LEDEZMA-HERNANDEZ v. UNITED STATES
No. 84-5470
C. A. 5th Cir.
984
No. 84-5474. FORSHEE v. UNITED STATES; and
No. 84-5514. RAINEY v. UNITED STATES. C. A. 6th Cir. Certiorari denied. Reported below: 740 F. 2d 969.
No. 84-5477. HARRIATT v. UNITED STATES. C. A. 3d Cir. Certiorari denied.
No. 84-5485. FRAZIER v. UNITED STATES. C. A. 9th Cir. Certiorari denied.
No. 83-6816. FORD v. KENTUCKY. Sup. Ct. Ky. Certiorari denied.
JUSTICE MARSHALL, dissenting.
Pеtitioner is a Negro male who was 51 at the time he was indicted for murder in Franklin County, Ky. He challenged the composition of the grand jury that indicted him on the grounds, inter alia, that women and young adults were substantially and systematically underrepresented on grand juries in Franklin County. Testimоny from a statistician concluded that this underrepresentation was statistically significant. Evidence was also presented that the selection system was not facially neutral, for the voter registration list from which grand jurors are selected in the county сontains information on the gender, race, and date of birth of the prospective grand jurors.1
Despite petitioner‘s assertion and his substantiating evidence, the Kentucky Supreme Court refused to consider the merits of this challenge. 665 S. W. 2d 304 (1984). Instead, that cоurt held that, because petitioner was a 51-year-old Negro male, he had no standing to challenge the exclusion of women or young adults from grand juries in Franklin County. The court rested its conclusion on the view that challenges to the composition of a grand jury must be rooted in the Equal Protection Clause of the
The conclusion of the Kentucky Supreme Court is flatly at odds with the opinion announcing this Court‘s judgment in Peters v. Kiff, 407 U. S. 493 (1972). That opinion, joined by three Justices, stated: “[W]hen a grand or petit jury has been selected on an impermissible basis, the existence of a constitutional viоlation does not depend on the circumstances [i. e., the standing] of the person making the claim. . . . [A] State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrary and discriminatory mannеr, in violation of the Constitution and laws of the United States.” Id., at 498, 502 (emphasis added). This three-Justice opinion therefore concluded that a white male had standing under both the Equal Protection and Due Process Clauses of the
The standing question is particularly important in light of the fact that, as of 1977, at least 22 States had some sort of discretionary system for the selection of grand jurors. J. Van Dyke, Jury Selection Procеdures: Our Uncertain Commitment to Representative Panels, Appendix B, pp. 264-270 (1977). Because the opinion announcing the judgment in Peters was joined by only
These conflicting pronouncements from the Court and our failure to speak definitively to the issue have spawned the sort of confusion in the lower courts that calls for the exercise of this Court‘s certiorari jurisdiction. In contrast to the views of the Kentucky Supreme Court, which are shared by the Supreme Court of Tennessee, see State v. Coe, 655 S. W. 2d 903 (1983), at least two Federal Courts of Appeals have stated that a male defendant does have a due process right not to have women systematically underrepresented on the state grand jury that indicts him. Gibson v. Zant, 705 F. 2d 1543 (CA11 1983); Folston v. Allsbrook, 691 F. 2d 184, 186, n. 3 (CA4 1982), cert. denied, 461 U. S. 939 (1983). In addition to this conflict, and perhaps more importantly, I believe that certiorari is warranted because the decision below, as well as the statements of my colleagues that would support it, misconceives the nature of due process guarantees in the state grand jury context.
The fact that a State has no constitutional obligation to provide a grand jury for state criminal defendants simply does not entail the conclusion that a defendant has no right to an impartial and representative grand jury once the State does choose to make use of grand juries. On the contrary, the insertion of a grand jury into the process culminating in trial is of major consequence to the criminal defendant. In Kentucky, as in most jurisdictions, the grand jury both investigates alleged crimes and returns indictments when it believes sufficient evidence of a crime has been established. See
Givеn the potential power of the grand jury over the criminal defendant, there can be no question that due process requires state grand juries to be unbiased and impartial. See, e. g., Goldberg v. Kelly, 397 U. S. 254, 271 (1970) (once State chooses to bestow administrative benefits, due рrocess requires that administrative decisionmakers be unbiased); Moore v. Dempsey, 261 U. S. 86 (1923) (holding, many years before Constitution was held to require state jury trials, that state jury must be unbiased). The real question posed by this petition is whether the way to ensure that impartiality is to require that grand juries be fairly representative of the community in which they sit.
