*1 ROSE, WARDEN v. MITCHELL et al. Argued January 77-1701. July 2,
No. 1979 Decided *2 J., opinion Blacemun, Court, delivered the in which Brennan J., JJ., joined; III, and and I, Parts IV of which C. Marshall, Burger, J., joined; and and in I and II and Eehnquist, Parts of which White Stevens, JJ., joined. Eehnquist, J., concurring part, filed a statement post, p. J., post, p. 579, -p. J., post, 574. Stewart, Powell, opinions joined. concurring judgment, J., filed which Eehnquist, dissenting opinion, J., post, J., joined, filed a which White, Stevens, p. J., opinion dissenting post, p. part, filed 593. Stevens, Attorney Leech, Tennessee,
William M. General Jr., argued the cause for With him on the brief was petitioner. Terry, Attorney Michael E. Assistant General.
Walter Kurtz argued the cause filed brief respondents.* *3 Court.† opinion the of the delivered
Mr. Justice Blackmun In they federal corpus case, respondents this habeas claim were the of racial in the victims of discrimination, violation Equal Protection of Clause the Amendment, Fourteenth jury the selection of the foreman of grand the Tennessee indicted them for murders in the first As the case degree. no of Court, comes to issue the selec- tion only of the venire is are presented; we concerned with the of selection the foreman.
I In 1972, respondents November E. Mitchell and James Nichols, James and men jointly two other were indicted Jr., jury Tipton grand County, the Tenn. The four were first-degree two counts of charged murder connection shooting patrons with the deaths robbery the during McCree, Attorney Days, *Solicitor General Assistant Walter General W. Barnett, and Mildred M. Matesich filed memorandum for the United urging States as amicus curiae affirmance. Burger Eehnquist only †Mr. and Mr. Justice join Chief Justice I, III, and Mr. Justice opinion, Parts and the and Mr. IV of White join only I Justice Stevens Parts and II. respond- Prior place trial, known White’s Cafe.1 motion in pro with trial court a written se ents filed They plea App. sought nature in abatement. the indict- together with other the dismissal of thereby, relief, and the grounds array, ment on the racially discriminatory had selected in a been foreman, respondent Each a Negro. fashion.2 is requires any prosecution 1 The Constitution of for the Tennessee respondents charged presentment crimes with which were be instituted by grand jury. Const., I, or indictment Tenn. Art. 14.§ 2 Tennessee, grand jury composed grand jurors, of 12 Term. (1975), Code Ann. and a foreman or forewoman who “shall be §40-1501 grand jury organized during thirteenth member of each his term equal office, having authority power and coming all matters before grand jury (Supp. 1978). with other members thereof.” §40-1506 years appointed The foreman or forewoman for a term of two county. judge having jurisdiction of the court criminal Ibid. reappointment. There is no limitation on The foreman or forewoman years age, good must be least “shall be a man lawful woman,” qualifications required possess all the other of Tennessee jurors. 1978). (Supp. 1978). (Supp. 40-1507 See 22-101 § § grand jury,
The other than the forewoman, members foreman or through operation “key whereby are system, selected man” compile qualified potential jurors three commissioners a list of grand jurors which are selected at random. See 22-223 to 22-228 §§ (Supp. 1978); (1975). and 40-1502 Twelve members of the §§40-1501 (1975). must concur in order to return an indictment. 40-1706 § State, foreman or forewoman 1be of the 12. Bolen v. 554 S. W. *4 (Tenn. 1976). App. 2d Crim. The foreman or forewoman acts “presiding Collins, as chairman or officer.” State v. 65 Tenn.
(1873). charged duty He or she is with the of assisting the district attorney investigating crime, may in subpoenas order the issuance of grand jury, jury witnesses before the administer grand oaths to witnesses, every grand jury, must endorse bill returned the and must present presence jury. indictment grand to the court in 40-1510, 40-1622, (1975 Tenn. Code Ann. 40-1706, and 40-1709 and §§ Supp. 1978). The absence of the foreman's endorsement makes an indict- “fatally State, ment defective.” Bird 343, 344, Tenn. 52 S. W. (1899). respondents and appointed represent
The court counsel an evidentiary hearing plea in due course conducted on the testimony in At that on behalf of the hearing, abatement. respondents Tipton County jury was taken from the 3 com- missioners; Tipton County grand jury foremen; from 2 former at from the foreman of the time serving respondents were from 11 of the 12 other mem- indicted; and grand jury. bers of that The court clerk on was witness behalf of the at Id., State. 3-35. plea
At the close of this the court evidence, denied and abatement, orally, first written without order, then Id., comment. at 35 and 36.
Respondents jointly jury. were then A tried verdict guilty first-degree murder on each count was returned. Respondents years received sentences on count, each consecutively to run sentences with credit allowed for spent jail awaiting time trial.
On the Court Criminal appeal, Appeals Tennessee finding, with convictions, respect assign- affirmed to an plea ment of error relating to the abatement, “facts here a systematic do demonstrate exclusion of Negroes upon grounds.” Id., racial at Supreme 38-39. The Id., Court of Tennessee denied certiorari. at 42.
Respondents pro each then filed a se petition for a writ corpus habeas the United States District Court for the id., Western 62-73, District Tennessee, renewing, 43-52, other among things, allegation of discrimination in the Tipton selection of the County grand jury and its foreman. petitions District Court referred the a magistrate who, reviewing after the evidence introduced in the state court on the hearing plea abatement studying method of selection, recommended the court hold an evidentiary hearing foreman selection issues. Specifically, magistrate concluded that respondents presented had prima unrebutted facie case *5 Id., respect with of the foreman. 90, the selection at disagreed magistrate 97. The District Court with the as to grand and concluded that had ruled jury, judge state correctly on the Dis- question, issue. On foreman trict along Court went with the and ordered the magistrate, Id., response. State to make further 98. The then State submitted affidavits from acting grand foreman of the jury that respondents indicted trial judge the state appointed Id., who 102-106, foreman. 108-113. On the basis of these petitions ordered dis- affidavits, were Id., missed. at 121-122.
The District
Judge, however, granted the certificate of
probable
required by
cause
App.
App.
Fed. Rule
(b),
Proc.
126-127,
respondents appealed to the United States Court
Appeals
for the Sixth Circuit.
Appeals
(1978).
reversed.
We granted certiorari to consider the foreman issue. 439 (1978).
II initially We two arguments address that, aside from the specific particular facts of this go case, question to the whether court, federal as a matter of should policy, hear claims of racial discrimination in the selection of a when re- viewing state conviction. we First, consider whether claims jury discrimination should be considered harmless error when raised, direct review or in corpus a habeas pro- ceeding, by a defendant who been guilty beyond found
551 by reasonable properly petit doubt constituted trial on the merits was free from other constitutional that Second, question error. we consider related whether such cognizable any claims should longer be on federal habeas corpus light Powell, 428 the decision Stone S. v. U. (1976). 465
A
For
nearly
unbroken line
century,
this Court
an
cases has
Negro
held that “a criminal conviction of
cannot
stand under
Equal
Protection Clause of the Fourteenth
if
on
grand jury
Amendment
it is based
of a
indictment
from
Negroes
which
were
excluded
reason
their race.”
Louisiana,
Alexander
(1972);
628
Bush v.
625,
v.
S.
Kentucky, 107
(1883);
Delaware,
U. S.
119
Neal
103
110,
v.
370,
(1881).
S.
394
U.
See Castaneda
430
Partida,
v.
U. S.
12
(1977).3
and
A
492-495,
criminal
“is
n.
defendant
entitled
require
deliberately
system-
that the State not
atically deny to
right
participate
members
race the
his
jurors
justice.”
Alexander v.
administration
Louisiana,
3 In
Partida,
Castaneda v.
among
we
noted
the eases in which the
applied
had
this
principle
involving grand jury-
circumstances
Kentucky;
Texas,
Bush v.
Carter v.
were
177
442
S.U.
(1900); Rogers
Alabama,
Louisiana,
Pierre v.
(1904);
v.
