In 1962, a California grand jury indicted respondent for murder.
Before trial in California Superior Court, the judge refused to
quash the indictment on the alleged ground that it had been issued
by a grand jury from which blacks had been systematically excluded.
Respondent was subsequently convicted of first-degree murder. After
unsuccessfully pursuing appeals and collateral relief in the state
courts for the next 16 years, respondent filed a habeas corpus
petition in Federal District Court, again raising his equal
protection challenge to the grand jury that indicted him. The
District Court upheld the challenge, and the Court of Appeals
affirmed.
Held:
1. Respondent's obligation to exhaust state remedies before
seeking collateral relief in federal court was not circumvented by
the fact that the District Court, pursuant to a valid exercise of
its power to expand the record, directed the parties to present
supplemental evidence (consisting of affidavits and a computer
analysis assessing the mathematical possibility that chance or
accident could have accounted for the exclusion of blacks from the
grand jury), where such evidence did not fundamentally alter the
claim already considered by the state courts. Pp.
474 U. S.
257-260.
2. The longstanding rule requiring reversal of the conviction of
a defendant indicted by a grand jury from which members of his own
race were systematically excluded will not be abandoned in this
case on the theory that discrimination in the grand jury amounted
to harmless error, and that respondent's conviction after a fair
trial purged any taint attributable to the grand jury process.
Intentional discrimination in the selection of grand jurors is a
grave constitutional trespass, possible only under color of state
authority, and wholly within the State's power to prevent. Even if
the grand jury's determination of probable cause to believe that a
defendant has committed a crime is confirmed in hindsight by a
conviction on the indicted offense, that confirmation does not
suggest that discrimination did not impermissibly infect the
framing of the indictment and, consequently, the nature or
existence of the proceedings to come. And just as a conviction is
void under the Equal Protection Clause if the prosecutor
deliberately charged the defendant on account of
Page 474 U. S. 255
his race, a conviction cannot be understood to cure the taint
attributable to a grand jury selected on the basis of race. Pp.
474 U. S.
260-264.
3. Sound jurisprudence counsels against adoption of a rule
whereby the grant of federal habeas corpus relief to a state
prisoner would be conditioned upon the passage of time between his
conviction and the filing of the federal habeas corpus petition,
depending upon the State's ability to obtain a second conviction.
Pp.
474 U. S.
264-265.
4. The decision in this case is supported, but not compelled, by
the
stare decisis doctrine, the means by which this Court
ensures that the law will not merely change erratically but will
develop in a principled and intelligible fashion. Pp.
474 U. S.
265-266.
733 F.2d 644, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, BLACKMUN, and STEVENS, JJ., joined, and in all but the
sixth paragraph of Part III of which WHITE, J., joined. O'CONNOR,
J., filed an opinion concurring in the judgment,
post, p.
474 U. S. 266.
POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and
REHNQUIST, J., joined,
post, p.
474 U. S.
267.
JUSTICE MARSHALL delivered the opinion of the Court.
The Warden of San Quentin State Prison asks this Court to retire
a doctrine of equal protection jurisprudence first announced in
1880. The time has come, he urges, for us to abandon the rule
requiring reversal of the conviction of any defendant indicted by a
grand jury from which members of his own race were systematically
excluded.
I
In 1962, the grand jury of Kings County, California, indicted
respondent, Booker T. Hillery, for a brutal murder.
Page 474 U. S. 256
Before trial in Superior Court, respondent moved to quash the
indictment on the ground that it had been issued by a grand jury
from which blacks had been systematically excluded. A hearing on
respondent's motion was held by Judge Meredith Wingrove, who was
the sole Superior Court Judge in the county and had personally
selected all grand juries, including the one that indicted
respondent, for the previous seven years. Absolving himself of any
discriminatory intent, Judge Wingrove refused to quash the
indictment. [
Footnote 1]
Respondent was subsequently convicted of first-degree murder.
For the next 16 years, respondent pursued appeals and collateral
relief in the state courts, raising at every opportunity his equal
protection challenge to the grand jury that indicted him. [
Footnote 2] Less than one month after
the California Supreme Court foreclosed his final avenue of state
relief in 1978, respondent filed a petition for a writ of habeas
corpus in federal court, raising that same challenge. The District
Court concluded that respondent had established discrimination in
the grand jury, and granted the writ.
See Hillery v.
Pulley, 563 F. Supp. 1228 (ED Cal.1983). The Court of
Appeals
Page 474 U. S. 257
affirmed, 733 F.2d 644 (CA9 1984), and we granted certiorari,
470 U.S. 1026 (1985).
II
As a threshold matter, we turn to petitioner's contention that
respondent has circumvented his obligation to exhaust state
remedies before seeking collateral relief in federal court. 28
U.S.C. § 2254(b). The exhaustion issue had its genesis in this case
when the Federal District Judge saw a need to "supplement and
clarify" the state court record presented for review. Record, Doc.
No. 8, p. 2. Upon authority of 28 U.S.C. § 2254 Rule 7, the judge
directed the State to provide more figures "demonstrating what
portion of the Black population in Kings County was eligible for
grand jury service." Record, Doc. No. 8, p. 3. He also directed the
parties to present their views regarding the application of
statistical probability analysis to the facts of this case, to
assist him in "focus[ing] on the likelihood that chance or accident
alone could account for the exclusion of a group from grand jury
service."
Ibid. Petitioner objects that the submissions
made in response to the judge's order "drastically" altered
respondent's claim and rendered it unsuitable for federal habeas
review without prior consideration by the state courts. Brief for
Petitioner 81.
The exhaustion doctrine seeks to afford the state courts a
meaningful opportunity to consider allegations of legal error
without interference from the federal judiciary.
Rose v.
Lundy, 455 U. S. 509,
455 U. S. 515
(1982). Under standards established by this Court, a state prisoner
may initiate a federal habeas petition "[o]nly if the state courts
have had the first opportunity to hear the claim sought to be
vindicated. . . ."
Picard v. Connor, 404 U.
S. 270,
404 U. S. 276
(1971). "It follows, of course, that once the federal claim has
been fairly presented to the state courts, the exhaustion
requirement is satisfied."
Id. at
404 U. S. 275;
see also Humphrey v. Cady, 405 U.
S. 504,
405 U. S.
516-517, n. 18 (1972). We have never held that
presentation
Page 474 U. S. 258
of additional facts to the district court, pursuant to that
court's directions, evades the exhaustion requirement when the
prisoner has presented the substance of his claim to the state
courts.
See Picard, supra, at
404 U. S.
278.
Rule 7(b) permits a federal district court in a habeas
proceeding to expand the existing record to
"include, without limitation, . . . documents, exhibits, and
answers under oath, if so directed, to written interrogatories
propounded by the judge. Affidavits may be submitted and considered
as a part of the record."
In this case, the District Court sought to clarify the relevant
facts, an endeavor wholly consistent with Rule 7 and the purpose of
the writ.
See Townsend v. Sain, 372 U.
S. 293,
372 U. S. 313
(1963). The sole question here is whether this valid exercise of
the court's power to expand the record had the effect of
undermining the policies of the exhaustion requirement.
