrant
the reversal of the conviction of, and dismissal of the indictment
against, a white male bringing a claim under the Due Process
Clause. Accordingly, the judgment of the United States Court of
Appeals for the Fourth Circuit is
Affirmed.
[
Footnote 1]
Compare United States v. Aimone, 715 F.2d 822 (CA3
1983) (discrimination in federal grand jury foreman selection does
not raise constitutional concerns); 702 F.2d 466 (CA4 1983) (case
below) (same);
United States v. Coletta, 682 F.2d 820 (CA9
1982) (alleged discrimination in federal grand jury foreman
selection insufficient to imply due process violation),
cert.
denied, 459 U.S. 1202 (1983),
with United States v.
Cross, 708 F.2d 631 (CA11 1983) (position of federal grand
jury foreman constitutionally significant);
United States v.
Perez-Hernandez, 672 F.2d 1380 (CA11 1982) (discrimination in
selection of federal grand jury foreman may require reversal of
conviction; defendant failed to establish such discrimination).
See also United States v. Cronn, 717 F.2d 164 (CA5 1983)
(white male defendant lacks standing to press equal protection
challenge to discrimination in selection of federal grand jury
foreman; constitutional significance of foreman not addressed).
[
Footnote 2]
Peters held that a white male had standing to bring a racial
discrimination challenge to the system used to select his grand and
petit juries. JUSTICE MARSHALL, in an opinion joined by Justices
Douglas and Stewart, reasoned that the defendant had standing to
assert a denial of due process of law. 407 U.S. at
407 U. S. 504.
JUSTICE WHITE, in an opinion joined by JUSTICES BRENNAN and POWELL,
concluded that standing would implement the strong statutory policy
of 18 U.S.C. § 243, which provides that no qualified citizen
"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. . . ."
Id. at
407 U. S.
505-507.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS
join, dissenting.
The majority assumes that a judge of the United States District
Court for the Eastern District of North Carolina purposefully
discriminated against Negroes and women in selecting the foreman of
the grand jury that indicted petitioner. The majority recognizes
that such discrimination is unconstitutional. The Court concludes,
however, that dismissal of petitioner's indictment is unwarranted,
because
"the impact of a federal grand jury foreman upon the criminal
justice system and the rights of persons charged with crime is
'minimal and incidental, at best,'"
ante at
468 U. S. 345
(citation omitted), thereby rendering the relief petitioner
requests incommensurate with the injury he received. I dissent
because the Court errs in its assessment of (1) the dimensions of
the injury to the criminal justice system caused by discrimination
in the selection of grand jury foremen, (II) the dimensions of the
injury to an individual defendant, and (III) the relative social
costs that would likely be imposed by dismissing petitioner's
indictment compared to the costs that are likely to be exacted by
the Court's resolution of this case.
I
An established principle of this Court's jurisprudence is that
the injury caused by race and sex discrimination in the
Page 468 U. S. 351
formation of grand and petit juries is measured not only in
terms of the actual prejudice caused to individual defendants, but
also in terms of the injury done to public confidence in the
integrity of the judicial process. For example, in
Peters v.
Kiff, 407 U. S. 493
(1972), this Court reversed a Court of Appeals that had denied
federal habeas corpus relief to a white defendant convicted in
state court who had challenged his indictment on the ground that
Negroes had been excluded from his grand jury. The State argued
that, absent a showing of actual bias, the convicted defendant was
not entitled to dismissal of his indictment. Three Justices, in the
opinion announcing the judgment, rejected this argument on the
ground that it took "too narrow a view of the kinds of harm that
flow from discrimination" in grand jury selection.
Id. at
407 U. S. 498.
They declared that dismissal of the indictment was required
because
"[i]llegal and unconstitutional jury selection procedures cast
doubt on the integrity of the whole judicial process. They create
the appearance of bias in the decision of individual cases, and
they increase the risk of actual bias as well."
Id. at
407 U. S.
502-503.
