Respondents, who are Negroes, were indicted by a county grand
jury in Tennessee for murder. They filed a plea in abatement
seeking dismissal of the indictment on the ground,
inter
alia, that the foreman of the grand jury had been selected in
a racially discriminatory.fashion. At a hearing on this plea,
respondents called as witnesses 3 jury commissioners who testified
only as to the selection of the grand jury venire; 2 former foremen
who testified that they had never known of a Negro foreman, but
were not questioned as to how long they had resided in the county;
the current foreman, who stated he had no knowledge as to whether
any Negro had ever served; and 11 of the 12 grand jurors (other
than the foreman) who served when respondents were indicted, none
of whom testified relative to selection of the foreman or the race
of past foremen. The trial court denied the plea. Subsequently,
respondents were convicted, and the Tennessee Court of Criminal
Appeals affirmed. Respondents then filed a habeas corpus petition
in Federal District Court, which dismissed the petition, finding
that respondents'
prima facie case of discrimination in
selecting the grand jury foreman was rebutted by the State. The
Court of Appeals reversed.
Held:
1. Claims of racial discrimination in the selection of members
of a state grand jury are cognizable in federal habeas corpus and
will support issuance of a writ setting aside a conviction and
ordering the indictment quashed, notwithstanding that no
constitutional impropriety tainted the selection of the petit jury
and guilt was established beyond a reasonable doubt at a trial free
from constitutional error. Pp.
443 U. S.
550-564.
(a) Because discrimination on the basis of race in the selection
of members of a grand jury strikes at fundamental values of our
judicial system and our society as a whole, a criminal defendant's
right to equal protection of the laws is denied when he is indicted
by a grand jury from which members of a racial group have been
purposefully excluded. Pp.
443 U. S. 551-557.
(b) Such costs as exist in permitting a federal court to hear
claims of racial discrimination in the selection of a grand jury
when reviewing
Page 443 U. S. 546
a state conviction are outweighed by the recognized policy of
combatting racial discrimination in the administration of justice.
Even though there are alternative remedies to vindicate the rights
of those members of the class denied the chance to serve on grand
juries, the fact is that permitting challenges to unconstitutional
state action by defendants has been, and is, the main avenue by
which Fourteenth Amendment rights are vindicated in this context.
Pp.
443 U. S.
557-559.
(c) The rationale of
Stone v. Powell, 428 U.
S. 465, in which it was held that, where the State has
provided an opportunity for full and fair litigation of a Fourth
Amendment claim at trial and on direct review, a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained through an unconstitutional search and seizure
was introduced at his trial, will not be extended to a claim of
discrimination in the selection of the grand jury that indicts the
habeas petitioner. This latter claim differs fundamentally from
application on habeas of the Fourth Amendment exclusionary rule.
Such a claim concerns allegations that the trial court itself
violated the Fourteenth Amendment in the operation of the grand
jury system, whereas in Fourth Amendment cases, courts are called
upon to evaluate the actions of the police in seizing evidence.
Moreover, a claim of grand jury discrimination involves charges
that state officials are violating the direct command of the Equal
Protection Clause of the Fourteenth Amendment, and federal statutes
passed thereunder, that "[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws." Federal
habeas review is necessary to ensure that constitutional defects in
the state judiciary's grand jury selection procedure are not
overlooked by the very state judges who operate that system. Pp.
443 U. S.
559-564.
2. As a matter of law, respondents failed to make out a
prima facie case of discrimination in violation of the
Equal Protection Clause with regard to the selection of the grand
jury foreman. Respondents' case rested entirely on the testimony of
the two former foremen and the current foreman, since they were the
only ones who testified at all about the selection of a foreman,
and their testimony was insufficient to establish respondents'
case. Absent evidence as to the total number of foremen appointed
by the judges in the county during the critical period of time, it
is difficult to say that the number of Negroes appointed foreman,
even if zero, is statistically so significant as to make out a case
of discrimination under the "rule of exclusion." Pp.
443 U. S.
564-574.
570 F.2d 129, reversed and remanded.
Page 443 U. S. 547
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN and MARSHALL, JJ., joined; in Parts I, III, and IV of which
BURGER, C.J., and REHNQUIST, J., joined; and in Parts I and II of
which WHITE and STEVENS, JJ., joined. REHNQUIST, J., filed a
statement concurring in part,
post, p.
443 U. S. 574.
STEWART, J.,
post, p.
443 U. S. 574,
and POWELL, J.,
post, p.
443 U. S. 579,
filed opinions concurring in the judgment, in which REHNQUIST, J.,
joined. WHITE, J., filed a dissenting opinion, in which STEVENS,
J., joined,
post, p.
443 U. S. 588.
STEVENS, J., filed an opinion dissenting in part,
post, p.
443 U. S.
593.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
*
In this federal habeas corpus case, respondents claim they were
the victims of racial discrimination, in violation of the Equal
Protection Clause of the Fourteenth Amendment, in the selection of
the foreman of the Tennessee grand jury that indicted them for
murders in the first degree. As the case comes to this Court, no
issue of discrimination in the selection of the venire is
presented; we are concerned only with the selection of the
foreman.
I
In November 1972, respondents James E. Mitchell and James
Nichols, Jr., and two other men were jointly indicted by the grand
jury of Tipton County, Tenn. The four were charged in two counts of
first-degree murder in connection with the shooting deaths of
patrons during the robbery of
Page 443 U. S. 548
a place known as White's Cafe. [
Footnote 1] Prior to trial, respondents filed with the
trial court a written
pro se motion in the nature of a
plea in abatement. App. 1. They sought thereby, together with other
relief, the dismissal of the indictment on the grounds that the
grand jury array, and the foreman, had been selected in a racially
discriminatory fashion. [
Footnote
2] Each respondent is a Negro.
Page 443 U. S. 549
The court appointed counsel to represent respondents, and in due
course conducted an evidentiary hearing on the plea in abatement.
At that hearing, testimony on behalf of the respondents was taken
from the 3 Tipton County jury commissioners; from 2 former Tipton
County grand jury foremen; from the foreman of the grand jury
serving at the time respondents were indicted; and from 11 of the
12 other members of that grand jury. The court clerk was a witness
on behalf of the State.
Id. at 3-35.
At the close of this evidence, the court denied the plea in
abatement, first orally, and then by written order, without
comment.
Id. at 35 and 36.
Respondents were then tried jointly to a jury. A verdict of
guilty of first-degree murder on each count was returned.
Respondents received sentences of 60 years on each count, the
sentences to run consecutively with credit allowed for time spent
in jail awaiting trial.
On appeal, the Court of Criminal Appeals of Tennessee affirmed
the convictions, finding, with respect to an assignment of error
relating to the plea in abatement, that the "facts here do not
demonstrate a systematic exclusion of Negroes upon racial grounds."
Id. at 38-39. The Supreme Court of Tennessee denied
certiorari.
Id. at 42.
Respondents each then filed a
pro se petition for a
writ of habeas corpus in the United States District Court for the
Western District of Tennessee,
id. at 43 52, 62-73,
renewing, among other things, the allegation of discrimination in
the selection of the Tipton County grand jury and its foreman. The
District Court referred the petitions to a magistrate who, after
reviewing the evidence introduced in the state court at the hearing
on the plea in abatement and studying the method of selection,
recommended that the court hold an evidentiary hearing on the grand
jury and jury foreman selection issues. Specifically, the
magistrate concluded that respondents had presented an unrebutted
prima facie case
Page 443 U. S. 550
with respect to. the selection of the foreman.
Id. at
84, 90, 97. The District Court disagreed with the magistrate as to
the grand jury, and concluded that the state judge had ruled
correctly on that issue. On the foreman question, the District
Court went along with the magistrate, and ordered the State to make
further response.
Id. at 98. The State then submitted
affidavits from the acting foreman of the grand jury that indicted
respondents and from the state trial judge who appointed the
foreman.
Id. at 102-106, 108-113. On the basis of these
affidavits, the petitions were ordered dismissed.
Id. at
121-122.
The District Judge, however, granted the certificate of probable
cause required by Fed.Rule App. Proc. 22(b), App. 126-127, and
respondents appealed to the United States Court of Appeals for the
Sixth Circuit.
The Court of Appeals reversed. 570 F.2d 129 (1978). That court
deemed it unnecessary to resolve respondents' contentions
concerning discrimination in the selection of the grand jury
venire,
id. at 134, since it found sufficient grounds to
reverse with respect to the selection of the foreman. It remanded
the case with instructions for the entry of an order that
respondents' murder convictions be set aside and that respondents
be reindicted within 60 days or be released.
Id. at
137.
We granted certiorari to consider the foreman issue. 439 U.S.
816 (1978).
II
We initially address two arguments that, aside from the specific
facts of this particular case, go to the question whether a federal
court, as a matter of policy, should hear claims of racial
discrimination in the selection of a grand jury when reviewing a
state conviction. First, we consider whether claims of grand jury
discrimination should be considered harmless error when raised, on
direct review or in a habeas corpus proceeding, by a defendant who
has been found guilty beyond a
Page 443 U. S. 551
reasonable doubt by a properly constituted petit jury at a trial
on the merits that was free from other constitutional error.
Second, we consider the related question whether such claims should
be cognizable any longer on federal habeas corpus in light of the
decision in
Stone v. Powell, 428 U.
S. 465 (197).
A
For nearly a century, this Court in an unbroken line of cases
has held that
"a criminal conviction of a Negro cannot stand under the Equal
Protection Clause of the Fourteenth Amendment if it is based on an
indictment of a grand jury from which Negroes were excluded by
reason of their race."
Alexander v. Louisiana, 405 U.
S. 625,
405 U. S. 628
(1972);
Bush v. Kentucky, 107 U.
S. 110,
107 U. S. 119
(1883);
Neal v. Delaware, 103 U.
S. 370,
103 U. S. 394
(1881).
See Castaneda v. Partida, 430 U.
S. 482,
430 U. S.
492-495, and n. 12 (1977). [
Footnote 3] A criminal defendant
"is entitled to require that the State not deliberately and
systematically deny to members of his race the right to participate
as jurors in the administration of justice."
Alexander v. Louisiana, 405 U.S. at
405 U. S.
628-629. Accordingly, where sufficient proof of
discrimination in violation of the Fourteenth Amendment has been
made out and not rebutted, this Court uniformly has required that
the conviction be set aside and the indictment returned by the
unconstitutionally constituted grand jury be quashed.
E.g.,
Hill v. Texas, 316 U. S. 400,
316 U. S. 406
(1942). [
Footnote 4]
Page 443 U. S. 552
Until today, only one Justice among those who have served on
this Court in the 100 years since
Strauder v. West
Virginia, 100 U. S. 303
(1880), has departed from this line of decisions. In his dissent in
Cassell v. Texas, 339 U. S. 282,
339 U. S. 28
(1950), Mr. Justice Jackson voiced this lone objection by arguing
that federal courts should not set aside criminal convictions
solely on the ground that discrimination occurred in the selection
of the grand jury, so long as no constitutional impropriety tainted
the selection of the petit jury, and guilt was established beyond a
reasonable doubt at a trial free from constitutional error. The
Cassell dissent noted that discrimination in the selection
of the grand jury had nothing to do with the fairness of the trial
or the guilt or innocence of the defendant, and that reversal based
on such discrimination conflicted
"with another principle important to our law,
viz.,
that no conviction should be set aside for errors not affecting
substantial rights of the accused."