Mr. Justice Jackson could no first he the convicted defendant place, noted, conflict. the no possible prejudice. petit suffered the jury, Unlike only probable to hold the grand sat determine cause to for trial. It defendant did not consider ultimate issue all guilt or Once a trial heard the evidence innocence. court and determined it was sufficient to the case the trier submit to and once trier was fact, that determined that defendant beyond guilty doubt, reasonable Mr. Justice Jackson believed “hardly say it mouth of lies a defendant ... to his Id., indictment attributable to prejudice.” at “Under such circumstances,” he concluded, “it frivolous any grand contend that however jury, constituted, could have duty any way done its other than to indict.” Ibid. deciding regard
without only discrimination with to the selection of requires subsequent the foreman that a just aside, conviction be set as if proved the discrimination had tainted the selection entire Jury Comm’n, venire. See Carter v. (1970). 396 U. S. did of cases Nor Justice Jackson believe Strauder line Mr. justified by of those dis rights a need to enforce regard to grand juries criminated without against to sit on pointed their race. He made Congress out had 243,5 crime to and manner, § discriminate this C.S. that civil remedies law to mem equity were available bers of the class against. Accordingly, discriminated Mr. Jus tice would have in selection Jackson held that “discrimination grand jury . . , wrong quali . however toward great fied Negroes of the community, harmless this defend was ant,” left enforcement of S., would have Fourteenth prosecutions Amendment interests to criminal § under 243 and “qualified civil actions instituted such Negroes.” position
This support time has attracted first expressed additional Members of the Court, as separate opinion of Mr. Justice this Echo- case. Stewart ing separate the Cassell dissent, opinion “the asserts that has come acknowledge time that Mr. Justice Jackson’s [position] is unanswerable, and to hold that defendant *8 rely grand not on claim jury discrimination to overturn an otherwise valid argues conviction.” at It Post, that the conviction of the defendant should be a break in the chain preceded events that it, notes that Fourth or where Fifth rights Amendment are violated, illegally the evidence obtained is suppressed, but “the prosecution is al- not barred together.” Post, at n. 4. 576-577, separate The opinion be-
5 provides: Title 18 U. C.S. 243§ “No citizen possessing qualifications all other may which are or be prescribed by disqualified law shall be grand petit for juror service as or any court of the States, any United ofor race, color, State on account of previous or servitude; condition of and whoever, being an officer or other person charged any duty with summoning selection jurors, or or any excludes fails to summon cause, citizen such for shall be fined not $5,000.” more than 554 by grand are harmed other interests any
lieves by prosecutions, adequately protected discrimination defendants. available to remedies actions, pretrial or civil in a heavy cost entailed social circumstances, it finds such fact the defend- light especially unjustified, reversal - sepa- Accordingly, the prejudice. no himself has suffered ant direct review either on recognize, not opinion rate would grand a claim of habeas application corpus, an for writ of on a crimi- setting aside ground jury discrimination as valid nal conviction.6 argu- this consistently rejected course,
This
has
Court,
it
in which
in those cases
implicitly
ment.
It has done so
context
principle
the Strauder
reaffirmed
Georgia,
E.
Reece v.
g.,
discrimination.
U.
Louisiana,
628. And
S.,
v.
at
(1955); Alexander
U.
pressed
was
argument
has done so
where the
expressly,
de-
rights of the
guise of the claim that
the constitutional
since
are
fendant
violated
petit jury
only brings
indictment
defendant before
Louisiana,
(1939).
356-358
for trial. Pierre
Discrimination on the basis of race, odious all aspects, especially pernicious in justice. administration Selection members of a grand jury they because are one destroys race and not another the appearance justice *10 556 process. judicial
thereby integrity casts doubt the or grand jury Negroes, service The exclusion impairs confidence the qualified serve, otherwise to group this Court justice. the administration of As public in the only vio “not emphasized, such repeatedly has is under but and the laws enacted our Constitution lates and society concepts of a democratic with our basic war at Texas, 311 U. S. government.” Smith v. representative only harm is not omitted). The (1940) (footnote 130 128, seg from which as he accused, to the indicted society is to as It community has been excluded. ment the injury limited to the defendant —there “The is not a whole. as an to institution, law injury jury system, to the reflected community democratic ideal at large, States, United 329 processes of our courts.” Ballard v. (1946). 195 U. S. in the selection Because discrimination on basis race
4 of a thus at the fundamental members strikes of our judicial system society whole, values and our has recognized right Court that a criminal defendant's equal protection of in- been denied when he is laws by a grand jury group dicted from which members of a racial Delaware, g., purposefully have been excluded. E. Neal v. 394; Georgia, 103 U. at Reece v. U. S., at 87. For this S., same also has reason, reversed the conviction and ordered the quashed inquiry indictment such without cases into whether the defendant was prejudiced in fact the dis- crimination stage. Since the beginning, the Court has held that where discrimination in violation of the Fourteenth Amendment is proved, court will correct “‘[t]he quash will wrong, indictment[,] the panel[;] ifor, the error will superior corrected in a court,' and ulti- not, mately upon this court review,” all without regard to prejudice. Delaware, Neal v. U. 394, quoting Vir- S., ginia Rives, v. (1880). Bush See Ken- Texas, in Hill v.
tucky, at 119. The Court S.,U. at 406, stated: S., liberty impose charged upon State is at one “[N]o *11 in which procedure with crime its trial a Congress pursuant the Constitution, passed and Act to the Court Constitution, alike forbid. Nor is this liberty equal grant protec- withhold the benefits of merely which Constitution commands for as tion, all, the may Tumey we deem the innocent or guilty. defendant Ohio, v. function, TJ. It is the State’s But ours, against to assess the evidence a defendant. our duty it is as i!o as well the to see it that State’s throughout he procedure justice for bringing the him to shall enjoy protection guar- the which the Constitution Where, timely antees. as this laid objection has case, bare a discrimination in the selection of jurors, conviction stand, pro- cannot because the Constitution procedure hibits the which Equal it was obtained. protection of the laws is something more than an ab- right. stract It is a which command must State respect, every which may benefits of person demand. Not the our system least merit of constitutional is that safeguards its deserving extend all—the least well as the most virtuous.” deny We do not there are costs associated with approach. remedy ways But the here many is in less drastic than situations where other rights constitutional have been In the violated. case Fourth or Fifth Amendment violation, violation suppression often results evidence that is highly probative on guilt. the issue of Here, requirement The fact that there no constitutional that States insti prosecutions by tute means of an by grand jury, indictment returned see California, Hurtado v. 110 U. (1884), S. 516 does not relieve those States employ grand juries that do complying from with the commands of the Fourteenth operation Amendment juries. of those “immune reversal does not render defendant however, reprosecu- subsequent reindictment prosecution,” nor is opinion altogether,” tion “barred as Mr. Justice Stewart’s “A convic- Post, prisoner whose n. 4. suggests. 576-577, free if he is fact go tion is reversed this Court need not again by him try indict and guilty, [the State] requirements.” procedure which to constitutional conforms Hill Texas, subsequent at 406. And in that S., in- proof to use all prosecution, the State remains free troduced to obtain the conviction in the first trial. out- believe such do are event, we costs as exist consistently rec-
weighed strong policy adminis- ognized combating racial discrimination in the justice. tration of regardless And fact alternative *12 remedies members rights remain vindicate the of those the class fact grand denied the chance on juries, to serve action permitting challenges state unconstitutional by by defendants has the main avenue which been, is, Fourteenth rights Amendment in context. are vindicated Prosecutions they under 18 243 been rare, § S. C. have U. are not under the control of the class courts. members and the Civil expensive to actions, maintain and not lengthy, have often been And assuming type used. even pre- some procedure trial open would be g., to a defendant, petitioning e. for a writ of corpus habeas in federal under court, pro- such a cedure the vindication of federal constitutional rights would turn on a race to obtain a writ before the State could com- mence the trial. think
We the better view is to open leave the route that over time has by been the main one which Fourteenth Amend- rights in
ment grand jury context of discrimination have been For vindicated. we deny also cannot that, years after the close of the War Between the nearly States and years Strauder, after racial and other forms of discrimination still remain fact of life, administration of justice inas our
society today takes Perhaps as a whole. that discrimination real a form is not less more subtle than before. But of deci- pernicious. We course therefore decline “to reverse long sions racial discrimination standing against directed Texas, U. S., the administration of Cassell justice,” v. our posi- 290 (Frankfurter, J., concurring), and we adhere to re- grand tion that discrimination the selection of the ground setting mains valid aside a criminal conviction.8
B The decision argument State makes the additional that the Powell, in Stone extended v. should be (1976), as to so foreclose a to a grant corpus',relief federal habeas prisoner state ground of discrimination the selection jury. of the grand dissenting in Cas- Justice Powell, Mr. Partida, taneda v. S., joined at 508 n. Chief and Mr. Justice and at least inferen- Justice Rehnquist, tially by id., specifically ob- Justice Stewart, Mr. served “strong that a case of grand made claims jury discrimination cognizable are on federal cor- not habeas pus after Stone Powell.” In this connection, Mr. Justice prisoner noted that claim Powell a convicted jury discrimination goes only to the “moot determination there was proceed cause to sufficient trial to any] flaw in Id., [and the trial itself.” at.508 1.n. Stone, He concluded that, as “the incremental benefit extending corpus habeas as a means of correcting unconstitu- *13 grand jury procedures might tional selection be viewed as 'outweighed by acknowledged the costs to other values vital ” system a rational of justice.’ criminal 430 U. atS., 1,n. Stone, quoting 428 U. at 494. S., in There is no contention this case that respondents sought to press grand jury challenge
their
to the
complying
without
procedural
with state
as
such
rules
to when
claims
be raised.
