Beck v. Washington

BECK WASHINGTON. May 14, 1962. Argued 14, 1961. Decided November

No. 40. argued Charles S. Burdell the cause and filed briefs for petitioner. Donald McL. Davidson entered an appear- ance for petitioner.

James E. Kennedy argued the cause for respondent. himWith Paul, the briefs was William L. Jr.

Mr. Justice Clark delivered opinion the of the Court. Petitioner David D. Beck contends his conviction of larceny in Superior the Court of the of State King for County is invalid under the Due Process Equal Protection Clauses of the Fourteenth Amendment. This contention is based primarily on what is characterized as voluminous and continuous adverse publicity circulated by news media in vicinity the Seattle, Washington, where he was indicted and tried. Specifically alia, he claims, inter unfairly impaneled and instructed, the prosecutor acted improperly before jury, and that his motions for a change of venue and for continuances were erroneously denied. judges of the Supreme Court Washington divided equally in review, 56 Wash. 2d 474, 2d 387, 353 P. P. 2d 429, leaving petitioner’s convic- tion undisturbed. granted We certiorari limited to the above contentions, 365 affirm U. S. 866, and we now conviction. Publicity

I. The oe Which Petitioner

Complains. In addition challenges and petit juries, petitioner prior to the selection of the petit jury made five motions on ground of bias and prejudice arising viz., from publicity, quash indictment, one to for ranging three continuances from one month to change indefinite period, one venue County. Snohomish or counsel Whatcom Petitioner’s supported regard his factual contentions these var- personal photo- ious motions well as by affidavits as stats stories appearing newspapers local and national magazines. highlights shall now We summarize the publicity set forth moving in his papers and exhibits.

The Select Improper Committee on Activities Management Labor or Field of the States Senate United began investigation its on February 26, In early 1957. March the Chairman of the Committee announced that the “produced Committee had ‘rather conclusive’ evidence tie-up of a between Coast West Teamsters and under- monopolize world bosses to in Portland, vice Ore.” The announcement also stated that “Teamsters’ President Dave Beck and Brewster a Teamster will be [also leader] questioning charge they summoned for on schemed Oregon’s to control law enforcement from a machinery up governor’s local level the chair.” March 22 the On Committee was quoted newspapers stating “$250,000 had taken from been . Teamster funds . . and personal used for Beck’s bene- fit.” Petitioner appeared before the Committee on 26, March and the newspapers reported: “BECK TAKES 5TH AMENDMENT of ‘Very President Teamsters Definitely’ Might Thinks Records Him.” Incriminate permitted Television cameras were at hearings. One Seattle TV station ran an “live” broadcast of the 8%-hour session on March films of this session were shown by various TV stations the Seattle-Tacoma area. The April 12 of issue S.U. News & Report World ran a caption: “Take a look around Seattle days, you these find what a inquiry Senate can do to topa labor leader county prose- 26 the April On

in his own home town.” be grand jury would special announced that a cutor of misuse investigate possible impaneled Seattle “to president funds Dave by international Teamsters Union Mayor . that former . . .” was later announced Beck It Special Prose- appointed Chief Seattle was be Devin indicted a federal May petitioner cutor. On The jury at Tacoma for income tax evasion. front-page announcement this action was course days again called headlines. Five later in Washington. as a before the witness Committee News on his appearance pleading stories concentrated on hearings. Fifth during Amendment 60 times emanating hearings Other stories from the Committee intermittently, May day were featured and on convening of the the special grand jury, the Chairman “the Senate Committee announced that Committee any crime, although has not convicted Mr. Beck of my many belief that has offenses.” committed criminal after publicity degree to some continued during period had been convened three-week prosecutors gathering up documentary in which the were through jury subpoenas. evidence of use Among appeared other stories that was one of June stating hearings Jr., the Committee who “Beck, say even refused to whether he his father, knew took shelter amendment following behind the 130 times, [fifth] example Beck, Sr., who refused answer 210 times in appearances three before committee.” The indict- in by special jury ment this case was returned grand July on 12 and of course received banner headlines. publicity Intermittent some from continued, Washington, August C., jury D. until 28 when federal indicted petitioner and others on additional income tax evasion co-conspirators counts. The named in this latter indict- ment were then called before the in Washing- Committee

545 hearings, which were held on November ton, and these 12 brought publicity. on additional On November Dave Beck, Jr., larceny charges went to trial on other was 23, a The state Saturday. papers convicted on November coverage. that event considerable The trial of gave peti- in 2 began this case on December and continued tioner until conviction on December 14. Objections Jury

II. The to the Grand

Proceedings. California, (1884), Ever Hurtado v. 110 516 since U. S. has held consistently this Court there is no federal dispensing entirely impediment constitutional with the in prosecutions. Washing- state The State of mandatory grand jury practice its ton abandoned some years ago.1 prosecutions 50 Since time have been by filed instituted on informations on prosecutor, many a prior judicial occasions without even determina- “probable tion of cause” —a which has procedure likewise approval had in such cases Ocampo here v. United States, Oregon, S. and Lem (1914), Woon v. U. (1913). S. 586 Grand juries U. are con- only special vened for specific purposes. occasions and case, eighth King called County years, primarily summoned to investi- gate which circumstances had been the subject of the hearings. Senate Committee attempts

In his before trial to have the indictment set aside any did contend particular juror prejudiced or biased. Rather, he asserted that judge impaneling the grand jury had breached his duty to ascertain on voir dire whether prospective juror been influenced had the adverse publicity and that this error had been compounded his failure to ade-

1 Washington Laws c. 87. preju- grand concerning bias quately jury instruct the Four- that the Due Process Clause of the may dice. It be State, having once requires teenth Amendment an unbiased to to furnish grand jury procedure, resorted a States, S. Compare Lawn United 355 U. grand jury. States, S. Costello v. United 350 U. 339, (1958); 349-350 States, v. United 341 U. S. (1956); Hoffman necessary for us (1951). But that it is not we find if due would question; process to even determine it body a an unbiased once resorted require State to furnish question upon which we do not jury procedure to —a concluded remotely intimate view—we have that far record, so as is shown did so Washington, this case. appearance

Petitioner’s before Senate Committee high quite news of national interest and was current publicized normally widely throughout Nation, was including city of Seattle the State of his home Wash- ington. His answers to and conduct before the Commit- local possibility tee disclosed the had committed Washing- the jurisdiction King County, within offenses ton, against light of that State. In the of those laws duty-bound King County disclosures the authorities were if investigate and, violated, the State’s laws had been documentary prosecute appears It offenders. petitioner’s hands of evidence —in the union —was neces- only sary complete investigation. method avail- by grand able secure such documents jury process, impanel was decided therefore to jury. This free to do.

Twenty-three prospective grand were called. jurors The trial as is judge explained, customary matters, such they primarily possible had been called to investigate King County committed in crimes officers of the had been the subject Teamsters Union which of the Senate hearings. impaneling In Committee determining statutory qualifications, after their judge, and businesses, union affiliations the asked each of like, sitting the prospective jurors: anything “Is there about In might you on this that embarrass at all?” jury con- question they answer to this or the of whether were of prejudice bias, scious which was asked when- ever a need further previous suggested inquiry, answers for and they prejudiced by publicity two admitted were the were excused. Another stated whether he was that prejudiced “pretty he, too, was hard to was answer,” In excused. addition three who were or been persons had petitioner’s members of unions that with were affiliated accepted union were excused. The 17 were remaining grand jurors and sworn as as a the oath part of swore they “present [any] person through envy, that would not city hatred or them a Among malice.” were retired employee manager who had been a of a Teamster, real office, bookkeeper, engineer, estate a an airplane employee, manufacturer’s a seamstress whose husband member, union a a inspector, gravel was a material com- superintendent a pany who was former Teamsters Union engineer a member, Department civil with the of State engineer Fisheries, gyroscope and an for manufacturer. charge In his the grand judge trial explained is inquire that its “function into of the commission in the county,” ordinarily “by crime that this was done but regularly agencies,” established law enforcement was impossible investiga- that here because further tion necessary requiring was attendance of witnesses and the of examination books records which a prose- power had no As compel. cutor to the for purpose which called, he explained that “disclosures” the Senate Investigating Committee indicated “hundreds of thou- dollars of funds” sands Teamsters had Union been “embezzled or stolen” its officers. He also stated president of had “publicly Teamsters a loan. money he had received

