*1 v. PARTIDA CASTANEDA, SHERIFF Argued 9, 1976 75-1552. November Decided March No. *2 J.,
Blackmun, opinion Court, delivered the in which Brennan, JJ., joined. Marshall, White, Marshall, J., and Stevens, filed a concurring opinion, post, p. J., dissenting opinion, 501. C. filed a Burger, JJ., joined, post, p. J., which Powell 504. Rehnquist, Stewart, dissenting opinion, p. filed post, J., dissenting 507. Powell, filed a opinion, J., J., post, in which joined, p. C. and Rehnquist, Burger, Beery
Thomas Parker argued the for cause a brief filed petitioner.
David Hall him G. respondent. for argued the cause With was Melvin L. Wulf. on the brief of opinion delivered
Mr. Blackmun Justice Court. in this is whether State presented
The sole issue case Hidalgo Sheriff petitioner, person Texas, respondent prisoner’s rebutted successfully County, against Mexican-Americans showing of discrimination facie In his process. brief, peti jury grand in the state rebuttal, effective asserts: claiming tioner, respondent] indicted jurors grand “This list [of appearing thereon percent of the names indicates that 50 3 of Spanish. were record indicates that jurors who returned 5 of grand commissioners, presiding jurors, judge petit 7 of the indictment, notice and the Sheriff who served trial, Brief Spanish jurors appear had surnames.” Petitioner 6.
I workings has considered prior This Court on occasions Hernandez system selection. See of the Texas *3 Texas, Texas, Cassell 282 339 U. S. (1954); 475 v. 347 U.S. v. Texas, Hill Texas, (1945); 398 v. Akins 325 S. U. (1950); Texas, (1942); Smith (1940). 128 311 S. 400 316 U. S. jury “key on system, the man” which relies employs Texas the jurors from prospective grand to select commissioners with the state community procedure begins large.1 at The five to persons of from three to appointment judge’s district Art. Code Proc., as Tex. Crim. serve commissioners. then “shall select not less (1966).2 The commissioners 19.01 from the citizens persons 15 more than 20 of differ than nor compose list from portions county” to the which ent 1976- (Supp. 19.06 grand jury actual will be drawn. Art. the the list 1977).3 appear least 12 of the When juror selection is random method principal state mode The other system. C. 1864. See to that used federal similar § Sperlich Jaspovice, Juries, Jurors the Grand generally & Grand Q. 63, Hastings Constitution, 1 Const. L. During period case, statute time covered was amended the the requirement be freeholders in the to omit the commissioners change Laws, 131, bearing county. c. That has no 1971 Tex. Gen. § on the issues before us. law to “sixteen Prior to directed commissioners select pursuant to summons, judge proceeds court the district qualifications.” “test their Art. 19.21. qualifications The A themselves are set out in 19.08: must be grand juror Art. citizen Texas and of the be a voter county, qualified good be “of mind and county, character,” sound moral prior felony have no no literate, be under conviction, and pending legal indictment “or or of other accusation for theft any felony.” under Interrogation speci oath is method testing juror’s fied for the prospective qualifications. Art. precise questions to be out in 19.22. asked are set Art. tracks Art. 19.23, which, part, language the most jurors statutory 19.08. After court finds who meet the they qualifications, impaneled grand jury. Art. 19.26. was indicted in March Rodrigo Partida, Respondent, County Hidalgo District Court of the 92d private night of a crime residence burglary for the counties Hidalgo is one of border rape. with intent respond jury, before petit Texas. After a trial of southern custody years eight convicted sentenced ent was raised his He first Department of Corrections. the Texas process discrimination claim of sup District Court.4 for new in the State motion trial on a year to substitute legislature the statute amended men.” *4 Laws, 722, c. men.” 1965 Tex. “twenty persons” Gen. for “sixteen words range again provide present the 1967, law amended was p. 317. 515, 1. These persons. Laws, Tex. Gen. c. 20 1967 15 to § of from required for the to be the list account persons number of changes in the 7, forth in n. in list statistics set 20 jump from 16 to infra. 4 habeas, in the federal courts on State courts and state In the of challenge timely as a matter was raised respondent’s that argued this kind any complaint of he waived and that procedure, therefore state its claim on courts considered the Since the Texas might have. that he Alabama, Coleman however, are free to do so here. See we merits, 5 Henderson, 536, n. Francis (1964); 542 425 U. S. cf. general about respondent testified port motion, of his against discrimination Mexican-Americans existence of from the that area of Texas and introduced statistics records. The Hidalgo County grand jury census and the Hidalgo of figures 1970, population show that census Census, County of the United Bureau 181,535. States Population, of of Characteristics Population, 1970 Census 1, Spanish of lan p. Table 914. Persons pt. 1, 119, § vol. 45, Ibid., id., 143,611. guage Spanish or surname totaled assumption persons all the 1092.5 On the 129, p. Table surname were Mexican-Amer Spanish language Spanish of or county’s popula figures these show that icans, 79.1% tion was Mexican-American.6 Furthermore, petitioner point peti in his abandoned the waiver for certiorari. tion “Spanish-surnamed” and “Mexican- purposes, the terms For our designation synonyms of for the census “Persons used as
American” are Spanish language Spanish Persons of Language Surname.” Spanish or tongue Spanish persons and all mother other whose include both those Spanish spouse reported household or the head of the in families in which surname, tongue. Spanish the census uses Persons of as the mother 8,000 Spanish term, reference a list surnames are determined Immigration Texas, compiled by and Naturalization Service. For Spanish presented persons characteristics are for social and economic persons Spanish language combined with all other surname the census reports. Census, Population, Bureau United States Census of Population, pt. 45, 2, App. Characteristics of the vol. B. § argument, petitioner appears suggested At oral counsel to have presence illegal Spanish might aliens who have surnames inflate county’s percentage population. Oral of Mexican-Americans Tr. of Arg. agree presence 10-12. cannot We noncitizens makes any practical 181,535 Table 119 difference. of the census breaks down the composed county people population who the total groups: into three parentage, foreign parentage, foreign native native native of born. only persons assumption noncitizenship as to whom the would be logically foreign them, probable sustainable are the born. Even for it is Furthermore, only that some 22,845 persons were citizens. naturalized “foreign category. were born” If those are excluded from
487 Respondent’s data compiled from Hidalgo County the grand jury records from 1962 to 1972 showed over that period, average percentage Spanish-surnamed grand jurors 2½-year period during which the 39%.7 Judge District impaneled who jury respond that indicted ent inwas charge, average percentage On was 45.5%. the list from which respondent indicted was selected, Spanish were surnamed. The last set 50% data respondent again from introduced, the 1970 census, a number ways illustrated in which Mexican-Americans tend to be including underprivileged, poverty-level incomes, less desirable jobs, substandard and lower housing, levels population county, 158,690. Assuming total becomes every foreign-born person Spanish-surnamed person (an was counted aas assumption State), that favors the number of total Mexican-Americans 143,611 120,766. Using adjusted figures, is reduced from these county’s population, figure Mexican-Americans constitute 76.1% only 3%, negligibly, throughout smaller used thus than one litigation. population For shall refer consistency, we continue to to the figures county, particularly entire since the State has not shown why figures those are unreliable. grand jury organized composition