For two reasons already articulated in our cases, I believe the answer to that question should be yes. First, a grand jury is a collective decisionmaker designed both to find facts and to express the community‘s moral sense on the important questions presented to it. With respect to such a body, the exclusion of any large and identifiable segment of the community removes from the jury room “qualities of human nature and varieties of human experienсe, the range of which is unknown and perhaps unknowable.” Peters v. Kiff, supra, at 503. The exclusion of such a group deprives the grand jury of a perspective on human events that may have unquantifiable but fully legitimate significance with respect to the issues presented. Seе Ballard v. United States, 329 U. S. 187, 193-194 (1946) (“The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded“).
Second, once a State chooses to employ grand juries, those grand juries become integral elements in the system of criminal justice in that State. Law is not a process by which a society actually arrives at objective truth, but rather a means for structuring the truth-seeking process so that the answers it yields will be accepted as morally legitimate by the community; it is this
“Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. . . . ‘The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, to the community аt large, and to the democratic ideal reflected in the processes of our courts.‘” Rose v. Mitchell, 443 U. S. 545, 555-556 (1979) (quoting Ballard, supra, at 195) (emphasis added).
The allegation that, at this time in our history, women are being excluded from grand jury service in some counties of Kentucky—and that potential defendants arе being investigated and indicted by such grand juries—surely calls into question the legitimacy of the system of justice in those counties. To sweep this allegation aside with the syllogism that, because there is no right to a state grand jury, there is no right to a fairly representative one, is to elide the practical and symbolic importance of state grand juries.
Finally, I note two of the serious incoherencies that would result from a decision that the Due Process Clause does not give petitioner standing to raise his grand-jury composition challenge. First, there is no dispute that a defendant has long had the right to challenge the composition of a state grand jury with respect to a cognizable group of which he himself is a member. See, e. g., Strauder v. West Virginia, 100 U. S. 303, 309 (1880). Although the Court has traditionally discussed this right in equal protection terms, it makes little sense to conceive of the right as solely an equal protection one, for the defendant in these cases is not asking to sit on the grand jury but rather to be fairly treated by it. Yet once this is recognized as the fundament of the right at stake, there is no logically defensible or analytically coherent way of arguing that the defendant is not also harmed when any “distinctive” group in the community is underrepresented on his grand jury, see Duren v. Missouri, 439 U. S. 357, 364 (1979). As Tay-lor v. Louisiana, 419 U. S. 522, 531 (1975), makes clear, women are such a group.4 Second, in most States, as is true in Kentucky, see
The opinion of the court below, which complains that “federal decisions have enshrined the statistician on the throne of expertise,” 665 S. W. 2d, at 306, makes clear that some lower courts refusе to take seriously the principle that state grand juries must be impartially constituted.5 Language from some of our opinions, and statements of individual Members of the Court, may encourage this response. Yet neither precedent nor logic suggests such а result. Accordingly, I believe the petition should be granted, and I respectfully dissent from the Court‘s failure to do so.
No. 83-6921. HERRING v. FLORIDA. Sup. Ct. Fla.;
No. 83-6991. HERNANDEZ v. PROCUNIER, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS. C. A. 5th Cir.; and
No. 84-5451. CARD v. FLORIDA. Sup. Ct. Fla. Certiorari denied. Reported below: No. 83-6921, 446 So. 2d 1049; No. 84-5451, 453 So. 2d 17.
JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.
Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment рrohibited by the
No. 84-252. SHAVERS v. WALTER E. HELLER & CO. C. A. 5th Cir. Motion of respondent for damages denied. Certiorari denied.