Id. at
339 U. S.
299.
Mr. Justice Jackson could discern no reason to permit this
conflict. In the first place, he noted, the convicted defendant
suffered no possible prejudice. Unlike the petit jury, the grand
jury sat only to determine probable cause to hold the defendant for
trial. It did not consider the ultimate issue of guilt or
innocence. Once a trial court heard all the evidence and determined
it was sufficient to submit the case to the trier of fact, and once
that trier determined that the defendant was guilty beyond a
reasonable doubt, Mr. Justice Jackson believed that it "hardly lies
in the mouth of a defendant . . . to say that his indictment is
attributable to prejudice."
Id. at
339 U. S. 302.
"Under such circumstances," he concluded, "it is frivolous to
contend that any grand jury, however constituted, could have done
its duty in any way other than to indict."
Ibid.
Page 443 U. S. 553
Nor did Mr. Justice Jackson believe the
Strauder line
of cases to be justified by a need to enforce the rights of those
discriminated against to sit on grand juries without regard to
their race. He pointed out that Congress had made it a crime to
discriminate in this manner, 18 U.S.C. § 243, [
Footnote 5] and that civil remedies at law and
equity were available to members of the class discriminated
against. Accordingly, Mr. Justice Jackson would have held that
"discrimination in selection of the grand jury . . however great
the wrong toward qualified Negroes of the community, was harmless
to this defendant,"
339 U.S. at
339 U. S. 304,
and would have left enforcement of Fourteenth Amendment interests
to criminal prosecutions under § 243 and civil actions instituted
by such "qualified Negroes."
This position for the first time has attracted the support of
additional Members of the Court, as expressed in the separate
opinion of MR. JUSTICE STEWART in this case. Echoing the
Cassell dissent, this separate opinion asserts that
"the time has come to acknowledge that Mr. Justice Jackson's
[position] is unanswerable, and to hold that a defendant may not
rely on a claim of grand jury discrimination to overturn an
otherwise valid conviction."
Post at
443 U. S. 575.
It argues that the conviction of the defendant should be a break in
the chain of events that preceded it, and notes that, where Fourth
or Fifth Amendment rights are violated, the evidence illegally
obtained is suppressed, but "the prosecution is not barred
altogether."
Post at
443 U. S.
576-577, n. 4. The separate opinion believes
Page 443 U. S. 554
that any other interests that are harmed by grand jury
discrimination may be protected adequately by prosecutions, civil
actions, or pretrial remedies available to defendants. In such
circumstances, it finds the heavy social cost entailed in a
reversal unjustified, especially in light of the fact the defendant
himself has suffered no prejudice. Accordingly, the separate
opinion would not recognize, either on direct review or on an
application for a writ of habeas corpus, a claim of grand jury
discrimination as a valid ground for setting aside a criminal
conviction. [
Footnote 6]
This Court, of course, consistently has rejected this argument.
It has done so implicitly in those cases in which it has reaffirmed
the
Strauder principle in the context of grand jury
discrimination.
E.g., Reece v. Georgia, 350 U. S.
85,
350 U. S. 87
(1955);
Alexander v. Louisiana, 405 U.S. at
405 U. S. 628.
And it has done so expressly, where the argument was pressed in the
guise of the claim that the constitutional rights of the defendant
are not violated by grand jury discrimination, since an indictment
only brings that defendant before the petit jury for trial.
Pierre v. Louisiana, 306 U. S. 354,
306 U. S.
356-358 (1939).
See Cassell v. Texas, 339 U.S.
at
339 U. S. 290
(Frankfurter, J., concurring);
id. at
339 U. S. 296
(Clark, J., concurring). We decline now to depart from this
longstanding consistent practice, and we adhere to the Court's
previous decisions.
Discrimination on account of race was the primary evil at which
the Amendments adopted after the War Between the States, including
the Fourteenth Amendment, were aimed. The Equal Protection Clause
was central to the Fourteenth Amendment's prohibition of
discriminatory action by the
Page 443 U. S. 555
State: it banned most types of purposeful discrimination by the
State on the basis of race in an attempt to lift the burdens placed
on Negroes by our society. It is clear from the earliest cases
applying the Equal Protection Clause in the context of racial
discrimination in the selection of a grand jury that the Court,
from the first, was concerned with the broad aspects of racial
discrimination that the Equal Protection Clause was designed to
eradicate, and with the fundamental social values the Fourteenth
Amendment was adopted to protect, even though it addressed the
issue in the context of reviewing an individual criminal
conviction. Thus, in the first case establishing the principles
that have guided the Court's decisions these 100 years, the Court
framed the issue in terms of the larger concerns with racial
discrimination in general that it understood as being at the core
of the Fourteenth Amendment:
"The very fact that colored people are singled out and expressly
denied by a statute all right to participate in the administration
of the law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an assertion of
their inferiority, and a stimulant to that race prejudice which is
an impediment to securing to individuals of the race that equal
justice which the law aims to secure to all others. . . . [T]he
apprehension that, through prejudice, [such persons] might be
denied that equal protection, that is, that there might be
discrimination against them, was the inducement to bestow upon the
national government the power to enforce the provision that no
State shall deny to them the equal protection of the laws."
Strauder v. West Virginia, 100 U.S. at
100 U. S. 308,
100 U. S.
309.
Discrimination on the basis of race, odious in all aspects, 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 of justice, and
Page 443 U. S. 556
thereby casts doubt on the integrity of the judicial process.
The exclusion from grand jury service of Negroes, or any group
otherwise qualified to serve, impairs the confidence of the public
in the administration of justice. As this Court repeatedly has
emphasized, such 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."
Smith v. Texas, 311 U. S. 128,
311 U. S. 130
(1940) (footnote omitted). The harm is not only to the accused,
indicted as he is by a jury from which a segment of the community
has been excluded. It is to society as a whole.
"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."
Ballard v. United States, 329 U.
S. 187,
329 U. S. 195
(1946).
Because discrimination on the basis of race in the selection of
members of a grand jury thus strikes at the fundamental values of
our judicial system and our society as a whole, the Court has
recognized that a criminal defendant's right to equal protection of
t.he laws has been denied when he is indicted by a grand jury from
which members of a racial group purposefully have been excluded.
E.g., Neal v. Delaware, 103 U.S. at
103 U. S. 394;
Reece v. Georgia, 350 U.S. at
350 U. S. 87.
For this same reason, the Court also has reversed the conviction
and ordered the indictment quashed in such cases without inquiry
into whether the defendant was prejudiced in fact by the
discrimination at the grand jury stage. Since the beginning, the
Court has held that, where discrimination in violation of the
Fourteenth Amendment is proved,
"'[t]he court will correct the wrong, will quash the
indictment[,] or the panel[;] or, if not, the error will be
corrected in a superior court,' and ultimately in this court upon
review,"
and all without regard to prejudice.
Neal v. Delaware,
103 U.S. at
103 U. S. 394,
quoting
Virginia v. Rives, 100 U.
S. 313,
100 U. S. 322
(1880).
See Bush v. Kentucky,
Page 443 U. S. 557
107 U.S. at
107 U. S. 119.
The Court in
Hill v. Texas, 316 U.S. at
316 U. S. 406,
stated:
"[N]o State is at liberty to impose upon one charged with crime
a discrimination in its trial procedure which the Constitution and
an Act of Congress passed pursuant to the Constitution alike
forbid. Nor is this Court at liberty to grant or withhold the
benefits of equal protection, which the Constitution commands for
all, merely as we may deem the defendant innocent or guilty.
Tumey v. Ohio, 273 U. S. 510,
273 U. S.
535. It is the State's function, not ours, to assess the
evidence against a defendant. But it is our duty as well as the
State's to see to it that, throughout the procedure for bringing
him to justice, he shall enjoy the protection which the
Constitution guarantees. Where, as in this case, timely objection
has laid bare a discrimination in the selection of grand Jurors,
the conviction cannot stand, because the Constitution prohibits the
procedure by which it was obtained. Equal protection of the laws is
something more than an abstract right. It is a command which the
State must respect, the benefits of which every person may demand.
Not the least merit of our constitutional system is that its
safeguards extend to all -- the least deserving as well as the most
virtuous. [
Footnote 7]"
We do not deny that there are costs associated with this
approach. But the remedy here is in many ways less drastic than in
situations where other constitutional rights have been violated. In
the case of a Fourth or Fifth Amendment violation, the violation
often results in the suppression of evidence that is highly
probative on the issue of guilt. Here,
Page 443 U. S. 558
however, reversal does not render a defendant "immune from
prosecution," nor is a subsequent reindictment and reprosecution
"barred altogether," as MR. JUSTICE STEWART s opinion suggests.
Post at
443 U. S.
576-577, n. 4.
"A prisoner whose conviction is reversed by this Court need not
go free if he is in fact guilty, for [the State] may indict and try
him again by the procedure which conforms to constitutional
requirements."
Hill v. Texas, 316 U.S. at
316 U. S. 406.
And in that subsequent prosecution, the State remains free to use
all the proof it introduced to obtain the conviction in the first
trial.
In any event, we believe such costs as do exist are outweighed
by the strong policy the Court consistently has recognized of
combating racial discrimination in the administration of justice.
And regardless of the fact that alternative remedies remain to
vindicate the rights of those members of the class denied the
chance to serve on grand juries, the fact is that permitting
challenges to unconstitutional state action by defendants has been,
and is, the main avenue by which Fourteenth Amendment rights are
vindicated in this context. Prosecutions under 18 U.S.C. § 243 have
been rare, and they are not under the control of the class members
and the courts. Civil actions, expensive to maintain and lengthy,
have not often been used. And even assuming that some type of
pretrial procedure would be open to a defendant,
e.g.,
petitioning for a writ of habeas corpus in federal court, under
such a procedure the vindication of federal constitutional rights
would turn on a race to obtain a writ before the State could
commence the trial.
We think the better view is to leave open the route that, over
time, has been the main one by which Fourteenth Amendment rights in
the context of grand jury discrimination have been vindicated. For
we also cannot deny that, 114 years after the close of the War
Between the States and nearly 100 years after
Strauder,
racial and other forms of discrimination still remain a fact of
life, in the administration of justice as in our
Page 443 U. S. 559
society as a whole. Perhaps today that discrimination takes a
form more subtle than before. But it is not less real or
pernicious. We therefore decline "to reverse a course of decisions
of long standing directed against racial discrimination in the
administration of justice,"
Cassell v. Texas, 339 U.S. at
339 U. S. 290
(Frankfurter, J., concurring), and we adhere to our position that
discrimination in the selection of the grand jury remains a valid
ground for setting aside a criminal conviction. [
Footnote 8]
B
The State makes the additional argument that the decision in
Stone v. Powell, 428 U. S. 465
(1976), should be extended so as to foreclose a grant of federal
habeas corpus relief to a state prisoner on the ground of
discrimination in the selection of the grand jury. MR. JUSTICE
POWELL, dissenting in
Castaneda v. Partida, 430 U.S. at
430 U. S. 508
n. 1, joined by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, and at
least inferentially by MR. JUSTICE STEWART,
id. at
430 U. S. 507,
specifically observed that a "strong case may be made that claims
of grand jury discrimination are not cognizable on federal habeas
corpus after
Stone v. Powell." In this connection, MR.
JUSTICE POWELL noted that a claim by a convicted prisoner of grand
jury discrimination goes only to the "moot determination by the
grand jury that there was sufficient cause to proceed to trial,
[and not to any] flaw in the trial itself."