7 The statistics for can be as follows: persons Spanish Av. No. Percentage Year No. per surnamed list list Spanish surnamed 6 16 37.5% 16 5.75 35.9% 16 4.75 29.7% 5 16.2 30.9% 20 7.5 37.5%
20.25 7.25 35.8% 6.6 20 33% 50% 40% 9.4 47% 10.5 52.5% jurors Of who summoned to serve as over the 870 were 11-year period, 339, Spanish See table or were surnamed. 39%, Hidalgo County grand panels App. 17-18. showing from 1962 to *6 all either at offered no evidence The State education.8 or demon allegations discrimination tacking respondent’s of any way. in were unreliable strating his statistics suggested regard the date petitioner for argument, counsel At oral per discrepancy between the background explained the ing educational percentage population the the and in total centage of Mexican-Americans variety reasons, of we Arg. Oral 8. For grand jury lists. Tr. of the on selecting of suggestion. First, the method under Texas accept that cannot persons list on the qualifications are not tested until grand jurors, time, assuming an unbiased appear Prior to that the District Court. in appear all characteristics should persons of educational procedure, actually some means of jury exercised list. If the commissioners on the ability write, to read it was winnowing and those who lacked explain and to have them to call the commissioners on the State incumbent any the record to this In absence of evidence in how done. jury grand only people excluded from effect, not assume that the we shall the illiterate. were service data, from the raw census Second, to draw valid inferences it is difficult “literacy” places incomplete and the of in some definition data are since any undoubtedly subject dispute of event. be the some would literacy any point prior oral problem at to failure discuss the State’s to argument gap compounds with the difficulties. One the data occurs persons pool. reports for younger jury to The census respect years age are background only those who and educational cover age eligibility on for above. Yet limitation service qualification 1976-1977). Proc., (Supp. Art. to vote. Tex. Code Crim. 19.08 During figures person period apply, to which census became age Code, (1967). (In 1975, qualified to 21. Tex. Elec. vote 5.01 Art. give persons 5.01 was amended all over. franchise and Art. 3.) Laws, improbable c. 1975 Tex. It is that the educa Gen. § persons younger age group prove characteristics would to be tional favorable to Mexican-Americans.
Finally, assuming persons age even the statistics for 25 and over sufficiently representative significant useful, discrepancy to be still Spanish-surnamed people exists between the number of the level representation lists. Table 83 the 1970 census shows persons 80,049 group, of a that age 13,205 schooling. no total have (Data McAllen-Pharr-Edinburg Metropolitan Standard Statistical Area. Hidalgo County.) This identical SMSA is Table shows that of the 55,949 Spanish-surnamed persons group, 12,817 schooling. no have This means the 24,100 that of other all groups, races ethnic
The State District Court, nevertheless, denied the motion for newa trial.
On appeal, the Texas Court of Appeals Criminal affirmed State, conviction. Partida 2d S. W. Reaching the merits of claim discrimina tion, the court held that respondent had failed to make out a case. facie the court’s he should have shown view, how many the females juries who served on the grand were Mexican-Americans married to Anglo-American men with *7 surnames, many how Mexican-Americans were for excused age reasons of or legal or other health, many and reasons, how schooling. percentages, 388 have no Translated into the of 22.9% Spanish-surnamed persons schooling, have no and the of others have 1.6% schooling. 43,132 Spanish-surnamed no This means that of the schooling 23,712 some have and the schooling. others have some The Spanish-surnamed persons represent 66,844 thus of the some with 65% schooling, and the figure others The significant still creates 35%. 65% disparity compared representation juries when to the grand on shown 39% 11-year period over the involved here. suggestion dissenting opinion is in Justice, made the of The Chief post, 504-506, eligible population figures that reliance on and allowance literacy respondent’s prima showing for defeat would facie discrimination. disparity age But the to between Mexican-Americans over 65% 39% schooling 25 who represented have some Mexican-Americans and on the grand jury venires takes both of Chief Justice’s concerns into analysis, account. is in Statistical which described more detail n. infra, discrepancy significant. is indicates If one assumes that jury pool, Mexican-Americans constitute then a detailed 65% calculation reveals that likelihood that discrepancy so substantial a by would occur chance less is than 1050. prefer rely not on disparity, to however, We since 65% 39% many implicit assumptions analysis, are so in this
there and we consider it us, tribunal, inappropriate appellate as an to undertake this kind of inquiry assumptions without below in which those record tested. were rest, instead, way by any fact that the does We record not show compila the educational into which characteristics taken account lists, grand jury procedure tion since established the State provides literacy tested only group after the of 20 are summoned. statutory met the by the census would have listed of those moral char citizenship, sound literacy, qualifications mind, 210— Id., at of criminal record or accusation. lack acter, in the Quite beyond statistics, the uncertainties 211. could impossible found it believe discrimination
court against Mexican-American, light have directed been many positions held Mexican-Americans elective representation Mexican- county and substantial Id., juries.9 grand Americans on recent essence, would presume Mexican-Americans the court refused own kind. against discriminate their filed his exhausting remedies, respondent
After his state al Court, District corpus for habeas the Federal petition guaran process equal protection, denial of due leging a gross under by the Fourteenth because Amendment, teed County Hidalgo on the representation of Mexican-Americans transcript was hearing at the state juries. At a which testimony of state petitioner presented the introduced, compiled commissioners who had judge selected who was taken. The from respondent's the list which process. jury selection judge first reviewed the State’s *8 selecting judge In the stated that commissioners, the of Mexican-Americans a number appoint greater he tried to that he groups. than members of other ethnic He testified qualifications about the a instructed the commissioners by law. The record juror exemptions provided and the dealing instructions with regard with silent, however, any directed against of discrimination potential problem the judge that the re group. The admitted actual identifiable grand jury that foreman of the that noted the indicted The court Mexican-American, that 10 respondent was of the summoned to Spanish petit jury of the 12 had surnames. Seven members the serve addition, judge that him were Mexican-American. the state convicted Mexican-American, trial presided over the was as were a number who county. other the elected officialsin
sults of the
process
selection
produced
had not
grand jury
lists that
“representative
were
of the ethnic
balance
the
community.”