declared” added, “the truth presents fact,” “This mentioning other you ascertain.” After which is you you to do all concluded, urge “I accusations he truth or practical limitations to ascertain can within . . You have a most serious charges. . falsity these responsibility, It a tremendous .... perform task to you your and I well in work.” wish grand judge It the did not admonish the is true reports publicity or news jurors disregard disbelieve and the explain or concerning petitioner. Nor did mention peti- by Fifth Amendment of invocation of the effect the inquire politics the or the tioner before Committee might along such any panel member. Discussion lines of here. flames which some see have added fuel to the well judge dilemma admonished Apparently sensing this the into inquire function the grand jury that its county and that was to of crime commission and well an examination of witnesses as as books conduct he said that it was records. Twice in short statement charges were grand to determine whether jury for the they Taking whole, instructions as true or false. charges jurors made manifest were sift interrogation witnesses, of by careful investigation, by stories. newspaper of records, examination on attack made we light In the of facts and these biased. It was chosen grand jury that the say cannot six regular list. Some months thereafter jury from the try from the same jury to this case was selected petit shown, hereafter be was not found community and, as will Indeed, every judge passed who on prejudicéd. to be including its highest court, courts, in the State’s the- issue through grand jury A at the the record has held. look so composed people from all it was walks reveals that former union members. The were life, of whom some all presence panel in the immediately and judge eliminated six prospective grand jurors when indications of prejudice appeared. personally No knew juror petitioner or was shown to the institutions be adverse to petitioner with which generally Every identified. per- son who was selected on took oath that person through he would not indict mal- any “hatred or ice.” sat for Moreover, six weeks before against petitioner. indictment was returned The rec- ord also testimony indicates that it heard voluminous the charges against petitioner that had been made it gave others the matter most meticulous and careful consideration. We therefore conclude that petitioner has failed to body show that the which indicted him was biased him. prejudiced against or

In addition to the process above due contention three equal protection arguments sug- are made gested on his behalf. First, petitioner argues he is a mem- ber a class (Teamsters) that was equal not accorded treatment jury proceedings. The contention is based on references to the Teamsters the judge impan- eling the jury as he conducted the voir and dire explained the of the scope investigation. The complete answer to petitioner’s argument references the that to Teamsters necessary were the voir dire to eliminate persons might prejudiced who be for or against petitioner and in the to explain purpose scope instructions the and special body. of this totally Petitioner has failed to that establish non-Teamsters who are of groups members investigation given under are different treatment. Secondly, is said that the statute Washington per- mitting persons custody to challenge grand jurors, Washington 10.28.030, Revised Code equal § denies protection persons in custody investigated not who are point is grand juries. properly This not this before opinions Court. Although Washington both of the Su- preme interpretation Court discuss 10.28.030, the §

550 equal pro- light the neither considered properly argument argument was never for that tection presented to this statute. in relation to the court unfailingly Supreme Washington refused has Court upon not statutes made attacks consider constitutional arise claims trial where the constitutional court, even challenged interpretation of the from trial court’s g., Seattle, 2d 543, E. 50 Wash. Johnson v. statute. (1957).2 P. formal attack the trial 2d 676 Petitioner’s § much less 10.28.030, did not even mention court level interpretation argue be unconsti- would restrictive Equal tutional under the Protection Clause.3 That 2 Washington Griffith, (1958), 2d 328 P. 24 897 Wash. principle. this does not detract from In Griffith general Supreme Court, recognizing the rule while that constitutional arguments presented Supreme cannot be for the first time in the exception general Court, found an rule when the accused in capital attorney court-appointed incompetently case asserts his con exception obvious, trial. such ducted his The reasons for are just applicable present it is reasons are to the obvious such not case. following upon grand jury: Petitioner attacks made

“Motion to Set Aside and Dismiss Indictment —Filed

October Beck, Beck, Now D. “Comes David also known as defendant Dave herein, by through attorneys herein, respect- of record fully following moves set aside and dismiss the indictment on grounds: jurors selected, summoned,

“1. drawn, That were not impaneled prescribed by or sworn as law. persons, required

“2. permitted by That unauthorized law present to attend sessions of the were before the jury during investigation allegations indictment. persons grand jurors present

“3. That other than the were before during things charged the consideration of the matters and in the indictment. grand jury

“4. proceedings That the of the the which returned atmosphere were bias, preju- indictment conducted in an of extreme hostility defendant, dice toward this atmosphere and and that said prosecution petitioner and court as outside the the viewed scope of him brought § 10.28.030 home to in the course of proceedings the trial court on his attack. But even then not suggest did that constitu- part Prosecuting Attorney by was in persons created the and act- ing claiming upon behalf; or to prejudicial act his all of which was deny this defendant and which has denied and will continue to him rights guaranteed under the 14th of Amendment the Constitution of States, the United Amendment 10 of the of Constitution the State Washington, I, of and the Article 3 of Constitution of the State § Washington. of bias, prejudice hostility

“5. That reason extreme of and toward herein, part by the defendant contributed to in the of conduct Prosecuting Attorney acting persons claiming upon and to act behalf, impossible it is and will be the defendant to secure and impartial jurisdiction Court, obtain a fair and trial of all prejudicial of is which and will be to this defendant and which will rights guaranteed constitute a denial of his under the 14th Amend- States, ment of Constitution of the United Amendment Washington, I, Constitution of of State of and Article § Washington. Constitution of the of State “6. That the Court its erred in instructions and directions to the Jury rights prejudice Grand to the and in of defendant denial of guaranteed the 14th of under Amendment of the Constitution States, United Amendment the Constitution of the State of Washington, I, and Article of3 the Constitution of the State of § Washington. Jury persons

“7. That there were excluded from Grand financial, occupation, defendant’s social and business class and con- trary States, the 14th Amendment Constitution the United contrary I, and to Article 3 of the Constitution of the State § Washington. required compelled give That “8. the defendant herein was against himself, contrary provisions I, evidence to the of Article 9§ of the Constitution of the State of and the 5th 14th Amendments of Constitution the United States. Jury

“9. That the Grand committed misconduct violation of RCW 10.28.085 R.CW 10.28.100. files, upon records, transcripts,

“This motion based all of the exhibits and affidavits herein.”

552 result. a different compel might considerations tional into contention inject equal protection The failure the to before proceedings to the the carried forward case was to failed petitioner when Washington Supreme the Court manner the prescribing court’s rule comply with that brought to attention. are to be its which contentions of Revised Code Wash- Appeal, Rule 43 of Rules the superior of the alleged error provides ington, “[n]o be the same by this court unless court will be considered 'assignments of error’ out the definitely pointed generalized upon attacks appellant’s Mere brief.” made in his holding petitioner of validity below 4 of of error” are not considered reason “assignments Jury "Challenge 18, —Filed October 1957 to Grand challenges herein all of “Comes Now the defendant each and grand jury herein members of the which returned indictment grounds impaneled for the reason and on the that the Court which grand jury to state mind said made no determination as whether a any juror part such render him unable existed on as would prejudice.” impartially act and without 4 “assignments following: 29 of error” included the Petitioner’s set denying appellant’s “6. The erred in motion to lower court aside and dismiss the indictment. challenge denying appellant’s

“7. The lower court erred jury. appellant’s rights impartial

“25. The court denied to a fair and grand jury.” attempt

However, when did to conform to the rule of by pointing “definitely” Washington Supreme Court out the errors denying upon grand jury, committed in his attacks he limited the review to of the Due Process Clause as set out violations below. appellant process due was denied of law under the Four-

“29. teenth Amendment the Constitution of United States of Amer- ica and under the Tenth Amendment of Constitution the State Washington, as follows: right by denying appellant challenge grand jury “a. prejudice to dismiss the indictment bias and of the members. con- underlying

this rule sufficient invoke review g., Washington Tanzymore, e. See, tentions. v. Wash. Fowles 290, 2d (1959); 340 P. 2d Sweeney, 2d 182, 188, 400, 403, Wash. 2d 248 P. (1952). Washington Supreme Nor will the Court search through proper specific the brief to find contentions which “assignments should have been listed within the error.” Washington Bunge, ex rel. Linden v. 245, See 192 Wash. P. 2d 251, 516, (1937). 73 518-519 failure Moreover, the petitioner argue in his constitutional contention brief, opposed merely as it forth setting did one brief, sentence of his 125-page considered the Wash- ington Supreme Court be an abandonment or waiver of E. J. g., Penney Co., Martin v. C. such contention. 50 (1957); Washington 2d 313 P. 2d 560, 565, 689, Wash. 693 Williams, v. 356-357, 49 Wash. 2d 301 P. 2d 770 354, 769, (1956). equal protection Nor was the contention made petitions at all filed rehearing Supreme for after agreed had interpretation Court with the lower court’s Assuming arguendo the statute to exclude petitioner. purposes jurisdiction that for the of our would if timely have been for petition rehearing, raised having been raised or actually there elsewhere decided by Washington Supreme Court, argument cannot precedent. be an entertained here under unbroken line by denying change “b. motions for continuance and of venue forcing thereby appellant go atmosphere an to trial in of extreme hostility prejudice. prosecutor of the

