CASSELL v. TEXAS.
No. 46.
Supreme Court of the United States
Argued November 10, 1949.—Decided April 24, 1950.
339 U.S. 282
Joe R. Greenhill, First Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Price Daniel, Attorney General, and E. Jacobson, Assistant Attorney General.
MR. JUSTICE REED announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE CLARK concurred.
Review was sought in this case to determine whether there had been a violation by Texas of petitioner‘s federal constitutional right to a fair and impartial grand jury.
The Court of Criminal Appeals accepted the federal rule that a Negro is denied the equal protection of the laws when he is indicted by a grand jury from which Negroes as a race have been intentionally excluded. Cassell v. State, supra, 154 Tex. Cr. R. at —, 216 S. W. 2d at 819; Neal v. Delaware, 103 U. S. 370, 394; Smith v. Texas, 311 U. S. 128, 130; Hill v. Texas, 316 U. S. 400, 404; Akins v. Texas, 325 U. S. 398, 403. It was from an examination of facts that the court deduced its conclusion that racial discrimination had not been practiced. Since the result reached may deny a federal right, we may reexamine the facts to determine whether petitioner has sustained by proof his allegation of discrimination.1 Certiorari was granted (336 U. S. 943) to consider petitioner‘s claim that in this case Negroes were omitted from the list of grand jurymen either because of deliberate limitation by the Dallas County jury commissioners, or because of failure by the commissioners to acquaint themselves with available Negroes.
Acting under the Texas statutes,2 the Dallas County grand-jury commissioners chose a list of sixteen males3
Petitioner‘s attack is upon the way the statutory method of grand-jury selection has been administered by the jury commissioners.7 One charge is that discrimination must have been practiced because the Negro proportion of grand jurors is less than the Negro proportion of the county‘s population. Under the 1940 census the total population of Dallas County was 398,564, of whom 61,605 were Negroes.8 This is about 15.5%. In
A different question is presented by petitioner‘s next charge that subsequent to the Hill case the Dallas County grand-jury commissioners for 21 consecutive lists had consistently limited Negroes selected for grand-jury service to not more than one on each grand jury. The contention is that the Akins case has been interpreted in Dallas County to allow a limitation of the number of Negroes on each grand jury, provided the limitation is approximately proportional to the number of Negroes eligible for grand-jury service. Since the Hill case the judges of the trial court have been careful to instruct their jury commissioners that discrimination on grounds of race or color is forbidden.16 The judge did so here.17 If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.
We have recently written why proportional representation of races on a jury is not a constitutional requisite.18 Succinctly stated, our reason was that the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impos-
Our holding that there was discrimination in the selection of grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on this grand-jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people
“Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case, discrimination necessarily results where there are qualified negroes available for jury service. With the large number of colored male residents of the county who are literate, and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.”
The judgment of the Court of Criminal Appeals of Texas is
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON and MR. JUSTICE MINTON join, concurring in the judgment.
It has been settled law since 1880 that the Civil War Amendments barred the States from discriminating because of race in the selection of juries, whether grand or petty. As a result, a conviction cannot stand which is based on an indictment found by a grand jury from which Negroes were kept because of discrimination. Neal v. Delaware, 103 U. S. 370; Pierre v. Louisiana, 306 U. S. 354. We ought not to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice. But discrimination in this
A claim that the constitutional prohibition of discrimination was disregarded calls for ascertainment of two kinds of issues which ought not to be confused by being compendiously called “facts.” The demonstrable, outward events by which a grand jury came into being raise issues quite different from the fair inferences to be drawn from what took place in determining the constitutional question: was there a purposeful non-inclusion of Negroes because of race or a merely symbolic representation, not the operation of an honest exercise of relevant judgment or the uncontrolled caprices of chance?
This Court does not sit as a jury to weigh conflicting evidence on underlying details, as for instance what steps were taken to make up the jury list, why one person was rejected and another taken, whether names were
If the record here showed no more than that the grand-jury commissioners had considered the Negroes with whom they were acquainted—just as they considered white persons whom they knew—and had found them to be either unqualified for grand-jury service or qualified but unavailable, and did so not designedly to exclude Negroes, the State court‘s validation of the local procedure would have to prevail. We ought not to go behind such a conscientious process, however rough and ready the procedure of selection by jury commissioners. To find in such honest even if pragmatic selection of grand jurors the operation of unconstitutional standards would turn this Court into an agency for supervising the criminal procedure of the forty-eight States. Such an assumption of authority by this Court would jeopardize the practical functioning of grand juries throughout the country in view of the great variety of minority groups that compose our society.
A different situation would be presented by an unquestioned showing that jury commissioners had such a limited personal knowledge of potentially qualified Negro jurors that their purposeful limitation of choice to the
The record does disclose stark facts requiring reversal on a very different basis. If one factor is uniform in a continuing series of events that are brought to pass through human intervention, the law would have to have the blindness of indifference rather than the blindness of impartiality not to attribute the uniform factor to man‘s purpose. The purpose may not be of evil intent or in conscious disregard of what is conceived to be a binding duty. Prohibited conduct may result from misconception of what duty requires. Such misconception I believe to be the real situation on the record before us.