Id. at
430 U. S. 508
n. 1. He concluded that, as in
Stone,
"the incremental benefit of extending habeas corpus as a means
of correcting unconstitutional grand jury selection procedures
might be viewed as 'outweighed by the acknowledged costs to other
values vital to a rational system of criminal justice.'"
430 U.S. at
430 U. S. 508
n. 1, quoting
Stone, 428 U.S. at
428 U. S.
494.
Page 443 U. S. 560
The State echoes these arguments. It contends that habeas corpus
relief should be granted only where the error alleged in support of
that relief affected the determination of guilt. In this case, as
in
Stone v. Powell, it argues, no error affected the trial
on the merits. Moreover, only a relatively minor error, involving
the nonvoting foreman of the grand jury, and not the entire venire,
is at issue. Accordingly, following its interpretation of
Stone, the State contends that the benefits derived from
extending habeas relief in this case are outweighed by the costs
associated with reversing a state conviction entered upon a finding
of guilt beyond a reasonable doubt at a trial free from
constitutional error. [
Footnote
9]
In
Stone v. Powell, however, the Court carefully
limited the reach of its opinion. It stressed that its decision to
limit review was "
not concerned with the scope of the
habeas corpus statute as authority for litigating constitutional
claims generally." 428 U.S. at
428 U. S. 495
n. 37 (emphasis in original). Rather, the Court made it clear that
it was confining its ruling to cases involving the judicially
created exclusionary rule, which had minimal utility when applied
in a habeas corpus proceeding. "In sum," the Court concluded, it
was holding
"only that a federal court need not apply the exclusionary rule
on habeas review of a Fourth Amendment claim absent a showing that
the state prisoner was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review."
Ibid.
Mindful of this limited reach of
Stone, we conclude
that a claim of discrimination in the selection of the grand jury
differs so fundamentally from application on habeas of the
Page 443 U. S. 561
Fourth Amendment exclusionary rule that the reasoning of
Stone v. Powell should not be extended to foreclose habeas
review of such claims in federal court.
In the first place, claims such as those pressed by respondents
in this case concern allegations that the trial court itself
violated the Fourteenth Amendment in the operation of the grand
jury system. In most such cases, as in this one, this same trial
court will be the court that initially must decide the merits of
such a claim, finding facts and applying the law to those facts.
This leads us to doubt that claims that the operation of the grand
jury system violates the Fourteenth Amendment in general will
receive the type of full and fair hearing deemed essential to the
holding of
Stone. See, e.g., 428 U.S. at
428 U. S. 494,
428 U. S. 495
n. 37. In Fourth Amendment cases, courts are called upon to
evaluate the actions of the police in seizing evidence, and this
Court believed that state courts were as capable of performing this
task as federal habeas courts.
Id. at
428 U. S.
493-494, n. 35. But claims that the state judiciary
itself has purposely violated the Equal Protection Clause are
different. There is a need in such cases to ensure that an
independent means of obtaining review by a federal court is
available on a broader basis than review only by this Court will
permit. A federal forum must be available if a full and fair
hearing of such claims is to be had.
Beyond this, there are fundamental differences between the claim
here at issue and the claim at issue in
Stone v. Powell.
Allegations of grand jury discrimination involve charges that state
officials are violating the direct command of the Fourteenth
Amendment, and federal statutes passed under that Amendment, that
"[n]o State shall . . . deny to any person within its jurisdiction
the equal protection of the laws." Since the first days after
adoption of the Amendment, the Court has recognized that, by its
direct operation, the Equal Protection Clause forbids the States to
discriminate in the selection of members of a grand jury. This
contrasts with
Page 443 U. S. 562
the situation in
Stone, where the Court considered
application of "a judicially created remedy, rather than a personal
constitutional right." 428 U.S. at
428 U. S. 495
n.37. Indeed, whereas the Fourteenth Amendment, by its terms,
always has been directly applicable to the States, the Fourth
Amendment and its attendant exclusionary rule only recently have
been applied fully to the States.
In this context, the federalism concerns that motivated the
Court to adopt the rule of
Stone v. Powell are not
present. Federal courts have granted relief to state prisoners upon
proof of the proscribed discrimination for nearly a century.
See, e.g., Virginia v. Rives, 100 U.S. at
100 U. S. 322.
The confirmation that habeas corpus remains an appropriate vehicle
by which federal courts are to exercise their Fourteenth Amendment
responsibilities is not likely further to increase
"'friction between our federal and state systems of justice, [or
impair] the maintenance of the constitutional balance upon which
the doctrine of federalism is founded.'"
Stone v. Powell, 428 U.S. at 491 n. 31, quoting
Schneckloth v. Bustamonte, 412 U.
S. 218,
412 U. S. 259
(1973) (POWELL, J., concurring).
Further,
Stone rested to a large extent on the Court's
perception that the exclusionary rule is of minimal value when
applied in a federal habeas proceeding. The Court there found that
the deterrent value of the exclusionary rule was not enhanced by
the possibility that a
"conviction obtained in state court and affirmed on direct
review might be overturned in collateral proceedings often
occurring years after the incarceration of the defendant."
428 U.S. at
428 U. S. 493.
Nor did the Court believe that the
"overall educative effect of the exclusionary rule would be
appreciably diminished if search and seizure claims could not be
raised in federal habeas corpus review of state convictions."
Ibid. And it could not find any basis to say that
federal review would reveal flaws in the search or seizure that had
gone undetected at trial or on appeal.
Ibid. In these
circumstances, the Court concluded
Page 443 U. S. 563
that the benefits of applying the Fourth Amendment exclusionary
rule on federal habeas did not outweigh the costs associated with
it.
None of this reasoning has force here. Federal habeas review is
necessary to ensure that constitutional defects in the state
judiciary's grand jury selection procedure are not overlooked by
the very state judges who operate that system. There is strong
reason to believe that federal review would indeed reveal flaws not
appreciated by state judges perhaps too close to the day-to-day
operation of their system to be able properly to evaluate claims
that the system is defective. The educative and deterrent effect of
federal review is likely to be great, since the state officials who
operate the system, judges or employees of the judiciary, may be
expected to take note of a federal court's determination that their
procedures are unconstitutional, and must be changed.
We note also that
Stone rested to an extent on the
Court's feeling that state courts were as capable of adjudicating
Fourth Amendment claims as were federal courts. But where the
allegation is that the state judiciary itself engages in
discrimination in violation of the Fourteenth Amendment, there is a
need to preserve independent federal habeas review of the
allegation that federal rights have been transgressed. As noted
above, in this case, the very judge whose conduct respondents
challenged decided the validity of that challenge.
It is also true that the concern with judicial integrity,
deprecated by the Court in
Stone in the context of habeas
review of exclusionary rule issues, is of much greater concern in
grand jury discrimination cases. The claim that the court has
discriminated on the basis of race in a given case brings the
integrity of the judicial system into direct question. The force of
this justification for extending federal habeas review cannot be
said to be minimal where allegations of improper judicial conduct
are made.
As pointed out in our discussion of the
Cassell
dissent, it
Page 443 U. S. 564
is tempting to exaggerate the costs associated with quashing an
indictment returned by an improperly constituted grand jury. In
fact, the costs associated with quashing an indictment are
significantly less than those associated with suppressing evidence.
Evidence suppressed under the Fourth Amendment may not be used by
the State in any new trial, though it be highly probative on the
issue of guilt. In contrast, after a federal court quashes an
indictment, the State remains free to use at a second trial any and
all evidence it employed at the first proceeding. A prisoner who is
guilty in fact is less likely to go free, therefore, than in cases
involving the exclusionary rule.
Hill v. Texas, 316 U.S.
at
316 U. S. 406.
Providing federal habeas corpus relief is, as a consequence, less
of an intrusion on the State's system of criminal justice than was
the case in
Stone.
Finally, we note that the constitutional interests that a
federal court adjudicating a claim on habeas of grand jury
discrimination seeks to vindicate are substantially more compelling
than those at issue in
Stone. As noted above,
discrimination on account of race in the administration of justice
strikes at the core concerns of the Fourteenth Amendment and at
fundamental values of our society and our legal system. Where
discrimination that is "at war with our basic concepts of a
democratic society and a representative government,"
Smith v.
Texas, 311 U.S. at
311 U. S. 130,
infects the legal system, the strong interest in making available
federal habeas corpus relief outweighs the costs associated with
such relief.
We therefore decline to extend the rationale of
Stone v.
Powell to a claim of discrimination in the selection of the
grand jury that indicts the habeas petitioner. And we hold that
federal habeas corpus relief remains available to provide a federal
forum for such claims.
III
Notwithstanding these holdings that claims of discrimination in
the selection of members of the grand jury are cognizable
Page 443 U. S. 565
on federal habeas corpus, and will support issuance of a writ
setting aside a state conviction and ordering the indictment
quashed, it remains true that, to be entitled to habeas relief, the
present respondents were required to prove discrimination under the
standards set out in this Court's cases. That is,
"in order to show that an equal protection violation has
occurred in the context of grand jury [foreman] selection, the
defendant must show that the procedure employed resulted in
substantial underrepresentation of his race or of the identifiable
group to which he belongs."
Castaneda v. Partida, 430 U.S. at
430 U. S. 494.
Specifically, respondents were required to prove their
prima
facie case with regard to the foreman as follows:
"The first step is to establish that the group is one that is a
recognizable, distinct class, singled out for different treatment
under the laws, as written or as applied. . . . Next, the degree of
underrepresentation must be proved, by comparing the proportion of
the group in the total population to the proportion called to serve
as [foreman], over a significant period of time. . . . This method
of proof, sometimes called the 'rule of exclusion,' has been held
to be available as a method of proving discrimination in jury
selection against a delineated class. . . . Finally . . . , a
selection procedure that is susceptible of abuse or is not racially
neutral supports the presumption of discrimination raised by the
statistical showing."
Ibid. Only if respondents established a
prima
facie case of discrimination in the selection of the foreman
in accord with this approach did the burden shift to the State to
rebut that
prima facie case.
Id. at
430 U. S.
495.
There is no question, of course, that respondents, as Negroes,
are members of a group recognizable as a distinct class capable of
being singled out for different treatment under the laws.
Id. at
430 U. S. 494;
Hernandez v. Texas, 347 U. S. 475,
Page 443 U. S. 566
347 U. S.
478-479 (1954). And one may assume for purposes of this
case that the Tennessee method of selecting a grand jury foreman is
susceptible of abuse. Accordingly, we turn to a consideration of
the evidence offered by respondents in their attempt to prove
sufficient underrepresentation to make out a
prima facie
case.
Respondents' case at the hearing on the plea in abatement
consisted in its entirety of the following:
Respondents first called as witnesses the three Tipton County
jury commissioners. These commissioners, all white, testified only
as to the selection of the grand jury venire. In view of the
Tennessee method of foreman selection,
n 2,
supra, they did not testify, and could
hardly be expected to have testified, as to the method of selection
of foremen; neither did any of them refer to the race of any past
foremen.
Respondents next called two former foremen and the current
foreman of the Tipton County grand jury. The first, Frank McBride,
testified that he was a lifelong resident of the county, but there
was no evidence as to his age, and thus as to the years he lived in
the county. McBride stated that he had served as foreman, "ten or
twelve years ago . . . for five or six years . . . and then about
two or three times since then, just for one session of Court." App.