Henderson,
See Francis v.
(1976).
they
425 U.
do
seek
press
Nor
challenge
this
after
pleading guilty.
Henderson,
See Tollett v.
(1973).
Mindful of this limited we conclude that a claim of discrimination in the selection of fundamentally application differs so habeas rehearing Powell petition The Stone v. issue was raised Appeals. App. denying petition, 142. In the court stated fully upon original “that raised therein issues were considered Id., opinion denying submission and decision of this case.” at 151. In its respondents’ judgment, motion for amendment of the District Court found original ruling denying its the writ was bolstered decision App. St one.
Fourth reasoning exclusionary Amendment rule that of Stone Powell habeas should be extended to foreclose review of such claims in federal court.
In the first place, pressed respond- claims such as those ents in this case allegations concern the trial itself that court violated the Fourteenth operation Amendment grand jury system. In such this cases, most one, this trial same court will be initially the court that must decide merits such a claim, finding applying the law facts and to those facts. This leads to doubt claims us that that operation grand jury of the system violates the Fourteenth in general Amendment will full fair type receive the hearing deemed holding g., essential to the of Stone. See, e. 428 U. S., at cases, n. 37. Fourth Amendment courts are upon called police evaluate the actions evidence, this seizing Court believed that state courts capable were as of performing task as federal habeas this Id., courts. at 493-494, n. 35. But claims that the state judiciary itself purposely Equal violated the Protection Clause are different. There is a need in such cases to ensure an independent obtaining means of review a federal court is available a broader only by basis than review permit. Court will A federal forum must be available if full and fair hearing of such claims is to be had.
Beyond this, there are fundamental differences between the claim here at issue and the claim issue in Powell. Stone v. Allegations charges involve state are violating officials the direct command of the Four- teenth Amendment, and federal passed statutes under that Amendment, shall deny State . any person “[n]o . . within jurisdiction its the equal protection of the laws.” days Since the first after adoption of the Amendment, recognized Court has its operation direct Equal Protection Clause forbids the States to discriminate in the selection of members of a jury. This with contrasts *15 Stone, application considered where the Court the situation con- personal remedy rather than a judicially of “a created whereas right.” S., Indeed, stitutional 428 U. n. been by always its the Fourteenth terms Amendment Fourth Amendment and directly applicable to the States, only recently have been exclusionary its attendant rule applied fully to the States.
"In this federalism concerns that motivated the context, the Powell the rule of Stone v. adopt present. Court to are not upon granted prisoners Federal courts relief to state have proof proscribed nearly century. of the g., Virginia Rives, e. v. at 322. The con U. S., See, corpus appropriate firmation that habeas remains an vehi cle which federal courts are to exercise their Fourteenth responsibilities likely Amendment is not further to increase “ ‘friction our systems between federal of justice, and state impair] the maintenance of the constitutional balance [or ” Stone upon which the doctrine federalism founded.’ Powell, Schneckloth Bus S., v. at 491 31, quoting n. tamante, (1973) concurring). U. S. J., (Powell,
Further, Stone rested to a large per- extent on the Court’s ception that exclusionary rule is minimal value when applied in habeas proceeding. federal there found that the deterrent exclusionary value of the rule was possibility enhanced that “conviction obtained in state court and affirmed direct might review over- be turned in proceedings collateral often occurring years after the incarceration defendant.” S.,U. at 493. Nor did the Court believe that the “overall educative effect of the exclusionary rule would appreciably be if diminished search- claims and-seizure could not be raised in federal habeas corpus review state convictions.” Ibid. And it could not find say basis to federal review would reveal flaws search or gone seizure that had undetected at trial or on Ibid. appeal. In these circumstances, Court concluded applying the benefits of the Fourth Amendment exclu- costs sionary outweigh rule on federal habeas did not associated with it. reasoning
None of Federal habeas re- has force here. necessary view is to ensure constitutional defects state judiciary’s grand jury over- procedure selection are not system. looked very operate judges state who There is strong reason to federal review would believe that indeed appreciated by judges perhaps reveal flaws not state too close to day-to-day operation system of their *16 able properly system to evaluate claims that is defective. The likely educative and effect of federal review is deterrent to be since the great, operate system, state who officials judges employees may of the expected to take judiciary, note a federal court’s procedures determination their are unconstitutional and changed. must be
We note Stone also that to an rested extent on the Court’s feeling that state capable courts were of adjudicating Fourth Amendment claims as were federal where courts. But allegation is judiciary the state in engages itself dis- crimination in violation of the Fourteenth there Amendment, preserve a need independent federal habeas review allegation rights that federal transgressed. have been As in noted above, very case, judge whose conduct re- spondents challenged validity decided .challenge.
It is also true that the concern judicial with dep- integrity, recated the Court in Stone in the context of re- habeas view of exclusionary rule is of much issues, greater concern grand jury in discrimination cases. The claim court that the has discriminated on the basis of race in a given brings case integrity judicial system into question. direct justification force of this for extending federal habeas review cannot be said to be minimal allegations where of improper judicial conduct are made. pointed
As out in our discussion of the Cassell dissent, it quashing with associated tempting exaggerate costs constituted improperly an returned an indictment indict- quashing an In with jury. fact, the costs associated sup- with less than those associated significantly ment are the Fourth suppressed Evidence under pressing evidence. any trial, new used the State Amendment not be guilt. con- highly probative on the issue of though it be the State quashes indictment, after a court an trast, federal trial evidence remains free to use at a second and all guilty A employed proceeding. prisoner who is the first likely go involving free, therefore, fact is less than cases Hill exclusionary 406. Pro- Texas, rule. S., corpus consequence, federal relief as a less viding habeas is, than system justice intrusion on the criminal State’s Stone. was the case we note that interests that a
Finally, constitutional adjudicating federal court claim on habeas substantially discrimination seeks to com- vindicate are more in Stone. pelling than those at above, issue As noted dis- crimination on justice account race the administration of at the core strikes concerns of the Fourteenth Amendment society legal at fundamental values of our system. and our *17 Where discrimination that is “at war with our basic concepts of a society representative democratic government,” Texas, Smith v. S.,U. infects the legal system, the interest in strong making federal corpus available habeas relief outweighs the costs associated with such relief.
We therefore decline to extend the rationale of Stone v. Powell to a claim of discrimination in the selection of the grand jury that petitioner. indicts the habeas And we hold that federal corpus habeas relief remains provide available to a federal forum for such claims.
Ill Notwithstanding holdings these that claims of discrimina- in tion the selection of members of the cogniza- are
ble habeas and will of a corpus, support federal issuance writ setting ordering a state conviction and indict- aside ment it remains to habeas quashed, true that to be entitled- relief present respondents required prove were dis- crimination under the standards set this Court’s cases. out is, That “in order to an equal protection show that violation of selection, occurred context [foreman] procedure employed must show re- defendant underrepresentation sulted substantial of his or of the race which group belongs.” identifiable he Castaneda Par- tida, 430 S., respondents at 494. were re- Specifically, quired prove prima their facie regard case with to the fore- man as follows: step
“The first is group to establish that is one that is a distinct out recognizable, class, singled for different the laws, applied. treatment under as written or . as . . Next, underrepresentation degree proved, must by comparing proportion group the total population proportion to the called to serve [foreman], as significant period over a . . . This method time. sometimes called the proof, exclusion,’ ‘rule of has been held to be as available a method of discrimina- proving tion in against selection a delineated class. . . . Finally procedure selection susceptible ... racially abuse or is not neutral supports presump- tion of showing.” discrimination raised statistical Ibid.
Only if respondents a prima established facie case dis- crimination the selection of the foreman accord with did burden shift to the approach, State rebut Id., that prima facie case. at 495.