On the basis of the evidence
it,
before
the court concluded
prima
made out a “bare
respondent
had
case”
facie
invidious discrimination with his proof
long
of “a
continued
disproportion in
composition
the
grand juries
in Hidalgo
County.”
Supp.
(SD
384 F.
Tex.
1974) (emphasis
original). Based on an
reliability
examination
of the
statistics offered by
despite the lack of
however,
respondent,
evidence in the record
such an
justifying
inquiry,
the court
prima
stated that the
facie case was weak. The court believed
census statistics
not reflect the true situation
did
changes
County
because of recent
accurately,
Hidalgo
impression
area
the court’s own
demographic
of the
char
community.
acteristics of
the Mexican-American
On
hand,
recognized
key-man
other
Texas
court
system of
was
subjective,
and was
highly
inefficient,” id.,
“archaic and
factor
91, and that this
for less
arguing
tolerance in the
differences. On
percentage
reliability
of the sta
court’s doubts about
balance,
tistics, coupled
opinion
its
with
that Mexican-Americans
it
“governing majority”
constituted
caused
county,
“gove
conclude that
facie case was rebutted.
Judge observed, during
judge’s
The Federal
testi
District
state
mony,
County
process
grand jurors
Hidalgo
the selection
typically
progressive
resulted in a
of Mexican-
reduction
number
stage.
Louisiana,
Americans involved at each
405 U. S.
Alexander v.
example,
court,
For
said
commis
if
60%
*9
might
55%, and
panel
sioners were Mexican-American, the
jury only
speculated
the actual
The court
that the reason
43%.
might
App.
this
be cultural.
84-85.
respondent’s
from
theory
case
majority”
distinguished
rning
disparities. On the basis
involving
cases
similar
preceding
all
petition.11
the court dismissed
findings,
those
Fifth
Appeals
for the
Circuit
The United States Court
the District
(1975).
agreed
reversed.
We facie prima in itself rebut a “governing majority” can of a not, if selection, and, of discrimination case proof. burden of met its otherwise whether State (1976). III is a denial that “it long recognized This Court has
A. par of a try a defendant of the laws to equal protection issued indictment race or color under an ticular have, race or color his . from which all jury . . by the been excluded color, or solely of that race because Texas, S., . . . .”12 Hernandez State v. might operating the actual discrimination suggested that The court higher were from the socio-economic jury commissioners
be economic. among prospective jurors from their they to select classes, tended dispropor Consequently, of Mexican-Americans was the number peers. end of the tionately low, concentrated at the lower they since were showing of unnecessary to decide whether find it economic scale. We enough make out a simple would be economic discrimination evidence, case not before us. other since that facie case in the absence of Co., 328 U. Cf. Thiel Southern Pacific discriminatory holding unconstitutional Cases Court Louisiana, supra; procedures Alexander grand jury context include
493
Alexander
Louisiana,
v.
U.
405
625,
S.
628 (1972); Carter v.
Jury Comm’n, 396
S.
330
320,
(1970).
U.
See also Peters v.
Kiff, 407 U. S.
497
493,
id.,
(1972) (plurality opinion);
at 507
(dissenting opinion). While the earlier cases involved ab
solute exclusion of an identifiable group, later cases established
the principle that
substantial underrepresentation
group constitutes a constitutional violation
well,
if it re
from
sults
purposeful
Fouche,
discrimination.
See Turner v.
396
346 (1970);
U. S.
Carter
Jury
v.
Comm’n, supra; Whitus
Georgia,
v.
385 U. S.
552
545,
(1967);
Alabama,
Swain v.
380
U.
202 (1965);
S.
Cassell v.
339 U.
Texas,
282 (1950).
S.
Re
cent cases have established the fact that an official
act is
solely
unconstitutional
because it has
racially
disproportion
impact. Washington
ate
Davis, 426
v.
U. S.
239 (1976) ;
Arlington Heights
see
v. Metropolitan Housing
Corp.,
Dev.
“It is also from dealing with clear the cases racial dis juries systematic crimination the selection of Negroes exclusion of 'unequal application itself such an of the law as to show . . . intentional discrimination.’ . . . discriminatory purpose may A facie case proved Negroes particular as well the absence of on a with the combined failure of the commissioners community, Negro jurors of eligible be informed in a Carolina, (1964); Louisiana, 773 376 U. S. Arnold v. Eubanks v. North (1955); (1958); Georgia, Reece v. 350 U. 85 Cassell S. 584 S. v. 356 U. (1950); Texas, (1942); Hill 316 U. 400 Smith Texas, U. S. 282 S. v. 339 (1940); (1939) ; Texas, Louisiana, Pierre v. 306 U. 354 S. (1904); Rogers Alabama, Texas, S. 226 Carter v. S. U. Kentucky, Bush v. (1900); and procedures racially non-neutral or with . .
. ‘the out, made prima facie case . With a . . . presump to rebut the proof shifts to the State burden of permissi by showing that action tion of unconstitutional *11 procedures have neutral selection criteria and racially ble Alexander the monochromatic result.’ produced [v. at Louisiana, S.,] S., 632.” 426 U. 241. 405 U. at Arlington Heights, 266 13. supra, at See n. equal protection to an violation
Thus, in order show that grand jury selection, defend occurred in the context of has resulted in sub employed the procedure must show that ant race the identifiable underrepresentation of his or of stantial to establish that belongs. step to which The first is he group recognizable, singled is distinct class, is one a group under the as written or as laws, for different treatment out Texas, v. 347 at 478-479. S., Hernandez U. applied. Next, by com underrepresentation proved, degree must to population in the total proportion group paring signifi called to as over proportion serve jurors, Id., Alabama, period 480. See Norris v. 294 cant of time. at 587 This called the (1935). U. S. method sometimes proof, exclusion,” has to be as a “rule of been held available method proving against discrimination in selection delineated Texas, Hernandez 347 S., Finally, class.13 v. U. at 480. as susceptible above, procedure noted a selection that is of abuse racially neutral supports presumption or is discrimi Davis, Washington showing. nation raised statistical v. Louisiana, Alexander v. 405 U. S., 241; S., 426 U. at at 13 complex. exclusion is The idea behind rule of not at all If a sufficiently disparity large, unlikely is it solely then it is due accident, and, contrary, or chance the absence evidence to the one or conclude that racial other class-related factors entered must into Arlington Heights Metropolitan Housing Dev. process. v. (1977); Washington Davis, Corp., 429 252, v. 266 n. U. S. Louisiana, Texas, Eubanks v. Smith (1976); 229, S., 587; v. S., 131. Cf. n. infra. Once the defendant has shown substantial underrepresenta tion his he group, has made out a facie case of dis criminatory purpose, the burden then shifts to the State to rebut that case.