17. In answer to respondents' inquiry whether he had "ever known of
any foreman that was a black man," McBride said "No, sir."
Id. at 18. The second past foreman, Peyton J. Smith,
stated that he had resided in Tipton County all his life but,
again, no inquiry was made to as to how long that had been. Smith
testified that he had served as foreman "for several years back in
the early '50's, and . . . several times since then on occasion of
the illness of the foreman at that time."
Id. at 20. Like
McBride, Smith answered "No" when asked whether he had ever known
of a Negro foreman.
Ibid. Jimmy Naifeh, the current
foreman, testified that he had served for approximately two years
and that he did not know "if there was or if there wasn't" ever a
Negro foreman of the county
Page 443 U. S. 567
grand jury.
Id. at 25. No inquiry was made of Naifeh as
to the length of time he had lived in the county.
Respondents then called 11 of the 12 grand jurors [
Footnote 10] (other than the
foreman) who were serving when respondents were indicted. Not one
testified relative to the selection of the foreman or the race of
past foremen. Their testimony, individually and collectively, was
to the effect that one among their number was a Negro; that they
had heard only one witness, a deputy sheriff, on respondents' case;
that no one voiced any prejudice or hostility toward respondents
because of their race; and that there was no consideration of the
fact that respondents were Negroes. Indeed, when some were asked
whether they knew whether respondents were Negroes, they answered
in the negative.
Id. at 232.
This was all the evidence respondents presented in support of
their case. In rebuttal, the State called only the clerk of the
trial court. He was asked no question relating to grand jury
foremen, and respondents made no inquiry of him on
cross-examination on that or on any other topic.
Id. at
335.
Two additional facts were stressed by the State at the later
federal habeas proceeding. The first was the recruitment, at the
1972 term, of temporary (and former) foreman Smith in place of
regular foreman Naifeh. Smith had testified at the hearing on the
plea in abatement that Naifeh "could not be here, and I was asked
to come and appear before this Court and the judge asked me to
serve."
Id. at 21. The State argued that Smith had been
selected only because the judge believed Smith, in view of his
experience, would be a capable temporary replacement for the
regular foreman. This proper motive, the State said, negated any
claim that racial discrimination played a role in the selection of
Smith to be
Page 443 U. S. 568
temporary foreman. The second fact was that the temporary
foreman did not vote on the indictment returned against
respondents,
see id. at 105; this was because the other 12
had all voted to indict, and the temporary foreman's vote therefore
was unnecessary. Thus, the State argued, any possible error in the
selection of the foreman was harmless, and of no consequence to
respondents.
In support of its argument to the federal habeas court, the
State submitted the affidavit of the judge who had selected the
temporary foreman and the permanent foreman, and who had presided
at the hearing on the plea in abatement as well as at respondents'
trial. The judge, who had served since 1966,
id. at 5, a
period of seven years, stated that Naifeh "was unable to serve
because he was going to be out of the County at the November, 1972,
term."
Id. at 112. The judge went on to say that he had
appointed Smith temporary foreman because Smith had had experience
"and does a good job as such foreman." The affidavit concluded:
"In my five counties, I do not have a black grand jury foreman,
although I have a black member of my Jury Commission in one county.
Most all of my Grand Juries and Petit Juries have sizeable numbers
of blacks on them, both men and women. I don't appoint Grand Jury
Foreman very often, because, when their two-year term expires, I
usually reappoint them; thus, they serve a long time, and the
problem doesn't come up very often. I don't think that I have
really given any thought to appointing a black foreman, but I have
no feeling against doing so."
Id. at 113.
It was on the basis of this material in rebuttal that the
District Court declined to issue the writs of habeas corpus. It
found that no racial discrimination had been proved, since the
foreman had been "selected for other than racial reasons, and . . .
did not vote at the time the indictment was rendered."
Id.
at 122.
Page 443 U. S. 569
The Court of Appeals, in reversing, conceded: "The facts
elicited at the pretrial hearing were meager." 570 F.2d at 132. It
went on, however, to note:
"There has never been a black foreman or forewoman of a grand
jury in Tipton County according to the recollections of the trial
judge, three jury commissioners, and three former foremen."
Id. at 134-135. This fact, the court concluded, coupled
with the opportunity for discrimination found to be inherent in the
selection system, was sufficient to make out a
prima facie
case of discrimination in the selection of the foreman. And the
Court of Appeals held that the State had failed to rebut that case.
The exculpatory affidavit of the judge asserting a benign reason
for the selection of the foreman, in the court's view, could not
serve to rebut respondents' case in the absence of proof that there
were no qualified Negroes to serve as foreman. The fact the foreman
did not vote, the court held, similarly did not support the
District Court's judgment, since the broad powers exercised by the
foreman in conducting the grand jury's proceedings meant that
respondents could have been prejudiced, even though the foreman had
not cast a vote against them.
IV
In reaching our conclusion in disagreement with the Court of
Appeals, we note first that that court seems to have overemphasized
and exaggerated the evidence in support of its conclusion that
there had "never been a black foreman or forewoman of a grand jury
in Tipton County." The Court of Appeals believed this conclusion
had been proved by the recollections of the trial judge, the
testimony of three jury commissioners, and the testimony of three
former foremen.
Ibid. But recollections of the trial judge
-- by which the Court of Appeals presumably meant the affidavit
filed in Federal District Court by the trial judge formed no part
of the case put on by respondents. (Indeed, the Court of
Page 443 U. S. 570
Appeals seems to have recognized this in another portion of its
opinion, where it considered the state trial judge's affidavit to
have been offered in rebuttal of the respondents' asserted
prima facie case.) And the jury commissioners gave no
testimony whatsoever relating to foremen of the grand jury, to the
method of selecting foremen, or to the race of past foremen. Thus,
respondents'
prima facie case as to discrimination in the
selection of grand jury foremen rested entirely and only on the
testimony of the three foremen. On the record of this case, it is
that testimony alone upon which respondents' allegations of
discrimination must stand or fall.
The testimony of the three foremen, however, did not establish
respondents' case. First, it cannot be said that the testimony
covered any significant period of time. Smith testified that he
served in the early 1950's and occasionally thereafter, but, except
for the fact that Smith was resident in the county, and for his
negative answer to the question whether he had "known of any
foreman that has been black," there is nothing in the record to
show that Smith knew who had served as foremen in the interim years
when he was not serving. Similarly, McBride testified that he had
served for 5 or 6 years some 10 or 12 years prior to the 1973
hearing, and on two or three occasions since then, and had not
known of any Negro's having acted as foreman of the grand jury, but
he gave no indication that he was knowledgeable as to the years not
covered by this service. Naifeh's testimony was the weakest from
respondents' point of view. He had served as foreman for only two
years prior to the hearing, and he did not know one way or the
other whether a Negro had served as foreman of the county grand
jury. Thus, even assuming that the period 1951-1973 is the
significant one for purposes of this case, respondents' evidence
covered only portions of that time, and left a number of years
during that period about which no evidence whatsoever was
offered.
Moreover, such evidence as was provided by the testifying
Page 443 U. S. 571
foremen was of little force. McBride and Smith simply said "No"
in response to the question whether either had ever known of any
Negro foreman. Naifeh could give no information on the point. There
thus was no positive testimony that no Negro had ever served during
the critical period of time; the only testimony was that three
foremen who served for parts of that period had no knowledge of
any. And there is no indication in the record that Smith, McBride,
and Naifeh necessarily would have been aware had a Negro ever
served as foreman.
Most important, there was no evidence as to the total number of
foremen appointed by the judges in Tipton County during the
critical period of time. Absent such evidence, it is difficult to
say that the number of Negroes appointed foreman, even if zero, is
statistically so significant as to make out a case of
discrimination under the "rule of exclusion." The only testimony in
the record concerning Negro population of the county was to the
effect that it was approximately 30%. [
Footnote 11] App. 11. Given the fact that any foreman
was not limited in the number of 2-year terms he could serve, and
given the inclination on the part of the judge to reappoint, it is
likely that, during the period in question, only a few persons in
actual number served as foremen of the grand jury. If the number
was small enough, the disparity between the ratio of Negroes chosen
to be foreman to the total number of foremen, and the ratio of
Negroes to the total population of the county, might not be
"sufficiently large [that] it is unlikely that [this disparity] is
due solely to chance or accident."
Castaneda v. Partida,
430 U.S. at
430 U. S. 494
n. 13. Inasmuch as there is no evidence in the record of the number
of foremen appointed, it is not possible to perform the
calculations and comparisons needed to permit a court to conclude
that a statistical case of
Page 443 U. S. 572
discrimination had been made out,
id. at
430 U. S.
496-497, n. 17, and proof under the "rule of exclusion"
fails.
Id. at
430 U. S. 494
n. 13;
see Hernandez v. Texas, 347 U.S. at
347 U. S. 480.
[
Footnote 12]
Comparison of the proof introduced by respondents in this case
with the proof offered by defendants in cases where this Court has
found that a
prima facie case was made out is most
instructive. In
Norris v. Alabama, 294 U.
S. 587 (1935), for example, the defendant proved his
case by witnesses who testified as to the number of Negroes called
for jury duty. The evidence in support of the
prima facie
case was summarized by the Court:
"It appeared that no negro had served on any grand or petit jury
in that county within the memory of witnesses who had lived there
all their lives. Testimony to that effect was given by men whose
ages ran from fifty to seventy-six years. Their testimony was
uncontradicted. It was supported by the testimony of officials. The
clerk of the jury commission and the clerk of the circuit court had
never known of a negro serving on a grand jury in Jackson County.
The court reporter, who had not missed a session in that county in
twenty-four years, and two jury commissioners testified to the same
effect. One of the latter, who was a member of the commission which
made up the jury roll for the grand jury which found the
indictment, testified that he had 'never known of a single instance
where any negro sat on any grand or
Page 443 U. S. 573
petit jury in the entire history of that county.'"
Id. at
294 U. S. 591.
See Castaneda v. Partida, 430 U.S. at
430 U. S.
495-496;
Eubanks v. Louisiana, 356 U.
S. 584,
356 U. S.
586-587 (1958);
Reece v. Georgia, 350 U.S. at
350 U. S. 87-88;
Hill v. Texas, 316 U.S. at
316 U. S.
402-404.
The comparison of the evidence in
Norris and in the
other cited cases stands in stark contrast with the evidence in the
present case. All that we have here to establish the
prima
facie case is testimony from two former foremen and from a
briefly serving present foreman that they had no knowledge of a
Negro's having served. There is no evidence that these foremen were
knowledgeable about years other than the ones in which they
themselves served. And there is no evidence to fill in the gaps for
the years they did not serve. In contrast to
Norris, there
is no direct assertion that, for long periods of time, no Negro had
ever served, or that officials with access to county records could
state that none had ever served. And there is no basis in the
record upon which to determine that, even assuming no Negro had
ever served as foreman, that fact statistically was so significant
as to support an inference that the disparity between the Negroes
serving and the Negro population in the county was the result of
discrimination in violation of the Fourteenth Amendment.
It thus was error for the District Court to have concluded
initially that respondents made out a
prima facie case.
And it was error, as well, for the Court of Appeals to have reached
the same final conclusion. The State, however, under questioning at
oral argument, tended to concede that the finding that a
prima
facie case had been established was correct ("we did not
contest that"), Tr. of Oral Arg. 6-7, and did the same in its
brief, although there it described the proof as "very
questionable." Brief for Petitioner 26.