There no course, question, respondents, are Negroes, members of a group recognizable aas distinct *18 capable class of being singled out for different treatment under Texas, the laws. 494; Hernandez Id., U. S. purposes of this may assume for (1954). And one 478-479 a selecting method of the Tennessee case we Accordingly, abuse. turn susceptible foreman in their by respondents evidence offered consideration to make out prove underrepresentation attempt sufficient prima facie case. plea in abatement hearing on the
Respondents’ case entirety in its following: consisted Tipton called witnesses three Respondents first as all County commissioners, white, commissioners. These In only as to venire. testified the selection selection, of the Tennessee method of view foreman n. they hardly supra, expected did not and could testify, testified, foremen; have as to the method selection any any past neither did refer them to the race of foremen. Respondents next called two foremen and former Tipton jury. current foreman of County grand The first, McBride, Frank testified that he was lifelong resident of but no there was county, age evidence as to his and thus years county. as to the he lived in the McBride stated served foreman, years he had as “ten ago or twelve . . for . years six five or . . and then . about two or three since times just one session Court.” then, App. answer to respondents’ inquiry he whether had “ever known of man,” foreman was a black Id., McBride “No, said sir.” past at 18. second foreman, Peyton J. Smith, stated had Tipton that he resided in County all his life but, again, no was made inquiry to how long that had been. Smith testified that he had served as foreman “for several years back early . ’50’s, and . . several times since then on occa- sion of the illness of foreman Id., at that time.” at 20. McBride, Like Smith answered “No” when asked whether he had ever known of Negro foreman. Ibid. Jimmy Naifeh, the current foreman, testified that he had served for approximately years two he did not know “if there if was or there wasn’t” ever a Negro foreman of the county *19 made of Naifeh No was inquiry
grand jury. Id., at county. time had lived he length to the (other 12 grand jurors10 called of the Respondents then were respondents when serving who were foreman) than selection testified relative indicted. Not one in- testimony, Their past foremen. foreman or the race among one the effect that dividually was to collectively, and only one they that had heard Negro; their number was one no that respondents’ on deputy sheriff, witness, case; because respondents hostility toward any prejudice voiced the fact no there was consideration race; their and were when some Negroes. Indeed, were respondents Negroes, were respondents they knew whether asked whether Id., 26-32. negative. at they answered support This respondents presented was all the evidence clerk only the called rebuttal, of their case. State no question relating asked trial court. He was of the himof inquiry made no jury foremen, respondents at any topic. Id., other on that or on on cross-examination 34-35. at the later by the State facts were stressed
Two additional recruitment, The was the first proceeding. federal habeas foreman temporary (and former) Smith term, had testified at regular foreman Naifeh. Smith place of not be Naifeh “could plea abatement hearing on the appear come and before this Court I asked to here and was Id., at 21. The asked me to serve.” State judge only judge because the had been selected argued that Smith capable experience, of his would be view believed Smith, proper foreman. This regular for the replacement temporary any claim racial dis- negated said, the State motive, in the selection of to be played role Smith crimination grand juror that one was in Florida at the time record indicates hearing. App. 27. temporary was that the foreman. The second fact temporary against indictment returned not vote foreman did id., this was because the other 105; see respondents, temporary and the foreman’s vote all voted to indict had unnecessary. Thus, therefore was the State argued, *20 in of the harmless possible error the selection foreman was respondents. consequence and of no support argument court, federal habeas its judge the affidavit of the who had se- State submitted temporary permanent foreman and the foreman,
lected presided plea had at on the hearing and who abatement respondents’ as at as well trial. who had served judge, id., period since at a of seven stated that Naifeh years, “was going unable to serve because he was to be out County Id., at the November 1972 term.” 112. The at judge say appointed went on to that he had temporary Smith experience foreman because had had good Smith “and does job as such foreman.” The affidavit concluded:
“In my I counties, five do not have a jury black grand I although have black foreman, my Jury member of county. Commission in one my Most all of Grand and Juries Petit Juries have sizeable numbers of blacks them, men I both and women. appoint don’t Grand Jury very Foreman often because when their year two I usually term reappoint expires, them, they thus serve a long problem time and the doesn’t up very come often. I I don’t think really have given any thought appointing black foreman I but have no feeling against doing so.” at 113. Id.,
It was on the basis this material in rebuttal District Court declined to issue the writs corpus. habeas It found that no racial discrimination had been proved, since the foreman had been “selected for other than racial reasons, . . . did not vote at the time the indictment was Id., 122. rendered.” at Appeals,
The Court of conceded: “The facts reversing, at pretrial 2d, elicited hearing meager.” were 570 F. It on, went “There never been a to note: however, Tipton black foreman forewoman County according to the recollections of the trial judge, Id., three former commissioners, three foremen.” fact, coupled 134—135. This with concluded, court opportunity for discrimination found inherent- in to be the selection was system, prima sufficient make facie out a case of the selection of And the foreman. of Appeals held that the State had failed to rebut exculpatory case. The judge affidavit of the asserting a reason for benign foreman, the selection of the court's could not serve view, respondents’ to rebut case in the absence of proof Negroes there were no qualified to serve as foreman. The the foreman not vote, fact did *21 similarly court held, support the did not the Court’s District since broad judgment, powers the exercised by the foreman in conducting grand jury’s the proceedings meant respondents could have been prejudiced even though fore- man had against not cast vote them.
IY our reaching conclusion in disagreement with the Court of we Appeals, first court note seems have over- emphasized and exaggerated the evidence of its support conclusion that there had “never been a black foreman or of a jury forewoman grand Tipton County.” The Court of Appeals believed this conclusion had been proved recollections of the trial testimony three judge, of commissioners, testimony and the of three former foremen. Ibid. But recollections judge by trial which the — of Appeals Court presumably meant the affidavit filed in District Federal trial judge part no —formed put case respondents. the Court of (Indeed, portion in another recognized to have seems Appeals affi- judge’s state trial considered the where it opinion, of its as- respondents’ of the in rebuttal offered to have been davit gave commissioners case.) And the prima facie serted grand relating to foremen testimony no whatsoever past race of or to selecting foremen, method of jury, to the discrimi- facie case as to prima Thus, respondents’ foremen. entirely foremen rested nation in the selection On foremen. testimony of the three only on the which testimony upon alone is that case, of this record stand or fall. discrimination must allegations of respondents’ did however, the three testimony foremen, case. it cannot be said respondents’ First, establish any period time. Smith testimony significant covered occasionally early in the 1950’s and testified that he served for the fact that Smith was resident thereafter, except but question to the and for his answer negative the county, any black,” has been “known of foreman that whether he had record to show that Smith knew who nothing there is years when he was not had served as foremen interim for testified that he had served Similarly, McBride serving. years years prior hearing, 10 or 12 to the 1973 or 6 some and had not known then, and on two or three occasions since but jury, acted as foreman of the Negro’s having indication that he was as to the gave knowledgeable he no by this years testimony not covered service. Naifeh’s was had respondents’ point weakest from He served as view. only years prior two to the and he did foreman hearing, *22 way Negro not know one or the other whether had served county jury. even Thus, assuming as foreman of the significant 1951-1973 the for period purposes that the is one of case, respondents’ only portions evidence covered of that years a number of period time and left that during about which evidence whatsoever was offered. no provided evidence as such was the
Moreover, testifying said simply foremen of little and was force. McBride Smith had ever response “No” to the whether either question any give known of could no infor- foreman. Naifeh Negro testimony positive mation on the thus no point. There was Negro period that no had ever the critical of during served only time; testimony was that three foremen who served parts knowledge any. no period had And there no Naifeh Smith, is indication record that and McBride, necessarily Negro would been had a ever served have aware as foreman.*
Most num- there was no evidence the total important, as to County ber of foremen appointed by judges Tipton dur- period the critical it ing time. Absent such is evidence, say difficult Negroes appointed the number of fore- man, statistically even if zero, significant so as to make out a case of discrimination under of exclusion.” The the.“rule only testimony in population the record concerning Negro county was to approximately the effect that it was 30%.11 11. App. Given the fact that foreman was not limited in of 2-year the number he terms could serve, given inclination part judge reappoint, likely it is during period question only persons few in actual number served as foremen grand jury. If number was small enough, disparity Negroes between the ratio of chosen to be foreman to the total foremen, number of Negroes the ratio of population the total of the county, might “sufficiently not be large unlikely [that] [this disparity] solely is due to chance or accident.” Castaneda Partida, atS., 494 n. 13. Inasmuch as there is no evidence in the record of the number foremen appointed, possible perform it is not calculations and comparisons permit needed to court to conclude that a statistical case of figure The 1970 census was Bureau of the Census, 1970 Cen 32.44%. Population, Population, sus of Characteristics Tennessee, Part 44 35, p. Table *23 n. and id., 496-497, out, made had been
discrimination Id., 13; at 494 n. fails. "rule exclusion” under proof Texas, S., 347 U. at 480.12 Hernandez v. see by in this respondents introduced Comparison proof of the by in cases where this proof offered defendants case with the most was made out is prima a facie case has found that Alabama, for (1935), In Norris v. S. 587 instructive. case witnesses who example, proved the defendant his jury duty. Negroes for as to number called testified was prima of the facie case sum- support The evidence marized Court: any negro grand
“It served or appeared that no had county memory within the of witnesses petit jury in that Testimony their who had lived all lives. to that there given by ages fifty men ran from effect was whose years. testimony seventy-six Their was uncontradicted. testimony It clerk supported by was The officials. clerk circuit of the commission of the court negro grand jury had known of on a serving never County. court had not reporter, Jackson The who missed county twenty-four in that session and two years, jury commissioners testified to same effect. One latter, who was member commission which made up roll which found had indictment, testified that he ‘never known of single any negro instance where sat on 12Respondents urge gap proof by us to fill the in their reference to the history of Tennessee the fact past race relations in that the State in years jure practiced Negroes many ways. against de discrimination We history decline to this. Reference in a do texts case of this kind does supply respondents prove. otherwise, what failed to If it were one alleging always prove discrimination would be able to simply his case referring history to the within the State. Court’s required cases, however, make it clear inore is establish a viola Equal tion of the Clause of Protection the Fourteenth Amendment. *24 ” petit in history county.’ Id., the at entire of that See Castaneda v. Partida, 430 U. at Eubanks v. S., 495-496; Louisiana, Georgia, 356 U. S. 586-587 Reece v. (1958); S., 87-88; Hill v. Texas, 316 U. at 402-404. S.,
The comparison in of the evidence in Norris other the cited cases stands in stark contrast with the evidence present All prima case. that we to have here establish the facie testimony case is from a two former foremen and briefly present serving they knowledge foreman that had no Negro’s having no these served. There is evidence foremen were knowledgeable years ones about other than the in which they And is themselves served. there no evidence fill for gaps years they did not serve. contrast Norris, no there is long periods direct assertion for of time no Negro had ever or that county with access to served, officials records could state had that none ever served. And there is no basis upon record which to that, determine even no assuming Negro had ever served as fact sta- foreman, that tistically significant was so as support inference that the disparity between Negroes Negro serving popula- and the county tion was the of discrimination in result violation of the Fourteenth Amendment.