This theme was reaffirmed in
Rose v. Mitchell,
443 U. S. 545
(1979). In
Rose, we held that two state prisoners who
sought federal habeas corpus relief had failed to present a
prima facie case that the foreman of the grand jury that
indicted them had been selected in a discriminatory manner. We
strongly suggested, however, that proven discrimination would
support the dismissal of an indictment. The Court again rebuffed
the view that dismissal of an indictment was unwarranted. Instead,
the Court reiterated its longstanding belief that dismissal was
required regardless of the actual harm inflicted upon any
particular defendant, because "larger concerns,"
id. at
443 U. S. 555,
were implicated:
"Discrimination on the basis of race, odious in all respects, is
especially pernicious in the administration of justice. Selection
of members of a grand jury because they are of one race and not
another destroys the appearance
Page 468 U. S. 352
of justice, and thereby casts doubt on the integrity of the
judicial process. . . . [S]uch discrimination"
"not only violates our Constitution and the laws enacted under
it, but is at war with our basic concepts of a democratic society
and a representative government. . . . The injury is not limited to
the defendant -- there is injury to the jury system, to the law as
an institution, to the community at large, and to the democratic
ideal reflected in the processes of our courts."
Id. at
443 U. S.
555-556 (citation omitted). [
Footnote 2/1]
There is good reason why public confidence in the integrity of
the judiciary is diminished whenever invidious prejudice seeps into
its processes. This diminution of confidence largely stems from a
recognition that the institutions of criminal justice serve
purposes independent of accurate factfinding. These institutions
also serve to exemplify, by the manner in which they operate, our
fundamental notions of fairness and our central faith in democratic
norms. [
Footnote 2/2] They reflect
what we demand of ourselves as a Nation committed to fairness and
equality in the enforcement of the law. That is why discrimination
"is especially pernicious in the administration of justice," why
its effects constitute an injury "to the law as an institution,"
why its presence must be eradicated root and branch by the most
effective means available.
Page 468 U. S. 353
The majority argues that the constitutional violation that
assumably occurred does not warrant dismissal of petitioner's
indictment, because the functions performed by a federal grand jury
foreman are so incidental that discriminatory selection with
respect to that post poses no substantial threat that petitioner
was actually prejudiced or that the judicial process will be
impugned in the mind of the public. The majority observes that, in
contrast to
Peters v. Kiff, supra, petitioner alleges only
that Negroes and women were improperly excluded from the post of
grand jury foreman, and not that they were excluded from the grand
jury as a whole. It posits that the observant public will realize
that the tainted selection practice is simply too unimportant to
justify an overall loss of confidence in the proceedings, inasmuch
as the foreman was chosen from an unobjectionable venire, has no
more voting power than any other grand juror, and performs tasks
that are merely ministerial.
The vice of this argument is that, by focusing exclusively upon
the role of the grand jury foreman, it disregards the true
dimensions of the violation. After all, the foreman was not the
perpetrator of the constitutional violation. The persons assumed to
have purposefully excluded Negroes and women from consideration for
the foreman position were judges of the United States District
Court. A judge is supposed to be the very embodiment of evenhanded
justice. Society reveals its confidence that a judge will attend to
his official duties without illicit regard for race or sex or other
irrelevant characteristics by entrusting to him wide discretionary
authority. The idea that a person occupying such a powerful and
sensitive position would discriminate on the basis of race and sex
in selecting grand jury foremen is extraordinarily disquieting, and
will be so to the public. For it is unlikely that a judge who
engages in racist and sexist appointment practices will confine his
prejudicial attitudes and actions to the area of foreman
selections. More likely is that the
Page 468 U. S. 354
presence of unconstitutional discrimination in that area is but
a portion of a widespread region of tainted decisionmaking.
Furthermore, by allocating authority within the grand jury venire
on the basis of race and sex, the judge who assumably discriminated
against Negroes and women helped to perpetuate well-known and
vicious stereotypes that our society has been struggling to erase.
To denigrate the significance of the judge's violation by
characterizing its effect as "minimal and incidental" exposes the
judiciary to justified charges of hypocrisy.
II
With respect to the issue whether petitioner himself was harmed
by the violation, the majority concludes that discrimination in the
selection of a grand jury foreman "can have little, if indeed any,
appreciable effect upon the defendant's due process right to
fundamental fairness."
Ante at
468 U. S. 345.
To justify this conclusion, the Court first attempts to distinguish
this case from
Peters v. Kiff, 407 U.