Normally, a flat concession by the State might be given effect.
But the inadequacy of respondents' proof is plain. And the error of
the Court of Appeals in exaggerating the
Page 443 U. S. 574
extent of that proof is equally plain. We decline to overlook so
fundamental a defect in respondents' case. [
Footnote 13]
Accordingly, we hold that, as a matter of law, respondents
failed to make out a
prima facie case of discrimination in
violation of the Equal Protection Clause of the Fourteenth
Amendment with regard to the selection of the grand jury foreman.
The judgment of the Court of Appeals is therefore reversed, and the
case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
* MR. CHIEF JUSTICE BURGER and MR. JUSTICE REHNQUIST join only
Parts I, III, and IV of the opinion, and MR. JUSTICE WHITE and MR.
JUSTICE STEVENS join only Parts I and II.
[
Footnote 1]
The Constitution of Tennessee requires that any prosecution for
the crimes with which respondents were charged be instituted by
presentment or indictment by a grand jury. Tenn. Const., Art. I, §
14.
[
Footnote 2]
In Tennessee, the grand jury is composed of 12 grand jurors,
Tenn.Code Ann. § 40-1501 (1975), and a foreman or forewoman who
"shall be 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."
§ 40-1506 (Supp. 1978). The foreman or forewoman is appointed
for a term of two years by the judge of the court having criminal
jurisdiction in the county.
Ibid. There is no limitation
on reappointment. The foreman or forewoman must be at least 25
years of age, "shall be a good and lawful man or woman," and
possess all the other qualifications required of Tennessee jurors.
§ 40-1507 (Supp. 1978).
See § 22-101 (Supp. 1978).
The members of the grand jury, other than the foreman or
forewoman, are selected through the operation of the "key man"
system, whereby three jury commissioners compile a list of
qualified potential jurors from which the grand jurors are selected
at random.
See §§ 22-223 to 22-228 (Supp. 1978); §§
40-1501 and 40-1502 (1975). Twelve members of the grand jury must
concur in order to return an indictment. § 40-1706 (1975). The
foreman or forewoman may be 1 of the 12.
Bolen v.
State, 554 S.W.2d 918,
920 (Tenn.Crim.App. 1976). The foreman or forewoman acts as
chairman or "presiding officer."
State v. Collins, 65
Tenn. 151, 153 (1873). 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. Tenn.Code Ann. §§ 40-1510,
40-1622, 40-1706, and 40-1709 (1975 and Supp. 1978). The absence of
the foreman's endorsement makes an indictment "fatally defective."
Bird v. State, 103 Tenn. 343, 344, 52 S.W. 1076
(1899).
[
Footnote 3]
In
Castaneda v. Partida, we noted that among the cases
in which the Court had applied this principle in circumstances
involving grand jury discrimination were
Bush v. Kentucky;
Carter v. Texas, 177 U. S. 442
(1900);
Rogers v. Alabama, 192 U.
S. 226 (1904);
Pierre v. Louisiana,
306 U. S. 354
(1939);
Smith v. Texas, 311 U. S. 128
(1940);
Hill v. Texas, 316 U. S. 400
(1942);
Cassell v. Texas, 339 U.
S. 282 (1950);
Reece v. Georgia, 350 U. S.
85 (1955);
Eubanks v. Louisiana, 356 U.
S. 584 (1958);
Arnold v. North Carolina,
376 U. S. 773
(1964); and
Alexander v. Louisiana.
[
Footnote 4]
In view of the disposition of this case on the merits, we may
assume 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 entire grand jury venire.
See Carter v. Jury
Comm'n, 396 U. S. 320,
396 U. S. 338
(1970).
[
Footnote 5]
Title 18 U.S.C. § 243 provides:
"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 6]
The State makes a variation of this argument by contending that
any constitutional error that occurred in the selection of the
foreman of the grand jury is "now moot procedural error which had
no effect on the integrity of the trial," Brief for Petitioner 29,
and so was harmless beyond a reasonable doubt in light of the
subsequent conviction by a properly constituted petit jury.
[
Footnote 7]
The fact that there is no constitutional requirement that States
institute prosecutions by means of an indictment returned by a
grand jury,
see Hurtado v. California, 110 U.
S. 516 (1884), does not relieve those States that do
employ grand juries from complying with the commands of the
Fourteenth Amendment in the operation of those juries.
[
Footnote 8]
There is no contention in this case that respondents sought to
press their challenge to the grand jury without complying with
state procedural rules as to when such claims may be raised.
See Francis v. Henderson, 425 U.
S. 536 (1976). Nor do they seek to press this challenge
after pleading guilty.
See Tollett v. Henderson,
411 U. S. 258
(1973).
[
Footnote 9]
The
Stone v. Powell issue was raised by petition for
rehearing in the Court of Appeals. App. 142. In denying that
petition, the court stated "that the issues raised therein were
fully considered upon the original submission and decision of this
case."
Id. at 151. In its opinion denying respondents'
motion for amendment of judgment, the District Court found that its
original ruling denying the writ was bolstered by the decision in
Stone. App. 125.
[
Footnote 10]
The record indicates that one grand juror was in Florida at the
time of the hearing. App. 27.
[
Footnote 11]
The 1970 census figure was 32.44%. Bureau of the Census, 1970
Census of Population, Characteristics of the Population, Part 44
Tennessee, Table 35, p. 124.
[
Footnote 12]
Respondents urge us to fill the gap in their proof by reference
to the history of race relations in Tennessee and the fact that the
State in past years practiced
de jure discrimination
against Negroes in many ways. We decline to do this. Reference to
history texts in a case of this kind does not supply what
respondents failed to prove. If it were otherwise, one alleging
discrimination always would be able to prove his case simply by
referring to the history of discrimination within the State. The
Court's cases, however, make it clear that more is required to
establish a violation of the Equal Protection Clause of the
Fourteenth Amendment.
[
Footnote 13]
The State in this case apparently places no reliance on 28
U.S.C. § 2254(d), which provides in relevant part:
"[A] determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction . . .
evidenced by a written finding, written opinion, or other reliable
and adequate written indicia, shall be presumed to be correct,
unless the applicant shall establish or it shall otherwise appear .
. . -- "
"(1) that the merits of the factual dispute were not resolved in
the State court hearing. . . ."
See LaVallee v. Delle Rose, 410 U.
S. 690 (1973).
MR. JUSTICE REHNQUIST, concurring in part.
I fully agree with, and have joined, the separate opinions of my
Brothers STEWART and POWELL concurring in the judgment in this
case. For the separate reasons they state, neither of them would
reach the merits of the claim of grand jury discrimination which
the Court decides. Since, however, a majority of the Court rejects
these views, I join Parts I, III, and IV of the Court's
opinion.
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins,
concurring in the judgment.
The respondents were found guilty beyond a reasonable doubt
after a fair and wholly constitutional jury trial. Why should such
persons be entitled to have their convictions set aside on the
ground that the grand jury that indicted them was
Page 443 U. S. 575
improperly constituted? That question was asked more than 25
years ago by Mr. Justice Jackson in
Cassell v. Texas,
339 U. S. 282,
339 U. S. 298
(dissenting opinion). It has never been answered. [
Footnote 2/1] I think the time has come to
acknowledge that Mr. Justice Jackson's question is unanswerable,
and to hold that a defendant may not rely on a claim of grand jury
discrimination to overturn an otherwise valid conviction.
I
A grand jury proceeding
"is an
ex parte investigation to determine whether a
crime has been committed and whether criminal proceedings should be
instituted against any person."
United States v. Calandra, 414 U.
S. 338,
414 U. S.
343-344. It is not a proceeding in which the guilt or
innocence of a defendant is determined, but merely one to decide
whether there is a
prima facie ease against him. Any
possible prejudice to the defendant resulting from an indictment
returned by an invalid grand jury thus disappears when a
constitutionally valid trial jury later finds him guilty beyond a
reasonable doubt. [
Footnote 2/2] In
short, a convicted defendant who alleges that he was indicted by a
discriminatorily selected grand jury is complaining of an
Page 443 U. S. 576
antecedent constitutional violation that could have had no
conceivable impact on the fairness of the trial that resulted in
his conviction.
It is well settled that deprivations of constitutional rights
that occur before trial are no bar to conviction unless there has
been an impact upon the trial itself. [
Footnote 2/3] A conviction after trial, like a guilty
plea, "represents a break in the chain of events which has preceded
it in the criminal process."
Tollett v. Henderson,
411 U. S. 258,
411 U. S. 267.
See United States v. Blue, 384 U.
S. 251,
384 U. S. 255;
cf. Stroble v. California, 343 U.
S. 181,
343 U. S. 197
("illegal acts of state officials prior to trial are relevant only
as they bear on petitioner's contention that he has been deprived
of a fair trial").
The cases in this Court dealing with unlawful arrest are
particularly instructive. Unconstitutional arrests are unreasonable
seizures of the person that violate the Fourth and Fourteenth
Amendments.
E.g., Terry v. Ohio, 392 U. S.
1. Yet an "illegal arrest or detention does not void a
subsequent conviction."
Gerstein v. Pugh, 420 U.
S. 103,
420 U. S. 119.
In
Frisbie v. Collins, 342 U. S. 519, for
example, a defendant had been forcibly abducted from one State and
brought to another to stand trial, but the trial itself was fair,
and the Court upheld his conviction.
See also Mahan v.
Justice, 127 U. S. 700;
Ker v. Illinois, 119 U. S. 43.
[
Footnote 2/4]
Page 443 U. S. 577
The cases in this Court specifically dealing with grand jury
proceedings are equally instructive. In
Costello v. United
States, 350 U. S. 359, the
Court sustained the conviction of a defendant who had sought to
dismiss the charges against him on the ground that the indictment
had been based exclusively upon inadmissible hearsay evidence.
See also Holt v. United States, 218 U.
S. 245. In
Lawn v. United States, 355 U.
S. 339, the Court held that a defendant could not avoid
trial and conviction on the ground that the indictment had been
procured by evidence obtained in violation of the Fifth
Amendment.
"[A]n indictment valid on its face is not subject to challenge
on the ground that the grand jury acted on the basis of inadequate
or incompetent evidence, . . . or even on the basis of information
obtained in violation of a defendant's Fifth Amendment privilege
against self-incrimination."
United States v. Calandra, supra at
414 U. S. 345.
Cf. Gelbard v. United States, 408 U. S.
41,
408 U. S. 60
("The
general rule' . . . is that a defendant is not entitled
to have his indictment dismissed before trial simply because the
Government `acquire[d] incriminating evidence in violation of the
[rule],' even if the `tainted evidence was presented to the grand
jury'"); United States v. Blue, supra at 384 U. S. 255
n. 3.
II
A person who has been indicted on the basis of incompetent or
illegal evidence has suffered demonstrable prejudice. By contrast,
the prejudice suffered by a defendant who has been indicted by an
unconstitutionally chosen grand jury is speculative, at best, and
more likely nonexistent. But there are, of course, other interests
implicated when a State systematically excludes qualified Negroes
from grand jury service. Such
Page 443 U. S. 578
discrimination denies Negroes the right to participate equally
in the responsibilities of citizenship. The compelling
constitutional interest of our Nation in eliminating all forms of
racial discrimination requires that no group of qualified citizens
be excluded from participation as either grand or petit jurors in
the administration of justice.