It thus was error for the District Court to have concluded initially respondents prima made out facie case. And it was error, well, as for the Appeals Court of to have reached the same final conclusion. The State, ques- under however, tioning oral argument, finding tended concede that a prima facie case had been (“we established was correct did Arg. contest that”), 6-7, Oral did Tr. the same in its brief, although there proof it described the “very questionable.” Brief Petitioner 26.
Normally, flat concession given State might effect. the inadequacy But of respondents’ proof plain. is And the error Appeals Court of in exaggerating the to overlook We decline equally plain. proof of that extent in respondents’ case.13 fundamental a defect so respondents of law, we as matter hold Accordingly, that, of discrimination prima out a facie case failed to make Fourteenth Protection Clause Equal violation regard with to the selection Amendment Appeals is therefore of the Court of judgment foreman. proceedings for further and the case remanded reversed, opinion. consistent with this is so ordered.
It *25 part. Rehnquist, concurring Justice Me. separate opinions
I fully agree joined, and have with, concurring judg- Powell my Brothers Stewart neither they state, separate ment case. For the reasons this grand jury claim of of them would reach the merits a however, which the Court decides. Since, I rejects join III, Parts majority views, I, these opinion. and IV of Court’s Rehnquist
Mr. Justice whom Justice Stewart, with Mr. concurring in the joins, judgment. beyond guilty
The were a reasonable respondents found Why a wholly jury doubt after fair constitutional trial. persons be their convictions set should such entitled have ground on them was grand jury aside that indicted 13 apparently places ease State no reliance on 28 S. C. (d), provides part: 2254 which in relevant § issue, hearing determination after a on the merits of a factual “[A] competent jurisdiction made a court State . . . evidenced a writ- adequate finding, opinion, indicia, ten or written other reliable and written presumed correct, be applicant shall unless the establish shall appear shall .— otherwise . .
“(1) dispute merits of factual were resolved in the not hearing State court Rose, (1973).
See LaVallee v. Delle than improperly was asked more question constituted? That years ago Texas, by Mr. Justice Jackson in Cassell (dissenting opinion). U. S. has never been It I acknowledge answered.1 think the time has come to Justice hold question Mr. Jackson’s and to is unanswerable, a a dis- rely grand defendant claim of crimination to overturn an otherwise valid conviction.
I A grand jury proceeding investigation ex parte “is an determine whether a crime been and whether committed proceedings any per- criminal against should be instituted Calandra, son.” United States v. 343-344. It U. S. 338, is anot of a proceeding guilt which the or innocence defend- is merely ant but determined, one to decide whether there prima against Any possible facie case prejudice him. resulting defendant an indictment returned invalid disappears constitutionally thus when valid trial jury later finds him guilty beyond reasonable doubt.2 short, convicted alleges defendant who that he was indicted by a discriminatorily complaining selected of an proffering (1)
1In an answer today, the Court relies on historical *26 precedents (2) duty the apply Equal the courts to Protection special vigor Clause with in the area of racial discrimination. ground, only
As to the first I can recall what Mr. Justice Frankfurter once said: too comes, reject “Wisdom often never ought and so one not to merely it because Bank, it comes late.” Henslee v. Union Planters 335 (dissenting 595, opinion). U. 600 S. agree As the second I ground, whole- heartedly with general Equal Clause, Court’s of the view Protection believe, explained but as opinion, guarantee that constitutional protects the victims rather than defendants who have by lawfully been fair convicted after juries. trials constituted 2 requirement There is no prosecution constitutional that a criminal state grand jury. even be a initiated bring A State free is a criminal charge through information prosecutor. California, filed a v. Hurtado 516. S. And the Court held that a defendant not entitled judicial “to oversight or prosecute.” review of the decision to Gerstein v. Pugh, 103, 420 U. S. 119.
576 no had could have constitutional violation
antecedent of the that resulted on fairness trial impact conceivable his conviction. rights of constitutional deprivations settled
It is well conviction unless there trial bar to before are no that occur A after conviction impact upon trial itself.3 has been an chain of “represents a a break guilty plea, like trial, Tollett preceded process.” criminal which has events Blue, Henderson, 411 United States v. U. 267. See 258, v. S. 255; California, 181, Stroble 343 U. S. 251, cf. v. U. S. only to trial relevant (“illegal prior officials are acts state on he has been they petitioner’s bear contention that deprived trial”). a fair are dealing in this with arrest Court unlawful
The cases unrea particularly Unconstitutional arrests are instructive. Fourth and person that violate the sonable seizures Ohio, 1. g., Terry E. v. Fourteenth Amendments. U. S. an does a “illegal subsequent arrest detention not void Yet, Pugh, 420 In conviction.” Gerstein U. S. Frisbie 103, v. Collins, v. 342 U. S. been example, defendant had forcibly brought one State to another abducted fair, upheld stand but the trial itself was and the trial, Justice, 700; his conviction. See also Mahon v. 127 U. S. Illinois, Ker U. S. 436.4 Alabama, In Coleman v. Court vacated a conviction provide
in a ap situation where State had failed to a defendant with pointed preliminary hearing. holding counsel at The Court’s was premised opportunity preliminary hearing of defense counsel develop impeachment purposes record could be useful for at the testimony trial. did appear Favorable of a witness who at trial could emphasized preserved. addition, ability also the Court preliminary hearing at a prose counsel to discover substance prepare case and thus to an trial Id., cution’s effective at 9. defense. 4 Similarly, prosecution a defendant not immune from under out standing if he is *27 indictment searched violation of his Amend Fourth interrogated rights Illegally ment or rights. violation his “Miranda” specifically grand with dealing cases United proceedings equally are instructive. In Costello v. States, of a 350 U. S. the Court the conviction 359, sustained him sought charges against defendant who had to dismiss the exclusively on ground that the indictment had been based upon hearsay inadmissible evidence. United See also Holt States, States, 218 U. Lawn v. S. 245. United S. 339, the Court held that defendant not could avoid trial conviction ground pro- on the indictment had been by cured obtained violation Fifth Amend- evidence of the ment. indictment its valid on face is subject not “[A]n challenge ground grand on the jury acted on incompetent basis of inadequate or or on evidence, even ... the basis of information obtained violation of a defend- against ant’s Fifth Amendment privilege self-incrimination.” Calandra, United supra, States v. at 345. Cf. Gelbard v. States, (“The United 'general U. S. rule’ ... is not entitled to have his defendant indictment dismissed simply before trial because in- 'acquire'[d] the Government evidence violation of criminating if the [rule],’ even ‘tainted presented evidence was to the grand jury’ ”); United Blue, States v. supra, at 255 n. 3.