S. 493 (1972), where the defendant challenged the
selection of the grand jury as a whole. In the Court's view,
"[d]iscrimination in the selection of grand jury foremen -- as
distinguished from discrimination in the selection of the grand
jury itself -- does not in any sense threaten the interests of the
defendant protected by the Due Process Clause."
Ante at
468 U. S. 344.
To buttress this distinction, the majority observes that, "[u]nlike
the grand jury itself, the office of grand jury foreman is not a
creature of the Constitution," but was "originally instituted by
statute for the convenience of the court."
Ibid. This
observation is useful, I suppose, as a revelation of antiquarian
fact; however, it is utterly unconvincing as an explanation of why
we must presume, as a matter of law, that discrimination in the
selection of grand jury foremen can have no appreciable effect upon
a defendant's right to fair proceedings. Neither the United States
district courts nor the United States courts of appeals are
creatures of the
Page 468 U. S. 355
Constitution; both were established pursuant to statute.
[
Footnote 2/3] I assume, however,
that their legislative, as opposed to constitutional, origin does
not attenuate their crucial importance in the federal judicial
scheme.
Another factor the majority focuses upon as a way of
distinguishing
Peters v. Kiff, supra, from the case at
hand is that, in
Peters, the exclusion of Negroes from the
grand jury venire had impaired the defendant's interest in
"assuring that the grand jury includes persons with a range of
experiences and perspectives."
Ante at
468 U. S. 345.
By contrast, in this case, the discrimination did not affect the
composition of the grand jury, but rather its internal
organization: the process by which a foreman was selected. The
majority contends that the discrimination flowing from that process
does not implicate the concerns raised by
Peters, because
no one person can possibly represent the variety of backgrounds and
perspectives found in a given community.
Ante at
468 U. S. 346.
This contention should be rejected, because it mistakenly applies
the principle for which
Peters stands.
Peters
stands for the proposition that a defendant is entitled to have his
case screened by a grand jury venire from which no segment of the
community has been improperly excluded. What that principle means,
in the context of this case, is that petitioner was entitled to a
foreman selection process from which neither Negroes nor women were
excluded merely on the basis of their race or their sex. While
petitioner was not entitled to a Negro or woman foreman, he was
entitled to at least the possibility of having a woman or Negro
foreman. That possibility was nullified by the purposeful
discrimination that presumably occurred in this case.
To establish that the influence exerted by a federal foreman's
position is "minimal and incidental" the Court looks
Page 468 U. S. 356
principally to Rule 6(c) of the Federal Rules of Criminal
Procedure. The trouble with the Court's approach is that, by
concentrating on the formal responsibilities of a foreman as
delineated by Rule 6(c), it ignores powers and duties of the
foreman that have developed "by custom, practice, and necessity."
United States v. Cross, 708 F.2d 631, 637-638 (CA11 1983).
[
Footnote 2/4] A realistic
understanding of the actual function performed by federal grand
jury foremen must be supplemented by additional sources of
evidence. One such source is the Handbook for Federal Grand Jurors
(1980) (Handbook), prepared by the Judicial Conference Committee on
the Operation of the Jury System. The Handbook
"was recommended by the Judicial Conference for use in the
United States District Courts to orient and prepare newly impaneled
grand jurors."
Id. at 3. Its mission was to explain to grand jurors
"clearly and simply" their obligations and duties.
Ibid.
The Handbook informs grand jurors that the court will appoint one
of them to be "the foreman, or presiding officer, of the grand
jury,"
id. at 9; that, if an emergency prevents attendance
at a meeting, the affected grand juror "must promptly advise the
grand jury foreperson, who has the authority to excuse" a grand
juror's absence,
id. at 25; that the foreman administers
the oath to witnesses before the grand jury,
id. at 11;
that the foreman initiates the juror's questioning of witnesses,
id. at 26; that the foreman determines whether an
interpreter is required,
id. at 11;
Page 468 U. S. 357
that the foreman initiates deliberations, tallies the votes, and
reports the grand jury's conclusions to the court,
id. at
13.
The description of the foreman's role provided by the Handbook
is more detailed than that offered by Rule 6(c) and more attuned to
what is expected of the foreman in his day-to-day responsibility
for presiding over the grand jury. This description portrays a post
that is far more than merely clerical in nature; rather, it
portrays a post that enables, indeed requires, a person to be first
among equals within the grand jury room.