“c. misconduct during proceedings, “1. and after the “2. trial. by denying appellant opportunity inspect

“d. to examine or transcripts proceedings had before the after State particular introduced evidence of statements made before the jury by secondary cross-examination or evidence. appellant

“e. the means used to accuse and convict were not com- play.” patible with of fair reasonable standards (1961); S. Georgia, 365 U. g., Ferguson E. (1902). Ohio, 238, 183 U. S. City Dairy Co. v. Capital questions scope of the within the Furthermore, it was not specifically in this case writ of certiorari to which the reason this additional and for limited, S.U. presented. cannot now be Equal Protection Clause final under the argument special singled has out Washington

is that safeguards him by denying procedural treatment But grand jury. an unbiased affords to insure law others wholly unsupported reasoning proceeds on the required have been procedures that such assumption contrary it is Moreover, in all cases.5 other in deny- finding Superior Court, underlying to the indictment, that the motion to dismiss the ing the if And and instructed. even lawfully were selected jurors Washington requires pro- law such to assume that we were argument here comes safeguards, petitioner’s cedural Washington misap- law was that down to a contention an cannot be shown to be plied. misapplication Such again said time and discrimination. have invidious We uni- does not “assure that the Fourteenth Amendment immunity decisions . . . from formity judicial [or] 5 holding. reported Washington The two There are no cases so Washington Guthrie, predicated, 185 this claim is v. cases which Washington Murphy 464, (1936), ex rel. v. Wash. 56 P. 2d 160 only Superior Court, (1914), 82 144 P. 32 were concerned Wash. grand jury been whether the members of the had selected with requires. Quotations when from these cases read chance as the law only desirability selecting clearly have reference context rehearing petition jurors by before chance. Petitioner in quoted Washington Supreme unnamed, unre Court from two jury prospective ported Washington grand proceedings in which some jurors questioned bias. Even if it were clear that all were as to (which questioned not), isolated, jurors it such in those cases were so establish that law instances would not unreviewable procedures. requires the claimed

555 Ry. Light Milwaukee Electric & judicial error . . .” . Milwaukee, Co. v. Wisconsin ex rel. S. U. (1920). otherwise, every alleged misapplication Were it of state law constitute a federal constitutional would question. Finally, were we to vacate this conviction of a procedures although because failure to follow certain not fair it has been shown that their ultimate end —a be grand jury proceeding we would obtained, —was exalting contrary previous form over substance to our g., e. Graham application Equal Clause, Protection Virginia, West S. 616, (1912). U. Petitioner also contends that a witness before the jury improperly interrogated a manner which body. prejudiced appears his case before that It that petitioner’s employee union was called before the testify employ- reference to activities within his During appearance ment. his first he made statements subsequently voluntary reap- which he on a changed pearance days before the some two before appear- indictment was returned. On second prosecutor ance the changed story attacked the witness’ him oath, incredible and that he warned was under might that he prosecuted be for there perjury, for him go petitioner. no occasion jail record prosecutor indicates incensed over became though the witness’ new of his threats some story; of bounds, appears they were out had no effect upon the witness whatsoever for he story. stuck his irregularity can find We no proportions, constitutional therefore reject we this contention. JuRy. Objections III. The as to the Petit As his attack, petitioner makes no claim any particular that petit juror was Instead, biased. he publicity prevented states the which of a fair selection precluded also a fair petit argues He jury. been has publicity adverse strong such a case he was at the time Seattle any jury selected proved that biased and presumptively be held to be tried must change a rulings on motions for his trial court’s adverse in error. therefore and for continuances were of venue infirmity no could be constitutional course there Of by a trial actually if received rulings these is addressed to Hence, inquiry our impartial jury. subject. This was early in December. began

Petitioner’s trial first after was called before nine and one-half months after the Senate Committee and almost five months was Although publicity indictment. there some adverse during from period the latter which stemmed the second hearings tax indictment and as as from later Senate well the trial nor petitioner’s son, it was neither intensive original extensive. The value of news “disclosures” diminished, was items relegated and the were often pages. the inner items front-page Even occasional were news rather articles straight stories than invidious ill which would tend to arouse will vindictiveness. If there a him campaign against petitioner infers, as appearance sidetracked by other “labor bosses” on the scene spotlight. who shared the process selecting jury began with exclusion from of all panel persons summoned as prospective jurors in the November trial of In Beck, Dave Jr. addition, persons all were excused who were in the court- room at any time trial during the of that case. Next, members were examined court and counsel length. so the 52 examined, only eight Of admitted bias preformed opinion petitioner’s guilt and six suggested they might others be biased or might have opinion formed an of whom were Every excused. —all juror challenged petitioner’s cause counsel was excused; petitioner given addition peremptory- six challenges, all of which were exercised. Although most persons thus selected for the trial jury had been exposed publicity some of the above, related each indi- biased, cated that he was he had formed no petitioner's opinion guilt as to require which would evi- dence to remove, that he would enter the trial with open an disregarding anything mind on he had read case. study

A of the voir dire clearly indicates that each juror’s qualifications impartiality as to far exceeded the minimum standards this Court established its earlier cases as well as in Irvin Dowd, (1961), 366 U. S. 717 which depends. There we stated:

“To hold that the mere existence of preconceived notion as to the guilt accused, or innocence of an without more, sufficient to presumption rebut the prospective of a juror’s impartiality would be to an impossible establish standard. if It is sufficient can juror lay his impression aside opinion render a verdict based on presented the evidence Id., court.” at 723. say pretrial

We cannot publicity sowas intensive and extensive or the examination of panel the entire prejudice revealed such court could not believe jurors the answers of the and would be compelled to find or preformed opinion bias as a matter Compare of law. Dowd, Irvin v. supra, 723-728, pub- where sensational licity permeated adverse to the accused small town tried, which was the voir dire examination indicated prospective jurors and two-thirds of those 90% opinion seated on the had as to guilt, and the unsuccessfully challenged accused per- cause several accepted on sons The fact jury. that petitioner did so jurors of the selected challenge cause not jurors were not strong evidence that was convinced guilt. any opinions had as to his biased and formed not Washington Supreme In we addition, note that while of an right Court divided peti- the denial of the impartial grand jury, accused to an of the prejudice motions based on bias and tioner’s dissenting raise petit jury single did not a voice. ready to correct violations of “While this Court stands asking 'it is rights, also holds that not constitutional showing much that burden of essential unfairness too him and seeks by injustice sustained who claims such be aside, to have set and that it be sustained the result ” reality.’ speculation as a matter of but a demonstrable as Handy, 454, 462 Darcy United States ex rel. 351 U. S. This has not been met. (1956). burden

Affirmed. part no decision Me. Frankfurter took Justice of this case. no in the consideration part

Mr. Justice took White case. decision Black, Mr. Justice whom The Chief with Justice concurs, dissenting. I holding from because

I dissent the Court’s think Washington failure of the courts to follow their own taking by protect state law action affirmative being a Beck from indicted biased and a jury was denial to him of prejudiced the equal laws protection guaranteed of the by the Fourteenth Amendment. Territory,

Since when governing State has had a statute comprehensively use of grand juries provides criminal trials which part:

“Challenges jurors may individual be made [any . . . person custody or to answer for held for reason qualification of want sit offense] juror; when, opinion court, such in the state of mind juror, exists in the such as would him render unable to act and without impartially prejudice.” In ex Murphy Superior Court,2 State rel. Washing- v. Supreme ton in construing Court held this that in statute preserve right order to to fair defendants and impartial grand jurors, Washington judges State must select jurors by explaining: chance, policy

“That it was the legislature pre- right serve the to have an unprejudiced unbiased and jury, suspicion no that should attach to the manner of its in all selection can- cases, questioned.” not be 3 years

Some Washington later State Guthrie Supreme only power Court held that it was not within the Washington judges State but duty it was also their unbiased if juries, doing insure even so meant composition changing juries of the selected ,grand by the rules of chance. That court this latter case impartial grand reiterated the policy preserve statute’s 1 Washington portion Revised Code of 10.28.030. The bracketed § 10.28.010, companion relating is from challenges section to the § grand jury panel. entire provisions These were of the §§45-46 original Territory Acts, p. Act, Washington 1854 110. 286, 32, 284, Wash. 144 P. 32-33. 160, 164.