II
A person who has been
of incompetent
indicted
the basis
illegal
evidence
prejudice. By
has suffered demonstrable
prejudice
contrast,
suffered
been
defendant who has
indicted
unconstitutionally
an
chosen
is specula-
likely
tive at
best,
more
nonexistent.
But there are,
implicated
other
course,
interests
when
systematically
a State
excludes qualified Negroes
jury service. Such
obtained evidence
trial,
excluded
prosecution
from the
but the
altogether.
barred
might
“So drastic a step
marginally
advance
some
exclusionary
served
rules,
ends
but it would also increase
degree
intolerable
interference
the public
with
having
interest in
guilty brought to
United
Blue,
book.”
States v.
*28
equally
participate
right to
Negroes
denies
con-
compelling
The
citizenship.
of
responsibilities
of
all forms
eliminating
our Nation
interest
stitutional
of
citi-
qualified
group
that no
requires
racial discrimination
petit
or
grand
as either
participation
from
excluded
zens be
justice.
administration
jurors in the
means
by
however,
vindicated,
fully
can be
interests
These
This
convictions.
criminal
valid
setting aside
than
other
injunc
can obtain
Negroes
for example, that
held,
Court has
grand
exclusion
remedy unconstitutional
tive relief
Greene
Jury Comm’n
v.
jury service. Carter
petit
or
That
Fouche,
Turner
396 U. S.
320;
County, 396 U. S.
allowing
the members
advantage
remedy
has
to vindi
grand jury discrimination
actually injured by
class
when
heavy societal
entailed
cost
rights without
cate their
Con
overturned.5 Moreover,
convictions are
valid criminal
a
official to ex
public
a criminal offense
gress has made it
his
jury on the basis of
grand
petit
from a
or
any person
clude
may also have
243.6 Defendants
her
C. §
race. 18 U. S.
Mr.
But, as
against unlawful indictments.
pretrial remedies
hardly
lies
case,
stated
the Cassell
Justice Jackson
“[i]t
directly
by
jury
Negroes
most
dis
That
are the class
affected
by
recognized
first
in the landmark case of
crimination was
this Court
Virginia, 100
v. West
U. S. 303. The Court stated:
Strauder
very
people
singled
expressly denied
“The
fact that colored
are
out and
jurors,
right
law,
participate
all
the administration of the
a statute
they
citizens,
color, though
are
be in other re-
of their
because
law,
fully qualified,
practically
upon them,
affixed
spects
is
brand
inferiority,
prejudice
that race
of their
and a stimulant to
an assertion
equal
securing
impediment to
to individuals of the race that
which is an
Id.,
justice
at 308.
which the law aims to secure
all others.”
qualified
rights directly,
Negroes can now vindicate their
the ra-
Since
allowing a defendant who has been convicted
a constitutional
tionale for
Negroes
rights excluded from the
petit
to assert the
who were
grand jury has been undermined.
constitutionality
upheld
parte Virginia,
this statute
in Ex
was
found that his indict- beyond reasonable doubt, prejudice.” ment attributable to 339 TJ. at 302. S., all these I a claim of For believe that discrimina- reasons, tion in the selection or its foreman *29 for ground aside Accord- setting a valid criminal conviction. I only concur judgment. ingly, Rehnquist Powell, Mr. Justice whom with Mr. Justice concurring judgment. joins,
I agree respondents’ convictions should be over- not holds, respondents turned. As the Court show a failed to prima facie case of the fore- the selection of grand jury man of the indicted them. A more funda- for exists, however, reversing mental reason of judgment of Appeals. Respondents were found’ of guilty beyond murder doubt a petit jury reasonable whose com- position is not fair in questioned, trial that was following every respect. respondents given were a full Furthermore, opportunity and fair to claim litigate the state courts their of discrimination. these circumstances, an attack allowing on the selection in this case is an abuse of corpus. federal habeas
Whenever a federal upon by prisoner court is called a state to issue writ of habeas is asked to do things it two corpus, only that should be respect undertaken with restraint for way system justice our of First, structured. as one of general court is requested to a col- jurisdiction, entertain attack upon lateral the final judgment another court of jurisdiction. general contrary Second, principles fed- a lower eralism, only federal court is asked to review not state trial judgment, judg- court’s but invariably the almost highest ment court of the con- State as well.1 These 1 opponents of corpus Both advocates and broad federal habeas relief recognized plays sys- have the unusual role the Great Writ our federal 580 critically than this inquire, more prompt one to
siderations
allow the use
appropriate
has, whether it
Court ever
protect
do
who
seek
corpus
prisoners
state
not
habeas
justness
interest
their convictions.
their
personal
I
do
corpus
history
purpose of the writ
habeas
Members
suggested by five
application of the writ
support the
only
today.
granted
writ was
Originally,
the Court
jurisdiction
had been without
when the
court
criminal trial
193,
Ex
3
g.,
parte
action.
e.
Pet.
See,
Watkins,
entertain the
Foster,
(CA2
172 F. 2d
1949),
Schechtman v.
339
(1830);
Bustamonte,
924 (1950);
Schneckloth v.
cert.
U. S.
denied,
(1973) (Powell,
concurring); Oaks,
J.,
U. Mich.
History in the
Court—-Habeas
L.
Legal
High
Corpus,
Finality in
Law and
(1966);
Bator,
Rev.
Criminal
Corpus
Rev.
76 Harv. L.
Prisoners,
Federal Habeas
State
*30
(hereinafter Bator).
scope
(1963)
the
441, 466
Subsequently,
modestly expanded
of
was
to
cases
encompass
the writ
¡'those
the
had
where
defendant’s federal constitutional claims
not
been considered
state-court
Frank v.
proceeding. See
In
(1915).
tern. in Criminal Law and Corpus See Federal Habeas Prisoners, (1963); State Harv. L. Rev. Reitz, Federal Habeas Corpus: Impact Proceeding, of an Abortive State Harv. L. Rev. (1961). 1330-1331 19th-century
1 do
suggest
that we should revert to
cir-
to
conception
corpus
habeas
those
writ
limit
enter
jurisdiction
cumstances where the
court lacked
trial
competent
judgment.
scope
of habeas
expanding entirely
sight
corpus, however, the
seems to have lost
purpose
accept
of the historical
It has
writ.
come
judgments
review
federal district
courts
state-court
criminal
exception
cases as
than the
rule,
rather
should
Federal
raised in
constitutional
are
challenges
be.
every
almost
every lawyer
state
in part
criminal
because
case,
knows that such
provide nearly
claims will
automatic federal
habeas
If
corpus
corpus
review.
we now extend habeas
encompass constitutional claims unrelated to the fairness of
trial
in which
claimant
convicted,
was
will take
we
long step
another
toward
dual system
the creation of a
review under which
in a
defendant convicted of crime
state
court, having
exhausted his remedies
re-
state system,
peats
process through
system.
the federal
extent
duplication already
which this
country
exists
with-
parallel
system
out
other
justice
in the world.2
simply
We
have not heeded
thoughtful
the admonition of
scholars that federal
corpus
habeas
should not
“made
for re-determining
instrument
all
merits of
cases
system
legal
that have ended in detention.”
P.
P.
Bator,
D.
Mishkin,
H. Wechsler,
&
Hart &
Shapiro,
Wechsler’s
The Federal Courts and the
System
Federal
(2d
ed.
1973); see Bator 446-448. Today’s case is an extreme ex-
ample of
this loss
historical perspective.
In extending
use of the writ
wholly
to circumstances
unrelated
pur-
to its
*31
the Court
pose,
would move beyond anything heretofore
2
only may
Not
the state claimant have a “rerun” of his conviction in
courts,
the federal
but also
no
there
limit to
the number of habeas cor
petitions
pus
may
lawyers
jailhouse
such a claimant
file.
prisons
The
country
flourishing
of this
a
repetitive
conduct
corpus
business
habeas
petitions.
see,
is not
Court,
It
unusual to
at this
a score or more of
petitions
years by
over
period
filed
a
of
the same claimant.
number of occasions
that on a
It is true
in our
decided
cases.
discrimination, but
jury
grand
state
has considered
this Court
authority for federal
can
viewed as
fairly
be
prior
no
decision
the fair-
challenge
absence of
corpus review the
habeas
S.
Virginia, 100
v. West
U.
of
Strauder
ness
the trial itself.
in which
cases
of
involved
all
and
its
(1880),
progeny,
juries
chal-
petit
was
both the
composition
grand
of
of the
itself was
issue.
integrity
trial
so that
lenged,
(1939),
as
v.