Several affidavits challenged here as "new" evidence supported
respondent's allegations that no black had ever served on the grand
jury in Kings County, and that qualified blacks in the county were
available to serve, which he had pressed in his pretrial motion to
quash in Superior Court, App. 28-30, and throughout the state
proceedings. The California Supreme Court found that the total
absence of blacks from the grand jury in the history of Kings
County was an undisputed fact.
People v.
Hillery, 62 Cal. 2d
692, 709, 401 P.2d 382, 392 (1965),
cert. denied, 386
U.S. 938 (1967). That fact was entitled, therefore, to a
presumption of correctness on federal review.
Sumner v.
Mata, 449 U. S. 539,
449 U. S.
545-546 (1981);
see Hillery v. Pulley, 533 F.
Supp. 1189, 1201, n. 25 (ED Cal.1982). The California Supreme Court
also discussed Judge Wingrove's consideration of blacks'
qualifications, and found that blacks had served as petit jurors,
62 Cal. 2d at 710, 401 P.2d at 392-393, minimum eligibility
requirements for which were substantially the same as for grand
jurors,
see 563 F. Supp. at 1245; Mar, The California
Grand Jury: Vestige of Aristocracy, 1 Pac. L.J. 36, 40
Page 474 U. S. 259
(1970). Consequently, the additional affidavits introduced no
claim upon which the state courts had not passed.
The remaining "new" evidence under attack, a computer analysis
submitted in response to the District Court's request, assessed the
mathematical probability that chance or accident could have
accounted for the exclusion of blacks from the Kings County grand
jury over the years at issue. [
Footnote 3] Petitioner would have us conclude that the
"sophisticated computer techniques" rendered respondent's claim a
"wholly different animal." Brief for Petitioner 80-81. These
statistical estimates, however, added nothing to the case that this
Court has not considered intrinsic to the consideration of any
grand jury discrimination claim. As early as 1942, this Court
rejected a contention that absence of blacks on the grand jury was
insufficient to support an inference of discrimination, summarily
asserting that
"chance or accident could hardly have accounted for the
continuous omission of negroes from the grand jury lists for so
long a period as sixteen years or more."
Hill v. Texas, 316 U. S. 400,
316 U. S. 404
(1942). This proposition, which the Court derived solely on the
basis of judicial intuition, is precisely what respondent sought to
establish by methods now considered somewhat more reliable.
More recently, in reviewing a habeas corpus proceeding, this
Court independently applied general statistical principles to the
evidence on the record in order to assess the role of chance in the
exclusion of Mexican-Americans from a grand jury in Texas.
Castaneda v. Partida, 430 U. S. 482,
Page 474 U. S. 260
430 U. S.
496-497, n. 17 (1977). Form would indeed triumph over
substance were we to allow the question of exhaustion to turn on
whether a federal judge has relied on educated conjecture or has
sought out a more sophisticated interpretative aid to accomplish
the same objective.
We emphasize that the District Court's request for further
information was evidently motivated by a responsible concern that
it provide the meaningful federal review of constitutional claims
that the writ of habeas corpus has contemplated throughout its
history. 533 F.Supp. at 1202-1203;
see Townsend v. Sain,
supra, at
372 U. S.
311-312. Respondent had initially submitted only the
evidence that had been considered in state court, and subsequently
complied with the court's request by furnishing materials no
broader than necessary to meet the needs of the court. Accordingly,
the circumstances present no occasion for the Court to consider a
case in which the prisoner has attempted to expedite federal review
by deliberately withholding essential facts from the state courts.
We hold merely that the supplemental evidence presented by
respondent did not fundamentally alter the legal claim already
considered by the state courts, and, therefore, did not require
that respondent be remitted to state court for consideration of
that evidence.
III
On the merits, petitioner urges this Court to find that
discrimination in the grand jury amounted to harmless error in this
case, claiming that the evidence against respondent was
overwhelming, and that discrimination no longer infects the
selection of grand juries in Kings County. Respondent's conviction
after a fair trial, we are told, purged any taint attributable to
the indictment process. Our acceptance of this theory would require
abandonment of more than a century of consistent precedent.
In 1880, this Court reversed a state conviction on the ground
that the indictment charging the offense had been
Page 474 U. S. 261
issued by a grand jury from which blacks had been excluded. We
reasoned that deliberate exclusion of blacks
"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."
Strauder v. West Virginia, 100 U.
S. 303,
100 U. S. 308
(1880).
Thereafter, the Court has repeatedly rejected all arguments that
a conviction may stand despite racial discrimination in the
selection of the grand jury.
See, e.g., Neal v. Delaware,
103 U. S. 370,
103 U. S. 396
(1881);
Bush v. Kentucky, 107 U.
S. 110 (1883);
Gibson v. Mississippi,
162 U. S. 565
(1896);
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, supra; 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);
Alexander v. Louisiana, 405 U.
S. 625 (1972). Only six years ago, the Court explicitly
addressed the question whether this unbroken line of case law
should be reconsidered in favor of a harmless error standard, and
determined that it should not.
Rose v. Mitchell,
443 U. S. 545
(1979). [
Footnote 4]
Page 474 U. S. 262
We reaffirmed our conviction that discrimination on the basis of
race in the selection of grand jurors "strikes at the fundamental
values of our judicial system and our society as a whole," and that
the criminal defendant's right to equal protection of the laws has
been denied when he is indicted by a grand jury from which members
of a racial group purposefully have been excluded.
Id. at
443 U. S.
556.
Petitioner argues here that requiring a State to retry a
defendant, sometimes years later, imposes on it an unduly harsh
penalty for a constitutional defect bearing no relation to the
fundamental fairness of the trial. Yet intentional discrimination
in the selection of grand jurors is a grave constitutional
trespass, possible only under color of state authority, and wholly
within the power of the State to prevent. Thus, the remedy we have
embraced for over a century -- the only effective remedy for this
violation [
Footnote 5] -- is
not disproportionate to the evil that it seeks to deter. If grand
jury discrimination becomes a thing of the past, no conviction will
ever again be lost on account of it.
Page 474 U. S. 263
Nor are we persuaded that discrimination in the grand jury has
no effect on the fairness of the criminal trials that result from
that grand jury's actions. The grand jury does not determine only
that probable cause exists to believe that a defendant committed a
crime, or that it does not. In the hands of the grand jury lies the
power to charge a greater offense or a lesser offense; numerous
counts or a single count; and perhaps most significant of all, a
capital offense or a noncapital offense -- all on the basis of the
same facts. Moreover, "[t]he grand jury is not bound to indict in
every case where a conviction can be obtained."
United States
v. Ciambrone, 601 F.2d 616, 629 (CA2 1979) (Friendly, J.,
dissenting). Thus, even if a grand jury's determination of probable
cause is confirmed in hindsight by a conviction on the indicted
offense, that confirmation in no way suggests that the
discrimination did not impermissibly infect the framing of the
indictment and, consequently, the nature or very existence of the
proceedings to come.
When constitutional error calls into question the objectivity of
those charged with bringing a defendant to judgment, a reviewing
court can neither indulge a presumption of regularity nor evaluate
the resulting harm. Accordingly, when the trial judge is discovered
to have had some basis for rendering a biased judgment, his actual
motivations are hidden from review, and we must presume that the
process was impaired.
See Tumey v. Ohio, 273 U.
