1. The manner in which the court which convicted the petitioner
was organized -- assignment of a judge pursuant to a statute the
validity of which under the state constitution was upheld by the
highest court of the State -- violated no fundamental principle of
justice and denied no right of the petitioner under the Federal
Constitution. P. 399,
n 1.
2. Although there was but one Negro on the grand jury which
indicted the Negro petitioner, the record in this case fails to
establish that the jury commissioners deliberately and
intentionally limited the number of Negroes on the panel, or that
there was discrimination on account of race in the selection of the
grand jury in violation of the due process and equal protection
clauses of the Fourteenth Amendment of the Federal Constitution.
Pp.
325 U. S. 403,
325 U. S.
407.
3. It is unnecessary here to consider whether purposeful
limitation of jurors by race to the approximate proportion that the
eligible jurymen of the race so limited bears to the total
eligibles would be invalid under the Fourteenth Amendment. P.
325 U. S.
407.
182 S.W.2d 723 affirmed.
Page 325 U. S. 399
Certiorari, 324 U.S. 836, to review a judgment which affirmed a
sentence of death upon a conviction of murder.
MR. JUSTICE REED delivered the opinion of the Court.
This certiorari brings here for review a judgment of the
Criminal District Court of Dallas County, Texas, sentencing
petitioner to execution on a jury verdict which found petitioner
guilty of murder with malice and assessed the penalty at death.
Certiorari was sought to the Court of Criminal Appeals of the
Texas, which had affirmed the judgment, on a petition which claimed
discrimination on account of his race, against the petitioner, who
is a Negro, under the equal protection and due process clauses of
the Fourteenth Amendment of the Constitution of the United States.
[
Footnote 1]
Page 325 U. S. 400
Certiorari was allowed because of the importance in the
administration of criminal justice of the alleged racial
discrimination which was relied upon to support the claim of
violation of constitutional rights. 324 U.S. 836. This
discrimination was said to consist of an arbitrary and purposeful
limitation by the Grand Jury Commissioners of the number of Negroes
to one who was to be placed upon the grand jury panel of sixteen
for the term of court at which the indictment against petitioner
was found. This is petitioner's only complaint as to racial
discrimination. No other errors in the proceedings are pointed
out.
The Fourteenth Amendment forbids any discrimination against a
race in the selection of a grand jury. [
Footnote 2]
Neal v. Delaware, 103 U.
S. 370,
103 U. S. 394;
Pierre v. Louisiana, 306 U. S. 354,
306 U. S. 356;
Smith v. Texas, 311 U. S. 128;
Hill v. Texas, 316 U. S. 400. The
burden is, of course, upon the defendant to establish the
discrimination.
Tarrance v. Florida, 188 U.
S. 519,
188 U. S. 520;
Martin v. Texas, 200 U. S. 316;
Norris v. Alabama, 294 U. S. 587,
294 U. S. 590.
An allegation of discriminatory practices in selecting a grand jury
panel challenges an essential element of proper judicial procedure
-- the requirement
Page 325 U. S. 401
of fairness on the part of the judicial arm of government in
dealing with persons charged with criminal offenses. It cannot
lightly be concluded that officers of the courts disregard this
accepted standard of justice.
The order overruling the motion to quash the indictment was made
after evidence and without opinion. That motion set out the alleged
purposeful limitation on racial representation which is pressed
here. The Court of Criminal Appeals, however, without a written
analysis of the testimony, said in an opinion that it failed
"to find any evidence of discrimination. On the contrary, the
evidence shows an effort on the part of the authorities to comply
with the holding of this court and of the Supreme Court of the
United States upon the question of discrimination."
Akins v. State, 182 S.W.2d 723, 724. This reference to
the holdings of the state and federal courts was to
Akens v.
State, 145 Tex.Cr.R. 289, 167 S.W.2d 758, which reversed a
previous conviction of petitioner on the authority of
Hill v.
Texas, supra. Although this opinion of the Court of Criminal
Appeals does not refer to proportional racial representation on
juries, recent decisions of that court had previously disapproved
that procedure.
Hamilton v. State, 141 Tex.Cr.R. 114, 150
S.W.2d 395, 400, r.c.;
Hill v. State, 144 Tex.Cr.R. 415,
157 S.W.2d 369, 373, l.c.,
reversed on other grounds,
316 U. S. 316 U.S.
400. We think, therefore, that the conclusions of the state courts
show that, in their judgment, there was no proven racial
discrimination by limitation in this case. Otherwise, there would
have been a reversal by the Court of Criminal Appeals.