3 185 Wash. 56 P. 2d because that biased crystal juries clear juries and made policy to the inaction are as offensive judicial of deliberate juries biased because Washington statute selection: judicial to chal- may this section be said to relate

“While to be it is not lenges persons, made interested its denying right, upon construed as to the court the to be dis- motion, own to excuse a deemed juror right would incompetent. deny To qualified law, which harmony policy be out of with the of insur- charges responsibility the court with the ing qualified impartial grand jurors are secured.” policy impartial grand

That this state has been juries generally accepted Washington as the settled law of by the only statements of the four demonstrated, judges voted conviction,4 who to reverse this but also practice the current cited to us of other trial courts.5 Indeed, presiding judge impaneled who judges opinion These four were of the the above-eited required “premise statute and cases this case to be decided on the [Beck], impartial law, . . . as a matter of was entitled to an unprejudiced grand and jury,” and that the “failure of the court to interrogate jurors possible prejudice for the existence of bias and against prejudicial the officers of the teamsters’ union constituted Beck, 474, 519, 520, 387, 412, error.” State v. 2d 2d 56 Wash. 349 P. Judge separate opinion require 413. Hunter in a stated that impartiality ment of “was announced as to a essential proceeding by legislature supreme state, both the and the court of this 2d, 2d, in the statutes and decisions . . .” . 56 Wash. 349 P. at 423-424. following quoted typical questions The were to us as voir dire by presiding judges impaneling grand asked in the of two recent juries Washington: “ ‘Q anything your acquaintanceship there be with Mr. —Would any way your Schuster would in tend to affect decisions in this Jury investigation? Grand inquiries insure that grand made sufficient jury

Beck against its not be biased State in grand jurors would investigation Beck. finds and Guthrie Court, however, Murphy that the guarantee relation to the of a fair and impar-

cases have no only tial jury but are “concerned with whether the members of the had been selected chance.” But even State such position, has taken no either Washington Supreme before the Court or here. In its Washington Supreme brief before the Court the State acknowledged that the interpreted statute as and by Murphy “well-recog- Guthrie cases set out a “grand nized rule” that state be juries impartial should unprejudiced.” and And in this even Court the State “ ‘A—I don’t think so. “ ‘Q you words, any other wouldn’t have or or hatred malice —In anything deliberating or favor your

fear of that so far nature be investigation? would concerned in connection with this “ ” 'A —No.’ “ ‘Q you you heard, what have I don’t and believe live in —From you us, anything vacuum rest more than the is there have suggested by proceedings read or that been has the court in these you why you suggest impartial that would fair, couldn’t be objective making an examination into law enforcement in this county? “ ” No, sir.’ ‘A — judges The four this who voted to reverse conviction below relied upon part acknowledgment, saying: comprehensive consisting

“The state has filed a brief of one hun- fifty pages argu- containing following appellant’s dred answer regarding right impartial unprejudiced ment jury: “ 'Appellant the denial of his to set aside asserts motion the indictment constituted error under our statutes and constitution 35). (App. and the constitution of the States Br. United citing well-recognized grand juries Except . . rule '". impartial unprejudiced (App. 37), should Br. the cases are not ” (Emphasis by Washington applicable.’ supplied otherwise acknowledgment says only this but repudiate does not Washington Supreme equally Court because regard meaning Washington statutes divided “the point.” cannot be determined juries Washington But we must what the law of course decide Washington claim that has pass upon is order to Beck’s equal protection denied him the the law. Washington authoritatively interpreted statute

by its Guthrie Supreme Murphy Court cases only that means not defendants are entitled under Wash- ington against law to have indictments them returned impartial grand jurors Washington but also that State judges charged are with specifically duty responsi- bility making all inquiries necessary insure defend- against being ants tried on indictments preju- returned diced jurors. legislature Neither the nor the State Supreme changed has ever Court that statute or its inter- pretation. Certainly, equal judges division of in the Washington Supreme which Court left Beck’s conviction standing did not impair the old previ- statute its ously interpretation. established Washington’s Even own counsel tell us that “since the reasons for the Washing- ton being court equally signed by divided are no more than judges four each, those reasons are decision of that court,” and significance “are of no whatsoever as far as the decisional law of the of Washington state concerned.” Since legislature changed has not its statute and the Supreme of Washington Court has not changed interpretation its of that statute, the law of Washington remains the same as it was before Beck’s Supreme Court.) Among the eases appellant’s cited in state court support brief to contention jury was not organized in accordance with state law were Watts v. Territory, 409; 1 Wash. Murphy State ex rel. Terr. Superior Court, v. 82 Wash. Guthrie, and State 32; 144 P. Wash. 56 P. 2d 160. standing by equally conviction was left the divided Wash- required Washing- And it ington before, court. as was judges protect persons being by ton from indicted grand If juries. biased Beck has been prejudiced protection having denied that without the law’s been has changed, singled then he been out the State as the person a singling sole to be so treated. Such out would be a classic invidious discrimination and would amount equal protection denial of the law. We must deter- mine, therefore, grand whether jury that indicted Beck was in a impaneled way that violated the state law. question

This is not that which the Court treats as whether crucial, proof there is the record that some grand juror actually individual prejudiced against Beck, quite but rather the different of whether judge impaneled who took precau- required tions by the statute its controlling judicial interpretation to insure a jury that would not be by prejudice against tainted Beck. I think that record in beyond this case shows doubt that the presiding judge failed what to do the state required law him to do— try keep prejudiced persons off jury. This failure particularly wa.s serious here because extraordinary opportunity for prejudgment and preju- dice created the saturation of the Seattle area with publicity hostile and adverse to Beck in the pre- months ceding during jury hearing.

Petitioner Beck is long-time resident of Seattle, well community known to the president of the International Brotherhood of Teamsters and as a president former Western Conference of Beginning Teamsters. in March 1957, he target became the aof number extremely charges serious corruption crime and by the Senate Select Committee on Improper in the Activities Labor or Management Field and its staff. These charges were area.7 in the On given circulation Seattle unprecedented the Commit- proclaimed headlines 22-23, March banner $270,000 in Teamsters had charge tee’s that Beck used appeared Beck before funds his own benefit. When days and refused answer several later Committee again drew headline questions regarding charges, press: “BECK TAKES 5TH in the coverage Seattle went far television station so AMENDMENT.” One proceedings. On to run a telecast as 9%-hour May fact that Beck 3, the headlines announced the and a had federal tax evasion that been indicted for special appoint- of a mayor former Seattle had received charges before a state prosecute ment further to May page-wide and jury. front-page, On other 9, 16, Beck mis- charging the last had appeared, headlines no less than 52 different position used his of union trust May front-page story times. a On three-column pleaded had the Fifth recounted the fact that Beck questions to from Senate Amendment 60 times the Com- May 20, day mittee. And on the expulsion headlines announced Beck’s from impaneled, post ground AFL-CIO on the that “Dave Beck was found I. 'guilty charged’ by A. F. of L.-C. O. execu- tive a council,” paper charge that same also carried and “has many Senator McClellan that Beck committed criminal All the television, offenses.” while radio, magazines press national news and the in lesser front- page backup published and stories of a charges similar nature. This flood of public intense accusation of crime by prominent breach of and highly placed per- trust sons, with coupled publicity resulting from Beck’s refusal grounds possible of self-incrimination answer ques- to amount, intensity, derogatory “The publicity nature of the by appellant during period received precedent is without in the Washington.” state 2d, 56 Wash. 2d, (opinion at 349 P. Judge judges reverse). Donworth for the four who to voted made, charges to Committee as tions the Senate before judge under duty presiding a on the imposed very heavy from a Beck biased protect law prejudiced grand jury. judge discharging however,