S. 510,
273 U. S. 535
(1927) (reversal required when judge has financial interest in
conviction, despite lack of indication that bias influenced
decisions). Similarly, when a petit jury has been selected upon
improper criteria or has been exposed to prejudicial publicity, we
have required reversal of the conviction because the effect of the
violation cannot be ascertained.
See Davis v. Georgia,
429 U. S. 122
(1976) (per curiam);
Sheppard v. Maxwell, 384 U.
S. 333,
384 U. S.
351-352 (1966). Like these fundamental flaws, which
never have been thought harmless, discrimination in the grand jury
undermines the structural integrity of the
Page 474 U. S. 264
criminal tribunal itself, and is not amenable to harmless error
review. [
Footnote 6]
Just as a conviction is void under the Equal Protection Clause
if the prosecutor deliberately charged the defendant on account of
his race,
see United States v. Batchelder, 442 U.
S. 114,
442 U. S. 125,
n. 9 (1979), a conviction cannot be understood to cure the taint
attributable to a charging body selected on the basis of race. Once
having found discrimination in the selection of a grand jury, we
simply cannot know that the need to indict would have been assessed
in the same way by a grand jury properly constituted. The
overriding imperative to eliminate this systemic flaw in the
charging process, as well as the difficulty of assessing its effect
on any given defendant, requires our continued adherence to a rule
of mandatory reversal.
The opinion of the Court in
Mitchell ably presented
other justifications, based on the necessity for vindicating
Fourteenth Amendment rights, supporting a policy of automatic
reversal in cases of grand jury discrimination. That analysis
persuasively demonstrated that the justifications retain their
validity in modern times, for
"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 society as a whole."
443 U.S. at
443 U. S.
558-559. The six years since
Mitchell have
given us no reason to doubt the continuing truth of that
observation.
IV
The dissent propounds a theory, not advanced by any party, which
would condition the grant of relief upon the passage of time
between a conviction and the filing of a petition for federal
habeas corpus, depending upon the ability of a State to obtain a
second conviction. Sound jurisprudence
Page 474 U. S. 265
counsels against our adoption of that approach to habeas corpus
claims.
The Habeas Corpus Rules permit a State to move for dismissal of
a habeas petition when it "has been prejudiced in its ability to
respond to the petition by delay in its filing." 28 U.S.C. § 2254
Rule 9(a). Indeed, petitioner filed such a motion in this case, and
it was denied because the District Court found that no prejudicial
delay had been caused by respondent.
Hillery v. Sumner,
496 F. Supp. 632, 637 (ED Cal.1980). Congress has not seen fit,
however, to provide the State with an additional defense to habeas
corpus petitions based on the difficulties that it will face if
forced to retry the defendant. The Judicial Conference Advisory
Committee on Criminal Rules has drafted a proposed amendment to
Rule 9(a), which would permit dismissal of a habeas corpus petition
upon a demonstration that the State has been prejudiced, either in
defending against the prisoner's federal claim or in bringing the
prisoner to trial again should the federal claim prove meritorious.
52 U.S.L.W. 2145 (1983). That proposal has not been adopted. And,
despite many attempts in recent years, Congress has yet to create a
statute of limitations for federal habeas corpus actions.
See L. Yackle, Postconviction Remedies § 19 (Supp.1985)
(describing relevant bills introduced in past several Congresses).
We should not lightly create a new judicial rule, in the guise of
constitutional interpretation, to achieve the same end.
V
Today's decision is supported, though not compelled, by the
important doctrine of
stare decisis, the means by which we
ensure that the law will not merely change erratically, but will
develop in a principled and intelligible fashion. That doctrine
permits society to presume that bedrock principles are founded in
the law, rather than in the proclivities of individuals, and
thereby contributes to the integrity of our constitutional system
of government, both in appearance and in
Page 474 U. S. 266
fact. While
stare decisis is not an inexorable command,
the careful observer will discern that any detours from the
straight path of
stare decisis in our past have occurred
for articulable reasons, and only when the Court has felt obliged
"to bring its opinions into agreement with experience and with
facts newly ascertained."
Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393,
285 U. S. 412
(1932) (Brandeis, J., dissenting).
Our history does not impose any rigid formula to constrain the
Court in the disposition of cases. Rather, its lesson is that every
successful proponent of overruling precedent has borne the heavy
burden of persuading the Court that changes in society or in the
law dictate that the values served by
stare decisis yield
in favor of a greater objective. In the case of grand jury
discrimination, we have been offered no reason to believe that any
such metamorphosis has rendered the Court's long commitment to a
rule of reversal outdated, ill-founded, unworkable, or otherwise
legitimately vulnerable to serious reconsideration. On the
contrary, the need for such a rule is as compelling today as it was
at its inception.
The judgment of the Court of Appeals, accordingly, is
affirmed.
It is so ordered.
[
Footnote 1]
Three thorough and well-reasoned opinions of the District Court
discuss in detail the evidence adduced at the hearing, as well as
other aspects of the case.
See Hillery v. Pulley, 563 F.
Supp. 1228 (ED Cal.1983);
Hillery v. Pulley, 533 F. Supp.
1189 (ED Cal.1982);
Hillery v. Sumner, 496 F. Supp. 632
(ED Cal.1980). We repeat here only those portions relevant to the
issues before the Court.
[
Footnote 2]
See People v. Hillery, 34 Cal. Rptr. 853, 386 P.2d 477
(1963) (affirming conviction; rejecting discrimination claim);
People v. Hillery, 62 Cal. 2d
692, 401 P.2d 382 (1965) (on rehearing, rejecting
discrimination claim; reversing sentence),
cert. denied,
386 U.S. 938 (1967);
People v. Hillery, 65 Cal. 2d
795, 423 P.2d 208 (1967) (after remand, affirming sentence),
cert. denied, 389 U.S. 986 (1968);
In re
Hillery, 71 Cal. 2d
857, 457 P.2d 565 (1969) (on original petition for habeas
corpus, reversing sentence);
People v.
Hillery, 10 Cal. 3d
897, 519 P.2d 572 (1974) (after remand, reducing sentence);
In re Hillery, Crim. No. 20424 (Cal.1978) (affirming
denial of state habeas corpus).
[
Footnote 3]
The statistical expert concluded that, if the grand juries
selected in Kings County between 1900 and 1962 had been chosen by
chance, the probability that no black would have been selected was
57 in 100,000 million. Although the State made no attempt to rebut
this testimony, the District Court questioned the reliability of
the expert's analysis, performed its own analysis of the data, and
ultimately accepted the expert's conclusions only for the 7-year
period of Judge Wingrove's tenure, which yielded a probability of 2
in 1,000 that the phenomenon was attributable to chance. 563 F.
Supp. at 1241-1244.
[
Footnote 4]
The dissent attempts to lessen the precedential weight of
Mitchell by characterizing it as an advisory opinion.
Post at
474 U. S. 270,
n. 4. In Part II of
Mitchell, three Justices reaffirmed
the principle that grand jury discrimination requires reversal of
the conviction in all cases; in Parts III and IV, they concluded
that the prisoner had failed to make out a
prima facie
case of discrimination. 443 U.S. at
443 U. S. 574.
Two additional Justices explicitly joined Part II, but dissented
from the judgment because they believed that discrimination had
been established, and that the conviction must, therefore, be
reversed.