As will presently appear, the transcript of the evidence
presents certain inconsistencies and conflicts of testimony in
regard to limiting the number of negroes on the grand jury.
Therefore, the trier of fact who heard the witnesses in full and
observed their demeanor on the stand has a better opportunity than
a reviewing court to reach a correct conclusion as to the existence
of that type of discrimination. While our duty, in reviewing a
conviction upon
Page 325 U. S. 402
a complaint that the procedure through which it was obtained
violates due process and equal protection under the Fourteenth
Amendment, calls for our examination of evidence to determine for
ourselves whether a federal constitutional right has been denied,
expressly or in substance and effect,
Norris v. Alabama,
294 U. S. 587,
294 U. S.
589-590;
Smith v. Texas, 311 U.
S. 128,
311 U. S. 130,
we accord in that examination great respect to the conclusions of
the state judiciary,
Pierre v. Louisiana, 306, U.S. 354,
306 U. S. 358.
That respect leads us to accept the conclusion of the trier on
disputed issues "unless it is so lacking in support in the evidence
that to give it effect would work that fundamental unfairness which
is at war with due process,"
Lisenba v. California,
314 U. S. 219,
314 U. S. 238,
or equal protection.
Cf. Ashcraft v. Tennessee,
322 U. S. 143,
322 U. S.
152-153;
Malinski v. New York, 324 U.
S. 401.
The regular statutory practice for the selection of grand jurors
was followed in this case. Under the Texas statutes, jury
commissioners appointed by the judge of the trial court select a
list of sixteen grand jurymen, from which list twelve are chosen as
a grand jury. Texas Code of Criminal Procedure, Articles 333, 337.
Qualifications for grand jurymen are set out in Article 339.
[
Footnote 3] The
Commissioners
Page 325 U. S. 403
are instructed by the court as to their duties. Art. 366. This
method of selection leaves a wide range of choice to the
commissioners. Its validity, however, has been accepted by this
Court.
Smith v. Texas, 311 U. S. 128,
311 U. S. 130.
Petitioner does not attack it now. Its alternative would be a list
composed of all eligibles within the trial court's jurisdiction and
selection of the panel by lot.
Petitioner's sole objection to the grand jury is that the
"commissioners deliberately, intentionally and purposely limited
the number of the Negro race that should be selected on said grand
jury panel to one member."
Fairness in selection has never been held to require
proportional representation of races upon a jury.
Virginia v.
Rives, 100 U. S. 313,
100 U. S.
322-323;
Thomas v. Texas, 212 U.
S. 278,
212 U. S. 282.
Purposeful discrimination is not sustained by a showing that, on a
single grand jury, the number of members of one race is less than
that race's proportion of the eligible individuals. The number of
our races and nationalities stands in the way of evolution of such
a conception of due process or equal protection. Defendants under
our criminal statutes are not entitled to demand representatives of
their racial inheritance upon juries before whom they are tried.
But such defendants are entitled to require that those who are
trusted with jury selection shall not pursue a course of conduct
which results in discrimination "in the selection of jurors on
racial grounds."
Hill v. Texas, supra, 316 U. S. 404.
Our directions that indictments be quashed when Negroes, although
numerous in the community, were excluded from grand jury lists have
been based on the theory that their continual exclusion indicated
discrimination, and not on the theory that racial groups must be
recognized.
Norris v. Alabama, supra; Hill v. Texas, supra;
Smith v. Texas, supra. The mere fact of inequality in the
number selected does not, in itself, show discrimination. A purpose
to discriminate must be present which may be proven by
systematic
Page 325 U. S. 404
exclusion of eligible jurymen of the proscribed race or by
unequal application of the law to such an extent as to show
intentional discrimination.
Cf. Snowden v. Hughes,
321 U. S. 1,
321 U. S. 8. Any
such discrimination which affects an accused will make his
conviction unlawful.