Far from duty, probability biased actually persons increased against Beck left on the For while jury. would be questions excluding he toward asked number directed might from who sympathetic union members be he at all Beck, protect made no effective effort Beck. managed he ask Thus, every almost juror whether had any any connection with the Teamsters or affiliated he knew union, whether the Teamsters officers, or But, whether he had ever been a union officer himself. despite his knowledge widespread prejudice-breed- ing publicity against Beck, judge single failed to ask a juror single question regarding whether he had read about, heard about or discussed charges against Beck. Moreover, single he failed to ask a actually juror who sat on the jury against whether was prejudiced Beck or already had made his mind up about the many public charges.8 Indeed as to jurors those most searching question which even the Court has managed pull from the record was the query: anything sterile “Is there about sitting grand jury on this might you embarrass at all?” Even the logic most tenuous equate could not search for embarrassment awith search for bias and preju- dice. That a search for bias prejudice would have hardly shown its existence seems questionable, particularly in view of the fact six that months later when the publicity

adverse to according Beck was, to the Court, “neither extensive,” intensive nor 43 prospective petit jurors prospective juror prejudiced against No was asked if he was only Beck, they asked if three were were conscious of bias or prejudice kind. Two of these were excused. degree expressed questioning voir dire some

subjected to in the case.9 prejudice of bias affording Beck toward a restrained effort After such by jury assured unbiased protection presiding that the expected be Washington law, it would and detailed instructions given careful would have judge any possible prejudice dispel in order to grand jury to the In fact here, minds. Not so however. their they made only cure, failed to given instructions instructing that the tes- instead of situation worse. For were the Senate Committee timony charges before be and that it would grand jury before the not evidence to consider them for the highly improper to the attention presiding judge jury’s called the all, Beck before the charges against of theft and embezzlement duty a told the that it was under Committee and charges refuted these were determine whether press to Beck: explanation attributed testi- unnecessary “It seems to review the recent mony Investigating before a Senate Committee been made indi- except say disclosures have have, cating that officers the Teamsters Union trick and or stolen hun- through device, embezzled dreds of thousands of dollars of the funds of that union from money which had come to the union — the dues of its members. . . . has president pub-

“The of the Teamsters Union from licly money declared that he received repaid. presents union was loan which he has This fact, you the truth of which is for ascertain.”

9 jurors Although prospective 52 dire, were admitted voir nine to personal of these were excused for reasons of health or convenience questioned by and were not therefore either counsel. by Mr.

Together with the additional facts set out Justice Douglas in what I have said above seems dissent, his took none of the clearly presiding judge to show that the that in steps, interrogation instruction, either in atmosphere day of the would have fulfilled his state statu- tory duty against to insure a unbiased Beck.

This failure a judge protection denies similarly which Washington provided has situated far years which, defendants so as now fore- over Washington seeable, provide will continue to to all Wash- ington defendants the future. This failure would be light cast in a different if the had Washington Legislature repealed its law or if its its Supreme Court had altered interpretation and set out a rule general abrogating the right to have take affirmative action insure an judges grand jury. any change unbiased in the But without prior law or Beck’s is the sure indication that “law” convicting future, Washington law of the the State of him. For applies special Beck and unfair treatment only Beck, single people charged out of all the individual Washington, with crime indictment is denied clearly right judi- defined under the to have the state law system cial “impartial grand insure his indictment Through equally the device of an divided vote jurors.” Supreme goes prison in the Court I years. Equal think that Protection Clause the Fourteenth Amendment forbids such an invidious picking legal out of one individual to bear burdens that upon similarly situated.10 I can- imposed are not others agree gross with the that such a discrimination Court against single individual with such disastrous conse-

10 Atchison, Topeka Matthews, & Santa Fe R. See Co. v. S.U. Sugar Refining Co., 104-105. Cf. McFarland v. American U. S. 86.

568 quenees can be treated as a trial judi- mere error. For a cial decision which sends a man to prison by refusing to apply settled law which always has been and far as so appears will continue to applied be to all other defend- ants similarly situated is far more than a mere misappli- cation of state law.11 It is a denial of equal protection of the law and State should no deny more be allowed to protection defendant through its laws its judicial branch than through legislative its or executive branch.

I think petitioner equal was denied protection of the law for still another reason. The four Washington judges who to affirm voted the conviction below, and whose views have therefore determined the outcome of agreed Beck’s case, “in those custody or held [on to answer for an offense,” “[p]ersons bail] for whose benefit that statute was enacted,” are entitled to jurors without bias or prejudice.12 This divides all persons suspected of larceny by embezzlement, petitioner was, into two (1) classes: persons those in custody or on bail, and (2) persons those only who are under investigation by grand jury. The first class is entitled to have an impartial and grand jury; unbiased the second is not. judges The four who wanted to reverse this conviction could see no reason, nor can I, for saying that one charged with in jail crime and or on bail should be entitled to an unprejudiced grand jury but one who happened not to be already held for grand jury action could validly be indicted a biased and prejudiced grand jury. So far as case, Unlike this which involves the contention that the failure of the apply prior courts to their settled law as to a single statute denies equal protection Beck the law, Milwaukee Elec. R. Co. v. Milwaukee, U. S. involves of whether the Supreme Wisconsin Court was incon sistent in its treatment of municipal two legislative different provisions. 2d, 56 Wash. 2d, 349 P. at 390. a by prejudiced prosecution to be from the need free be- can no rational distinction be concerned, there yet custody in and man who is not tween the need of the on jail bail,13particularly of man is in or the need the who specific jury was called where as here the and was petitioner’s of into activities purpose examining the lack evidence of so instructed. No doubt clearest the fact for 108 rationality in such a distinction is no such years State of itself made has For statute its face though distinction. even on in on applies only custody bail, always to those it has interpreted guarantee impartial grand jury been to to all. procedure

A fair trial fair is a in under basic element partisans our and Government. Zealous filled with bias 13 adoption Equal Even before the of the of the Protection Clause any Amendment, Fourteenth courts refused to dis other had allow right proper composition grand jury tinction as to the under to a of a jail merely subject state between law those in or on and those bail grand jury investigation. Blodgett, to Thus in States United v. 1157, 1159. (No. 18312), Fed. Cas. said: the court “True, imprisoned any charge, he was not arrested criminal brought court, and now order hither of the nor is he under bail or recognizance; any posi- he is but because not in of these constrained tions, legally country, the less entitled to a of his qualified Surely under its laws? not.” McQuillen State, Mississippi 597, And in Miss. court purported right persons said as to distinction in between challenge grand jurors court at the time of to indictment for cause challenge right jurors: and the of those not in court to such unequally by allowing persons law works one class to “[T]he object competency grand jury, to the whilst class another has privilege. no such This cannot be. The law furnishes same security all, gives principle and the same prisoner which to a right gives challenge, right court the to one who is not in court accomplish plea State, the same . end . . .” See also Hardin v. Crowley 347, 351-352; States, 22 Ind. v. United 469- U. S. 470.

prejudice have place among government no those whom play important selects to parts designed trials to lead fair guilt determinations or innocence. Whether process provisions the due of the Federal Constitution require, however, every procedural in a step trial, including impaneling absolutely of a jury, be fair and I impartial, need not determine here. But considering people charged whether with the same crimes under the circumstances, same to the same subject penal- ties place may up the same be divided into classes, some of are given grand jurors whom the benefit of fair high some of whom are we must in mind the not, keep standard fair equal imposed by treatment Equal Protection Clause of Amendment, the Fourteenth as well as important part grand in trial juries play procedures they when are used. For me the need for fair grand juries as yet between those have not who been formally arrested and those who have too much the same to be though I treated it were different. would permit not Washington the State of lay to its hands so unequally upon groups interests, whose whose needs and whose dangers'are so similar.14

Not surprisingly attempts shrug the Court to off both equal protection Beck’s claims without reaching them on the merits. As to his first claim, that he was denied equal protection by the of Washington failure courts to accord him the benefit of the state law guaranteeing an impartial grand jury, this Court asserts that if even Beck was, everyone unlike else, denied the grand benefit of a jury which had questioned been presiding judge protect against to bias, the error was harmless because presented no proof to show that grand jury selected in violation of Washington law actually was

14Cf. Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535. Washington against him. But the prejudiced biased against to bias puts duty on the insure judge law cites The court abso- on the defendant to show bias. to find lutely authority and I have been unable no his to Washington neglects duty judge that when a State grand by the impartial his error is cured jury assure on part to bias failure of the defendant show actual grand jurors. contrary, or more On the one Wash- Murphy ex rel. ington said State Supreme Court Superior Court: real the sake of that no

“Granting, argument, injustice case, has been done particular approve that a fair the method jury selected, a if adopted by permit judge, the court would be to he so own willed, provide jury choos- ing every case under color of law.” Moreover, even if it were law possible under so cavalierly away important rights fritter of criminal procedure designed to fairness, achieve this record should satisfy most doubting Thomas that the failure to insure a proper jury here was in fact not harmless. While the trial court made no determination as whether prejudiced against four Beck, eight Washington Supreme Court judges who ruled felt that showing conclusive of prejudice had been made. Judge speaking for Donworth, those an judges, four after exhaustive review of the facts concluded:

“I think it would be unrealistic very that a believe substantial number of the citizens of community had adopted, consciously or unconsciously, attitude of prejudice bias and appellant toward at time jury was convened. If ever there 15 284, 287-288, 32, 82 Wash. 144 P. 33.