Id. at
443 U. S. 588
(WHITE, J., joined by STEVENS, J., dissenting). The dissent here
offers a citation to
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 169,
n. 15 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), in
support of its unprecedented argument that a statement of legal
opinion joined by five Justices of this Court does not carry the
force of law. The cited passage, however, refers only to the manner
in which one may discern a single holding of the Court in cases in
which no opinion on the issue in question has garnered the support
of a majority. That discussion is inapplicable to Part II of
Mitchell, to which five Justices expressly subscribed.
[
Footnote 5]
As we pointed out in
Rose v. Mitchell, alternative
remedies are ineffectual. Federal law provides a criminal
prohibition against discrimination in the selection of grand
jurors, 18 U.S.C. § 243, but according to statistics compiled by
the Administrative Office of the United States Courts, that section
has not been the basis for a single prosecution in the past nine
years. With respect to prior years, for which precise information
is not available, we have been unable to find evidence of any
prosecution or conviction under the statute in the last century.
The other putative remedy for grand jury discrimination is 42
U.S.C. § 1983, which, in theory, allows redress for blacks who have
been excluded from grand jury service.
See Carter v. Jury
Comm'n of Greene County, 396 U. S. 320
(1970). These suits are also extremely rare, undoubtedly because
the potential plaintiffs, eligible blacks not called for grand jury
service, are often without knowledge of the discriminatory
practices and without incentive to launch costly legal battles to
stop them.
[
Footnote 6]
JUSTICE WHITE does not join in the foregoing paragraph.
JUSTICE O'CONNOR, concurring in the judgment.
This Court has long held that upon proof of systematic exclusion
of blacks from a grand jury issuing an indictment, the admittedly
costly remedy of reversal of a conviction thereafter obtained
through a fair trial is necessary in order to eradicate and deter
such discrimination. Not until
Rose v. Mitchell,
443 U. S. 545
(1979), however, did the Court squarely address the question
whether, given the availability of this remedy on direct review, it
is also necessary to make the same remedy available when the
petitioner seeks to renew his claim of discriminatory exclusion on
federal habeas corpus review.
See id. at
443 U. S. 582
(POWELL, J., concurring in judgment).
I share the view expressed by JUSTICE POWELL in
Rose: a
petitioner who has been afforded by the state courts a full
Page 474 U. S. 267
and fair opportunity to litigate the claim that blacks were
discriminatorily excluded from the grand jury which issued the
indictment should be foreclosed from relitigating that claim on
federal habeas. The incremental value that continued challenges may
have in rooting out and deterring such discrimination is outweighed
by the unique considerations that apply when the habeas writ is
invoked. The history and purposes of the writ, as well as weighty
finality interests and considerations of federalism, counsel
against permitting a petitioner to renew on habeas a challenge
which does not undermine the justness of his trial, conviction, or
incarceration.
See id. at
443 U. S.
579-588.
In this case, the District Court held that respondent was not
given a full and fair hearing on his discriminatory exclusion claim
in state court.
See Hillery v. Pulley, 563 F. Supp. 1228
(ED Cal.1983). That holding was not altered on appeal, 733 F.2d 644
(CA9 1984), nor is it challenged by the petitioner in this Court.
Respondent's claim was therefore cognizable in federal habeas
proceedings. Because I am not convinced that a sufficiently
compelling case has been made for reversing this Court's precedents
with respect to the remedy applicable to properly cognizable claims
of discriminatory exclusion of grand jurors, I concur in the
judgment of the Court.
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, dissenting.
Respondent, a black man, was indicted by a grand jury having no
black members for the stabbing murder of a 15-year-old girl. A
petit jury found respondent guilty of that charge beyond a
reasonable doubt, in a trial the fairness of which is unchallenged
here. [
Footnote 2/1] Twenty-three
years later, we are asked to grant respondent's petition for a writ
of habeas
Page 474 U. S. 268
corpus -- and thereby require a new trial if that is still
feasible -- on the ground that blacks were purposefully excluded
from the grand jury that indicted him. It is undisputed that race
discrimination has long since disappeared from the grand jury
selection process in Kings County, California. It is undisputed
that a grand jury that perfectly represented Kings County's
population at the time of respondent's indictment would have
contained only one black member. [
Footnote 2/2] Yet the Court holds that respondent's
petition must be granted, and that respondent must be freed unless
the State is able to reconvict, more than two decades after the
murder that led to his incarceration.
It is difficult to reconcile this result with a rational system
of justice. The Court nevertheless finds its decision compelled by
a century of precedent and by the interests of respondent and of
society in ending race discrimination in the selection of grand
juries. I dissent for two reasons. First, in my view, any error in
the selection of the grand jury that indicted respondent is
constitutionally harmless. Second, even assuming that the harmless
error rule does not apply, reversal of respondent's conviction is
an inappropriate remedy for the wrong that prompts this case.
I
The Court concludes that the harmless error rule does not apply
to claims of grand jury discrimination.
Ante at
474 U. S. 261.
This conclusion is said to follow from a line of cases going back
over 100 years.
Ante at
474 U. S.
260-261. In my view, it follows from a misapplication of
the doctrine of
stare decisis.
Adhering to precedent
"is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it
be settled right."
Burnet v.
Page 474 U. S. 269
Coronado Oil & Gas
Co., 285 U. S. 393,
285 U. S. 406
(1932) (Brandeis, J., dissenting). Accordingly, "any departure from
the doctrine of
stare decisis demands special
justification."
Arizona v. Rumsey, 467 U.
S. 203,
467 U. S. 212
(1984);
Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528,
469 U. S. 559
(1985) (POWELL, J., dissenting). Nevertheless, when governing
decisions are badly reasoned, or conflict with other, more recent
authority, the Court "has never felt constrained to follow
precedent."
Smith v. Allwright, 321 U.
S. 649,
321 U. S. 665
(1944). Instead, particularly where constitutional issues are
involved, "[t]his Court has shown a readiness to correct its
errors, even though of long standing."
United States v.
Barnett, 376 U. S. 681,
376 U. S. 699
(1964). In this ease, the Court misapplies
stare decisis
because it relies only on decisions concerning grand jury
discrimination. There is other precedent, including important cases
of more recent vintage than those cited by the Court, that should
control this case. Those cases hold, or clearly imply, that a
conviction should not be reversed for constitutional error where
the error did not affect the outcome of the prosecution.
In
Chapman v. California, 386 U. S.
18 (1967), the Court held that a trial judge's improper
comment on the defendant's failure to testify -- a clear violation
of the Fifth and Fourteenth Amendments -- was not a proper basis
for reversal if harmless.
Id. at
386 U. S. 21-24.
Since
Chapman,
"the Court has consistently made clear that it is the duty of a
reviewing court to consider the trial record as a whole and to
ignore errors that are harmless, including most constitutional
violations."
United States v. Hasting, 461 U.
S. 499,
461 U. S. 509
(1983). This rule has been applied to a variety of constitutional
violations.
See Harrington v. California, 395 U.
S. 250 (1969) (use of co-conspirator confession in
violation of Confrontation Clause);
Coleman v. Alabama,
399 U. S. 1 (1970)
(denial of counsel at preliminary hearing);
Milton v.
Wainwright, 407 U. S. 371
(1972) (use of confession obtained in violation of
Page 474 U. S. 270
right to counsel);
Gerstein v. Pugh, 420 U.