InB. this case, it is no longer open dispute that Mexi can-Americans are clearly g., identifiable See, class. e. Hernandez v. Texas, supra. Regester, Cf. White v. U. S. 755, statistics introduced re spondent from the 1970 disadvantages census illustrate which the group has been subject. Additionally, as in Alexander Louisiana, v. the selection procedure racially is not neutral with respect to Mexican-Americans; Spanish sur just names are easily identifiable as race was from the questionnaires in Alexander or the notations and card colors in Whitus Georgia, supra, in Avery Georgia, 345 U. S. 559 (1953).14
The disparity proved by 1970 census statistics the showed population that the the county of was Mexican-Amer 79.1% but ican, that, 11-year over an only of the period, 39% grand jury summoned for service were Mexican- American.15 This difference of greater than that 40% significant Fouche, found in Turner 396 346 (1970) U. S. 14 argue subjectivity system The dissenters the of the cuts favor of the State where process those who control the selection person of the claiming members same class as the discrimination. The remains, however, respondent belongs fact the class to which was substantially grand jury underrepresented Hidalgo County. on the lists of argument aspect “governing major The dissenters’ here is another of the infra; ity” theory, III-C, Part under the presented see circumstances case, theory dispel presumption purposeful this does the of dis not by showing created the combined force the crimination of statistical highly subjective of the method selection. 15 compile separate Spanish- the 1960 census did not statistics for Since impossible percentage of persons, it is to ascertain whether the surnamed county changed appreciably period of in the over the Mexican-Americans rely assumption are forced to on the that the time at issue. therefore We figure constant. remained 79.1%
496 Negroes general the
(60% population, 37% showing no jury lists). presented the evidence Since State as the why 11-year period we take reliable, it disparities comparison.16 The mathematical relevant base adequate prima for a accepted that have been this Court as For range presented case have been within the here. facie all num Georgia, (1967), in Whitus v. 385 U. S. example, digest of listed on tax amounted to of Negroes ber 27.1% grand jury but of on the venire. those taxpayers, 9.1% prima to be to make out a disparity was held sufficient Georgia, 389 of discrimination. Sims facie case See grand jury lists); (1967) (24.4% lists, of tax 4.7% Georgia, (19.7% tax (1967) Jones v. lists, 5% agree Court and Court list). with District We proof enough case was to establish Appeals that against the Mexican- facie case discrimination prima Hidalgo County grand jury selection.17 Americans 2½-year analysis during lists tenure Statistical Judge respondent’s who selected commissioners State District disparity period significant existed over this time that a case reveals assumption ref 17, Thus, the District Court’s See n. well. infra. period facie case of erence to a shorter would show that time proved discrimination could not was unwarranted. randomly jurors general population, then If the were drawn from sample the number Mexican-Americans in the could be modeled Finkelstein, Application See Deci binomial distribution. Statistical Theory Jury Cases, to the sion Discrimination Harv. Rev. 353— L. Hoel, generally P. Introduction to Mathematical Sta (4th 1971); Mosteller, 58-61, Rourke, 79-86 ed. F. R. & tistics G. Probability (2d Thomas, Applications 130-146, with Statistical 270-291 *13 1970). population the Mexican-American, Given that is ed. 79.1% expected among persons number of Mexican-Americans the 870 summoned jurors 11-year period as over the approximately serve is 688. course, any The number Of given drawing observed is 339. some fluc expected predicted. tuation from number important is The point, however, is statistical model shows that the results of a random drawing likely vicinity to fall in of the value. See F. expected Mosteller, supra, Rourke, Thomas, & R. G. at 270-290. The measure of
497 sys Supporting this conclusion is the fact that the Texas jurors selecting grand highly subjective. tem of is The facial constitutionality key-man been system, course, has Comm’n, g., e. Jury Carter v. accepted this Court. See, by Texas, Akins (1970); (1945) ; 398 v. U. S. Texas, Smith 128 (1940). Nevertheless, system susceptible app Court has noted that the is of abuse as Texas, See Hernandez 479. Addi S., at lied.18 persons Spanish readily as with tionally, noted, surnames are identifiable. by respondent showing made therefore shifted the proof dispel
burden to the of in State inference predicted expected fluctuations from the value is the standard devia tion, square defined for the binomial distribution product as root of the (here sample 870) probability the total number times selecting (0.791) probability selecting a Mexican-American times (0.209). Id., Thus, non-Mexican-American 213. this case the approximately general large standard deviation is 12. As a rule for such samples, expected if the difference between the value and the observed greater is than deviations, hypoth number two or three standard then the jury drawing suspect esis that was random would be to a social scientist. 11-year expected data here reflect a difference between the number approximately observed of Mexican-Americans of 29 standard A deviations. detailed calculation reveals that the likelihood that such a depature expected by substantial from the value occur chance is would less than in1 2½-year period during Judge
The data which the State District for the supervised similarly process support the selection the inference that exclusion of did not Mexican-Americans occur chance. Of 220 jurors, only called to serve were Mexican-Americans. The expected representation approximately Mexican-American is 174 and the model, deviation, approxi standard as calculated from the binomial mately discrepancy expected six. The between the and observed values is Again, more 12 standard calculation shows than deviations. a detailed drawing the likelihood of not more than 100 Mexican-Americans negligible, being chance is less than in 1025. the federal It been said that random selection methods similar to has system probably potential most of the for abuse found would avoid system. Sperlich supra, the key-man Jaspovice, & n. 1.