The Handbook's description is corroborated by the testimony of
District Court Judges who have testified under oath as to the
qualities they look for in selecting a grand jury foreman.
See
United States v. Breland, 522 F.
Supp. 468, 471-474 (ND Ga.);
United States v.
Manbeck, 514 F.
Supp. 141, 150 (SC 1981);
United States v. Northside Realty
Associates, Inc., 510 F.
Supp. 668, 683-684 (ND Ga.1981);
United States v.
Holman, 510 F.
Supp. 1175 (ND Fla.1981);
United States v.
Jenison, 485 F.
Supp. 655, 665-666 (SD Fla.1979). Two patterns emerge from such
testimony. First, district judges typically allocate considerable
time and attention to the selection of grand jury foremen.
[
Footnote 2/5] If the foreman's
post is as insignificant as the majority contends, there would be
little reason for district judges to be as concerned as they are
with finding persons with the requisite qualities that make for a
good foreman. Second, District Judges have testified that they
typically select as foremen those who have
"good management skills, strong occupational experience, the
ability
Page 468 U. S. 358
to preside, good educational background, and personal leadership
qualities."
United States v. Cross, supra, at 636 (summarizing
testimony adduced in
United States v. Holman, supra, and
United States v. Jenison, supra). [
Footnote 2/6] Were the post merely clerical in nature,
there would be little reason for judges to seek out persons with
"personal leadership qualities." [
Footnote 2/7]
There is, moreover, another consideration that the majority
fails to address: the peculiar difficulty of detecting the harm
caused by racist and sexist practices in the administration of
criminal justice. We recognized in
Peters v. Kiff that it
is in the nature of discriminatory selection processes "that proof
of actual harm, or lack of harm, is virtually impossible to adduce.
. . ." 407 U.S. at
407 U. S. 504.
In
Peters, where the issue arose in the context of
deciding whether to allow a white person to challenge
discriminatory practices excluding Negroes, the opinion announcing
the judgment stated that the consequences of uncertainty should
fall upon the prosecution. That opinion therefore concluded
that,
"[i]n light of the great potential for harm latent in an
unconstitutional
Page 468 U. S. 359
jury selection system, and the strong interest of the criminal
defendant in avoiding that harm, any doubt should be resolved in
favor of giving the opportunity for challenging the jury to too
many defendants, rather than giving it to too few."
Ibid. Likewise, in light of the potential for harm
latent in the unconstitutional selection of a grand jury foreman by
a district court judge, and a defendant's (and society's) strong
interest in avoiding that harm, any doubt should be resolved in
favor of applying standards that are too stringent, rather than too
lax.
III
The consequence of the Court's misperception of the nature and
dimensions of the constitutional violation that is assumed to have
occurred is a misunderstanding of what constitutes an appropriate
remedy. The majority declines
"to embark upon the course of vacating criminal convictions
because of discrimination in the selection of [grand jury]
foremen"
because "[l]ess Draconian measures will suffice to rectify the
problem."
Ante at
468 U. S. 349. Yet the Court never articulates what
"less Draconian" measures it has in mind. It states that it is
"fully satisfied that the district judges charged with the
appointment of grand jury foremen will see to it that no citizen is
excluded from consideration for service in that position on account
of race, color, religion, sex, national origin, or economic
status."
Ante at
468 U. S.
349-350. Such assurance, however, is completely
nonsensical since, in this case, the Court must assume that a
District Judge did exclude persons on the basis of race and
sex.
Determining the appropriateness of reversing petitioner's
indictment requires applying the elementary, though oft-ignored,
principle that every right must be vindicated by an effective
remedy. [
Footnote 2/8] For
"'[i]f constitutional rights are to be
Page 468 U. S. 360
anything more than pious pronouncements, then some measurable
consequence must be attached to their violation.'"
United States v. Calandra, 414 U.
S. 338 (1974) (BRENNAN, J., dissenting, joined by
MARSHALL, J.) (quoting Oaks, Studying the Exclusionary Rule in
Search and Seizure, 37 U.Chi.L.Rev. 665, 756 (1970)). It would be
intolerable if the constitutional prohibition against
discrimination in the selection of grand jury foremen could be
violated without practical consequence. The traditional remedy for
unconstitutional government action is that which petitioner
requests: nullification. Nullification is especially appropriate
here, where there is an absence of any other remedy that is even
remotely effective.