S. 103 (1975) (illegal arrest).
Other doctrines reflect the same principle. A defendant claiming
ineffective assistance of counsel must show that counsel's
incompetence caused him actual prejudice.
Strickland v.
Washington, 466 U. S. 668,
466 U. S. 687
(1984). This is so even though counsel "made errors so serious that
[he] was not functioning as the
counsel' guaranteed by the
Sixth Amendment." Ibid. [Footnote 2/3] Similarly, a defendant who is barred by a
procedural default from asserting a constitutional claim on direct
appeal cannot raise the claim on habeas corpus without showing that
the error actually prejudiced him. United States v. Frady,
456 U. S. 152,
456 U. S. 170
(1982); see also Wainwright v. Sykes, 433 U. S.
72 (1977).
In
Rose v. Mitchell, 443 U. S. 545
(1979), the Court contended that the principle of these cases is
inapplicable to grand jury discrimination claims, because grand
jury discrimination "destroys the appearance of justice, and
thereby casts doubt on the integrity of the judicial process."
[
Footnote 2/4]
Id. at
443 U. S.
555-556. But
every constitutional error may be
said to raise questions as to the "appearance of justice" and the
"integrity
Page 474 U. S. 271
of the judicial process." Nevertheless, as the cases cited above
show, the Court has required some showing of actual prejudice to
the defendant as a prerequisite to reversal, even when the
constitutional error directly affects the fairness of the
defendant's trial.
Compare Strickland v. Washington,
supra, at
466 U. S. 687
(requiring prejudice in ineffective assistance of counsel claims),
with Gideon v. Wainwright, 372 U.
S. 335,
372 U. S.
344-345 (1963) (emphasizing importance of right to
counsel to ensure fair trial). Grand jury discrimination is a
serious violation of our constitutional order, but so also are the
deprivations of rights guaranteed by the Fourth, Fifth, Sixth, and
Fourteenth Amendments to which we have applied harmless error
analysis or an analogous prejudice requirement. Moreover, grand
jury discrimination occurs
prior to trial, while the
asserted constitutional violations in most of the above-cited cases
occurred
during trial. The Court does not adequately
explain why grand jury discrimination affects the "integrity of the
judicial process" to a greater extent than the deprivation of
equally vital constitutional rights, nor why it is exempt from a
prejudice requirement while other constitutional errors are
not.
Thirty-one years ago, in a typically prescient opinion, Justice
Jackson called for such an explanation.
Cassell v. Texas,
339 U. S. 282,
339 U. S. 299
(1950) (Jackson, J., dissenting). None has been forthcoming.
Rose v. Mitchell, supra, at
443 U. S. 575
(Stewart, J., concurring in judgment). Since then, as the cases
cited above show, the Court has firmly established the principle
that error that does not affect the outcome of a prosecution cannot
justify reversing an otherwise valid conviction. That proposition
-- and the decisions of the last two decades that have reinforced
it -- is flatly inconsistent with the result reached today. The
Court's failure to reconcile this conflict itself violates the
doctrine of
stare decisis.
I would dissent from the Court's decision for this reason alone.
The reasoning of
Chapman and its progeny accords with a
rational system of justice -- one that fully preserves
Page 474 U. S. 272
constitutional rights but recognizes that not every violation
undermines the fairness of a given conviction. In this case, the
grand jury error did not affect the fairness of respondent's trial
or otherwise injure respondent in any cognizable way.
Infra at
474 U. S.
274-277. I therefore would reverse the Court of
Appeals.
II
Even assuming that now-established harmless error principles are
inapplicable, this case unjustifiably extends the "century of
precedent" on which the Court relies. Those decisions do not
require reversal of a decades-old conviction on the ground that it
was preceded by an indictment issued by a discriminatorily selected
grand jury. The purposes of the "automatic reversal" rule require
otherwise.
A
No one questions that race discrimination in grand jury
selection violates the Equal Protection Clause of the Fourteenth
Amendment.
E.g., Rose v. Mitchell, 443 U.S. at
443 U. S. 551;
id. at
443 U. S.
577-578 (Stewart, J., concurring in judgment);
id. at
443 U. S.
590-591 (WHITE, J., dissenting). The issue in this case
is not whether the State erred, but what should be done about it.
The question is whether reversal of respondent's conviction either
is compelled by the Constitution or is an appropriate, but not
constitutionally required, remedy for racial discrimination in the
selection of grand jurors.
See Bush v. Lucas, 462 U.
S. 367,
462 U. S. 378
(1983);
Davis v. Passman, 442 U.
S. 228,
442 U. S. 245
(1979);
Bivens v. Six Unknown Federal Narcotics Agents,
403 U. S. 388,
403 U. S. 403,
403 U. S. 407
(1971) (Harlan, J., concurring in judgment).
The Constitution does not compel the rule of automatic reversal
that the Court applies today. In
Hobby v. United States,
468 U. S. 339
(1984), we acknowledged that discriminatory selection of grand jury
foremen violated the Constitution, but we concluded that reversing
the petitioner's conviction was an inappropriate remedy for the
violation, since
Page 474 U. S. 273
grand jury foremen play a minor part in federal prosecutions.
Id. at
468 U. S.
345-346;
see also Oregon v. Elstad,
470 U. S. 298,
470 U. S.
305-307 (1985) (suppression of evidence obtained in
violation of
Miranda v. Arizona, 384 U.
S. 436 (1966), is not constitutionally compelled);
United States v. Leon, 468 U. S. 897,
468 U. S.
905-906 (1984) (suppression of evidence obtained in
violation of the Fourth Amendment is not constitutionally
compelled);
Stone v. Powell, 428 U.
S. 465,
428 U. S. 489
(1976);
see generally Monaghan, Foreword: Constitutional
Common Law, 89 Harv.L.Rev. 1 (1975). The rationale of
Hobby cannot be squared with the claim that discriminatory
selection of the body that charged the defendant
compels
reversal of the defendant's conviction. Rather, it is necessary to
determine whether reversal of respondent's conviction is an
"appropriate remedy" for the exclusion of blacks from grand juries
in Kings County, California, in 1962. [
Footnote 2/5]
Hobby, supra, at
468 U. S. 342;
see Rose v. Mitchell, supra, at
443 U. S.
558-559 (weighing costs and benefits of awarding relief
to petitioners claiming grand jury discrimination).
Cf.
Merrill, The Common Law Powers of Federal Courts, 52 U.Chi.L.Rev.
1, 53 (1985) (arguing that judicially created remedies are
appropriate only when "necessary in order to preserve a
specifically intended federal right"). That determination depends
on (i) the utility of the remedy in either correcting any injustice
to respondent or deterring unconstitutional conduct by state
officials, and (ii) the remedy's costs to society.
United
States v. Leon, supra, at
468 U. S.
906-907;
Stone v. Powell, supra, at
428 U. S.
489.
B
The scope of the remedy depends in part on the nature and degree
of the harm caused by the wrong. The Court perceives two kinds of
harm flowing from grand jury discrimination: harm to respondent's
interest in not being charged
Page 474 U. S. 274
and convicted because of his race, and harm to society's
interest in deterring racial discrimination. I consider in turn
these asserted interests and the degree to which they are served in
this case by the Court's automatic reversal rule.