498 introduced Inexplicably,
tentional discrimination. State of District testimony the State practically no evidence. jury com Judge principally dealt with the selection The com given to them. missioners and the instructions testify. A such called to case missioners themselves were not illustrates Alabama, 4, 209, U. at 207 n. S., v. 380 as Swain it out testimony, of such when sets potential usefulness by the commissioners.19 followed procedures detail par Appeals opinion of the Texas Court Criminal of rebuttal evidence ticularly revealing as to the lack record: figures with many in the census of those listed
“How state, citizens of the were not Mexican-American names the south side of were so-called ‘wet-backs’ from but not many migrant workers and Grande; Rio how were many Hidalgo County; how were illiterate residents not many how were write; read and and could not many had character; how good mind and moral sound or felony or were under indictment been convicted of felony; or a none these for theft legal accusation facts 211 (emphasis 2d, in the record.” 506 appear S. W. added). part figures census showed that small fact, the County native Hidalgo for was not population reported testimony from the some 6, supra. n. Without
born. See they about the method which jury commissioners grand jurors prior to qualifications other determined the testing qualifications, impossible it is statutory time for 19 course, protestation say, simple that a from a This is played part no racial considerations the selection commissioner enough. testimony has been found insufficient on This would kind g., Louisiana, 632; E. Alexander 405 S., occasions. v. several Texas, 475, (1954); Alabama, Norris Hernandez v. S.U. (1935). presump Neither is the State entitled to on a rely S.U. discharged their rebut tion the officials sworn duties to case Georgia, Jones discrimination. *15 any to draw inference about literacy, sound mind and moral character, criminal record from the statistics about the population as a whole. See 8, supra. n. These questions are of disputed present fact that problems not amenable to reso lution an appellate court. We emphasize, however, that we not saying that the statistical disparities proved here could never explained in another case; simply we are say ing that did State not do so in this case. See Turner v. Fouche, 396 U. atS., 361. In light
C. of our holding respondent proved prima facie case of discrimination that any was not of rebutted the evidence presently in the record, only we have to consider whether the District “governing majority” theory Court’s evidentiary filled the gap. dispel our view, it did not presumption purposeful of discrimination in circum stances of this many case. of Because facets of human it motivation, presume would be unwise to as a law matter that human beings group one definable not will discrimi against nate other members of group. their even Indeed, of Mr. suggest dissent does such a not Justice Powell presumption would be appropriate. post, 514-516, n. 6, problem complex widely about is a which n. one, differing views can be as it some and, would be held, such, precipitate what judicial take notice one view over another on as the basis a record barren this.20 governing majority
Furthermore, relevance process is question elected officials to The fact that certain elected officials are Mexican- able. nothing about demonstrates the motivations and American commissioners who select methods only arguably in this jury lists. relevant fact majority practicing where benevolent discrimi is not a case This traditionally minority, although disfavored of a favor nation immediately might that motivations obvious enter illustrates situation against “one’s own kind.” into discrimination record on the issue is that three the five commissioners only respondent’s Knowing case were Mexican-American. we this, rely reasoning we would be forced to on the rejected—that have human would not discriminate beings against presumption their kind—in order to find that own Without ben purposeful discrimination was rebutted. discriminatory in simple efit of this presumption, behavioral can about tent be rebutted with record evidence rea way operated which and their the commissioners doing supply sons for It burden such so. State’s his facie case. evidence, respondent once established respond regard unchallenged failure in this leaves The State’s *16 proof of purposeful ent’s discrimination. theory “governing majority” general even has
Finally, if a of applicability kind, inadequacy cases this the Among permit approach. not record this case does such an any evidentiary lack of indication the deficiencies the enjoyed “governing the have long how Mexican-Americans about the rela the absence of information majority” status, held by offices Mexican- power inherent the elective tive general the politi Americans, and the uncertain relevance the to issue in this case. Even for power specific the cal presumably political power the period, when most recent time greatest, discrepancy was at Mexican-Americans its popu the number of Mexican-Americans the total between lists was the number on substantial. and lation in this presented case, “governing under the facts Thus, developed fully enough satisfy theory is majority” of rebuttal. burden State’s
IV to the relying approach on an discrimina than Rather faintly “governing defined as the ma that is as question tion prefer this we all the theory record, look at is on jority” issue, such as the disparities, statistical bear on facts any testimony other relevant as selection, method to the manner in which the process imple was mented. Under this standard, proof by offered respond ent sufficient to demonstrate facie case dis in crimination jury selection. Since the State failed to rebut the presumption purposeful discrimination competent testimony, despite opportunities two to do we so, affirm the Court of Appeals’ holding of a of equal denial protection of the law in jury selection process in respondent’s case.
It is so ordered. Mr. Justice Marshall, concurring.
I join fully Justice Mr. opinion Blackmun’s sensitive I Court. feel compelled to write separately, however, to express my profound disagreement expressed with views by Mr. Justice Powell in his dissent.
As Brother Powell my post, at observes, 507-508, there are categories three of evidence case bear on ulti question respondent pre mate whether “demonstrated ponderance 'deliberately had the evidence that the State systematically [respondent’s to members of den[ied] jurors in administration right participate class] ” Louisiana, quoting justice,’ post, 517, Alexander is the (1972). First, 628-629 there statistical evi *17 10 reveals that for at years, That evidence least dence. grossly underrepresented have been on Mexican-Americans County. Hidalgo Mr. Justice As Blackmun juries grand ante, impossible n. is 496-497, 17, all demonstrates, it but produced chance. disparity was The sta this sizable supports very at the least an inference evidence, then, tistical against were discriminated Mexican-Americans jurors. grand choice of testimony concerning grand jury selec is
Second, there testimony in this case. That indicates employed system tion jury panels grand who constructed the commissioners 502 ample against to discriminate Mexican-Amer opportunity
had discretionary system entirely since selection icans, In Spanish-surnamed readily since identified. deed, years recognized potential for over 35 this Court has plan. See for abuse inherent the Texas selection grand Texas, Texas, 130 Hill 316 (1940); Smith v. 311 U. S. v. 128, Texas, 289 339 U. 400, (1942); 282, 404 Cassell v. S. U. S. Texas, (1954). 347 479 (1950); Hernandez v. U. S. by itself, testimony concerning system, Thus selection sug only purposeful the inference of discrimination buttresses by the gested statistics. every I other case of which am aware where the evidence discretionary both disparity
showed
statistical
facie case
this Court has found
procedures,
required
and has
the State
established,
was
discrimination
procedures had
ostensibly neutral selection
explain how
begins
line of
results. This
cases
such nonneutral
produced
Delaware,
century ago in Neal v.
almost a
the decision
with
recent
and extends
our
decision
(1881),
370
103
S.U.
Louisiana, supra.1
my
Yet
Brother Powell
Alexander v.
here was insufficient
conclude that the evidence
have us
would
though
discrimination,
expla
even
no
purposeful
to establish
underrepresentation
marked
has
offered for the
been
nation
County
juries.
Hidalgo
Mexican-Americans
1
Kentucky,
Alabama,
Hale
(1935);
Norris
587
294 U. S.
v.
also
v.
Louisiana,
Smith v.
Pierre v.
(1938);
(1939);
306 U.
354
613
S.
U. S.
303
Texas,
Patton
(1942);
(1940); Hill
316
400
U. S.
Texas, 311
U.
128
v.
S.
Texas,
Cassell v.
(1947);
Mississippi,
339 U.
282
S. 463
S.
332
v.
U.
Texas,
Louisiana,
Eubanks
(1954);
475
347
v.
Hernandez v.
(1950);
S.
U.
Carolina,
(1958); Arnold
North
(1964);
376
S.
584
v.
773
U. S.
Georgia,
Georgia,
(1967);
Jones v.