The Court declares by fiat that dismissing petitioner's
indictment would constitute a "Draconian" measure. Missing from the
Court's opinion, however, is any indication that the Court
considered factors essential to determining the proper scope of a
remedy. The inchoate nature of the majority's reasoning is
especially regrettable since the Court engaged in a comprehensive
explication of an appropriate balancing analysis in
Rose v.
Mitchell, 443 U.S. at
443 U. S. 553-559.
In
Rose, the Court reaffirmed its rejection of the view
that the social costs of dismissing an indictment outweigh the
costs imposed by a less effective remedy. It recognized that there
are substantial costs imposed by dismissing an indictment following
conviction --
i.e., the costs attendant to retrying a
defendant. It determined, however, that those costs were
"outweighed by the strong policy the Court consistently has
recognized of combating racial discrimination in the administration
of justice."
Id. at
443 U. S. 558.
In making that determination, the Court took into account two
considerations. First, the Court looked to the types of remedies
courts resort to in rectifying and deterring analogous
constitutional violations. The Court observed that dismissal of an
indictment is in many ways less drastic than remedies resorted to
in other contexts where constitutional rights have
Page 468 U. S. 361
been violated.
Id. at
443 U. S.
557-558. In the case of an illegal search or a coerced
confession, the violation often results in the suppression of
evidence that is highly probative on the issue of guilt. Dismissing
an indictment, however, does not render a defendant practically
immune from subsequent reindictment and reprosecution. In the
subsequent reprosecution, the Government remains free to use the
proof it initially introduced to obtain the conviction in the first
instance. Second, the Court looked to the efficacy of alternative
remedies. It recognized that there exists a criminal statute
prohibiting discriminatory selection practices with respect to
grand juries, and that such illicit practices are also actionable
in civil suits. The Court noted, however, that the inadequacies
[
Footnote 2/9] of these alternative
remedies disabled them from assuming alone the burden of
discouraging purposeful discrimination in the selection of grand
jury foremen. A similar calculus would yield a similar result in
this case.
IV
There is no doubt that this Court has the legitimate authority
to order relief that would effectively deter federal judges from
purposefully discriminating against Negroes and women in the
selection of grand jury foremen. It has done so in similar contexts
by ordering the dismissal of indictments against defendants
convicted in both federal and state courts, and it has done so to
vindicate both federal constitutional rights and its own
supervisory authority over the proper administration of justice
within the federal judiciary. [
Footnote 2/10]
Page 468 U. S. 362
The discriminatory conduct at issue resides within the four
corners of the federal judicial process, an area uniquely amenable
to this Court's influence. And the constitutional principles and
federal policies violated by this conduct are among the most
definite, basic and deeply rooted in all of our jurisprudence.
[
Footnote 2/11] I therefore find
the opinion of the Court both misguided and mysterious. If the
Court is serious when it declares that it can "[i]n no sense . . .
countenance" race and sex-based discrimination in the selection of
federal grand jury foremen,
ante at ___, then it surely
subverts its own declaration by both refusing to grant the
long-established remedy petitioner requests and declining to offer
even a glimpse of effective alternative remedies. I respectfully
dissent.
[
Footnote 2/1]
Cf. Ballard v. United States, 329 U.
S. 187 (1946):
"[E]xclusion of women from jury panels may at times be highly
prejudicial to the defendants. But reversible error does not depend
on a showing of prejudice in an individual case. The evil lies in
the admitted exclusion of an eligible class or group in the
community in disregard of the prescribed standards of jury
selection."
Id. at
329 U. S.
195.
[
Footnote 2/2]
"In a government of laws, existence of the government will be
imperilled if it fails to observe the laws scrupulously. Our
Government is the potent, the onmipresent teacher. For good or for
ill, it teaches the whole people by its example."
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 485
(1928) (Brandeis, J., dissenting).
[
Footnote 2/3]
See U.S.Const., Art. III, § 1 ("The judicial Power of
the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain
and establish").
[
Footnote 2/4]
Even if I limited my analysis to the information provided by
Rule 6(c), I would still maintain that the foreman's job is
sufficiently consequential that discrimination in the means of
selecting someone to perform it could actually prejudice a
defendant. The very designation by the judge that one person will
serve as foreman importantly differentiates that person from the
other members of the venire.