(1)
The Court does not contend that the discriminatory selection of
the grand jury that indicted respondent calls into question the
correctness of the decision to indict. Such a contention could not
withstand analysis. Following his indictment for murder, respondent
was convicted of that charge in a trial and by a jury whose
fairness is not now challenged. The conviction, affirmed on direct
appeal in 1965, [
Footnote 2/6]
establishes that the grand jury's decision to indict was
indisputably correct.
Rose v. Mitchell, supra, at
443 U. S.
575-576 (Stewart, J., concurring in judgment);
Cassell v. Texas, 339 U.S. at
339 U. S.
301-302 (Jackson, J., dissenting). Justice Jackson
expressed the point best:
"It hardly lies in the mouth of a defendant whom a fairly chosen
trial jury has found guilty beyond reasonable doubt, to say that
his indictment is attributable to prejudice. In this case, a trial
judge heard the prosecution's evidence, ruled it sufficient to
warrant a conviction, appellate courts have held the same, and no
further question about it is before us. Moreover, a jury admittedly
chosen without racial discrimination has heard the prosecution's
and defendant's evidence and has held that guilt beyond a
reasonable doubt has been proved. That finding, too, has been
affirmed on appeal, and is not here. Under such circumstances, it
is frivolous to contend that any grand jury, however constituted,
could have done its
Page 474 U. S. 275
duty in any way other than to indict."
Cassell v. Texas, supra, at
339 U. S. 302
(dissenting).
The Court nevertheless decides that discrimination in the
selection of the grand jury potentially harmed respondent, because
the grand jury is vested with broad discretion in deciding whether
to indict and in framing the charges, and because it is impossible
to know whether this discretion would have been exercised
differently by a properly selected grand jury.
Ante at
474 U. S. 263.
The point appears to be that an all-white grand jury from which
blacks are systematically excluded might be influenced by race in
determining whether to indict and for what charge. Since the State
may not imprison respondent for a crime if one of its elements is
his race, the argument goes, his conviction must be set aside.
This reasoning ignores established principles of equal
protection jurisprudence. We have consistently declined to find a
violation of the Equal Protection Clause absent a finding of
intentional discrimination.
Arlington Heights v. Metropolitan
Housing Development Corp., 429 U. S. 252,
429 U. S. 265
(1977);
Washington v. Davis, 426 U.
S. 229,
426 U. S. 239
(1976). There has been no showing in this case -- indeed,
respondent does not even allege -- that the Kings County grand jury
indicted respondent because of his race, or that the grand jury
declined to indict white suspects in the face of similarly strong
evidence. [
Footnote 2/7] Nor is it
sensible to assume that impermissible discrimination
Page 474 U. S. 276
might have occurred simply because the grand jury had no black
members. This Court has never suggested that the racial composition
of a grand jury gives rise to the inference that indictments are
racially motivated, any more than it has suggested that a suspect
arrested by a policeman of a different race may challenge his
subsequent conviction on that basis. [
Footnote 2/8] But the Court now holds that relief is
justified in part because of the bare potential, unsupported by any
evidence, that an all-white grand jury charged respondent because
of his race.
This justification does not square with the Court's previous
decisions in this area; at the same time, it fails to explain the
outcome of this case. In
Castaneda v. Partida,
430 U. S. 482
(1977), for example, the Court ordered a new trial for a Hispanic
petitioner who was indicted by a grand jury half of whose members
were Hispanic. Whatever value such a result might have, it cannot
be justified on the ground that the grand jury indicted the
petitioner because of his race. In this case, due to the small
number of blacks in Kings County, a random selection system could
well have resulted in a grand jury identical to the one that
indicted respondent. A perfectly representative grand jury -- one
whose composition reflected the county's racial mix -- would have
contained only one black member. Neither outcome would have
justified an inference that respondent had been charged because of
his race.
See Akins v. Texas, 325 U.
S. 398,
325 U. S. 403
(1945).
Once the inference of racial bias in the decision to indict is
placed to one side, as it must be under our precedents, it is
Page 474 U. S. 277
impossible to conclude that the discriminatory selection of
Kings County's grand jurors caused respondent to suffer any
cognizable injury. There may be a theoretical possibility that a
different grand jury might have decided not to indict or to indict
for a less serious charge. The fact remains, however, that the
grand jury's decision to indict was
correct as a matter of
law, given respondent's subsequent, unchallenged conviction. A
defendant has no right to a grand jury that errs in his favor. At
most, he has an interest in not being bound over for trial in the
absence of any evidence of his guilt,
see Costello v. United
States, 350 U. S. 359,
350 U. S. 364
(1956) (Burton, J., concurring), [
Footnote 2/9] or based on impermissible factors such as
his race,
see Oyler v. Boles, 368 U.
S. 448,
368 U. S. 456
(1962). There is no allegation that those rights were violated in
this case. The Court's decision cannot, therefore, be justified as
a means of redressing any wrong to respondent.
(2)
As respondent suffered no prejudice from the grand jury
discrimination that prompted his claim, the Court's remedy must
stand or fall on its utility as a deterrent to government officials
who seek to exclude particular groups from grand juries, weighed
against the cost that the remedy imposes on society.
See United
States v. Leon, 468 U.S. at
468 U. S.
906-907. The Court properly emphasizes that grand jury
discrimination is "a grave constitutional trespass,"
ante
at
474 U. S. 262,
but it leaps from that observation to the conclusion that,
no
matter when the claim is raised, the appropriate response is
to reverse the conviction of one indicted by a discriminatorily
selected
Page 474 U. S. 278
body. That conclusion is not, as the Court erroneously suggests,
compelled by precedent; equally important, it seriously disserves
the public interest.
The cases on which the Court relies involved relatively brief
lapses of time between the defendant's trial and the granting of
relief. This fact is unsurprising, since the Court only recently
determined that claims of grand jury discrimination may be raised
in federal habeas corpus proceedings.
See Rose v.
Mitchell, 443 U. S. 545
(1979). [
Footnote 2/10] Prior to
1970, the Court's grand jury discrimination cases arose on direct
appeal from conviction. In all of those cases, the time between the
defendant's indictment and this Court's decision was six years or
less. [
Footnote 2/11] Before
today, the Court has twice
Page 474 U. S. 279
granted relief to habeas corpus petitioners alleging grand jury
discrimination. Both cases involved delays comparable to the delay
reflected in the cases that arose on direct appeal.
See
Castaneda v. Partida, 430 U. S. 482
(1977) (decision announced five years after indictment);
Peters
v. Kiff, 407 U. S. 493
(1972) (decision announced six years after indictment).
This case raises the open question whether relief should be
denied where the discrimination claim is pressed many years after
conviction, and where the State can show that the delay prejudiced
its ability to retry the defendant. [
Footnote 2/12] Respondent first raised his grand jury
discrimination claim before a federal court 16 years after his
conviction. [
Footnote 2/13] It is
now almost a quarter-century since respondent was tried for murder
and since the discrimination occurred. The Court finds this time
lapse irrelevant. In my view, it is critically important, because
it both increases the societal cost of the Court's chosen
Page 474 U. S. 280
remedy and lessens any deterrent force the remedy may otherwise
have.