II pretense of arguing Court makes no either the history purpose corpus supports writ of habeas its extension this, case such as where the claimant con- eededly Rather, was found guilty after fair trial. policies Court looks to the of the Fourteenth Amendment justification, noting purpose the Amendment’s was to eliminate racial respondents discrimination such here al-
3Although opinion of the Court discusses the extension habeas corpus unnecessary discrimination, to claims this discussion is prima view of the conclusion Court’s that no facie case of discrimina by respondents. questioned tion Indeed, fairly was made out it whether opinion part holding Court, Part II of the for not join support all of the four judgment. Members who even the Court’s *32 Apart lege.4 other, appropriate from the fact more attacking means are in the selec- available discrimination tion of the Fourteenth Amendment is irrelevant grand juries,5 to principled determination of when writ of habeas is a corpus proper remedy. I of in the nothing language know history of Amendment, Fourteenth or civil rights implementing it, special statutes use of.the suggests some corpus. writ of If, habeas we are to assume it however, open is to this to in which extend writ cases guilt incarcerated claimant is hot least we issue, weigh thoughtfully should may the societal costs that be in- As of fully my volved. some these were addressed concur- Bustamonte, Schneckloth ring opinion I (1972), mention principal only briefly. now costs
A
Because
corpus
unique remedy
habeas
is
which allows
of
jurisdiction
one court
general
review the correctness
judgment
general
another court of
its
jurisdiction,
exercise entails certain costs
inherent whenever there
dual
explicitly
The Court
bases its extension
corpus
of habeas
in this
upon its
case
conclusion that
constitutional
interests
a claim
involved
grand jury
compelling”
discrimination are “more
than those involved
ante,
other
clear,
constitutional claims.
It
See
is not
however,
possible
would
be
to cabin the
rule to
Court’s
cases
racial
where
alleged.
are,
course,
There
numerous constitutional
challenges
grand jury
nothing
indictments that have
to do with racial
logic
may
discrimination.
position
of the Court’s
lead to the ex
corpus
every
tension
habeas
conceivable
defect in
constitutional
indictments.
5 Mr.
points out,
As
a federal statute makes it a crime
Justice Stewart
to discriminate on
the basis of race
jurors,
selection
U. S. C.
and both
private
Government and
brought
actions
§
those
improperly
Jury
excluded from
service.
Carter v.
See
Comm’n
County,
(1970).
Greene
Furthermore,
“a proper respect for state a recognition of the functions, fact that the entire country up made of a is Union of separate state governments, continuance of the belief that the National Government will fare if best suggests The Court that “federalism concerns present” ... are not when the of an challenged fairness indictment is on federal habeas, because grafted courts prisoners have relief to upon state proof “[ffederal of the proscribed nearly century. for See, Virginia g., e. v. Rives, [313,] [(1880)].” Ante, 100 U. S. at 562. There logic is no reasoning. to this The mere fact that federal courts have reviewed some nearly century hardly state-court decisions for supports a conclusion Virginia that no federalism concerns exist. Nor does v. support Rives argument. case, petitioner Court’s In that challenged composi petit jury, tion of his well as that of the as that had indicted him. petit brought question Whenever the fairness of into doubts integrity process are raised prisoner that found the guilty. Texas, supra, See (Jackson, Cassell v. 301-302 J., dissenting). justified Collateral relief though therefore even it entails some damages to infra, our federal fabric. See at 586. perform
States and their institutions are left free to their separate ways.” separate Younger functions their v. Harris, 401 U. (1971). S. also National League
See
Cities v.
Usery,
Bustamonte,
Schneckloth
(1976);
supra,
264-265
concurring).
J.,
respect
a “proper
Nowhere has
(Powell,
state
system
functions” been more essential
to our federal
than
justice.
administration of criminal
This Court
repeatedly
recognized
that criminal
primarily
law
extraordinary
business
the States, and that absent the most
circumstances the federal
should
interfere with the
courts
*34
States’ administration of
g., Younger
law.
e.
v.
See,
Harris, supra; Perez Ledesma,
(1971).
v.
The overextension corpus by of habeas federal courts does more simply than threaten the essential role of the States system. our federal very principle It runs afoul of the pri- of mary jurisdiction state over the criminal the laws that repeatedly has asserted. This with opera- interference state merely not by tions is academic. a single The review federal district court judge judgment considered of a state trial an court, appellate court, intermediate and the highest court of the State, necessarily denigrates those institutions.7
B expansion The system Court’s of our dual of review there- fore inflicts substantial costs system on our of society, justice, 7 implies The Court judges that state trial cannot be trusted rule fairly they the on issue here presented, because are involved administra tively in grand jury. Ante, 561, the of selection the 563. This is a view wholly unacceptable. I find circumstances, In judges numerous trial are upon validity called judicial on the rule of their own and administrative general disqualification action. I requiring know of no constitutional rule certainly assumption in such I accept cases. would not point at this history particular in our judges that state fairly be cannot trusted Bustamonte, consider claims of racial discrimination. See Schneckloth 218, 263-264, (1973) (Powell, J., concurring). U. S. n. 20 vindicated being claim fabric. When the federal and our is being claimant the individual corpus is that federal habeas very for justified, are costs incarcerated, these unjustly means which some provide is to Great Writ purpose may tested. be incarceration an individual’s legality McNally v. (1973); Rodriguez, 411 U. S. Preiser v. See Busta Schneckloth v. Hill, (1934); 136-137 293 U. S. In concurring). monte, S., 252-256 J., (Powell, of releasing prisoners means only providing it is deed, person will no innocent custody that we assure that can jus our criminal pre-eminent objective be incarcerated, 315-316; re Virginia, ante, at system. tice Jackson v. See concurring). (1970) (Harlan, J., Winship, U. S. juries the selection Preventing discrimination system.8 ques But priority in our high also is goal whether Court seems to simply, think, tion is important. are Habeas goal interests serves good corpus general promote is not a writ social meant to priority. highest all interests of even the or vindicate societal developed writ, question rather is whether this ancient precise properly particular purpose, law to serve employed general societal furthering provision For the of indictment goal grand jury integrity. *35 jury protect does not innocent defendants grand unjust Rather, helps to assure that innocent convictions. unjustly will not be stand trial at all. persons made to Once 8 justify grand The Court also would collateral review of claims of damage discrimination because of the that such can discrimination do judicial system integrity ignores perceived to of the a whole. But it the society’s justice damage perception system by the the done to criminal allowing reversed attack valid convictions to be on collateral on basis nothing guilt having to do with of claims the defendant’s or innocence. discriminatory Moreover, any pub action so notorious as to undermine likely judiciary lic’s in the fairness faith to be remedied on direct by the courts this state Court. review a beyond a defendant found a reasonable doubt guilty hardly can fairly drawn a fair he petit jury, trial, following him trial.9 Be unjust claim that it was have made stand to incarceration is protect cause the need to the innocent from corpus implicated this, not in cases such as the writ of habeas remedy. can appropriate is not Other remedies be, provided protect society’s eliminating interest in been, have in racial discrimination the selection those who are serve juries. on See grand 5,n. question Although case, I find much of I need not reach the in this says persuasive question
what MR. Justice Stewart whether com plaints concerning the fairness of indictment should survive conviction appeal. ante, dissenting purposes p. even for of direct See 574. In his Texas, “any opinion suggested in Cassell v.. Mr. Justice Jackson case, great in selection of the in however this qualified wrong Negroes community, to this toward was harmless today S., defendant.” 339 U. at 304. never has under Until arguments taken to Mr. Justice Nor am I answer Jackson’s Cassell. today’s completely attempt. purposes opinion, satisfied with For of this however, respondents’ I shall assume that direct claims was review of appropriate. prior today’s Finding support no our decisions for extension only Stone corpus, habeas the Court considers whether our decision in Powell, (1976), grant 428 U. forbids federal courts to habeas course, corpus proper Stone, cases such as this. did not address grand jury discrimination, presenting method for claims of as it involved only exclusionary Nonetheless, claims under the Fourth Amendment rule. present the Court Stone and the case. overstates differences between supra, ante, sure, Powell, 560-564. To be See in Stone v. at n. exclusionary “judi emphasized rule we the Fourth Amendment was right.” cially remedy personal created rather than a constitutional We so, only that our however, rejecting suggestion did of the dissent jurisdic a “drastic of federal habeas decision would lead to withdrawal might Stone tion,” S., 517, the unlimited. extent of which exclusionary designed recognized that the Fourth Amendment rule was protect right unjust of an individual be free from conviction. finality judg Thus, justification undermining of state-court many Properly corpus ments that absent. exists habeas actions was only understood, therefore, the in Stone is not rationale our decision *36 Ill today I of federal In the extension view Court’s sum, history pur- and wholly at odds with the corpus to be habeas analysis of any careful Furthermore, the writ. pose of shows plainly approach Court’s costs and benefits the vindication corpus should be available for that habeas jury discrimination respondents’ grand such as claims, claim- the fairness of the claim, nothing that have to do with tempted to reach ant’s conviction. Courts often are remedy they before claim available when have them a un- importance. my however, view, intrinsic judicial principled way process, in which to administer are especially protect when other remedies available to I a challenge interests stake. therefore would hold that composition to the of a state cannot be prisoner’s grand incarceration, raised in collateral federal to his challenge provided opportunity provided full and fair was state courts for the consideration of the federal claim.