The history and record of this case gives evidence that the
courts of Texas which are charged with the trial of petitioner
endeavored to comply with the federal constitutional requirements
as to the selection of grand juries, according to the
interpretation of this Court in
Hill v. Texas, supra. Not
only did the Court of Criminal Appeals reverse a former conviction
of petitioner on its authority, but the judge, now deceased, of the
criminal district court of Dallas instructed the three jury
commissioners, who selected this grand jury list, as testified to
by each of them, that there should be no discrimination against
anyone because of his color. [
Footnote 4]
Page 325 U. S. 405
Hill v. Texas, supra, was decided June 1, 1942. The
trial court has four terms a year -- January, April, July, and
October. After the
Hill decision, the jury commissioners
who were appointed at the July, 1942, term to select grand jurors
for the October, 1942, term, Texas Code of Criminal Procedure,
Arts. 333 and 338, placed a Negro on the grand jury list, although
he did not serve. Under the instructions of the judge as just
detailed, the commissioners for the January, 1943, term, at which
petitioner was indicted, placed a Negro on the list, and he served
as a grand juror. Prior to the decision in the
Hill case,
it does not appear that any colored person had ever served on a
grand jury in Dallas County.
On the precise act of discrimination by the jury commissioners
which is asserted by petitioner -- that is, the deliberate,
intentional, and purposeful limitation to one of the number of
Negroes on the grand jury panel -- the record shows as follows.
About fifteen and one-half percent of the population of Dallas
County, Texas, is negro. A substantial percentage of them are
qualified to serve as grand jurors. No exact comparison can be made
between the white and negro citizens as to the percentage of each
race which is eligible. On the strictly mathematical basis of
population, a grand jury of twelve would have 1.8552 negro members,
on the average. Of course, the qualifications for grand jury
service,
note 3 supra,
would affect the proportion of eligibles from the two races. As one
member of the Negro race served upon the grand jury which indicted
petitioner and one had appeared upon the other grand jury list
which had been selected after the decision in
Hill v. Texas,
supra, we cannot say that the omission from each of the two
lists of all but one of the members of a race
Page 325 U. S. 406
which composed some fifteen percent of the population alone
proved racial discrimination.
In connection with that fact of omission, we must appraise the
testimony offered to show the intentional limitation. Besides the
language quoted in
note 4
supra, which relates particularly to the court's
instructions, other relevant evidence of such intention is found
only in the testimony of the commissioners. They made these
statements as to their intentions:
Commissioner Wells:
"There was nothing said about the number, and nothing was said
about the number on the panel. . . . We had no intention of placing
more than one negro on the panel. When we did that, we had finished
with the negro. That was the suggestion of the others, and what
Judge Adams thought about the selection of the grand jury. . . .
Judge Adams did not tell us to put one negro or five negroes on the
grand jury. Yes, we just understood to see that negroes had
representation on the grand jury, and we went out to see this
particular one because we did not know him. . . . Among the white
people whose names might go on the grand jury, unless I knew them
personally and knew their qualifications, we went out and talked to
them. No, we did not discriminate against a white man or a negro. I
attempted not to."
Commissioner Tennant:
"We three did not go to see any other negroes, that is the only
one. I did not have any intention of putting more than one on the
list; I could not think of anybody; I would have if I could have
thought of another one, and putting one on."
Commissioner Douglas:
"Yes, sir, there were other negroes' names mentioned besides the
one we selected; we did not go talk to them; we liked this one, and
our intentions were to get just one negro on the grand jury; that
is right. No, I did not have any intention of placing more than one
negro on the grand jury. . . . We never agreed to select any
certain number, but when we found one with all the
Page 325 U. S. 407
qualifications of a grand juror, we felt like that was
satisfactory representation. . . . No, sir, we did not have in mind
to put any set number of representatives of the various races. . .
. We did not agree to put eleven negroes and one white man on, no.
That is right, all that we were endeavoring to get a fair and
impartial grand jury without any discrimination against any race on
earth. We did not have in mind, or the other commissioners, to put
any set number on of any race, white, yellow or what-not."
A careful examination of these statements in connection with all
the other evidence leaves us unconvinced that the commissioners
deliberately and intentionally limited the number of Negroes on the
grand jury list. The judge who heard the witnesses on the motion to
quash did not find that type of discrimination. The law of their
state, the instructions of the judge, their oath of office required
them to choose prospective jurors on their statutory qualifications
and without regard to their color or the number of representatives
of various races who might appear upon the list. We cannot say the
commissioners violated these obligations.