In
Rose v. Mitchell, supra, the Court reasoned that the
rule of automatic reversal imposes limited costs on society, since
the State is able to retry successful petitioners, and since "the
State remains free to use all the proof it introduced to obtain the
conviction in the first trial."
Id. at
443 U. S. 558.
This is not the case when relief is granted many years after the
original conviction. In those circumstances, the State may find
itself severely handicapped in its ability to carry its heavy
burden of proving guilt beyond a reasonable doubt. Where the
original verdict turned on the jury's credibility judgments, long
delays effectively eliminate the State's ability to reconstruct its
case. Even where credibility is not central, the passage of time
may make the right to retry the defendant "a matter of theory
only." Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U.Chi.L.Rev. 142, 147 (1970). Witnesses die
or move away; physical evidence is lost; memories fade. For these
reasons, the Court has noted that "
[t]he greater the lapse of
time, the more unlikely it becomes that the state could reprosecute
if retrials are held to be necessary.'" Peyton v. Rowe,
391 U. S. 54,
391 U. S. 62
(1968) (citation omitted). [Footnote
2/14]
Long delays also dilute the effectiveness of the reversal rule
as a deterrent. This case is illustrative. The architect of the
discriminatory selection system that led to respondent's claim,
Judge Wingrove, died 19 years ago. Respondent
Page 474 U. S. 281
does not allege that the discriminatory practices survived Judge
Wingrove, nor is there any evidence in the record to support such
an allegation. It is hard to believe that Judge Wingrove might have
behaved differently had he known that a convicted defendant might
be freed 19 years after his death. Yet that is exactly the
proposition that must justify the remedy imposed in this case: that
people in positions similar to Judge Wingrove's will change their
behavior out of the fear of successful habeas petitions long after
they have left office or otherwise passed from the scene. The
proposition, to say the least, is highly questionable.
These concerns require that a different balance be struck in a
case such as this one than in cases in which the grand jury
discrimination claim is adjudicated only a short time after the
petitioner's conviction. At the very least, the Court should focus
directly on the aspect of delay that increases the costliness of
its remedy by allowing the State to show that it would be
substantially prejudiced in its ability to retry respondent.
[
Footnote 2/15] If this showing
were made, respondent's
Page 474 U. S. 282
petition for relief should be denied. Such an approach would
also identify those cases in which granting habeas relief could be
expected to have the least deterrent value: the State will likely
suffer the greatest prejudice in cases of long delay, and those are
the cases in which the automatic reversal rule is least likely to
alter the behavior of discriminatory officials. This approach would
leave the rule that the Court defends intact in precisely those
cases where it does the most good and the least harm: cases in
which the responsible officials are likely to be accountable for
forcing the State to again prove its case, and in which retrial and
reconviction are plausible possibilities.
III
Twenty-three years ago, respondent was fairly convicted of the
most serious of crimes. Respondent's grand jury discrimination
claim casts no doubt on the adequacy of the procedures used to
convict him or on the sufficiency of the evidence of his guilt. For
that reason alone, the Court should reverse the Court of Appeals'
decision. [
Footnote 2/16] Even
assuming the
Page 474 U. S. 283
harmlessness of the error is irrelevant, however, reversal is
still required. The Court inappropriately applies a deterrence rule
in a context where it is unlikely to deter, and where its costs to
society are likely to be especially high. These considerations
should at least lead the Court to remand for a determination of
whether the long lapse of time since respondent's conviction would
prejudice the State's ability to retry respondent.
The Court follows neither of these paths, but instead affirms a
decision that will likely mean that respondent must be freed for no
good purpose. This result is not compelled by precedent. But if it
were, its consequences would justify reconsidering those decisions
thought to require it. I therefore dissent.
[
Footnote 2/1]
Respondent was thrice sentenced to death for this murder.
See People v. Hillery, 10 Cal. 3d
897, 519 P.2d 572 (1974);
ante at
474 U. S. 256,
n. 2. That sentence was ultimately reduced to life imprisonment
because the California Supreme Court found that imposition of the
death penalty was in all cases inconsistent with the California
Constitution.
Ibid.
[
Footnote 2/2]
According to 1960 census figures, 4.7% of Kings County's
population over age 21 was black.
Hillery v. Pulley, 563
F. Supp. 1228, 1232 (ED Cal.1983). Respondent's grand jury
consisted of 19 individuals, all of whom were white.
Id.
at 1231.
[
Footnote 2/3]
As the Court stated in
Strickland,
"[w]hen a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
guilt."
466 U.S. at
466 U. S.
695.
[
Footnote 2/4]
Although all parts of JUSTICE BLACKMUN's opinion in
Rose v.
Mitchell were joined by four other Justices, its precedential
weight is subject to some question. In particular, Part II of the
opinion -- the part that discusses the legal principles applicable
to grand jury discrimination claims generally -- was not joined by
five Justices who also joined in the judgment.
Cf. Gregg v.
Georgia, 428 U. S. 153,
428 U. S. 169,
n. 15 (1976) (Court's holding is "that position taken by those
Members who concurred in the judgments on the narrowest grounds").
Moreover, the opinion's discussion of general principles was
irrelevant to the result, which turned on the insufficiency of the
evidence of discrimination. In my view, therefore,
Rose is
little more than an advisory opinion.
See Flast v. Cohen,
392 U. S. 83,
392 U. S. 94-95
(1968); Frankfurter, Note on Advisory Opinions, 37 Harv.L.Rev.
1002, 1005-1007 (1924).
[
Footnote 2/5]
Respondent does not allege that discriminatory selection of
grand jurors continued after 1962. Nor is there anything in the
record to support such an allegation.
[
Footnote 2/6]
A The California Supreme Court affirmed respondent's conviction
in 1963; on rehearing in 1965, the court reversed respondent's
death sentence, but again affirmed his conviction.
Ante at
474 U. S. 256,
n. 2. Respondent is presently serving a sentence of life
imprisonment.
[
Footnote 2/7]
Most criminal cases in Kings County were initiated by
information, rather than indictment. In the decade ending in 1962,
Kings County grand juries indicted a total of only four persons,
only one of whom was black.
People v. Hill, 62 Cal. 2d
692, 710, 401 P.2d 382, 393 (1965),
cert. denied, 386
U.S. 938 (1967). In light of these facts, any claim that
discriminatory selection of grand jurors was a mechanism for
applying different standards to black offenders than to their white
counterparts seems altogether fanciful.
Nor is there any direct evidence that the grand jury
discriminated against respondent because of his race. The only
discrimination in this case was directed not at respondent, but at
the black residents of Kings County, who were barred from serving
on grand juries because of their race. There is nothing in the
record to support a finding that the grand jurors themselves
discriminated against anyone on the basis of race, or that they
otherwise failed to discharge their duties properly.
[
Footnote 2/8]
Instead, as the Court apparently acknowledges, a validly
convicted criminal defendant must show that he was "deliberately
charged . . . on account of his race" in order to obtain reversal
of the conviction.
Ante at
474 U. S. 264
(citing
United States v. Batchelder, 442 U.
S. 114,
442 U. S. 125,
and n. 9 (1979)). Respondent has not even alleged, much less shown,
any discrimination directed at him.
See 474
U.S. 254fn2/7|>n. 7,
supra.
[
Footnote 2/9]
I do not intend to suggest that respondent could have obtained
judicial review of the sufficiency of the evidence on which his
indictment was based.