Mr. Justice with whom Justice White, joins, Stevens Mr. dissenting. I I II
Although agree with Parts opinion, the Court’s I prima believe purposeful facie case of discrimination was made out and was I not rebutted the State. there- III fore dissent from Parts IY and from judgment. On basis of presented the evidence evidentiary hearing state court, District Court concluded re- spondents “appear prima have made out a facie case [ed]” the selection of foreman denying consistent with collateral relief for claims of indictment, unfair actually presages but such a limitation on corpus. For, habeas as I have above, right stated in the text not to be discriminatorily indicted grand jury, right selected like the improperly not to have obtained, but highly probative, evidence trial, nothing introduced at to do-with the guilt prisoner. innocence
589 affi upon App. that indicted them. 99. However, concluded davits court response, submitted the State in fact the been for other than racial that foreman had chosen thus indictment, he had and reasons, that not voted on the that had Protection Equal there been a not violation Id., a Appeals agreed at 122. that Clause. The Court of prima testimony interpreting facie case was shown, the record testifying effect that that the recollections of were those grand there had never been a foreman of a black chosen as Tipton for dis County, pointing potential out the crimination in system fore which the selection of the leaves man to single “really the discretion of judge who not given thought appointing” at 113. 570 black, id., See 2d (1978). F. 134-135 The of Appeals disagreed, however, prima this facie case been had rebutted testimony of the selecting judge feeling had “no that he against” appointing a black to be irrele foreman, found vant foreman on respondents’ did vote indict Id., ment. at 131. Because we do not sit to redetermine the factfindings of lower and because the Court of courts, Appeals correctly governing enunciated and law applied the proof of discrimination in of grand jury selection, context I dissent. only difference between case and our previous voiding
cases a conviction discriminatory due to selection members the grand jury is this case it has been only shown grand that the jury foreman, who did not vote the indictment, was chosen in a manner prohibited Equal Protection I agree Clause. with Appeals the Court of given importance the vital of the foreman in func- tioning grand juries a conviction Tennessee,1 based on an
1 (1978): See 570 2dF. vitally “The foreman or forewoman important is functioning grand juries Tennessee, being grand 'the thirteenth member of each jury organized during his office, having equal term of power and author- discriminatory in a was chosen foreman where the indictment where the entire be a conviction just as would is void fashion there or not whether discriminatorily selected, jury' Partida, v. see Castaneda actual showing prejudice, Louisiana, 405 U. S. Alexander (1977); U. S. (1964); Carolina, 376 U. S. North Arnold v. (1972); *38 Texas, (1958); Cassell v. Louisiana, 584 356 U. S. Eubanks v. 463 332 S. Mississippi, U. Patton v. (1950); 282 339 S.U. Louisi- (1942); Pierre v. Texas, 400 Hill 316 (1947); v. S. 110 107 Kentucky, Bush U. S. v. ana, (1939); 354 U. S. (1883). than the rather only foreman,
That
this case involves
in
manner
implications for the
have
jury,
entire
does
dis
may
proving
burden of
respondents
their
which
meet
in
context of racial discrimination
crimination.
systematic
Negroes
exclusion of
selection of
“the
juries,
law
as to show
'unequal application
an
of the
...
itself such
”
necessary component
a
intentional discrimination/
Davis,
equal protection
Washington
violation.
v.
S.U.
in those
in which we have
(1976).
cases
Generally,
unconstitutional discrimination in
selection,
found
those
upon
significant
have relied
a
statis
alleging discrimination
discrepancy
percentage
underrepre
tical
between the
group
population
percentage
sented
and the
of this
group
pro
called to serve as
combined with
selection
jurors,
a
susceptible
racially
cedure “that is
of abuse or is not
neutral.”
supra,
Castaneda
at 494.
Partida,
g.,
v.
e.
Alexander
See,
Louisiana,
Turner
supra;
Fouche,
v.
v.
(1970);
showing the burden State to rebut made, shifts the inference of Castaneda Par- discriminatory purpose. v. tida, supra, This method sometimes called proof, at 495. the “rule of well exclusion,” S., not be when suited the focus of is a officeholder whose inquiry single term County lasts two full Tipton as is years, true Partida, foreman. For Castaneda instance, we considered relating 11-year period showing statistics persons the 870 were grand jury duty selected for 39% Hispanic, general population His was over 79% panic. The likelihood that this could be discrepancy statistical explained on the basis of chance alone was less than in 10140. id., See 495-496, necessarily sample n. size considered in case of the selection foreman simply permit does not statistical inference as overwhelming 11-year as that During any Castaneda. period, only there would be opportunities five or six for select ing foremen in Tipton County, assuming every fore *39 man selected at serves least full 2-year term.2
Despite difficulty any the inherent of presentation statistical respect with to discrimination filling particular grand jury spot, respondents nonetheless have a strong showing made of underrepresentation supporting an purposeful inference of discrimination. This a position reject Court not in finding, explicitly made Appeals implicitly made the District Court,3 that those who testified believed 2 key compare The numbers to are the number of selected to be blacks foremen and opportunities the total number of to select foreman. The greater latter number be than the number of different individuals who if appointing judge serve reappoint inclination to those previously who have served. 3The District Court did make written findings explaining of fact not. prima basis its conclusion that a appeared facie case to have been However, established. Appeals the Court of position in a dispose was appeal, of the necessity without the of a remand to the Court, District because the record and the District Court’s clearly conclusions of law 1951— period during foreman black never been there had Director, 385 U. Immigration S. Berenyi v. 1973. See Co., Air Products v. Linde Mfg. Co. Graver (1967); 11 foreman selections (1949). Assuming U. S. black number of expected during period,4 made were of no blacks likelihood 3—and the more than foremen would be con- blacks, who be than 1 in 50—if less chosen would being and whites county’s population, third nearly a of the stituted how I do not see being equal.chance had an selected. a stronger make statistical respondents expected could showing.5 statis respondents’ any any possible weakness event, by the additional was more than overcome presentation
tical aof selection First, Court. evidence before the District single person— of a complete foreman is to the discretion left for such a abuse in judge. potentialitiés the circuit Partida, supra, 497; system Castaneda obvious, are cf. v. Texas, Hernandez Jury Comm’n, supra; v. Carter v. particular (1954) (“key system). man”
475, 479
Moreover,
had
judge
respondents’
who
the foreman
chose
Finney
Cor-
conclusion,
Board
reveal the basis
its
see
Arkansas
(CA8 1974).
any
rection,
Mr. Justice dissenting part. Stevens, Mr. Justice opinion prompts Stewart’s me explain II Part joining of the I opinion Court’s do necessarily I indicate that would rejected have arguments forth set in Mr. Justice opinion Texas, Jackson’s dissenting Cassell v. U. S. if I had been a Member of the Court when the issue was first addressed. surely But there is force enough to Mr. Justice reasoning Blackmun’s to require adherence
6Clearly, it is irrelevant part selecting admissions on the of the judge given that he had thought never appointing, and indeed had never appointed, a black part foreman came petitioner’s written re sponse respondents’ petitions for writs of federal corpus. habeas ascertaining plaintiff whether has carried his burden proof, all evidence must be considered. It is not unusual that an affidavit or other party evidence submitted one to a turns primary, lawsuit out to be of perhaps even determinative, party. aid to the other *41 consistently followed a course of decision that been has this Court since 1880. straitjacket stare decisis is
The doctrine of The re-examination outmoded rules. doctrine forecloses busy with a valid reason for does, however, provide judges tipped balance refusing remeasure delicate every conflicting direction time the interests have been same weighed. heavily my decisis considerations that weigh stare II join
decision to Part of the Court’s opinion support also opinion III dissenting Parts Justice White’s Mr. I join
IV. dissent. his Accordingly,