These interests can be fully vindicated, however, by means other
than setting aside valid criminal convictions. This Court has held,
for example, that Negroes can obtain injunctive relief to remedy
unconstitutional exclusion from grand or petit jury service.
Carter v. Jury Comm'n of Greene County, 396 U.
S. 320;
Turner v. Fouche, 396 U.
S. 346. That remedy has the advantage of allowing the
members of the class actually injured by grand jury discrimination
to vindicate their rights without the heavy societal cost entailed
when valid criminal convictions are overturned. [
Footnote 2/5] Moreover, Congress has made it a
criminal offense for a public official to exclude any person from a
grand or petit jury on the basis of his or her race. 18 U.S.C. §
243. [
Footnote 2/6] Defendants may
also have pretrial remedies against unlawful indictments. But, as
Mr. Justice Jackson stated in the
Cassell case,
"[i]t hardly lies in
Page 443 U. S. 579
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."
339 U.S. at
339 U. S.
302.
For all these reasons, I believe that a claim of discrimination
in the selection of a grand jury or its foreman is not a ground for
setting aside a valid criminal conviction. Accordingly, I concur
only in the judgment.
[
Footnote 2/1]
In proffering an answer today, the Court relies on (1)
historical precedents and (2) the duty of the courts to apply the
Equal Protection Clause with special vigor in the area of racial
discrimination.
As to the first ground, I can only recall what Mr. Justice
Frankfurter once said: "Wisdom too often never comes, and so one
ought not to reject it merely because it comes late."
Henslee
v. Union Planters Bank, 335 U. S. 595,
335 U. S. 600
(dissenting opinion). As to the second ground, I agree
wholeheartedly with the Court's general view of the Equal
Protection Clause, but believe, as explained in this opinion, that
that constitutional guarantee protects the victims of
discrimination, rather than defendants who have been convicted
after fair trials by lawfully constituted juries.
[
Footnote 2/2]
There is no constitutional requirement that a state criminal
prosecution even be initiated by a grand jury. A State is free to
bring a criminal charge through information filed by a prosecutor.
Hurtado v. California, 110 U. S. 516. And
the Court has held that a defendant is not entitled "to judicial
oversight or review of the decision to prosecute."
Gerstein v.
Pugh, 420 U. S. 103,
420 U. S.
119.
[
Footnote 2/3]
In
Coleman v. Alabama, 399 U. S.
1, the Court vacated a conviction in a situation where a
State had failed to provide a defendant with appointed counsel at
the preliminary hearing. The Court's holding was premised on the
opportunity of defense counsel at a preliminary hearing to develop
a record that could be useful for impeachment purposes at the
trial. Favorable testimony of a witness who did not appear at trial
could also be preserved. In addition, the Court emphasized the
ability of counsel at a preliminary hearing to discover the
substance of the prosecution's case, and thus to prepare an
effective trial defense.
Id. at
399 U. S. 9.
[
Footnote 2/4]
Similarly, a defendant is not immune from prosecution under an
outstanding indictment if he is searched in violation of his Fourth
Amendment rights or interrogated in violation of his
"
Miranda" rights. Illegally obtained evidence may be
excluded from the trial, but the prosecution is not barred
altogether.
"So drastic a step might advance marginally some of the ends
served by the exclusionary rules, but it would also increase to an
intolerable degree interference with the public interest in having
the guilty brought to book."
United States v. Blue, 384 U.
S. 251,
384 U. S.
255.
[
Footnote 2/5]
That Negroes are the class most directly affected by grand jury
discrimination was first recognized by this Court in the landmark
case of
Strauder v. West Virginia, 100 U.
S. 303. The Court stated:
"The very fact that colored people are singled out and expressly
denied by a statute all right to participate in the administration
of the law, as jurors, because of their color, though they are
citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an assertion of
their inferiority, and a stimulant to that race prejudice which is
an impediment to securing to individuals of the race that equal
justice which the law aims to secure to all others."
Id. at
100 U. S.
308.
Since qualified Negroes can now vindicate their rights directly,
the rationale for allowing a defendant who has been convicted by a
constitutional petit jury to assert the rights of Negroes who were
excluded from the grand jury has been undermined.
[
Footnote 2/6]
The constitutionality of this statute was upheld in
Ex parte
Virginia, 100 U. S. 339.
MR. JUSTICE POWELL, with whom MR. JUSTICE REHNQUIST joins,
concurring in the judgment.
I agree that respondents' convictions should not be overturned.
As the Court holds, respondents failed to show a
prima
facie case of discrimination in the selection of the foreman
of the grand jury that indicted them. A more fundamental reason
exists, however, for reversing the judgment of the Court of
Appeals. Respondents were found guilty of murder beyond a
reasonable doubt by a petit jury whose composition is not
questioned, following a trial that was fair in every respect.
Furthermore, respondents were given a full and fair opportunity to
litigate in the state courts their claim of discrimination. In
these circumstances, allowing an attack on the selection of the
grand jury in this case is an abuse of federal habeas corpus.
Whenever a federal court is called upon by a state prisoner to
issue a writ of habeas corpus, it is asked to do two things that
should be undertaken only with restraint and respect for the way
our system of justice is structured. First, as one court of general
jurisdiction, it is requested to entertain a collateral attack upon
the final judgment of another court of general jurisdiction.
Second, contrary to principles of federalism, a lower federal court
is asked to review not only a state trial court's judgment, but
almost invariably the judgment of the highest court of the State as
well. [
Footnote 3/1] These
considerations
Page 443 U. S. 580
prompt one to inquire, more critically than this Court ever has,
whether it is appropriate to allow the use of habeas corpus by
state prisoners who do not seek to protect their personal interest
in the justness of their convictions.
I
The history and purpose of the writ of habeas corpus do not
support the application of the writ suggested by five Members of
the Court today. Originally, this writ was granted only when the
criminal trial court had been without jurisdiction to entertain the
action.
See, e.g., 28 U. S. 3
Pet.193,
28 U. S. 202
(1830);
Schechtman v. Foster, 172 F.2d 339 (CA2 1949),
cert. denied, 339 U.S. 924 (1950);
Schneckloth v.
Bustamonte, 412 U. S. 218,
412 U. S. 254
(1973) (POWELL, J., concurring); Oaks, Legal History in the High
Court -- Habeas Corpus, 64 Mich.L.Rev. 451, 468 (1966); Bator,
Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners, 76 Harv.L.Rev. 441, 466 (1963) (hereinafter Bator).
Subsequently, the scope of the writ was modestly expanded to
encompass those cases where the defendant's federal constitutional
claims had not been considered in the state court proceeding.
See Frank v. Mangum, 237 U. S. 309
(1915). In recent years, this Court has extended habeas corpus far
beyond the historical uses to which the writ was put. Today,
federal habeas is granted in a variety of situations where,
although the trial court plainly had jurisdiction over the case,
and the defendant's constitutional claims were fully and fairly
considered by the state courts, some sort of constitutional error
is found to have been committed.
E.g., Brown v. Allen,
344 U. S. 443
(1953);
see Fay v. Noia, 372 U. S. 391,
372 U. S.
449-463 (1963) (Harlan, J., dissenting).
Page 443 U. S. 581
I do not suggest that we should revert to the 19th-century
conception of the writ and limit habeas corpus to those
circumstances where the trial court lacked jurisdiction to enter a
competent judgment. In expanding the scope of habeas corpus,
however, the Court seems to have lost sight entirely of the
historical purpose of the writ. It has come to accept review by
federal district courts of state court judgments in criminal cases
as the rule, rather than the exception that it should be. Federal
constitutional challenges are raised in almost every state criminal
case, in part because every lawyer knows that such claims will
provide nearly automatic federal habeas corpus review. If we now
extend habeas corpus to encompass constitutional claims unrelated
to the fairness of the trial in which the claimant was convicted,
we will take another long step toward the creation of a dual system
of review under which a defendant convicted of crime in a state
court, having exhausted his remedies in the state system, repeats
the process through the federal system. The extent to which this
duplication already exists in this country is without parallel in
any other system of justice in the world. [
Footnote 3/2]
We simply have not heeded the admonition of thoughtful scholars
that federal habeas corpus should not be "made the instrument for
redetermining the merits of all cases in the legal system that have
ended in detention." P. Bator, P. Mishkin, D. Shapiro, & H.
Wechsler, Hart & Wechsler's The Federal Courts and the Federal
System 1428 (2d ed.1973);
see Bator 446-448. Today's case
is an extreme example of this loss of historical perspective. In
extending use of the writ to circumstances wholly unrelated to its
purpose, the Court would move beyond anything heretofore
Page 443 U. S. 582
decided in our cases. It is true that, on a number of occasions,
this Court has considered state grand jury discrimination, but no
prior decision fairly can be viewed as authority for federal habeas
corpus review in the absence of a challenge to the fairness of the
trial itself.
Strauder v. West Virginia, 100 U.
S. 303 (1880), and all of its progeny, involved cases in
which the composition of both the grand and petit juries was
challenged, so that the integrity of the trial itself was at issue.
In cases such as
Pierre v. Louisiana, 306 U.
S. 354 (1939), and
Hill v. Texas, 316 U.
S. 400 (1942), the question of discrimination in
selection of the grand jury was presented on direct appeal, and
there was no occasion to consider the propriety of federal
collateral attack. Finally, in
Castaneda v. Partida,
430 U. S. 482
(1977), the charge of grand jury discrimination was before the
Court on habeas corpus, but the propriety of the use of habeas
corpus to assert the claim was not raised, and hence was not
decided.
Id. at
430 U. S. 508
n. 1 (POWELL, J., dissenting). Until today, therefore, it has been
an open question whether federal habeas corpus could be granted a
state prisoner solely because the prisoner's grand jury was
discriminatorily chosen. [
Footnote
3/3]
II
The Court makes no pretense of arguing that either the history
or purpose of the writ of habeas corpus supports its extension to a
case such as this, where the claimant concededly was found guilty
after a fair trial. Rather, the Court looks to the policies of the
Fourteenth Amendment for justification, noting that the Amendment's
purpose was to eliminate racial discrimination such as respondents
here allege. [
Footnote 3/4]
Page 443 U. S. 583
Apart from the fact that other, more appropriate means are
available for attacking discrimination in the selection of grand
juries, [
Footnote 3/5] the
Fourteenth Amendment is irrelevant to a principled determination of
when the writ of habeas corpus is a proper remedy. I know of
nothing in the language or history of the Fourteenth Amendment, or
the civil rights statutes implementing it, that suggests some
special use of the writ of habeas corpus. If, however, we are to
assume that it is open to this Court to extend the writ to cases in
which the guilt of the incarcerated claimant is not an issue, at
least we should weigh thoughtfully the societal costs that may be
involved. As some of these were fully addressed in my concurring
opinion in
Schneckloth v. Bustamonte, 412 U.
S. 218 (1972), I now mention the principal costs only
briefly.
A
Because habeas corpus is a unique remedy which allows one court
of general jurisdiction to review the correctness of the judgment
of another court of general jurisdiction, its exercise entails
certain costs inherent whenever there is dual
Page 443 U. S. 584
review. It is common knowledge that prisoner actions occupy a
disproportionate amount of the time and energy of the federal
judiciary. In the year ending June 30, 1978, almost 9,000 of the
prisoner actions filed were habeas corpus petitions.