503 The sole basis for Mr. conclusion lies in Justice Powell's category third presented: evidence proof politi of “the cal dominance and control the Mexican-American major ity in Hidalgo County,” post, at 507-508. Like the District appears to Court, he any assume—without basis the record— that all indeed Mexican-Americans, all members all minority groups, have an “inclination to assure fairness” to other mem bers of their group. Post, 516. Although at he concedes possibility that minority group members will violate this “inclination,” post, see n. 6, 514-515, apparently regards he possibility as more theoretical than real. Thus he would reject the inference of purposeful discrimination here absent any alternative explanation for the I disparate results. emphatically disagree.
In the first place, assumptions about Justice Mr. Powell’s human nature, plausible they may fly sound, face great deal of theory social science and research. scien Social tists agree that minority frequently members of groups re spond to prejudice discrimination by attempting to dis associate point themselves from the even to the group, adopting majority’s negative attitudes towards the minori ty.2 particular frequency among Such behavior occurs with minority who groups members of have achieved some measure political thereby gained of economic or success and have some among acceptability group.3 the dominant Prejudice (1954); Rose, Allport, The Nature of 150-153 A. G. & J. (1949); Simpson Yinger, Negro’s 85-95 Racial and Cul Morale G. Bettelheim, 192-195, 227, 1972); ed. (4th Individual tural Minorities Situations, Psych. in Extreme & and Mass Behavior J. Abnormal Social Education, Brown 483, 494, v. Board (1943); and n. 11 cf. jure segregation in on sense of self of de (1954) (noting impact schools). Simpson Yinger, Bourgeoisie (1957); 213-216 & Frazier, Black
3 E. Oppression supra, 313-316 209; Ovesey, Kardiner & L. Mark of A. Among Jews, Contemporary Jewish Record (1962); Lewin, Self-Hatred *19 assumptions if my But even Brother behavioral Powell’s agree making I them valid, were more still could not to ruling. It seems to me foundation for constitutional discrimination, especially reviewing claims of intentional basing de avoid its responsibility this Court has solemn to minority concerning groups. on generalizations cisions broad relying If history danger us it is taught anything, has not for here is stereotypes. question such The decision but Mexican-Americans, Mexican-Americans treat other how grand jury Hidalgo particular how commissioners way ques County acted. The reliable answer many pro times,4 as we have so is for the State tion, said testimony the manner in which the selection concerning duce operated. to do so re process Because State failed after I prima discrimination, spondent established a facie case of Appeals. affirming the Court join opinion the Court’s Burger, with whom Mr. Justice Chief Justice Mr. Rehnquist dissenting. join, and Mr. Justice Powell expressed in Justice Powell’s In to the views addition Mr. opinion. I the Court’s identify one other flaw dissent, case dis facie majority characterizes as What simply will not “wash.” decisions of crimination eligible pop suggest, demands, and common sense Court gross population provide statistics, figures, ulation Louisiana, 405 U. S. starting Alexander point. relevant v. opinion by Court in an example, (1972), Mr. “proportion to the blacks looked Justice White (Emphasis .” supplied.) . . eligible population . relating eligible to the evidence produce failure County respondent’s Hidalgo undermines claim
population existed in the first any “disparity” instance. statistical substantial numbers of here, members Particularly where, 592; supra, Louisiana, supra, Alabama, Pierre v. Norris g., 4 E. S., at 361; Louisiana, Alexander of the identifiable actually class served on grand jury panels, rightly burden rests upon the challenger to show a mean ingful statistical disparity. After all, presumption of con stitutionality attaching to all state procedures has even greater force under the presented circumstances here, where exactly one-half the members list now challenged by respondent were allegedly members of the ex *20 cluded class of Mexican-Americans.
The Court has not previously upon been to called deal length with the sort of persons challeng statistics required of ing grand jury selection system. is that in our The reason prior cases there was little doubt of that members identifiable minority groups had In large been excluded in numbers. Alexander Louisiana, supra, v. the challenger’s venire included only one member of the identifiable the grand jury class and that him Fouche, indicted had none. In Turner S. v. U. 346 (1970); Georgia, Jones v. (1967); Sims Georgia, 389 S. 404 (1967); Georgia, U. and Whitus (1967), S. 545 there was at inclusion only best token Negroes jury on grand in us, contrast, lists. case before involves neither tokenism nor exclusion; absolute rather, State has system resulting used the inclusion large Spanish-surnamed grand numbers of on citizens In particularly lists. this it is incumbent on re situation, spondent precise demonstrating signifi to adduce statistics respondent obligated cant To disparity. that, do disproportionately large numbers of eligible demonstrate systematically from were excluded individuals service. offered no
Respondent respect. evidence whatever in any meaningful could not have established case He therefore or discrimination, prima facie otherwise. contrast opinion accepts which Court’s respondent’s approach, Bureau’s statistics for 1970 analysis, the Census without in Hidalgo County, 72%, of the adults demonstrate Spanish respondent as are surnamed. At implies, 79.1% figures are population outset, therefore, respondent’s gross manifestly overinclusive. no offered Respondent
But beginning. is qualifications basic respect evidence whatever with other relied on the Court’s grand jury service.1 The statistics persons over Spanish-surnamed opinion suggest that 22.9% Ante, County schooling had no at all. age Hidalgo have grand jurors 488-489, requirement n. Since one literacy English language, approximately Texas 20% on very likely disqualified adult-age Mexican-Americans alone. ground overbroad statistics respondent’s The Court’s reliance As one-half previously noted, is not the sole defect. Mexican-Amer grand jury bore respondent’s members list time ican Other lists at about the same surnames. predominantly in March 1972 were indictment respondent’s September to the Thus, respect with Mexican-American. jurors were prospective grand jury list, *21 70% January In were Term, the Mexican-American. 55% by in respondent 1972, was indicted Mexican-American. Since truly grand jury, representative been appears to have a what Hidalgo County’s practices mechanical use of some the entirely me do not earlier seems to indefensible. We years respond cannot know, on record we whether and this know, population figures, which served as the basis gross ent’s complained case, of in establishing “disparity” this for period prior to Ac at all to the any applicability had totally know, figures may the 1970 be all we cordingly, for establishing obviously prima facie case rested on burden of figures produce patently do to respondent. It will not overinclusive ante, 486-487, thereby the burden to the to shift State. Cf. seek prima only Rather, 488-489, facie case is when n. 8. established 6, n. percentage disparity minority persons between the challenger shows percentage minority eligible population and the on individuals grand jury. inaccurate as to prior years;2 if so, apparent disparity alleged by respondent would be increased improperly. I
Therefore, disagree both with the assumption Court’s respondent established a facie case and with the Court’s implicit approval of respondent’s method showing an allegedly disproportionate impact County’s of Hidalgo selec tion system upon Mexican-Americans. Stewart, Justice
Mr. dissenting. my view, findings of the District Court in this case “clearly cannot said to be erroneous.” Rule Fed. Civ. (a); United Co., States Gypsum v. United States Proc. 394-395.* Given those no findings, there was constitutional violation the selection of the respondent. indicted the I Upon that basis would reverse judgment the Court I Appeals. add I agreement am in substantial with the dissenting opinions of The Chief Justice and Mr. Justice Powell. Justice Powell, with whom The Chief Justice and
Mr. Rehnquist Justice dissenting. join, Mr.