The governing facts are briefly stated. In Hill v. Texas, supra, this Court found discrimination in the selection of grand jurors in Dallas County, Texas, by virtue of the fact that, despite a large number of Negroes qualified for grand-jury service, none had been drawn. In the course of the five and a half years between that decision and the time of the drawing of the grand jury which found the indictment now challenged, there were twenty-one grand-jury panels.1 On each of these twenty-one consecutive panels there was never more than one Negro. This selection was made from lists which were not the result of a drawing of lots but the personal choice of the grand-jury commissioners. The available evidence clearly indicates that no more than one Negro was chosen by the commissioners for each of the twenty-one lists. Only one Negro was placed on the list—he did not serve on the
To assume that the commissioners did tender to the judges lists containing more than one Negro would lead inescapably to the conclusion that the judges systematically discriminated against Negroes. This is so because it just does not happen that from lists of sixteen it is always Negroes (barring one) that judges unpurposefully reject. I cannot attribute such discrimination to the trial judges of Dallas County. I can decline to attribute such discrimination to these judges only by concluding that the judges were never given the opportunity to select more than one Negro.
The grand-jury commissioners here received instructions from the judge not to “discriminate,” and I have no doubt that they tried conscientiously to abide by them. The difficulty lies in what they conceived to be the standard for determining discrimination, as revealed by their action. The number of Negroes both qualified and available for jury service in Dallas County precluded such uniform presence of never more than one Negro on any other basis of good faith than that the commissioners were guided by the belief that one Negro on the grand jury satisfied the prohibition against discrimination in
This is of course a misconception. The prohibition of the Constitution against discrimination because of color does not require in and of itself the presence of a Negro on a jury. But neither is it satisfied by Negro representation arbitrarily limited to one. It is not a question of presence on a grand jury nor absence from it. The basis of selection cannot consciously take color into account. Such is the command of the Constitution. Once that restriction upon the State‘s freedom in devising and administering its jury system is observed, the States are masters in their own household. If it is observed, they cannot be charged with discrimination because of color, no matter what the composition of a grand jury may turn out to be.
On this record I cannot escape the conclusion that the judgment below is not based on an allowable finding of
This compels reversal of the judgment.
MR. JUSTICE CLARK, concurring.
For the reasons stated by MR. JUSTICE JACKSON, it seems to me quite doubtful as an original issue whether a conviction should be reversed because of purposeful exclusion of the members of a race from the grand jury which returned the indictment. However, I think we must adhere to the settled course of decision by this Court with respect to such exclusion.
I am unable to conclude that from the date of the decision in Hill v. Texas, 316 U. S. 400 (1942) to the date of the trial of this case there has been purposeful systematic limitation of the number of Negroes on grand juries in Dallas County. The only evidence relied upon to establish such limitation is with regard to the composition of the twenty-one grand juries, including the jury returning the indictment of petitioner, which were impaneled during this period. But each of these grand juries of twelve persons was selected by a judge from a list of sixteen persons prepared by commissioners. The record shows only those Negroes who have actually served on the grand juries and not those who were on the commissioners’ lists. We cannot conclude that there has been uniformity as to race in the selections of commissioners when we do not know how many Negroes have been on their lists. Even if judicial notice is taken of the racial composition of three lists during the period in question, which are reported in Akins v. Texas, 325 U. S. 398, 405 (1945) and in Weems v. State, 148 Tex. Cr. R. 154, 157, 185 S. W. 2d 431, 433 (1945), there remain sixty-eight persons on the lists whose race is not ascertainable from the record or from any concession of counsel. Nor do I think that alternatively we are compelled by the statistics relied upon by petitioner to conclude that the judges purposefully discriminated during this period. Any presumption as to the purpose of the judges, or of the commissioners whom the judges appointed, instructed and supervised, must be that they intended no racial limitation. And the testimony of the judge who impaneled the grand jury in this case and a number of other grand juries during the period under review, as well as the testimony of the commissioners in this case as to the judge‘s instructions to them, indicates that he has not purposefully limited participation on account of race. In the face of this presumption and testimony, I think that, even if there were more than one Negro on each of the commissioners’ lists, we could not infer any purpose on the part of the judges to limit Negro participation solely because of race. The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. Texas, 200 U. S. 316 (1906). I do not find the present record persuasive that there was such limitation.
The difficulties facing grand-jury commissioners are well illustrated by this case. On the one hand they are told that purposeful discrimination is inferred from the available statistics during the previous five and one-half years, showing that no more than one Negro was chosen for each of 21 grand juries; that this indicates that the commissioners must have been guided by the misconceived view that the presence of one Negro on the grand jury satisfied constitutional requirements. But they are also told quite properly that a token representation of a race on a grand jury is not a constitutional requisite; that
MR. JUSTICE JACKSON, dissenting.