See
1978 Annual Report of the Director of the Administrative Office of
the United States Courts 76. Apart from the burden of these
petitions, many of which are frivolous, collateral review can have
a particularly deleterious effect upon both the deterrent and
rehabilitative functions of the criminal justice system.
See
Wainwright v. Sykes, 433 U. S. 72,
433 U. S. 90
(1977);
Sanders v. United States, 373 U U.S. 1,
373 U. S. 24-25
(1963) (Harlan, J., dissenting); Bator 452, Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38
U.Chi.L.Rev. 142, 146 (1970).
Perhaps the most serious cost of extending federal habeas corpus
review of state judgments is the effect upon the federal structure
of our government. [
Footnote 3/6]
Mr. Justice Black has emphasized the importance of
"a proper respect for state functions, a recognition of the fact
that the entire country is made up of a Union of separate state
governments, and a continuance of the belief that the National
Government will fare best if the
Page 443 U. S. 585
States and their institutions are left free to perform their
separate functions in their separate ways."
Younger v. Harris, 401 U. S. 37,
401 U. S. 44
(1971).
See also National League of Cities v. Usery,
426 U. S. 833,
426 U. S. 844
(1976);
Schneckloth v. Bustamonte, supra at
412 U. S.
264-265 (POWELL, J., concurring). Nowhere has a "proper
respect for state functions" been more essential to our federal
system than in the administration of criminal justice. This Court
repeatedly has recognized that criminal law is primarily the
business of the States, and that, absent the most extraordinary
circumstances, the federal courts should not interfere with the
States' administration of that law.
See, e.g., Younger v.
Harris, supra; Perez v. Ledesma, 401 U. S.
82 (1971).
The overextension of habeas corpus by federal courts does more
than simply threaten the essential role of the States in our
federal system. It runs afoul of the very principle of primary
state jurisdiction over the criminal laws that the Court repeatedly
has asserted. This interference with state operations is not merely
academic. The review by a single federal district court judge of
the considered judgment of a state trial court, an intermediate
appellate court, and the highest court of the State, necessarily
denigrates those institutions. [
Footnote 3/7]
B
The Court's expansion of our dual system of review therefore
inflicts substantial costs on society, our system of justice,
Page 443 U. S. 586
and our federal fabric. When the claim being vindicated on
federal habeas corpus is that the individual claimant is being
unjustly incarcerated, these costs are justified, for the very
purpose of the Great Writ is to provide some means by which the
legality of an individual's incarceration may be tested.
See
Preiser v. Rodriguez, 411 U. S. 475
(1973);
McNally v. Hill, 293 U. S. 131,
293 U. S.
136-137 (1934);
Schneckloth v. Bustamonte, 412
U.S. at
412 U. S.
252-256 (POWELL, J., concurring). Indeed, it is only by
providing a means of releasing prisoners from custody that we can
assure that no innocent person will be incarcerated, a preeminent
objective of our criminal justice system.
See Jackson v.
Virginia, ante at
443 U. S.
315-316;
In re Winship, 397 U.
S. 358,
397 U. S. 371
(1970) (Harlan, J., concurring). Preventing discrimination in the
selection of grand juries also is a goal of high priority in our
system. [
Footnote 3/8] But the
question is not simply, as the Court seems to think, whether the
goal and the interests it serves are important. Habeas corpus is
not a
general writ meant to promote the social good or
vindicate all societal interests of even the highest priority. The
question, rather, is whether this ancient writ, developed by the
law to serve a precise and particular purpose, properly may be
employed for the furthering of the general societal goal of grand
jury integrity. For the provision of indictment by grand jury does
not protect innocent defendants from unjust convictions. Rather, it
helps to assure that innocent persons will not be made unjustly to
stand trial at all. Once
Page 443 U. S. 587
a defendant is found guilty beyond a reasonable doubt by a
fairly drawn petit jury, following a fair trial, he hardly can
claim that it was unjust to have made him stand trial. [
Footnote 3/9] Because the need to protect
the innocent from incarceration is not implicated in cases such as
this, the writ of habeas corpus is not an appropriate remedy. Other
remedies can be, and have been, provided to protect society's
interest in eliminating racial discrimination in the selection of
those who are to serve on grand juries.
See 443
U.S. 545fn3/5|>n. 5,
supra. [
Footnote 3/10]
Page 443 U. S. 588
III
In sum, I view the Court's extension today of federal habeas
corpus to be wholly at odds with the history and purpose of the
writ. Furthermore, any careful analysis of the costs and benefits
of the Court's approach plainly shows that habeas corpus should not
be available for the vindication of claims, such as respondents'
grand jury discrimination claim, that have nothing to do with the
fairness of the claimant's conviction. Courts often are tempted to
reach for any available remedy when they have before them a claim
of intrinsic importance. In my view, however, this is an
unprincipled way in which to administer the judicial process,
especially when other remedies are available to protect the
interests at stake. I therefore would hold that a challenge to the
composition of a state prisoner's grand jury cannot be raised in a
collateral federal challenge to his incarceration, provided that a
full and fair opportunity was provided in the state courts for the
consideration of the federal claim.
[
Footnote 3/1]
Both advocates and opponents of broad federal habeas corpus
relief have recognized the unusual role the Great Writ plays in our
federal system.
See Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463
(1963); Reitz, Federal Habeas Corpus: Impact of an Abortive State
Proceeding, 74 Harv.L.Rev. 1315, 1330-1331 (1961)
[
Footnote 3/2]
Not only may the state claimant have a "rerun" of his conviction
in the federal courts, but also there is no limit to the number of
habeas corpus petitions such a claimant may file. The jailhouse
lawyers in the prisons of this country conduct a flourishing
business in repetitive habeas corpus petitions. It is not unusual
to see, at this Court, a score or more of petitions file over a
period of years by the same claimant.
[
Footnote 3/3]
Although the opinion of the Court discusses the extension of
habeas corpus to claims of grand jury discrimination, this
discussion is unnecessary in view of the Court's conclusion that no
prima facie case of discrimination was made out by
respondents. Indeed, it may fairly be questioned whether
443 U. S. for
not all of the four Members who join it support even the Court's
judgment.
[
Footnote 3/4]
The Court explicitly bases its extension of habeas corpus in
this case upon its conclusion that the constitutional interests
involved in a claim of grand jury discrimination are "more
compelling" than those involved in other constitutional claims.
See ante at
443 U. S. 564.
It is not clear, however, that it would be possible to cabin the
Court's rule to cases where racial discrimination is alleged. There
are, of course, numerous constitutional challenges to grand jury
indictments that have nothing to do with racial discrimination. The
logic of the Court's position may lead to the extension of habeas
corpus to every conceivable constitutional defect in
indictments.
[
Footnote 3/5]
As MR. JUSTICE STEWART points out, a federal statute makes it a
crime to discriminate on the basis of race in the selection of
jurors, 18 U.S.C. § 243, and both Government and private actions
may be brought by those improperly excluded from jury service.
See Carter v. Jury Comm'n of Greene County, 396 U.
S. 320 (1970). Furthermore, in the past, this Court has
allowed a claim of grand jury discrimination to be made on direct
appeal from a conviction.
See Cassell v. Texas,
339 U. S. 282
(1950).
But see 443
U.S. 545fn3/3|>n. 9,
infra.
[
Footnote 3/6]
The Court suggests that "federalism concerns . . . are not
present" when the fairness of an indictment is challenged on
federal habeas, because
"[f]ederal courts have granted relief to state prisoners upon
proof of the proscribed discrimination for nearly a century.
See, e.g., 100 U. S. Rives, 100 U.S.
[313,]
100 U. S. 322 [(1880)]."
Ante at
443 U. S. 562.
There is no logic to this reasoning. The mere fact that federal
courts have reviewed some state court decisions for nearly a
century hardly supports a conclusion that no federalism concerns
exist. Nor does
Virginia v. Rives support the Court's
argument. In that case, the petitioner challenged the composition
of his petit jury, as well as that of the grand jury that had
indicted him. Whenever the fairness of the petit jury is brought
into question, doubts are raised as to the integrity of the process
that found the prisoner guilty.
See Cassell v. Texas,
supra at
339 U. S.
301-302 (Jackson, J., dissenting). Collateral relief
therefore may be justified even though it entails some damages to
our federal fabric.
See infra at
443 U. S.
586.
[
Footnote 3/7]
The Court implies that state trial judges cannot be trusted to
rule fairly on the issue here presented, because they are involved
administratively in t.he selection of the grand jury.
Ante
at
443 U. S. 561,
563. This is a view I find wholly unacceptable. In numerous
circumstances, trial judges are called upon to rule on the validity
of their own judicial and administrative action. I know of no
general constitutional rule requiring disqualification in such
cases. I certainly would not accept an assumption at this point in
our history that state judges in particular cannot be trusted
fairly to consider claims of racial discrimination.
See
Schneckloth v. Bustamonte, 412 U. S. 218,
412 U. S.
263-264, n. 20 (1973) (POWELL, J., concurring).
[
Footnote 3/8]
The Court also would justify collateral review of claims of
grand jury discrimination because of the damage that such
discrimination can do to the perceived integrity of the judicial
system as a whole. But it ignores the damage done to society's
perception of the criminal justice system by allowing valid
convictions to be reversed on collateral attack on the basis of
claims having nothing to do with the defendant's guilt or
innocence. Moreover, any discriminatory action so notorious as to
undermine the public's faith in the fairness of the judiciary is
likely to be remedied on direct review by the state courts, and by
this Court.
[
Footnote 3/9]
Although I need not reach the question in this case, I find much
of what MR. JUSTICE STEWART says persuasive on the question whether
complaints concerning the fairness of indictment should survive
conviction even for purposes of direct appeal.
See ante,
p.
443 U. S. 574.
In his dissenting opinion in
Cassell v. Texas, Mr. Justice
Jackson suggested 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."
339 U.S. at
339 U. S. 304.
Until today, this Court never has undertaken to answer Mr. Justice
Jackson's arguments in
Cassell. Nor am I completely
satisfied with today's attempt. For purposes of this opinion,
however, I shall assume that direct review of respondents' claims
was appropriate.
[
Footnote 3/10]
Finding no support in our prior decisions for today's extension
of habeas corpus, the Court considers only whether our decision in
Stone v. Powell, 428 U. S. 465
(1976), forbids federal courts to grant habeas corpus in cases such
as this.
Stone, of course, did not address the proper
method for presenting claims of grand jury discrimination, as it
involved only claims under the Fourth Amendment exclusionary rule.
Nonetheless, the Court overstates the differences between
Stone and the present case.
See ante at
443 U. S.
560-564. To be sure, in
Stone v. Powell, supra
at
428 U. S. 495
n. 37, we emphasized that the Fourth Amendment exclusionary rule
was a "judicially created remedy, rather than a personal
constitutional right." We did so, however, only in rejecting the
suggestion of the dissent that our decision would lead to a
"drastic withdrawal of federal habeas jurisdiction," 428 U.S. at
428 U. S. 517,
the extent of which might be unlimited.
Stone recognized
that the Fourth Amendment exclusionary rule was not designed to
protect the right of an individual to be free from unjust
conviction. Thus, the justification for undermining the finality of
state court judgments that exists in many habeas corpus actions was
absent. Properly understood, therefore, the rationale of our
decision in
Stone is not only consistent with denying
collateral relief for claims of unfair indictment, but actually
presages such a limitation on habeas corpus. For, as I have stated
in the text above, the right not to be indicted by a
discriminatorily selected grand jury, like the right not to have
improperly obtained, but highly probative, evidence introduced at
trial, has nothing to do with the guilt or innocence of the
prisoner.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEVENS joins,
dissenting.