The evidence relevant issue of discrimination in this categories: First, case falls into three the statistical evidence respondent both introduced the state and federal proceedings which shows Mexican-American 80% majority Hidalgo County proportionately repre lists; testimony sented second, judge trial outlining state the Texas jury selection operated as it system case; third, judi the facts cially political noticed District Court with respect
2Indeed, Reynaldo Judge County in Hidalgo Garza this case to referred changing” as “rapidly experiencing “rapid growth.” as “clearly applies standard to erroneous” facts *The review of found by corpus in proceeding. Mayo, a district court a habeas Wade v. U. 683-684. S. majority by the Mexican-American
dominance and control County. Hidalgo the lack of today dispositive it that considers
The Court Mexican-Americans proportional representation if occurred county in this would not have grand jury lists wholly at random. population from the jurors were selected by not occur may disproportion did agree But one that purposeful from resulted agreeing that it chance without circumstances of my view, invidious discrimination. finding District Court’s unique fully support this case today’s deci disparity—the basis the statistical causes neutral likely stemmed from more to have sion—is Mexican- any against discriminate intent to than from Americans.1
A may demon criminal defendant holds that a Court merely Clause Equal Protection violation strate jurors selecting grand for procedure showing by or race underrepresentation his in substantial “resulted discrimination may made that claims strong be 1 A case Powell, corpus after Stone habeas federal cognizable on are not provided an the State has held that “where In Stone we claim, Amendment litigation of a Fourth full and fair opportunity corpus relief on habeas may granted federal not be prisoner state or an search seizure unconstitutional obtained ground that evidence omitted). (footnotes Unlike Id., at at his introduced trial.” was Stone, complain his conviction rested on who could prisoner ask by and could for new Amendment violations tainted Fourth evidence challenges only case excluded, prisoner evidence trial with that there was sufficient moot determination the now points no As in He to flaw trial itself. proceed trial. cause corpus extending as a means of Stone, habeas benefit incremental might procedures be correcting unconstitutional acknowledged other vital to “outweighed costs to values as viewed system justice.” Ibid. of criminal a rational argued below and not briefed addressed or But this issue was not inappropriate resolve it this case. Court, it in this would
509 Ante, group belongs.” the identifiable which he at 494. holding, the Court blurs the By so traditional constitutional petit distinctions grand misapplies between and juries, equal protection analysis our most recent mandated decisions. Fifth right apply Amendment a grand jury does prosecution.
to a state
Hurtado
U.
California,
v.
110
S. 516
(1884). A state defendant cannot
if
complain
for
State
goes the institution of
grand jury
proceeds
him
against
instead through prosecutorial information, many
pre
as
States
fer to do. See Gerstein v. Pugh, 420 U.
103, 116-119 (1975).
S.
if
Nevertheless,
a State
proceed by
chooses to
it
proceed
must
within the
imposed by
Equal
constraints
Protection
Clause
the Fourteenth Amendment. Thus in a
line of cases beginning with Strauder
Virgina,
v. West
100
U.
303
S.
this
(1880),
Court has held
a
defend
criminal
ant
equal protection
is denied
law
result of
if,
purposeful discrimination, members of his
are ex
own race
from jury
Louisiana,
cluded
service. See,
g.,
e. Alexander v.
Comm’n,
(1972);
“Our decision last it clear official will (1976), made action U. S. 229 solely unconstitutional because it results not held impact. racially disproportionate ‘Disproportionate irrelevant, not is not but it is the sole touchstone impact Id., racial discrimination.' an invidious 242. Proof discriminatory racially purpose required intent or of a Equal . .” violation of Protection Clause. show a . Id., at 264-265. following standards for resolving identified issues
We also purpose: or intent discriminatory “Determining discriminatory whether invidious pur motivating factor demands a inquiry was a sensitive pose State, community areas in some Fourteenth Amendment process render the unconstitutional. would into such circumstantial and direct evidence intent as may be available. impact of the official action— whether it ‘bears more heavily on one race than other,' Washington Davis, v. supra, at 242—may provide an important point. starting Sometimes clear pattern, unexplainable grounds on other than emerges race, from the effect of the state action even when the governing legislation appears neutral its face. Yick Wo Hop kins, 118 U. (1886); S. 356 Guinn States, v. United U. S. 347 (1915); Wilson, Lane v. (1939) S. 268 ; Lightfoot, Gomillion 339 (1960). The evi dentiary inquiry is relatively then easy. But such cases pattern are rare. Absent a Gomillion as stark as that in *25 Wo, Yick impact or is alone not and the determinative, Id., Court must look (foot to other evidence.” omitted). *26 every Negro, pupil having transferred white county schools were white, board of were as education members of elsewhere, all of the jury Court commission. District members of all of were system instituted, “Negroes had been the suit was that, until had found Id., juries through at atically grand token inclusion.” from the excluded pervasive background against It this of discrimination grand jury Negro representa that even a new list with Court found 37% continued, purposeful discrimination. product was the tion Jury Comm’n, supra, 338-339, in Carter v. By contrast, isolated jury years Negro appointed had proof for 12 no been commis county insufficient, predominantly Negro standing was found sion of a discriminatory alone, to establish intent.
513 for racial discrimination” was the Court satisfied bur that the den Id., should shift State. at 630.4 Davis, Arlington
Considered together, Heights, and Alex ander make clear that statistical showing evidence underrep
4 “opportunity The Court’s reliance on the for discrimination” noted Alexander, ante, 495, 497, clearly misplaced. The Court has held repeatedly system the Texas selecting grand jurors by the use of jury capable commissioners is “fair its being on face and utilized with out Texas, discrimination.” Hernandez 475, v. 347 (1954); U. S. 478-479 Texas, accord, 128, Smith v. 311 U. “subjectivity” S. 130 system the selection cuts in favor where, here, State those who process control person members of the same class as the claiming infra, discrimination. text, at 515-516. Apart Turner, from Alexander and supra, see n. has Court jury
sustained
grand
claims of
discrimination
two situations. Most of
the cases involve total exclusion of minorities
participation
from
juries:
Georgia,
(1955)
(no
Reece v.