572

was a case which required stringent the most observ- ance of every safeguard known to law to protect 16 against citizen bias and it.” prejudice, judges other four did say: “There is no showing of bias or prejudice,” gave but slightest not the evidentiary argumentative or even support to show the correctness of this offhand statement.17 In these circumstances where there has been no finding by trial court and where the highest court of the State has evenly divided so that there finding is no there either, ordinary our duty “solemn make independent inquiry and determination of the dis- puted upon facts” which the question of denial equal protection of the law turns becomes particularly pointed. Considering the overwhelming support evidence to four judges who thought that had made a show- ing of prejudice, it seems inconceivable to me that it can fairly be said that no showing of prejudice was made.

As to Beck’s second claim, is a denial of equal protection of the law to afford those in jail or on bail judicial assurance of an impartial grand jury while denying protection such those not jail or on bail like Beck, the Court apparently does not claim the error was harmless but yet discovers another way to avoid having pass on the plain merits of his constitu- tional claim. It concludes on a grounds number of petitioner’s claim was not properly presented to the Wash- ington Supreme I Court. do not think any one of the grounds Court’s or all of them together justify its avoid- ance of determining Beck’s constitutional contention on its merits.

(a) It is said that this contention was not properly before the Supreme State Court because “Petitioner’s 2d, 56 Wash. 512, at 2d, 349 P. at 408. 2d, Wash. 2d, 349 P. at 390. 18Pierre v. Louisiana, 306 U. S. 358.

573 formal attack at the trial court level did not even mention 10.28.030 . . . § .” But Beck did claim that that sec- tion had not been complied with both in his “Challenge Jury” Grand his separate motion to set aside the indictment, both of which are set out note 3 opinion. Court’s In challenge fact his grand jury specifically cast terms 10.28.030. And § Beck’s reliance on 10.28.030 and § related sections of Washington’s grand jury emphasized statute was time and again by time counsel’s arguments trial court, both oral and written, on the challenge separate and on his motion to dismiss the indictment. For example, trial counsel said:

“. . . decisions which we have been [T]he able to find all thing. indicate the same is, That Jury just Grand like the trial must be jury, unbiased and unprejudiced, and in a couple indeed of the deci- sions they referred to this 10.28.030 in the same manner I have done to indicate the intent of the Legislature.”

(b) says: The Court “That prosecution the court petitioner viewed as outside the scope 10.28.030 brought § home him in the course of the trial court proceedings on his jury attack.” I can- agree the trial court construed § 10.28.030 as denying right Beck the impartial to an and unprejudiced him informed to that effect. While it true argued that the State’s counsel and the agreed trial court could not the method of impanel- ing grand jury by a “Challenge to Jury,” Grand trial court never even intimated that § 10.28.030 limited its an impartial assurance of and unprejudiced

19The decisions referred to were Watts Territory, v. 409; Murphy Superior Wash. Terr. State ex rel. Court, v. 82 Wash. 32; Guthrie, P. and State 185 Wash. 56 P. 2d 160. they in only jail to those who were indicted while were or contrary, admitted, out on bond. On the trial court petitioner’s though ultimately even denied motion with- petitioner could attack the comment, out further on a motion to set aside the grand jury “incidentally — kind of motion the -precisely the indictment”- — 10.40.070, which motion is set out actually § made under opinion. note of the Court’s (c) says Supreme that the State Court The Court claim denial of required pass petitioner’s not “definitely out equal protection pointed because it was not 'assignments appellant’s as brief,” in the of error’ required by Appeal. Rule 43 of the State Rules on But pointed out trial court had not just construed the denying statute as Beck who in custody was not or on impartial grand bail the benefit of an insuring while such a jury for defendants who in custody were on bail. Since the trial court had made no such ruling, Beck could not assign ruling of course as error a that had not been did, however, properly made. He assign errors which, as shown in the Court’s note were sufficiently broad to challenge the trial court’s comply failure to with state law in insuring impartial grand jury. That was all that he could do at that time.

(d) Another ground for this Court’s refusal to rule on Beck’s claim is that: “The Washington Supreme Court unfailingly has refused to consider constitutional attacks upon statutes not made the trial court . . . .” But investigation even casual opinions of that court shows that it has not “unfailingly” followed such practice.20 no Washington Moreover, case or any other g., Washington See, e. Griffith, Wash. 2d 328 P. 2d 897; Lee Bank, v. Seattle-First National 49 Wash. 2d 254, 299 P. 2d 1066.

has prove equal protection been cited to that a though law must be raised the trial court even that court ruling does not itself ever make a which denies equal protection of I the law. And would think that this Court would tolerate use such state device to bar correction violations. constitutional (e) Finally disagree while I claim has not Beck’s properly presented Washington Supreme been to the Court, wholly I find that we immaterial here. For as said in Raley Ohio: can be no as to “There proper presentation of a claim federal when the 21 highest passes although state on it.” And here court undoubtedly familiar rule with the state and the state up by dug cases here this Court for the first time to show that Beck’s claim was not properly presented, the fact eight is that the judges Washington Supreme Court who sat in this in actually case did pass on Beck’s claim his brief before them away right to take to an impartial grand jury custody in because was not or on deny bail him would the equal protection of the laws. That claim in Supreme Beck’s State Court brief was:

“In fact, permit to already one who has been arrested challenge to the mental qualifications of a juror, while denying right this to one who has not been arrested, would amount to a denial of equal protec- tion the law. This is particularly true ... in the 22 of Washington state . . .”. S.U. 436. 22 I why know no reason say this Court should that the Wash ington Supreme Court would through not “search the brief” “to find” contention, this willing for I am not to assume that the members of highest court parties did not read the briefs of the in this case. I must also take issue with the Court’s view that this particular only constitutional contention was stated one sentence. As up I read briefs before me took almost two whole speaking Judge Donworth,

In claim response to Beck’s conviction, to reverse the judges four voted who saying: agreed contention, with his fully said, be under “I do how can not understand entitling record, the reason facts shown this or for an offense custody held answer person investigated unprejudiced impartial to be appellant. well equally grand jury, apply does law all are before the equal It is axiomatic that men rights to the under same are entitled same circumstances. similar legislature statutory or repeals amends “Until equal effect to law, applied ... it must be with every person investigation whose conduct is under pursuant charge to the court’s it.” pages presenting argument eight and cites cases and other Moreover, Supreme judges authorities. the four Court who State petitioner’s voted to affirm and who had brief before them referred part Jury Proceedings” of the brief devoted to the “Grand longest appellant’s 2d, “the at section of brief.” 56 Wash. 2d, they P. to to to it in this at 387. Since had read this section refer way complete it, to at loss to understand the and discuss I am a petitioner’s argument point on this Court’s further statement that by Washington Supreme to was the Court be an “considered abandon- only I ment or waiver of such contention.” can consider the aban- post ex this to be an donment found Court abandonment as facto Washington Supreme pointed is far as the Court concerned because as actually passed point. out above court considered and the that on 2d, 528, 530, 2d, (Emphasis 349 P. at sup 419. Wash. Judge Donworth.) plied by suggest, does, To as the Court that this “interpretation” the discussion involves of statute but does not relate equal protection to of the laws to draw simply is a distinction that judges does the four not exist. What who wanted to reverse this plainest possible in the words interpre conviction said was that adopted the statute the four tation of who voted to affirm is one among wrong because, reasons, that other equal protection it denies of the law. obviously disagreeing with their judges,

The other four equal held rejecting protection claim, Beck’s brethren statutory guarantee of “There a reason” for the that was custody one “in or held to impartial grand jury an for in although for it to one not offense,” denying answer custody or on bail.24 say Beck’s goes The also so far as to