Although I agree with Parts I and II of the Court's opinion, I
believe that a
prima facie case of purposeful
discrimination was made out, and was not rebutted by the State. I
therefore dissent from Parts
443 U. S. S.
569|>IV and from the judgment. On the basis of the evidence
presented at the evidentiary hearing in state court, the District
Court concluded that respondents "appear[ed]" to have made out a
prima facie case of discrimination in the selection of the
foreman of the grand
Page 443 U. S. 589
jury that indicted them. App. 99. However, upon the affidavits
submitted by the State in response, the court concluded that, in
fact, the foreman had been chosen for other than racial reasons,
that he had not voted on the indictment, and thus that there had
not been a violation of the Equal Protection Clause.
Id.
at 122. The Court of Appeals agreed that a
prima facie
case was shown, interpreting the record testimony to the effect
that the recollections of those testifying were that there had
never been a black chosen as foreman of a grand jury in Tipton
County, and pointing out the potential for discrimination in a
system which leaves the selection of the foreman to the discretion
of a single judge who has not "really given any thought to
appointing" a black,
id. at 113.
See 570 F.2d
129, 134-135 (1978). The Court of Appeals disagreed, however, that
this
prima facie case had been rebutted by the testimony
of the selecting judge that he had "no feeling against" appointing
a black to be foreman, and found irrelevant that the foreman did
not vote on respondents' indictment.
Id. at 131. Because
we do not sit to redetermine the factfindings of lower courts, and
because the Court of Appeals correctly enunciated and applied the
law governing proof of discrimination in the context of grand jury
selection, I dissent.
The only difference between this case and our previous cases
voiding a conviction due to discriminatory selection of members of
the grand jury is that, in this case, it has been shown only that
the grand jury foreman, who did not vote on the indictment, was
chosen in a manner prohibited by the Equal Protection Clause. I
agree with the Court of Appeals that, given the vital importance of
the foreman in the functioning of grand juries in Tennessee,
[
Footnote 4/1] a conviction based
on an
Page 443 U. S. 590
indictment where the foreman was chosen in a discriminatory
fashion is void just as would be a conviction where the entire
grand jury is discriminatorily selected, whether or not there is a
showing of actual prejudice,
see Castaneda v. Partida,
430 U. S. 482
(1977);
Alexander v. Louisiana, 405 U.
S. 625 (1972);
Arnold v. North Carolina,
376 U. S. 773
(1964);
Eubanks v. Louisiana, 356 U.
S. 584 (1958);
Cassell v. Texas, 339 U.
S. 282 (1950);
Patton v. Mississippi,
332 U. S. 463
(1947);
Hill v. Texas, 316 U. S. 400
(1942);
Pierre v. Louisiana, 306 U.
S. 354 (1939);
Bush v. Kentucky, 107 U.
S. 110 (1883).
That this case involves only the foreman, rather than the entire
grand jury, does have implications for the manner in which
respondents may meet their burden of proving discrimination. In the
context of racial discrimination in the selection of juries, "the
systematic exclusion of Negroes is itself such an
unequal
application of the law . . . as to show intentional
discrimination,'" a necessary component of any equal protection
violation. Washington v. Davis, 426 U.
S. 229, 426 U. S. 241
(1976). Generally, in those cases in which we have found
unconstitutional discrimination in jury selection, those alleging
discrimination have relied upon a significant statistical
discrepancy between the percentage of the underrepresented group in
the population and the percentage of this group called to serve as
jurors, combined with a selection procedure "that is susceptible of
abuse or is not racially neutral." Castaneda v. Partida,
supra at 430 U. S. 494.
See, e.g., Alexander v. Louisiana, supra; Turner v.
Fouche, 396 U. S. 346
(1970); Carter v. Jury Comm'n, 396 U.
S. 320 (1970). Once this
Page 443 U. S. 591
showing is made, the burden shifts to the State to rebut the
inference of discriminatory purpose.
Castaneda v. Partida,
supra, at
430 U. S. 495.
This method of proof, sometimes called the "rule of exclusion," 430
U.S. at
430 U. S. 494,
may not be well suited when the focus of inquiry is a single
officeholder whose term lasts two full years, as is true of the
Tipton County grand jury foreman. For instance, in
Castaneda v.
Partida, we considered statistics relating to an 11-year
period showing that 39% of the 870 persons selected for grand jury
duty were Hispanic, from a general population that was over 79%
Hispanic. The likelihood that this statistical discrepancy could be
explained on the basis of chance alone was less than 1 in 10^140.
See id. at
430 U. S.
495-496, and n. 17. The sample size necessarily
considered in a case of discrimination in the selection of a
foreman simply does not permit a statistical inference as
overwhelming as that in
Castaneda. During any 1 l-year
period, there would be only five or six opportunities for selecting
jury foremen in Tipton County, assuming that every foreman selected
serves at least the full 2-year term. [
Footnote 4/2]
Despite the inherent difficulty of any statistical presentation
with respect to discrimination in filling a particular grand jury
spot, respondents nonetheless have made a strong showing of
underrepresentation supporting an inference of purposeful
discrimination. This Court is not in a position to reject the
finding, explicitly made by the Court of Appeals and implicitly
made by the District Court, [
Footnote
4/3] that those who testified believed
Page 443 U. S. 592
there had never.been a black foreman during the period
1951-1973.
See Berenyi v. Immigration Director,
385 U. S. 630,
385 U. S. 635
(1967);
Graver Mfg. Co. v. Linde Air Products Co.,
336 U. S. 271,
336 U. S. 275
(1949). Assuming that 11 foreman selections were made during this
period, [
Footnote 4/4] the expected
number of black foremen would be more than 3 -- and the likelihood
of no blacks being chosen would be less than 1 in 50 -- if blacks,
who constituted nearly a third of the county's population, and
whites had an equal chance of being selected. I do not see how
respondents could be expected to make a stronger statistical
showing. [
Footnote 4/5]
In any event, any possible weakness in respondents' statistical
presentation was more than overcome by the additional evidence
before the District Court. First, the selection of a foreman is
left to the complete discretion of a single person -- the circuit
judge. The potentialities for abuse in such a system are obvious,
cf. Castaneda v. Partida, supra at
430 U. S. 497;
Carter v. Jury Comm'n, supra; Hernandez v. Texas,
347 U. S. 475,
347 U. S. 479
(1954) ("key man" system). Moreover, the particular judge who chose
the foreman of respondents' grand jury had
Page 443 U. S. 593
never chosen a black in any of the five counties for which he
appointed foremen over a 6-year period, App. 113. Finally, the
judge himself admitted that he had never even considered appointing
a black foreman.
Ibid. [
Footnote 4/6] Although these facts are not necessarily
inconsistent with an ultimate conclusion that respondents' foreman
was not chosen on racial grounds, they raise, in conjunction with
the previously described statistical presentation, a strong
inference of intentional racial discrimination, shifting the burden
to the State. Clearly the Court of Appeals is correct that the
Circuit Judge's further self-serving statement that he had "nothing
against" appointing blacks is not sufficient rebuttal,
see
Alexander v. Louisiana, 405 U.S. at
405 U. S. 632;
Turner v. Fouche, 396 U.S. at
396 U. S. 361;
Hernandez v. Texas, supra at
347 U. S.
481-482. It can hardly be said that the judge, as the
official authorized by the State to appoint grand jury foremen,
performed his
"constitutional duty . . . not to pursue a course of conduct in
the administration of [his] office which would operate to
discriminate in the selection of jurors on racial grounds."
Hill v. Texas, 316 U.S. at
316 U. S.
404.
[
Footnote 4/1]
See 570 F.2d 129,136 (1978):
"The foreman or forewoman is vitally important to the
functioning of grand juries in Tennessee, being"
"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."
"Tenn. Code Ann § 40-1506. He or she is expected to assist the
district attorney in investigating crime, may administer oaths to
all witnesses, conduct the questioning of witnesses, must indorse
and sign all indictments, and like every other chairperson is in a
position to guide, whether properly or improperly, the
decisionmaking process of the body. . . ."
(Footnote omitted. )
[
Footnote 4/2]
The key numbers to compare are the number of blacks selected to
be foremen and the total number of opportunities to select a
foreman. The latter number may be greater than the number of
different individuals who serve if the appointing judge has an
inclination to reappoint those who have previously served.
[
Footnote 4/3]
The District Court did not make written findings of fact
explaining the basis of its conclusion that a
prima facie
case appeared to have been established. However, the Court of
Appeals was in a position to dispose of the appeal, without the
necessity of a remand to the District Court, because the record and
the District Court's conclusions of law clearly reveal the basis
for its conclusion,
see Finney v. Arkansas Board of
Correction, 505 F.2d 194 (CA8 1974). This was the failure of
any of the foremen who testified at the state court hearing to
recollect there having been a black foreman, and the inference
therefrom -- not clearly erroneous,
see Fed. Rule Civ.
Proc. 52 (a) -- that these witnesses believed there had never been
a black foreman.
[
Footnote 4/4]
See 443
U.S. 545fn4/2|>n. 2,
supra.
[
Footnote 4/5]
If there were any doubt that the evidence adduced in the state
court hearing on respondents' plea in abatement was insufficient --
perhaps because it did not unequivocally establish the race of
every foreman chosen since 1950 -- the appropriate course would be
for the District Court to hold an evidentiary hearing.
See
Townsend v. Sain, 372 U. S. 293,
372 U. S. 313
(1963) (evidentiary hearing must be held "unless the state court
trier of fact has after a full hearing reliably found the relevant
facts"); 28 U.S.C. § 2254(d)(3) (determination of merits of factual
issue by state court shall be presumed to be correct unless it
appears "that the material facts were not adequately developed at
the State court hearing").
[
Footnote 4/6]
Clearly, it is irrelevant that the admissions on the part of the
selecting judge that he had never given thought to appointing, and
indeed had never appointed, a black foreman came as part of the
petitioner's written response to respondents' petitions for writs
of federal habeas corpus. In ascertaining whether a plaintiff has
carried his burden of proof, all the evidence must be considered.
It is not unusual that an affidavit or other evidence submitted by
one party to a lawsuit turns out to be of primary, and perhaps even
determinative, aid to the other party.
MR. JUSTICE STEVENS, dissenting in part.
MR. JUSTICE STEWART's opinion prompts me to explain that, by
joining Part II of the Court's opinion, I do not necessarily
indicate that I would have rejected the arguments set forth in Mr.
Justice Jackson's dissenting opinion in
Cassell v. Texas,
339 U. S. 282,
339 U. S. 298,
if I had been a Member of the Court when the issue was first
addressed. But there is surely enough force to MR. JUSTICE
BLACKMUN's reasoning to require adherence
Page 443 U. S. 594
to a course af decision that has been consistently followed by
this Court since 1880.
The doctrine of
stare decisis is not a straitjacket
that forecloses reexamination of outmoded rules. The doctrine does,
however, provide busy judges with a valid reason for refusing to
remeasure a delicate balance that has tipped in the same direction
every time the conflicting interests have been weighed.
The
stare decisis considerations that weigh heavily in
my decision to join Part II of the Court's opinion also support MR.
JUSTICE WHITE s opinion dissenting from Parts III and IV.
Accordingly, I join his dissent.