Negro jurors
B beyond dispute: In critical are following the facts case, later jury the commissioners judge appointed the who Mexican-American; three respondent’s over trial was presided Mexican-American; 10 of jury of the five commissioners were array Mexican-Amer were the members the indictment, the who returned ican; grand jurors 5 of the 7 of Mexican-American,5 and including foreman, were were guilt petit jurors who returned the verdict respondent In year which Mexican-American. jury list were of the on the indicted, 62.5% elected majority addition, Mexican-American. Mexican-American, as were Hidalgo County were officials positions power judges. That these majority community in a where surprising is not were so held influence em Mexican-American. As was population is 80% phasized by Judge Mexican-American Garza, District able Dis presided proceedings over the habeas jurist who unique. Every jury other discrimi this case is Court, trict where reaching case this Court has involved a situation nation majority, resulting power governing and the over held a white electorate and white process, was officials.6 number of noted that Mexican-Americans Court District higher might inability had it not been for have been Mexican-American, original to locate four of the sheriff, a members Supp. 79, array were Mexican-American. 384 83. Under who F. grand jurors must law, concur before indictment
Texas 9 of the an Proc., Crim. Art. 20.19 presented. Tex. Code can course, suggest, of the mere fact 6 I that Mexican- do Hidalgo County majority dispositive. There Americans constitute which, reasons, historical or many communities virtue other *28 significant most fact in this case, all but ignored Court’s opinion, is that a majority of jury commissioners were Mexican-American. The jury commission body is the vested Texas law with the authority to grand jurors. select Under the Texas selection system, noted the Court, ante, at 484—485,497, the jury commission has opportunity identify to potential those jurors advance who Spanish have surnames. In these circumstances, where Mexican-Americans control both the selection of jurors political and the process, rational inferences from the most basic facts a democratic society improbable render respondent’s claim of an to intent discriminate him against and other Mexican-Americans. As Judge Garza “If people observed: can charge choose whom they unlikely want, they it will is against discriminate them selves.” Supp. 384 F. 79, 90. likely
That individuals are of, more to discriminate in favor than against, those who share their own identifiable attributes premise is the that that underlies cases recognizing personal a right criminal defendant has under the Fourteenth to members of his Amendment not have own class excluded Discriminatory jury from service. exclusion of members of unfairly excluding has viewed as the defendant’s class been may who be inclined favor the defendant. persons See may particular population not be able at majority of the a time a political way system significantly decisions or the influence control or Fouche, (1970). operates. Turner S. But no one U. can County community. seriously Hidalgo is a that classic contend such may “minority group” suffer a in which a discrimination in situation “relegated position political power to ... community where it is Rodriguez, Dist. v. San School Antonio lessness.” politically they “powerless”; are not Here Mexican-Americans capa majoritarian political element of the with demonstrated community, bility protect their own. elect and persons positions power never be suggest I that can
Nor do against other ethnic members same have discriminated shown to it Virginia, Strauder v. West S., at 309. Were defendants of jurors will favor perceived likelihood suppose reason to their there would be no class, own systematically excluded process com any legitimate race would be basis certain in Only the race. plaint by criminal defendants of personal have a from service would dividuals excluded *29 right complain. to Texas, Negro on Akins apparently where no only jury panel, 1 of was on the jury commission and required of to emphasized high proof
the Court threshold discriminatory with brand officers of the court intent: selecting discriminatory practices allegation “An of of panel essential element grand jury challenges an requirement of fairness proper judicial procedure—the government deal judicial of of part arm criminal It can charged with offenses. ing with officers of courts disre be concluded lightly not that justice.” standard of at accepted this gard S., 400-401. say today I Court compelled to that the respect, all am
With jury has concluded that commissioners “lightly” only duty but county disregarded have not their sworn to likely assure fairness to Mexican- also their inclination Americans.7 respondent's evidence, statistical I would bold group.
or racial prove more, to a claim of discrimination in this case. is insufficient without ante, Marshall, stereotypes agree Mr. Justice 7 I with society in our no concerning place classes have decisions identifiable reason, I inappropriate For that consider it to characterize this Court. County majority Hidalgo “minority group” the Mexican-American as suggest may to Mexican-Americans on that basis these have majority’s negative minority.” “adopt attitudes towards [ed] Ante, type speculation lengths This illustrates the at 503. which one holding go purposeful must to buttress discrimination that otherwise solely proportional representation. is based on a lack of
c It matters little in judicially this case whether such notice able facts the composition as of the commission are viewed as defeating respondent’s prima facie case or rebutting outset it after it was established statistical significance evidence. The of the facie case is limited to its effect in shifting going burden forward State. Once State has produced evidence—either presenting proof by calling subject or attention to facts judicial notice—the only question is whether the evidence in the record is sufficient to sys demonstrate deliberate and discrimination in the tematic selection process. produced
Here, respondent showing statistics Mexican- substantially represented Americans—while on the grand represented lists—were numbers proportionate to their population. of the total responded by share State pre testimony senting the who judge appointed jury commissioners. Other such presence as the facts, majority Mexican-Americans in a positions the elective *30 through judicial the entered the county, record notice. The with the noted testimony, together facts the Court, District satisfy to the burden of production—even sufficed State’s respondent’s assuming that evidence was sufficient to rise give to of such a burden. at the close the Accordingly, evidence, the question the for District Court was whether respondent preponderance had demonstrated the evidence that the “deliberately systematically had and State to mem den[ied] of [respondent’s right participate jurors bers the to class] justice.” in Alexander, the administration at S.,U. District found judge 628-629. The Court that and intentionally against commissioners had not discriminated Supp., very 384 F. At least, Mexican-Americans. 90. finding clearly not was erroneous.8 that remotely case Nothing in this resembles the stark discrimination 364 U. Lightfoot, Hopkins, (1960), and Yick Wo Gomillion intro “inexplicable” it the State
The Court labels Ante, testimony judge. of the state trial only duced for present Perhaps fairly the State may faulted today's one But until decision more than it ing evidence did. cases, with our many lawyers, whether familiar may doubt under the thought respondent’s statistics, would have Hidalgo County, prevailing this case and circumstances of sys deliberate and arguably sufficient establish were even discrimination. tematic here in unreality for Justices
There me a sense when solely on from Washington the basis inferences decide levers who control the the Mexican-Americans statistics county manipulating power in this remote border In contrast, “against themselves.” them discriminate judge appointed who scene, on the state judges respondent's trial and the presided over commissioners Judge—both District Mexican-Americans United States community—perceived respond no basis with familiar discrimination. of invidious claim ent’s rejecting the Dis today, the Court It to me that seems place, no discrimination took finding that such trict Court’s I judgment reinstate the grievously. would has erred District Court. approach the in this case Nor do the statistics