(f) Court was not included those among constitutional our questions presented which writ of certiorari questions pre- I In granted disagree. to review. sup- for the brief petition sented certiorari for porting petition, repeatedly counsel Beck asserted selecting manner of had Beck equal protection been denied the of the law. The core growing all is discrimination out of man- these claims grand jury. particular ner of selection The classification claim which Court seeks to pass- avoid is also a with ing on claimed discrimination reference jury. the manner of selection Since all these inextricably contentions are under our deci- intertwined, Boynton Virginia25 sion last I term see no more refusing pass reason on one than That another. statutory held a claim case of discrimination to have been sufficiently raised where discrimination generally . questions “the core the . . broad pre- constitutional Douglas I Moreover, agree sented.” with Mr. Justice 23 which prohibits “unnecessary that under Rule detail” a question presented which deems “to every include subsidiary comprised question fairly therein” even most claim of general equal protection would been have petitioner’s sufficient raise claim. petitioner here, however, has rely no need the Boynton

either case or on the mandate of Rule broad clearly his claims are 23, encompassed among the 24 2d, 2d, Wash. at 349 P. at 56 390. 364 U. S. 457. of certiorari was as to which the writ specific questions in part: read questions those granted. Two of right . a under person “. . . . . have [D]oes Four- clauses of the equal protection and process due charges and evidence teenth Amendment to have the fair and im- which was considered and directed partial least, which was instructed or, fairly impartially?” to act under [petitioner] right . . id he have a [D] Four- equal protection clauses of the process due grand jury impaneled have the teenth Amendment to at least tend to prevent a manner which would prejudiced grand of biased and prevent the selection jurors?” equal pro- denied petitioner’s

Since claim is that he was presiding judge the failure of the tection of law of a provide protection, guaranteed others, against manner insure jury impaneled in a that would it seems inconceivable prejudiced jurors, biased sustained on the basis that that this conviction should be petition not included in the for certiorari. the claim was place of what has taken the Wash- The net result ington Supreme and here is to leave Beck this Court predicament: Supreme considered his con- the State Court not because it was tention, tried to decide but could contrary equally divided; this Court refuses ground all on has decide it at that Beck never raised question anywhere. practical consequence such a predicament accept argument is to of the State rights that if Beck’s constitutional protected are to be depend upon “the Washington legislature must and not Supreme the United States Court.” For this Court to fully argument Opposition That set out in the State’s to the Petition for certiorari: “The effect of the court decision meaning Washington in the instant case is that statutes in accept consequence such a to seems me to be abandon- ment of solemn responsibility protect its to the constitu- rights people. tional of the

The rules practice Congress which and this Court have adopted years crystallize over the course of to properly designed define the issues before the Court were to assist in the Court the fair and impartial administra- tion of I justice. cannot believe that this end has been achieved here.

MR. Douglas, dissenting. Justice

I. Although, according to Hurtado California, v. 110 U. S. 516, Washington grand need not use the in jury order bring charges against criminal persons, occasionally one; does use and a impaneled was in this case. It is well settled that when either the Federal Govern- ment or a State uses a jury, the accused is entitled procedures to those insure, which will far as possible, so that the grand jury selected is fair impartial.1 That regard grand juries cannot be point. determined at this It would follow that binding determination also is on the United States Supreme Court. Washington “Since there is neither a Federal nor state Constitu- right impartial grand tional jury, to an Washington Supreme and the Washington Court cannot determine what the prescribe statutes regard, legislature and not the United States Supreme question.” Court (Emphasis must answer that supplied.) represented Since was not impaneling counsel at the grand jury, of the objection at the return of indictment timely. Crowley As stated in States, v. United 194 U. S. 469-470: “Some gone objection cases have so far as to hold that an personal qualifications jurors is not available for the unless made accused before the indictment is returned court. many would, operate

Such a rule cases, deny altogether right qualifications of an accused to of those who found Negroes exclusion why systematic reason accusatory process. infects the from service Texas, Louisiana, 354; 306 U. S. Cassell See Pierre v. principle applied The same S. 282. U. Texas, 475, Mexicans v. 347 U. S. when Hernandez petit from duty grand were as systematically excluded jurors. The also “if a law principle apply would same all Irish- passed excluding should be naturalized Celtic Virginia, grand jury duty. men” from Strauder v. West 100 303, U. S. 308. only aspect grand

Racial discrimination is one of the Henkel, jury problem. 43, As stated Hale v. 201 S.U. jury “. . the 59, grand . most valuable function of the only not to the commission to examine into of but crimes, to prosecutor accused, stand between the and the charge upon determine whether the was founded credible testimony personal ill by or dictated malice or will.” States, emphasized in 341 S. We United U. Hoffman 479, 485, necessity “the importance continuing of prosecutors and courts to abuses repress’ alike be ‘alert investigatory grand of of the power” jury.2 We recently States, 359, stated Costello v. United 350 U. S. 362, that: grand English

“The an to jury institution, brought is country by early this incorporated colonists and by every the Constitution There Founders. is reason to our jury believe that constitutional operate to substantially English was intended like its The progenitor. purpose English grand basic of the jury provide instituting was to a method for fair criminal against proceedings persons believed have (Italics committed crimes.” added.) against him; may know, indictment for he indeed, is not right, entitled, know, subject that his acts are the of examination grand jury.” 2 Morse, Survey A Jury See System, Grand 10 Rev. Ore. L. 217. Supreme Court,

The which affirmed this did equally so an divided judgment conviction, voting four for affirmance stated that absent vote. The requirement, prejudice” part a “bias statutory was irrelevant. 2d jury 474, 480, Wash. P. 2d 390. Collins, S. is Frisbie v. offered case U. justification procedure for the use of unfair

bringing charge against petitioner. We there held him forcibly abducting person bringing a into did the State not vitiate state conviction where the pursuant trial was fair and procedural constitutional Here, part requirements. however, pro- criminal ceeding is itself infected with unfairness. Whether it was necessary use immaterial. It was unfairly. and the is whether it was used used; is, therefore, The case like procedures, those where ante- trial, oppressive. example rior to the are A notorious anis police unlawful arrest or the use of to detention the See, g., Payne Arkansas, a confession. e. obtain v. 356 Alabama, S. 560; U. Fikes v. v. 191; U. S. Watts Indiana, 49; Pennsylvania, 338 U. S. Turner v. S. 338 U. Texas, Ward v. 316 U. 62; example S. 547. Another is right denial of the to counsel. in As stated Ala- Powell v. bama, 287 45, 57, right U. S. that extends a period to anterior to the trial itself “when consultation, thorough- investigation going and preparation” “vitally are im- portant.” York, Cf. v. Spano New 360 U. 315, S. opinion). (concurring possibly a

Could we sustain conviction obtained either grand a state or federal court where the jury brought charge composed the political accused’s If did, enemies? we would prosecution we sanction for private, public, purposes. not Whenever unfairness can any part be shown to infect of a criminal proceeding, we requirements the should hold that of due process are lacking. 298, said, Texas, 282, S.U.

A in Cassell v. dissent a fairly whom mouth of a defendant hardly lies in the “It beyond reasonable guilty has found jury chosen trial preju is attributable doubt, say his indictment Id., agree. did not Since But dice.” 302. the Court the Court held indict, was used jury do the We should requirements. to constitutional Texas, Hill 316 U. S. here. As we stated in same 406: ours, “It to assess function, the State’s duty But is our as a defendant. against evidence throughout as to it that well the State’s see bringing enjoy him to he shall procedure justice guarantees. protection which the Constitution Where, case, timely objection in this has laid bare jurors, a discrimination selection stand, conviction cannot because the Constitution prohibits which it procedure by was obtained.” A grand jury high As serves function. stated United Wells, States v. 163 F. 324: “It is a system familiar historical fact prevent growing devised to harassments out of malicious, vexatious accusations. That unfounded, it serves purpose allowing prosecutions to be initiated people way themselves detracts no from the fact that it still as a safeguard against stands arbitrary or action.” oppressive The same view was stated Mr. Field, sitting Justice as Circuit Justice:

“In country, this popular from the character of our institutions, there has seldom been contest government between the and the citizen, which required the existence grand jury pro- of the aas tection against oppressive action of government. adopted country, Yet the institution was is continued from considerations similar to those give which to it its value and is chief England, designed only bringing to trial means, persons public upon just offenses grounds, accused against but a means protecting also as the citizen govern- from accusation, unfounded whether come partisan private prompted by passion ment or be enmity.” 992, 993, 30 Fed. No. 18,255. Cas. left of most One who reads this record is with doubts in the selection procedure serious character used light was fair in condi- the unusual tions that obtained at the time.

II. Petitioner on March 26 and before a 27,1957, appeared Senate in Washington, during Committee D. C., questioning the Fifth Amendment 150 times. invoked May 1957, petitioner

On was indicted Tacoma by a federal for income tax evasion. May

On petitioner was 8,1957, testify recalled to before during long the Senate interroga- Committee and another tion invoked the Fifth Amendment about 60 times.