See United States v. Calandra,
414 U. S. 338,
414 U. S. 345
(1974) ("[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"). I suggest only that, assuming
such an attack were permitted, respondent could show no violation
of any personal right in this case.
[
Footnote 2/10]
In my separate opinion in
Rose v. Mitchell, I took the
position that, where a habeas petitioner is given a full
opportunity to litigate his grand jury discrimination claim in
state court, he should not be permitted to litigate the claim again
on federal habeas corpus. 443 U.S. at
443 U. S. 679
(POWELL, J., concurring in judgment). I remain convinced that my
conclusion was correct. Nor do I believe that, in this case,
stare decisis weighs persuasively against reexamining the
question whether a defendant should be permitted to relitigate a
claim that has no bearing on either his guilt or on the fairness of
the trial that convicted him.
Rose v. Mitchell, decided in
1979, is the only case in which this Court has examined the issue,
and
Rose's authority is questionable.
See
474
U.S. 254fn2/4|>n. 4,
supra.
JUSTICE O'CONNOR has some doubt as to whether respondent had a
full and fair opportunity to litigate his grand jury discrimination
claim in a state court.
Ante at
474 U. S. 267
(O'CONNOR, J., concurring in judgment). Respondent concedes that he
did in fact relitigate that claim in state habeas corpus
proceedings, Brief for Respondent 3, and appealed the denial of
relief to the California Supreme Court.
Ibid. In my view,
this afforded respondent an entirely adequate opportunity to
litigate in state courts both the underlying discrimination claim
and the subsidiary claim that Judge Wingrove was a biased
adjudicator.
It is unnecessary actually to decide the issue in this case, for
I conclude that the judgment should be reversed on two other
grounds: the harmlessness of the error, and the inappropriateness
of the Court's remedy in cases in which the discrimination claim is
raised so long after the claimant's conviction that retrial is
difficult, if not impossible.
[
Footnote 2/11]
The longest time lapse occurred in
Strauder v. West
Virginia, 100 U. S. 303
(1880). In
Strauder, the defendant was indicted in
October, 1874; this Court's decision was rendered in March,
1880.
[
Footnote 2/12]
The Court has decided only two cases in which the State might
have argued that a long delay in raising a grand jury
discrimination claim prejudiced the State's ability to retry the
defendant. In both instances, the Court denied relief on other
grounds.
Francis v. Henderson, 425 U.
S. 536 (1976) (petitioner raised grand jury
discrimination claim seven years after conviction; Court denied
relief on exhaustion grounds);
Tollett v. Henderson,
411 U. S. 258
(1973) (petitioner raised grand jury claim 21 years after
conviction; Court held that claim was foreclosed because petitioner
had pleaded guilty pursuant to competent legal advice).
[
Footnote 2/13]
The reason for this delay is irrelevant, unless bad faith on the
State's part can be shown. Because respondent suffered no injury
from Kings County's discriminatory selection of grand juries, he
cannot fairly complain if he is required to raise his claim
promptly in order to secure a windfall.
Moreover, respondent does not appear to have been blameless for
the long delay. The California Supreme Court finally rejected
respondent's grand jury discrimination claim in 1965. Respondent
next raised the claim in 1974, when he sought postconviction relief
in state court. During the intervening nine years, respondent
raised repeated challenges -- ultimately successfully -- to his
death sentence. There is no apparent reason why respondent could
not simultaneously have sought postconviction relief on the grand
jury discrimination claim, which if successful would require a new
trial on guilt.
[
Footnote 2/14]
Under the Court's approach, one in respondent's position may be
wise to wait to raise his discrimination claim until the State
could no longer reconvict him due to the death or disappearance of
witnesses or the loss of physical evidence. In effect, this
strategy could permit a prisoner to commute a legally imposed
sentence of life or long duration. This is a risk society should
tolerate where the claim goes to the petitioner's guilt or
innocence, or even where the claim seeks otherwise to redress a
wrong done to the petitioner. But there is no reason to tolerate
this risk where, as here, the claimant was fairly convicted and has
suffered no prejudice from the asserted constitutional error.
[
Footnote 2/15]
The Court suggests that Rule 9(a) of the Habeas Corpus Rules,
together with congressional inaction, "counsels against"
considering prejudice to the State's ability to retry respondent in
this case.
Ante at
474 U. S. 265.
This suggestion is erroneous. Rule 9 permits the State to defend
against both repetitious habeas petitions,
see Woodard v.
Hutchins, 464 U. S. 377,
464 U. S. 379
(1984) (POWELL, J., joined by BURGER, C.J., and BLACKMUN,
REHNQUIST, and O'CONNOR, JJ., concurring), and petitions to which
the State cannot adequately respond due to the petitioner's delay
in filing,
e.g., Mayola v. Alabama, 623 F.2d 992, 999-1000
(CA5 1980),
cert. denied, 451 U.S. 913 (1981). The Rule
does not by its terms foreclose other consideration of the lapse of
time between the petitioner's conviction and the filing of the
habeas petition.
Honeycutt v. Ward, 612 F.2d 36, 43 (CA2
1979) (Friendly, J., concurring in judgment),
cert.
denied, 446 U.S. 985 (1980). More important, it is a rule of
habeas corpus procedure applicable to habeas petitions generally,
and does not purport to be a rule of substantive law that defines
particular substantive claims for relief. Congress' decision not to
amend it therefore says nothing about Congress' intent with regard
to the remedy applied here. In sum, the question whether the relief
respondent seeks is "appropriate" in this case,
Hobby v. United
States, 468 U. S. 339,
468 U. S. 342
(1984), is governed neither by Rule 9 nor by Congress' decisions
not to amend that Rule.
See Stone v. Powell, 428 U.
S. 465,
428 U. S.
474-482 (1976) (discussing relationship between habeas
corpus statute and the rule that evidence seized in violation of
the Fourth Amendment is inadmissible). As the Court stated in
Fay v. Noia, 372 U. S. 391,
372 U. S. 438
(1963):
"[W]e recognize a limited discretion in the federal judge to
deny [habeas corpus] relief to an applicant under certain
circumstances. Discretion is implicit in the statutory command that
the judge, after granting the writ and holding a hearing of
appropriate scope, 'dispose of the matter as law and justice
require,' 28 U.S.C. § 2243; and discretion was the flexible concept
employed by the federal courts in developing the exhaustion rule.
Furthermore, habeas corpus has traditionally been regarded as
governed by equitable principles."
See also Stone v. Powell, supra, at
428 U. S. 478,
n. 11. Those "equitable principles" cannot, in my view, require
that the Court apply a remedy that is not constitutionally
compelled beyond the bounds of justice and good sense.
[
Footnote 2/16]
Confidence in our system of justice is eroded when one found
guilty of murder, in a trial conceded to be fair, is set free. It
is important to remember that the criminal law's aim is twofold:
"that guilt shall not escape or innocence suffer."
Berger v.
United States, 295 U. S. 78,
295 U. S. 88
(1935);
see also United States v. Agurs, 427 U. S.
97,
427 U. S. 112
(1976). The Court's decision in this case plainly undermines the
State's interest in punishing the guilty, without either protecting
the innocent or ensuring the fundamental fairness of the procedures
pursuant to which one such as respondent is tried and
convicted.