This conclusion makes it unnecessary to decide whether a
purposeful limitation of jurors by race to the approximate
proportion that the eligible jurymen of the race so limited bears
to the total eligibles is invalid under the Fourteenth
Amendment.
The judgment is
Affirmed.
MR. JUSTICE RUTLEDGE concurs in the result.
THE CHIEF JUSTICE and MR. JUSTICE BLACK dissent.
[
Footnote 1]
Certiorari was allowed also for alleged denial of due process
under the Fourteenth Amendment because of the manner in which the
trial judge was designated to conduct the trial court. He acted by
assignment of the presiding judge of the First Administrative
Judicial District of Texas under General and Special Laws, 48th
Leg.Reg.Sess., p. 25 (Vernon's Annotated Civil Statutes, Texas,
Art. 200a, § 5), instead of by appointment by the Governor under
Section 28, Article 5, of the Constitution of Texas, to fill the
vacancy caused by the death of the regularly chosen occupant.
The legality of the assignment depends upon the validity of the
provisions of the state statute as tested by the Texas
Constitution. The constitutional requirement is that vacancies in
the office of judges shall be filled by the Governor. The Texas
statute provided for assignment of other judges for the work of the
court. This statute was interpreted by the Court of Criminal
Appeals to provide merely for the functioning of courts under
assigned judges, who did not qualify as successors to decedent
judges, until the vacancy was filled by appointment or election.
The court upheld the constitutionality of the statute.
Pierson
v. State, 177 S.W.2d 975;
Fuller v. State, 180 S.W.2d
361;
Jones v. State, 181 S.W.2d 75;
Brown v.
State, 181 S.W.2d 93;
Akins v. State, 182 S.W.2d 723.
Whether the state rule is expressed in constitution, statute, or
decision, or partly in one and partly in another, the state's power
is to be viewed as a totality. In the absence of a violation of
fundamental principle of justice, a state's determination is
conclusive upon the federal courts as to the meaning of the state
law, so far as any federal question is concerned.
Hebert v.
Louisiana, 272 U. S. 312,
272 U. S. 316;
Gregg Dyeing Co. v. Query, 286 U.
S. 472,
286 U. S.
479-480;
United Gas Public Service Co. v.
Texas, 303 U. S. 123,
303 U. S.
141-142. We find no violation of any of petitioner's
federal rights in Texas' decision upon the legality of the
organization of the court which tried petitioner.
[
Footnote 2]
Constitution, Fourteenth Amendment, § 1:
". . . nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."
[
Footnote 3]
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 cannot 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 4]
Commissioner Wells:
"In the selection of our panel of sixteen for the grand jury,
the way we determined whom we would put on that list was, we were
advised by Judge Grover Adams that the Supreme Court had ruled that
we could not discriminate against any one because of his color, as
I recall, they had not been discriminating for selection on the
grand jury panel, and, in turn, they said there were sixteen, and
it would be further evident if we placed one among the twelve so as
to make it clear."
Commissioner Tennant:
"When the grand jury commissioners were appointed by Judge
Adams, the only thing I remember he said is that we could not
discriminate against the negro population being represented on the
grand jury. No, he just outlined if he could qualify as a grand
juror. In this particular instance, we selected one negro on this
panel; so far as I am concerned, I read in the paper that the
Supreme Court of the United States stated that a negro could sit on
the grand jury. . . . Judge Adams never mentioned to us about
putting one negro on the grand jury, or five or ten. Yes, that
there must be representation for the race."
Commissioner Douglas:
"At that time, Judge Adams, the judge of this court made some
reference or instructions about how to select the grand jury. He
thought it well to select negroes on the grand jury. He said he
thought it would be well to select a negro on the grand jury. There
was no further discussion about that. We did select a negro on the
grand jury. All three of us went out there to see him. We all went
and talked to just one negro, and that is the one we selected."
MR. JUSTICE MURPHY, dissenting.
The equal protection clause of the Fourteenth Amendment entitles
every person whose life, liberty or property is in issue to the
benefits of grand and petit juries chosen
Page 325 U. S. 408
without regard to race, color or creed. This constitutional
principle is a fundamental tenet of the American faith in the jury
system. The absence of such a principle would give free rein to
those who wittingly or otherwise act to undermine the very
foundations of this system, and would make juries ready weapons for
officials to oppress those accused individuals who by chance are
numbered among unpopular or inarticulate minorities.