The case before us is that of a Negro convicted of murder by crushing the skull of a sleeping watchman with a piece of iron pipe to carry out a burglary. No question is here as to his guilt. We are asked to order his release from this conviction upon the sole ground that Negroes were purposefully discriminated against in selection of the grand jury that indicted him. It is admitted that Negroes were not excluded from the trial jury by which he was convicted.
This Court has never weighed these competing considerations in cases of this kind. The use of objections to the composition of juries is lately so much resorted to for purposes of delay, however, and the spectacle of a defendant putting the grand jury on trial before he can be tried for a crime is so discrediting to the administration of justice, that it is time to examine the basis for the practice.
I.
It is the command of the
The substantive right is thus clear. But whose right is it? The right is conferred upon the qualified colored citizen to serve on equal terms with the qualified white citizen. This defendant is not here asking that right for himself. He claims that failure to give other Negroes an equal right to sit on the grand jury gives him quite
II.
Congress, which has implemented the right of Negroes to serve on juries, had also commanded all United States Courts to give judgment “without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.”1 And this same congressional policy was manifested in a provision directing that no indictment found and presented by a grand jury in United States Courts “shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant“;2 and also in the provision that a
This Court never has explained how discrimination in the selection of a grand jury, illegal though it be, has prejudiced a defendant whom a trial jury, chosen with no discrimination, has convicted. The reason this question was not considered perhaps is that, in the earlier cases where convictions were set aside, the discrimination condemned was present in selecting both grand and trial jury and, while the argument was chiefly based on the latter, the language of the opinions made no differentiation, nor for their purpose did they need to. Cf. Strauder v. West Virginia, 100 U. S. 303; Neal v. Delaware, 103 U. S. 370; see also Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565; Hale v. Kentucky, 303 U. S. 613. Only within the last few years have convictions been set aside for discrimination in composition of the grand jury alone, and in these the question now under consideration was not discussed. Pierre v. Louisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400.
It is obvious that discriminatory exclusion of Negroes from a trial jury does, or at least may, prejudice a Negro‘s right to a fair trial, and that a conviction so obtained should not stand. The trial jury hears the evidence of both sides and chooses what it will believe. In so deciding, it is influenced by imponderables—unconscious and conscious prejudices and preferences—and a thousand things we cannot detect or isolate in its verdict and whose
The grand jury is a very different institution. The States are not required to use it at all. Hurtado v. California, 110 U. S. 516. Its power is only to accuse, not to convict. Its indictment does not even create a presumption of guilt; all that it charges must later be proved before the trial jury, and then beyond a reasonable doubt. The grand jury need not be unanimous. It does not hear both sides but only the prosecution‘s evidence, and does not face the problem of a choice between two adversaries. Its duty is to indict if the prosecution‘s evidence, unexplained, uncontradicted and unsupplemented, would warrant a conviction. If so, its indictment merely puts the accused to trial. The difference between the function of the trial jury and the function of the grand jury is all the difference between deciding a case and merely deciding that a case should be tried.
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 duty in any way other than to indict.
III.
Congress has provided means other than release of convicted defendants to enforce this right of the Negro community to participate in grand jury service; and they are, if used, direct and effective remedies to accomplish this purpose.
“[W]hoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen” because of his color or race has committed a federal crime and is subject to a fine of not more than $5,000.
Congress has also provided that “every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
These criminal and civil remedies for discriminatory exclusions from the jury have been almost totally neglected both by the Federal Government and by Negro citizens entitled to sit as jurors. Back in 1878 a state judge was indicted in federal court for violation of the Act and this Court sustained it. Ex parte Virginia, 100 U. S. 339. That case has been allowed to stand as solitary and neglected authority for direct enforcement of the Negro‘s right to sit on juries.
Qualified Negroes excluded by discrimination have available, in addition, remedies in courts of equity. I suppose there is no doubt, and if there is this Court can dispel it, that a citizen or a class of citizens unlawfully
IV.
It is implicit in the Court‘s decision that the federal penal statute,
I do not see how this Court can escape the conclusion that any discrimination in selection of the grand jury in this case, however great the wrong toward qualified Negroes of the community, was harmless to this defendant. To conclude otherwise is to assume that Negroes qualified to sit on a grand jury would refuse even to put to trial a man whom a lawfully chosen trial jury found guilty beyond a reasonable doubt.
The Negro‘s right to be selected for grand jury service is unquestionable and should be directly and uncompromisingly enforced. But I doubt if any good purpose will be served in the long run by identifying the right of the most worthy Negroes to serve on grand juries with the efforts of the least worthy to defer or escape punishment for crime. I cannot believe that those qualified for grand jury service would fail to return a true bill against a murderer because he is a Negro. But unless they would, this defendant has not been harmed.