During hearings these the Committee members made petitioner. various comments As concerning Judge Don- worth, speaking for himself and three other members of Supreme Washington, Court of said: comments, extremely

“These which deroga- were tory widely to appellant, were circulated all news throughout media States, particularly United In area. these comments, appellant Seattle characterized as a and it was asserted that thief, of fraud and guilty illegal he was other conduct with respect management to his of the affairs team- principal sters’ as its officer in the union eleven as in inter- states, position and later its western president. national (particularly opinions

“These conclusions and McClellan, the chairman expressed by Senator those by local news- committee) displayed of the were in headlines. page prominent on the front papers which were a of the comments following are few in appeared which referred to such headlines newspapers: Seattle “ Kept Going Aeter 'Teamsters’ Cash To Beck Says Seat- President, He Became Prober.’ Union Times, 23,1957. tle March

“ Eye” Says Labor, Sen. 'Beck Gives “Black March 27, 1957. Times, Seattle McNamara.’ “ On Beck Lid Beer 'Senate Probe Lifts Busi- op Money Related.’ Seattle ness — Use Union Post-Intelligencer, May 9, 1957. portions proceed- of the committee

“Substantial charges reproduced ings relating these were also course of on local radio and tele- news broadcasts vision stations. intensity, derogatory

“The nature of amount, appellant during period publicity by received Washington. A precedent without the state item newspaper reporting Seattle carried news the switchboard of local radio that had station proceedings preceding the committee on the broadcast day jammed calls, with and that the officials of response characterized the to the broad- station part public 'astounding/ cast on the response greater- such than that resulting any other from broadcast ever aired them. The serious accusations made United States senators hearings generally regarded by the committee are (which appellant being charges officials laymen impression the was answer), had and thus refused had appellant among general public created 474, 2d a crime.” 56 Wash. guilty been found of P. 2d 408. 510-512, 387, indictment was which returned the grand jury The May 20,1957. convened on this adverse with

The effect of the saturation Seattle Don worth: by Judge was summarized publicity publicity that, of this “The natural effect appel- the character of eyes average citizen, of the in the Seattle thoroughly discredited lant had been at 2d, May 1957.” 56 Wash. or before area on P. 2d, 408. petit at the time of the selection The trial court in the received the case had jury publicity referred to the deter- sought to radio and TV and papers over prejudiced had become any jurors mine whether impaneled judge who the accused. against biased He excused precautions. such grand jury took no they were because might prejudiced have been three who affiliated union or of petitioner’s members of or had been to the employer reply one who unions. He excused prejudice or you any bias, “Are conscious of pretty all?” “That said, in this case at sympathy two admitted excused, the six he hard to answer.” Of inquire did the as to the judge Not once prejudice. had and its publicity petitioner adverse received intensive types ques- He asked two likely juror. effect on each already juror noted, tions. The one whether etc., one, any- and the other “Is there bias, conscious might on this embar- thing sitting about seems you judge rass at all?” It to me that the was dere- to ascertain whether the failing lict amount of adverse jurors prejudiced had had received publicity Although he presented. about to be toward the case upon proceeded any juror, inquiry no such made knowledge jury had full assumption the Senate Committee: of the activities of grand jury purpose to the “We come now thought court judges reasons of this and the which expense county, to the justify sufficient by you, which this to and sacrifice the inconvenience require. session will testi- unnecessary review the recent “It seems .to Investigating Committee mony before Senate indi- have been made except say that disclosures have, cating of the Teamsters Union that officers hun- device, embezzled or stolen through trick and that of dollars of the funds of dreds of thousands money had come to the union from which union — alleged It has been that the dues of its members. through money which the many transactions, of these siphoned treasury, out of the union occurred if King County. committed, cannot be Such crimes, under law other punished law, under Federal Washington, prosecu- than that of the State of necessary in King County. The place tion must take only county in this charges brought criminal can be upon indictment the or information attorney. prosecuting filed the pub- president “The of the Teamsters Union has money from the licly declared that he received pre- This repaid. union was a loan which he has fact, you the truth of which is for question sents ascertain. may many hap- “You find that of the transactions years ago; more than three raise pened would question limitations, of the statute of which ordi- narily years. larceny bars a after three prosecution period There are where the instances, some however, you is extended. This is a of law and should guided by prosecutors be the advice of the on this may investigation and similar Your con- questions. ceivably standards of adoption result better conduct for union officials.” given television, and radio, No admonition was that reports warning No newspaper gospel. not the were Fifth does made that one who invokes the Amendment guilt. given No admit admonition was prejudice. should be of bias or deliberations free question is large-scale not whether one who receives investigation nor publicity escape grand jury adverse can cry on adverse publicity whether hue attendant must have died can make its jury down before investigation. This ease as sure shows need make humanly possible as is after one whom the mob public in frill passion pursuit fairly, are treated that the stands between him and an jury public, aroused judge necessary to insure procedures uses dispassionate consideration the charge. only uses

The State occasionally, being by the normal method of accusation grand jurors information. other cases are Whether for does Yet prejudice appear. screened bias or not assumption they the are not, objections Beck’s should not be vain. Whether the unfair is used device customarily or does only once, comport with the of Due Process Clause the Fourteenth Amendment.

III. I in rejecting think the Court correct general the equal protection question on the merits. But I think do of phase equal protection that a narrow and raised favor.3 It is conceded petitioner’s be should decided for an “in or held to answer custody that if Beck had been challenge he would have been entitled offense” 349 P. prejudice. 2d, at grand jurors for 56 Wash. question on a not “for This is not a case where decision is asked mally presented” by petition certiorari, as in General for was true Co., 175, 179. appears It from Pictures Co. Electric S. v. U. equal issue” question protection was a “definite record by Supreme (Seaboard Air Line R. Co. decided Court ques Duvall, 487); places two S. and in at least in the U. presented by petition was chal tions for certiorari decision lenged equal protection. clearly sufficient, as for This was denial verba, discourages amplification in haec detailed (l)(c), Rule 23 questions presented: questions presented review, expressed “The in the terms and unnecessary but The state- of the case without detail. circumstances every presented of a deemed to sub- ment will be include sidiary question fairly comprised . . .” therein. petition alia: states, inter by grand jury person a indictment,

“1. Where accusation is does a (in time this case a member and officer of a labor union who at the continuous, grand jury proceedings subject of the was the extensive intensely publicity) right prejudicial process and the due have under equal protection to have and clauses the Fourteenth Amendment charges grand was fair and evidence considered which least, impartial or, which and at was instructed and directed to act fairly impartially? and

“(a) union, was a Where member and officer of a labor prejudicial inflammatory charges against and where him were widely intensively being media, disseminated all did he news right process equal protection have a under the due clauses grand jury impaneled Fourteenth Amendment to have the manner in a prevent prevent which would least tend to the selection of grand jurors?” prejudiced biased and enough bring only This is within our case rule that petition questions “urged in the for certiorari and to their incidental determination will be considered on review.” Devon Rorick v. Syndicate, 299, 303. 307 U. S. judges thought equal protection

At least four of the below that the point referring treated this dissent was For an issue. after to the gives custody which those in held to answer statute or grant right challenge for at To that class the to 2d, 390. merely deny it to who are under and to those prejudice investigation to draw a line not warranted I requirements equal protection. agree with views Judge Judges Finley, with Donworth, Hunter, whom and Rosellini concurred:

“I it can said, do not understand how be under the record, entitling facts shown this the reason an person custody or to held answer for offense investigated by impartial unprejudiced to be appellant. does not jury, apply equally well to all equal It is axiomatic that men are before the law rights and are under the same entitled the same or similar at 528, circumstances.” Wash. 2d, P. 2d, at 418. right impartial unprejudiced grand jury

for an offense the to an (56 527-528, 417) 2d, they Wash. at 2d, 349 P. at “Until the stated: legislature repeals statutory quoted empha- law, amends applied equal above, every person sized be it must with effect whose investigation by grand jury pursuant conduct is under to the court’s charge 2d, to it.” Wash. 2d, 349 P. That seems at 419. bring ruling Raley to me sufficient to within statement Ohio, 423, 436, 360 U. S. be no effect “There can highest proper presentation of a federal when claim it.” passes state court

Case Details

Case Name: Beck v. Washington

Court Name: Supreme Court of the United States

Date Published: Jun 25, 1962

Citation: 369 U.S. 541

Docket Number: 40

Court Abbreviation: SCOTUS