See United States v. Cross,
708 F.2d at 637 ("A foreperson has only one vote on the grand jury,
but the selection by the district judge might appear to the other
grand jurors as a sign of judicial favor which could endow the
foreperson with enhanced persuasive influence over his or her
peers").
[
Footnote 2/5]
For example, in
United States v. Breland, the court
indicated that one District Judge had testified that, before
selecting a foreman he "considered each [grand juror]
questionnaire, making several tentative choices before reaching a
final decision." 522 F. Supp. at 473. The court indicated that
another District Judge
"reviewed every juror questionnaire . . . then observed
prospective grand jurors in the courtroom as they were identified
and answered the roll call. . . . "
Ibid.
[
Footnote 2/6]
For example, in
United States v. Holman, a District
Judge testified that the foreperson should possess sufficient
intellectual independence to prevent being "easily led by the
United States Attorney." 510 F. Supp. at 1180. Similarly, in
United States v. Jenison, a District Judge testified that
he chose foremen on the basis of "work history" and "leadership
ability." 485 F. Supp. at 665.
[
Footnote 2/7]
The Court also maintains that an indicium of the purported
insignificance of the foreman's position is that the absence of his
signature on an indictment is deemed a mere technical irregularity
that does not invalidate the indictment.
Ante at
468 U. S.
344-345. This observation reveals nothing of
significance about the functional importance of the foreman's
position. The refusal to invalidate an indictment merely because it
lacks the signature of the foreman simply reflects a practical
recognition that important government objectives, otherwise
justified on the basis of applicable law, should not be stymied on
the basis of meaningless formalities.
See, e.g., United States
v. Ventresca, 380 U. S. 102,
380 U. S. 108
(1965) (rejecting challenge to adequacy of search warrant affidavit
because such documents must be "tested and interpreted . . . in a
common sense and realistic fashion").
[
Footnote 2/8]
See Marbury v.
Madison, 1 Cranch 137,
5 U. S. 163
(1803) ("The government of the United States has been emphatically
termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation if the laws furnish no
remedy for the violation of a vested legal right").
[
Footnote 2/9]
The Court noted that 18 U.S.C. § 243 makes it a federal crime to
exclude citizens from service on grand and petit juries on account
of race. It recognized, however, that prosecutions under § 243 have
been rare, and that they "are not under the control of the class
members and the courts." 443 U.S. at
443 U. S. 558.
The Court further recognized that "[c]ivil actions, expensive to
maintain and lengthy, have not often been used."
Ibid.
[
Footnote 2/10]
In
Ballard v. United States, 329 U.
S. 187 (1946), the Court dismissed an indictment against
a convicted defendant on the ground that women had been
systematically excluded from his grand jury even though, at that
time, Congress had not expressly prohibited disqualification of
federal jurors on account of sex. Legislation now expressly
provides that
"[n]o citizen shall be excluded from service as a grand or petit
juror . . . on account of race, color, religion, sex, national
origin, or economic status."
28 U.S.C. § 1862.
[
Footnote 2/11]
See, e.g., Strauder v. West Virginia, 100 U.
S. 303 (1880);
Smith v. Texas, 311 U.
S. 128 (1940).
See also 18 U.S.C. § 243; 28
U.S.C. § 1862.
JUSTICE STEVENS, dissenting.
A rule that forbids discrimination in the selection of a grand
jury must be justified primarily by the overriding interest in
maintaining the integrity of the judicial process -- both the
actual fairness of that process and the symbolic values that it
embodies. As I understand the Court's prior cases, it is settled
that the process that leads to a State's deprivation of a person's
liberty is not "due process" if the selection of the grand jury
that indicted the defendant was tainted by racial prejudice. That
principle applies to the grand jury foreman, for he performs a
function that has both practical and symbolic significance.
See
Rose v. Mitchell, 443 U. S. 545
(1979). Although I have expressed my doubts
Page 468 U. S. 363
concerning the wisdom of applying this principle in certain
situations,
see id. at
443 U. S.
593-594 (STEVENS, J., dissenting in part), if we enforce
the principle in state proceedings, surely we must insist on
adherence to the same standard in the federal judicial system.
Accordingly, I join JUSTICE MARSHALL's dissenting opinion.