The State of Texas in this instance appears to have made a
sincere effort to obey this constitutional mandate in selecting the
grand jury which indicted the Negro petitioner. Until this Court's
decision in 1942 in
Hill v. Texas, 316 U.
S. 400, no Negro ever served on a grand jury in Dallas
County, Texas, where this case arose. In an attempt to comply with
that decision, the three jury commissioners were careful here to
appoint one Negro to the sixteen-member grand jury panel; he
qualified and served on the twelve-man jury. Thus, it cannot be
said that Texas has systematically and completely excluded Negroes
from the grand jury.
Cf. Norris v. Alabama, 294 U.
S. 587;
Pierre v. Louisiana, 306 U.
S. 354;
Smith v. Texas, 311 U.
S. 128;
Hill v. Texas, supra. But that fact
alone does not guarantee compliance with the Fourteenth Amendment,
however commendable may be the attempt. Racial limitation, no less
than racial exclusion, in the formation of juries is an evil
condemned by the equal protection clause. "The Amendment nullifies
sophisticated, as well as simple-minded, modes of discrimination."
Lane v. Wilson, 307 U. S. 268,
307 U. S. 275.
This case must therefore be reviewed with that in mind.
Petitioner, as a Negro, "cannot claim, as matter of right, that
his race shall have a representation on the jury,"
Neal v.
Delaware, 103 U. S. 370,
103 U. S. 394,
inasmuch as "a mixed jury in a particular case is not essential to
the equal protection of the laws,"
Virginia v. Rives,
100 U. S. 313,
100 U. S. 323.
But petitioner, as a human being endowed with all the
Page 325 U. S. 409
rights specified in the Constitution, can claim that no racial
or religious exclusion, limitation or other form of discrimination
shall enter into the selection of any jury which indicts or tries
him.
It follows that the State of Texas, in insisting upon one Negro
representative on the grand jury panel, has respected no right
belonging to petitioner. On the contrary, to the extent that this
insistence amounts to a definite limitation of Negro grand jurors,
a clear constitutional right has been directly invaded. The equal
protection clause guarantees petitioner not only the right to have
Negroes considered as prospective veniremen, but also the right to
have them considered without numerical or proportional limitation.
If a jury is to be fairly chosen from a cross-section of the
community, it must be done without limiting the number of persons
of a particular color, racial background, or faith -- all of which
are irrelevant factors in setting qualifications for jury service.
This may in a particular instance result in the selection of one,
six, twelve or even no Negroes on a jury panel. The important
point, however, is that the selections must in no way be limited or
restricted by such irrelevant factors.
In this case, the Texas has candidly admitted before us "that
none of the three [jury commissioners] intended to place more than
one Negro upon the grand jury drawn by them." Commissioner Wells
testified that, "We had no intention of placing more than one Negro
on the panel. When we did that, we had finished with the Negro." In
the words of Commissioner Tennant, "We three did not go to see any
other Negroes, that is the only one. I did not have any intention
of putting more than one on the list." Finally, as Commissioner
Douglas stated,
"Yes, sir, there were other Negroes' names mentioned besides the
one we selected; we did not go talk to them; we liked this one, and
our intentions were to get just one Negro on the grand jury; that
is right. No, I
Page 325 U. S. 410
did not have any intention of placing more than one Negro on the
grand jury."
Clearer proof of intentional and deliberate limitation on the
basis of color would be difficult to produce. The commissioners'
declarations that they did not intend to discriminate and their
other inconsistent statements cited by the Court fade into
insignificance beside the admitted and obvious fact that they
intended to and did limit the number of Negroes on the jury panel.
By limiting the number to one, they thereby excluded the
possibility that two or more Negroes might be among the persons
qualified to serve. All those except the one Negro were required to
be of white color. At the same time, by insisting upon one Negro,
they foreclosed the possibility of choosing sixteen white men on
the panel. They refused, in brief, to disregard the factor of color
in selecting the jury personnel. To that extent, they have
disregarded petitioner's right to the equal protection of the laws.
To that extent, they have ignored the ideals of the jury system.
Our affirmance of this judgment thus tarnishes the fact that we of
this nation are one people, undivided in ability or freedom by
differences in race, color or creed.